Workcover Authority of New South Wales v Chubb Australia Ltd

The Workcover Authority of New South Wales appealed a decision of the Dust Diseases Tribunal concerning a cross-claim for indemnity. The original claim was brought by Mr George Vasiliou against his employer, Chubb Australia Ltd, for damages for negligence resulting in mesothelioma. Chubb then cross-claimed against various insurers who had provided cover during Mr Vasiliou's employment. The primary judge had found Mr Vasiliou's exposure to asbestos dust ceased in 1978, which caused his mesothelioma, and awarded damages against Chubb. The appeal concerned the judge's subsequent decision on the cross-claim, where he found the appellant, Workcover Authority of New South Wales, liable to indemnify Chubb.

The central legal issue before the Court of Appeal was whether the primary judge erred in determining that the appellant, Workcover Authority of New South Wales, was liable to indemnify Chubb Australia Ltd under section 151AB of the *Workers Compensation Act 1987* (NSW). This section governs the identification of insurers liable to indemnify an employer for damages for an occupational disease. The dispute revolved around the interpretation of "last employed before that commencement" within section 151AB(1)(a) and how it applied to the factual findings regarding the cessation of Mr Vasiliou's exposure to asbestos dust.

The Court of Appeal found that the primary judge had erred in his application of section 151AB. While the judge had initially found that Mr Vasiliou's exposure to asbestos ceased in 1978, he later considered additional evidence, including an occupational health and safety report, which suggested potential sources of asbestos contamination and disturbance in Chubb's premises up until 1983, particularly during roof replacement. The judge acknowledged this evidence but concluded it was insufficient to alter his primary finding that the relevant exposure for the purposes of section 151AB had ceased in 1978, thereby making the insurer on risk at that time (NEM, whose liability was assumed by Workcover) solely liable. The Court of Appeal held that the judge's reasoning was flawed, as he appeared to have been misled by submissions regarding the Schaapveld report and had not properly considered the implications of the later potential exposure.

The appeal was allowed, and the primary judge's judgment and orders on the cross-claim were set aside. The matter was remitted to the primary judge to be dealt with in accordance with the reasons of the Court of Appeal. Costs were reserved.