After a David and Goliath battle, the entitlements for Northern Territory sufferers of asbestos-related illnesses were confirmed in the High Court of Australia.
Background to the case
Concluding in 2015, a case between alumina refinery worker Zorko Zabic and Alcan Gove Pty Ltd progressed from the Northern Territory Supreme Court to the Northern Territory Court of Appeal and finally to the High Court of Australia. The focal point of this case was the timing of when Mr Zabic’s injury was caused – his asbestos cancer, mesothelioma.
Mr Zabic’s exposure to asbestos at work
Between 1974 and 1977, Mr Zabic was employed as a manual laborer for Alcan Gove’s alumina refinery on the Gove peninsula in the Northern Territory
Mr Zabic’s responsibilities included cleaning the refinery’s extensive pipeline network and labor work where he came into contact with extensive asbestos material including lagging
The asbestos lagging had a consistency like plaster
When the pipes burst or leaked, they had to be ‘de-lagged’ to remove the asbestos insultation and expose the pipe for repair or replacement
Hundreds of times between 1974 and 1977, Mr Zabic de-lagged pipes using brute force which released clouds of asbestos dust
The asbestos dust polluted Mr Zabic’s immediate breathing space and settled on his hair, face and clothing
Mr Zabic was not given protective equipment or clothing to protect him from the airborne asbestos dust, nor was he warned of the dangers of asbestos
Zorko’s asbestos mesothelioma cancer
Zorko first experienced chest pain and breathlessness in November 2013 and was later diagnosed with malignant mesothelioma in 2014. There were 37 to 40 years between his first exposure to asbestos at work and the onset of his symptoms.
The courts accepted expert medical evidence that when Zorko inhaled asbestos fibres into his lungs, the fibres settled into his lung tissue, causing cellular changes which progressed over the years to mesothelioma.
Zorko’s cause of action
The link between mesothelioma and unprotected exposure to asbestos dust and fibres was well known by the 1970s. Therefore, the courts accepted that Zorko’s injury causing asbestos mesothelioma cancer was reasonably foreseeable.
The Northern Territory Supreme Court found that:
Zorko’s injury was sustained at the time he first inhaled and ingested the asbestos fibers
Alcan Gove breached its duty of care to provide Zorko with a safe workplace and equipment
The medical evidence of Zorko’s asbestos mesothelioma cancer was caused by that breach of duty
When does an injury of asbestos cancer mesothelioma occur?
Shine Lawyers argued that Zorko’s injury (asbestos mesothelioma cancer) arose at the time he was first exposed, i.e. before relevant workers’ compensation law came into effect on 1 January 1987, which limited the amount of compensation workers were entitled to. This argument was important because it allowed Zorko to bring a common law claim to recover fair and proper compensation in contrast to the limited entitlements under the workers compensation scheme.
The relevant question was the timing of Zorko’s work-related injury – did it occur:
In the 1970s, when asbestos fibres in his lungs started to cause cellular change, before the workers compensation law came into effect; or
In the 2000s, when Zorko’s mesothelioma symptoms started, after the 1987 law was introduced?
The facts of each case of mesothelioma are relevant
The Northern Territory Court of Appeal decided:
Zorko’s injury was sustained during and following his inhalation of asbestos fibres in the 1970s
Zorko’s pathological and molecular changes in the lung commenced close to the time of his exposure, well before 1987
This cellular change ultimately led to the onset of malignant mesothelioma
Zorko was eligible for fair and proper compensation for his injury through the Court
The High Court’s decision
Zorko’s employer appealed the decision of the Northern Territory Court of Appeal to the High Court of Australia. The High Court dismissed the appeal and found:
Based on the medical evidence, the ‘trigger’ which led to Zorko’s mesothelioma was present soon after he inhaled asbestos dust and fibres into his lungs
His injury occurred earlier than 1 January 1987 and he had a compensable claim against his employer through common law and not the limited entitlements under the workers compensation scheme
Zorko’s compensation for asbestos cancer mesothelioma
Alcan Gove was ordered to pay substantial compensation to Mr Zabic for the devastating injury he suffered at work in the 1970s.
Zorko’s Shine Toxic Exposure, Silica and Dust Diseases lawyer Roger Singh said:
"The 'benefits' offered by that scheme were rubbish. A pittance for a death sentence. I thought there was no way that could be correct, but by the letter of their law, that was the case. I love nothing more than being told something is a lost cause. Those are the cases you live for as a lawyer."
- Roger Singh
Mr Singh said the landmark ruling opens the door for others diagnosed with asbestos-related diseases such as asbestos mesothelioma cancer to seek compensation through the courts. Mr Singh also stated:
“This decision will pave the way for the many asbestos victims in the Northern Territory who would have previously been denied justice to come forward and seek significant for themselves and their families.”
- Roger Singh
How Shine Lawyers can help
As one of Australia’s largest litigation law firms, we’ve been successfully standing up for the rights of everyday Australians for over 45 years. We believe everyone should have the right to access justice.
If you were exposed to asbestos at work and diagnosed with an asbestos or dust-related disease, you may be eligible to claim compensation under Australian law.
