Rio Tinto loses court appeal against Australian asbestosis ruling
Published by MAC on 2015-08-13Source: ABC News, Australia Mining
Rio Tinto loses court appeal against asbestosis compensation ruling to dying worker Zorko Zabic
By James Oaten and Elizabeth Byrne
ABC News
12 August 2015
The High Court has thrown out an appeal by mining giant Rio Tinto against an asbestos compensation claim, setting a precedent for the Northern Territory.
Zorko Zabic, 74, worked at the Gove alumina refinery in the 1970s cleaning asbestos from pipes, and was diagnosed with mesothelioma after suffering chest pains early last year.
In January, the Supreme Court had ruled Mr Zabic developed the malignant mesothelioma as a result of exposure to asbestos dust and negligence by the mine operators, Alcan Gove, which has since been bought by mining giant Rio Tinto.
But the court ruled against the claim because the symptoms emerged after the Workers Rehabilitation and Compensation Act, which prevents such compensation claims being made in the courts after 1987.
This was overturned by the NT Court of Appeal in March.
"The appellant sustained an injury of the kind defined in the act during and following his inhalation of asbestos fibres," the Court of Appeal ruling said.
"That damage inevitably and inexorably led to the onset of malignant mesothelioma."
In rejecting Rio Tinto's latest challenge, the High Court has upheld the Court of Appeal decision.
High Court sets precedent
The arguments submitted to the High Court centred on whether the injuries suffered by Mr Zabic occurred before 1987, when the Workers Rehabilitation and Compensation Act started.
Rio Tinto argued the claim for damage should be covered by the statutory workers' compensation scheme, rather than through common law.
In submissions, Rio Tinto argued that mesothelioma was not contracted the moment the fibres entered the lungs.
"The decision of the NT Court of Appeal was made in error," Rio Tinto's submission said.
"As at 1 January 1987 [Mr Zabic] had suffered some cellular changes - but these were dormant and were likely to remain dormant."
"All that had accrued as at 1 January 1987 was a risk that Mr Zabic would contract mesothelioma."
Mesothelioma symptoms often emerge many years after asbestos fibres enter the lungs.
Irrespective of the High Court result, Rio Tinto was required to pay Mr Zabic $425,000 in compensation.
'Disappointed with the outcome': Rio Tinto
In a statement issued shortly after the court's decision, Rio Tinto said "our deepest sympathies remain with Mr Zabic and his family".
"We accept the decision of the High Court, and whilst disappointed with the outcome, are grateful that the matter has now been resolved for all involved. We will wait to review the detailed judgement of the High Court to understand the reasoning behind the decision," the statement reads.
"This case was not about trying to deny Mr Zabic's ability to access compensation, as he has always been able to seek compensation through the Northern Territory workers compensation scheme.
"The reason we pursued this matter was simply to confirm what has been widely understood to be the correct application of the relevant Northern Territory legislation, that claims such as Mr Zabic's should be made under the statutory workers compensation scheme rather than the common law."
A 'victory for humanity'
Roger Singh from Shine Lawyers, who represented Mr Zabic, said the court decision would have widespread implications in the NT.
"Today's decision is a win for workers, a win for their families and a win for humanity," Mr Singh said.
"This decision will pave the way for the many asbestos victims in the Northern Territory who have previously been denied justice to come forward and seek redress for themselves and their families," he said.
He said workers in the NT injured prior to January 1987 would now be allowed to use common law to get fair and reasonable entitlements and compensation, without having to rely only on the existing workers' compensation scheme.
Rio Tinto challenges asbestos compensation ruling for former Gove refinery worker
By James Oaten
20 May 2015
A former NT worker dying from asbestos-related disease has declared the battle is not yet over, after a court allowed mining giant Rio Tinto to challenge a compensation ruling.
Zorko Zabic, 74, worked at the Gove alumina refinery in the 1970s cleaning asbestos from pipes and was diagnosed with mesothelioma after suffering chest pains early last year.
He now is expected to have only a few months to live.
In March, Mr Zabic won his case against Rio Tinto, who bought the mine from the former operators Alcan Gove, after the Court of Appeal ruled the disease was contracted the moment asbestos fibres entered his lungs.
The High Court has now allowed Rio Tinto to challenge that ruling, but still required the company to pay Mr Zabic compensation of $425,000 in compensation.
"This has been a long hard battle for me and my family but I had to do what was right," Mr Zabic said in a statement.
"Not only for myself but for other victims of asbestos who, up until now, would have been denied access to justice."
The High Court case will set a precedent for asbestos victims in the Northern Territory.
In January, the Supreme Court ruled Mr Zabic developed the cancer as a result of exposure to asbestos dust and negligence by the mine operators Alcan Gove.
But the court ruled against the claim because the symptoms emerged after the Workers Rehabilitation and Compensation Act came into force in 1987.
In March the Court of Appeal overturned that decision, opening the door for Northern Territory asbestos victims to launch legal action, irrespective of when their symptoms first emerged.
Lawyers representing Mr Zabic say they will continue the fight so other asbestos victims have legal avenues.
"An epic battle has been won by Mr Zorko Zabic and his family, but the war is not yet over," partner at Shine Lawyers Roger Singh said.
"The torch has been handed over for us to continue the fight and the decision was made in the High Court to allow the appeal, and we respected that.
"In the event a determination is made which support the findings of the Court of Appeal in the Northern Territory that will then entitle victims of asbestos disease in the Territory to seek justice."
In a statement, a spokesman for Rio Tinto said claims such as Mr Zabic's should be resolved through the NT workers compensation scheme.
"Our thoughts are with Mr Zabic and his family during this extremely difficult time, and we have paid compensation in keeping with the Court of Appeal finding," a Rio Tinto spokesman said.
"We have never sought to deny Mr Zabic access to fair compensation but simply to clarify the correct process for seeking it.
"Rio Tinto remains of the view that legislation in the Northern Territory requires claims such as Mr Zabic's to be resolved through the workers compensation scheme, which has been specifically designed to resolve workplace injuries including relating to asbestos, and provides more timely and certain outcomes than common law action."
The High Court case will be heard in August.
Rio Tinto under fire for High Court asbestos appeal
Ben Hagemann
Australia Mining
20 May 2015
The CFMEU has urged Rio Tinto to drop their new High Court challenge to a controversial asbestos disease compensation case.
Following the March ruling in favour of Zorko Zabic, a former worker at the Gove refinery who developed mesothelioma through exposure to asbestos products during maintenance tasks, Rio Tinto have launched a challenge against the common law claim.
Zabic was exposed to asbestos fibres during his employment at Alcan Gove (later purchased by Rio Tinto), but was not diagnosed with mesothelioma until January 2014, 30 years after the exposure period from 1974 to 1977.
Changes to workers compensation legislation in the Northern Territory in 1987 abolished workers' right to make a common law claim for injury, meaning Zabic had to lodge a claim prior to that date to be eligible to lodge a common law claim.
However Zabic's representation Shine Lawyers maintained that his entitlement to a common law claim remained intact as the inhalation of asbestos fibre took place before 1987, which was upheld in the Darwin Court of Appeal judgement in March.
On top of compensation, Rio Tinto also provided an undertaking to the court to pay Zabic's legal costs.
On his successful appeal for compensation Zabic said in a statement, "This has been a long hard battle for me and my family but I had to do what was right."
"Not only for myself but for other victims of asbestos who, up until now, would have been denied access to justice."
A spokesperson for Rio Tinto said it was the company’s view that claims such as Zabic’s should be resolved through the workers’ compensation scheme “which has been specifically designed to resolve workplace injuries including relating to asbestos, and provides more timely and certain outcomes than common law action”.
“We believe the Court of Appeal’s decision is inconsistent with the intention of the legislation and of previous Court decisions across Australia,” the spokesperson said.
“Although Rio Tinto does not take this step lightly, it is important to seek clarity from the High Court of Australia for all parties involved in the workers compensation process, including people who may seek to access payments, companies operating in the Northern Territory, insurers and the Northern Territory Government, and to ensure there is clear law on this important area.”
The spokesman said Rio Tinto understood that this was a difficult time for Zabic and his family, and had already paid the $425,000 in compensation in keeping with the March Court of Appeal finding.
“We will ensure Mr Zabic and his family are supported appropriately, regardless of the outcome of any further legal process,” Rio Tinto’s spokesperson said.
“While Rio Tinto did not own or operate the Gove site when Mr Zabic was employed in the 1970’s, we have always been committed to resolving this matter fairly and promptly as the current owner of the site.
“Importantly, we have never sought to deny Mr Zabic access to fair compensation but simply to clarify the correct process for seeking it.”
The CFMEU has now accused the major miner of seeking to prevent future asbestos injury claims by overturning the Zabic appeal.
CFMEU national secretary Michael O’Connor said the Zabic ruling showed that the Northern Territory’s workers’ compensation legislation was inadequate as the 1987 statute of limitations did not allow for timelines associated with asbestos-related diseases.
“It [the Zabic appeal] has opened the door for other workers, including other Gove refinery workers, to achieve compensation through common law,” O’Connor said.
“Rio Tinto should immediately drop its cynical challenge to this ruling and accept the rights of asbestos victims to pursue compensation claims through all legal avenues available to them.”
The CFMEU has launched a petition calling on Rio Tinto to drop the High Court challenge.
In January it was reported that Zabic had an estimated six months to live.
In March the NSW Court of Appeal dismissed BHP's appeal against the $2.2 million compensation payout ruling for mesothelioma sufferer Steve Dunning, who was exposed to asbestos at the Newcastle steelworks in the 1970s.