(re Aitken) N.S. DONNELLEY PTY LTD v CGU WORKERS COMP NSW LTD AND ORS [2006] NSWDDT 26

(re Aitken) N.S. DONNELLEY PTY LTD v CGU WORKERS COMP NSW LTD AND ORS [2006] NSWDDT 26

On either view of the plaintiff's claim, CGU and Allianz were not liable to indemnify Donnelley. If the claim was confined to the amended statement of claim, employment and exposure ended in 1973, before the insurers' alleged risk periods. If the particulars and affidavit were considered, employment extended to 1991 but asbestos exposure was limited to the early 1980s, again before the alleged risk periods. A finding or assertion of exposure outside those time frames would not be within the plaintiff's claim and would encounter the problem identified in Baker and FAI. The cross-claims were therefore untenable and had to be dismissed.

Jurisdiction
Australia
Judgment Date
14 August 2006
Procedural Posture
Dust Diseases Tribunal Cross Claim Against Workers Compensation Insurers / Applications by CGU Workers' Compensation (nsw) Limited and Allianz Australia Limited to Dismiss Cross Claims Brought by N.s. Donnelley Pty Limited
Outcome
CGU's application succeeded, Allianz's application also succeeded, and Donnelley's cross-claims against both were dismissed.
Legal Topics
['indemnity by Workers Compensation Insurer' "section 151 AB of the Workers' Compensation Act 1987" 'asbestos Exposure and Mesothelioma' 'dismissal of Cross Claim' 'general Steel Test']
['workers Compensation' 'insurance' 'dust Diseases' 'civil Procedure'] ['indemnity by Workers Compensation Insurer' "section 151 AB of the Workers' Compensation Act 1987" 'asbestos Exposure and Mesothelioma' 'dismissal of Cross Claim' 'general Steel Test']

Case Brief

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Procedural Posture

Dust Diseases Tribunal Cross Claim Against Workers Compensation Insurers / Applications by CGU Workers' Compensation (nsw) Limited and Allianz Australia Limited to Dismiss Cross Claims Brought by N.s. Donnelley Pty Limited

Legal Issues

  1. 1 ["Whether CGU Workers' Compensation (NSW) Limited was liable to indemnify N.S. Donnelley Pty Limited for the judgment sum paid to James Aitken." 'Whether Allianz Australia Limited was liable to indemnify N.S. Donnelley Pty Limited on the same basis.' "Whether the relevant indemnity inquiry was confined to the plaintiff's pleaded claim, particulars and affidavit, or could extend to alleged exposure after the periods relied on by the plaintiff."]

Ratio Decidendi

On either view of the plaintiff's claim, CGU and Allianz were not liable to indemnify Donnelley. If the claim was confined to the amended statement of claim, employment and exposure ended in 1973, before the insurers' alleged risk periods. If the particulars and affidavit were considered, employment extended to 1991 but asbestos exposure was limited to the early 1980s, again before the alleged risk periods. A finding or assertion of exposure outside those time frames would not be within the plaintiff's claim and would encounter the problem identified in Baker and FAI. The cross-claims were therefore untenable and had to be dismissed.

Court Disposition

CGU's application succeeded, Allianz's application also succeeded, and Donnelley's cross-claims against both were dismissed.

Orders

  • ["Pursuant to Part 13 Rule 4(1)(b) of the Uniform Civil Procedure Rules, the cross-claim brought by N.S. Donnelley Pty Limited against CGU Workers' Compensation (NSW) Limited and against Allianz Australia Limited be dismissed."]