MANUFACTURERS MUTUAL INSURANCE LTD v GOODYEAR AUSTRALIA and ORS [1997] NSWCA 195

MANUFACTURERS MUTUAL INSURANCE LTD v GOODYEAR AUSTRALIA and ORS [1997] NSWCA 195

The insurer liable under s151AB is the one on risk when the employee was last employed by the employer in an employment of such a kind as to involve a risk of contracting the gradual process disease; here, the evidence established that risk existed through the end of the employment and into the period insured by MMI Workers Compensation (NSW) Ltd, making it the liable insurer.

Parties
Appellant: Manufacturers Mutual Insurance Ltd; First Respondent: Goodyear Australia Ltd; Second Respondent: Insurers' Guarantee Fund - National Employers' Mutual General Insurance Association Ltd (In Liquidation); Third Respondent: MMI Workers Compensation (NSW) Ltd
Jurisdiction
Australia
Judgment Date
11 December 1997
Procedural Posture
Appeal / Judgment on Appeal From Dust Diseases Tribunal
Outcome
Appeal allowed in part
Legal Topics
Dust Diseases, Occupational Disease, Employer Indemnity, Mesothelioma, Identification of Liable Insurer
Insurance Law Workers' Compensation Tort Law Dust Diseases Occupational Disease Employer Indemnity Mesothelioma Identification of Liable Insurer

Case Brief

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Parties

Manufacturers Mutual Insurance Ltd

Appellant

Goodyear Australia Ltd

First Respondent

Insurers' Guarantee Fund - National Employers' Mutual General Insurance Association Ltd (In Liquidation)

Second Respondent

MMI Workers Compensation (NSW) Ltd

Third Respondent

Procedural Posture

Appeal / Judgment on Appeal From Dust Diseases Tribunal

Legal Issues

  1. 1 Which insurer is liable under s151AB of the Workers' Compensation Act 1987 to indemnify the employer for damages arising from an employee contracting mesothelioma of gradual onset?
  2. 2 What is the correct construction and application of s151AB in relation to the timing and nature of exposure to asbestos in employment?

Ratio Decidendi

The insurer liable under s151AB is the one on risk when the employee was last employed by the employer in an employment of such a kind as to involve a risk of contracting the gradual process disease; here, the evidence established that risk existed through the end of the employment and into the period insured by MMI Workers Compensation (NSW) Ltd, making it the liable insurer.

Court Disposition

Appeal allowed in part

Orders

  • The appeal be allowed in part.
  • The order made by the Dust Diseases Tribunal on 19 June 1995 be set aside.