Morrison v AAI Limited t/as Vero Insurance [2023] NSWDDT 7

Dust Diseases Tribunal New South Wales Medium Neutral Citation: Morrison v AAI Limited t/as Vero Insurance [2023] NSWDDT 7 Hearing dates: 17 August 2023 Date of orders: 25 August 2023 Decision date: 25 August 2023 Before: Russell SC DCJ Decision: (1) Grant leave nunc pro tunc pursuant to ss 4 and 5 of the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) to the plaintiff to commence and continue these proceedings against AAI Ltd t/as Vero Insurance in respect of any liability for damages and costs against Svitzer Towage Holdings Pty Ltd (formerly known as Howard Smith Industries Ltd). (2) Order that the costs of the plaintiff's Notice of Motion filed on 9 March 2023 be costs in the cause. (3) Dismiss the sixth defendant's Notice of Motion filed on 15 June 2023. (4) Order the sixth defendant to pay the plaintiff's costs of the sixth defendant's Notice of Motion filed on 15 June 2023. Catchwords: DUST DISEASES – prescribed dust diseases – asbestosis INSURANCE – application for leave to proceed against an insurer – leave granted DAMAGES – Act abolished common law right to bring action from 24 June 1993 unless cause of action accrued prior to that date as per Smith v ANL Ltd – when did plaintiff's cause of action arise – exposure to asbestos in 1970s – diagnosis of asbestosis in 2014 – aetiology of asbestosis – initial deposition of fibres when viewed retrospectively caused molecular/cellular changes at time of exposure – eventually and inevitably progressed to asbestosis – reasoning in Alcan Gove Pty Ltd v Zabic applied Legislation Cited: Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW), ss 4, 5 Dust Diseases Tribunal Regulation 2019 (NSW), cl 17 Seafarers Rehabilitation and Compensation (Transitional Provisions and Consequential Amendments) Act 1992 (Cth), ss 4, 6 13 Seamen's Compensation Act 1911 (Cth) Seafarers Rehabilitation and Compensation Act 1992 (Cth), ss 19, 54 Uniform Civil Procedure Rules 2005 (NSW), r 13.4 Workers Rehabilitation and Compensation Act 1986 (NT), ss 52, 189 Cases Cited: Alcan Gove Pty Ltd v Zabic [2015] HCA 33; (2015) 257 CLR 1 Avant Insurance Ltd v Burnie [2021] NSWCA 272 Samson Maritime Pty Ltd v Aucote [2014] FCAFC 182 Smith v ANL Ltd [2000] HCA 58; (2000) 204 CLR 493 Texts Cited: American Thoracic Society, "Diagnosis and Initial Management of Nonmalignant Diseases Related to Asbestos", (2004) American Journal of Respiratory and Critical Care Medicine Vol 170 Category: Procedural rulings Parties: George Shields Morrison (Plaintiff) AAI Limited t/as Vero Insurance (Sixth Defendant) Representation: Counsel: S Tzouganatos (Plaintiff) G Parker SC (Sixth Defendant)