Dear Colleagues;
The High Court of Australia today published its unanimous reasons in Alcan Gove Pty Ltd v Zabic [2015] HCA 33 (7 October 2015) http://www.austlii.edu.au/au/cases/cth/HCA/2015/33.html after
earlier announcing that it had dismissed the appeal. The issue in the case was this: where a plaintiff has been exposed to asbestos fibres, and later develops mesothelioma, at what point can it be said that he suffered “damage” sufficient to allow a cause
of action in negligence? The question was important because from 1 Jan 1987 the NT Parliament had abolished common law damages claims for workplace injury. But there was an exception to the abolition where a “cause of action” arose before that date. The plaintiff
had been exposed to asbestos between 1974 and 1977. But his symptoms did not become apparent until 2013.
The HC holds that the NT CA was justified in holding that the inhalation of what must have been the relevant dose of asbestos could be seen, in hindsight (and all causation issues, unlike breach issues, are decided in hindsight) to have led “inexorably” to
the emergence of the disease. They distinguish (and do not doubt) previous decisions holding that pleural plaques alone do not amount to relevant damage, on the basis that those things do not inevitably lead to the full blown disease. They also, with a little
bit more finesse, have to distinguish the decision of the NSW CA in Orica Ltd v CGU Insurance Ltd (2003) 59 NSWLR 14, which they mostly do by saying that the facts were different- see [19].
In the end they conclude that relevant damage can be shown if two things are established:
- The presence of the asbestos led to immediate (even if undetectable at the time) cellular changes.
- There was a “trigger” which meant that those changes then later led to the full blown disease, and the trigger was “endogenous” (that is, inherent in the cell from the first moment of the changes), rather than “exogenous” (dependent on some other external event such as exposure to tobacco or radiation.) See [26]:
"where evidence establishes that the trigger is endogenous, which is to say a state of affairs inside the cells which creates an inherent predisposition or susceptibility to mesothelioma, it may logically be inferred that once the initial mesothelial cell changes occurred they were thenceforth bound to lead to mesothelioma.”
The Court concluded that medical evidence sufficiently established the “endogenous” nature of the relevant trigger. This “inevitable” and inexorable progress of the disease was a matter addressed by evidence here and was one of the things
which differed from the Orica decision- see [34]. They concluded at [48]:
"Given that with the benefit of hindsight it can be seen that initial mesothelial cell changes occurred shortly after the respondent's inhalation of asbestos fibres, and that they were bound to and did lead inevitably and inexorably to the malignant mesothelioma from which he now suffers, the respondent's cause of action in negligence accrued when those initial mesothelial cell changes occurred and, as the Court of Appeal held, damages for the mesothelial tumour from which he now suffers are recoverable in that cause of action."
It is worth noting that the court said that (once again) it did not need to address the question whether
Fairchild and its progeny should be followed in Australia. They do note at [15] that in
Durham v BAI (Run Off) Ltd the UKSC by majority had rejected the view that “increased risk” alone could form the gist of the action in an asbestos case. But they simply say that
Fairchild “has not to date been recognised” in Australia. This is true, and it ought at least to preclude lower appellate courts from applying
Fairchild until we get to a case where it becomes necessary for the High Court to finally decide.
Regards
Neil
neil foster
T: +61 2 49217430
E: neil.foster@newcastle.edu.au
MC177 (McMullin Building)
The University of Newcastle (UON)
University Drive
Callaghan NSW 2308
Australia
CRICOS Provider 00109J
Associate Professor
Newcastle Law School
Faculty of Business and Law
Faculty of Business and Law
T: +61 2 49217430
E: neil.foster@newcastle.edu.au
Further details: http://www.newcastle.edu.au/profile/neil-foster
My publications: http://works.bepress.com/neil_foster/ , http://ssrn.com/author=504828
The University of Newcastle (UON)
University Drive
Callaghan NSW 2308
Australia
CRICOS Provider 00109J
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