Black v Luke and Singer Pty Ltd - [2024] NSWDDT 16

Dust Diseases Tribunal

New South Wales

Medium Neutral Citation: Black v Luke and Singer Pty Ltd [2024] NSWDDT 16
Hearing dates: 25 November 2024
Date of orders: 29 November 2024
Decision date: 29 November 2024
Before: Russell SC DCJ
Decision:
(1) Grant leave to the plaintiff pursuant to ss 4 and 5 of the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) to bring proceedings against QBE Insurance (Australia) Ltd.
(2) Order that QBE Insurance (Australia) Ltd be substituted for the first defendant in these proceedings.
(3) Grant leave to the plaintiff to file a Further Amended Statement of Claim in the form of Exhibit PX 4.
(4) Order that the plaintiff pay the costs of QBE Insurance (Australia) Ltd of and incidental to the Notice of Motion filed on 19 September 2024.

Catchwords:
DUST DISEASES – insurance – application for leave to proceed against an insurer – whether insurance policy covered the last date of employment – different last employment date and last exposure date – insurer on risk on date of last exposure – leave granted
DUST DISEASES – costs – plaintiff to pay insurer’s costs despite succeeding on the Motion – plaintiff sought leave to amend Statement of Claim by oral application at the hearing of the Motion – three forms of the plaintiff’s pleading implied a last date of exposure after QBE was no longer on risk – pleading handed up in court finally accorded with plaintiff’s instructions and his Statement of Particulars

Legislation Cited:
Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) ss, 4, 5
Workers Compensation Act 1987 (NSW) s 151AB

Cases Cited:
Avant Insurance Ltd v Burnie [2021] NSWCA 272
CGU Insurance Limited v AAI Insurance Limited [2016] NSWCA 335
Mrdajl v Southern Cross Constructions (NSW) Pty Ltd(In Liq) [2018] NSWSC 161

Category: Procedural rulings
Parties: David Brian Black (Plaintiff)
Luke and Singer Pty Ltd (First Defendant)
Amaca Pty Ltd (Second Defendant)
QBE Insurance (Australia) Ltd (Respondent)
Representation:
Counsel:
S Tzouganatos (Plaintiff)
M Smith (Respondent)
Solicitors:
Slater & Gordon (Plaintiff)
Mills Oakley Lawyers (Second Defendant)
Moray & Agnew Lawyers (Respondent)

File Number(s): DDT 2024/272317
Publication restriction: Nil

JUDGMENT

Introduction

The plaintiff Mr David Black suffers from mesothelioma. By a Statement of Claim filed on 24 July 2024 Mr Black sued a former employer Luke and Singer Pty Ltd (Luke and Singer) as first defendant and Amaca Pty Ltd as second defendant. Luke and Singer is a deregistered company.
By a Notice of Motion filed on 19 September 2024 Mr Black seeks leave to sue QBE Insurance (Australia) Ltd (QBE) as the insurer of the liabilities of Luke and Singer. That claim is brought pursuant to ss 4 and 5 of the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) (the Third Party Claims Act).

The Third Party Claims Act

Section 4 of the Third Party Claims Act provides as follows:

“4 Claimant may recover from insurer in certain circumstances

(1) If an insured person has…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] NSWDDT 16
Decision Date: 29 November 2024

CaseChat Overview and Summary

In the case of Black v Luke and Singer Pty Ltd, the plaintiff, who suffers from a dust disease, sought leave to proceed against an insurer, QBE Insurance (Australia) Ltd, arguing that the insurance policy covered the last date of his employment. The dispute arose from differing interpretations of the last employment date and the last exposure date, with the insurer claiming it was not on risk on the date of the last exposure. The matter was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether the insurance policy provided coverage for the date of the plaintiff's last employment. This hinged on whether the last exposure date aligned with the insurer being on risk. Additionally, the court had to consider the plaintiff’s request for leave to amend his pleadings to reflect his instructions and the Statement of Particulars, and whether this warranted an order for costs against the plaintiff despite his success on the motion.

The court granted leave for the plaintiff to proceed against the insurer, finding that the policy did indeed cover the last date of employment. The court also allowed the plaintiff to file a further amended statement of claim that aligned with his instructions. However, due to the plaintiff's inconsistent pleadings implying a last exposure date after the insurer was no longer on risk, the court ordered the plaintiff to pay the insurer's costs. The court reasoned that the plaintiff's actions in altering his pleadings at the hearing contributed to the insurer's costs, despite the plaintiff's success on the motion.

The final orders included granting leave to the plaintiff to bring proceedings against QBE Insurance (Australia) Ltd, substituting QBE Insurance (Australia) Ltd for the first defendant, allowing the plaintiff to file a further amended statement of claim, and ordering the plaintiff to pay the insurer's costs.

Orders

Orders of the court

(1) Grant leave to the plaintiff pursuant to ss 4 and 5 of the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) to bring proceedings against QBE Insurance (Australia) Ltd.

(2) Order that QBE Insurance (Australia) Ltd be substituted for the first defendant in these proceedings.

(3) Grant leave to the plaintiff to file a Further Amended Statement of Claim in the form of Exhibit PX 4.

(4) Order that the plaintiff pay the costs of QBE Insurance (Australia) Ltd of and incidental to the Notice of Motion filed on 19 September 2024.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Black v Luke and Singer Pty Ltd [2024] NSWDDT 16
Hearing dates:	25 November 2024
Date of orders:	29 November 2024
Decision date:	29 November 2024
Before:	Russell SC DCJ
Decision:	(1) Grant leave to the plaintiff pursuant to ss 4 and 5 of the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) to bring proceedings against QBE Insurance (Australia) Ltd. (2) Order that QBE Insurance (Australia) Ltd be substituted for the first defendant in these proceedings. (3) Grant leave to the plaintiff to file a Further Amended Statement of Claim in the form of Exhibit PX 4. (4) Order that the plaintiff pay the costs of QBE Insurance (Australia) Ltd of and incidental to the Notice of Motion filed on 19 September 2024.
Catchwords:	DUST DISEASES – insurance – application for leave to proceed against an insurer – whether insurance policy covered the last date of employment – different last employment date and last exposure date – insurer on risk on date of last exposure – leave granted DUST DISEASES – costs – plaintiff to pay insurer’s costs despite succeeding on the Motion – plaintiff sought leave to amend Statement of Claim by oral application at the hearing of the Motion – three forms of the plaintiff’s pleading implied a last date of exposure after QBE was no longer on risk – pleading handed up in court finally accorded with plaintiff’s instructions and his Statement of Particulars
Legislation Cited:	Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) ss, 4, 5 Workers Compensation Act 1987 (NSW) s 151AB
Cases Cited:	Avant Insurance Ltd v Burnie [2021] NSWCA 272 CGU Insurance Limited v AAI Insurance Limited [2016] NSWCA 335 Mrdajl v Southern Cross Constructions (NSW) Pty Ltd(In Liq) [2018] NSWSC 161
Category:	Procedural rulings
Parties:	David Brian Black (Plaintiff) Luke and Singer Pty Ltd (First Defendant) Amaca Pty Ltd (Second Defendant) QBE Insurance (Australia) Ltd (Respondent)
Representation:	Counsel: S Tzouganatos (Plaintiff) M Smith (Respondent) Solicitors: Slater & Gordon (Plaintiff) Mills Oakley Lawyers (Second Defendant) Moray & Agnew Lawyers (Respondent)
File Number(s):	DDT 2024/272317
Publication restriction:	Nil