GIO General Ltd v ABB Installation and Service Pty Ltd

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Case Copied 24 min read
Reported Decision: [2000] 19 NSWCCR 720

New South Wales


Court of Appeal

CITATION: GIO General Limited v ABB Installation & Service Pty Limited & Ors [2000] NSWCA 118
FILE NUMBER(S): CA 40253/98
HEARING DATE(S): 22/03/2000
JUDGMENT DATE:
10 May 2000

PARTIES :
GIO General Limited
ABB Installation & Service Pty Limited
GIO Workers Compensation (NSW) Limited
MMI Workers Compensation (NSW) Limited
TGI Australia Limited
JUDGMENT OF: Mason P at 1; Beazley JA at 1; Heydon JA at 1
LOWER COURT JURISDICTION : Dust Diseases Tribunal
LOWER COURT
FILE NUMBER(S) : 		47/96
LOWER COURT
JUDICIAL OFFICER :		 Curtis J
COUNSEL: Appellant: J McIntyre SC
First Respondent: B Ferrari
Second Respondent: G Little
Third Respondent: B Hughes
Fourth Respondent: J D Hislop QC
SOLICITORS: Appellant: Hunt & Hunt
First Respondent: Gillis Delaney Brown
Second Respondent: GIO Australia Workers Compensation (NSW) Limited
Third Respondent: A O Ellison & Co
Fourth Respondent: Moray & Agnew
CATCHWORDS: Workers Compensation - Dust Diseases - Employment to the nature of which the disease was due - s 151AB of the Workers Compensation Act 1987 (NSW)
LEGISLATION CITED: Dust Diseases Tribunal Act 1989 (NSW)
Workers Compensation Act 1987 (NSW)
CASES CITED:
 CIC Workers Compensation (NSW) Ltd v Alcan Australia Ltd 91994) 35 NSWLR 169
CIC Workers Compensation (NSW) Ltd v Kellogg (Australia) Pty Ltd (1996) 40 NSWLR 422
MMI Insurance Compensation (NSW) Ltd v Baker (1997) 41 NSWLR 289
FAI Traders Insurance Co Ltd v HIH Winterthur Workers Compensation (NSW) Pty Ltd (1998) 45 NSWLR 257
Tame v Commonwealth Collieries Pty Ltd (1947) 47 SR (NSW) 269
Smith v Mann (1932) 47 CLR 426
Blayney Shire Council v Lobley (1995) 12 NSWCCR 52
Commonwealth v Bourne (1960) 104 CLR 32
Bryer v Metropolitan Water Sewerage & Drainage Board (1939) 39 SR (NSW) 321
R v City of Westminster Assessment Committee [1941] 1 KB 53
DECISION: Appeal dismissed with costs; Cross-appeal dismissed




      THE SUPREME COURT

      OF NEW SOUTH WALES

      COURT OF APPEAL

      CA 40253/98
      CL 47/96

      MASON P
      BEAZLEY JA
      HEYDON JA

      Wednesday, 10 May 2000


      GIO GENERAL LIMITED v ABB INSTALLATION & SERVICE PTY LIMITED & ORS


      FACTS

      The first respondent (ABB) had cross-claimed against the insurers on risk during the period of a claim made by the plaintiff against the respondent for damages for injury (the disease of mesothelioma) suffered by him as a result of negligent exposure to asbestos whilst in ABB’s employ. The plaintiff’s claim was made in respect of the period 1969 to 1993. The trial judge found that the plaintiff had been negligently exposed during the period 1966 to 1969. The fourth respondent (TGI) was on risk at that time. The trial judge left open the question whether ABB was liable for any period after 1969.

      On the hearing of the cross-appeal the trial judge held that the plaintiff was last in an employment of the nature of which his disease was due in December 1986. The appellant (GIO General) was the insurer on risk at this time and was held liable…

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Details
Case
[2000] NSWCA 118
Decision Date

CaseChat Overview and Summary

The New South Wales Court of Appeal considered an appeal and cross-appeal concerning a claim for workers compensation for a dust-related disease. The appellant, GIO General Ltd, was the insurer, and the respondent, ABB Installation and Service Pty Ltd, was the employer. The dispute centred on whether the employer was liable to indemnify the insurer under section 151AB of the *Workers Compensation Act 1987* (NSW) for payments made to a worker who contracted a dust disease.

The primary legal issue before the Court of Appeal was whether the employer's employment of the worker was "to the nature of which the disease was due" within the meaning of section 151AB(1) of the Act. This required the Court to determine if the worker's employment with ABB Installation and Service Pty Ltd was a contributing factor to the development of his dust disease, and if so, whether that employment was the *cause* of the disease.

The Court analysed the evidence regarding the worker's exposure to dust during his employment with ABB Installation and Service Pty Ltd. It applied the principles established in previous case law concerning the causal link required between employment and a dust disease for an employer to be liable for indemnity. The Court found that the worker's employment was indeed to the nature of which the disease was due, establishing the necessary causal connection.

Consequently, the Court of Appeal dismissed GIO General Ltd's appeal with costs and also dismissed ABB Installation and Service Pty Ltd's cross-appeal.

Orders

Orders of the court

Appeal dismissed with costs; Cross-appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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