New South Wales Consolidated Acts

WORKERS COMPENSATION ACT 1987 - SECT 151AC

151AC Further special insurance provisions relating to dust diseases

(1) Application of this section This section applies in relation to an employer who is liable independently of this Act for damages for a dust disease as defined by the Workers’ Compensation (Dust Diseases) Act 1942 contracted by a worker, where there is a dispute as to which of 2 or more insurers in a category of insurers is liable to indemnify the employer under any of the provisions of section 151AB.

(2) Designated insurer to be responsible pending resolution of dispute For the purposes of section 151AB, and pending resolution of the dispute, the insurer who is the designated insurer in the relevant category under this section is to be treated as being the insurer who is so liable to indemnify the employer. Section 151AB has effect, and is to be construed, accordingly.

(3) Identification of designated insurer The following provisions have effect for the purpose of determining which insurer among the following categories of insurers is the designated insurer for the purposes of this section:

(a) If, in the case of a liability that arose before the relevant commencement, there is a dispute as to which of 2 or more insurers is liable to indemnify the employer under section 151AB, the insurer who was the last of those insurers to be the employer’s insurer while the worker was employed before that commencement by that employer is the designated insurer.

(b) If, in the case of a liability that arose after the relevant commencement, there is a dispute as to which of 2 or more insurers is liable to indemnify the employer under section 151AB, the insurer who was the last of those insurers to be the employer’s insurer while the worker was employed after that commencement by that employer is the designated insurer.

(c) If, in the case of a liability that arose partly before and partly after the relevant commencement, there is a dispute as to which of 2 or more insurers is liable to indemnify the employer under section 151AB in respect of any liability that arose before that commencement, the insurer who was the last of those insurers to be the employer’s insurer while the worker was employed before that commencement by that employer is the designated insurer.

(d) If, in the case of a liability that arose partly before and partly after the relevant commencement, there is a dispute as to which of 2 or more insurers is liable to indemnify the employer under section 151AB in respect of any liability that arose after that commencement, the insurer who was the last of those insurers to be the employer’s insurer while the worker was employed after that commencement by that employer is the designated insurer.

(4) However, the insurers in a category may agree as to which of them is to be the designated insurer or the Dust Diseases Tribunal can order that any one of them is to be the designated insurer, and any such agreement or order overrides subsection (3).

(5) Designated insurer to act for other insurers In addition to the provisions of section 151AB:

(a) where subsection (3) (a) or (b) applies-the designated insurer who is the insurer liable under section 151AB (1) is to act for all the insurers in the relevant category in the carriage of the insurance aspects of the claim, and

(b) where subsection (3) (c) or (d) applies-the designated insurer who is the insurer who is primarily responsible under section 151AB (2) is to act for all the insurers in the 2 relevant categories in the carriage of the insurance aspects of the claim.

(6) Other insurers can make submissions as to damages Despite subsection (5), if the damages payable to or in respect of the worker have not been assessed, any of the other insurers in dispute may, with the leave of the Dust Diseases Tribunal, make submissions to the Tribunal relating to the amount of damages payable.

(7) Methods of resolving dispute The dispute may be resolved by such processes as the parties to the dispute agree or as are otherwise available.

(8) Arbitration under special provisions However, if the dispute has not been resolved by the relevant time, it is to be resolved by arbitration under section 38 of the Dust Diseases Tribunal Act 1989 , unless the Dust Diseases Tribunal otherwise orders (whether before or after the arbitration commences). The "relevant time" is:

(a) subject to paragraph (b), the time when the total amount of damages is assessed and payable, or

(b) if the designated insurer pays the total amount of damages assessed, together with all costs payable, to or in respect of the worker, such later time as one of the parties to the dispute notifies to the other party or parties to the dispute.

(9) Nature of resolution of dispute For the purposes of this section, the dispute is not resolved until it has been determined which of the insurers in dispute was the insurer when the worker was last employed at the relevant time by the employer in an employment to the nature of which the disease was due. That insurer is referred to in the following provisions of this section as an "insurer who is liable".

(10) Adjustment after resolution of dispute If, on resolution of the dispute, it is determined that a designated insurer is not an insurer who is liable, then (in addition to any other liabilities) the insurer who is liable:

(a) is liable to reimburse or indemnify the designated insurer for any amounts already paid by the designated insurer in that capacity (including any amounts paid on an interim basis), and

(b) is liable to reimburse or indemnify the employer for any costs of the worker already ordered by the Dust Diseases Tribunal, and

(c) is (subject to any order of the Dust Diseases Tribunal) liable to pay the reasonable costs of any of the insurers in dispute incurred in earlier proceedings before the Tribunal because the insurer who is liable disputed liability (thereby giving rise wholly or in part to the dispute), and

(d) without affecting the generality of paragraph (c), is (subject to any order of the Dust Diseases Tribunal) liable to pay the reasonable costs of any of the insurers in dispute (other than the designated insurer) incurred in any such earlier proceedings in making submissions to the Tribunal relating to the amount of damages payable to or in respect of the worker.

(11) If, on resolution of the dispute, it is determined that a designated insurer is an insurer who is liable, then (in addition to any other liabilities) the insurer who is liable:

(a) is liable to reimburse or indemnify the employer for any costs of the worker already ordered by the Dust Diseases Tribunal, and

(b) is (subject to any order of the Dust Diseases Tribunal) liable to pay the reasonable costs of any of the insurers in dispute incurred in earlier proceedings before the Tribunal because the insurer who is liable disputed liability (thereby giving rise wholly or in part to the dispute), and

(c) without affecting the generality of paragraph (b), is (subject to any order of the Dust Diseases Tribunal) liable to pay the reasonable costs of any of the insurers in dispute incurred in any such earlier proceedings in making submissions to the Tribunal relating to the amount of damages payable to or in respect of the worker.

(12) Parties to dispute An insurer may be or become a party to the dispute even though the insurer was not a party to or represented in the original proceedings before the Dust Diseases Tribunal. Without limiting the foregoing, an insurer becomes a party to the dispute on being joined as a party to an arbitration under section 38 of the Dust Diseases Tribunal Act 1989 .

(13) Rules This section has effect subject to orders of the Dust Diseases Tribunal under rules referred to in section 33 (4) (n) of the Dust Diseases Tribunal Act 1989 .

(14) Transitional This section applies to causes of action arising before or after the commencement of this section, and extends to proceedings instituted before that commencement but only if no hearing in the proceedings has started before that commencement.

(15) Definition In this section:
"category" of insurers means the category consisting of the insurers in dispute as referred to in a paragraph of subsection (3).