I refer to the earlier posting regarding the first instance and Court of Appeal (NT) decisions. The High Court dismissed the defendant’s appeal and upheld the Court of Appeal decision in favour of the plaintiff.
The debate has raged as to whether the cause of action (damages being the ‘gist of the action’ in negligence) in mesothelioma claims commenced with exposure and the capacity to cause harmful genetic changes to mesothelial cells or with more evident non-negligible pathological change, usually the diagnosis of mesothelioma.
The difficulty being that the harmful changes to the molecular structure of the mesothelial cells are asymptomatic and undetectable for decades, until they culminate in the tumour and noticeable pathological change, which is often sudden and dramatic, with a resultant dramatically shortened life expectancy.
Since 1 February 1997 and the WorkCover Queensland Act 1996 and the subsequent Workers’ Compensation and Rehabilitation Act 2003 there have been a form of pre-court procedures; restricted damages and costs. However, for work related injury claims whose cause of action accrued prior to 1 February 1997 and between the Workers’ Compensation Act 1916 and 1990 there is no such requirement or restriction on damages or costs.
The N.T Court of Appeal’s reasoning was as follows:
 Determining whether a cause of action has arisen involves an assessment of objective fact, rather than an assessment of the subjective capacity of a plaintiff to muster proof.
 It follows that hindsight is permitted in determining when a cause of action accrues. The aim is to ascertain when relevant facts, namely the presence of compensable damage, objectively came into existence. A Court should not be limited to ascertaining whether relevant facts were provable or discoverable at a particular time. For example, the outcome in Carteldge would not have been possible without the Court using contemporary medical evidence to infer when undetectable damage first occurred in the past. Hindsight is frequently employed when one is endeavouring to ascertain the cause or causes of an injury or damage which does not become manifest until some later time.
 In the present case we consider that hindsight can be used to establish that there was compensable damage, namely changes to the mesothelial cells, prior to 1987. The toxic carcinogen amphibole asbestos had lodged in the appellant’s lungs and caused genetic change leading to aberrant and abnormal cell growth which culminated many years later into malignant mesothelioma. The cause of action arose when the non-negligible damage was first suffered. The subsequent mesothelioma is part of the damage arising in the accrued cause of action.
 That damage was no less real, significant and compensable than it would have been had there been medical investigative technologies available at the time that could have identified the damage.
In respect of mesothelioma and its peculiar qualities, the High Court in a unanimous decision has held that the damage was endogenous:
 The position in the United Kingdom appears to be similar. In Barker v Corus UK Ltd, Lord Hoffmann proposed the view that, given the exception to the ordinary rules of causation in relation to cases of mesothelioma which was recognised in Fairchild v Glenhaven Funeral Services Ltd, it would be appropriate henceforth to treat the risk of contracting mesothelioma as forming the gist of the action. But his Lordship’s view has since been repudiated by a majority of the Supreme Court of the United Kingdom in Durham v BAI (Run off) Ltd. In this country, where the Fairchild exception has not to date been recognised, there is still more reason to reject it.
 It remains to mention Martindale v Burrows, in which Derrington J held that initial mesothelial cell changes which led to mesothelioma amounted to compensable damage. His Honour reasoned that, because it was possible to look back in hindsight on the basis of the evidence and infer that the initial mesothelial cell changes occurred shortly after the inhalation of asbestos fibres, and that they were the initial step in a natural progression which led inexorably to the mesothelioma which the plaintiff had developed by the time of trial, the initial cell changes were compensable damage.
 In summary, therefore, the effect of the previous decisions mentioned to this point appears to be that:
(1) The mere risk of contracting mesothelioma which arises upon the inhalation of asbestos fibres is not compensable damage, because the risk may not eventuate.
(2) Pleural plaques or pleural thickening, which may occur shortly after inhalation of asbestos fibres, although a form of physical injury, are not compensable damage because they are asymptomatic and there is not, or at least there was not at the time of the relevant decisions, evidence that the pleural plaques or thickening had any potentiality for harm, whether considered on its own or in conjunction with some other process.
(3) The risk of contracting mesothelioma to which a claimant is exposed upon the inhalation of asbestos fibres does not become compensable damage by reason only that, with the benefit of hindsight, it is possible to say that the risk has eventuated and therefore that the inhalation of asbestos fibres caused the claimant’s mesothelioma.
(4) Nevertheless, the kind of mesothelial cell changes which sometimes occur shortly after the inhalation of asbestos fibres may be regarded as compensable damage if, in the case of a claimant who is suffering from mesothelioma, and so with the benefit of hindsight, it can be seen that those mesothelial cell changes were the beginning of a continuum that led inexorably to the onset of mesothelioma.
Time of accrual of cause of action
 It is trite law that a tortfeasor must take the victim of the tort as the victim is found to be. Hence, if as a result of an employer’s negligence an employee is caused to inhale asbestos fibres and, due to the employee’s predisposition to mesothelioma, the inhalation of fibres results in mesothelioma, the employer will be held liable for the damage thereby inflicted.
 The question then is whether, as a matter of law, there is any reason why the initial changes in the mesothelial cells which it could be inferred were bound from the time of their onset to lead inevitably and inexorably to the mesothelioma from which the respondent now suffers should not be seen as compensable damage sufficient for the respondent’s cause of action in negligence to have accrued at that point.
 It assists to answer that question to consider what the position would have been if, at the time the initial mesothelial cell changes occurred, there had been evidence available to establish that they had occurred and that, because of the respondent’s predisposition to mesothelioma, they were bound inevitably and inexorably to lead to mesothelioma.
 In those circumstances, the respondent would have had a cause of action in negligence for damages for personal injury caused by the inhalation of asbestos fibres, which was bound to lead to mesothelioma. The malignant tumour would not have begun at that point and therefore there would remain a chance that the respondent would die from other causes before the tumour began. But, even so, the fact that the respondent would otherwise be bound to die from mesothelioma would be sufficient to found a cause of action in negligence for damages for loss of expectation of life; and clearly, if the malignant tumour began before the matter came to trial, the respondent would be entitled to add to his claim for damages the fact that the tumour had begun.
 Parity of reasoning dictates the same result here. 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.
 As a final observation, it does not detract from that conclusion that time may run under statutes of limitation against persons who have been exposed to asbestos fibres but who have not yet contracted mesothelioma or another disease as a result. Their position will be protected by statutes of limitation which, in all States and Territories, either set the limitation periods for personal injury by reference to the time at which a cause of action becomes discoverable or provide for postponement of limitation periods until after the time when the material facts can reasonably be ascertained by the plaintiff.
David Cormack – Brisbane Barrister & Mediator