LAY v EMPLOYERS MUTUAL LTD [2005] NSWCA 450

LAY v EMPLOYERS MUTUAL LTD [2005] NSWCA 450

The appeal was allowed because the Court held that the retrospective amendment to s.151AB Workers Compensation Act 1987, as applied by Pt.18H cl.4 of Sch.6 to the amending act, required that the determination of the appeal proceed on the basis of the amended law, deeming employer liability to have arisen at last...

Source-derived case information.

Parties
Appellant: Audrey Lay; Respondent: Employers Mutual Limited
Jurisdiction
Australia
Judgment Date
19 December 2005
Procedural Posture
Appeal / Appeal From Dust Diseases Tribunal of NSW to Court of Appeal
Outcome
Appeal allowed with costs.
Legal Topics
Dust Diseases Liability, Insurance Indemnity for Occupational Disease, Retrospective Legislation, Accrued Rights Under Repealed Statute, Kable Principle
Workers Compensation Insurance Law Constitutional Law Dust Diseases Liability Insurance Indemnity for Occupational Disease Retrospective Legislation Accrued Rights Under Repealed Statute Kable Principle

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Summary, issues, holding and outcome

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Parties

Audrey Lay

Appellant

Employers Mutual Limited

Respondent

Procedural Posture

Appeal / Appeal From Dust Diseases Tribunal of NSW to Court of Appeal

Legal Issues

  1. 1 Whether insurance policy covered liability for common law damages for occupational disease where employer was wound up and policy was issued under repealed Workers Compensation Act 1926 s.18(6B)
  2. 2 Whether rights under repealed s.18(6B) of Workers Compensation Act 1926 survived repeal by operation of Interpretation Act 1987 (NSW) s.30(1)(c)
  3. 3 Whether retrospective amendment to s.151AB Workers Compensation Act 1987 applies to pending appeals

Ratio Decidendi

The appeal was allowed because the Court held that the retrospective amendment to s.151AB Workers Compensation Act 1987, as applied by Pt.18H cl.4 of Sch.6 to the amending act, required that the determination of the appeal proceed on the basis of the amended law, deeming employer liability to have arisen at last employment for occupational diseases. This overrode any contrary conclusion about rights under the repealed s.18(6B), and the Kable challenge to the validity of the retrospective amendments failed.

Court Disposition

Appeal allowed with costs.

Orders

  • Orders of Judge Duck of 2 April 2004 set aside.
  • In lieu, Notice of Motion before Judge Duck dismissed with costs.