By Caroline Hutchinson, Associate Team Leader,
Litigation & Dispute Resolution
Lessons your business can learn from a recent client issue
It is a common misconception that workers must make a claim
within three years of their injury and that present insurance will
provide cover for the claim. Whilst this is the case for many
claims, there are exceptions of which you should be aware - this
can apply to any workplace.
A client recently contacted Coleman Greig regarding this issue.
They were being sued by an old employee who left their business in
around 1990. They were baffled - how could this be the case?
Wasn't there some sort of limitation period that
To make matters worse, the claimant was suffering from a
terminal disease and action was immediately required. Who was their
workers' compensation insurer back in 1990 or before? The
concern was that they might have to foot the bill for the
For many years, I have acted in the Dust Diseases Tribunal
(DDT). It is a unique jurisdiction, one which has
it own rules, can require urgent attention and can be confusing. It
is not uncommon for a business to be served with papers one day and
for a claimant's evidence to be taken one or two days
later. The DDT specifically deals with people suffering from
"dust related conditions" including asbestos diseases
such as the terminal cancer known as mesothelioma. It is a horrible
disease and one which is generally well compensated.
Many of you would be aware of the names James Hardie and the
campaigner, Bernie Banton, which are now synonymous with asbestos.
Mr Banton himself died of mesothelioma. Unfortunately, it is a
disease that has what is called a "latency period", which
means it can take up to 40 years for the symptoms to display
themselves after exposure. Therefore, in the DDT, there is no
limitation period on a claim - a person employed in the
1950's can make a claim now.
I can hear many of you thinking, 'this couldn't
involve us, our business didn't make asbestos products or
supply them. We'll be right...' well, unfortunately
you could be wrong.
Many claims involve contractors who worked on different sites
over many years and your business can potentially be pulled into
the litigation. It is possible that you could have had as little as
an asbestos roof or shed or a boiler on site. So what do you do
about it? How can you be prepared for such a claim?
Getting back to my client... Given the 20 years since the
claimant was employed, managers had changed, many of the personnel
had moved on or retired and documents had been destroyed. The
company had only basic evidence of insurance and no paperwork to
establish whether or not there was any asbestos on site. Without
these documents or help from people "in the know" it
became a very stressful period. Work had to be done to track down
former employees, to work out insurance and determine the
possibility of asbestos on site.
What should you do?
So what lessons can you learn from such a situation?
Realise that claims can be made by persons employed or working
on your site 20, 30 or 40 years ago, and that your business will be
held financially responsible if you can't find
Realise that even if your business or company has changed names
or hands, it still might be found liable.
Arrange for an employee list to be maintained with names,
addresses, phone numbers and their position held.
Talk to your current employees and find out as much information
from them as possible.
Keep records of insurance (old and new) and retain copies of
Maintain a register of workers' compensation,
contractors' liability and public liability insurers.
Don't rely on your broker - the broker may no longer be in
If you don't know who your insurer was in the past,
start making enquiries now with your present insurer. They
sometimes have details of previous policies.
Most importantly - don't destroy documents.
Retain them - scan them - put them on your database – and
let others in management know where they are.
And what was the result for my client?
Without documents, they very prudently asked me to undertake
searches and enquiries to ascertain the identity of their past
insurers. Just as well, because as we embarked on this exercise
another claim was received, this time from the 1970's. This
tends to happen in the DDT.
Certainly on the next occasion, my client will be prepared and
have the necessary information for insurance purposes.
If you have any concerns regarding the possibility of a claim
being made against your business, contact Coleman Grieg now for
advice on how you can "risk-proof" your business and
avoid lengthy litigation disputes – Phone 02 9635 6422 or
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Treasurer Scott Morrison recently announced changes to a number of 2016 Budget superannuation contribution measures.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).