Allianz Australia Insurance Ltd v Pomfret

Allianz Australia Insurance Ltd appealed to the Court of Appeal of New South Wales against a decision of the Dust Diseases Tribunal. The dispute concerned the determination of when an employer's liability for an occupational disease, specifically one caused by asbestos exposure, is taken to arise under section 151AB of the *Workers Compensation Act 1987* (NSW). The respondent, Mr. Pomfret, had claimed compensation for an injury or disease caused by exposure to asbestos fibre during a particular period of employment.

The central legal issue before the Court of Appeal was the proper construction of section 151AB(1)(a) of the *Workers Compensation Act 1987* (NSW). Specifically, the court had to determine whether the term "disease" in that provision refers solely to the injury or harm for which liability is claimed, or if it encompasses the entire process of contracting the disease. This question was critical in establishing when the liability of the employer was deemed to have arisen, particularly in the context of asbestos-related illnesses which can have a long latency period and result from exposure over different periods of employment. The court was also required to consider the distinction between "divisible" and "indivisible" harm or injury in this context.

The Court of Appeal reasoned that the phrase "disease in respect of which the liability is taken to arise" in section 151AB(1)(a) refers to the disease itself, not the exposure that caused it. Applying this interpretation, the court held that for an indivisible injury or disease, such as that caused by asbestos exposure, the liability arises at the time of the last exposure to the harmful agent. This principle was applied to the facts of the case, leading to the conclusion that the employer's liability arose during the period of Mr. Pomfret's last employment with the relevant employer.

The Court of Appeal granted leave to appeal but ultimately dismissed the appeal, ordering that the applicant, Allianz Australia Insurance Ltd, pay the respondent's costs of the application for leave and the appeal.