CGU Insurance Ltd v Davies - [2015] NSWCA 5

Court of Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: CGU Insurance Ltd v Davies [2015] NSWCA 5
Hearing dates: 7 August 2014
Decision date: 11 February 2015
Before: Beazley P at [1];
McColl JA at [2];
Basten JA at [3];
Macfarlan JA at [14];
Meagher JA at [15]
Decision:
1.Appeal dismissed.
2.Appellant pay the respondent’s costs of the appeal.
Catchwords: WORKERS COMPENSATION – employer’s liability – occupational diseases – when liability of employer taken to arise – construction of s 151AB Workers Compensation Act 1987 – whether ‘disease’ in s 151AB(1)(a) refers only to the injury or harm which is the subject of the claimed liability – where claimed liability is for injury or disease caused by exposure to silica dust during particular period – whether liability taken to arise when worker last employed in that period – distinction between ‘divisible’ and ‘indivisible’ harm or injury – decision in Allianz Australia Insurance Ltd v Pomfret [2015] NSWCA 4 applied
Legislation Cited: Law Reform (Miscellaneous Provisions) Act 1944 (NSW), s 2
Workers Compensation Act 1987 (NSW), s 151AB
Workers Compensation Legislation Amendment Act 2004 (NSW), Sch 1 [4])
Cases Cited: Allianz Australia Insurance Ltd v Pomfret [2015] NSWCA 4
Gett v Tabet [2009] NSWCA 76; [2009] Aust Torts Rep 82-005; 254 ALR 504
Orica Ltd v CGU Insurance Ltd [2003] NSWCA 331; 59 NSWLR 14
Sienkiewicz v Greif (UK) Ltd [2011] UKSC 10; [2011] 2 AC 229
Chubb Australia Limited [2000] NSWCA 221; 20 NSWCCR 614
Category: Principal judgment
Parties: CGU Insurance Ltd (Appellant)
June Davies (Respondent)
Representation: Counsel:
G Little SC with T Bors (Appellant)
D F Jackson QC with S Tzouganatos (Respondent)
Solicitors:
Curwoods Lawyers (Appellant)
Turner Freeman (Respondent)

File Number(s): 2013/382663
Decision under appeal

Court or tribunal:

Dust Diseases Tribunal of NSW

Citation:

[2013] NSWDDT 10

Date of Decision:

12 December 2013

Before:

Kearns DCJ

File Number(s):

DDT208/2011

HEADNOTE

[This headnote is not to be read as part of the judgment]

The worker, Eric Davies, was employed as a pottery caster by R Fowler Ltd (“Fowler”) from July 1940 to August 1979. Thereafter, Mr Davies was employed by Seapip Pty Ltd (“Seapip”) following its acquisition of the Fowler business. During both of these employments, Mr Davies was exposed to and inhaled silica dust, which caused silicosis and progressive massive fibrosis. In 2011, Mr Davies commenced proceedings against Fowler and Seapip for negligence, breach of statutory duty and breach of contract. As Mr Davies died in March 2013, his wife now brings that claim for the benefit of his estate. The claim against Fowler has been settled on the basis that the employer is liable in an agreed sum of $300,000. The present dispute relates to whether Fowler is indemnified against that liability under its workers compensation insurance.

CGU Insurance Ltd (“CGU”) has assumed the liabilities of Fowler’s workers compensation insurer for periods ending on 30 June 1979. CGU indemnified Fowler against liability arising during those policy periods. No workers compensation…

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: [2015] NSWCA 5
Decision Date: 11 February 2015

CaseChat Overview and Summary

CGU Insurance Ltd appealed to the New South Wales Court of Appeal against a decision concerning workers compensation liability for an occupational disease. The dispute centred on when the liability of an employer for a disease contracted by a worker arose, specifically in the context of exposure to silica dust. The primary judge had found in favour of the respondent worker.

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). This provision dictates when an employer's liability for an occupational disease is taken to arise. The court had to determine whether the "disease" referred to in the section encompassed only the ultimate harm suffered by the worker, or if it related to the entire process of contracting the disease, including the period of exposure. This required the court to consider the distinction between "divisible" and "indivisible" harm or injury.

The Court of Appeal, applying the principles established in *Allianz Australia Insurance Ltd v Pomfret* [2015] NSWCA 4, held that the liability for an occupational disease arises at the time of the last exposure to the causative agent during the relevant period of employment. The court reasoned that the statutory language indicated that the liability arose when the worker was last employed in the employment that gave rise to the disease. This approach aligned with the concept of indivisible injury, where the harm cannot be precisely apportioned to specific periods of exposure.

Consequently, the appeal was dismissed, and CGU Insurance Ltd was ordered to pay the respondent's costs of the appeal.

Orders

Orders of the court

1.Appeal dismissed.

2.Appellant pay the respondent’s costs of the appeal.

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:	CGU Insurance Ltd v Davies [2015] NSWCA 5
Hearing dates:	7 August 2014
Decision date:	11 February 2015
Before:	Beazley P at [1]; McColl JA at [2]; Basten JA at [3]; Macfarlan JA at [14]; Meagher JA at [15]
Decision:	1.Appeal dismissed. 2.Appellant pay the respondent’s costs of the appeal.
Catchwords:	WORKERS COMPENSATION – employer’s liability – occupational diseases – when liability of employer taken to arise – construction of s 151AB Workers Compensation Act 1987 – whether ‘disease’ in s 151AB(1)(a) refers only to the injury or harm which is the subject of the claimed liability – where claimed liability is for injury or disease caused by exposure to silica dust during particular period – whether liability taken to arise when worker last employed in that period – distinction between ‘divisible’ and ‘indivisible’ harm or injury – decision in Allianz Australia Insurance Ltd v Pomfret [2015] NSWCA 4 applied
Legislation Cited:	Law Reform (Miscellaneous Provisions) Act 1944 (NSW), s 2 Workers Compensation Act 1987 (NSW), s 151AB Workers Compensation Legislation Amendment Act 2004 (NSW), Sch 1 [4])
Cases Cited:	Allianz Australia Insurance Ltd v Pomfret [2015] NSWCA 4 Gett v Tabet [2009] NSWCA 76; [2009] Aust Torts Rep 82-005; 254 ALR 504 Orica Ltd v CGU Insurance Ltd [2003] NSWCA 331; 59 NSWLR 14 Sienkiewicz v Greif (UK) Ltd [2011] UKSC 10; [2011] 2 AC 229 Chubb Australia Limited [2000] NSWCA 221; 20 NSWCCR 614
Category:	Principal judgment
Parties:	CGU Insurance Ltd (Appellant) June Davies (Respondent)
Representation:	Counsel: G Little SC with T Bors (Appellant) D F Jackson QC with S Tzouganatos (Respondent) Solicitors: Curwoods Lawyers (Appellant) Turner Freeman (Respondent)
File Number(s):	2013/382663
Decision under appeal	Court or tribunal: Dust Diseases Tribunal of NSW Citation: [2013] NSWDDT 10 Date of Decision: 12 December 2013 Before: Kearns DCJ File Number(s): DDT208/2011