Dust Diseases Tribunal of New South Wales CITATION : Depasquale v Allianz Australia Insurance Limited & Anor [2008] NSWDDT 5 This decision has been amended. Please see the end of the judgment for a list of the amendments. Andrew Michael Depasquale PARTIES : Allianz Australia Insurance Limited Amaca Pty Limited MATTER NUMBER(S) : 7050 of 2007 JUDGMENT OF: Kearns J Dust Diseases Tribunal :- application to proceed against insurers under s.6(4) of the Law Reform (Miscellaneous Provisions) Act 1946 whether leave should be refused because s.151AB of the Workers Compensation Act identified an appropriate insurer CATCHWORDS: whether s.151AB applies where there is no insurer on risk when plaintiff last employed in employment to which the nature of his disease is due issue not decided on an interlocutory claim whether exposure of a kind to satisfy test under s.151AB not determined on an interlocutory basis Law Reform (Miscellaneous Provisions) Act 1946 LEGISLATION CITED: Workers Compensation Act 1987 Dust Diseases Tribunal Act 1989 CASES CITED: Tzaidas v Child [2004] NSWCA 252 Wunderlich Limited v Manufacturers Mutual Insurance Limited [1981] 2 NSWLR 678 DATES OF HEARING: 30.01.2008, 31.01.2008 DATE OF JUDGMENT: 31 January 2008 Mr G Little, SC instructed by Turner Freeman appeared for the Plaintiff LEGAL REPRESENTATIVES: Mr G P F Rundle instructed by Hicksons Lawyers appeared for the First Defendant No Appearance for the Second Defendant Mr G P F Rundle instructed by Hicksons Lawyers appeared for the proposed third defendant Mr Swan of Moray & Agnew appeared for the proposed fourth defendant JUDGMENT: JUDGMENT KEARNS, J 1. On 23 January 2008, the plaintiff filed a notice of motion seeking leave to proceed against some insurers pursuant to s 6(4) of the Law Reform (Miscellaneous Provisions) Act 1946 and also seeking other relief. In support of the motion the plaintiff relied on the material contained in the affidavit of Bronwyn Mary Donnelly sworn on 22 January 2008. The insurers against whom leave is sought are Allianz Australia Insurance Limited (Allianz), Allianz Workers Compensation (NSW) Pty Limited (Allianz Workers Compensation) and CGU Workers Compensation (NSW) Limited (CGU). 2. In the course of hearing the application, Mr Rundle, who appeared for both the Allianz insurers, moved on a motion that had been filed on 5 September 2007. That motion by Allianz sought that the amended statement of claim against it be struck out and that the proceedings against that insurer be struck out. Mr Little of senior counsel who appeared for the plaintiff had no opposition to the relief sought in that notice of motion and the matter then proceeded on the basis that the proceedings against Allianz would be struck out. 3. The matter was argued on the basis of s 6(4) of the Law Reform (Miscellaneous Provisions) Act. Mr Rundle and Mr Swan who appeared for CGU both argued that the plaintiff was not entitled to the relief sought under that section. The argument was based fundamentally on s 151AB of the Workers Compensation Act 1987. The plaintiff's case is that he was exposed to asbestos when employed by Lifesavers Australasia Limited (Lifesavers) and that he has contracted asbestosis as a result. Mr Rundle took me to a number of documents to demonstrate the plaintiff's case on exposure. 4. The plaintiff was employed by Lifesavers from 1963. In par 3 of his amended statement of claim filed on 24 July 2007 he alleged exposure up to a date in about late 1984 when asbestos was removed from the factory environment in which he worked. A similar claim was made in the plaintiff's particulars where at par 4.26 the plaintiff said he was last exposed to asbestos around late 1984. A similar claim was made in par 4 of his statutory declaration, being annexure C to the affidavit of Bronwyn Donnelly. I note, however, in par 15 of that statutory declaration the plaintiff states he believed he would have been exposed to asbestos at Lifesavers up until he retired in September 1993. 5. It is not precisely clear when the asbestos was removed from the factory premises where the plaintiff worked but the evidence before me suggests I should proceed on the basis that it was late in 1984. As it turned out the whole of the asbestos in the factory premises was not removed and the roofing contained asbestos material. The significance of that is that from time to time, following the removal of asbestos from the premises in late 1984, golf balls from a nearby golf driving range were hit onto the roof of the Lifesavers premises. As part of his duties the plaintiff was required to remove golf balls from the roof and had, or may have had, exposure to asbestos in these circumstances. Also he was required to carry out some roof repairs when golf balls damaged the roof and had exposure to asbestos in these circumstances. 6. It is fairly clear then that the plaintiff's exposure to asbestos was more intense before the removal of asbestos from the premises in late 1984 but his exposure continued at a lesser level thereafter until he retired in 1993. Attached to the plaintiff's notice of motion is a proposed further amended statement of claim. It is that document upon which I should proceed as the earlier proceedings will be dismissed. In this document the plaintiff pleads employment by Lifesavers from 20 February 1963 to 13 October 1989. That cut off date is consistent with annexure D to the affidavit of Bronwyn Donnelly where an email from Nestlé Australia Limited suggests that Nestlé Confectionery Limited may have become the employer of the plaintiff on or about 13 October 1989. It seems clear, therefore, that the plaintiff is limiting his claim of exposure in this case to a period that expires on 13 October 1989. 7. Section 6 of the Law Reform (Miscellaneous Provisions) Act 1946 relevantly provides: (1) If any person (hereinafter in this Part referred to as the insured) has, whether before or after the commencement of this Act, entered into a contract of insurance by which the person is indemnified against liability to pay any damages or compensation, the amount of the person's liability shall on the happening of the event giving rise to the claim for damages or compensation, and notwithstanding that the amount of such liability may not then have been determined, be a charge on all insurance moneys that are or may become payable in respect of that liability. (2) If, on the happening of the event giving rise to any claim for damages or compensation as aforesaid, the insured (being a corporation) is being wound up, or if any subsequent winding-up of the insured (being a corporation) is deemed to have commenced not later than the happening of that event, the provisions of subsection (1) shall apply notwithstanding the winding-up. (3) Every charge created by this section shall have priority over all other charges affecting the said insurance moneys, and where the same insurance moneys are subject to two or more charges by virtue of this Part those charges shall have priority between themselves in the order of the dates of the events out of which the liability arose, or, if such charges arise out of events happening on the same date, they shall rank equally between themselves. (4) Every such charge as aforesaid shall be enforceable by way of an action against the insurer in the same way and in the same court as if the action were an action to recover damages or compensation from the insured; and in respect of any such action and of the judgment given therein the parties shall, to the extent of the charge, have the same rights and liabilities, and the court shall have the same powers, as if the action were against the insured: Provided that, except where the provisions of subsection (2) apply, no such action shall be commenced in any court except with the leave of that court. Leave shall not be granted in any case where the court is satisfied that the insurer is entitled under the terms of the contract of insurance to disclaim liability, and that any proceedings, including arbitration proceedings, necessary to establish that the insurer is so entitled to disclaim, have been taken. 8. It seems to me that the elements of s 6 have been established in this case. Lifesavers had entered into several contracts of insurance by which it was indemnified against liability to pay damages. Details of that insurance are as follows: - MMI General or some form of MMI company was on risk at all relevant times up until 31 July 1984; - the evidence does not disclose any insurer on risk from 31 July 1984 until 6 May 1985; - again MMI General or some other form of MMI company was on risk from 6 May 1985 until 30 June 1988; - CGU was on risk from 30 June 1988 until 30 June 1990; - it would seem that one or other of the Allianz companies has assumed the insurance liabilities of MMI. I sought some clarity as to whether it was Allianz or Allianz Workers Compensation that was on risk from 30 June 1987 to 30 June 1988 but the parties were not able to assist in that regard. 9. The next element of s 6 that has been satisfied is that Lifesavers have ceased to exist. Proceedings necessary to establish that any of the insurers is entitled to disclaim liability have not been taken. So the general prohibition or the absolute prohibition against the making of an order under s 6 does not apply. As was pointed out, however, in Tzaidas v Child [2004] NSWCA 252, that is not an end of the matter. There is still a general discretion when it comes to determining whether leave should be granted under s 6 and if, for example, any of the insurers were indeed entitled to disclaim liability it would be futile to grant leave. Other considerations may make it appropriate to refuse the grant of leave. 10. Mr Rundle's argument is that s 151AB provides the answer as to why leave should not be granted under s 6. Section 151AB relevantly provides: "(1) If an employer is liable independently of this Act for damages for an occupational disease contracted by a worker, the following provisions have effect for the purposes of any policy of insurance obtained by the employer: (a) the liability is taken to have arisen when the worker was last employed by the employer in employment to the nature of which the disease was due, subject to paragraph (b), (b) if the worker was employed by the employer in employment to the nature of which the disease was due both before and after the relevant commencement, the liability is taken to have arisen both when the worker was last employed by the employer in employment to the nature of which the disease was due before the relevant commencement and when the worker was last employed by the employer in employment to the nature of which the disease was due after the relevant commencement. … (6) In sections 151AB and 151AC: occupational disease means a disease of such a nature as to be contracted by a gradual process, and includes: (a) a dust disease as defined by the Workers' Compensation (Dust Diseases) Act 1942, and …" 11. Mr Rundle's argument, as I understood it, proceeded on the basis of a two-pronged attack. The first was that, on the material before me, the last date on which the plaintiff was employed to the more intense exposure was a date late in 1984. I think that must be so. His argument then proceeded that, in relation to that type of exposure, there was no insurer on risk according to the evidence at that time and therefore his client Allianz could not be liable by reason of the provisions of s 151AB. 12. The second prong of the argument was that in relation to the plaintiff's less intense period of exposure, that is from late 1984 until his retirement in 1993 or as per the proposed amended statement of claim in 1989, there is an insurer on risk and it is neither of his clients. Mr Rundle argues that although the latter period was a period of less intense exposure it was, or may be, materially contributory exposure, because added to all the other exposure it may be exposure of a kind that was additionally contributory to all the previous exposure and may indeed have been the straw that broke the camel's back. 13. Mr Swan argued that as there was exposure after his client came on risk his client would not be the last relevant insurer for the purposes of s 151AB. I think I must reject that submission on the basis that the plaintiff by his now proposed amended statement of claim seeks to limit the exposure on which he claims to a period ending on 30 October 1989 when CGU was on risk. 14. I think the answer by Mr Little SC to the arguments of Mr Rundle must be accepted for the purposes of this application. Mr Little SC argues that s 151AB is a section for the purposes of insurance and he meets Mr Rundle's two pronged argument in the following way. 15. As to the period of more intense exposure he submits that the time when the asbestos was removed from the factory premises is not certain. I can proceed, however, only on the basis of the allegations in the evidence before me and those allegations and the evidence place the removal of the asbestos from the premises late in 1984. Mr Little SC then proceeds to argue that late in 1984 being the time when the plaintiff was last employed in employment to the nature of which the disease was due there was on the evidence no insurer on risk. That being the case, he argues, s 151AB will have no application and the matter will fall to be determined according to appropriate principles of insurance law applicable before the introduction of that section or its equivalent. 16. I queried whether there was any authority that determined that point but counsel were unable to refer me to any. It seems to me therefore that that is a viable argument available to the plaintiff in this case and if indeed it is the case that that argument is correct then s 151AB could not apply and could not be utilised by Allianz to say that it cannot be liable. 17. As to the period of lesser exposure the answer of Mr Little SC to the argument of Mr Rundle was that without the calling of all the evidence in this case and an analysis of that evidence it cannot be known whether the exposure in the later period was causative of the plaintiff's condition or indeed whether it was employment to the nature of which the disease was due. 18. Certainly the plaintiff has suffered an occupational disease within the meaning of s 151AB. So much is plain from the definition of occupational disease in the section. However, that is only one element to be satisfied before the section applies. There must also be employment conditions to the nature of which the disease was due. I cannot tell on the material before me whether after 1984 the plaintiff was employed in employment conditions to the nature of which the disease was due and if he was not then s 151AB can have no application for the purpose of determining a responsible insurer or an insurer primarily responsible. 19. It is theoretically possible that the plaintiff was not employed in employment to the nature of which the disease was due and yet in fact that employment could be contributory to his disease. This is because the inquiry for the purposes of s 151AB is a general inquiry related to how the disease generally is contracted - Wunderlich Limited v Manufacturers Mutual Insurance Limited, [1981] 2 NSWLR 678 at 682(D) whereas the causation question is a particular inquiry as to whether the exposure did materially contribute to the disease. In other words, a disease might in fact be caused in a particular way even though that is generally not the way it is caused. I am in no position to rule that s 151AB provides the determination of the appropriate insurer in the period when the plaintiff was less exposed. 20. In the circumstances I think the plaintiff is entitled to the relief sought pursuant to s 6(4) of the Law Reform (Miscellaneous Provisions) Act 1946. There are a few matters that prevent the making of final orders at the moment and they are these. 1. Which insurer was on risk in the period 30 June 1987 to 30 June 1988 is not clear on the evidence. It must, however, clearly be a matter of record as to whether it was Allianz or Allianz Workers Compensation. If it was not Allianz Workers Compensation it seems to me there will be no need or basis for granting any leave or making any order against that insurer. Until the parties can tell me which of the Allianz insurers was on risk in that period, I think it would be inappropriate to make final orders. 2. The next matter is that in addition to s 6(4) other relief was sought in the notice of motion and was not argued, in particular, orders were sought under s 17(5) of the Dust Diseases Tribunal Act joining insurers as defendants. It seems to me that if the plaintiff obtains the relief under s 6(4) orders under s 17(5) are not necessary and indeed may even be inappropriate. 3. The third matter is that in the course of his opening submissions Mr Little SC let it fall that he may need to make some further amendment to the further amended statement of claim that is annexed to the notice of motion. I should not make any final order in relation to granting leave to file and serve the further amended statement of claim until any further amendment, if it is to be granted, is settled. 21. I shall accordingly leave it to the parties to bring in short minutes of order in conformity with my reasons. For this purpose, I shall list the matter for the handing up of short minutes on Thursday, 7 February 2008. 06/03/2008 - typographical error - Paragraph(s) Catchwords DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.