Franklin v Coal Mines Insurance Ltd - [2024] NSWDDT 11

Dust Diseases Tribunal

New South Wales

Medium Neutral Citation: Franklin v Coal Mines Insurance Ltd & Ors [2024] NSWDDT 11
Hearing dates: 25 June, 8 July, 22 August, 30 August, 9 October 2024
Date of orders: 16 October 2024
Decision date: 16 October 2024
Before: Russell SC DCJ
Decision:
(1)   Subject to order (2) grant leave nunc pro tunc to commence and continue these proceedings against the first defendant Coal Mines Insurance Ltd in relation to the claims pleaded in the Second Further Amended Statement of Claim against deregistered companies.
(2)   Decline to grant such leave in relation to the claim pleaded in pars 95-103 of the Second Further Amended Statement of Claim.
(3)   Reserve the costs of and incidental to the Amended Notice of Motion filed on 25 June 2024.

Catchwords:
DUST DISEASES – insurance – application for leave to proceed against insurer of deregistered companies – whether policy was issued – whether insurer was insurer on risk – policies issued to deregistered employers – work performed within description of business covered by policy – dual insurance not relevant to entitlement to grant of leave
DUST DISEASES – occupational diseases – date of last employment – deeming provisions – business of employers in the coal industry

Legislation Cited:
Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW), ss 4, 5
Coal Industry Act 2001 (NSW)
Dust Diseases Tribunal Act 1989 (NSW), s 11A
Workers Compensation Act 1987 (NSW), ss 7A, 151AB
Workers’ Compensation (Dust Diseases) Act 1942 (NSW)
Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 9A

Cases Cited:
Avant Insurance Ltd v Burnie [2021] NSWCA 272
Central West Group Apprentices Ltd v Coal Mines Insurance Ltd [2008] NSWCA 348
Mrdajl v Southern Cross Constructions (NSW) Pty Ltd(In Liq) [2018] NSWSC 161
Kuypers v Ashton Coal Operations Pty Ltd [2014] NSWSC 1276

Category: Procedural rulings
Parties: Luke Verne Franklin (Plaintiff)
Coal Mines Insurance Ltd (First Defendant)
Workers Compensation Nominal Insurer (Fourth Defendant)
Representation:
Counsel:
S Tzouganatos (Plaintiff)
L King SC / T Rowles (First Defendant)
D Andersen solicitor (Fourth Defendant)
Solicitors:
Slater & Gordon (Plaintiff)
Sparke Helmore (First Defendant)
HWL Ebsworth (Fourth Defendant)

File Number(s): DDT 2023/7576

Judgment

Introduction

By a Second Further Amended Statement of Claim filed by leave in court on 28 August 2024 the plaintiff Mr Franklin seeks damages in respect of the following injuries:

Silicosis.

Chronic obstructive pulmonary disease (COPD).

Mixed dust pneumoconiosis (MDP).

Persistent depressive disorder.

Mr Franklin alleges that he contracted these diseases through the negligence of his employers, and mine operators, while working in coal mines.
Damages are sought on a final basis, where the injuries are said to be attributable to exposure to dust in the State of Queensland. Provisional damages pursuant to s 11A of the Dust Diseases Tribunal Act 1989 (NSW) (the DDT Act) are sought in relation to the injuries if found to be attributable to exposure to dust in New South Wales. An order is also sought for further damages, if additional…

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 11
Decision Date: 16 October 2024

CaseChat Overview and Summary

The case before the court involved the plaintiff, Franklin, seeking to proceed against Coal Mines Insurance Ltd, an insurer of deregistered companies, regarding insurance claims related to dust diseases. Franklin, who suffered from a dust-related occupational disease, sought to hold the insurer accountable for policies allegedly issued to his former employers. The dispute centred on whether the policies were validly issued and whether the insurer was the correct party to be held responsible for the claims. The court had to decide whether Franklin could proceed with his claims against the insurer despite the deregistration of the employers.

The primary legal issue was whether Franklin could be granted leave to proceed with his claims against Coal Mines Insurance Ltd, the insurer of deregistered companies. The court needed to determine if the insurance policies in question were validly issued and if the insurer was the proper defendant in these circumstances. Another issue was the applicability of deeming provisions related to the date of last employment and the nature of the employers' business in the coal industry. The court also had to consider whether the existence of dual insurance policies was relevant to Franklin's entitlement to proceed with his claims.

The court found that Franklin could be granted leave to proceed against Coal Mines Insurance Ltd for the claims related to the dust diseases, subject to certain conditions. The court held that the policies were validly issued, and the insurer was the appropriate party to be held liable for the claims. The deeming provisions regarding the date of last employment were deemed relevant, and the nature of the employers' business in the coal industry was considered. The court ruled that the existence of dual insurance policies did not bar Franklin from proceeding with his claims against the insurer. Consequently, the court declined to grant leave in relation to specific claims outlined in paragraphs 95-103 of the Second Further Amended Statement of Claim. The costs of the Amended Notice of Motion filed on 25 June 2024 were reserved.

The final orders of the court were to grant leave nunc pro tunc to commence and continue the proceedings against Coal Mines Insurance Ltd in relation to the claims pleaded in the Second Further Amended Statement of Claim, except for paragraphs 95-103. The court also declined to grant leave in relation to the specific claims mentioned. Lastly, the court reserved the costs of and incidental to the Amended Notice of Motion filed on 25 June 2024.

Orders

Orders of the court

(1) Subject to order (2) grant leave nunc pro tunc to commence and continue these proceedings against the first defendant Coal Mines Insurance Ltd in relation to the claims pleaded in the Second Further Amended Statement of Claim against deregistered companies.

(2) Decline to grant such leave in relation to the claim pleaded in pars 95-103 of the Second Further Amended Statement of Claim.

(3) Reserve the costs of and incidental to the Amended Notice of Motion filed on 25 June 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

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Franklin v Coal Mines Insurance Ltd & Ors [2024] NSWDDT 11
Hearing dates:	25 June, 8 July, 22 August, 30 August, 9 October 2024
Date of orders:	16 October 2024
Decision date:	16 October 2024
Before:	Russell SC DCJ
Decision:	(1) Subject to order (2) grant leave nunc pro tunc to commence and continue these proceedings against the first defendant Coal Mines Insurance Ltd in relation to the claims pleaded in the Second Further Amended Statement of Claim against deregistered companies. (2) Decline to grant such leave in relation to the claim pleaded in pars 95-103 of the Second Further Amended Statement of Claim. (3) Reserve the costs of and incidental to the Amended Notice of Motion filed on 25 June 2024.
Catchwords:	DUST DISEASES – insurance – application for leave to proceed against insurer of deregistered companies – whether policy was issued – whether insurer was insurer on risk – policies issued to deregistered employers – work performed within description of business covered by policy – dual insurance not relevant to entitlement to grant of leave DUST DISEASES – occupational diseases – date of last employment – deeming provisions – business of employers in the coal industry
Legislation Cited:	Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW), ss 4, 5 Coal Industry Act 2001 (NSW) Dust Diseases Tribunal Act 1989 (NSW), s 11A Workers Compensation Act 1987 (NSW), ss 7A, 151AB Workers’ Compensation (Dust Diseases) Act 1942 (NSW) Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 9A
Cases Cited:	Avant Insurance Ltd v Burnie [2021] NSWCA 272 Central West Group Apprentices Ltd v Coal Mines Insurance Ltd [2008] NSWCA 348 Mrdajl v Southern Cross Constructions (NSW) Pty Ltd(In Liq) [2018] NSWSC 161 Kuypers v Ashton Coal Operations Pty Ltd [2014] NSWSC 1276
Category:	Procedural rulings
Parties:	Luke Verne Franklin (Plaintiff) Coal Mines Insurance Ltd (First Defendant) Workers Compensation Nominal Insurer (Fourth Defendant)
Representation:	Counsel: S Tzouganatos (Plaintiff) L King SC / T Rowles (First Defendant) D Andersen solicitor (Fourth Defendant) Solicitors: Slater & Gordon (Plaintiff) Sparke Helmore (First Defendant) HWL Ebsworth (Fourth Defendant)
File Number(s):	DDT 2023/7576