(Re McMichael) BP Australia Pty Limited v Allianz Australia Insurance Limited and Ors [2007] NSWDDT 11

(Re McMichael) BP Australia Pty Limited v Allianz Australia Insurance Limited and Ors [2007] NSWDDT 11

Section 151AC is intended to provide a routine, procedural mechanism to identify a designated insurer without delaying the plaintiff's dust disease claim by a contested factual trial about the timing of relevant employment. The reference in s151AC(3) to a liability that arose is therefore to be read by reference to the plaintiff's pleadings. Because Mr McMichael's Statement of Claim pleaded exposure between 1974 and 1984, BP's liability was treated for this motion as arising before 30 June 1987, so s151AC(3)(a) applied and Allianz Australia Insurance Ltd, the last insurer of BP before that date among the relevant insurers, was appointed the designated insurer.

Jurisdiction
Australia
Judgment Date
20 July 2007
Procedural Posture
Notice of Motion in Dust Diseases Tribunal Proceedings Concerning Appointment of a Designated Insurer Under S151 Ac(2) of the Workers Compensation Act 1987 / Motion for Appointment of Designated Insurer Pending Resolution of Insurer Dispute
Outcome
Motion granted; Allianz Australia Insurance Ltd appointed as designated insurer and ordered to pay BP's costs of the motion, with costs otherwise reserved.
Legal Topics
['designated Insurer for Dust Disease Claim' 'occupational Disease Liability' 'mesothelioma' 'admissibility of Evidence on Motion' 'construction of Workers Compensation Act 1987 Ss151 AB and 151 Ac']
['workers Compensation' 'insurance' 'dust Diseases' 'civil Procedure' 'statutory Interpretation'] ['designated Insurer for Dust Disease Claim' 'occupational Disease Liability' 'mesothelioma' 'admissibility of Evidence on Motion' 'construction of Workers Compensation Act 1987 Ss151 AB and 151 Ac']

Case Brief

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Procedural Posture

Notice of Motion in Dust Diseases Tribunal Proceedings Concerning Appointment of a Designated Insurer Under S151 Ac(2) of the Workers Compensation Act 1987 / Motion for Appointment of Designated Insurer Pending Resolution of Insurer Dispute

Legal Issues

  1. 1 ['Whether the Tribunal should receive evidence and make contested findings about when the worker was last employed in employment to the nature of which his disease was due for the purpose of s151AC(3).' 'Whether the words "in the case of a liability that arose" in s151AC(3) should be read by reference to the plaintiff\'s pleadings.' 'Which respondent insurer should be appointed the designated insurer liable to indemnify BP pending resolution of the insurance dispute.']

Ratio Decidendi

Section 151AC is intended to provide a routine, procedural mechanism to identify a designated insurer without delaying the plaintiff's dust disease claim by a contested factual trial about the timing of relevant employment. The reference in s151AC(3) to a liability that arose is therefore to be read by reference to the plaintiff's pleadings. Because Mr McMichael's Statement of Claim pleaded exposure between 1974 and 1984, BP's liability was treated for this motion as arising before 30 June 1987, so s151AC(3)(a) applied and Allianz Australia Insurance Ltd, the last insurer of BP before that date among the relevant insurers, was appointed the designated insurer.

Court Disposition

Motion granted; Allianz Australia Insurance Ltd appointed as designated insurer and ordered to pay BP's costs of the motion, with costs otherwise reserved.

Orders

  • ['Allianz Australia Insurance Ltd is appointed as the designated insurer responsible to indemnify BP in respect of the claim made by the plaintiff.' "Allianz Australia Insurance Ltd is to pay BP's costs of this motion." 'Costs otherwise reserved.']