QBE INSURANCE LIMITED v NOEL BULL [1999] NSWCA 185

New South Wales Court of Appeal CITATION : QBE INSURANCE LIMITED v NOEL BULL [1999] NSWCA 185 FILE NUMBER(S) : CA 40317/99 HEARING DATE(S) : 27 May 1999 JUDGMENT DATE : 11 June 1999

PARTIES : QBE INSURANCE LIMITED v NOEL BULL JUDGMENT OF : Mason P at 1; Powell JA at 1; Fitzgerald JA at 1

LOWER COURT JURISDICTION : Dust Diseases Tribunal LOWER COURT FILE NUMBER(S) : DDT 158/95 LOWER COURT JUDICIAL OFFICER : O'Meally P

G Little (Appellant) COUNSEL : J L Sharpe (1Respondent) J A De Greenlaw (Sol) (2 & 3 Respondent) Connery & Partners (Appellant) SOLICITORS : Turner Freeman (1 Respondent) McCulloch & Buggy (2 & 3 Respondent) CATCHWORDS : Workers Compensation Act, ss151AB & 151AC - "designated insurer" appointed by consent - application by other insurers to intervene to cross examine plaintiff on issues solely relevant to dispute among insurers - leave refused by Dust Diseases Tribunal - leave to appeal refused. DECISION : Reasons - Summons dismissed with costs

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40317/99 DDT 158/95 MASON P POWELL JA FITZGERALD JA

11 June 1999

QBE INSURANCE LIMITED & ANOR v NOEL BULL & ORS JUDGMENT 1 THE COURT: At the conclusion of argument the Court refused leave to appeal and dismissed the summons with costs. Our reasons follow. 2 It is well known that litigation involving "common law" claims by plaintiffs suffering from dust diseases such as mesothelioma places immense pressure upon the legal system, including judges, court staff, barristers and solicitors and, most of all, the plaintiffs themselves. 3 This type of litigation frequently involves multiple defendants. These are not just successive employers of the plaintiff, but also manufacturers and suppliers of goods said to contain asbestos or other harmful ingredients. Cross claims for contribution and indemnity are the order of the day. The Court was informed that it is sometimes the practice of the Dust Diseases Tribunal to defer determining issues of contribution and indemnity until after the matter of the plaintiff's liability is resolved. Whether this involves the formal separation of issues or the mere deferral of argument relevant to disputes between the defendants and third parties is a little unclear. No doubt the practice varies depending on the circumstances. 4 Even with deferral or postponement of issues other than those touching liability as between the plaintiff and the defendant(s) this type of litigation is complex, costly, contentious and above all crushing as it bears upon a plaintiff who may be in the final days or weeks of life. Little wonder that Parliament has seen fit to address the substantive and procedural aspects of the further layer of disputation involving multiple insurers of a single defendant. This is the role of ss151AB and 151AC of the Workers Compensation Act 1987 ("the WC Act"). 5 Section 151AB was inserted in 1989. There had been a similar provision in the 1926 legislation, but it was not included in the WC Act when first passed. The history and purpose of such a provision were examined in CIC Workers' Compensation (NSW) Ltd v Alcan Australia Ltd (1994) 35 NSWLR 169. In that case Gleeson CJ (with whom Mahoney JA and Meagher JA agreed) said (at 171): Section 151 AB deals with a problem of insurance that is particularly likely to arise in the case of occupational diseases contracted gradually by workers. The general purpose of the section is stated within it. It is to identify, from amongst a number of insurers under policies of insurance obtained by a single employer for different periods, one insurer which is to indemnify the employer for the full amount of the employer's liability to a worker who has contracted an occupational disease of the kind mentioned.