THE widow of a Port Stephens man who died before a precedent-setting dust disease case could be settled has had a $300,000 damages settlement upheld in the NSW Court of Appeal.
But June Davies, of Taylors Beach, may still have another legal hurdle to clear, with the decision stayed for 40days to see if insurer CGU takes the matter to the High Court.
Newcastle solicitor Gerard McMahon said the decision was one of two handed down on Wednesday by the court that opened the door for people in similar positions denied the ability to pursue their cases before now.
Mr McMahon said Eric Davies had worked as a pottery caster for 50years from 1940 to 1990, when he retired.
The Dust Diseases Tribunal and the Court of Appeal heard Mr Davies was exposed to, and inhaled, silica dust, which caused the lung diseases silicosis and ‘‘progressive massive fibrosis’’.
Mr Davies began legal action in 2011 but he died in March 2013, nine months before the dust tribunal found in his favour.
Mr McMahon said the Davies case, and Alliance Australia Insurance versus Wade Pomfret, turned on the court’s interpretation of Section 151AB of the Workers Compensation Act 1987.
This said that an employer’s liability for an occupational disease was deemed to arise on the last day the person worked in the job that caused the disease.
In the Davies case, investigations had shown that a company called South British Insurance Company had insured Mr Davies’ employer Fowler until June 30, 1979, two months before the company was taken over by a James Hardie subsidiary called Seapip. Mr McMahon said there were no records to show who the subsequent insurers might have been.
CGU Insurance Ltd, which took over South British, argued that Mr Davies contracted the disease after its period of liability, when CGU was ‘‘no longer on risk’’.
The dust tribunal and the appeal court rejected this.
In the Davies judgment, Justice Anthony Meagher said ‘‘the relevant liability, which in this case was agreed, is for an occupational disease caused only by exposure to silica dust during a particular period’’ ending June 30, 1979.
‘‘That is the time at which by Section 151AB(1) Fowler’s liability for that disease is taken to have arisen,’’ Justice Meahger said.
‘‘South British was on risk at that time and its policy indemnified Fowler against that liability.’’
Mrs Davies declined to comment.