An insulation supplier has failed in its appeal after a smelter worker was paid compensation following the development of lung cancer after asbestos exposure.
The worker was paid $750,000 compensation from the insurer after developing malignant mesothelioma, which was attributed to having inhaled asbestos dust while working at job sites.
In August of 2015, WorkCover Queensland accepted the worker’s claim and paid him the compensation, before notifying the manufacturers of the insulation that they would claim indemnity on the payout.
It was accepted that the worker inhaled asbestos dust and fibres dust during his employment at a Gladstone smelter between 1972 and 1974, and at GPS from 1974 and 1981.
In 2019, the indemnity was claimed in a Supreme Court proceeding against three respondents: Wallaby Grip (BAE) Pty Ltd (in liquidation), Wallaby Grip (NSW) Pty Ltd (in liquidation), and CSR Ltd.
The respondents later filed an application to strike out the statement of claim, and recently, the Wallaby Grip appellants and CSR had their appeal dismissed.
Last week, three justices ruled against the appeal, saying it was consistent with the policy of the Act in question “that no action or inaction by the person to whom compensation has been paid should extinguish or defeat the insurer’s statutory right to indemnity.”
In summarising, Justice Kelly said the appellants contended the primary judge ought to have found that, on the proper construction of the Act, the insurer was not entitled to claim the indemnity because Mr Maguire had “taken proceedings to recover, damages for his injury from another person other than his employer”.
The Wallaby Grip appellants and CSR have been ordered to pay WorkCover Queensland costs for an incidental to the appeal.