CSR Limited & Anor v Thompson; Thompson v CSR Limited & Anor

CITATION : CSR Limited & Anor v Thompson; Thompson v CSR Limited & Anor [2003] NSWCA 329 HEARING DATE(S) : 31/10/03 JUDGMENT DATE : 26 November 2003

JUDGMENT OF : Handley JA at 1; Sheller JA at 2; Ipp JA at 3 DECISION : (1) Appeal and application for leave to cross-appeal dismissed (2) By consent of the parties costs are to be dealt with by written submissions after judgment on the appeal and application for leave to cross-appeal. Accordingly, respondent to file written submissions on costs within 14 days and the appellants to file their response within 14 days after receipt of the respondent's submissions.

CATCHWORDS : NEGLIGENCE - Asbestos-related disease - Whether trial judge wrongly allowed Sullivan v Gordon damages - Whether appellants should be granted leave to reargue Sullivan v Gordon - Whether there is an overlap between damages under the Wrongs Act 1936 (SA) and Sullivan v Gordon damages - CONSEQUENTIAL MENTAL HARM - Whether respondent can claim damages for fear of suffering from a future disease - Parasitic claims - When is the cause of action complete for mental trauma. D Civil Law (Wrongs) Act 2002 (ACT) ss 34(1), 34(3), 35(2) Civil Liability Act 2002 (NSW) ss 32(1), 32(3), 33 LEGISLATION CITED : Civil Liability Act 2003 (Tas) ss 34(1), 34(3), 35 Civil Liability (Amendment) Act 2003 (WA) ss 5P(1), 5P(3), 5Q (not yet proclaimed) Dust Diseases Tribunal Act 1989, s 32(1) Wrongs Act 1936 (SA), ss 33(1), 33(2) Brown v Willington [2001] ACTSC 100 Cartledge v E Jopling and Sons Limited [1963] AC 758 Consolidated Rail Corporation v Gottshall 512 US 532 (1994) Diamond v Simpson (No 1) (2003) Aust Torts Reports 81-695 Easther v Amaca Pty Limited [2001] WASC 328 EM Baldwin & Son Pty Ltd v Plane (1998) 17 NSWCCR 434 Griffiths v Kerkemeyer (1977) 139 CLR 161 Grincelis v House (2000) 201 CLR 321 John Pfeiffer Pty Limited v Rogerson (2002) 203 CLR 503 Kars v Kars (1996) 187 CLR 354 Kite v Malycha (1998) 71 SASR 321 CASES CITED : Metro-North Commuter Railway Company v Buckley 521 US 424 (1997) Napolitano v CSR Limited (unreported, WASC, 30 August 1994) Norfolk and Western Railway Company v Ayers (Supreme Court of the United States, No 01-963, unreported 10 March 2003) Read v Great Eastern Railway Company (1868) LR3QB 555 Scarcella v Lettice (2000) 51 NSWLR 302 Segal t/as Segal Litton & Chilton v Fleming (2002) NSWCA 262 Sloan v Kirby (1979) 20 SASR 263 Sturch v Willmott (1997) 2 Qd R 310 Sullivan v Gordon (1999) 47 NSWLR 319 Tame v New South Wales (2002) 191 ALR 449 Thorne v Strohfeld (1997) 1 Qd R 540 Wardley Australia Limited v Western Australia (1992) 175 CLR 514 Weinsert v Schmidt (2002) 84 SASR 3073 (CA 40354/03) CSR Limited (Appellant) Midalco Pty Limited (Formerly known as Australian Blue Asbestos Pty Limited) (Second Appellant) PARTIES : John Leonard Thompson (Respondent) (CA 40445/03) John Leonard Thompson (Claimant/Cross Appellant) CSR Limited (First Opponent/First Cross Respondent) Midalco Pty Limited (Formerly known as Australian Blue Asbestos Pty Limited (Second Opponent/Second Cross Respondent) FILE NUMBER(S) : CA 40354/03; 40445/03 (CA 40354/03) D F Jackson QC/C A Goodman (Appellants) COUNSEL : M Joseph SC/J Catsanos (Respondent) (CA 40445/03) M Joseph SC/J Catsanos (Claimant/Cross Appellant) D F Jackson QC/C A Goodman (First & Second Opponents/First & Second Cross Respondents) (CA 40354/03) Windeyer Dibbs (Appellants) SOLICITORS : Alex Stuart & Associates (Respondent) (CA 40445/03) Alex Stuart & Associates Claimant/Cross Appellant) Windeyer Dibbs (First & Second Opponents/First & Second Cross Respondents)

LOWER COURT Dust Diseases Tribunal JURISDICTION : LOWER COURT DDT 399/02 FILE NUMBER(S) : LOWER COURT O'Meally P JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40354/03 CA 40445/03 DDT 399/02 HANDLEY JA SHELLER JA IPP JA

Wednesday 26 November 2003 CSR LIMITED & ANOR v JOHN LEONARD THOMPSON JOHN LEONARD THOMPSON v CSR LIMITED & ANOR

FACTS Between 1960 and 1963, the respondent was employed in a factory owned and operated by the second appellant where he was exposed to and inhaled asbestos dust and fibre. The first appellant supplied asbestos to the second appellant. In June 2002 the respondent first began to experience symptoms of mesothelioma. In August 2002 a diagnosis of malignant mesothelioma was made. The parties agreed that the respondent is likely to die from the mesothelioma on 13 February 2004. The appellants admitted liability to the respondent for damages, recoverable at law, caused by the mesothelioma.

O'Meally P held that the respondent was entitled to damages in the amount of $465,899.49. Included in this sum was the amount of $165,480, being Sullivan v Gordon (1999) 47 NSWLR 319 damages for the respondent's loss of capacity to care for his disabled wife after his death. The appellants appeal on the ground that O'Meally P wrongly allowed Sullivan v Gordon damages and they seek leave to re-argue Sullivan v Gordon. O'Meally P dismissed a claim made by the respondent for damages arising out of the fear of suffering mesothelioma that he experienced before he in fact contracted the disease. The respondents seek leave to cross-appeal against this finding. HELD per Ipp JA (Handley JA and Sheller JA agreeing)

1. The appellants should not be granted leave to re-argue Sullivan v Gordon in this Court. It would be undesirable for this Court, so soon after a specially constituted five judge bench has sought to resolve the issue, to allow the question to be re-opened.

2. There is no potential for overlap between the claim for Sullivan v Gordon damages made for the respondent's loss of capacity to care for his disabled wife after his death, and any claim that might later be brought by his wife under s 33 of the Wrongs Act 1936 (SA) because s 33 does not entitle a wife to recover damages incurred after the death of her husband: Sloan v Kirby (1979) 20 SASR 263 at 276 to 277 and Kite v Malycha (1998) 71 SASR 321 at 352

3. There is room for potential overlap between Pt 2 of the Wrongs Act 1936 (SA) (which legislates for Lord Campbell's Act type provisions) and Sullivan v Gordon damages. The overlap might occur if a plaintiff, who was awarded Sullivan v Gordon damages, applies those damages otherwise than in connection with the provision of care for his wife, and then, upon his death, his wife claims damages for loss of support under Pt 2 of the Wrongs Act. How such a situation is to be resolved is not yet settled. There is, however, no potential for such an overlap in the instant case, as the claim is not brought under Pt 2 of the Wrongs Act.

4. In the circumstances, there is no reason why s 33 of the Wrongs Act should affect the common law recognition of a Sullivan v Gordon head of damages. The Cross-Appeal: Fear of future disease

1. A cause of action in negligence is only complete when compensable harm is established; Scarcella v Lettice (2000) 51 NSWLR 302 at 306.

2. The law only recognises claims for mental trauma, not involving a recognised psychiatric injury, when the mental trauma is associated with physical harm caused by the negligence of the defendant (parasitic claims). The only justification for regarding particular claims as parasitic and recoverable is policy: McGregor on Damages at para 223.

3. There is no reason by way of principle or policy that justifies holding that a plaintiff, claiming damages for personal injuries caused by negligence, can recover damages for fear of contracting a disease before he in fact sustains that disease and suffers any recoverable damage. The specific policy manifest by the Civil Liability Act 2002 (NSW) and other statutory enactments, and the general policy, discussed in Tame v New South Wales (2002) 191 ALR 449, in regard to claims for emotional distress not constituting psychiatric injury, militates against recognising such a claim.
4. In the present case, the respondent's cause of action became complete in August 2002 when the diagnosis of mesothelioma was made. Accordingly, it cannot be said that the fear was experienced after the completion of the cause of action. Orders
5. The appeal and application for leave to cross-appeal are dismissed.
6. By the consent of the parties, costs are to be dealt with by written submissions after judgment on the appeal and application for leave to cross-appeal has been given. Accordingly, the respondent is to file written submissions on costs within 14 days and the appellants are to file their response within 14 days after receipt of the respondent's submissions.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40354/03 CA 40445/03 DDT 399/02

HANDLEY JA SHELLER JA IPP JA

Wednesday 26 November 2003 CSR LIMITED & ANOR v JOHN LEONARD THOMPSON JOHN LEONARD THOMPSON v CSR LIMITED & ANOR Judgment 1 HANDLEY JA: I agree with Ipp JA. 2 SHELLER JA: I agree with Ipp JA. 3 IPP JA: This is an appeal and an application for leave to cross-appeal on "points of law" (under s 32(1) of the Dust Diseases Tribunal Act 1989) against a judgment of O'Meally P in the Dust Diseases Tribunal. 4 Between 1960 and 1963, the respondent was employed in a factory owned and operated by the second appellant. He was there exposed to and inhaled asbestos dust and fibre. During that period the first appellant supplied asbestos to the second appellant. 5 In June 2002 the respondent first began to experience symptoms of mesothelioma. In August 2002 a diagnosis of malignant mesothelioma was made. The parties agreed that the respondent is likely to die from the mesothelioma on 13 February 2004. 6 The appellants admitted liability to the respondent for damages, recoverable at law, caused by the mesothelioma. 7 O'Meally P held that the respondent was entitled to damages in the amount of $465,899.49. Included in this sum was the amount of $165,480, being the respondent's loss of capacity to care for his disabled wife. This sum was awarded even though the respondent had - in the past - provided such care gratuitously. This head of damages is commonly known as Sullivan v Gordon damages, following Sullivan v Gordon (1999) 47 NSWLR 319 where damage of this kind was held to be recoverable. 8 Sullivan v Gordon held that this head of damages is related to damages for gratuitous care awarded in accordance with Griffiths v Kerkemeyer (1977) 139 CLR 161. That is to say, the loss is loss of capacity rather than financial loss as such. 9 The appellants appeal on the ground that O'Meally P wrongly allowed Sullivan v Gordon damages. They rely on two grounds of appeal. The first ground is simply that Sullivan v Gordon was wrongly decided. The second ground is based on the proposition that a State statute, the Wrongs Act 1936 (SA), alters the common law as applied in Sullivan v Gordon. The South Australian Wrongs Act is relevant, as O'Meally P held that "the negligence in respect of which the [respondent] sues occurred wholly within the State of South Australia". Accordingly, the substantive law of South Australia applies in determining the respondent's rights: John Pfeiffer Pty Limited v Rogerson (2002) 203 CLR 503. The respondent submits that s 33(1) of the Wrongs Act alters the common law of Australia, insofar as it applies in South Australia, in a way that precludes the application of Sullivan v Gordon. 10 I turn to the first ground of appeal. 11 The appellants submit that the decisions of the High Court since Griffiths v Kerkemeyer suggest that the principle applied in that case should not be extended: Kars v Kars (1996) 187 CLR 354 and Grincelis v House (2000) 201 CLR 321. See also Diamond v Simpson (No 1) (2003) Aust Torts Reports 81-695. They draw attention to the fact that Sullivan v Gordon was not followed by a majority of the Full Court of South Australia in Weinert v Schmidt (2002) 84 SASR 307; that being particularly relevant as (for the reasons stated) the substantive law of South Australia applies. 12 In my view, however, the appellants should not be granted leave to re-argue Sullivan v Gordon in this Court. In that case a five judge bench was specially constituted to determine the issue. The judgment of the Court, in effect, followed the decision of the Queensland Court of Appeal in Sturch v Willmott (1997) 2 Qd R 310. It has since been followed in Western Australia (Easther v Amaca Pty Limited [2001] WASC 328) and in the ACT (Brown v Willington [2001] ACTSC 100). In my view, it would be undesirable for this Court, so soon after a specially constituted five judge bench has sought to resolve the issue, to allow the question to be re-opened. Accordingly, for this policy reason, I would not grant leave to the appellants to argue that Sullivan v Gordon is wrong. It does not, of course, follow that this necessarily means that I think that Sullivan v Gordon is correct. 13 I turn to the second ground. 14 Section 33 of the South Australian Wrongs Act provides: "33(1) Where a person causes injury to another by wrongful act, neglect or default, he shall (whether or not the injury results in death) be liable in damages to the wife of the injured person for loss or injury suffered by her as a result of the loss or impairment of the consortium of husband and wife. (2) The damages shall be assessed in the same manner as upon a claim by a husband for damages in tort in respect of loss or impairment of consortium". 15 The appellants submit: "The presence of the statutory entitlement of the wife to sue militates against the extension, in South Australia, of the spouse's entitlement to damages along the lines adopted in Sullivan v Gordon ". 16 The appellants had difficulty in articulating why s 33 should affect the reasoning in Sullivan v Gordon. It seems to me that the only possible relevance that s 33 might have is that, in certain circumstances, it might give rise to double payment by a defendant. 17 The respondent, however, drew attention to Sloan v Kirby (1979) 20 SASR 263 at 276 to 277 and Kite v Malycha (1998) 71 SASR 321 at 352 where it was held that s 33 did not entitle a wife to recover damages after the death of her husband. That is because, in terms of s 33(2), the damages of the wife are to be assessed "in the same manner as upon a claim by a husband for damages in tort in respect of loss or impairment of consortium". The Sullivan v Gordon damages awarded by O'Meally P were for the period after the notional death of the respondent. Accordingly, there is no potential for overlap between the claim for such damages made by the respondent and any claim that might later be brought by his wife under s 33 of the Wrongs Act. 18 It seems to me, nevertheless, that there is room for some potential overlap by reason of Pt 2 of the Wrongs Act 1936 (SA) (which legislates for Lord Campbell's Act type provisions). The overlap might occur in this way. During his lifetime a plaintiff might claim and be awarded Sullivan v Gordon damages. He might then apply those damages otherwise than in connection with the provision of care for his wife. Upon his death, his wife might then claim damages for loss of support under Pt 2 of the Wrongs Act. 19 How such a situation is to be resolved is not yet settled. It may be that, should consecutive suits arise in the circumstances postulated, the second claim should be reduced to the extent necessary to avoid double recovery (see Thorne v Strohfeld (1997) 1 Qd R 540 at 542 to 543 and Read v Great Eastern Railway Company (1868) LR3QB 555). It is, however, unnecessary to comment further on this question. It was not raised by counsel for any of the parties and does not arise in the present case. There is no suggestion of an overlap or double counting in regard to the respondent's claim. 20 In the circumstances, I see no reason why s 33 of the Wrongs Act should affect the common law recognition of a Sullivan v Gordon head of damages. I would dismiss the second ground of appeal. 21 I turn now to the application for leave to cross-appeal. 22 This application concerns O'Meally P's dismissal of a claim made by the respondent for damages arising out of the fear of suffering mesothelioma that he experienced before he in fact contracted the disease. 23 The facts found by his Honour relating to the damages claimed for fear are sparse. His Honour observed that the respondent had a friend and an uncle who died of asbestos disease, and stated: "Following their deaths, and because he considered his exposure to asbestos to be at a level greater than theirs, he had a fear of contracting mesothelioma or another asbestos related disease. … The onset of his fear ante-dated the contraction of mesothelioma by something in the order of 14 years". 24 The respondent's fear did not give rise to a recognisable psychiatric illness. 25 Mr Joseph SC, who together with Mr Catsanos, appeared for the respondent, put the case for the respondent in two ways. 26 Firstly, he submitted that from the moment when the respondent's cause of action was complete (that is, in August 2002 when mesothelioma was diagnosed) the respondent was entitled to recover all damage, of whatever kind, flowing from the appellants' negligent acts, irrespective of whether the damage was incurred before or after the cause of action was complete. 27 In other words, Mr Joseph submitted that, once the respondent was diagnosed as having malignant mesothelioma, he suffered physical harm and his cause of action was complete. That being so, he is entitled to recover damages for mental harm even though the mental harm was experienced before the physical harm was sustained, was unconnected to the physical harm, and did not involve a recognised psychiatric illness. 28 According to Mr Joseph, this argument does not rest on the mental harm being "parasitic" on the physical harm. He submitted that the principle is simply that, once a cause of action is established, a plaintiff is entitled to recover all damages sustained "as part of the consequential losses resulting from the tortious conduct", including damages in respect of fear of contracting a disease, even if the cause of action arose after the fear was experienced. 29 The alternative argument is that the respondent's cause of action arose before he began to experience the fear. This argument rests on the proposition that the respondent, unbeknown to any person, had contracted mesothelioma before 1988 when he first began to experience the fear. On this basis, the physical harm (that is, contracting the mesothelioma) had been sustained before the fear manifested itself. It was submitted that, if these facts were made out, the case so put would be entirely orthodox. 30 I turn to the first argument. 31 Mr Joseph submitted that the first argument is supported by the decision of the United States Supreme Court in Norfolk and Western Railway Company v Ayers (Supreme Court of the United States, No 01-963, unreported, 10 March 2003). 32 Norfolk and Western Railway Company v Ayers concerned employees of the Norfolk and Western Railway Company ("Norfolk") who alleged that Norfolk had negligently exposed them to asbestos and thereby caused them to contract asbestosis. They sued for damages, including damages for mental anguish resulting from their fear of contracting cancer. 33 Ginsburg J delivered the opinion of the Supreme Court. On my reading of her Honour's judgment, it does not support the argument advanced on the respondent's behalf. The relevant finding of the Court appears from the following statement by Ginsburg J: "In resolving the first issue, we follow the line drawn by Metro-North Commuter Railway Company v Buckley, 521 US 424 (1997), a decision that relied on and complemented Consolidated Rail Corporation v Gottshall , 512 US 532 (1994). In Metro-North , we held that emotional distress damages may not be recovered under the [US Federal Employers' Liability Act ("FELA")] by disease-free asbestos-exposed workers; in contrast, we observed, workers who 'suffe[r] from a disease' (here, asbestosis) may 'recover for related negligently caused emotional distress' … We declined to blur, blend or reconfigure our FELA jurisprudence in the manner urged by the practitioner; instead, we adhere to the clear line our recent decisions delineate. Accordingly, we hold that mental anguish damages resulting from the fear of developing cancer may be recovered under the FELA by a railroad worker suffering from the actionable injury asbestosis caused by work-related exposure to asbestos". 34 As I understand her Honour's observations, the reasoning of the Court was based on the proposition that, once it is established that a plaintiff is suffering from asbestosis caused by the negligence of the defendant, that plaintiff may recover damages for mental anguish resulting from the fear that, in addition to suffering from asbestosis, he or she may also develop cancer. 35 The point to be made is that, in Norfolk, the plaintiffs' fear of developing cancer arose after they had contracted asbestosis. Norfolk is not a case where the fear preceded any negligently caused physical injury. 36 Ginsburg J treated the plaintiffs' claims for fear as being "parasitic" on the physical injury of asbestosis. She stated: "Unlike stand-alone claims for negligently inflicted emotional distress, claims for pain and suffering associated with, or 'parasitic' on, a physical injury are traditionally compensable. The Re-statement (Second) of Torts s456 (1963-1964) … states the general rule: 'If the actor's negligent conduct has so caused any bodily harm to another as to make him liable for it, the actor is also subject to liability for (a) fright, shock, or other emotional disturbance resulting from the bodily harm or from the conduct which causes it … '". (emphasis added) 37 The reasons of Ginsburg J do not suggest that a plaintiff might be able to recover for fear of injury before any physical injury was sustained. Indeed, her Honour made remarks to the contrary, observing: "Physically injured plaintiffs, it is now recognised, may recover for 'reasonable fears' of a future disease. D Dobbs, Law of Torts , 822 (2000) at 844. As a classic example, plaintiffs bitten by dogs succeeded in gaining recovery, not only for the pain of the wound but also for their fear that the bite would someday result in rabies or tetanus. The wound might heal, but '[t]he ghost of hydrophobia is raised, not to down [sic] during the lifetime of the victim' The Lord Derby , 17 F265, 267 (ED La 1883)". (emphasis added) 38 Her Honour did say: "Once found liable for 'any bodily harm', a negligent actor is answerable in damages for emotional disturbance 'resulting from the bodily harm or from the conduct which causes it' Restatement s456(a)(emphasis added)".

But I repeat that there is nothing in the judgment that suggests that the phrase, "damages … resulting from the bodily harm or from the conduct which causes it", relates to damages in respect of fear that was experienced prior to any bodily harm being suffered. 39 Ginsburg J went on to say: "We affirm only the qualification of an asbestosis sufferer to seek compensation for fear of cancer as an element of his asbestosis-related pain and suffering damages".

It seems clear from this statement that her Honour was only speaking of compensation for fear of cancer as damage suffered by a person who already had "asbestosis-related pain and suffering". 40 Mr Joseph submitted that Napolitano v CSR Limited (unreported, WASC, delivered 30 August 1994, per Seaman J) supports his argument. In that case, a claim for fear of an asbestos-related disease was upheld. The judgment, however, reveals that the plaintiff in that case suffered from a psychiatric disease. For example, a psychiatrist quoted by Seaman J described the plaintiff's condition as, "a major depressive disorder", and his Honour referred to the plaintiff's "psychiatric illness". Thus, Napolitano falls within the class of pure mental trauma recognised by Tame v New South Wales (2002) 191 ALR 449. As I have mentioned, in the present case, the respondent's fear did not fall into the category of psychiatric disease. 41 A cause of action in negligence is only complete when compensable harm is established. Until now, our law has only recognised claims for mental trauma, not involving a recognised psychiatric injury, when the mental trauma is associated with physical harm caused by the negligence of the defendant. These claims have been described as "parasitic" claims "because they must attach themselves to some actionable item of damage, as their host, in order to prove liability for them against the defendant" (Charlesworth and Percy on Negligence 10th ed at para 4-112). 42 The law has been erratic in determining whether particular claims can be regarded as parasitic (see Charlesworth and Percy on Negligence, op cit; McGregor on Damages 16th ed paras 223-229). The only justification for regarding particular claims as parasitic and recoverable is policy: McGregor on Damages op cit at para 223. It is not possible to discern any rational principle. 43 Recently, legislatures have rejected the concept of allowing parasitic damages claims for emotional distress not constituting a recognised psychiatric illness. See ss 32(1), 32(3), 33 of the Civil Liability Act 2002 (NSW), ss 5P(1), 5P(3) & 5Q of the Civil Liability (Amendment) Act 2003 (WA) (not yet proclaimed), ss 34(1), 34(3) and 35 of the Civil Liability Act 2002 (Tas), ss 34(1), 34(3) and 35(2) of the Civil Law (Wrongs) Act 2002 (ACT) and cll 33(1), 2(b) and 54(3) of the Law Reform (Ipp Recommendations) Bill (SA). This legislative expression of policy is an extension of the policy adopted by the majority of the High Court in Tame where it was held that, in cases of "pure" mental trauma, damage is only recoverable for a recognised psychiatric injury and not mere emotional distress. 44 The remoteness factor in this case is also significant. The fear began to be experienced many years (14) before the physical harm was diagnosed. The physical harm in fact experienced had no bearing on the mental distress in respect of which the claim was made. The respondent's claim for fear is not attached to "some actionable item of damage", as its host. 45 At the time that the respondent experienced fear of contracting an asbestos-related disease his cause of action was not complete. He had not then suffered compensable damage. He could not then sue for the emotional distress from which he suffered. He argues that the subsequent completion of his cause of action retrospectively validates his claim for emotional distress. 46 In my opinion there is no reason by way of principle or policy that justifies holding that a plaintiff, claiming damages for personal injuries caused by negligence, can - retrospectively, as it were - recover damages for fear of contracting a disease before he in fact sustains that disease and suffers any recoverable damage. In my view, the specific policy manifest by the Civil Liability Act and other statutory enactments, and the general policy, discussed in Tame, in regard to claims for emotional distress not constituting psychiatric injury, militates against recognising such a claim. 47 In these circumstances, I would not accede to Mr Joseph's first argument. 48 The second argument is disposed of by the principle enunciated by Handley JA In Scarcella v Lettice (2000) 51 NSWLR 302 at 306. His Honour (with whom Giles JA agreed) said: "A cause of action in negligence is not complete until the plaintiff first suffers actual loss or damage. Damage which is prospective or contingent does not qualify as actual damage for this purpose: see Wardley Australia Limited v Western Australia (1992) 175 CLR 514 at 530, 531, per Mason CJ, Dawson J, Gaudron J and McHugh J. In order for the plaintiffs' cause of action to be complete the plaintiff's actual damage must be 'measurable' ( Wardley at 531), or, in the words of Lord Reid in a personal injuries case ( Cartledge v E Jopling and Sons Limited [1963] AC 758 at 772) the damage must be 'beyond what can be regarded as negligible'".

See also Segal t / as Segal Litton & Chilton v Fleming (2002) NSWCA 262. 49 Mr Joseph referred the Court to views expressed in other courts that might be said to differ from the principle stated in Scarcella v Lettice and Segal v Fleming, but Scarcella v Lettice and Segal v Fleming are binding on this Court (the respondent did not seek leave to argue that they were wrong) and, in any event, I think, with respect, that the approach adopted in them is correct. 50 In a case of mental trauma not associated with physical harm, the cause of action is only complete if and when it is established that the mental trauma has given rise to a recognised psychiatric injury. In the present case, O'Meally P implicitly found that the respondent's cause of action became complete in August 2002 when the diagnosis of mesothelioma was made. He said that the onset of the respondent's fear "ante-dated the contraction of mesothelioma by something in the order of 14 years". His Honour dealt with the matter on the basis that mesothelioma was contracted in August 2002 and this constituted the completion of the cause of action. Accordingly, it cannot be said that the fear was experienced after the completion of the cause of action. This finding negates Mr Joseph's second argument. 51 By reason of s 32 (1) of the Dust Diseases Tribunal Act, It is not open, in this appeal, to go behind O'Meally P's factual findings. Without a finding that the respondent contracted mesothelioma before 1998, the point of law on which the second argument rests does not arise. 52 I would add that we were not referred to any evidence that might establish that the respondent's fear of mesothelioma arose after he contracted the disease. Mr Joseph drew attention to EM Baldwin & Son Pty Ltd v Plane (1998) 17 NSWCCR 434 where the Court recounted evidence of the typical progression of mesothelioma. As the facts so recounted do not appear to have been put to O'Meally P, and, as he made no reference to them, I do not think that any reliance can be placed on them in an application for leave to appeal to this Court on a point of law. 53 In the circumstances I would dismiss the appeal and the application for leave to cross-appeal. 54 By the consent of the parties, costs are to be dealt with by written submissions after judgment on the appeal and application for leave to cross-appeal has been given. Accordingly, I would order that the respondent to file written submissions on costs within 14 days and the appellants to file their response within 14 days after receipt of the respondent's submissions. **********

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