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

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

The correct inquiry under s 151AB is the nature of the employment at relevant times, not whether actual exposure occurred in the last days of employment. Since the employment's nature exposing Mr Hastings to asbestos did not change up to his end date, AAI (the insurer on risk at cessation) was liable to indemnify for the damages, and the Tribunal erred in applying a probability analysis of actual exposure.

Jurisdiction
Australia
Judgment Date
12 December 2016
Procedural Posture
Appeal and Judicial Review / Court of Appeal Judgment
Outcome
Appeal allowed; Tribunal orders set aside; substituted orders entered; judicial review proceedings dismissed.
Legal Topics
['occupational Disease Liability' 'indemnity Insurance' 'contribution Between Tortfeasors' 'statutory Construction' 'costs and Bullock Orders']
['insurance Law' 'workers Compensation' 'torts' 'civil Procedure'] ['occupational Disease Liability' 'indemnity Insurance' 'contribution Between Tortfeasors' 'statutory Construction' 'costs and Bullock Orders']

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Procedural Posture

Appeal and Judicial Review / Court of Appeal Judgment

Legal Issues

  1. 1 ['Proper construction and application of s 151AB of the Workers Compensation Act 1987 (NSW) for insurer liability in occupational disease cases' 'Whether the liability of the employer/insurer arises at the cessation of employment or last exposure' 'Whether costs orders, including indemnity and Bullock orders, were properly made']

Ratio Decidendi

The correct inquiry under s 151AB is the nature of the employment at relevant times, not whether actual exposure occurred in the last days of employment. Since the employment's nature exposing Mr Hastings to asbestos did not change up to his end date, AAI (the insurer on risk at cessation) was liable to indemnify for the damages, and the Tribunal erred in applying a probability analysis of actual exposure.

Court Disposition

Appeal allowed; Tribunal orders set aside; substituted orders entered; judicial review proceedings dismissed.

Orders

  • ['The appeal be allowed.' 'Orders made by the Dust Diseases Tribunal on 1 March 2016 and 6 April 2016 set aside.' 'In lieu—judgment for the cross-claimant against the first cross-defendant for $2,240,000 in respect of damages payable to the plaintiff.' "Judgment for the cross-claimant against the first...