Roberts v ACN 000144141 Pty Ltd and Anor

[2008] NSWDDT 4

Dust Diseases Tribunal

of New South Wales

CITATION:	Roberts v ACN 000144141 Pty Ltd and Anor [2008] NSWDDT 4
PARTIES:	Elizabeth Mary Roberts (as legal personal representative of the Estate of the Late John Hitchcock) (Plaintiff) ACN 000144141 Pty Ltd (First Defendant) Macbro Properties Pty Ltd (Second Defendant)
MATTER NUMBER(S):	60 of 2003
JUDGMENT OF:	O'Meally P
CATCHWORDS:	Dust Diseases Tribunal :- Notice of Motion - Application to appoint designated insurer - Criteria for appointment - Not necessary to find designated insurer on risk when worker last employed in employment to the nature of which disease due - Inquiry concerns fact not nature of employment
LEGISLATION CITED:	Workers Compensation Act, 1987 - S 151AB and S 151AC
CASES CITED:	QBE Insurance Limited v Bull [1999] NSWCA 185
DATES OF HEARING:	19 February 2008
DATE OF JUDGMENT:	19 February 2008
EX TEMPORE JUDGMENT DATE:	19 February 2008
LEGAL REPRESENTATIVES:	Mr D C Andersen of Piper Alderman appeared for the Second Defendant (Applicant) Mr A J Gardiman of Turner Freeman appeared for the Plaintiff Mr J A D deGreenlaw instructed by McCulloch & Buggy appeared for Mercantile Mutual (Workers Compensation) Limited (Respondent)

JUDGMENT:

RULING

O'MEALLY P

1. This is an application by Macbro Properties Pty Limited (formerly McDonald Bros and Co (Lidcombe) Pty Ltd) seeking an order that Mercantile Mutual Insurance (Workers Compensation) Limited (Mercantile Mutual) be appointed designated insurer in proceedings now maintained by Elizabeth Mary Roberts, legal personal representative of the estate of the late John Hitchcock.

2. On 28 February 2003 Mr Hitchcock issued a statement of claim alleging that in the course of his employment by McDonald Constructions Pty Limited he was negligently and in breach of statutory duty exposed to asbestos dust and fibre as a consequence of which he contracted asbestosis.

3. Mr Roberts died on 15 October 2004. On 21 December 2004 an amended statement of claim was issued naming Elizabeth Mary Roberts as the legal personal representative of his estate and naming ACN 000 144 141 Pty Limited, formerly McDonald Bros Contractors Pty Limited (In liquidation) as first defendant and Macbro Properties Pty Limited (formerly McDonald Bros and Co (Lidcombe) Pty Limited) as second defendant. That statement of claim alleged employment of the late Mr Hitchcock by the first defendant from 1954 until 1971 and by the second defendant from 1971 until 1975.

4. A dispute has arisen concerning which of two insurers is liable to indemnify the second defendant.

5. The affidavit of David Andersen filed in support of this application relevantly recites:

3. Bishopgate Insurance Australia Limited was the second defendant's relevant workers compensation insurer in New South Wales until 30 June 1975. I have been informed by Mr Morrissey of Hunt and Hunt Lawyers that it is denied that Bishopgate's policy is triggered in this matter by reason of section 151 AB of the Workers Compensation Act 1987 (NSW)

4. Mercantile Mutual Insurance (Workers Compensation) Limited was the workers compensation insurer in New South Wales for the Second Defendant between 30 June 1975 and 30 June 1977.

6. Mr de Greenlaw, who appears for Mercantile Mutual to oppose the motion, submits that the application of s 151AC of the Workers Compensation Act 1987 requires first a determination that an insurer was on risk when a worker was employed in an employment to the nature of which the disease in respect of which the action is brought was due.

7. The facts deposed to in pars 3 and 4 of Mr Andersen’s affidavit are not disputed. S 151AC relevantly provides:

(1) Application of this section
This section applies in relation to an employer who is liable independently of this Act for damages for a dust disease as defined by the Workers’ Compensation (Dust Diseases) Act 1942 contracted by a worker, where there is a dispute as to which of 2 or more insurers in a category of insurers is liable to indemnify the employer under any of the provisions of section 151AB.

(2) Designated insurer to be responsible pending resolution of dispute

For the purposes of section 151AB, and pending resolution of the dispute, the insurer who is the designated insurer in the relevant category under this section is to be treated as being the insurer who is so liable to indemnify the employer. Section 151AB has effect, and is to be construed, accordingly.

(3) Identification of designated insurer

The following provisions have effect for the purpose of determining which insurer among the following categories of insurers is the designated insurer for the purposes of this section:

(a) If, in the case of a liability that arose before the relevant commencement, there is a dispute as to which of 2 or more insurers is liable to indemnify the employer under section 151AB, the insurer who was the last of those insurers to be the employer’s insurer while the worker was employed before that commencement by that employer is the designated insurer.

5. If there be liability then that liability arose before the relevant commencement.

6. There is a material difference between the provisions of s 151AB and s 151AC. S 151AC is concerned with employment. S 151AB is concerned with exposure. To put it another way, s 151AC is concerned with the fact of employment while s 151AB is concerned with the nature of employment. S 151AB requires a consideration of the time at which a worker was last employed in an employment to the nature of which the relevant disease was due. From what has been said at the bar table, there will be a dispute when it was that the late Mr Hitchcock was last employed in employment to the nature of which his disease was due.

7. Annexed to Mr Andersen's affidavit is a copy of a signed statement by Mr Hitchcock. In par 33 of that statement he said:

I worked on many jobs for McDonald Bros in the Botany area using asbestos. I also remember working at Bundaberg for McDonald Bros in about 1975 on my last job. I remember on this job I had to cut the asbestos sheets down to one and a half inches from three inches.

8. Also annexed to the affidavit is a copy of a group certificate of the late Mr Hitchcock which is said to establish that in the fiscal year commencing on 1 July 1975 and ending on 30 June 1976 he worked but one day. Relying on the Group Certificate and Mr Hitchcock's statement, Mr de Greenlaw says that it could not have been, nor could it be successfully alleged that the insurer whom he represents could in any circumstance be liable to indemnify the second defendant. That is as may be. However, the situation remains that the application of s 151AC is concerned with employment not the nature of employment. It remains that there is a dispute on which of the two insurers of the employer is liable to indemnify it. A dispute between insurers in the relevant categoryis intended by s 151AC to be resolved separately from a plaintiff’s dispute with his employer (see QBE Insurance Limited v Bull [1999] NSWCA 185 at [15]).

8. In Bull the Court said:

28. The nature and possible merits of the dispute between the various insurers remain shadowy and problematic. . . . In any event, the merits or otherwise of that dispute do not impinge upon the construction of s 151AC beyond providing an exemplar for its application.

9. There being a dispute as to which of two or more insurers is liable to indemnify the second defendant, the order sought by the notice of motion should be made.

10. Order 1 sought by notice of motion filed 15 February 2008. The respondent will pay the applicant's costs as agreed or assessed.

Mr D C Andersen of Piper Alderman appeared for the Second Defendant (Applicant)

Mr J A D de Greenlaw instructed by McCulloch & Buggy appeared for Mercantile Mutual Insurance (Workers Compensation) Limited (Respondent)

Mr A J Gardiman of Turner Freeman appeared for the Plaintiff