CGU Insurance Limited v AAI Limited; CGU Insurance Limited v AAI Limited [2016] NSWCA 335

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: CGU Insurance Limited v AAI Limited; CGU Insurance Limited v AAI Limited [2016] NSWCA 335 Hearing dates: 7 September 2016 Decision date: 12 December 2016 Before: McColl JA at [1]; Gleeson JA at [2]; Emmett AJA at [3] Decision: In Matter No. 2016/129941

1. The appeal be allowed. 2. The orders made by the Dust Diseases Tribunal on 1 March 2016 and 6 April 2016 be set aside. 3. In lieu of those orders there be orders as follows: (a) judgment in favour of the cross-claimant against the first cross-defendant for the sum of $2,240,000 in respect of the damages payable to the plaintiff; (b) judgment in favour of the cross-claimant against the first cross-defendant for 40 per cent of the plaintiff's costs to be agreed or assessed; (c) the first cross-defendant pay the cross-claimant's costs of the cross-claim; (d) the cross-claimant pay the second cross-defendant's costs of the cross-claim. 4. Leave be reserved to apply in relation to the reimbursement to the second cross-defendant of any sum paid by it to the plaintiff.

In Matter No. 2016/129951:

1. The proceedings be dismissed. 2. There be no order as to the costs of the proceedings. Catchwords: WORKERS COMPENSATION – insurers' liability for liability of indemnified employer of worker exposed to asbestos – occupational diseases – when liability of insurer taken to arise – construction of s 151AB of Workers Compensation Act 1987 (NSW) – where claimed liability is for injury or disease caused by exposure to asbestos fibre during particular period – whether liability taken to arise when worker last employed in that period – whether primary judge made enquiry into actual employment or nature of employment