FAI Workers Compensation (New South Wales) Ltd v ICI Australia Operations Pty Ltd [2001] NSWDDT 3

FAI Workers Compensation (New South Wales) Ltd v ICI Australia Operations Pty Ltd [2001] NSWDDT 3

The applicant is not entitled to summary relief at this stage because on the present evidence the cross-claim is not hopeless, and evidence from other cross-defendants or at trial may establish the necessary link for liability. Binding authority also precludes summary dismissal when evidentiary gaps might be filled at trial by any party.

Parties
Applicant/cross Defendant: FAI Workers Compensation (New South Wales) Ltd; Cross Claimant/respondent: ICI Australia Operations Pty Ltd; Party: Workcover Authority of New South Wales; Cross Defendant: FAI Traders Insurance Company Ltd
Jurisdiction
Australia
Judgment Date
26 February 2001
Procedural Posture
Application (motion) to Dismiss Cross Claim / Interlocutory/ex Tempore Judgment
Outcome
Motion dismissed
Legal Topics
Cross Claims, S 151 AB Workers Compensation Act, Insurance Liability for Dust Diseases, Summary Dismissal
Insurance Law Workers Compensation Cross Claims S 151 AB Workers Compensation Act Insurance Liability for Dust Diseases Summary Dismissal

Case Brief

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Parties

FAI Workers Compensation (New South Wales) Ltd

Applicant/cross Defendant

ICI Australia Operations Pty Ltd

Cross Claimant/respondent

Workcover Authority of New South Wales

Party

FAI Traders Insurance Company Ltd

Cross Defendant

Procedural Posture

Application (motion) to Dismiss Cross Claim / Interlocutory/ex Tempore Judgment

Legal Issues

  1. 1 Whether the s 151AB cross-claim against FAI Workers Compensation (NSW) Ltd is sustainable or should be dismissed as untenable
  2. 2 Whether an insurer can be liable for exposures outside their coverage period
  3. 3 Whether probability of actual exposure to asbestos during insurer's cover must be proved at this stage

Ratio Decidendi

The applicant is not entitled to summary relief at this stage because on the present evidence the cross-claim is not hopeless, and evidence from other cross-defendants or at trial may establish the necessary link for liability. Binding authority also precludes summary dismissal when evidentiary gaps might be filled at trial by any party.

Court Disposition

Motion dismissed

Orders

  • The motion by FAI Workers Compensation (NSW) Ltd for dismissal of the cross-claim is dismissed.
  • Costs are reserved pending final orders in the trial.