Lay v Employers Mutual Ltd

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 The court also had to determine whether an accrued liability under the repealed Act persisted and, importantly, whether a subsequent retrospective amendment to section 151AB of the Act, which introduced a provision similar to the repealed section 18(6B), was valid and applicable to the appellant's claim, without breaching the principle established in *Kable v Director of Public Prosecutions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.

The appeal was allowed with costs.