Workers compensation insurers deny liability for asbestos death

Date: Dec 14, 2017

Asbestos is a hazardous material that can lead to multiple deadly diseases, including asbestosis and mesothelioma.

In 2016, 575 people died from mesothelioma, with a further 700 patients diagnosed with the illness, according to the Australian Mesothelioma Registry.

One man who developed the disease after working in several roles at a factory in Rydalmere, NSW, recently sued his employer for damages. The claim was settled with the business for an undisclosed amount, but the case highlighted an interesting quirk of workers compensation law.

Four different insurers handled the company's workers compensation claims during the plaintiff's employment period. Which one was liable for payments made to the employee?

What does the Workers Compensation Act say?

Section 151AB of the Workers Compensation Act 1987 states:

"Liability is taken to have arisen when the worker was last employed by the employer in employment to the nature of which the disease was due."

Put simply, which insurer was in charge of workers compensation when the plaintiff last came into contact with asbestos in the workplace?

The four insurers were:

  • NEM: Up to June 30 1983;
  • AAI Limited: From June 30 1983 to June 30 1986;
  • Allianz Australia Insurance Limited: From June 30 1986 to June 30 1987; and
  • Allianz Australia Workers Compensation (NSW) Limited: From Jun 30 1987 to June 30 1989.

The plaintiff worked at the factory from 1974 until November 1987. However, following a promotion to contracts engineer in March 1983, the man said he did not believe he was exposed to asbestos dust after that date.

Which insurer was liable?

Using the above dates in accordance with the Act, NEM would appear to be the liable insurer, as they were providing cover at the time when the plaintiff alleged he last came into contact with asbestos.

But NEM tendered evidence that indicated building materials firm James Hardie had dumped asbestos waste onto the factory's land in the 1960s and 1970s. The wind would often blow asbestos dust onto the site, potentially leading to further exposures.

The dumping ground still had asbestos fibres and dust visible on the ground as recently as 2007.

Judge David Russell ruled that the plaintiff would likely have come into contact with asbestos up until the last day of his job, due to the hazardous material blowing from the nearby James Hardie dumping site.

As such, he decided that Allianz Australia Workers Compensation (NSW) Limited was the liable insurer, as they were handling claims when the plaintiff's employment with the factory ended.

Would you like to discuss a workers compensation claim or pursue damages for dust diseases you've developed in the workplace? Please contact a member of our team at Gerard Malouf & Partners Compensation, Medical Negligence & Will Dispute Lawyers.

Call us now on 1800 004 878 to book a free appointment with one of my compensation experts, or email your enquiry.