ICI Australia Operations Pty Limited (now known as Orica Australia Pty Limited) & 1 Ors v The WorkCover Authority of New South Wales

(2004) 60 NSWLR 18; [2004] NSWCA 55

NSW Court of Appeal

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Interrogate

Catchwords

1. Workers Compensation
2. › Dust diseases
3. › Insurance
4. › Identification of insurer liable to indemnify employer
5. › Employment to the nature of which the disease was due
6. › Whether court required to have regard to actual occupational disease suffered by worker
7. › Standard of proof
8. › Workers Compensation Act 1987 (NSW), s 151AB
1. Workers Compensation
2. › Dust diseases
3. › Insurance
4. › Designated insurer
5. › Capacity in which designated insurer makes payment
6. › Whether payment by designated insurer discharges employer's liability
7. › Workers Compensation Act 1987 (NSW), s 151AC
1. Workers Compensation
2. › Insurers' Guarantee Fund
3. › Insolvent insurers
4. › Whether s 232 confers duty or discretion on WorkCover Authority to make payments
5. › Content of discretion
6. › Workers Compensation Act 1987 (NSW), ss 231, 232, 234
1. Workers Compensation
2. › Insurers' Guarantee Fund
3. › Undertaking to court
4. › Whether WorkCover Authority bound by undertaking to reimburse employer
5. › Whether undertaking was conditional

Quick Take

Section 232 of the Workers Compensation Act 1987 (NSW) confers a discretion, not a duty, on the WorkCover Authority to make payments from the Insurers' Guarantee Fund. A designated insurer under s 151AC acts as statutory agent for the employer, so its payment discharges the employer's liability and does not preclude the employer from seeking reimbursement from the Guarantee Fund. The 'nature of employment' test in s 151AB requires regard to the actual occupational disease suffered by the worker, not merely any dust-related disease. A public body that undertakes to a court to exercise a statutory discretion in a particular way is bound by that undertaking.