Peter Neville Crowe v Amaca Pty Limited & Ors

BACKGROUND

1. By way of Statement of Claim, lawyers for the plaintiff, Peter Neville Crowe, commenced proceedings against Amaca seeking damages for the contraction of Mesothelioma as a consequence of his exposure to asbestos dust and fibre emanating from products manufactured and/or supplied by James Hardie & Co Pty Limited.
2. Amaca issued a cross-claim against the New South Wales Land and Housing Corporation and QBE Insurance (Australia) Limited, as the plaintiff's Form 1 particulars detailed that some of the work he was required to do involving the use of James Hardie products, were on housing commission sites, the liability for which pursuant to the Housing Act 2001 (as amended) falls to NSW Land & Housing Corporation.
3. The second cross-defendant, QBE Insurance Limited, were sued on the basis that they were the employer's indemnity insurer for Viscount Caravans, for whom the plaintiff also did plumbing work on a regular basis. It is alleged that this work was performed whilst he was running his own business and/or was self-employed.
4. It has become evident between the parties that QBE Insurance Australia Limited was not the appropriate insurer.
5. Thompson Cooper have not filed an appearance with the Tribunal, but appeared before me yesterday in the interests of the WCNI to resist the application that they be joined as a cross-defendant to the cross-claim.
6. Annexure "B" to Mr Cooper's affidavit is a letter dated 19 February 2019 from Thompson Cooper Lawyers to Mills Oakley Lawyers in which it is suggested by the solicitors for the WCNI, that it would be necessary for Amaca to seek leave of the Dust Diseases Tribunal to sue the insurer directly.
7. Counsel appeared at the hearing of the motion and various submissions were made.
8. It is not in issue between the parties whether the plaintiff was a worker as it is evident that Viscount Caravans did directly not employ him.
9. Thus, the relevant question is whether or not the plaintiff was a deemed worker under Schedule 1 Clause 2 of the Workplace Injury Management and Workers Compensation Act 1988 ("WIM Act"). It reads as follows:- "1) Where a contract: (a) to perform any work exceeding $10 in value (not being work incidental to a trade or business regularly carried on by the contractor in the contractor's own name, or under a business or firm name), or is made with the contractor, who neither sublets the contract nor employs any worker, the contractor is, for the purposes of this Act, taken to be a worker employed by the person who made the contract with the contractor. (3) A person excluded from the definition of "worker" in section 4 (1) because of paragraph (d) of that definition is not to be regarded as a worker under this clause."
10. Counsel for WCNI has provided helpful written submissions which identifies the various allegations made by the plaintiff in his Statement of Claim and Statement of Particulars. They submit that basis, on the allegations made therein, were the matter to run to hearing now the plaintiff would not be able to establish that he was a deemed worker pursuant to the WIM Act. They submit that on this basis the principle test that I ought apply in deciding whether to grant leave under s 6(4) of the Law Reform (Miscellaneous Provisions) Act NSW 1946 (as it then was), I could not be satisfied that the applicant has not shown an arguable case of liability against the insurer being a liability against which the insured is indemnified by a contract of insurance in force at the time of the happening of the events said to give rise to the claim; see Oswald & Anor v Bailey & Ors (1987) 11 NSWLR 715 and State of New South Wales v AXA Insurance Australia Limited (formerly known as Union Des Assurances De Paris IARD) [2002] NSWCA 63.
11. Counsel for the Insurer also submits that although I have a discretion, leave ought not be granted as there is an available common law defendant that could be sued by Amaca instead of proceeding against the employer's indemnity insurer. They submit the appropriate course for Amaca to take is to commence proceedings in the Equity Division of the Supreme Court and seek to have Viscount Caravans restored to the register for the purpose of litigation, as they are currently deregistered. If leave was to be granted, and there being a policy of insurance that would respond, Viscount Caravans could be joined directly to the proceedings on the cross-claim.
12. Counsel for Amaca submits that the issue of having Viscount Caravans restored to the register for the purposes of this litigation is a red herring and, the question whether there is an insurer to respond to the policy is a circular argument. There is no dispute that WCNI would respond as the employer's indemnity insurer.
13. The central question they submit is whether Mr Crowe is a deemed worker under the WIM Act, and as such that is a question of fact. That being, is an issue that is able to be argued on both sides and would not be a bar to the grant of leave.
14. Amaca submits it is not open to me to make a definitive finding on the question of fact as that is a matter that ought more appropriately be dealt with by the trial judge. They further submit that there is a defence under the Civil Liability Act which allows the insurer to plead that the plaintiff is not a deemed employee, and if that argument is successful before the trial judge, the position of the insurer is protected. They submit that I ought not make a definitive finding on that question now because the proceedings are in their infancy, and all of the appropriate evidence that would be needed in consideration of the question of fact may not yet be evident.
15. In McIlvain v The Council of the Shire of Gunnedah CA 40555/97; CC2183/96 2 October 1988 wherein the following was stated: "A decision about whether a person is deemed to be employed by another within the meaning of Sch 1 Cl 2 where a contract is shown to have been made with that person to perform work exceeding $10 in value, requires consideration of whether the work was incidental to a trade or business regularly carried on by the contractor in the contractor's own name or under a business or firm name and whether the contractor sub-let the contract or employed any worker."
16. The words "requires consideration" in the above quote to my minds equates with making findings of fact. If that be so, and allowing for the fact that there are arguable points on both sides, it would be more appropriate for the trial judge to determine this question and make findings of fact on all the available evidence. The way in which that ought be done, in my view, is for leave to be granted to Amaca to file an amended cross-claim joining WCNI to the cross-claim. This also allows for those appearing for WCNI to attend the proposed bedside hearing and cross examine the plaintiff (subject to the trial judge's discretion).