Mesothelioma victim gets fair compensation - Zabic v Alcan Gove Pty Ltd [2015] NTSC 2

Published 17 Dec 2015

Facts: 

Mr Zabic was a 74 year old man who was dying from malignant mesothelioma, an aggressive cancer affecting the membrane lining of his lungs. Mr Zabic had approximately 6 months to live. 

Mr Zabic was employed by Alcan Gove ty Ltd as a manual labourer from 1974 to 1977. Mr Zabic’s duties at work included maintenance and repairs of pipelines. During his employment, Mr Zabic was exposed to and inhaled materials containing asbestos dust and fibre. 

In 2014, Mr Zabic was diagnosed with malignant mesothelioma. 

Mr Zabic brought a claim under common law against Alcan Gove Pty Ltd, arguing that the company knew of the dangers of asbestos and failed to take any precautions for his safety.

Original Decision

The trial judge, Justice Barr found that on the balance of probabilities Alcan Gove’s work operations involved a risk of injury that was foreseeable. 

His Honour was satisfied on the balance of probabilities that Mr Zabic’s mesothelioma was caused by unprotected exposure to asbestos dust and fibres during the time he worked for Alcan Gove at its Nhulunbuy alumina refinery, from about 1974 to late 1977. 

Justice Bar was also satisfied on the balance of probabilities that Mr Zabic’s mesothelioma was caused by the negligence of the defendant. 

Issue:

The main issue of contention was whether Mr Zabic had suffered actionable damage before the Workers Rehabilitation and Compensation Act 1986 (NT) commenced?

Held: 

His Honour found that  Mr Zabic had not suffered damage compensable at common law until he suffered the onset of mesothelioma.
As Mr Zabic was diagnosed with mesothelioma in January 2014 there was a latency period of between 37 and 40 years for the development of the cancer. 

His Honour found that based on previous decisions, a case of action only commences when damages eventuate. 

Since Mr Zabic had not suffered damage prior to 1 January 1987, his cause of action in negligence for contracting malignant mesothelioma had not arisen before the date. Accordingly Mr Zabic’s claim for damages against the Alcan Gove was statute-barred by Workers Rehabilitation and Compensation Act (NT). 

Appeal

Mr Zabic appealed the decision to the Supreme Court of the Northern Territory. Mr Zabic appealed on the basis that his cause of action accrued before 1987. 

The Court found that determining whether a cause of action has arisen involves an assessment of objective fact. Hindsight is permitted in ascertaining when a cause of action accrues. A court should not be limited to ascertaining whether relevant facts were provable or discoverable at a particular time.

Hindsight could be used to establish that there was compensable damage in the form of changes to  Mr Zabic’s  mesothelial cells prior to 1987. The cause of action arose when non-negligible damage was first suffered - the subsequent mesothelioma was part of the damage arising in the accrued cause of action.

According to the medical evidence changes Mr Zabic’s  mesothelial cells began to occur very soon after he was exposed to asbestos, and prior to 1987. The subsequent development of malignant mesothelioma established that the damage to Mr Zabic’s  mesothelial cells prior to 1987 was material damage and thus compensable. That damage inevitably and inexorably led to the onset of malignant mesothelioma.

Damages:

Mr Zabic was awarded $420,000.00 in damages. 

If you suffer from mesothelioma or any dust related disease, please do not hesitate to contact the experienced dust disease lawyers and barristers at Gerard Malouf and Partners.