CGU Insurance Ltd v Davies

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.