PARTIES: ZABIC, Zorko v ALCAN GOVE PTY LTD
(ACN 000 453 663)
COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO: 80 of 2014 (21439533)
JUSTICE: BARR J
CATCHWORDS: TORTS – Negligence – claim for damages – duty of care – asbestos – when damage sustained – ingestion of asbestos fibres over 3-4 years’ employment – symptomless physiological changes – recent onset of mesothelioma after long latency period – cause of action did not arise until actual damage sustained – damage not sustained until onset of mesothelioma – plaintiff’s claim statute-barred – claim dismissed – Workers Rehabilitation and Compensation Act 1986 (NT), s 52, s 189.
The Plaintiff’s claim would have been successful, but for the finding by Barr J he had no entitlement for a common law claim given his cause of action for mesothelioma did not arise prior to 1 January 1987 (see section 189 of the WRCA (NT)). In respect of the issue of when the cause of action accrued, Barr J found it was not at the time of exposure to asbestos, but rather when damage was sustained:
 The defendant’s contentions make it necessary to determine when, in relation to 1 January 1987, the plaintiff’s cause of action arose. The crucial issue is when the plaintiff first suffered damage, since damage is an essential element of the cause of action in tort for negligence, and the cause of action is not complete until damage is sustained. The relevant cause of action “is only complete when appreciable or other than purely minimal damage occurs.” Since damage is the gist of the cause of action, it is necessary, for the cause of action to accrue, that a plaintiff suffer “actual damage as distinct from the risk or prospect of damage or contingent damage” as a result of a defendant’s breach of duty.
 The evidence of the plaintiff is that he began to experience chest pains in January 2014. That accords with the history noted by Professor Roger Allen, that the plaintiff developed right-sided chest pain in January 2014. It is possible that the plaintiff first became unwell in November 2013, when he developed pain on the right side of his chest and became breathless, as noted by Dr Robert Edwards. However, the difference between the reported dates of onset of symptoms is not presently relevant. The parties agree that malignant mesothelioma probably commences within one to two years before, and almost certainly within five years before the onset of symptoms.
 Professor Roger Allen, thoracic physician, provided expert evidence in the plaintiff’s case. He explained that, based on epidemiological studies, there is a well-accepted minimum latency period of approximately 10 years from the time of exposure to asbestos to the subsequent development of malignant mesothelioma. Professor Allen also wrote that, although the shortest latency is around 10 years, many patients develop mesothelioma many decades later, evidenced by the higher incidence of this condition in elderly patients. I set out below Professor Allen’s evidence in relation to the process whereby exposure to asbestos ultimately leads to the development of malignant mesothelioma:
As with many cancers, the carcinogen (here asbestos) has an adverse impact on the cellular makeup of the tissues exposed to the carcinogen, and this sets off cellular and nuclear changes in the genes of the tissue, which lie dormant for some years until a trigger (often unknown), which leads to the subsequent development of malignant tumour, i.e. a domino effect. …
It is an accepted fact that there are oncogenes in cells, with the genetic material influenced by processes such as methylation and acetylation, leading to the development of abnormal “switches” in the tissue which regulates cell replication and if aberrant and abnormal will predispose them to unrestrained cell growth with no internal checks and balances, i.e. a malignant tumour. It is thought that asbestos fibres which are hydrated silicates of aluminium and magnesium generate oxygen free radicals which… are known to have an adverse impact on the genetic makeup of susceptible cells, namely mesothelial cells, and hence lead to the subsequent development of malignant mesothelioma. …..
On the assumption that his exposure to asbestos commenced in 1974 and continued to 1977, during that period the asbestos fibres in his lungs set in train genetic abnormalities [in the mesothelial cells] which lay dormant well prior to 1987, and which led to the subsequent development of mesothelioma. …..
Our knowledge of the cytogenetics of carcinogenesis, including of oncogenes, is not sophisticated or precise enough to point to a particular event which occurs in one particular cell, on one particular day, to give rise to a malignancy.
 Dr Robert Edwards, thoracic specialist, provided expert evidence in the defendant’s case, including as to the process whereby exposure to asbestos ultimately leads to the development of malignant mesothelioma. I set out below part of Dr Edwards’ evidence:
Mr Zabic had a history of exposure to asbestos whilst working at Alcan between 1974 and 1977. He has now developed a malignant mesothelioma.
It is not possible to state the exact time that the mesothelioma would have developed. …. it is known that the changes in the mesothelial cells commence very soon after the exposure to asbestos. However, it takes at least 10 years and probably 20 years before the cells are likely to become malignant. There is no upper [outer] limit as to time when mesothelioma may develop.
Mr Zabic has a latency period of between 37 and 40 years for the development of the malignant mesothelioma. This is entirely in keeping with the known mechanism for malignant mesothelioma to develop.
The asbestos fibres are inhaled and worked their way to the periphery of the lung and eventually work their way through the visceral pleura and eventually onto the parietal pleura. They then start to cause changes within the mitochondria and other elements of the mesothelioma [mesothelial] cells. This mechanism takes many years to develop into a malignant cell.
There is no upper limit beyond which mesothelioma may not develop after exposure to asbestos fibres. It is generally accepted that at least a latency period of 10 years is required before mesothelioma is likely to develop. The majority of mesotheliomas that have been diagnosed have between a 20- and 30-year latency period. Therefore the initial commencement of mesothelioma is probably somewhere between 74 and 77 when the first changes of the asbestos fibres interacting with the mesothelial cells would have occurred.
 Although Dr Edwards refers in the final paragraph of the above extract to “the initial commencement of mesothelioma” having probably occurred between 1974 and 1977, I understand him to be describing the stage when changes in the mesothelial cells commenced, and not the malignant transformation stage, because, on his evidence, there is a substantial latency period, 10 to 20 years, before the mesothelial cells become malignant.
 My reading of the medical evidence of Dr Edwards and Professor Allen has led me to conclude that their opinions are largely consistent with one another. Dr Edwards’ opinion that the changes in the plaintiff’s mesothelial cells would have commenced very soon after his exposure to asbestos is consistent with the opinion of Professor Allen that the plaintiff’s exposure to asbestos caused genetic abnormalities well prior to 1987, albeit abnormalities which lay dormant.
 The defendant contends that the plaintiff did not suffer damage until he first experienced symptoms of malignant mesothelioma, alternatively not until one or two, or possibly five years before he first experienced such symptoms. Accordingly, it was not until then that the plaintiff’s cause of action in tort arose. The defendant thus argued that the plaintiff’s cause of action did not arise until November 2013, and certainly not before November 2009.
 The plaintiff concedes that it would not have been possible, immediately prior to 1 January 1987, to state that the changes in the plaintiff’s mesothelial cells (or any genetic abnormalities) would probably lead to the development of malignant mesothelioma. Nonetheless, the plaintiff contends that it is clear from what has happened subsequently that the changes or abnormalities did in fact lead to the development of malignant mesothelioma. The ultimate outcome proves that, prior to January 1987, the plaintiff had suffered damage, albeit not then apparent but still sufficient to enable his cause of action to arise.
 The plaintiff relies on the decision of Derrington J in Martindale v Burrows:
While vulnerability to injury or the potential for harm does not itself amount to an injury (Wardley Australia Ltd v Western Australia  HCA 55; (1992) 175 CLR 514, 527) that is different from the position where a morbid condition is initiated, leading naturally to more serious developments at a later stage. It is not a matter of potentiality in such a case simply because in other cases such a consequence might not follow. In Wardley, no harm whatever was done at the earliest stage and it was only when another event in the form of a trigger occurred that any harm followed. …
It does not follow that if it is established that the condition has developed into mesothelioma, there will have been no relevant injury until the commencement of that development. The appearance of that condition establishes that the earlier morbid changes were indeed so serious as to be productive of mesothelioma at the later stage and were not merely potentially so. This means that the early changes did cause harm substantial enough to amount to injury at law.
Although it is true that the initial “pathological change at the molecular level” without further pathological changes during the long latent period before the development of the mesothelioma was the only effect of such exposure at that stage, however that molecular change can be regarded as significant damage in the eyes of the law when it is established of the evidence that it led to the consequential development of mesothelioma. The substantial nature of such a change is not reduced by the postponement of grave harm flowing from it nor by its imperceptibility at the time, when in fact that state is demonstrable in the light of subsequent events.
 In Martindale v Burrows the plaintiff alleged that he had contracted mesothelioma as a result of his inhalation of asbestos during successive periods of employment commencing in 1956 and ending in the 1980s. Symptoms became apparent only in 1995 when the plaintiff suffered symptoms of cough and shortness of breath. The malignant transformation occurred some 12 – 18 months prior to November 1995, that is, in the period May to November 1994. The plaintiff applied before trial for a declaration that his injury was suffered during that period, and hence that his cause of action arose at some time during that period, in order to avoid having to apply for an extension of the limitation period. Derrington J dismissed the application because he found that the injury constituting the plaintiff’s cause of action occurred when the asbestos particles he ingested began to cause changes in his lungs, which occurred before the long latency period and well before the ultimate development of mesothelioma. The plaintiff’s application for a declaration was dismissed and the plaintiff was left to pursue his application for an extension of the limitation period.
 In Orica Ltd & Anor v CGU Insurance Limited the New South Wales Court of Appeal considered a case of a worker who had suffered injury through exposure to asbestos dust in unprotected conditions between 1959 and 1961 but had not experienced the first symptoms of mesothelioma until 2001. The worker obtained a damages settlement against his former employer which then sought indemnity from its insurer under workers compensation insurance policies in force in the period 1959 to 1961. Those policies provided the employer with indemnity in respect of liability independently of workers compensation legislation (including liability at common law).
 The Court held that the policies did not respond during their currency in respect of the employer’s liability, independently of the Act, in damages for negligence. The reasoning of Spigelman CJ was as follows:
If the words of the policy – “liable to pay” – mean the same with respect to the two circumstances to which they apply – that is, “compensation under the Act” and “in respect of his liability independently of the Act” – then the policy responds in the latter case only if the employer’s liability has, within the relevant period, “vested” or “accrued”. In my opinion that does not occur earlier than the time of onset of mesothelioma. Damage is the gist of the action in negligence. The “injury” occasioned at the time of penetration of the lungs by fibre, if it be injury within the meaning of the policy at all, which I doubt, is so negligible in and of itself, as distinct from its potential, that it does not constitute damage that is compensable at common law.
 Santow JA applied an earlier New South Wales Court of Appeal decision of WorkCover Authority (NSW) v Chubb Australia Ltd, and held that the tort was not complete until the occupational disease of mesothelioma was diagnosed. His Honour’s analysis was as follows:
149 In the present case, had the employee in 1961 sought to bring proceedings for his increased risk of contracting mesothelioma, it is clear he could not have succeeded then. But that is only for want of proof, available only in hindsight, that his ingestion of asbestos fibres had caused him damage. This is so even if we assume that the hypothetical court hearing that action in 1961 was armed with the evidence courts now accept regarding the causation and aetiology of mesothelioma. The most that could be said was that this exposure increased the risk of the employee contracting mesothelioma, as compared to the non-exposed population. That is to say, the employee “lost the chance” of not being at material risk of contracting mesothelioma, by his three year exposure at the hands of his careless employer. On the present state of the law that is not enough. As Professor Stapleton in her recent article “Cause-in-Fact and the Scope of Liability for Consequences” (2003) 119 LQR 388 at 424 explains:
“English judges seem uniformly hostile to allowing the pure-loss-of-a-physical-chance to form actionable damage when there are, as yet absolutely no physical changes. [Gregg v Scott  EWCA Civ 1471 (awaiting judgment on appeal to the House of Lords)]. It is thought that mere exposure to risk, say to asbestos, without any physical changes would allow in too many speculative claims …”
The weight of authority in Australia is to similar effect, though there may come a time and case as in the United States where it may be possible to demonstrate actual damage, in the form of some psychological condition induced by anxiety, or even increased life insurance premiums or other discernible disadvantage by reason of a greater risk of contracting a disease like mesothelioma from past exposure.
150 So far it has been held in Australia that where there has been an inhalation of asbestos that has led to pleural thickening of the lung at the time of trial, but which has caused no physical discomfort or disability, with only the potential for more serious developments, those physiological changes wrought to that stage could not be said to have amounted to an actionable injury because of the lack of any established harm. The potential for more harmful developments could not alter that situation: Battaglia v James Hardy and Co Pty Ltd (unreported, Vincent J, Supreme Court of Victoria, 12 March 1987); Papadopoulos v James Hardy and Co Pty Ltd (unreported, Kaye J, Supreme Court of Victoria, 12 February 1988).
“…it is important to note that there is a significant difference between a closed claim for industrial deafness and a claim in respect of mesothelioma. The former is a succession of completed tortious insults, whereas the latter, because of its aetiology is not complete until the disease of mesothelioma strikes, usually many years after the asbestos exposure. Also one will normally not know which asbestos fibre caused the mesothelioma. It could be an asbestos fibre inhaled during any time over a lengthy period of exposure.” (at 620 )
Stein JA concluded (at 621 ) that “the tort was not complete” until the occupational disease of mesothelioma was diagnosed. That must be taken to be the law.
 Mason P agreed with the analysis of Santow JA, deciding that the employer’s liability, such as it was, remained inchoate, in the eyes of tort law, because damage is the gist of the relevant cause of causes of action. The extracted paragraphs from his Honour’s decision set out below illustrate his reasoning:
71 The law has concepts known as causes of action. These define the criteria capable of giving rise to a liability recognised and enforced at law. A cause of action tells a plaintiff what must be proved as a bare minimum, when proceedings may first be brought, and when the time commences to run for limitation purposes. In relation to a right of indemnity against liability, it prescribes the matters capable of triggering a claim. The concept also forms the basis of res judicata. See generally Letang v Cooper  EWCA Civ 5;  1 QB 232 at 242-3, Port of Melbourne Authority v Anshun Pty Ltd  HCA 45; (1981) 147 CLR 589 at 597, 611; Wardley Australia Ltd v Western Australia  HCA 55; (1992) 175 CLR 514 at 527, 558; Effem Foods Pty Ltd v Trawl Industries of Australia Pty Ltd (Receivers and Managers appointed – in Liquidation)  FCA 342; (1993) 43 FCR 510 at 521; Clarke v Bailey (1993) 30 NSWLR 556 at 564; Judamia v State of Western Australia, Supreme Court of Western Australia, unreported, 1 March 1996.
72 With the benefit of hindsight we know as a fact (because it is shown as more probable than not) that the worker, Mr Dunstan, suffered the disease-inducing injury between 1959 and 1961 when he was employed at the ICI plant. I agree with Santow JA’s analysis as to the process whereby it was established that the risk of injury to which he was negligently exposed came home during this period, with the consequence that the negligent employer fell under a potential liability to compensate the worker, his estate and dependants according to tort law. But that liability remained inchoate, in the eyes of tort law, because damage is the gist of the relevant cause or causes of action.
73 The worker did not sue or recover damages on the debatable bases that the chance or fear of contracting mesothelioma was the damage suffered (cf GRE Insurance Ltd v Bristile Ltd (1991) 5 WAR 440 at 442, per Pidgeon J and contrast Metro-North Commuter Railroad Co v Buckley  USSC 65; 521 US 424 (1997); Scarcella v Lettice  NSWCA 289; (2000) 51 NSWLR 302 at 306, Segal v Fleming  NSWCA 262).
 As a single judge of this Court, and in the absence of binding High Court authority, I have a duty to follow the ratio decidendi of the New South Wales Court of Appeal in Orica unless I were to conclude that it is plainly wrong.
 Although I may not necessarily be bound by the manner in which the New South Wales Court of Appeal applied the law in a case where the issue decided was in part an issue of fact, namely whether the ‘plaintiff’ had, at or by a particular time, suffered damage as a result of the negligence of another, I consider that the analysis of each of the members of the Court in Orica is persuasive. The issue decided was as to when damage was sustained sufficient to ground an action in tort for an employer’s negligence in respect of an employee who had suffered the onset of mesothelioma after a long latency period. That is the same issue as in the present case. The medical evidence and other facts were essentially the same as in the present case. All three members of the Court concluded that the employee had not suffered damage compensable at common law until such time as he suffered the onset of mesothelioma. Until that time, “the tort was not complete”.
RILEY CJ, SOUTHWOOD AND HILEY JJ
Proof of damage
 It is well established that a cause of action may arise before damage is known or ascertainable. Further damage may occur notwithstanding that the cause of action is already complete.
 The respondent relied upon the passage in Cartledge at 781 as authority for the proposition that a cause of action only arises when a plaintiff could successfully claim damages. However, Lord Pearce immediately went on to note that the point of damage had been reached in that case prior to October 1950, when the plaintiffs’ lungs were first damaged by pneumoconiosis which they each contracted after inhaling noxious dust over a period of years. This was so even though the disease and damage were unknown to the plaintiffs at that time, the damage could not have been detected by X-ray prior to October 1950, and the damage could not have been proven at that time.
 This conclusion is consistent with the distinction to be drawn between fact of damage and proof of damage when defining a cause of action. In Read v Brown, Lord Esher MR stated (Pollock B agreeing), that a cause of action comprises:
…every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved.
 This passage was referred to with approval by Wilson J in Do Carmo v Ford Excavations Proprietary Ltd.
 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.
Was the damage to the plaintiff material or minimal prior to 1987?
 The policy underlying the principle stated by Lord Pearce in Cartledge at 779, is that the law should not entertain claims for damages where the physical effects of the injury are no more than negligible. Otherwise, costly litigation could be commenced which is out of proportion to the damage in issue.
 Injury or damage can be material although it is unknown or symptomless. This is clear from decisions including Cartledge, where the House of Lords held that in cases of latent dust injury damage would occur upon the ‘secret onset’ of the disease. Their Lordships held it would be wrong to deny a right of action to a plaintiff who can prove his lungs are damaged but cannot prove any symptoms or present physical inconvenience. Lord Pearce considered that the ‘secret onset’ of a disease occurs when there is ‘material damage by any physical changes in the body.’
 The respondent relied on his Lordship’s observation that evidence that those changes were not and would not be felt by a plaintiff told against their constituting damage. However, his Lordship went on to say that evidence that a plaintiff would suffer upon the onslaught of the disease told in favour of the damage being substantial. It is a question of fact in each case and “in borderline cases it is a question of degree.”
 In Favelle Mort Ltd v Murray it was held that the entry into the body of a virus which resulted in a morbid physical condition did constitute an injury for the purposes of workers compensation legislation. This decision has been applied in support of the conclusion that the inhalation of asbestos fibres resulting in mesothelioma constitutes an “injury” for the purposes of a sickness and accident insurance policy, and also in relation to workers compensation policies in Western Australia, and in New South Wales.
 In Orica the Court was not called upon to consider whether changes in the mesothelial cells subsequent to the year during which the initial injury occurred could constitute compensable damage. Whilst the main focus of the decision was the injury “occasioned at the time of penetration of the lung by a fibre”, and to a lesser extent the onset of mesothelioma, the Court did not consider the relevance and effect of the intermediate stage of the development of mesothelioma which arises when changes in the mesothelial cells had occurred as in the present case.
 We consider that the views expressed by Derrington J in Martindale v Burrows, particularly the following passage, are directly applicable to this matter:
The appearance of that condition establishes that the earlier morbid changes were indeed so serious as to be productive of mesothelioma at the later stage and were not merely potentially so. This means that the early changes did cause harm substantial enough to amount to injury at law.
 On the medical evidence in the present matter, it is clear that the changes to the appellant’s mesothelial cells had a causative relationship to his subsequent symptoms and suffering of malignant mesothelioma. Hindsight and the evidence of the two medical experts establish that the changes to the mesothelioma cells constituted compensable damage because those changes constituted a significant contributing factor to the final result. They did not merely constitute potential harm. Those changes constituted damage that was material and not minimal.
Was the harm prior to 1987 contingent or prospective?
 The respondent contended that the appellant’s damage prior to 1987 was prospective and contingent, and therefore not compensable. The respondent referred to Wardley Australia Ltd v Western Australia, where the High Court held that damage had not been suffered at the time of the defendant’s negligent misrepresentation because a future event had yet to occur before any damage would result.
 This was not the case here. Although the medical evidence was to the effect that a person with abnormalities in the mesothelial cells may or may not acquire malignant mesothelioma, the appellant’s condition was such that the cells would so develop. That conclusion is now established, albeit with the benefit of hindsight.
 We consider that the appellant sustained an injury of the kind defined in the Act during and following his inhalation of asbestos fibres.
 More relevantly, we consider that the appellant sustained compensable damage at the time when such inhalation caused changes in his mesothelial cells. According to the medical evidence these changes began to occur very soon after the appellant’s exposure to asbestos, and prior to 1987.
 Even though such changes were not symptomatic, and even if such changes may not have been discoverable by medical investigation methods available then, or even now, the subsequent development of the appellant’s malignant mesothelioma establishes that the damage to the appellant’s mesothelial cells, prior to 1987, was material damage, and thus compensable. That damage inevitably and inexorably led to the onset of malignant mesothelioma.
 The fact that the damage which he had prior to 1987 has become worse and symptomatic does not gainsay the conclusion that he did in fact have compensable damage, and thus a cause of action, prior to 1987.
 Accordingly we allowed the appeal.
David Cormack – Brisbane Barrister & Mediator
NB: Appeal dismissed:
Alcan Gove Pty Ltd v Zabic  HCA 33 (7 October 2015)