Rough justice for silicosis sufferers

Silicosis is a scary condition - it is incurable and can result in awful symptoms. To add further weight to that felt by silicosis sufferers, a recent decision of the Supreme Court of New South Wales has dealt a blow to workers suffering from silicosis who worked for employers who (illegally) did not take out workers compensation insurance.

In the recent decision of Workers Compensation Nominal Insurer v Sako [2025] NSWCA 12, the Supreme Court of New South Wales clarified the law regarding uninsured liabilities.

When an injury is not an injury

Plaintiffs’ lawyers and their clients were extremely concerned to learn that the Supreme Court has decided that workers whose employers were illegally uninsured when they were exposed to harmful silica and other workplace dusts do not have any legal remedy against the NSW state insurer, the Workers Compensation Nominal Insurer (WCNI).

Workers who suffer injuries other than dust diseases like silicosis and whose employers did not take out compulsory insurance can recover damages against the WCNI. But if their injuries are dust-related, and the employer did not have insurance, they must endure their silicosis without a remedy to seek damages against the WCNI.

At a time when thirteen tunnel workers in Sydney were diagnosed with silicosis, and countless stonemasons are being diagnosed with silicosis, this conclusion demonstrates the urgent need for the reform of dust diseases law in New South Wales.

WCNI is a safety net for some, but not all

Compulsory employers’ liability insurance was established in New South Wales almost 50 years ago to protect workers. Employers who fail to purchase insurance are guilty of breaking the law and are subject to prosecution, fines, and other legal remedies.

The law also recognises that rogue employers exist, but employees suffering serious injury while working for an uninsured employer would receive the compensation they need to continue supporting their families while getting their lives back on track.

Because of the Workers Compensation Act 1987 (NSW), the WCNI effectively stands in the shoes of what would have been the insurer and meets compensation claims brought at common law in the usual way.

Now, in what can only be described as a gap in the law or an unintended drafting error by legislators, employees of an uninsured employer who are affected by workplace accidents can be compensated, just as long as the damage done to you at work is not dust-related.