WORKERS COMPENSATION - Dust diseases - insurance - claim for common law damages against insurer where employer company wound up between end of employment and manifestation of disease - availability of insurance as at time of last employment under Workers Compensation Act 1926 s.18(6B) - effect of repeal of WCA 1926 and whether accrued liability at time of repeal - conflicting views in Dust Diseases Tribunal - while appeal pending, retrospective amendment to s.151AB enacted provision similar to repealed s.18(6B) - appeal decided in accordance with retrospective amendment - reject contention that retrospective amendment breached the Kable principle.
[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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AGLC
Lay v Employers Mutual Ltd [2005] NSWCA 450
Case
[2005] NSWCA 450
Decision Date
CaseChat Overview and Summary
The appeal concerned a claim for common law damages for a dust-related disease brought by the appellant, Mr Lay, against the respondent, Employers Mutual Ltd. The appellant's employment, during which he was exposed to dust, concluded before the manifestation of his disease. Crucially, the employer company was wound up between the cessation of employment and the diagnosis of the disease. The dispute centred on whether the respondent, as the insurer, was liable to meet the claim, particularly in light of the Workers Compensation Act 1926 (NSW) and subsequent legislative changes.
The primary legal issue before the Court of Appeal was whether the respondent insurer was liable for the appellant's common law damages claim, given that the employer company had been wound up after the appellant's employment ended but before the dust disease manifested. This required the court to consider the availability of insurance as at the time of the appellant's last employment under section 18(6B) of the Workers Compensation Act 1926, and the effect of the repeal of that Act. The court also had to determine whether an accrued liability under the repealed Act persisted and, importantly, whether a subsequent retrospective amendment to section 151AB of the Act, which introduced a provision similar to the repealed section 18(6B), was valid and applicable to the appellant's claim, without breaching the principle established in *Kable v Director of Public Prosecutions (NSW)*.
The Court of Appeal found that the retrospective amendment to section 151AB was valid and applicable. The court reasoned that the amendment did not offend the *Kable* principle, as it did not undermine the institutional integrity of the courts. The court determined that the legislative intent was to provide a mechanism for claims such as the appellant's, and that the insurer's liability was established under the amended provision.