Sea Coatings (Australia) Pty Limited v Pascoe

This case concerned appeals by Sea Coatings (Australia) Pty Limited and another employer against orders granting a respondent leave to commence proceedings under section 151D(2) of the *Workers' Compensation Act 1987* (NSW). The respondent, a former employee, alleged he contracted or suffered an aggravation of a disease due to the nature and conditions of his employment with various employers, including the appellants. The core dispute revolved around whether the respondent had established a sufficient basis to overcome the limitation periods for bringing common law claims against these employers, particularly in light of the specific provisions of the *Workers' Compensation Act* concerning liability for diseases contracted or aggravated during employment.

The Court of Appeal was required to determine whether the primary judge had erred in exercising their discretion to grant leave to commence proceedings against the appellants. This involved considering the evidence regarding the respondent's employment history with the first two claimants, the availability of records, and the potential prejudice to those claimants if the issue of employment prior to 1 July 1991 were to be litigated. Furthermore, the court had to assess whether the respondent's injury fell within sections 15 or 16 of the *Workers' Compensation Act*, which designate the last employer as solely liable for compensation, and whether this impacted the ability to bring claims against earlier employers under section 151D(2). The court also had to evaluate the strength of the medical evidence concerning causation in the respondent's claim against the third claimant.

The appellate court found that the evidence conclusively indicated the first two claimants had not employed the respondent since 1 July 1991, and likely never employed him. The absence of pre-1 July 1991 employment records meant that litigating this issue on oral evidence would materially prejudice these claimants. The judge's exercise of discretion in favour of these claimants was vitiated by errors. Crucially, the court held that under sections 15 and 16 of the *Workers' Compensation Act*, only the last employer is liable to pay compensation for a disease contracted or aggravated during employment. Therefore, the first two claimants were not employers "liable to pay... compensation" for the purposes of section 151D(2). The claims against them were governed by the *Limitation Act 1969* (NSW), and an extension of the limitation period should have been refused. Regarding the third claimant, the medical evidence on causation was considered weak, and the judge's discretion was also vitiated by error, leading the Court of Appeal to conclude that leave should not have been granted against this employer either.

Consequently, the Court of Appeal allowed the appeals, set aside the orders granting leave to commence proceedings, and dismissed the respondent's applications for leave against the appellants with costs.