Alcan Gove Pty Ltd v Zabic [2015] HCATrans 169 (4 August 2015)

Last Updated: 4 August 2015

[2015] HCATrans 169

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Darwin No D5 of 2015

B e t w e e n -

ALCAN GOVE PTY LTD ACN 000 453 663

Appellant

and

ZORKO ZABIC

Respondent

FRENCH CJ
KIEFEL J
BELL J
KEANE J
NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 4 AUGUST 2015, AT 10.15 AM

Copyright in the High Court of Australia

MR G.M. WATSON, SC: May it please the Court, I appear with MR J.C. SHELLER, for the appellant. (instructed by Bartier Perry)

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friend, MR G.F. LITTLE, SC, for the respondent. (instructed by Shine Lawyers)

FRENCH CJ: Yes, Mr Watson.

MR WATSON: Your Honours, I want to start by giving a little context to the central piece of legislation that is now known as the Return to Work Act 1986 (NT). We have traced its legislative naming history in the papers. Your Honours, for most of the 20th century, most of the Australian jurisdictions compensated workplace accidents by payments made under one or both of two concurrent streams. One of those streams was purely statutory; that is the comprehensive no-fault statutory workers compensation scheme. Those schemes operated Australia-wide from the early parts of the 20th century. The other stream is the payment of common law damages, but that remedy was only available to those who could establish some fault on the part of the employer.

Your Honours, one serious negative consequence of having the dual system was that there was a duplication in legal costs. In the mid-1980s, criticism of the dual entitlement scheme began to emerge, and a particular criticism was made of it because the maintenance of the dual entitlement scheme duplicated those legal costs. That was seen as a drain on the funds which otherwise would have been available to injured workers.

In the late 1980s, most statutory compensation schemes were substantially reformed reflecting these criticisms. One reform was that under the various statutory schemes, the availability of common law rights was either eliminated entirely, or in some places, it was substituted with a modified – when I say “modified”, read “reduced” – entitlement at common law. As we understand today, there are only one or two places in Australia which retain full common law rights for workers. It was that kind of thinking, at least in theory, which explains the present legislation.

We have given your Honours copies of the legislation as at the date that it was enacted, and a reprint which shows how it was at the time that Mr Zabic first suffered symptoms. Rather than ask your Honours to file through that, we have handed up with our little outline a document which comprises a typescript of the legislation. I am just going to take your Honours now to the text of the relevant parts. If your Honours have the document, you will see that it is in two parts, top and bottom. It has got section 52 of the Act as it was at enactment, and at the bottom half of the page, as it was at the date of the onset of symptoms. Your Honours, we have done that because we think the argument may get to a point where there is a question about which version applied, but may I say this, it will not make any difference on our submission in this case. We have underlined the little changes. There is a change in terminology in the chapeau, whereas “no cause of action for damages” was the provision before it became “no action for damages”.

You consider my substantial amendment is to capture a situation where a worker may have been able to sue a co-worker, and thus avoid the extinguishment. Now your Honours will see that that provision, extinguishment, turns on there having been a workplace injury. So, the next page has got the definition “injury”. That has been amended over the years, but may I say to your Honours, this part of it has remained exactly the same and it is the only relevant part of it. Your Honours will see that “injury” is defined to include a disease. A disease at all times has been defined that way, and your Honours will see that it includes a disease whether it was “contracted before or after commencement of Part V”. Your Honours, section 52 appears in Part V of the Act.

FRENCH CJ: Would “injury” pick up an adverse genetic change at cellular level?

MR WATSON: That is a contention between us. We would respectfully submit that that would not be at that level something which could be said to be a disease or even at that level.

FRENCH CJ: No, I am asking whether injury – injury, the definition is inclusive, not exhaustive.

MR WATSON: May I just think about that, your Honour. It seems some of the authorities – and I know that Chief Justice Spigelman refers to the asbestos fibres not constituting an injury, but may I just think of that for a moment. The next page has the transitional provision. We have put it as it was at both relevant times, but your Honours will see that it only ever was altered to incorporate a gender matter.

Your Honours, that is the background. The issue pitched for a solution is this - did Mr Zabic have a cause of action which had accrued as of 1 January 1987? Well, if so, he was entitled to commence and prosecute these proceedings. If not, we say that they were barred. Could I just say this on behalf of my client, however? Even if the proceedings are barred, Mr Zabic, of course, retains all the rights, substantial rights, under the workers’ compensation scheme.

Now, before going any further I want to take the Court to the key parts of the decision of the Court of Appeal below. Your Honours, there are two bases upon which the Court of Appeal relied in finding that Mr Zabic had a cause of action. Both of them were said to have established that Mr Zabic had a cause of action which had accrued before 1 January 1987.

I will show your Honours the judgment first and then I will set out to persuade you, your Honours, that it was wrong in principle and contrary to a body of precedent. If your Honours have the appeal book, the first basis is first stated at page 118. On page 118, paragraph [20], right in the middle of the page, there is a statement about the changes to the “mesothelial cells”. The second sentence is important. Their Honours there acknowledge that not everyone gets the disease. That is picked up in the conclusion of the judgment at page 132, this time paragraph [60], and this is the finding:

we consider that the appellant sustained compensable damage at the time when such inhalation caused changes in his mesothelial cells.

That became very soon after the exposure, so it is way back in perhaps 1974. That is one basis for the judgment and I point out to your Honours that their Honours are there saying that that was sufficient to establish non-negligible damage for the purposes of a cause of action and that is even so, despite the fact that the changes themselves were not detectable. They would usually, if not always, remain dormant for decades. They cause no physical consequences whatsoever and they well may not develop into anything of a serious character. We will show your Honours that that is contrary to authority. The second basis for the decision below turned on the use of hindsight and it first figures in the appeal book page 127.

FRENCH CJ: By “hindsight” do you mean anything more than inference about past events?

MR WATSON: Well, that is what it seems to be, nothing more than that. Your Honours, I shall just show your Honours where it was. There was in Orica v CGU - we will come to it - an authority which was before their Honours where two judges had referred to the fact that hindsight, although available, was not usable. Your Honours, it is at page 127 right at the foot of the page, paragraph [47]. It starts with a reference to “hindsight”, it continues over and it incorporates the whole of paragraph [48]. That was repeated at page 132 and this is probably key to it. At the top of the page, paragraph [58]:

Although the medical evidence was to the effect that a person with abnormalities in the mesothelial cells may or may not acquire malignant mesothelioma –

et cetera.

KIEFEL J: The problem is not so much with hindsight as with the evidence. I mean, it is theoretically possible that one could retrospectively determine, if the science was with you, so to speak, that a person suffered damage and that one could work backwards to say that they must have had a particular condition but the key is obviously whether or not science says that his condition was such that it would inevitably progress.

MR WATSON: There is another problem pointed up by the authorities. For example, even if one looks at a conclusion like that, the poor person exposed to asbestos might have died from some unrelated cause in the interim and it would be, in a sense, a strange conclusion to say that one had a cause of action for mesothelioma because of some change in the cells way back in 1987 but in the interim the person had passed away.

KIEFEL J: But what paragraph [58] of the Court of Appeal’s judgment points up is that it depends entirely upon there being scientific evidence that his condition at the relevant time was such that the transformation into the malignancy would occur.

MR WATSON: Yes. This has always been described in the authorities as the plaintiff being left in a position of a problem of proof but, nevertheless, that has meant that there was not a cause of action at the earlier point in time. For example, it was not known in 1987 or before that, that the progression would occur, so what would a court sit and determine as at 1 January 1987 if that be the case?

KIEFEL J: But to show that the Court of Appeal was wrong about the condition requires reference to the scientific evidence and these cases are so dependent upon the science of the time. At the moment, no one knows what the triggering cause is - - -

MR WATSON: Exactly.

KIEFEL J: - - -into the malignant condition. That is a difficulty for plaintiffs.

MR WATSON: Exactly. It also has led to problems for defendants and insurers which – your Honours have seen that awful creation now called the Fairchild enclave in the UK. Those problems of proof do not apply only here to asbestos-related mesothelioma. They apply in all sorts of areas including, I would imagine, to things involving, for example, physical damage to a building or to a defect in an aeroplane, or something like that which can only be said later that it was caused by something. The courts are always engaged in that exercise. But, the problem here is then saying that meant that the cause of action arose at a much earlier point in time could be very, very problematical in many areas of law.

FRENCH CJ: Can I just take you back to the question I put to you initially and, perhaps, preface that with this question? Do you accept that, on a proper view of the evidence, there was a – it can be inferred that following the respondent’s exposure to asbestos fibre at some stage during his employment, there was a change, at a molecular level, perhaps a genetic change in his mesothelial cells, or some of them?

MR WATSON: That must be accepted.

FRENCH CJ: And that is a matter of inference from what happened later.

MR WATSON: Yes.

FRENCH CJ: And secondly, that that change opened, as it were, a causal pathway where if some triggering event occurred, that change coupled with the triggering event would lead to a cascading process and the disease onset.

MR WATSON: Yes.

FRENCH CJ: Okay. So, the question is whether that change which creates what you might loosely call the susceptibility or open the causal pathway, if you like, subject to a triggering event, does that change an injury within the meaning of the definition?

MR WATSON: It must be. When I paused before, it was because there was a distinction drawn in some of the cases for the purposes of construing insurance policies - - -

FRENCH CJ: Yes.

MR WATSON: - - - but a distinction drawn between the actual inhalation of the fibre and it remaining and consequences, but if one thinks about it, perhaps it would be better to describe both as being injuries of their own kind.

FRENCH CJ: Well, maybe some people who inhale the fibre are lucky that it does not cause any change.

MR WATSON: That may well be so. We do not know.

FRENCH CJ: Because I think there was some figure of only 3 per cent of people exposed actually get the condition.

MR WATSON: Yes. I think that was in a high risk group exposed to very nasty asbestos.

FRENCH CJ: Yes, yes.

BELL J: Where do we get that evidence, the 3 per cent?

MR WATSON: I will try and find that for your Honour.

NETTLE J: Mr Watson, is that mesothelial change, of which you have just spoken to the Chief Justice, the same as the “pleural thickening” or “pleural plaques” one sees reference to?

MR WATSON: Not at all. I am going to come to a “pleural plaques” case. It is actually quite different. It seems to be some sort of bodily reaction to inhaling asbestos so that some sort of film grows over the lining of the lung. I am coming to a description of “pleural plaques”, for they are quite different things. Both of them are caused by inhaling asbestos and it is highly probable, almost inevitable, that anybody who inhaled asbestos to develop pleural plaques had also had the mesothelial cell changes.

Your Honours, just before I leave the appeal book, just say that there are some other facts. I will just mention these; I do not think they are contentious – I will cite them. In the appeal book at page 115, judgment paragraph [13], it is said that Mr Zabic first experienced symptoms either in late 2013 or early 2014. Legally speaking, for this case, it does not matter which, because the law remained the same over that whole time. Secondly, it was an agreed fact that mesothelioma in Mr Zabic’s case only commenced well after 1 January 1987. That is at appeal book 115, paragraph [14]. During the interim it is said that the cell changes are dormant.

FRENCH CJ: Well, by “dormant” you mean no triggering event had occurred, so far as one can tell, which in combination with those cell changes would lead to the disease process?

MR WATSON: Exactly. May I say this, however? The medical evidence was also this, that there was a long latency period – so there was a period during which it would be expected that there would be no triggering. That was, I think, in one of the doctors a minimum of 10 years.

FRENCH CJ: Well, it can go to 30 or 40 years. I think that is common - - -

MR WATSON: It can go on, as I understand it; just keep going on. Could I take your Honours to the decision of the House of Lords in Rothwell?

KEANE J: Just before we leave the appeal book, Mr Watson, can I ask you – if one looks at page 4, one sees that a claim is made for:

damages for personal injury . . . arising from the Defendant’s breach of duty of care, breach of contract –

and so on. Insofar as the cause of action was a cause of action in contract, none of this matters, does it?

MR WATSON: Well, it was never actually pleaded; beyond that statement there, never pleaded that way, nor was it put that way, and that is in the - - -

KEANE J: Well, it is pleaded that he was employed by your client - - -

MR WATSON: Yes.

KEANE J: - - - and these things happened. I mean, I suppose it is true to say that there was not an allegation in terms of breach, but no doubt the findings by the primary judge amounted to a breach and the cause of action in contract was complete upon the breach.

MR WATSON: Yes. May I say this? That is actually one of the first things I looked at because there would be nominal damages presumably for - - -

KEANE J: Well, there would have been a complete cause of action. The entitlement would have been to recover full damages as they were established at the time of trial.

MR WATSON: That is true. That is if it was not statute barred and a whole lot of other things which might have been considered had the case been put that way. Could I show your Honour at page 5, for example, the way in which the case is put is at paragraph 8 of that pleading – and it is particularised as a negligence claim – I looked at the papers because the question about whether or not there was a concurrent claim in contract obviously is an issue and it was never put as a contract claim. It was just not put that way, and it may have given rise to other issues.

I was going to take your Honours to Rothwell, if I may. I will cite it. It is Rothwell v Chemical & Insulating Co Ltd [2008] 1 AC 289. I will just tell your Honours something very briefly about the facts. It really was a test case. It related to an issue which was contentious in the United Kingdom relating to compensation for pleural plaques. I will come back to what pleural plaques are in a moment. A group of workers had been exposed to asbestos and they developed pleural plaques. Some of them had gone on to develop anxiety. Your Honours, anxiety is not a psychiatric illness and hence is not compensable. Others of the workers had gone on to develop depression, which is a psychiatric injury and can be compensated.

The question which came before the House was whether pleural plaques alone or whether pleural plaques coupled with anxiety and/or depression could give rise to what was called a compensatable claim. The House of Lords held unanimously that it did not. I was going to take your Honours to some portions of the judgment. There is Lord Hoffmann, and I will take your Honours to page 287, paragraph 1. I do that, your Honour Justice Nettle, partly because his Lordship described what pleural plaques are. In paragraph 1, his Lordship posed the question and then said about pleural plaques that they were a:

fibrous thickening of the pleural membrane which surrounds the lungs. Save in very exceptional cases, they cause no symptoms. Nor do they cause other asbestos-related diseases -

In other words, they do not provide the causal pathway to which his Honour the Chief Justice referred earlier –

But they signal the presence in the lungs and pleura of asbestos fibres which may independently cause life-threatening or fatal diseases such as asbestosis or mesothelioma.

Then over the page, in consequence, a person might understandably suffer anxiety and/or depression. I will just show your Honours the first sentence of the next paragraph because this is a summary of his Honour’s conclusion:

Proof of damage is an essential element . . . symptomless plaques are not compensatable damage.

That is where I got that word from. At paragraph 7 is really the solution, and paragraph 8 bears upon it.

FRENCH CJ: Sorry, how does this bear upon our case?

MR WATSON: The Northern Territory Court of Appeal said the changes in the mesothelial cells themselves – even though that they were unnoticeable, unable to be noticed – they were actually differently to plaques, not able to be seen on testing, that sort of thing. Even though symptomless, that was compensable damage. But the Court of Appeal used the word “compensable”, and Lord Hoffmann said “compensatable”.

FRENCH CJ: Well, you have accepted they were an injury, the question is whether the cause of action arose by reason of that injury, or whether there is a disconnect between that and the disease process.

MR WATSON: Exactly, it is – we are looking, or focusing, upon the issue of sufficiency of damage to give rise to - - -

FRENCH CJ: You mean sufficiency of injury, or - - -

MR WATSON: Sufficiency of damage.

FRENCH CJ: Yes.

MR WATSON: For example, it has been held in most of the authorities that inhaling the asbestos fibres themselves as an injury but that by itself is not accompanied by damage as the essential element in an action in tort.

KIEFEL J: Is another way of looking at it though that the damage for which this action was brought was not that injury – it was the damage which he finally suffered?

MR WATSON: Well, yes, except I have shown your Honours that the Northern Territory Court of Appeal did say that that was enough, the inhalation of the fibres at the point of the symptomless biological changes. We put this is writing, and I do not mean to be flippant about it, but cellular changes, biological changes, sounds serious. They happen to us every day, they happen as a process of ageing, of eating, of – well, et cetera.

KEANE J: But if one is asking whether one is worse off because of those changes, there does seem to be something to be said for the view that where your mesothelial cells are undergoing changes – genetic changes – that raise a risk of developing mesothelioma, as a matter of ordinary understanding it is not hard to say that the person who is suffering those changes is not worse off.

MR WATSON: No doubt. Your Honour, may I say this. In terms of whether or not it gives rise to a risk, that is a matter that has been considered in the authorities, and so far rejected. It was not put that way here, and I will take your Honours to some statements about that in the cases. But, to say that somebody is worse off in some sort of abstract manner, that is exactly what Lord Hope’s decision in this very case is driving at. So, if I just show your Honours the paragraphs, and I will not labour it. In paragraph 7, Lord Hoffmann had referred to the issue. I will just go about four or five lines down, where his Honour said:

Damage in this sense –

and that means damage sufficient to provide a basis for negligence –

Damage in this sense is an abstract concept of being worse off, physically or economically, so that compensation is an appropriate remedy. It does not mean simply a physical change –

then there is an interpolation -

which is consistent with making one better, as in the case of a successful operation, or with being neutral –

so if you read it, it does not mean simply a physical change –

having no perceptible effect upon one’s health or capability.

Lord Hope addressed the same sorts of things at page 297. The whole of the paragraph is relevant, particularly as it refers to Cartledge v Jopling. It is the last four or five lines. His Lordship said that these descriptions are not helpful on the question of law:

which is whether a physical change of this kind is actionable -

and this is the point to which your Honour Justice Keane refers -

There must be real damage . . . Where that element is lacking, as it plainly is in the case of pleural plaques, the physical change which they represent is not by itself actionable.

May I say this? Pleural plaques are quite distinctly different physical change to a change in a mesothelial cell, but they do reflect the fact – as was pointed out in Lord Hoffmann’s paragraph 1 – they do reflect the fact that you have inhaled asbestos and that you are at an increased risk of the serious diseases.

Lord Hope went on at page 299, in paragraph 47. I just want to take your Honours to the last three lines. I am not shirking what is in the rest. There is nothing there that hurts my case. But his Honour said, or posed the question, or answered it, that:

it can at least be said that an injury which is without any symptoms at all because it cannot be seen or felt and which will not lead to some other event that is harmful has no consequences that will attract an award of damages. Damages are given for injuries that cause harm –

et cetera. At the middle of the page in 49, right in the middle of the page below D:

Furthermore it is not possible to bring the risks of developing a harmful disease into account . . . The risks are no doubt due to the same exposure to asbestos. But they are not created . . . by the pleural plaques.

Then at G at the end of paragraph 50:

Time has not yet begun to run against any of the claimants –

Your Honour Justice Keane asked a question. Maybe it can be answered this way. A person who had suffered the changes to his or her mesothelial cells puts on a statement of claim and gets into the witness box. How was your health? Perfect. Do you notice any change? No. Does it interfere with your sport? No. Are you still working full-time? Yes. Do you need medical treatment? No. The damages would be nil. There is no cause of action because there is no sufficient injury at that time.

FRENCH CJ: Well, he has answered the question, how is your health? It might turn out to be wrong. There have been these changes which - - -

MR WATSON: Well, if it had been asked of Mr Zabic as at 1987, he would have correctly answered, well, subject to unrelated matters, perfect.

FRENCH CJ: Of course, it is not unusual, is it, that in a personal injuries case you might have an injury – say it is in a running down case which is clear – there is a broken leg and some other things – and then before the case comes to trial, subsequent conditions emerge, maybe a reactive depression. So, all of those would be compensable.

MR WATSON: That would be true. There would also – I try to think – I am not trying to ram my point of view home. Your Honours, there are cases where, for example, in the running down case, the person may have fractured their ankle and at the date of trial there would be evidence saying it is very likely to lead to osteoarthritis.

FRENCH CJ: Yes, that is common.

MR WATSON: That is very common, but then the judge would have persuaded – be persuaded by evidence – that that was going to happen and it is a very common concomitant and the question here is whether or not this was there at the time.

FRENCH CJ: Often it is a case of risk, is it not? A risk of osteoarthritis would be taken into account in assessment.

MR WATSON: Yes, in the assessment, but that was not the suggestion here, it is – in any event, could I just go on and say - - -

KEANE J: But if the plaintiff had notionally been having a trial in 1988 and the evidence were that these mesothelial cell changes had occurred and were occurring so that there was, in prospect, a risk, why would not the same sort of process of assessment occur as with the risk of changes from a broken ankle?

MR WATSON: In this particular area, the courts have so far not accepted that that kind of risk is compensable. There have been some large cases on it, I think. The most famous is Gregg v Scott in the House of Lords.

FRENCH CJ: The question is why?

MR WATSON: The question is why is because the thing at that stage where the plaintiff would bear the onus to establish causation was talking about a risk of something occurring which you could never establish on balance that it would occur. I mean, if somebody was to sue today, just any person on the basis I inhaled asbestos 20 years ago, I may get a serious illness. That kind of case has never been considered in Australia and it is not really the one I was coming along to answer today. Wardley, I seem to remember, has said as a general principle that you cannot sue in respect of a risk. I think we referred to that in writing. I am sorry, that is not a very good answer because it is a non-answer.

KIEFEL J: Is another explanation, perhaps, that whilst the courts may accept a particular injury as constituting damage and making the cause of action good, when they come to assess damages, they are sometimes looking at the future effects as in a complication arising from a fractured leg, the complication might be osteoarthritis, that is part of the assessment of damages, not the damage, because the courts are in a position to allow for future chances in the assessment of damages.

MR WATSON: That is the way in which it works but here the very thing upon which the action is brought is not a condition which has emerged, as opposed to the broken ankle.

KIEFEL J: Yes, but the distinction is that the broken ankle is what constitutes the damages. The possibility of osteoarthritic changes is simply a complication that the Court may take into account but it is not necessary to make the action good.

BELL J: On 31 December 1986, were it possible to have detected changes in the genetic structure of the cells, what could have been said was that there was a risk greater than the risk that a person without those changes has of developing a range of lung-related illnesses that is like the evidence of the plaques in Rothwell, the risk is of asbestosis, of black lung, of a variety of conditions and mesothelioma.

MR WATSON: Yes, that would be true, I accept that.

BELL J: And this was a claim argued in negligence for damages for mesothelioma.

MR WATSON: Yes.

FRENCH CJ: But with the pleural plaques, there is no causal connection between them and the onset of mesothelioma.

MR WATSON: That is true. There is not the “causal pathway”, which were the words that your Honour used earlier. In other words, they have not shown any statistical link that those people with pleural plaques - - -

FRENCH CJ: There might be a correlation simply because they are an indication that you have been exposed to asbestos.

MR WATSON: Yes, exactly, but that has not been an increased risk amongst that group as opposed to other persons who inhaled asbestos but did not develop plaques. I think I need to take your Honours to Cartledge v Jopling because it really has emerged as an issue between us. I will just cite it. It is Cartledge v E. Jopling & Sons Ltd [1963] AC 758. Your Honours, we submit that this case is very poorly understood, but we will explain to your Honours how it should be understood, and hope we will get there. We submit it is entirely consistent with our contention. It is a surprising result, one would say, but your Honours will see in due course that it was because of the words of a statute, and if the common law had applied, the House of Lords would have arrived at the same result for which we contend.

I will just remind your Honours of the facts. A group of workers were exposed to silica. They were then given lung tests and X-rays – radiographs, I think they called them back in the day – and they had definite changes to their lungs. They had developed the condition, even to a mild degree. But a young person has got an excess capacity of lungs. None of these men had noticed that they were ill, and they do not have an X-ray machine at home, but it could be shown that there were definite changes, an injury. The men commenced proceedings and they were held to be statute-barred. I will show your Honours in a moment that result was entirely due to the applicable statute, and that was the English Limitation Act 1939. Could I show your Honours Lord Reid at page 771? At the foot of the page, his Lordship says:

It is now too late for the courts to question or modify the rules that a cause of action accrues as soon as a wrongful act has caused personal injury beyond what can be regarded as negligible, even when that injury is unknown to and cannot be discovered . . . It appears to me to be unreasonable and unjustifiable in principle that a cause of action should be held to accrue before it is possible . . . to raise any action. If this were a matter governed by the common law I would hold that a cause of action ought not to be held to accrue until either the injured person has discovered the injury or it would be possible for him to discover it if he took [reasonable] steps . . . The common law ought never to produce a wholly unreasonable result –

Then in the next paragraph –

But the present question depends on statute, the Limitation Act, 1939 –

Your Honours, I should have probably shown your Honours this. The statute is set out in the early pages of the report, at page 759. What it is is that it fixed the limited period for an action in tort, and section 26 gave very limited opportunities to extend any limitation period depending upon fraud and the like. His Lordship went on –

[that] make it impossible to reach the result which I have indicated. That section makes special provisions [for] fraud or mistake –

and just at the end of the paragraph –

The necessary implication from that section is that, where fraud or mistake is not involved, time begins to run –

His Lordship described it as a “mischief”. In other words, this case depended upon the way in which that particular statute had been interpreted before and it led to this bad result. Now, I will just show your Honours – Lord Evershed at page 774 was saying the same thing in the first lines there, where his Lordship said:

To postpone the date in such a case as the present would, in my opinion, necessarily require the insertion of some words qualifying the statutory formula.

If I just mention this, that Lord Morris said the same thing at 776, and Lord Pearce was of the same view.

KIEFEL J: But is not the relevance of this case to the present that it appears to have been accepted that damage can be symptomless?

MR WATSON: For the purpose of that statute, it was accepted that what was shown on the lung testing and the X-ray evidence was damage such as to commence time to run.

FRENCH CJ: Complete the cause of action.

MR WATSON: Therefore, there was a cause of action under that statute, whereas Lord Reid said, if I was going to decide it at common law, symptomless - - -

KIEFEL J: But it was not the statute’s description of damage, was it, that caused that result, it was the court’s acceptance that damage could be unknown and symptomless and nevertheless be damage for the purpose of the statute?

MR WATSON: It seems to be better explained by the courts for 30 years having interpreted that statute that way. That is the way in which they had interpreted that statute, and Lord Reid felt that it was impossible to do otherwise than follow those cases. I was just going to show your Honours Lord Pearce, but these provisions are pretty well-known, so if I just tell your Honours it is at page 777 and 778. At 779, right in the middle of the page, there is a paragraph:

It is a question of fact in each case . . . Evidence that those changes are not felt by him and may never be felt tells in favour of the damage coming within the principle of de minimis non curat lex.

Could I just pass up five copies to the Bench and I will make some copies available to Mr Walker. The case is - this is just an extract from it - the decision of Central Asbestos Co Ltd v Dodd [1973] AC 518. At page 528, Lord Reid looked back on the decision in Cartledge v Jopling, at the foot of the page. His Lordship said that he must recall Cartedge v Jopling and over the page his Honour described how the House was compelled by the terms of the statute to reach an “absurd result”, et cetera. Of course this case of Central Asbestos was being decided under new legislation. Your Honours may recall that it – well, Cartledge v Jopling was an extremely harsh result and it led to a lot of academic writing.

BELL J: Coming back to Lord Pearce at 779, his Honour went on in describing whether or not damage is to be viewed as merely de minimis, evidence that the onslaught of disease the man may suffer from his hidden impairment tells in favour of it being substantial. I mean, the issue here, to the extent that Cartledge sheds light on it, concerns how one characterises the cellular change, whether or not it would be right to say that the onslaught of mesothelioma was significant, having regard to the evidence that was before the court concerning the significance of the changes in the mesothelial cells.

MR WATSON: We accept all of that, your Honour, but that is the point at which we say that the evidence at that time simply said that there had been physical changes which may not go on to anything.

BELL J: If the evidence disclosed whether those physical changes in the cell might have exposed one to other forms of lung disease or was it confined only to - - -

MR WATSON: It was only mesothelioma.

BELL J: Right, I see.

MR WATSON: I should say this - that is that key word “mesothelial” cells, they were on the lining of the lung. They were in a particular place. So, those same fibres may be doing something else which ends up being asbestosis but the changing cell was, I think, tied only to mesothelioma.

BELL J: I understand that but – yes.

MR WATSON: Your Honours, what I wanted to do was take that very general idea from those cases and take your Honours now to a couple of cases where it has been more specifically determined and one of them is Orica Limited v CGU Insurance Limited [2003] NSWCA 331; (2003) 59 NSWLR 14. Your Honours, I want to go to this for a couple of reasons because - well, we say it is directly on point, but, your Honours, it also encapsulates really what we want to say. I

I will remind you of the facts. Orica employed a worker between 1959 and 1961. Orica had three consecutive separate workers compensation insurance policies with CGU over those three years. Each of those policies had what was called a common law extension with a limit of $60,000 for common law damages. In 2001, the worker contracted mesothelioma and sued Orica. The worker and Orica settled their case. They agreed on a figure of $240,000 inclusive of legal costs.

Orica then sued CGU seeking either $180,000, being the aggregate of the three years – the evidence was the worker had been exposed over - on each of the three years - or, in the alternative, if only one policy responded, Orica wanted $60,000. The majority of the New South Wales Court of Appeal found that Orica was not entitled to anything but that is not the point in issue. The Court of Appeal had a number of complicated issues before it here and that was whether – which policy would respond, whether one could aggregate and it also involved construing words like “injury” under the workers compensation legislation in New South Wales.

KIEFEL J: Was the critical question when liability accrued within the term of the policy?

MR WATSON: Not a critical question but certainly one of the questions. That is why I was going to take your Honour - each of the judges offered a solution to that. Chief Justice Spigelman is at page 23. It is at paragraph 32. The whole of that paragraph is important. Those early words of “liable to pay” and “compensation” - that is referring to the statutory scheme and independently of the Act that is referring to common law liability. What his Honour went on to say is that when you are determining the answer to that:

the policy responds in the latter case only if the employer’s liability has –

It is a common law liability -

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 lung by a fibre –

if that is an injury -

is so negligible in and of itself, as distinct from its potential, that it does not constitute damage –

The decision of President Mason at page - - -

FRENCH CJ: Now, in reaching that conclusion, is his Honour relying on anything – any evidence – about the probability or the causal pathways, or is it just on the basis that there are no symptoms from the mere penetration of the lung?

MR WATSON: He was also relying upon medical evidence. Earlier in his judgment he had referred to the fact that the medical evidence was set out in Justice Santow’s judgment. I will just show you what that was. At page 68 of the report, it is paragraph 195, where there was a discussion about what was called the aetiology of mesothelioma. It is probably paragraph (a) which is the key to it:

The development of the disease is related to the cumulative effect of all asbestos fibre inhaled -

Sorry, I should have said (b) –

There is no single “mesothelioma cell” in the early stages. A protracted series of genetic mutations occurs in the lungs. Eventually there is a clonal growth, which invades tissue and results in mesothelioma -

There are other references there, but they are the two most important.

FRENCH CJ: When his Honour describes it as negligible, what is the criterion that he is applying?

MR WATSON: Well, I would suppose it must be a question of fact.

FRENCH CJ: Is the criterion the fact that it is symptomless or that there is a mere probability as distinct from a certainty, one does not know.

MR WATSON: Well, that is something which is incorporated in his Honour’s final sentence where it:

is so negligible in and of itself, as distinct from its potential –

So it does take into account both those things.

KEANE J: In a sense, this was by the by for the Chief Justice, because he was concerned really to construe a policy of insurance that provided for indemnity in respect of a liability to pay compensation in a particular sum, and so what really mattered for the purpose of deciding the case, was whether the policy responded in respect of an established liability to pay a given sum. That sum reflected an assessment of damages which itself took into account all the consequences that were established by the time of trial – all the adverse consequences – that were established by the time of trial.

MR WATSON: Exactly. That is absolutely correct. Your Honour may recall that when her Honour Justice Kiefel said was this the critical question, I resisted the word “critical” because there were several steps along the way. But this was a necessary consideration insofar as, for example, it might be contended loosely that the liability for the purposes of looking at insurance arose in 2001. But of course, that insurer – that is when the mesothelioma occurred – that insurer, of course, was not insuring at the relevant period.

So then you would look at, well, does it arise in respect of the three years – 1959 to 1961 – and the Court of Appeal also had to look at when, in that period, could it be said that it arose. So there were a number of complex questions, and we were at pains in our written submissions to identify just those portions which dealt with the common law issue.

There is a lot of material in here, including interesting but totally irrelevant material about the aggregation of policies when they can occur. Justice Santow arrived at a completely different conclusion, although he was at ad idem with the other judges on this particular issue.

BELL J: On this particular issue, the Chief Justice at paragraph 25 makes clear that he did not regard it as necessary to decide the controversy about whether:

the initial penetration of the lungs by asbestos [fibre] is not sufficiently material to constitute damage for the purposes of . . . a cause of action - - -

MR WATSON: Sorry, I should have pointed that out. Your Honour is quite right.

BELL J: I think more recently, the Court of Appeal in Vero Insurance has said something about this analysis in Orica, has it not?

MR WATSON: It has, your Honour. We saw that in my learned friend’s written submissions, but the thing is that what they were talking about there was the analysis about how policies of insurance respond. That was in a compensation setting. That was not actually dealing with this question that we have before us now. They were raising questions there about whether Orica was right on the aggregation issue, and the like. They were not dealing with this issue and there is no statement – I have been through that case – which would undermine the proposition for which we are contending.

President Mason at page 28 – there are about four or five paragraphs which are relevant, and they actually answer some of the issues, or provide an answer to some of the issues which have been raised this morning. In paragraph 71, there is a discussion by his Honour about causes of action; I will not take your Honours through that. At paragraph 72, commencing with the important words “With the benefit of hindsight we know as a fact” – this is another appeal court judge looking at the issue of hindsight – we know that the worker has contracted mesothelioma as a result of that exposure. The last sentence is the telling one:

But that liability remained inchoate, in the eyes of tort law, because damage is the gist of the relevant cause or causes of action.

Your Honour Justice Keane asked a question or two about risk. The next paragraph looks at that –

The worker did not sue or recover damages on the debatable basis that the chance or fear of contracting mesothelioma –

Then in paragraph 74, his Honour addressed some of the practical consequences of all of this. Mr Dunstan – that is the worker:

might have suffered devastating injury or been killed, perhaps due to a third party’s negligence, before the ingested asbestos fibre triggered –

the mesothelioma. Then his Honour addressed what would happen – the relatives could not sue – and said this –

This is merely to restate the proposition that any tortious cause of action against –

That is Orica –

required proof –

et cetera, and a repetition over that at paragraph 75. Justice Santow dissented in the result. He said that you could construe the workers compensation policy a different way and you could allow aggregation. But on the issue with which we are dealing today at page 54, in paragraph 149, he had this to say:

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 –

This is reminiscent of questions asked by your Honour Justice Kiefel -

available only in hindsight –

about the asbestos that had caused him damages. I will not read the whole but that whole paragraph is important. His Honour is saying there how the courts have, to date, shut their face to claims of this kind – Gregg v Scott being the key case.

Your Honours, could I just say this? Orica was subsequently considered and applied in a lung cancer case. It was a lung cancer case which showed that the asbestos inhaled had induced the lung cancer. We put it in writing but I will not take your Honours to it. It is Lay v Employers Mutual Limited (2005) 66 NSWLR 270. The principal judgment is by Justice Bryson, especially at paragraph 18. The other judges agreed with Justice Bryson.

I will not take your Honours to it because I wanted to go to back overseas to Scotland and show your Honours the case of Brown v North British Steel Foundry (1968) SC 51 and it is a decision of the Scottish Court of Sessions. Your Honours, the reason why we take your Honours to this is because we think it is important. This is a – they call it a British court – considering how to apply Cartledge v Jopling in circumstances very, very similar to this.

The facts were that a worker had been exposed to silica between 1941 and 1949. Now, extraordinary though it may seem, Scotland only introduced the Limitation Act in 1954. That imposed a three-year limitation period on a negligence claim. That is why I corrected myself in terms of the Limitation Act in Cartledge v Jopling. But it introduced a three-year limitation period. That legislation was expressed so that it did not restrict a claim which was based upon a cause of action which arose before 1954.

So in this case that question was relevant because in 1955 the worker became aware of symptoms of pneumoconiosis. He died but his family pursued the claim. The question before the Scottish courts was whether the cause of action arose before or after 1954. If yes, the claim can proceed. If no, the claim was statute barred. The Scottish Court of Sessions held – and it was unanimous – that the cause of action arose no earlier than 1955.

Could I show your Honours the decision of Lord President Clyde at page 64? Actually, I might just show your Honours something at the foot of page 63 before we go there. In the last paragraph his Honour is talking about the question and just at the end he was saying how the worker, Mr Brown, had no doubt inhaled silica in the dressing shop – it was steel dressing:

it is nowhere suggested in the evidence that by 1949 he was in any way then suffering from pneumoconiosis. All the men in the dressing shops inhale such dust, but few are infected with pneumoconiosis, which involves the scarring and inflammation of the tissues in the lungs.

Then the question we would respectfully submit is nearly identical. About 10 lines down, Lord President Clyde said:

In my opinion this is fatal . . . If section 7 can be invoked to exclude the time-bar –

Section 7 was the preserving provision –

it is necessary to establish that a cause of action had arisen before 4th June 1954.

Then down in the middle of the page:

To succeed in the present case the pursuer would require to show that his pneumoconiosis was established to a degree which was not negligible . . . prior to 4th June 1954 . . . failed to do so . . . In 1949, and indeed at any time prior to 1st January 1955, no Court could competently have awarded damages –

Your Honours, this is an old case but it is a good case, we would respectfully submit, showing that the idea which we propose today is not in any sense heretical. At page 68, Lord Guthrie right in the middle of the page said something very similar:

Between 1941 and 1949 the deceased did not suffer from pneumoconiosis, and was not at all disabled . . . if an action had been raised shortly after May 1949, it could not have succeeded, since it could not have been averred or proved that the deceased suffered from the pneumoconiosis . . . All that he could have averred and proved was that he had inhaled dust which might or might not –

et cetera. Lord Migdale said more or less the same thing at page 70, just again around about the middle of the page:

It was clear on the evidence that pneumoconiosis does not inevitably follow –

and the next few lines.

KIEFEL J: Just returning for a moment – I think not necessary to Cartledge, had it not been for the X-rays showing something, would the worker have failed?

MR WATSON: Could I say there were two things? There were X-rays and also some breathing tests, but those breathing tests show your absolute lung ability. There was only a relatively small restriction. But if I treat your Honour’s question as being if that evidence was not available, there would have been no evidence of damage and so time would not have commenced until - - -

KIEFEL J: Yes, it was the X-rays that caused the problem for the plaintiffs.

MR WATSON: I am not certain of this, but I think the facts were that the rotten employer in those cases that had the men X-rayed and tested, as it were, for the sake of their own health and then were able to use the records which they had collected but not told the workers about.

KIEFEL J: As a defence, to show damage – yes.

MR WATSON: Your Honours, I am not going to take your Honours to the more recent decisions in the House of Lords or the Supreme Court. They are becoming more difficult to apply because of the so-called Fairchild enclave. But that said, your Honours, there is nothing in those cases – I have read them, I speak of course of Barker v Corus and the Trigger Litigation Case, BAI v Durham – there is nothing inconsistent in those cases with what we are saying here. In fact, there is a good deal that seems to be an assumption in the courts over there that there was no cause of action.

I will just refer your Honours – we have put these things in writing, we have put the references, but in the Trigger Litigation, which is BAI (Run Off) Ltd v Durham [2012] UKSC 14; [2012] 1 WLR 867 – I am not going to take your Honours to it – it is the judgment – sorry, it is the Supreme Court – it is the judgment of Lord Mance at paragraph 64 and there is also a reference, and the judgment of Lord Clarke at paragraph 77. Your Honours, that is what I really wanted to put to you on the appeal but because the arguments overlap entirely, if your Honours preferred, I would address just the first of our four arguments on the notice of contention.

FRENCH CJ: Well, the submissions on the notice of contention, for which leave is still required, raise succinctness to a new level. I think it best if we hear what Mr Walker has to say, subject to leave being given. Ultimately then you can deal with those matters in reply.

MR WATSON: Well, I can tell your Honours that my instructions are firmly – and my client is sympathetic to the physical condition of Mr Zabic and does not oppose a grant of leave.

FRENCH CJ: It does not oppose a grant of leave.

MR WATSON: It does not oppose it.

FRENCH CJ: Those are your submissions otherwise.

MR WATSON: I am told, and this means I have said something which was wrong - Mr Sheller tells me there was no evidence about the 3 per cent rate. I could have had in mind another case. I apologise for that.

FRENCH CJ: Well, somehow I had 3 per cent in my mind, but where I got it from I do not know. It is not in the papers.

KIEFEL J: Another case.

FRENCH CJ: Another case, perhaps.

MR WATSON: May it please the Court.

FRENCH CJ: Yes, Mr Walker.

MR WALKER: May it please the Court. Your Honours, the first question of course is how the facts as found in this case fitted the words of the governing statute. The parties are not at odds about that being the primary task. We do differ on the outcome of the application of those facts. They start, with respect, as we have noted in our outline of propositions, with the summary – to which other context is necessary – at appeal book 128, paragraph [48], where the conclusion is expressed that:

there was compensable damage, namely changes to the mesothelial cells, prior to 1987 –

the critical date –

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.

Now, those are expressions which obviously call in aid the common law jurisprudence where, famously, Cartledge v Jopling is supposed to stand as some high-water mark of the application in the face of what Lord Reid regarded as the dictates of, in an 18th century sense, natural justice. However, in our submission, it was orthodoxy then. It has remained orthodoxy since, at least in this country, bearing in mind that this country has not yet embarked on what might be called a Fairchild, et cetera, et cetera digression.

The next sentence in paragraph [48] is equally orthodox and it is an entirely familiar aspect of personal injuries litigation, but whether it be called “complications”, as Justice Kiefel raised with my learned friend, or consequences or sequelae or any other number of things, those things which are causally related to the injury – I am sorry, to the negligence usually, of course, mediated through the occurrence of what might be first called “the damage” constituted by an injury or disease, will be within the ambit of the court’s compensating function.

KIEFEL J: I think there is a distinction and then that is what I was trying to point out before between damages for future loss and damage. I do not think we should elide the two.

MR WALKER: Quite so and that, in our submission, in the assessment of damages which may occur, of course, at a time when many of the sequelae have fallen in and when the prospects of others are better known than they would have been, for example, when the cause of action accrued, they will be artefacts of both the timing of litigation, the availability of evidence and above all other things, in this field, the state of art in medical science.

The context to which we would refer, in particular, includes what your Honours have already been shown at appeal book 118 paragraph [20] and that includes the finding that those changes were the start of a process that resulted in the appellant suffering from malignant mesothelioma. The causal chain is clear. Then, starting on page 132 of the appeal book, paragraphs [58] to [62] complete the reasoning or elaborate the conclusion in paragraph [48] and, in particular, one sees at about line 11:

the appellant’s condition was such that the cells would so develop.

BELL J: How does that fit with the concession that was made at appeal book 89, paragraph [60] of the primary judge’s reasons:

that it would not have been possible, immediately prior to 1 January 1987, to state that the changes in the plaintiff’s mesothelial cells . . . would probably lead to the development of malignant mesothelioma.

MR WALKER: Doing the best I can, I think that is a reference to what was available by way of evidence at the time, that is, there being nothing – I do not know whether the word “biopsy” is appropriate, there being nothing which had seen mesothelial changes which are a fact inferred from subsequent development of mesothelioma.

BELL J: Well, it also raises this issue of whether the changes in the mesothelial cells were likely to produce a malignant mesothelioma. Clearly, it is accepted there is a causal link, but where on the continuum that likelihood existed as at 31 December 1986 may have been unclear on the evidence.

MR WALKER: There is a difference between the evidence at the trial and the hypothetical state of evidence, had there been a trial at an earlier stage – that is, immediately prior to 1 January 1987. That is a radical difference. I think the concession that is noted at trial – paragraph [60], page 89 of the appeal book – is about the fact that “it would not have been possible” then to say that there were changes which would “probably lead” to the development of mesothelioma. It is what follows in paragraph [60] that governed the case.

BELL J: But that then comes to the question of characterisation. On the one hand, it is said it was just a want of the capacity to prove that which is known. The other way of looking at it is as at 31 December 1986, as a matter of fact, it could not have been known.

MR WALKER: That is discoverability, but it was a fact at that date is what the rest of paragraph [60] at trial finds, what I have already drawn to attention in the Court of Appeal at paragraph [20] and I will come back to page 132. It was a fact that there had been by that stage changes in the mesothelial cells which did in fact lead to – I am there quoting from paragraph [60] at trial at line 41:

did in fact lead to the development of malignant mesothelioma –

not a question of probabilities; it is finding, no doubt on the balance of probabilities, that it did in fact lead to. It is not a question of risk.

BELL J: In the events that happened, that is clear, but the matter that I am raising, and it may be that the evidence just really did not explore this, but as at 31 December 1986, it may not have been the fact, namely that other things might have intervened that then led to the onset of the malignancy – it is just how one characterises it, but that is - - -

MR WALKER: I think partly this is a matter about which there is not further evidence, none I can point to not already taken up in the holdings to which I have drawn attention and in the course of drawing attention. But in particular, it is a matter of discoverability or capacity to prove, rather than the fact itself which I understand to be the object of the concession as seen by the trial judge at paragraph [60]. That appears to be so from what follows in that paragraph, which, in particular, employs what is now in a certain manner regarded by the appellant as “hindsight reasoning”.

Of course it is hindsight reasoning; all finding of fact is hindsight reasoning in the relevant sense. From what happened to the unfortunate man in light of medical science, which was in evidence, the finding, which is not challenged in this Court and really does not lend itself to factual dispute in a given state of art, is that “prior to January 1987” – that is line 45 on page 89:

the plaintiff had suffered damage, albeit not then apparent but still sufficient to enable his cause of action to arise.

That links back to the previous sentence, because it means that the court is finding that prior to January 1987, changes to the mesothelial cells at a genetic level have occurred which subsequent events, namely the diagnosis of mesothelioma, confirms or shows – or, as the court said, shows it is clear that those changes or abnormalities did in fact lead to the mesothelioma.

NETTLE J: They did, but were they bound to?

MR WALKER: Your Honour, I should, in answering that question, put to one side as not an answer to your Honour’s question, the true but trivial proposition that he may have been skittled by a bus the next day. Put that entirely to one side. You will see it in the cases from time to time. It has got nothing to do with the point your Honour has raised.

There is not, on my reading of this record, evidence which enables the rather odd notion of an individualised epidemiological prospect to be cast like a horoscope for this man as at that date. We do not have that. However, I am bound to point out that the evidence – and I will take you to the findings about that immediately – the evidence certainly could not be read as meaning but for intervening death. As at that date, medical science would have said, you are doomed to a death by mesothelioma.

NETTLE J: So, there was no more than objective risk that he might die – the consequence of mesothelioma.

MR WALKER: No, there is more than that. Equally, I need to go on and say that the understanding which is not challenged, shown in paragraph [61] of the Court of Appeal at page 132, is that given the course that was proved, and I quote:

that the damage to the appellant’s mesothelial cells, prior to 1987, was material, and thus compensable. That damage inevitably and inexorably led to the onset of malignant mesothelioma.

That means, in his case that is what caused it and it is said “inevitably and inexorably”.

BELL J: But that could not have been known.

MR WALKER: That could not have been known. That was not a discoverable proposition.

BELL J: And, it may not - - -

NETTLE J: But it was the fact.

MR WALKER: But it was the fact, exactly. That is the point I am trying to make.

BELL J: But, to say it was the fact is to say that as at 31 December 1986, it was the progress of it to malignant mesothelioma was inevitable.

MR WALKER: Yes, but not known or knowable because we do not know the future. He was – to use grim language often employed in this area – one of the unlucky ones. By unlucky, I do not mean anything in the nature of fortune or fortuitous chance to dispense a defendant from liability – far from it. Obviously, there is liability notwithstanding the actionable exposure mercifully does not kill everybody. So, being one of the unlucky ones may be just a current way of describing that you belong to a class that medical science cannot yet explain and puts into a chance group. By chance you are one of those. In 50 years’ time, maybe we will be able to point out that this was never chance and that there is an element of cellular biology not now understood which may in the future be understood to show it is not chance at all. We do not know that and could not have proved it.

KIEFEL J: But, the damage in question for which action was brought was not damage to the appellant’s mesothelial cells.

MR WALKER: Quite so.

KIEFEL J: It was damage in the nature of malignant mesothelioma.

MR WALKER: Yes, it is.

KIEFEL J: And the question is, when did that cause of action arise, not damage to the cells.

MR WALKER: The first part, I agree; the second part, no, we strenuously resist. A plaintiff cannot postdate the accrual of a cause of action by selecting what is in truth a consequence of actionable damage rather than the first suffering of actionable damage. So, if one suffered a dreadful iatrogenic disease following a particularly routine injury that took you to casualty, it would not be to the point in relation to the intervention of limitation periods so as to bar the broken wrist but to permit the pneumonia or whatever. It would not be to the point ever to say, “But I am not suing for the broken wrist. I am suing for the pneumonia”.

In our submission, if you are suing the employer whose want of care led to the broken wrist, which led to you being in the hospital, which led to you suffering the pneumonia, then that employer - who did not give you pneumonia – that employer is always entitled to say that, “The cause of action for my negligence, the chain of events, shows that the first damage was when your wrist was broken. True it is, you may not have cared much about that and you certainly may not have sued, compensation, workers comp would have been good enough for it. But the sequela, which is the terrible pneumonia you have developed, and whatever else comes from it, is not something that you can pick out and say, ‘That is the only reason I am suing. It is what I put in my writ’, and therefore that is when the time” - - -

KIEFEL J: But that is a case of multiple causes and chains of causation in multiple causes. It is really not analogous.

MR WALKER: But we say it is exactly analogous because - - -

KIEFEL J: But why would you test what the cause of action that you say is established prior to 1987 in this way? What would the assessment of damages be?

MR WALKER: It would be, among other things, for the prospect of developing mesothelioma.

KIEFEL J: The chance? The assessment would be of the chance, assuming that - - -

MR WALKER: In the ordinary Malec v Hutton way, yes, your Honour.

KIEFEL J: But the chance of contracting it?

MR WALKER: In the ordinary Malec v Hutton way, yes.

KIEFEL J: That cannot possibly be equated with an action for damage constituted by malignant mesothelioma.

MR WALKER: It is certainly not a consequence which - - -

KIEFEL J: It is not the same cause of action.

MR WALKER: But, your Honour, what I am trying to maintain is the proposition that there is only one cause of action for the negligence and it is for all the damage suffered by reason of the negligence.

KIEFEL J: I follow what you are saying.

MR WALKER: The plaintiff saying that it does not feel up to the evidentiary task of proving the first damage or does not care about the first damage and cares only about a consequence of it does not postdate the accrual of the cause of action. All of these cases are about that and that is why in Cartledge v Jopling there was the passage which I think your Honour had in mind in some matters you raised with my learned friend where the two-edged quality of science for injured plaintiffs is raised, that science may well be the cause of enabling things to be known which can be sued on or, better still, cured, but science also enables the earlier onset of a condition previously unknowable - or undiscoverable, to use the jargon - to be given a date which in jurisdictions where there is a limitations period means the plaintiff has no cause of action. That is the purport of the passage in particular in the authorised reports, page 779 of Lord Pearce’s speech in Cartledge v Jopling.

FRENCH CJ: It is sufficient for your case to characterise the cellular changes – I am looking at paragraph 1 of our outline – as injury. You do not have to go further and fit them into some disease category, do you?

MR WALKER: That is right – no, that is what we say the statutory language requires us to show, in order for section 189 to operate in our favour, that this was a cause of action in respect of an injury to a person arising out of in the course of his employment, and that it is in respect of the injury – because the mesothelioma itself results from the changes to the mesothelial cells, which could not by parity of reasoning with the clarity with which the House of Lords found this in Cartledge v Jopling, could not - simply because it was undiscoverable and thus unprovable – be dismissed as negligible. That is, the hindsight showed you it was not merely not negligible, it was fatal. If negligible means anything in this context, it means something about which the law has no concern. It would be monstrous – Cartledge v Jopling has been regarded as monstrous enough by enough people, I should say, the common law articulated there. It is orthodox and, in our submission, it is not monstrous, it has the great virtues of beneficial arbitrariness.

NETTLE J: Mr Walker, did the trial judge find that the mesothelial changes, when they first occurred, were as a matter of objective fact bound to lead to mesothelioma?

MR WALKER: I cannot say bound, because of the proposition that not everybody who suffers those changes goes on to get mesothelioma. Again, I have got to footnote that to – and I am not talking about the cases where they die of something beforehand.

NETTLE J: The thing that is troubling me is that at page 55 in the appeal book there is evidence from the professor who gave it about the triggering event which is unknown.

MR WALKER: Yes, that is right.

NETTLE J: I had construed it unadvised thus far as meaning that such a triggering event might or might not come about, such that until and unless it does, there is no way of saying that the mesothelial changes which first occurred would inevitably lead to cancer.

MR WALKER: May I give your Honour a yes and no answer. Your Honour, with great respect, has put in that observation to me, an entirely reasonable, completely justified understanding of what, as it were, the logic of that evidence. However, it is called a trigger conceptually. It is an empty category in terms of scientific fact. It includes the proposition that it is time, not an extraneous event, or it is completely endogenous, that is, it is something that happens in human bodies in any event. In which case, to talk about “trigger” may be a very misleading metaphor, particularly if one is talking about chains of causation. It seems to be accepted that whatever the trigger is, or as I would go on to say, if there truly be a trigger at all, as opposed to simply living, or ageing, no one says that it is a novus actus. No one says that it breaks causation for the purpose of attributing legal responsibility.

So that if one looks at the way in which the trial judge looked at these aspects of the evidence, if you turn to page 86 of the appeal book, there is one of those references to that trigger. It is put slightly differently there. In paragraph [55], page 86 about line 42 or thereabouts:

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 –

Now, an unknown trigger - how shall I say, is not describable as a “thing, event or condition” and then one sees the way in which the same witness is quoted at the top of page 87 about the hydrated silicates as the villains:

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.

The science is clear that these are the changes caused by the exposure, that is a big tick for the plaintiff in negligence and the science is clear that the subsequent full-blown disease comes from those changes.

KIEFEL J: But not necessarily alone, that there is a necessary condition is the triggering event, even if science does not know what causes it.

MR WALKER: This is the problem about metaphors both in law and in medicine. “Trigger” is an odd word to use because if it is endogenous then it is part and parcel of the organism which first inhaled the fibres.

NETTLE J: But if it is, say, cigarette smoking or - - -

MR WALKER: Or excessive exercise, yes – exertion in the older cases is often referred to as being a trigger event for some of these industrial latent conditions to become florid and fatal.

KIEFEL J: But what it says – what it conveys is that the cellular changes of themselves may not be sufficient, that they are – that cellular change of itself will not be sufficient, that there must be some other change, event or whatever, howsoever produced to get between the two.

MR WALKER: One thing I must concede, I am going to try and turn it to advantage is that that possibility is certainly true. Now, it carries with it, of course, the possibility that the mesothelial changes were in an individual sufficient eventually to bring about the malignancy.

KIEFEL J: Is there any evidence of that?

MR WALKER: Only contained logically within all of these matters. To talk about an unknown trigger - - -

KIEFEL J: But you can only talk about logic if you have sufficient scientific understanding, no matter how logically you might be driven.

MR WALKER: All the doctors say - and I am halfway through the citation of them, all the doctors say that we can look at this man’s mesothelioma and this man’s exposure and say the one is the result of the other. Now, the intervening, I will call them conditions or events because we do not know whether they are what is sometimes called susceptibility - that is, aspects of the particular person which are not shared with everyone else or whether they are things that are true of all of us as human beings, we do not know any of that, the science does not know that - what that leaves open, of course, is the possibility of simply being human and living for long enough which leads these mesothelial changes, in due course, to produce mesothelioma. The trigger event then would be survival.

FRENCH CJ: Is it any different from the situation of somebody being infected with, say, a bacterium which may or may not - - -

MR WALKER: Be defeated by internal - - -

FRENCH CJ: - - -be defeated by the immune system or otherwise and may have a long time before it reaches a load that manifests in symptoms?

MR WALKER: Not really different, because there again as a matter of language or logic, one can say it needs a trigger event – namely, the failure of the phagocytes to - - -

FRENCH CJ: Well, a trigger may be inapposite there. It is just that the inadequacy of the defence is to prevent an inevitable natural process.

MR WALKER: Quite so.

FRENCH CJ: I mean, all of these things are within the area of possibility of the science, but it has not nailed it down.

MR WALKER: Quite so, and all that really – I am trying to make good the point that the trigger is perhaps an unfortunate event. In the infection case, there are as we know multifarious reasons, some endogenous, many exogenous, as to why your immune system will not deal with a particular microorganism. However, to say that you had a cold at the same time is a trigger event for the bacterium that your employer negligently exposed you to actually producing a disease where it does not usually do so is not, in our submission, either to break causation – it has never been regarded as breaking causation – and nor does it, in our submission, destroy the proposition as a matter of medical science proved in retrospect that the development of that disease – because, with bacterium we are going to have Koch’s postulates, so we can say that is certainly from that bacterium – the development of the disease was due to that bacterium and that bacterium – or bacteria, as it multiplied – caused damage which eventually developed into the dangerous disease.

In such a case, in our submission, that would be injury – the damage caused to your cells by the multiplying microorganism – would be injury in respect of which you have a cause of action. Now, the consequence that you are one of the unlucky ones where it develops into a full-blown thing which the best antibiotics cannot effect or you cannot have the particular antibiotic that it could combat, in other words all the circumstantial and particular aspects that give you the particular grievance that leads to the assessment of damages, with the “S”, much larger than a person who is dealt with by a simple course of tablets. That, in our submission, says nothing about the accrual – or, to use the expression in the statute – when the cause of action arose.

KIEFEL J: But if the course of action arises upon the effect upon the cells, will that mean that for the purposes of statutes of limitations addressed prospectively a lot of other people who sustain the same kind of injury will be without a cause of action?

MR WALKER: Yes, and that is Cartledge v Jopling.

KEANE J: But that problem is addressed by the statutes that provide for extensions - - -

MR WALKER: Yes.

KEANE J: The extension being obtainable on the basis that you demonstrate you did not have knowledge. That is addressing the vice, the real vice, of Cartledge v Jopling.

MR WALKER: Exactly so. Could I just return to that proposition, because the way my learned friend put it – particularly via the citation from Lord Reid, and then Lord Reid returning to the matter in Dodd, rather suggests that it is being proposed that the statutory question in this case should be affected by some disquiet to be seen in relation to Cartledge v Jopling.

There is no intellectual disquiet at all. To the contrary, the matter is regarded as clear and plain. There is social disquiet – and not inappropriately, the word “justice” is used in that context – but his Lordship was not committing what would be unthinkable, given what we know from his published works. He was not committing the unthinkable to say that the law has produced, in this case, an outcome which is against the law, contrary to the law.

The law was very simple. I urge that, in fact, there is an arbitrariness about it which is utterly beneficial – there is a clarity about it – and in particular, picking up what Lord Pearce said, it means that something as fundamental as the accrual of a cause of action, which, by the way, is the creation of property, does not depend upon the accidents or anachronisms of state of medical art, which of course is critical at times that have nothing to do with what ought to be the elements of a cause of action because it has to do with the time when people get instructions, brief their experts and call their evidence, which is utterly disconnected from – except that it is always afterwards – the commission of the negligence and the suffering of the injury.

The notion that the time when a cause of action accrues will shift according to the intermittent – it is not a smooth process – advances, sometimes pseudo-advances, of medical science is, in our submission, absolutely to be rejected as contrary to all technique of the common law which seeks to generalise in a way that will not make fundamental changes according to factitious or highly particular matters of individual circumstance. Things need in common law to be generalisable at a point which will transcend the changes in science; otherwise it is not the kind of thing which ought to be the outcome of judge-made law.

BELL J: Just to come back to an answer you gave some time ago to Justice Kiefel, do I understand that it is your case that the cause of action arose when there was inhalation of asbestos fibre such that there was any change in a mesothelial cell that that change constituted the damage. In the case of a person who goes on to contract malignant mesothelioma, the damage is that condition, and in the case of all the other employees who inhaled the fibres and who suffered some genetic change in the mesothelial cells, the damage is the risk of the contraction of the disease for those for whom it has not been shown the change has progressed to a malignant tumour. Is that your case?

MR WALKER: Not quite, but may I try and deal with it more substantively than simply not accepting the way your Honour has put it as describing our position. Justice Bell’s question poses two classes of plaintiffs, so they are people in court. One can prove he has mesothelioma; the other can prove he has changes in mesothelial cells. We are probably already in a thoroughly fictitious state of affairs in relation to evidence. I cannot say that there is any evidence suggesting that one can show early on, or at any stage, changes in mesothelial cells. Apparently, it is known they happen. I shudder to think what accidents produce autopsies for that research, but not for living plaintiffs; I am just supposing this to test the idea.

In both cases, they can prove there was inhalation of asbestos for which the defendant was negligently liable. In both cases then, the common law of the cause of action involved proof of damage before you can even think about proving your damages. In both cases, the state of being worse off is a fair indicator of having suffered damage. No one would tarry a moment about the one with mesothelioma. Neither, in our submission, bearing in mind the evidence to which I have been drawing attention, would one say that about somebody with those mesothelial changes which render one in a state of physical susceptibility to particular forms of pain, suffering and death and shortening of life. Very different from the rest of the population – you are worse off than you were before and you are worse off than you would be otherwise.

In our submission, so far they are in exactly the same position in terms of their proof. The fiction requires us to accept that each will, in fact, show that the exposure caused changes in mesothelial cells, exactly the same kind of changes and changes that the medical art shows in some cases – plaintiff 1 being a living example – will lead to mesothelioma. In plaintiff 2, could well and that will do as the language to show the possibilities. Then it comes to – and that is enough for damage.

BELL J: Each has - - -

MR WALKER: Has a cause of action.

BELL J: - - - has a completed cause of action at the point of the inhalation of the fibres causing the change at the cellular level.

MR WALKER: Yes. It is not the inhalation, of course.

BELL J: No, it is the - - -

MR WALKER: We all hope that - (a) we are all inhaling it from time to time; (b) we all hope that there is no lodgement, or whatever. It is following inhalation of fibres that the - - -

BELL J: Change of the mesothelial cells.

MR WALKER: That is right. That is it.

BELL J: At that point, the cause of action is complete.

MR WALKER: That is right. That leads, of course, if we step out of the fiction, the plaintiff being able to prove changes in mesothelial cells who has not yet got mesothelioma. If we just step out of the fiction to the fact in ordinary life that is what Cartledge v Jopling is talking about. It is saying, yes, there will be cases where, by reason of what we know about the matter with imperfect medical science – the advance of which will not always be to the benefit of plaintiffs, we know that there are cases where there will be damage, non-negligible damage, which could not have been discovered. That is what leads to the call – as Justice Keane just pointed out – answered, I think, in every – I will call it civilised jurisdiction – to relieve against that in social terms by a battery of possibilities which have rung the changes from extensions of time to substance specific waivers of all limits, et cetera, et cetera, et cetera.

Now, going back to the hypothesised case of plaintiff 1 and plaintiff 2, when it comes then to the assessment of damages, the person – assuming he is still alive when damages are assessed – will be able to say “Well, I have got mesothelioma. There are things I can prove that have already happened”. But even he will be in a position, if he has not yet died, of saying, “and the evidence shows what is in prospect for me, including, for example, terrible pain”.

So that his case involves the assessment of prospective matters of chance depending upon analgesia available to him, et cetera, et cetera, et cetera. That will affect the quantum of damages. The same is true as a matter of principle, though of course utterly different in terms of what the evidence will show, in relation to those who have not yet got mesothelioma, and that led, as your Honours know, to the controversy about whether the terror induced by that knowledge and whatever pathological mental states that might produce, was itself actionable. We can put those problems aside. They ultimately are, of course, factual matters.

BELL J: But the cause of action for the plaintiffs in that category is for the increased risk of mesothelioma.

MR WALKER: Probably not as a matter of – as a matter of legal principle, the damage has as a consequence a prospect of further – being even worse off – of further deterioration of the position. Now, as a matter of English – and I do not want to be pedantic here – as a matter of English, of course that is about risk in the sense of possibility or chance prospect. Of course it is. I am, however, being wary because there are too many holdings that we do not wish to contest that the mere possibility of loss – that is another meaning of the word “risk” – is not itself damage.

In the case that Justice Bell is asking me to consider, of course they have already suffered the damage and it is true that probably most of their damages – most of the money will be on account of the prospect in light of the evidence about medical science, that that will in due course shorten their life very considerably and awfully.

BELL J: What other damage other than non-negligible damage can it be?

MR WALKER: It cannot be anything other than the fact that my cells have suffered the changes which hold out as a prospect these things, and there is no other damage apart obviously from consequential losses such as may be involved in more medical care; it may be more medical monitoring in the interim in case they find the cure to mesothelioma, rather than simply the palliation of its effects.

FRENCH CJ: If you come to court with mesothelioma, you rely upon the mesothelioma to establish the initial injury, being cellular change, on your argument.

MR WALKER: That is right.

FRENCH CJ: You might in a similar way come to court with pleural plaques and say as a matter of probability - - -

MR WALKER: That is a marker of, yes.

FRENCH CJ: - - -as a matter of probability, “I have had cellular change because I have had this significant exposure”.

MR WALKER: That is right. Now, that is, as it were – I am sorry, I do not know the science but I could not give evidence about it anyhow. I do not know if there is such a thing as biopsy for these mesothelial changes, as it were, the day after they start occurring. Let me assume there is not. As my friend has pointed out in answering in particular Justice Nettle’s questions about pleural plaque, pleural plaque is not physiologically or patho-physiologically part of what the law regards as the causal chain between inhalation and mesothelioma. On the other hand, it is not completely incidental because it is also caused by the inhalation.

It is another outcome – I hesitate to call it “benign” but that will do for present purposes - of the same negligence and in the way my learned friend explained to your Honours it appears that medical science regards it as accompanying mesothelial cell changes sufficiently often for it to stand, perhaps in some cases as evidence from which the latter can be inferred but that is as far as one goes.

You would not be suing them for pleural plaques, you would be suing for the mesothelial changes and just as the one with mesothelioma still alive at trial has some of the damages assessed by what lies in prospect so, other end of the spectrum, in terms of its magnitude, all the prospect that is then assessed - and one can use the word “risk” or “chance” but it is simply a Malec v Hutton assessment for the damages by reason of the damage constituted by those cellular changes will include an assessment of the extent to which the person is worse off and requires compensation given the prospect of mesothelioma.

In our submission, when one adds this to the fiction to test the matter it can be made even clearer and it is not unlikely that medical science will enable more to be known about the reasons why some people who inhale asbestos get mesothelioma and some do not. I stress that has never been a let out for defendants, not for a long time, I should say. But when even more is known then, in our submission, the assessment of damages for the damage constituted by damage to yourselves may well be hugely enhanced as a matter of forensic exactitude.

It may be that a person will be able to be shown to have a genetic makeup which renders it, on the evidence, only a remote possibility that anything worse will happen, let us hope. It may be, conversely, the other way, that the genetic makeup will be such that it is only going to be a matter of the grim race as to whether you die of something else in the meantime but you will certainly, if you live long enough, die of the mesothelioma which by then the medical science will say ought to be seen as being in you in train, to use the language in this case “inevitable and inexorable”. If something else does not get you this one will.

It may be when medical art is of that kind there will be reattempts in relation to whatever appropriate fear – a reasonable fear, might induce in susceptible individuals pathologically. But, in our submission, what that shows, just as Lord Pearce pointed out and predicted in Cartledge v Jopling, that medical science will have this disadvantageous effect forensically or litigiously upon plaintiffs.

That does not change what the law is concerning when the cause of action arises. It still arises at a time when it can be seen always, of course, in hindsight, that you have suffered the non-negligible damage. In our submission, already in this case on the findings, it could not possibly be said that those mesothelial changes were non-negligible. We do not understand our learned friends to be putting it thus. That would be a common law answer to our case altogether simply to say that this was – sorry, to say that it was negligible. They are not saying it was negligible.

It is for those reasons, in our submission, entirely in accordance with the way in which the law was understood in Cartledge v Jopling, which is still the law in this country as a matter of common law, it can be seen that once it was held that this is non-negligible damage, which it was, once it was held that is what led to the mesothelioma, which it did, then that is when the cause of action arose, or to use the – I am so sorry.

KIEFEL J: It perhaps would have placed this Court in an easier position if the action had in fact been brought for an injury in the nature of cellular changes, and then the matter could be tested by reference to medical science as to whether or not the injury so identified could be said to have led to this. But do you say that the same questions were inevitably dealt with here?

MR WALKER: Your Honour, I hope you will forgive me this comment. It is very unlikely that a plaintiff not having mesothelioma, but apparently, in some way I cannot explain factually, knowing of mesothelial changes – and, by the way, many people exposed will know of the possibility of mesothelioma - - -

KIEFEL J: You are going to say would not bring a cause of action.

MR WALKER: Why would you spend what is left to you - - -

KIEFEL J: But that is not really what I was getting at. A plaintiff, properly legally advised, knowing that they are facing a limitation problem and having to identify the cause of action which puts them in the right time – if that is the cause of action they are identifying by reference to the injury sustaining that cause of action that is the one they should sue on. That is the one that should be proved.

MR WALKER: When you say “should sue on” - - -

KIEFEL J: Well, that is the act, that is the one that should be sued on - - -

MR WALKER: They did prove it. They all prove it. It was proved to the hilt, the changes in mesothelial cells. They certainly proved it. By the way, page 87 in the appeal book - - -

KIEFEL J: But that was not really the focus of the inquiry, was it? The focus of the inquiry was not, given this injury, what follows. What the court was trying to do, at least in the Court of Appeal, was work backwards.

MR WALKER: Well, everyone works backwards.

KIEFEL J: True, once events have occurred.

MR WALKER: Everyone works backwards in every case, but page 87 in paragraph 56, Dr Edwards’ evidence is noted and, to a degree, quoted. It was certainly a focus of the evidence about the timing and reality of the changes in the mesothelial cells. You see at about line 42:

it is known that the changes in the mesothelial cells commence very soon after the exposure to asbestos.

That is that dating exchange –

However, it takes at least 10 years and probably 20 years before the cells are likely to become malignant.

Then, over the page - page 88, there is a reference to what I will call “biological process”.

KIEFEL J: I am sorry, I have not been very clear at what I am trying to get at. I am really taking up the point you were making before, about how there is a difference in looking at what could have been proved at one point in time, and what I understand you to be putting, which is, what can be proved now once necessary conditions have occurred.

MR WALKER: Yes, yes.

KIEFEL J: Well, in relation to the action brought now, the question is, is there an evidentiary – if you are talking about what can be proved now, knowing that the malignant condition has resulted, the question becomes does it not, not one of not knowing what has happened because all you have is cellular changes, but rather, whether or not there is a missing link in the middle, that there is a necessary condition that cannot be established. That is essentially what it must come down to, does it not, if you know that you have both the cellular change and the malignant mesothelioma. It is just a question of whether or not the two are necessarily linked up. That is how you are putting it.

MR WALKER: In a sense, yes. That was never a question, and certainly is not in dispute here; that is, there is no issue whatever that the mode of scientific reasoning that observes the current mesothelioma, observes the exposure, is both scientifically and – in terms of onus and standard of proof in the civil case – entirely proper in saying that the exposure caused changes which developed into the mesothelioma.

KEANE J: What you are saying is when one looks at the last sentence in paragraph [61]:

That damage inevitably and inexorably led to the onset –

Given the reference in Professor Allen’s evidence to the triggering event, what you are saying is that that last sentence has to be understood as that damage inevitably and inexorably led, given the ordinary, unavoidable and unremarkable exigencies of life, to the onset of malignant mesothelioma, and no one suggested otherwise.

MR WALKER: Yes. There is no novus actus point. We are not pointing to anything that dispenses a defendant. That is the problem with trigger, because that might be somebody else’s negligence. We are not talking about anything like that. We do not actually know what we are talking about. We do not actually know whether there is something that is not completely ordinary; that is, we all are experiencing now.

KIEFEL J: But your point is that it does not matter what it is - - -

MR WALKER: Exactly, because it is proved.

KIEFEL J: - - - because in a causation sense, the end results prove – we are not looking prospectively, so the way in which one normally tests when a cause of action arises is to look prospectively from the point that is identified and say is there a cause of action at this point, when one might not know what the outcome is. But here, we are working in a different factual scenario.

MR WALKER: Exactly, and here, it is utterly established common ground that this man’s mesothelioma resulted from mesothelial changes. It is also now common ground that they happened long before the statutory scheme commenced. That is the point.

BELL J: But what is not known is whether at the date the statutory scheme commenced it was certain that those changes would go on. That is the critical issue.

MR WALKER: I do not want to repeat myself. I cannot point to evidence that, as it were, gives this – I do not think there is such a thing as individualised epidemiology, but based on epidemiology, an individual prognosis for the person on the eve of the scheme, could it have sensibly said “you are certain to get mesothelioma”? First of all, I repeat, I have got to put to one side “unless something else kills you in the meantime” – it would be a very cheery consultation with your doctor, this one. I cannot say there is anything like that, but what I can say is that looking backwards, there is nothing wrong about the inevitable and inexorable holding that we know that this man’s mesothelioma came from two things – this is the holding; one, the exposure which caused changes; two, being alive.

BELL J: We do know these things but your argument has, so far as I understand it, had to embrace the wider proposition that the changes at cellular level constitute non-negligible damage in every case because, otherwise, there is the difficulty when one looks – yes we can say, in terms of causation of this plaintiff, that - - -

MR WALKER: Can I put it this way?

BELL J: Yes.

MR WALKER: No, I do not. It may well be that in another case on a different body of evidence that will be made good as a matter of medical science. That is, it may well be – I am now speculating utterly just as a matter of logic – it may well be that it turns out that if you do not die of something else, you will die of mesothelioma once these changes have started. I do not know. But, if that is true by the way, then it will be – in such a case, it will be true that everybody with changes has suffered damage. But, we are not talking about groups’ litigation. We are talking about a plaintiff. So, for my client, what it can be said is, the mesothelioma entails, looking backwards, the changes. The changes entails – sorry, involves, implicates the exposure and in between nothing occurred which would dispense a defendant, what I call, being alive. For those reasons, in our submission, our argument is not answered by saying some people with exactly the same exposure and mesothelial changes may never get mesothelioma even though they are not killed of something in the interim.

It is very difficult to construct these tests of logic because everyone dies of something. It does not mean that those of us who hope to die, for example, with rather than of prostate cancer know that it is not – you do not escape prostate cancer by dying of something in the interim and it does not show that things did not cause it. It just means that you have run your course before you know how all the chances that were set by earlier events will play out. Now - - -

KIEFEL J: I am sorry, please finish.

MR WALKER: I just wanted – the point is that our case does show a link back to exposure via the damage to the cells and that is enough for us to show that the cause of action accrued then. Of course, the way in which the statute pans out – this puts us, perhaps oddly, on the other side of what I will call the advantage argument thrown up by Cartledge v Jopling reasoning. There is nothing wrong about that. It is, no doubt – occasionally plaintiffs can benefit from the fact that causes of action are antedated before when a defendant would like it. After all, it is normally the other way around. The law is indifferent to whose advantage – apart from the question of taking away accrued rights to which I will come – the law is indifferent to who is advantaged by the principled dating, according to the common law rule, of the accrual of a cause of action. As I say, it has not been said that these cellular changes were negligible in the Cartledge v Jopling sense. I am sorry, your Honour.

KIEFEL J: On one view, it might be said that your case depends upon the point at which you assess the cause of action having arisen. There are different results because of the later fact of malignancy being established. There are differences that may be achieved by looking at it as immediately before the commencement of the section or by looking at it as at today’s date. What we have, perhaps, overlooked are the words of the section and what it requires. Section 189(1) refers to what is required to show that a cause of action arose before the commencement of the section in relation to a claim which may be made. So, it is not, perhaps, positing a claim that has to be made before the section commences. It is talking about any action which is sought to be brought afterwards.

MR WALKER: Yes, quite so.

KIEFEL J: And if it is brought afterwards, the action may include – may, by that time, have the proof and evidence of which you speak.

MR WALKER: Exactly.

KIEFEL J: What I am confused about in relation to your argument is whether or not you are saying that the cause of action identifies injury in the nature of cellular changes. Or, are you saying, the cause of action which is sought to be brought much later but which is going to identify cellular changes as the beginning of what has occurred is one brought with respect to – well, I suppose you would say it is a combination of cellular changes leading inevitably to - - -

MR WALKER: Yes, yes, quite. So, the phrase - - -

KIEFEL J: But the critical question then is the section, is it not, about what - - -

MR WALKER: Yes, and I was about to say “in respect of an injury to or death of a person” in our submission - - -

KIEFEL J: I am actually looking at section 189 which gives us the date and it is - yes.

MR WALKER: So was I.

KIEFEL J: Yes. I am sorry, yes.

MR WALKER: So was I, the opening words, “in respect of an injury to or death of a person”.

KIEFEL J: Yes.

MR WALKER: Now, we say that that is entirely apt and purposively plainly must include causes of action notwithstanding they would never have been sued on but for the fact of terrible grievance - - -

KIEFEL J: Quite, that is – yes.

MR WALKER: - - - and all the expressions are terms of art. This has got to be a bright line cut-off. We have to know about people’s rights.

KIEFEL J: I think I understand what you are saying. What you are saying is it is talking about causes of action that can be brought at any time afterwards.

MR WALKER: Yes, all it is directed to - - -

KIEFEL J: It is just that the difference is now that the causation can be shown. It is actually a question of causation rather than damage, because you have identified injury which, if you are correct, at the relevant time is non-negligible and - - -

MR WALKER: Therefore it arose.

KIEFEL J: - - - if that hurdle is overcome, the causation follows.

MR WALKER: Yes, exactly.

KIEFEL J: So the question then becomes simply whether it is negligible or not.

MR WALKER: It would have become if that were an issue. Yes is the answer. We say it is as simple as this. This is non-negligible damage to the cells, that is, non-negligible damage suffered by the person because of the changes in the cells. That is the first step. Now, there is no precedential effect on findings of or characterisation about facts in negligence cases but, by way of an evocative parallel, look at the much earlier and more primitive science as understood by the House of Lords in Cartledge v Jopling, to the same effect. How could you say that the changes are negligible, though they are changes preternaturally doomed to kill you.

BELL J: More than once you have said that there is no contest that the cellular changes were not negligible. I am not sure quite whether that is the way the appellant puts its case. I had understood the appellant has at no stage in the events that have occurred denied that the cellular changes led to malignant mesothelioma.

MR WALKER: That is correct.

BELL J: But for the purposes with which we are concerned, which is whether a cause of action arose as at 1 January 1987, I had understood the appellant’s contention to be that the cellular changes were no more than minimal or negligible, that is, they did not answer the description of being damage sufficient to complete the cause of action. I thought that is why we were here.

MR WALKER: Your Honour, first of all, I do not want to argue this case on some kind of advocate’s concession. That is not my point. I take on and have already put of course this is, by the reasoning I have already adverted to, non-negligible. That is the first thing.

The second thing is we understand – and I apologise for my obtuseness – we understand that our friends certainly say this was not damage within the meaning of the usual formulation of the probanda for the cause of action in negligence. We do understand that. I confess, I have not seen them say of this change – about which there was so much medical evidence, all of which was freighted with the portent of death, all of it – I have not heard them say that was negligible, understandably.

BELL J: As I read it in the way - the passages that are extracted in the judgment of the primary judge, there was a distinction being drawn between the cellular changes and the onset of what was described as malignant mesothelioma.

MR WALKER: In what I might call a context of practicability of proof, wrongly, we submit, that is, conceptually wrongly - - -

BELL J: Yes.

MR WALKER: - - - the other side was saying, look, this poor man could not have proved this before this scheme came into effect and, therefore, it is ridiculous to say a cause of action had arisen, hence resort to epithets from another area altogether, which triggers – used properly – triggers for indemnity policies to fall in, like inchoate, or potential. The kind of matter which led to the argument about liability being a protean expression for the first of the issues in Crimmins in this Court, where the note of argument of Mr Hughes at the end of his submissions, Mr Jackson at the beginning of his submissions, neatly encapsulates the issue which was then decided by this Court, referring what I will call the Hughes version, while, as it were, upholding as orthodox, every integer of the Jackson version.

So, everything that Mr Jackson argued in Crimmins about Cartledge v Jopling remained undisturbed as law. It is just that it did not speak to the use of the word “liability” or “obligation” in that particular transitional provision when the Stevedoring authority went out of existence with people who were silently and unknown to themselves already in the course of suffering terrible diseases.

Now, in our submission, that was really the battleground here. It was not about whether this was looked at in retrospect, whether these changes were the kind of negligible change which had it been detectable and discoverable could not have been sued on, because the law does not care about trifles – that is what that part of doctrine means. Of course they were the kind of thing which the law, had you been able to detect it, would care about, and would say, my goodness, what are your damages – call your evidence about your prospect of a terrible death. The notion that it would have ended up with no damages at all is really quite bizarre.

FRENCH CJ: Well, Mr Watson accepts that the cellular changes constitute an injury for the purpose of section 189.

MR WALKER: Yes, and in our submission, that is why we can put to one side a common law answer – not a statutory answer, a common law answer – to us that says, but you did not have, before this scheme commenced, the non-negligible damage. They say in statutory terms somehow that you did not have a cause of action arising, even though there was an injury. Now, to return to something Justice Kiefel has been asking me about, yes, we do understand that our learned friends have said and still say, that is because we sued for mesothelioma.

One can hardly doubt the way in which the case is put. It is none the worse for that as a pleading. If you have suffered mesothelioma, suing for it would appear to be straightforward. Suing for it, you selecting what it is you say gives you your cause of action does not make it so. The law says your cause of action accrued when you first suffered damage from which the state of affairs to which you point to seek compensation stems. You might be right. It is just before the mesothelioma manifests itself. You might be wrong. It was many years ago when the mesothelial changes occurred.

The science which has been given in evidence over the decades on that point has altered quite markedly. In some cases, by concession, see Crimmins. By concession, it was just before the mesothelioma. So that Crimmins actually went off on something which was not in contest in this Court, an acceptance that the damage was first suffered just before the mesothelioma was symptomatic. There is no precedential value in any of this. It all depends on the evidence and our evidence was to the effect that I have taken your Honours to and summarised in its relevant legal purpose on page 132 of the appeal book.

KIEFEL J: Just returning to – I did not understand Mr Watson to concede that whilst the cellular changes constituted injury that that was the same thing as compensable damage.

MR WALKER: I do not think he - - -

FRENCH CJ: No.

MR WALKER: - - - was asked about that - - -

KIEFEL J: No, we are talking here about - hence his reliance on other cases that perhaps say whether or not it is compensable.

MR WALKER: Again, I am not suggesting any of this goes off on Bar table concessions or anything like that. Doing the best one can to apply these statutory words to what was proved in this case, may I then use the statutory language? Of course, there is a morbid condition, as a matter of ordinary English, required to be resorted to in context by the definition section in this statute, where you have suffered changes to mesothelial cells, apt to result in death. There could not be a better description of a morbid condition.

Now, morbid conditions are, like many diseases, entirely apt to be unknown to the sufferer and entirely apt, depending upon the state of art from time to time, not to be discoverable for the purposes of litigating their consequences. In other words, the Cartledge v Jopling proposition which must be taken to be an assumption and state of law against which this legislation is to be construed.

So that once one has established - it is not by concession but by demonstration from the facts - that there was an injury constituted by a disease including a morbid condition, as a result of these changes in these cells, then one simply asks whether the cause of action upon which my client sued was one in respect of it and, in our submission, it is quite impossible to drive a wedge between the requisite and antecedent changes in mesothelial cells and the mesothelioma which drives the claim for damages. They are not coincidentally or as a matter of mere narrative sequence true of the same person. They are the same thing developing over time, and we were reminded – I will come back to it.

FRENCH CJ: But you do not have to characterise for your case the injury as a disease.

MR WALKER: No, injury will do. I think we gave your Honours notice that we would refer to what Mr Justice Dixon said in relation to this in Smith v Mann [1932] HCA 30; 47 CLR 426. At page 449, and I will not read any of it, one sees the whole of the passage starting about five lines down and in particular the way in which the statute before the Court there dealt with “diseases contracted by a gradual process”, the definition in this case, your Honours, as we have drawn to attention, includes the same notion:

The nature of a disease contracted by a gradual process is such as to make it difficult, and sometimes impossible, to say how far –

et cetera. In our submission, it is clear from the approach taken by his Honour that the whole thing is, as it were, a continuum in a disease of gradual development. It is for those reasons, in our submission - - -

FRENCH CJ: That is in a statutory context of whether the disease was brought about or contributed to by employment during the period.

MR WALKER: Yes. Of course, similar expressions are in this case, to which I will come in a moment. The other passage I want to draw to attention is at 451, the middle of the page:

In many cases of traumatic injury and some cases of disease the state of the patient and the cause of that state are two independent matters. But a present stage in a continuous developing pathological condition can seldom be considered apart from previous stages, and, when it arises out of or has been influenced by some organic effect produced in the human body the consequences of which are not exhausted, the so-called “causes” of the man’s present state may form an inseverable part of the description of his “condition.”

Leaving aside, as it were, the evident intellectual amusement his Honour is taking in eliding distinctions that otherwise the law would require to be kept logically distinct, with great respect, there is wisdom in that understanding that, of course, damage may be manifested by what might be called “the pathological acorn” and does not need to await the full flowering of the full height oak. In our submission, that is exactly what is true in this case and is the subject of medically informed findings of fact at trial and on appeal to that very effect.

Could I remind your Honours that the definition to which you have had your attention drawn includes a disease within injury and that includes within disease a “gradual development”. In our submission, notwithstanding the definition has the sometimes deplorable habit of using the defined term as part of the definition, see injury means a “physical or mental injury”, that is, it is none the worse, in our submission, because the word “injury” naturally lends itself to be applied to what is described by the evidence in this case concerning the cellular changes.

For our purposes then we turn to the terms of art, which are in the statute, by which I mean “cause of action”, thus we are looking for damage before you get to any question of any assessment of damages, and thus we get to the notion of what, in other contexts, has been called accrual. In this context the question is when did it arise? The word is “arose” before the commencement of this section. For the reasons endorsed by the Court of Appeal, that then becomes a very simple proposition.

As I say, the argument against us really was in the guise of a kind of sympathy for our position, what would we have done had we stood up to offer our proof of damage on 31 December 1986, what would we have proved? Assuming we could prove damages to epithelial cells, in our submission, we would then have been able to call doctors to say this bodes very badly for this man. Just as one would say of a man with a broken ankle of a certain kind, this bodes very badly for his mobility 10 years from now. Totally ordinary, Malec v Hutton approach.

However, we apprehend that the real force of the other side’s argument below and here is perceived by them to lie in the fact that in truth, on that day in court, we would not have been able to prove the changes in the cells. We would have simply failed, because although it had happened, we now know, we would not have been able to prove it. To which we say that that is nothing other than the social plight, noted by the House of Lords in Cartledge v Jopling, and is only an artefact of the time and place, and perhaps your resources as a litigant when you come to sue or when, more accurately one hopes, you come to get advice on whether you have a cause of action. That cannot possibly affect the application of the rules as to the making out of the currency and time of the elements of a cause of action in negligence.

Your Honour Justice Keane asked my friend about the contract claim. Now, the pleading is – how shall I say – not the most deliberate step by step Judicature Act enunciation of the basis of a claim, but if one assumes charitably there is a contract claim made and maintained – and I cannot point to many traces of it in the reasons, I am bound to say - - -

FRENCH CJ: Any.

MR WALKER: I cannot point to any, because there is none, yes. I am also bound to point out that in any event there is a limitation plea, so I am not going to take that any further.

Although, of course, in principle in a case where – and by the way, that would only show that advantage or disadvantage depends upon what the context of the argument is, so the earlier we have it accrue then, of course, the more terrible for any limitation period. But damage, of course, is irrelevant to the cause of action in contract, so breach, of course, it is long ago. That is all I wanted to say about that matter.

I have said enough about our second proposition in answers to a number of your Honours’ questions, but it is, in our submission, clear from the statutory wording that we have put inverted commas around in proposition 2 that the legal term of art cause of action plus the phrase “in respect of” together repel any notion of introducing the kind of discoverability which properly teased out is really what informs the argument on the other side that we did not have a cause of action that had arisen before the relevant date.

Now, I am not going to say much in support of proposition 3 beyond what has already been said in written submissions. It is plain to demonstration that Orica is about another instance of the so-called protean concept or term “liability”. It is in the context of working out the imposition of obligation under an indemnity policy. It is to be doubted, with great respect, whether Chief Justice Spigelman’s paragraph 32 should ever be understood as, as it were, speaking generally in the field in relation to the common law on this matter. There is no reasoning advanced for the way in which his Honour put it in conclusion in that paragraph.

It certainly could not be precedential. It is obviously dependent upon evidence of the kind to which I have already drawn attention in our case. In any event, as Justice Bell has pointed out during the course of argument, his Honour’s paragraph 25 really makes it quite inappropriate to read paragraph 32 in that broader sense. We, with respect, suggest that paragraphs 72 and 81 in the President’s reasons, which you will find at [2003] NSWCA 331; 59 NSWLR 14 at 28 and at 30, shows quite clearly that his Honour is examining the matter, as one would expect, for the purposes of construing and applying the words of a policy, and one knows that a policy is meant to mean that a check passes which means, of course, that something has been established for which a check could sensibly pass. It has got nothing to do with cases to which Cartledge v Jopling speaks, for example.

In particular, may I just draw to attention the way in which his Honour in paragraph 72 – that is, Justice Mason at paragraph 72, refers to “the benefit of hindsight” and to the so-called “inchoate” nature of that liability and damage being the “gist” of the action. There is nothing in what then follows in Justice Santow’s reasons, page 31, paragraph 86 and passim, which gives any comfort, with respect, to the notions that Orica has anything to say to the interpretation of the statute in this case. The interpretation of the statute in this case involves the common law, it calls up the common law, because the statute uses the term of art cause of action and asks had it arisen before a date.

Similarly, an understanding of that insurance context is shown by the way in which in Vero, certainly at paragraph 178 and thereafter, in Justice Beazley’s reasons to which attention has been drawn, that context is made crystal clear. There is nothing in those authorities which, in our submission, assists the appellant here.

As to the – I will call them English decisions – in particular, Rothwell and Durham – the BAI (Run Off) Case – the way my learned friend has put it in address is that there is nothing in it against him. But, with respect to my learned friend, in characteristic way he also said there was not much for him except these suggestions concerning certain – what I would call problems of proof.

We would, with respect, go a deal further in relation to those cases. In particular, when one sees – and my learned friend has taken you to all of these parts – the characteristics of a pleural plaque claim, a fear based on pleural plaque claim, to which, for example, Lord Hoffmann or Lord Hope was speaking in Rothwell, paragraphs 7 and 8 and, in particular, paragraph 49 in Lord Hope, a distinction was drawn of a kind which actually tells in our favour insofar as anything can be got from what is now these increasingly alien pieces of jurisprudence in this area and that is that there is nothing that could not be shown that pleural plaques was a sort thing that would lead to something worse whereas the whole point about the cellular changes in our case is that they did have that character.

NETTLE J: Was not that also the distinction between Orica v CGU and your case?

MR WALKER: That is another distinction, yes, yes.

NETTLE J: That is what makes President Mason’s analysis inapplicable to this case, is it not?

MR WALKER: Yes, yes. In our submission, these cases just do not speak - the insurance cases we say are different for another reason altogether. I do not need to repeat myself. They are trying to construe the language of liability and indemnity policy which is after all contractual, commercial policy which speaks to being able to turn up and say I want a cheque. Well, in order to do so, you have got to have the liability.

FRENCH CJ: That might be a convenient moment, Mr Walker. Just before we adjourn, can I take it that the premise, looking at your outline of the contention argument is that the relevant, actionable damage had been suffered as at the coming into effect of section 52 and section 189?

MR WALKER: Yes, that is what I have tried to express in the first sentence of proposition 4, because I - - -

FRENCH CJ: But the extinguishment becomes a matter prejudice based on want of evidence.

MR WALKER: Yes, that is right. Hence, and I do not mean this disrespectfully to my friends at all, hence my choice of language in 4 when I used the word “somehow” and offered “for example” in that sentence. I concede that if we did not have a chose in action then - - -

FRENCH CJ: It is just a limitation question after that.

MR WALKER: Then that is an end of it. The contention only arises, as I say, if somehow section 189 is not available to us although we had suffered actionable damage. I have to put that in because that is what I need for my chose in action for my section 50 meaning.

FRENCH CJ: Well, that raises some interesting paradoxes, I suspect.

MR WALKER: Of course it does.

FRENCH CJ: We can come back at 2.15 pm.

AT 12.50 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

FRENCH CJ: Yes, Mr Walker.

MR WALKER: Your Honours, between my learned friend’s address, Justice Kiefel, in relation to the occurrence of the state of affairs that we characterise as damage, asked in effect what did the science say in relation to the factual foundation and character of that inquiry, that is, when did damage occur? It is to that same matter that the dictum or observations of Mr Justice Dixon, to which I have drawn attention, went, and to complete my reference to the factual record here, your Honours will appreciate that it is to the same effect that we were drawing to your Honours’ attention the passage that commences on page 86 and goes over to page 90 in the trial reasons, and in particular, without reading them, if I could draw to attention the conclusions in [59] and [60] on page 89, but in particular draw to your attention the way in which one of the experts gave evidence, and what the trial judge said about the way that should be understood. On page 88 in paragraph [56], Dr Edwards is quoted at about line 23 or so:

the initial commencement of mesothelioma is probably somewhere between [19]74 and [19]77 when the first changes of the asbestos fibres interacting with the mesothelial cells would have occurred.

Plainly what I might call a continuum model rather than a model of some extraneous event being necessary. His Honour describes that as being the witness describing the stage when changes in the mesothelial cells commenced and not the malignant transformation stage, which of course is correct because on his evidence there is a substantial latency period.

By the way, I have been I think repeatedly referring to Lord Pearce at 779 of 1963 Appeals Cases for the proposition that I intended to be citing Lord Evershed at page 774 about science, but the citation of Lord Pearce at 779 is to the same effect in relation to the characterisation for the purpose of determining when damage had occurred. Your Honours have already had your attention drawn to that passage. I will not read it.

It reflects the possibilities to and fro of characterising such cellular changes as de minimis or not. Obviously enough we embrace the proposition that appealed to his Lordship and which is, in our submission, overwhelmingly the conclusion in the courts below in this case, namely that it was most certainly not something that would fall within the principle de minimis non curat lex and in particular your Honours will notice halfway down 779 his Lordship’s observation:

There is no legal principle that lack of knowledge in the plaintiff must reduce the damage to nothing or make it minimal.

On the other hand, of course, lack of knowledge may mean that for want of the capacity to prove something, you would fail in a case that - - -

NETTLE J: Mr Walker, whilst you are at page 88 of the appeal book and those last couple of lines of the quoted section from the witness’ evidence, those changes are the mesothelial cell changes which, am I correct, you say, can be seen in hindsight to have been such that they would inevitably lead to cancer if the man lived long enough.

MR WALKER: Yes, that is right. In this case, that is what happened, yes.

NETTLE J: That is what happened and that is how you tell that it was so. Does that mean that there was an increase in the risk of death as at that instant if you had known about it?

MR WALKER: It does happen to mean that, yes.

NETTLE J: Yet, that is inconsistent – this is what I am going to ask you - which is at page 96 of the appeal book after the judge refers to the things that were sued for in the last wrap up about lines 49 through 51:

The plaintiff had not suffered-

from any of those things, including amongst those things the last of them, reduced life expectancy as at 1 January 1987.

MR WALKER: In our submission, what matters is the characterisation. That is true, of course, but that – it is inconsistent, we say, properly understood, in the first instance judgment. It is not inconsistent with our argument. We identify the damage as the cellular change.

NETTLE J: I follow that but you do so on the basis that it will, if you know about it, or could say so, inexorably lead to death. The judge seems not to be of the view that it would do so, even though he has had the benefit of hindsight in the previous page.

MR WALKER: I am not so sure. With great respect, that is possibly what is meant by paragraph [70] by reference to the last dot point - - -

NETTLE J: Yes.

MR WALKER: - - -however, it could only be the last - - -

NETTLE J: Yes, certainly only the last.

MR WALKER: Well, sorry, that is not quite right. Restriction on social domestic – everything from malignant mesothelioma to dependency on others seems to be from the first symptoms of mesothelioma.

NETTLE J: Or something pretty close to it. I agree.

MR WALKER: Yes. The last dot point is, for all the reasons I have been arguing, true of the position as at the cellular changes. However, that is not, with respect, how we understand either the statement of claim or his Honour in paragraph [69] understood it. Rather, it was a reference to the reduction of life expectancy and the prospect of imminent death which came about because you had malignant mesothelioma. By the way that would be – I am bound to say – virtually an automatic word processor understanding in these pleadings. It is by reason of the mesothelioma that the – it does not lessen the force of the point that I have been asked to address.

If this were to be understood, as a holding by the trial judge that there had been no reduced life expectancy – I can leave out reference to imminent death - no one would regard 20 or 30 years as imminent - if one could understand that as a reference back to the position which the doctors talked about upon the cellular change then it is simply wrong and it is at odds with what follows from the earlier findings understood as they ought to be by reference to that being non-negligible damage. That is the way we answer that.

BELL J: Is the position at trial that the reports of Professor Allen and Dr Edwards and the supplementary report from Dr Edwards comprised the whole of the medical and scientific evidence, and that neither author was required for cross-examination?

MR WALKER: Yes is the answer, yes. Next, could I briefly turn to the Scottish - my learned friend notes, your Honours are familiar with this, of course, that there were as well some - - -

BELL J: Concessions - - -

MR WALKER: - - - concessions, agreements, consensuses between the parties to which some of which has already been referred to. One was at page 89, beginning at paragraph [60].

KIEFEL J: But, Mr Walker, the notion of inevitability following from the cell changes which occur would assume, would it not, that the cell changes in some people would be different from others if you are going to say there was an increased risk in someone.

MR WALKER: I think rather that - - -

KIEFEL J: Because if you are on the same level playing field, you have to know what the nature and operation of what we call the triggering event is to be able to explain it.

MR WALKER: Among other things – because you have – depending upon what the triggering event is – if it is simply staying alive for a certain period, for example, it is going to be true of everybody who does.

KIEFEL J: I do not think that is what they are referring to though, is it?

MR WALKER: But they do not know what they are referring to, your Honour.

KIEFEL J: That is true.

MR WALKER: They certainly do not know whether it is extraneous. They do not know whether it is endogenous. They do not know whether it is highly peculiar. They do not know whether it is common.

KIEFEL J: Well, put that to one side. Does not your argument assume that – you do not know whether your argument assumes nothing?

MR WALKER: My argument, if it has strength in this regard, has so partly because it is based upon findings of fact, which have both been made and not challenged, and are evidently sensible in light of the medical art, namely, the man with mesothelioma who is exposed to asbestos has got it because of changes to his epithelial cells which “inevitably and inexorably led to the onset of malignant mesothelioma”. That is a factual finding involving no assumption – lots of inference, but very secure inference; well-substantiated inference not challenged.

The fact that it may have turned out differently for another person may mean that if you are talking about a group of people, the notion of risk, which is different when you are referring to a group of people as opposed to a single person, involves the possibility – and here is where assumption might come in – that it may operate differently in different people. All the evidence would rather suggest that that is understood to be the case without any of the mechanisms or explanations being understood.

KIEFEL J: That is the problem, no one knows.

MR WALKER: But that does not mean anything bad for our case - - -

KIEFEL J: But we likewise do not know whether or not when one says “changes to cells” that of itself that inevitably leads to death.

MR WALKER: But that is what has been held in this case inevitably led to his death, that there was a process for which no one other than the defendant is legally responsible. There is no novus actus, there is no other – no contribution, no one has been sued for a so-called trigger, and it is very significant that with their capacities to research and litigate this, the other side does not say there is any significance in the trigger point because for all we know there is more than one trigger and for all we know some occur before, some after, the relevant date. We simply do not know. What we do know in this case – no assumptions, no guesswork, just probabilistic inferences of kind not challenged – is that that is what happened in him.

Now, we only have to make good what happened in him. If the evidence supports such a finding, that is the result. If the evidence does not, by the way, then you get the result as in Brown’s Case, fought a long time ago, relatively speaking, in scientific terms; pneumoconiosis obviously not understood the same way that any practitioner will tell you it is now understood from medical reports in common currency and a dating, if you like, of the damage in legal terms to what is now a much, much later period than evidence in similar cases would reveal. The state of art has moved on.

So, where you have a case like ours where the state of art enables you to say the injury that has resulted in the mesothelioma occurred back then - not at any intervening time – back then with the changes to the cells, then the only question remaining is whether that was within the common law damage for the purpose of providing the last of the probanda for the cause of action. That is why we have been saying it is not really in the contest that it was non-negligible. What appears to be in contest is does it matter for the statute that it would have been difficult of proof for not having been discovered?

NETTLE J: Just before lunch you repudiated Justice Bell’s suggestion that you were contending that whenever anyone gets these mesothelial cell changes, he or she is bound to die if they live long enough. You said you were not contending that.

MR WALKER: I do not need to contend that. I think I also said that it may well be that that is the case. The evidence does not say so.

NETTLE J: If it is not the case though, then one can never say more, until and unless the triggering event occurs, than that there is an epistemological risk that someone who gets these changes will die from them.

MR WALKER: No, you can say backwards - with hindsight you can say once somebody has got it – it is never sensible to talk about a risk for a person when the event has happened.

NETTLE J: No.

MR WALKER: Looking back, you say, “Forget chances; it happened”, and in litigation for causation looking backwards is the way we go. The law has rejected the notion that one is bound to a prospective investigation in relation to causation. A number of other elements positively require prospectivity, such as whatever foreseeability is now understood to be, and duty. But as to causation, you ask what happened. Surprising things can happen and be proved by reason of new state of art which was not appreciated at the time of the events in question.

NETTLE J: But unless you can say by reason of looking back that he was – I beg your pardon. Unless you can say that it is true of everyone who gets these changes that they will inevitably get the cancer, then the fact that you can look back and say he got it does not mean that he was bound to get it, simply that in the events which occurred, something occurred which gave it to him.

MR WALKER: With respect, we would not accept the logic of what your Honour has just put to me. One does not have to say that everyone will get the outcome to say that it was inevitable in the person that did. If you have some with exposure and not outcome, and some with exposure and outcome, you can certainly say of the group that some will and some will not. But of those that did get it, you have not denied the proposition that it was inevitable that they would get it.

BELL J: But that goes to causation.

MR WALKER: But that could be – I am sorry – can I just add one thing to that, I am so sorry - - -

BELL J: Yes, by all - - -

MR WALKER: That is why the word “chance” is used as a kind of a residual bag of unknown matters. To talk about it being pure chance which of those groups suffer and which do not is usually a self-regarding description of our ignorance.

FRENCH CJ: You mean the past is always inevitable?

MR WALKER: No, it does not, but in – no, it does not, in at least one philosophical sense of course it is, but that may be for our purposes a trivial sense. That is not how I am using it. It is not how we understand the Court of Appeal to have used it either.

FRENCH CJ: Can I ask also how you distinguish this from Wardley?

MR WALKER: I do not really distinguish it from Wardley. Wardley has very little to say about findings of fact after the event that attributed the event to a cause.

FRENCH CJ: It is a prospective thing.

MR WALKER: Wardley relevantly is talking about true contingencies, there is no relevant contingency demonstrated on the scientific evidence here at all.

BELL J: But we are not concerned with causation on one view of this.

MR WALKER: That is right.

BELL J: We are concerned with the question of whether a cause of action was in existence arising out of this conceded injury on 31 December 1986.

MR WALKER: That is it.

BELL J: That is a different inquiry to considerations of causation for the purpose of - - -

MR WALKER: Yes, yes, I completely agree - - -

BELL J: So that brings us back – it is not – it brings us back to, I think, your acceptance that your argument carries with it that any person with the mesothelial cell changes has a completed cause of action for whom there is no more than the change in the cell, it is a cause of action for the increased risk of - - -

MR WALKER: No.

BELL J: Well, I am sorry, I thought you had earlier – what it - - -

MR WALKER: No, no – I do not accept - - -

BELL J: All right.

MR WALKER: - - -that our argument entails saying anything about the universe of people with those cellular changes. It may well be – because, for a start, there is no litigation by the universe of people. It is one by one.

BELL J: I understand that, but what - - -

MR WALKER: I am so sorry - - -

BELL J: I am just looking at the position of this individual - 31 December 1986, a concession at trial that he did not acquire malignant mesothelioma until within five years before the onset of his symptoms.

MR WALKER: Yes.

BELL J: On that concession, perhaps on the reading with such evidence as there was about the science, one simply cannot know when in his case the transformation of the cells progressed to a point where you got replication consistent with the development of a malignant condition.

MR WALKER: Well, no, you do not but the evidence does not say that this is what I might call a discrete event, a one-off event rather than the continuum or gradual development that the Parliament has in mind by its use of that expression and Sir Owen had in mind. One of the troubles with the use of language such as “trigger” is that although they are protesting that they do not know what they are referring to, it naturally gives the impression of what might be called a one-off or instant phenomenon, classically, being struck or suffering a particular infection.

Our point is simply this, whatever circumstance, state of affairs, lapse of time, being alive, whatever is involved in the development from the – if you will forgive the tendentious language, the damage cells to the malignancy, first of all, for our plaintiff, all we have to show is, among other things, causation. We show that easily. Second, by the same evidence and reasoning as showed that, on this particular evidence it shows what is called the “inevitable and inexorable” nature of it, that is, after the event, it can be seen that this thing that happened to him led to this and there were not alternative possibilities available to him of a kind that might give rise to the question of risk or chance. No one proposes any other possibility than that what happened.

FRENCH CJ: Is that equivalent to characterisation of the cellular change as initiation of a process?

MR WALKER: Yes, it is, exactly. It is the beginning of a process which, depending on how long you live, in his case produced mesothelioma.

FRENCH CJ: You know the process occurred because you are inferring that from the fact of this disease.

MR WALKER: That is right and that is intensely factual which is why these other cases which have different datings of damage being suffered are usually results of, perhaps you could say artefacts of, the nature of the evidence. Brown is a very good example of just that. Your Honours, that then leads to the question of the contention for which we need leave, it being late.

FRENCH CJ: You have leave to file a contention out of time.

MR WALKER: May it please your Honour. Your Honours, I do not know whether I am making excessive concision worse or not by saying anything, perhaps I - - -

KIEFEL J: It might have been kinder for us to refuse at that point.

MR WALKER: Your Honour, what can I say to that?

FRENCH CJ: We are just interested to hear what you were going to say.

MR WALKER: Thank you, your Honour. Well, it is propositions 4 and 5. You will see that the condition for the premises the Chief Justice asked me about before the adjournment, the premise for the contention is on everything I have been urging, we say, not a proper outcome.

Let me just explain the nature of that premise. If we are wrong about the cause of action being complete, that is, that you could say it arose before the relevant date, if we are wrong about that, then there would be no chose in action and if there is no chose in action, our section 50 argument is not going to work. I think that is a concession and certainly shows why the premise of our contention is very much a fall-back accepting an opposite outcome from the one for which we principally argue.

As I have noted before the break, we do understand that one possible way our friends put the case is that although the cellular damage is not negligible, nonetheless, in statutory terms it was either not an injury or no cause of action in respect of it arose because in the circumstances it could not have been proved on the eve of the scheme coming into effect. One can add to that, and we understand heft is intended to be given to that argument by pointing to the fact that, as I have put it, it is reasoning backwards by scientific inference from the occurrence of the mesothelioma which provides the foundation for the finding that there was that cellular damage.

Well, now, if that argument persuades your Honours then it too involves another premise, namely, that there was a cause of action but that it did not, in statutory terms, answer the description which would have the preserving effect of section 189, that is, there was a chose in action. If that be true then, in our submission, nothing can be suggested in its complete abolition to be of such correspondence in the scheme as to be just terms, leaving the critical question whether section 52 and section 189, thus construed, amounts to an acquisition within the constitutional expression used in section 50 and, as your Honours have seen in our proposition 4, second sentence, the acquisition was of the Georgiadis kind, namely, the obviously and inherently exactly corresponding benefit enjoyed by the defendant in relation to a chose in action which is abolished by law.

KIEFEL J: But does a defendant acquire it?

MR WALKER: In essence, yes. That is Georgiadis reasoning. I am bound to say, your Honour, as a matter of English, no.

KIEFEL J: I am saying the identification of the body which acquires it is not the defendant. I am sorry, I am cutting across your argument but I am just having difficulty seeing how the legislation operates. Usually these arguments are saying that the Commonwealth, or the State, has acquired something because of the operation of their statute.

MR WALKER: Quite so, and Georgiadis is an example of that. The first proposition is that there can be acquisition, though not by the polity who legislates; that is clearly correct. The second proposition is that the word “acquisition” has, for good or ill, moved away from a purely colloquial understanding, and that is for good, bearing in - - -

NETTLE J: Just sometimes; not in Western Mining, but sometimes.

MR WALKER: That is right, your Honour. I am not suggesting that we have, as it were, a phalanx of authorities speaking all with the one voice on this point. However, as an, if I may put it this way respectfully, anthropological observation, the word “acquisition” is not, how shall I say, as other people may understand it. But it is not being distorted; it is being understood according to constitutional context. This is a kind of guarantee or protection, and a chose in action being, again, incontestably a form of property to which the guarantee can apply, a chose in action peculiarly has as its value the measure of the liability that is inherent or intrinsic to what it is.

If the person before the impugned law who was liable becomes, by the impugned law, no longer liable, that person – call it “the defendant” – has thereby benefitted by relief from that liability. In accounting terms, they have achieved an advantage, a monetary advantage.

FRENCH CJ: The corresponding benefit to the extinguishment?

MR WALKER: Yes. We use the expression “and exactly corresponding benefit” – that is, you are no longer liable; therefore, you are spared exactly what it is that you would have been liable to. Why is that an acquisition? It is because in relation to choses in action, it would be, to put it mildly, a most peculiar thing if the only person who could not acquire it was the person relieved by its abolition. What would be the point of the guarantee is that unless you transferred an injured worker’s rights to, say, the Red Cross, who could then sue on them, you would not be running foul of the guarantee because if you simply abolished the cause of action, thereby benefitting the defendant, it would be said the defendant is not going to sue themselves; they have not acquired a chose in action, a right to take action against themselves. That is absurd; therefore, no acquisition.

In our submission, the reasoning in Georgiadis makes it clear that where one is talking about a cause of action, the acquisition means the obtaining of all its benefit. It is for those reasons, in our submission, that in what we do trust is the highly unlikely event that the premise for the contention arises, then the result would lead to the invalidation of sections 52 and 189 in that operation. May it please the Court.

FRENCH CJ: Thank you, Mr Walker.

MR WALKER: I am so sorry, your Honours, I should have drawn to your attention that this is, by the way – just before the break I referred to the English authorities, in particular in relation to the “Fairchild enclave”, as it has been called. Your Honours are probably aware of it, but for the record, one of the latest – I am going to be cheeky enough to call it mea culpas or nostra culpas from Westminster, is in Zurich Insurance v International Energy Group [2015] UKSC 33, and the confessions are, as it were, throughout. There is no particular passage. That is why I described the jurisprudence as bordering on the alien now for us in relation to these common law concepts of the accrual of a cause of action where damages is gist.

FRENCH CJ: Yes, Mr Watson. Mr Watson, we will not need to hear you on the contention point.

MR WATSON: May it please the Court. I appreciate the Court has already corrected this, but contrary to my learned friend’s submission, it has always been our position that the damage here was, in the eyes of the law, negligible. I have used that word negligible, but I will come back to it. Your Honours, may I just point out it was actually the first ground upon which we sought special leave, and it was the first ground of appeal here. The reason why I singled out the word negligible is because we have not described it that way. The way that we have described it throughout has been consistently this way. That whatever happened, the cellular changes, those changes were insufficient in the eyes of the law to provide the necessary element of damage in negligence - - -

NETTLE J: Do you accept that, in hindsight, one can say as a matter of fact that they were bound inexorably to lead to cancer if the man lived long enough?

MR WATSON: Not at all, and quite to the contrary I am going to come specifically to that. So that is the way that we put it, and at the cost of repetition, our point behind that is – and consistent with authorities – is that those cellular changes are symptomless. I could go one about that, but the key to it is they may not lead to anything more serious. That is in the medical evidence. Your Honours, may I say this? A lot has been said about cellular changes. I tried to offer a warning of this earlier on, that by adopting a kind of medical science terminology may make it sound more serious than it is. We suffer cellular changes when we go out in the sun.

A pleural plaque is not just a cellular change. It is a massive cellular change. The cells have actually changed the normal function of what they do and begun to line your lungs with some fibres. That was not thought to be sufficient by the House of Lords in Rothwell to be damage to grant an action in tort.

NETTLE J: But that is not disputed. Mr Walker accepted that. He said that the two run parallel. One might be indicative of the other, but he does not rely on pleural changes. He relies on the mesothelial cell changes which by dint of the subsequent evidence were shown to be productive of the cancer.

MR WATSON: Well, your Honour, that is what I am directing my submission at as well; the changes to the mesothelial cells, the cellular changes which were occurring as a result of inhaling asbestos. Anybody who has inhaled asbestos may or may not suffer those changes.

NETTLE J: Right.

MR WATSON: I will come back to that issue as well. But the point I am trying to make is, just to describe something as a cellular change if it is symptomless and it is not necessarily going to lead to anything more serious, we say is insufficient in the eyes of the law to be damage. In the way that the argument has progressed today, it is fairly clear that it is said that if a cause of action existed as at 1 December 1987, then that cause of action was in respect of those changes to the mesothelial cells. But along the way, with respect, some baggage was picked up and it is very, very tendentious load in the bags. Your Honours had it explained to you that at that time the cause of action would be in respect of those cellular changes which then would carry a risk of developing into something more serious.

There was also a reference to it carrying the potential for adverse psychological effect but they are extremely controversial propositions at present in the law as to whether they could properly be joined to the cause of action. Rothwell is a key case here. When I came, I thought Rothwell was a background case, but in light of the way the argument has developed, it becomes a key case. In Rothwell there were pleural plaque cellular changes but there was also, as each of their Lordships noted, the case that it was evidence of asbestos exposure – of considerable asbestos exposure.

NETTLE J: But there were no mesothilial cell changes of the kind which subsequent evidence tells us were bound to be productive of mesothelioma.

MR WATSON: That issue was never discussed.

NETTLE J: But that is why I said the case was not really on point.

MR WATSON: If one takes Mr Walker’s primary submission, the inevitable, the inexorable submission, then that means that everyone who inhales asbestos must have those mesothelial cell changes.

NETTLE J: But not everyone gets the mesothelial cell changes.

MR WATSON: We do not know that. This is where my learned friend and the Court, at times, has expressed more than a little frustration at the medicine, but it is not the experts’ fault and it is not either party’s fault, it is the fact we do not know. Early in an exchange with the Chief Justice, the Chief Justice or I, one of the two, suggested that it may be the case that you could have two people working alongside each other. We do not know. One might inhale asbestos and have the changes, the other may not. We do not know. We do not even know as a group whether there are a lot or many or few. We do not even know, sitting in here today, about this mythical action which might have been run in 1987 over mesothelial cell changes, whether there is actually any method of knowing that they have occurred in an individual.

The doctors each talk about this as being a near certainty in the reports but it still, as far as political science goes, must be some kind of theory and hypothesis. Maybe it has been proved through rats. Maybe it has been proved through autopsy. But, nevertheless, it is only presently a theory and it is the best theory and it was one against me that was accepted by the courts below. Well, it was the only evidence – both doctors agreed. But the point is that if we are talking now about a person in 1987 suing on the basis “I inhaled asbestos – therefore, it is probably that I have suffered mesothelial cell changes and there is an unquantifiable risk that that may go on”, that is two imponderables built upon each other.

Then, we look at Rothwell. Rothwell was important for this reason. Their Honours were looking at pleural plaques and that was a physical change. What if one adds to it depression, a compensable injury, personal injury? Could you build that on top of the pleural plaques to create a cause of action? The House of Lords said, unanimously, no. You could not aggregate depression consequential upon a non-injury.

That is an important question here because, as my learned friend put it, in response to your Honour Justice Gageler’s question about what would the damages be – they would be nil – the point was made, no, there might have been other things which could have been proved. To Justice Nettle, it was said that the last bullet point, the reduction in life expectancy, might be the item. That is not the case which was presented below and now we are looking as though that is a cause of action – it is a very large issue.

Whether that is or is not a cause of action by itself is a very large issue. You cannot sue for risk – that is Gregg v Scott in the United Kingdom, but also we respectfully rely as we have in writing upon Wardley. I said I would come back to the inevitable inexorable. I have dealt with that slightly, but the point is that here the medical evidence does not say that. That seemed to be better explained as the Court of Appeal with a kind of rhetorical flourish, and I mean no hurt by that, but saying, in this man you can trace it. There is no causation issue, there are not multiplicity of defendants, there are not alternative sources of asbestos, there is no other way, and that is what happened. It may be no more than saying that in this individual case that judgment can be made.

If it is saying more – that is, that these matters progress inevitably or inexorably to this result – then, their Honours were way outside the medical evidence, which did not say that. In fact, it is worth looking just against at the appeal book at page 89, about what the state of the evidence was, at least at the trial. I know your Honours have seen this before, but it is important to my case. In page 89 of the appeal book, paragraph [60]:

The plaintiff concedes that it would not have been possible, immediately prior to 1 January 1987, to state that the changes . . . would probably lead to the development of malignant mesothelioma.

NETTLE J: That does not get you – that is just a problem of proof. The question is whether it would have been possible if the means of proof had been available to say as a matter of fact that they would inevitably lead to malignancy.

MR WATSON: My next point – may I say, with respect, it was this. There was a debate before your Honour Justice Bell and Mr Walker about that. Was that merely a statement of the state of medical evidence, or was it merely an agreement? Whatever it be, in light of the evidence which is here, it must be a statement of fact, an incontestable statement of fact.

That may be because of a problem with the medical evidence. It might be because of something individual to Mr Zabic. I doubt it. There would have been some other indication of that. But whatever be the case, that concession encapsulates the state of the evidence. I appreciate at this stage your Honours again hearing me put up the evidence as being a problem and I appreciate that in this area many defendants have gone to hide behind the state of the medicine – I might have put these submissions once or twice myself – in respect of mesothelioma claims.

The point is that the evidence is the evidence. It does not rise as high as Mr Walker contends and quite frankly it was a noble attempt to adjust for deficiencies in the evidence which has led to the Fairchild enclave which that case my learned friend just passed up to your Honours shows has been little short of a disaster.

KIEFEL J: Mr Watson, is this a correct approach to the – is this a correct inquiry? Even with the fact of the later onset of malignant mesothelioma, is more required to show that the cell damage which was injury meant that the onset of that condition was inevitable?

MR WATSON: Yes.

KIEFEL J: So we are then back in the realm of the trigger and what that means, and here we have something of a dearth of medical evidence.

MR WATSON: There is also a problem with that. My learned friend was properly critical of the expression “trigger”. Where did the doctors get it from? Well, they are the ones who came up with it, and that was the evidence; there is something - - -

KIEFEL J: You are relying on that just to say, more is required than cell damage. Of itself, you cannot make the automatic connection between that – you cannot assume that at the point of cell damage that even with the fact of it having occurred here that it was the cell damage which caused it. You say that they are saying that more is required.

MR WATSON: That is the only reading, we would respectfully submit, of the evidence that there seemed to be some intervening event. My learned friend said it might simply be living. That might be right but we do not know.

FRENCH CJ: You accept that the cell damage initiated a process which led to the disease.

MR WATSON: In this case, yes. Just excuse me. Your Honours have already seen that. It is Professor Allen who was the one who spoke of the trigger.

KIEFEL J: Then there is a question of who is required to show it.

MR WATSON: We would respectfully submit in something like this it always lies with the plaintiff to establish that as a bare minimum. There would be no passing of a burden like that here. Your Honours, that is my first submission in reply. I would say there is only four. The second is this, is that I made a concession on injury by which I stand, but I did, your Honours, make that on the basis that it came through the extended definition of injury, that is, incorporating disease. There is an important reason for that and I will come to it, but may I say this about the concession. The concession of the injury does not carry with it a concession that that injury was sufficiently serious to ground the tort of negligence, but your Honours have heard me on that.

To your Honour the Chief Justice may I make this submission – to all of your Honours but it is in response to one of the Chief Justice’s questions relating to the operation of section 189. This may involve the notice of contention. In that little schedule that we handed out, there is, of course, section 189 which attaches to a cause of action, et cetera, and if you work backwards the cause of action was that cause of action which we say otherwise extinguished by section 52. Then can I take your Honours to the definition of “injury” and “disease”. “Injury” has that broader meaning to include “a disease”. “Disease” has that very broad meaning by itself – I mean “morbid condition” speaks for itself – but the point I make your Honours is, it says:

whether contracted before or after the commencement of Part 5.

That is section 52, it falls into Part 5. So, it did not matter, for the purposes of the operation of the section 52 extinguishment, whether that contraction of the disease – by that, presumably the changes in the mesothelial cells – whether that occurred much earlier in time or much more recently. If it occurred in 1974, it was still picked up on that definition of section 52.

Your Honours, the final point that I was going to make – maybe I have already said this but there are, we would respectfully submit, some large consequences in accepting my learned friend’s attractively put argument. Your Honour Justice Kiefel asked a question that if the respondent’s proposition is accepted, could that alter the way in which statutes of limitation operated. Mr Walker properly quickly considered that it would. Your Honour Justice Keane then said, but any difficulty in a post-Cartledge v Jopling era is covered by the fact that there are amendments which allow for extensions. With respect, that is absolutely correct, but limited to the field of personal injuries.

What we are dealing with here now is something which operates more broadly than just purely asbestos and mesothelial cells and mesothelioma. But it does look as though it is any agent which, in the field of tort, can have some sort of adverse effect on cells in a human and it could operate very broadly. It is not yet predictable as to how that may operate in other areas, but may I say this? We see no reason why your Honours would think that it would only operate in the field of personal injury.

It might be the case, as I said before, that there are a number of products in the area of product liability – things which might have

something, some trivial flaw or problem in it, and all of a sudden the limitation period is set well back in time with some remarkable consequences. The jurisprudence of Australia has carefully developed around discoverability in terms of setting times for the limitation period to run. A finding that a change as minor as, as slight as this, as symptomless, change which may not give rise to any other problem, gives rise to a cause of action may have effects in other areas. Never put a floodgates argument to the High Court, but I am going to. It would seem as though it may have a fairly dramatic effect on the way in which - - -

FRENCH CJ: Floodgates are often closed by statute anyway, are they not? That is what we are looking at.

MR WATSON: I will not say any more. Times change; science changes. It may well come to a point where we know a great deal more about this than we do now. It was not that long ago that people spoke about a single fibre causing mesothelioma, and then in some ways, some - - -

FRENCH CJ: That informed Fairchild, did it not?

MR WATSON: Then it went away, and then some have flirted with it again. Your Honours, they are my submissions.

FRENCH CJ: Yes, thank you, Mr Watson. The Court will reserve its decision, and adjourns until 10.15 tomorrow morning.

AT 3.05 PM THE MATTER WAS ADJOURNED