Alcan Gove Pty Ltd v Zabic

The High Court of Australia heard an appeal from Alcan Gove Pty Ltd (the appellant) against a decision concerning a claim for damages for personal injury. The respondent, Mr Zabic, had contracted mesothelioma, a malignant tumour of the mesothelial cells, which he alleged was caused by inhaling asbestos fibres during his employment with the appellant between 1974 and 1977. The central dispute revolved around when the respondent's cause of action for negligence accrued, particularly in light of legislation that abolished such actions unless they had accrued before 1 January 1987.

The legal issues before the High Court were whether the initial, asymptomatic molecular changes to the respondent's mesothelial cells, which occurred soon after his exposure to asbestos fibres and before 1 January 1987, constituted "compensable damage" for the purposes of founding a cause of action in negligence. The court was required to determine whether these early cellular changes, which were not themselves malignant and did not necessarily lead to mesothelioma, were sufficient to establish that the respondent had suffered actionable damage at the time of exposure, or shortly thereafter. This involved considering the nature of damage in tort law, particularly in the context of latent diseases, and the distinction between an injury and the eventual manifestation of a disease.

The High Court reasoned that actionable damage in negligence requires a detriment that leaves the plaintiff worse off. Drawing on established principles, the court noted that while the development of mesothelioma was caused by the appellant's breach of duty, the critical question was when compensable damage first occurred. The court distinguished the initial, asymptomatic molecular changes in mesothelial cells from conditions like pleural thickening or plaques, which had previously been held not to constitute actionable damage in the absence of further development or symptoms. The court concluded that the initial cellular changes, being asymptomatic, undetectable, and not inevitably leading to mesothelioma, did not amount to compensable damage at the time they occurred. Therefore, the cause of action did not accrue before 1 January 1987.

The appeal was dismissed with costs.