Costigan v QBE Insurance (Australia) Ltd [2011] NSWDDT 5

Costigan v QBE Insurance (Australia) Ltd [2011] NSWDDT 5

QBE was the insurer last on risk at the last alleged relevant negligent exposure to silica for which the plaintiff claimed damages against Dai John, namely January 1974. Although the plaintiff alleged later employment, the relevant appointment exercise was interlocutory and procedural, and was determined by reference to the pleaded and claimed period of exposure. Because Dai John had two insurers and neither agreed to indemnify it, there was a dispute, making it appropriate to appoint QBE as designated insurer under s 151AC of the Workers Compensation Act 1987.

Jurisdiction
Australia
Judgment Date
21 April 2011
Procedural Posture
Application to Appoint Designated Insurer / Ruling
Outcome
QBE Insurance (Australia) Ltd appointed designated insurer of Dai John Excavating Co Pty Ltd for the purposes of s 151AC of the Workers Compensation Act 1987.
Legal Topics
['designated Insurer' 'occupational Disease' 'silicosis' 'indemnity Dispute' 'interlocutory Insurance Procedure']
['dust Diseases' 'workers Compensation' 'insurance'] ['designated Insurer' 'occupational Disease' 'silicosis' 'indemnity Dispute' 'interlocutory Insurance Procedure']

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Procedural Posture

Application to Appoint Designated Insurer / Ruling

Legal Issues

  1. 1 ['Whether QBE Insurance (Australia) Ltd should be appointed as the designated insurer of Dai John Excavating Co Pty Ltd for the purposes of s 151AC of the Workers Compensation Act 1987.' "Whether the appointment of a designated insurer should be determined by reference to the plaintiff's pleadings and the period for which damages are claimed, notwithstanding alleged exposure after QBE went off risk."]

Ratio Decidendi

QBE was the insurer last on risk at the last alleged relevant negligent exposure to silica for which the plaintiff claimed damages against Dai John, namely January 1974. Although the plaintiff alleged later employment, the relevant appointment exercise was interlocutory and procedural, and was determined by reference to the pleaded and claimed period of exposure. Because Dai John had two insurers and neither agreed to indemnify it, there was a dispute, making it appropriate to appoint QBE as designated insurer under s 151AC of the Workers Compensation Act 1987.

Court Disposition

QBE Insurance (Australia) Ltd appointed designated insurer of Dai John Excavating Co Pty Ltd for the purposes of s 151AC of the Workers Compensation Act 1987.

Orders

  • ['QBE Insurance (Australia) Limited is appointed designated insurer for the purposes of s 151AC of the Workers Compensation Act.' 'Its liability to indemnify Dai John Excavating Co Pty Ltd is a matter not yet considered.' "Costs of this application will be the plaintiff's costs in the cause." 'The Issues and...