Rio Tinto under fire for High Court asbestos appeal

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.

Image: ABC

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