Hindsight applied, but risk must eventuate - 27 October 2015

The High Court has handed down its decision in Alcan Gove Pty Ltd v Zabic [2015] HCA 33, which has upheld the decision of the Northern Territory Court of Appeal and rejected the appeal of the employer. Senior Associate Aaron Clark and Solicitor Melissa McGarrity discuss this decision which addresses the issue of when the cause of action accrues in an asbestos claim, and the potential ramifications of this decision on industry.


The Respondent, Mr Zabic, inhaled asbestos fibres during the course of his employment with the Appellant, Alcan Gove Pty Ltd between 1974 and 1977. The Respondent began to develop symptoms, and was diagnosed with malignant mesothelioma in or about 2013 or 2014.

The Northern Territory Workers’ Compensation legislation abolished common law actions in negligence where the cause of action accrued after 1 January 1987.

At first instance

At first instance, the Supreme Court of NT held that the action did not accrue until the onset of the malignant mesothelioma, and on that basis, the cause of action did not accrue until well after 1 January 1987. The Respondent’s claim was dismissed.

The Appeals

The Court of Appeal overturned the original decision on the basis that, with the benefit of hindsight, the damage to the cells occurred at the point of the ingestion of the asbestos fibres. The High Court agreed and stated the injury to the cells occurred shortly after the inhalation of the fibres and they were “bound to and did lead inevitably and inexorably to the malignant mesothelioma.” [45]

On the basis of the medical evidence regarding the aetiology of mesothelioma, the Court held the initial molecular changes occur to the cells soon after the ingestion of the fibres and these changes are likely to have lain dormant until 1 to 5 years before the manifestation of symptoms. At that point an unknown trigger set off the development of the abnormal genetic switches that resulted in malignancy. [6]

On the commonly held principle that you take the victim as you find them, if as a result of an employer’s negligence and the presence of the unknown trigger in the employee’s body the employee develops mesothelioma, the employer will be held liable for the damage.

The damage was no less real, significant and compensable than if there had been medical investigative technologies available at the time that could have identified the damage. It was held, however, the mere risk of contracting mesothelioma is not compensable damage, because the risk may not eventuate. The Court noted that it would be impossible to say that the inhalation of asbestos fibres is bound to lead to mesothelioma until and unless it does in fact lead to mesothelioma.

In closing, the High Court confirmed that the decision did not detract from time running under, or limitation periods contained in, any of the limitation acts of the States.

Take away points

  • This case will now be the most recent authority for the proposition that “damage” occurs at the time of the inhalation of fibres of asbestos.
  • This case seems to affirm the Queensland position taken in Martindale v Burrows [1977] Qd R 243.
  • It does not alter the fact the mere inhalation of asbestos and the risk of development of a diagnosable dust disease, does not give rise to a cause of action.
  • It does not alter any limitation of actions legislation regarding time limits for making a claim. The position in Queensland remains there is no limitation period for dust diseases and common law rights in relation to dust diseases are not affected.  

For more information or discussion, please contact HopgoodGanim Lawyers' Insurance and Risk team.  

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