Maclean and District Bowling Club Co-operative v. Green
The respondent in this appeal, Ms Green, contracted lung cancer as a result of exposure to environmental tobacco smoke in the workplace and her own tobacco use. She was exposed to passive smoking in the workplace for a period of about 26 years until she was diagnosed with lung cancer in 2002, and smoked somewhere between 10-50 cigarettes a day for a period of 17 years up to 1992. She was successful in her claim for workers compensation before an Arbitrator, who found that (among other things) exposure to smoke in the workplace was a substantially contributing factor to the contraction of her disease. This was an appeal from that decision.
The respondent insurer alleged that (1) there was insufficient evidence before the Arbitrator to conclude that exposure to passive smoking in the workplace substantially contributed to Ms Green's disease; and (2) the Arbitrator gave insufficient reasons for his decision.
In this decision, Deputy President Roche found that there was sufficient evidence for the Arbitrator to conclude that Ms Green's employment was a substantial contributing factor to her injury. However, Deputy President Roche agreed with the appellant that the Arbitrator gave insufficient reasons for his decision, and therefore remitted the matter to a different Arbitrator for re-determination.
Maclean and District Bowling Club Co-operative v. Green [2014] NSWWCCPD 53 (14 August 2014)
An individual or organization may seek civil damages against a tobacco company based on the claim that the use of tobacco products causes disease or death. Some of these cases will relate to general tobacco products, while others will relate to specific subcategories of tobacco products--for example, light or low products, menthol or other flavored products. Additionally, there may be cases relating to exposure to secondhand smoke.
Measures dealing with criminal and civil liability, including compensation.
(See FCTC Art. 19)
Substantive Issues
None
Type of Tobacco Product
None
Limitations regarding the use of quotes The quotes provided here reflect statements from a specific decision. Accordingly, the International Legal Consortium (ILC) cannot guarantee that an appellate court has not reversed a lower court decision which may influence the applicability or influence of a given quote. All quotes have been selected based on the subjective evaluations undertaken by the ILC meaning that quotes provided here may not accurately or comprehensively represent a given court’s opinion or conclusion, as such quotes may have originally appeared alongside other negative opinions or accompanying facts. Further, some quotes are derived from unofficial English translations, which may alter their original meaning. We emphasize the need to review the original decision and related decisions before authoritatively relying on quotes. Using quotes provided here should not be construed as legal advice and is not intended to be a substitute for legal counsel on any subject matter in any jurisdiction. Please see the full limitations at https://www.tobaccocontrollaws.org/about.
"Rather than considering the expert and lay evidence, and determining which he accepted and which he rejected, the Arbitrator merely expressed a conclusion, namely, that he accepted that all of Ms Green’s employments in the club and liquor industry had been employments to which the nature of the disease of lung cancer is due. That did not engage with the evidence and did not determine the issues in dispute. ...
While it is correct that an arbitrator does not have to refer to all the evidence (Mifsud v Campbell (1991) 21 NSWLR 725 Samuels JA at 728D), he or she should refer to the relevant evidence (Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 Meagher JA at 443). A trial judge (and, I would add, an arbitrator) is required to engage with the issues canvassed and to explain why one expert is accepted over the other (Taupau v HVAC Constructions (Queensland) Pty Limited [2012] NSWCA 293 per Beasley JA at [133] (Basten JA and Macfarlan JA agreeing), citing Archibald v Byron Shire Council [2003] NSWCA 292; 129 LGERA 311 at [54] per Sheller JA). The Arbitrator did not do that.
Similar comments apply to the Arbitrator’s “analysis” of the substantial contributing factor issue. His “reasoning” essentially came down to his statement at [36], which is reproduced in full at [43] above. After saying that he had particular regard to Mr Lowe’s submission that Ms Green’s cigarette smoking substantially outweighed the contribution made by environmental tobacco smoke, and noting Professor Tattersall’s evidence that Ms Green’s cigarette smoking “dwarf[ed] any contribution from environmental tobacco smoke”, the Arbitrator concluded that Ms Green’s “further 10 years of environmental tobacco smoke exposure is a ‘strand in the cable’” that, given the occurrence of lung cancer, led him to the inference that: “environmental tobacco smoking exposure substantially contributed to the contraction of [Ms Green’s] lung cancer and that this contribution was real and of substance, even if the comparative contribution of cigarette smoking is significantly greater in dosage.”
...
It may well be that there are many reasons that, on a proper analysis of the evidence, justify the conclusions the Arbitrator reached. In other words, as Mr McManamey’s submissions have highlighted, there may be many “strands in the cable” that justify a positive conclusion on the causation issue in this case. However, the Arbitrator referred to none of them."
Limitations regarding the use of quotes The quotes provided here reflect statements from a specific decision. Accordingly, the International Legal Consortium (ILC) cannot guarantee that an appellate court has not reversed a lower court decision which may influence the applicability or influence of a given quote. All quotes have been selected based on the subjective evaluations undertaken by the ILC meaning that quotes provided here may not accurately or comprehensively represent a given court’s opinion or conclusion, as such quotes may have originally appeared alongside other negative opinions or accompanying facts. Further, some quotes are derived from unofficial English translations, which may alter their original meaning. We emphasize the need to review the original decision and related decisions before authoritatively relying on quotes. Using quotes provided here should not be construed as legal advice and is not intended to be a substitute for legal counsel on any subject matter in any jurisdiction. Please see the full limitations at https://www.tobaccocontrollaws.org/about.
The respondent in this appeal, Ms Green, contracted lung cancer as a result of exposure to environmental tobacco smoke in the workplace and her own tobacco use. She was exposed to passive smoking in the workplace for a period of about 26 years until she was diagnosed with lung cancer in 2002, and smoked somewhere between 10-50 cigarettes a day for a period of 17 years up to 1992. She was successful in her claim for workers compensation before an Arbitrator, who found that (among other things) exposure to smoke in the workplace was a substantially contributing factor to the contraction of her disease. This was an appeal from that decision.
The respondent insurer alleged that (1) there was insufficient evidence before the Arbitrator to conclude that exposure to passive smoking in the workplace substantially contributed to Ms Green's disease; and (2) the Arbitrator gave insufficient reasons for his decision.
In this decision, Deputy President Roche found that there was sufficient evidence for the Arbitrator to conclude that Ms Green's employment was a substantial contributing factor to her injury. However, Deputy President Roche agreed with the appellant that the Arbitrator gave insufficient reasons for his decision, and therefore remitted the matter to a different Arbitrator for re-determination.