MANUFACTURERS MUTUAL INSURANCE LTD v GOODYEAR AUSTRALIA and ORS [1997] NSWCA 195

MANUFACTURERS MUTUAL INSURANCE LTD v GOODYEAR AUSTRALIA and ORS

NEW SOUTH WALES SUPREME COURT COURT OF APPEAL

SHELLER and POWELL JJA, and SHEPPARD AJA 30 September 1997, 11 December 1997

[1997] NSWCA 195

Insurance — Dust disease — Which of three insurers obliged to indemnify employer for damages suffered by employee for employer's failure to take proper and adequate measures to protect employee from exposure to asbestos fibres from which he contracted mesothelioma — Workers' Compensation Act 1987 s151AB

An employee of the first respondent, Goodyear Australia Ltd, contracted mesothelioma, a disease of gradual onset for the purposes of s151AB of the Workers' Compensation Act 1987. The employee recovered damages from Goodyear. The employee had been employed by Goodyear from 1 July 1957 to 27 November 1987. Throughout this period, there were, from time to time, free asbestos fibres in Goodyear's plant. From the mid 1970s until the plant closed in the 1990s after the employee's employment had ceased, Goodyear took continuous steps to monitor asbestos on its premises and to remove it or isolate it. There was no time, however, when there were not some asbestos fibres present in the plant. Over the period of the employee's employment with Goodyear, it had three insurers. These were National Employers' Mutual General Insurance, the second respondent, which had insured Goodyear from | January 1942 to 30 June 1958 and from 1 July 1962 to 30 June 1983, Manufacturers Mutual Insurance, the appellant which had insured Goodyear between 1 July 1983 and 30 June 1987, and MMI Worker's Compensation, the third respondent, which had insured Goodyear from | July 1987 to the date of the cessation of the plaintiff's employment on 27 November 1987. The Dust Diseases Tribunal found that the insurer at risk when the employee was last employed by the employer in work which exposed him to asbestos dust was Manufacturers Mutual and that it was the insurer who was to indemnify Goodyear for the amount of the damages which it was obliged to pay. Manufacturers Mutual had ceased to be the insurer on 30 June 1987, almost five months before the employment ceased. Held: That the insurer at risk was MMI Workers' Compensation because it was the insurer at risk when the employee was last employed by Goodyear in an employment to the nature of which the disease was due. Discussion of purpose and intention of s151AB of the Workers' Compensation Act 1987 and of its meaning and effect. Workers' Compensation Act 1987 s151AB (as in force prior to WorkCover Legislation Amendment Act 1995 taking effect) Workers' Compensation (Dust Diseases) Act 1942