Wallaby Grip and CSR lose appeal after WorkCover paid former Gladstone Power Station and smelter worker $750,000 following asbestos lung cancer diagnosis

A legal stoush has exploded over a payout for a former Gladstone Power Station and smelter worker who was diagnosed with cancer from asbestos inside the facilities. Full details.

An insulation supplier has failed its appeal after a Gladstone smelter worker was paid compensation when he developed lung cancer derived from asbestos.

A former Gladstone Power Station and smelter employee was paid more than $750,000 compensation from an insurer after he developed malignant mesothelioma attributed to having inhaled asbestos dust and fibres while at the job sites.

In August 2015, WorkCover Queensland — the statutory insurer for workers’ compensation in the state — accepted the worker’s claim and paid him a total of $761,627 before notifying the insulation manufacturers it would claim indemnity on the payout.

It was accepted the worker, referred to only as “Mr Maguire”, inhaled asbestos dust and fibres during the period of his employment at a Gladstone smelter between 1972-74 and GPS from 1974-81.

The asbestos dust and fibres were said to have emanated from products manufactured, supplied or installed by the appellants.

The indemnity was claimed in a 2019 Supreme Court proceeding brought against three respondents, namely Wallaby Grip (BAE) Pty Ltd (in liquidation), Wallaby Grip (NSW) Pty Ltd (in liquidation), and CSR Ltd.

Wallaby Grip manufactured insulation products in New South Wales from 1966-79.

The insulation products manufactured contained asbestos and were supplied and distributed within Queensland and New South Wales.

CSR is one of Australian’s oldest manufacturing companies and a leading building supply firm in Australia and New Zealand.

The respondents would later file an application to strike out the statement of claim of for summary judgment in the Court of Appeal.

Last week, the Wallaby Grip appellants and CSR had their appeal dismissed.

On October 21, Justices Morrison, Mullins, and Kelly ruled against the appeal and said it was consistent with the policy of the Act 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”.

Justice Kelly said CSR further argued the insurer’s cause of action was lost against any alleged wrongdoer because it does not matter that the person whom the insurer seeks to pursue pursuant to the right of indemnity is different to the person whom the worker has taken proceedings against.

The Wallaby Grip appellants and CSR were ordered to pay WorkCover Queensland costs of an incidental to the appeal.