The High Court has unanimously dismissed an appeal against the decision of the Court of Appeal of the Northern Territory on the tort of negligence in the context of asbestos exposure and statute barring. Zabic was exposed to asbestos dust during three years of working for Alcan, and was recently diagnosed with terminal mesothelioma. Zabic claimed common law damages against Alcan, who contended at trial that Zabic’s entitlement to make a claim for common law damages was abolished by s 52 of the Return to Work Act 1986 (NT). Because s 189 of that Act exempts causes of action in respect of an injury suffered before the commencement of the Act from the operation of s 52, the central issue is whether Zadic’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 (at [56]–[62]).

A unanimous Court (French CJ, Kiefel, Bell, Keane and Nettle JJ) agreed with the Court of Appeal’s conclusions and dismissed the appeal. The Court agreed that the correct approach to characterising the issue as being whether the initial cell changes from mesothelioma that could have, in hindsight, be seen to have ‘inevitably and inexorably’ led to mesothelioma amounted to compensable damage (at [20]). This development required proof of a ‘trigger’ that would turn the initial cell changes into mesothelioma already existed or was bound to occur (at [22]–[23]). While the ability of the Court to pose the existence and nature of the trigger depended on whether it was exogenous (outside the cells and hence only a possibility) or endogenous (inside the cells and hence bound to lead to mesothelioma), the Court of Appeal appeared to proceed on the basis that it was endogenous and this was not challenged at trial or on appeal (at [24]–[33]). The High Court noted (at [27]) that the Court of Appeal

inferred from the fact that the respondent is now suffering from mesothelioma that he must have experienced initial mesothelial cell changes shortly after the inhalation of asbestos and that, because he had an inherent predisposition or susceptibility to mesothelioma, those initial mesothelial cell changes were from the moment of their occurrence bound to lead inevitably and inexorably to mesothelioma.

Rejecting the appellant’s arguments directed at the time at which sufficient evidence became, or the time at which the respondent could have brought a proceeding for damages based on that cause of action, and noting instead that the current question was whether, in hindsight, the court could infer that a cause of action had accrued before it could have been detected (at [40]), the Court held that there was no reason why that could not be inferred (at [41]–[42]):

there is nothing illogical or otherwise exceptionable about drawing an inference after symptoms of a disease first appear that, because of what is known of the aetiology and pathology of the disease, the disease is likely to have begun at an earlier point of time when there were no symptoms or other means of detecting its presence.

On the evidence which was available in this case, there is also no reason in fact why it could not be inferred that there were initial molecular changes in the mesothelial cells which preceded the appearance of symptoms of mesothelioma, and that those initial cell changes led inevitably and inexorably to mesothelioma.

The respondent’s cause of action accrued at the point of the initial cell changes, which occurred shortly after the inhalation of asbestos and hence, as the Court of Appeal held, damages are recoverable (at [47]–[48]).