Zabic v Alcan Gove Pty Ltd - [2015] NTSC 1

Zabic v Alcan Gove Pty Ltd [2015] NTSC 1

PARTIES:ZABIC, Zorko

v
ALCAN GOVE PTY LTD
(ACN 000 453 663)

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:80 of 2014 (21439533)
DELIVERED:  2 January 2015
HEARING DATES:  12 and 13 November 2014
JUDGMENT OF:  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.
Limitation Act 1981 (NT) s 44, s 44(2), s 44(7)(a).
Workers Rehabilitation and Compensation Act 1986 (NT) s 3(1), s 52, s 189, s 189(1)
CAL No 14 Pty Ltd v Motor Accidents Insurance Board; CAL No 14 Pty Ltd v Scott (2009) 239 CLR 390; Cartledge and Ors v E Jopling & Sons Ltd [1963] AC 758; Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234; GRE Insurance Ltd v Bristile Ltd (1991) 5 WAR 440; Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; Wilson v Rigg [2002] NSWCA 246; Williams v Milotin (1957) 97 CLR 465; Wyong Shire Council v Shirt (1980) 146 CLR 40, referred to.
Martindale v Burrows (1996) 1 Qd R 243; WorkCover Authority (NSW) v Chubb Australia Ltd (2000) 20 NSWCCR 614, considered
Orica Ltd & Anor v CGU Insurance Ltd (2003) 59 NSWLR 14, followed
John Fleming, Carolyn Sappideen and Prune Vines, Fleming’s The Law of Torts (Lawbook Co, 10^th ed, 2011), 22
REPRESENTATION:
Counsel:
Plaintiff:G Little QC
Defendant:M Crawley
Solicitors:
Plaintiff:Ward Keller (town agents for Shine Lawyers)
Defendant:Cridlands MB (town agents for Bartier Perry)
Judgment category classification:    B
Judgment ID Number:  Bar1501
Number of pages:  37

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Zabic v Alcan Gove Pty Ltd [2015] NTSC 1

No. 80 of 2014 (21438533)
BETWEEN:

ZORKO ZABIC

Plaintiff

AND:

ALCAN GOVE PTY LTD
(ACN 000 453 663)

Defendant

CORAM: BARR J
REASONS FOR JUDGMENT
(Delivered 2 January 2015)
Introduction

The plaintiff is a 74 year old man who is dying of malignant mesothelioma, an aggressive cancer affecting the membrane lining (pleura) of his lungs. He probably has only six months to live.
The plaintiff claims damages for the defendant’s negligence, to include general damages for pain and suffering and loss of amenities of life, damages for loss of expectation of life, damages for past and future gratuitous care, and special damages past and future.[1]
It is not necessary for me to consider and assess the quantum of damages because the parties have agreed that, if the plaintiff is otherwise successful, his…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] NTSC 1
Decision Date: 2 January 2015

CaseChat Overview and Summary

The plaintiff, Mr Zabic, brought a claim for damages against Alcan Gove Pty Ltd for alleged negligence in failing to take reasonable care to prevent him from being exposed to asbestos while he was employed at the defendant's alumina refinery. The plaintiff's exposure to asbestos allegedly occurred during his employment between 1973 and 1977. The plaintiff developed mesothelioma in 2000, more than twenty years after his employment with the defendant had ended. The plaintiff brought the action in the Supreme Court of the Northern Territory.

The court was required to determine when the plaintiff's damage was sustained for the purposes of applying the limitation period in the Workers Rehabilitation and Compensation Act 1986 (NT). The court considered whether the plaintiff's damage was sustained at the time of his exposure to asbestos or at the time the mesothelioma was diagnosed. The court also considered whether the plaintiff's cause of action accrued at the time of exposure or at the time of diagnosis.

The court held that the plaintiff's cause of action did not accrue until actual damage was sustained. The court held that the plaintiff's exposure to asbestos resulted in physiological changes but that those changes were not of a kind that constituted damage. The court held that the plaintiff did not sustain damage until he developed mesothelioma. The court held that, because the plaintiff's mesothelioma was diagnosed more than twenty years after his exposure to asbestos, his claim was statute-barred. The court dismissed the plaintiff's claim.

The court ordered that the plaintiff's claim be dismissed with costs.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The plaintiff described another task in which he engaged: cleaning and mucking out the vast treatment/storage tanks located in various zones at the plant. He said that this was “an extremely filthy job requiring physical exertion and heavyweight manual labour”. The plaintiff and one or more other workers would use a jackhammer to remove the mud and residue which was stuck thick and fast to the interior circumferential wall and ceiling of the tank. It does not appear that the plaintiff was exposed to asbestos when he carried out this work, but the level of dust generated during the mucking out process was constant and substantial. Of significance, the plaintiff was kitted out for this task in an overall (which covered his whole body), a filter mask, goggles and helmet. Evidence Stephen Memis The plaintiff’s evidence was supported by the evidence of Stephen Memis, a former fitter machinist employed at the defendant’s alumina refinery. Mr Memis commenced employment in 1982, some three to four years after the plaintiff had left the defendant’s employ. For the first six years of his employment, he was based in the machine shop, but his occupation as a machinist and then fitter required him to make his way through various areas of the refinery and he would observe yard gang members working on piping or engaging in general cleaning duties. In the early days of Mr Memis’s employment, there was a lot of asbestos in the refinery, particularly on pipelines which ran all around the refinery. The presence and dangers of asbestos were not made known to him. When he first started, K-Lite[3] was used for the lagging of some of the pipework and it was prevalent on the pipe surfaces. Asbestos was also used on the gaskets and flanges. In the early days the yard gang used to do a lot of work cleaning the pipelines. It was the responsibility of the yard gang to attend at the site of a leak or blockage to remove the asbestos lagging. This was part and parcel of the duties of the yard gang and it was common knowledge that this was the type of work that they did. Mr Memis saw asbestos dislodged from pipework by men using jackhammers, crowbars and other hand-held tools to clear out blockages within pipes. He was used to seeing the yard gang crew working on and handling asbestos pipelines. However, over the years he worked at the refinery such work became less frequent because asbestos was gradually removed, and because the manual handling and disassembling of pipelines to remove internal blockages was replaced by internal hydro-blasting of the pipes. The defendant objected to the admission of the evidence of Mr Memis, on the ground that it was irrelevant. Mr Crawley, counsel for the defendant, argued that, because the observations of Mr Memis were made at least some three to four years after the plaintiff had left his employ at the refinery, they were not relevant to the situation that had prevailed during the time of the plaintiff was employed there. Mr Crawley submitted, in the alternative, that I should give the evidence of Memis little or no weight.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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