Morrison v AAI Limited t/as Vero Insurance [2023] NSWDDT 7

Morrison v AAI Limited t/as Vero Insurance [2023] NSWDDT 7

The plaintiff's cause of action for asbestosis accrued prior to 24 June 1993 because, on the balance of probabilities and applying the reasoning of Alcan Gove Pty Ltd v Zabic with medical evidence, initial pathological changes after asbestos exposure led inevitably to asbestosis; as such, legislative abolition of common law rights did not apply and leave to proceed against the insurer was appropriate.

Jurisdiction
Australia
Judgment Date
25 August 2023
Procedural Posture
Civil (dust Diseases Tribunal Proceeding) / Determination of Interlocutory Applications for Leave to Continue Proceedings Against the Insurer and to Dismiss Proceedings as Disclosing No Reasonable Cause of Action
Outcome
Leave nunc pro tunc granted to plaintiff to commence and continue proceedings against insurer; costs of plaintiff's Notice of Motion to be costs in the cause; sixth defendant's Notice of Motion dismissed with costs ordered against the sixth defendant.
Legal Topics
['asbestosis' 'prescribed Dust Diseases' 'third Party Claims Against Insurer' 'accrual of Cause of Action' 'divisible Disease' 'seafarers Compensation' 'limitation and Abolition of Common Law Claim' 'jurisdiction and Procedural Rules']
['tort Law' 'insurance Law' 'personal Injury Law' 'employment Law'] ['asbestosis' 'prescribed Dust Diseases' 'third Party Claims Against Insurer' 'accrual of Cause of Action' 'divisible Disease' 'seafarers Compensation' 'limitation and Abolition of Common Law Claim' 'jurisdiction and Procedural Rules']

Case Brief

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Procedural Posture

Civil (dust Diseases Tribunal Proceeding) / Determination of Interlocutory Applications for Leave to Continue Proceedings Against the Insurer and to Dismiss Proceedings as Disclosing No Reasonable Cause of Action

Legal Issues

  1. 1 ["When did the plaintiff's cause of action for asbestosis against the employer accrue?" "Is the claim against the employer's insurer maintainable under the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW)?" 'Does the claim fall within the abolition of common law rights under the Seafarers Rehabilitation and Compensation Act 1992 (Cth)?' 'Should leave be granted to continue proceedings against the insurer?' 'Should the proceedings against the insurer be dismissed for disclosing no reasonable cause of action?']

Ratio Decidendi

The plaintiff's cause of action for asbestosis accrued prior to 24 June 1993 because, on the balance of probabilities and applying the reasoning of Alcan Gove Pty Ltd v Zabic with medical evidence, initial pathological changes after asbestos exposure led inevitably to asbestosis; as such, legislative abolition of common law rights did not apply and leave to proceed against the insurer was appropriate.

Court Disposition

Leave nunc pro tunc granted to plaintiff to commence and continue proceedings against insurer; costs of plaintiff's Notice of Motion to be costs in the cause; sixth defendant's Notice of Motion dismissed with costs ordered against the sixth defendant.

Orders

  • ['Grant leave nunc pro tunc pursuant to ss 4 and 5 of the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) to the plaintiff to commence and continue these proceedings against AAI Ltd t/as Vero Insurance in respect of any liability for damages and costs against Svitzer Towage Holdings Pty Ltd...