Sako v Workers Compensation Nominal Insurer [2024] NSWDDT 6

Dust Diseases Tribunal New South Wales Medium Neutral Citation: Sako v Workers Compensation Nominal Insurer [2024] NSWDDT 6 Hearing dates: 24 May 2024 Date of orders: 11 June 2024 Decision date: 11 June 2024 Before: Scotting J Decision: (1) I grant leave to the plaintiff to continue the proceedings against the sixth defendant pursuant to s 5 Civil Liability (Third Party Claims Against Insurers) Act 2017. (2) I grant leave to the plaintiff to file the Amended Statement of Claim annexed and marked "A" to the Notice of Motion. (3) Costs of the motion are costs in the cause. Catchwords: DUST DISEASES — Insurance — Application for leave to proceed against an insurer Legislation Cited: Civil Liability (Third Party Claims Against Insurers) Act 2017 Workers Compensation Act 1987 Workers' Compensation (Dust Diseases) Act 1942 Workplace Injury Management and Workers Compensation Act 1998 Cases Cited: Murphy McCarthy and Associates Pty Ltd v Zurich Australian Insurance Ltd [2018] NSWSC 627 Category: Procedural rulings Parties: Marwan Sako (Plaintiff) Workers Compensation Nominal Insurer (Sixth Defendant) Representation: Counsel: D Hooke SC (Plaintiff) G Parker SC (Sixth Defendant)

Solicitors: Maurice Blackburn Lawyers (Plaintiff) Rankin Ellison Lawyers (Sixth Defendant) File Number(s): 2024/40261 Publication restriction: None

Judgment

Introduction 1. The plaintiff seeks leave pursuant to s 5 Civil Liability (Third Party Claims Against Insurers) Act 2017 (the 2017 Act) to continue the proceedings against the sixth defendant, the Workers Compensation Nominal Insurer (WCNI), in respect of the liability of an uninsured employer of the plaintiff, Rabi Harmes. 2. The plaintiff seeks damages for personal injury against six defendants alleging that he has contracted silicosis and a psychological injury arising from his exposure to respirable crystalline silica (RCS) in the course of his employment with three employers: 1. Rabi Harmes, in the period of about late 2009 to late 2011/2012; 2. Italian Marble and Granite Pty Ltd (Italian Marble) from about late 2011/2012 to about May 2014; and 3. Granitestone Pty Ltd (Granitestone) from about April 2017 to about July 2022. 1. It is common ground that Italian Marble and Granitestone were insured under the Workers Compensation Act 1987 (the 1987 Act) but that the insurers are no longer in existence and that leave should be granted to continue the proceedings against the WCNI relating to those employers. 2. For the purposes of the Notice of Motion, the WCNI accepts that Mr Harmes was uninsured for the period of the plaintiff's employment, and that the plaintiff was employed by Mr Harmes. 3. The plaintiff contends that he is able to make a claim on the WCNI because his employer, Mr Harmes, was uninsured: s 140 of the 1987 Act. He contends that the meaning of "uninsured" in s 140 is contextually informed by the requirement in s 155(1) and s 155(1A) of the 1987 Act that an employer's policy of insurance was required to provide cover for an injury including a "dust disease" as defined by the Workers' Compensation (Dust Diseases) Act 1942 (the 1942 Act). He also relies on a body of extrinsic material to contend that when parliament introduced the Uninsured Liability Scheme (ULS) it was intended to provide cover for all workers, who through no fault on their part, were employed by a person without insurance cover. 4. The WCNI submits that a grant of leave to continue the proceedings against it would be futile, because on proper construction, a claim relating to a dust disease is excluded from the workers compensation legislation. 5. For the reasons that follow, it is inappropriate at this time to finally decide the statutory interpretation point because it is: 1. clearly arguable and thereby not futile; and 2. not presently amenable to authoritative determination by way of separate question, appeal or a stated case. 1. In those circumstances, the plaintiff should have leave to continue the proceedings against the WCNI in respect of the plaintiff's employment with Mr Harmes. The WCNI is at liberty to bring the question for separate determination, or to reassess its position at the conclusion of the proceedings.