Alcan Gove Pty Ltd v Zabic: Asbestos and Worker's Compensation Decision Reserved

The High Court has handed down judgment in the case of Alcan Gove Pty Ltd v Zabic, determining that the appeal should be dismissed with costs.

Background to the Case

Mr Zabic (respondent) was employed by Alcan Gove Pty Ltd (appellant) as a manual labourer at the appellant’s refinery from about 1974 until the end of 1977. During the course of his employment, the respondent was exposed to and inhaled materials containing asbestos dust and fibre which was used to insulate pipes that ran throughout the premises.

The respondent brought a claim originally for damages alleging that as a result of the appellant’s negligence, he was exposed to asbestos, and such exposure led to the development of the respondent’s mesothelioma. If successful with the claim, the parties reached an agreement on $425,000 in damages plus costs.

The Northern Territory Supreme Court Case hinged on the fact that the matter had been brought out of time and Barr J felt compelled to follow the ratio decidendi (the rationale in the decision) of the New South Wales Court of Appeal in Orica Ltd v CGU Insurance Ltd and found that prior to the relevant commencement date of 1 January 1987, the plaintiff had not suffered any of the injuries or disabilities claimed in the Statement of Claim. Accordingly, the plaintiff’s claim was dismissed.

Appeal to the Court of Appeal in the Northern Territory

The central issue in the Court of Appeal Decision is whether Zabic’s cause of action arose at the malignant transformation stage (around 2009) or prior to 1987 when he was exposed to asbestos dust.The Court of Appeal, allowing the appeal against the trial judge, opted for the latter interpretation: while the damage was not symptomatic of mesothelioma until recently and was likely impossible to discover by medical examination then, the later development of malignant mesothilioma shows that the damage prior to 1987 was material and thus compensable, overturning the decision in the Supreme Court.

High Court Appeal

Full Court Orders were pronounced in this case in Perth on 12 August 2015 where the appeal was dismissed with costs. The decision has been reserved and can be accessed through the High Court Transcript at [2015] HCATrans 169 or from the High Court website.

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 High Court Bulletin [2015] HCAB 6 (25 August 2015)