National & General Insurance Co Ltd v South British Insurance Co Ltd [1982] HCA 62

High Court of Australia Mason, Murphy, Wilson, Brennan and Deane JJ. National & General Insurance Co Ltd v South British Insurance Co Ltd [1982] HCA 62

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Nov. 4 Mason J.

I would dismiss the appeal for the reasons given by Deane J.

Murphy J.

I agree with Deane J. The appeal should be dismissed.

Wilson J.

I would dismiss this appeal for the reasons given by Deane J.

Brennan J.

I agree in the reasons for judgment of Deane J. The appeal should be dismissed with costs.

Deane J.

This appeal is from the Supreme Court of New South Wales (Court of Appeal). At issue is the respective liability of four different insurers in respect of an award made in favour of a worker against an insured employer. The award was made on 25 March 1980 by the Workers' Compensation Commission pursuant to the provisions of the Workers' Compensation Act, 1926 N.S.W. ("the Act"). It ordered that weekly compensation be paid by the employer to the worker on the basis of partial incapacity for periods from 1 April 1978 to 24 July 1978 and on the basis of notional total incapacity for periods from 25 July 1978 up to, and continuing beyond, the date of the award. The insured employer was the Council of the Shire of Lake Macquarie ("the Council").

The workers' employment with the Council commenced in 1966 and continued until some time after 5 January 1977. His duties involved heavy work and the use of graders and other vehicles. On a number of different occasions in the course of his employment, the worker received injuries to his back, in particular in the lumbosacral disc region, culminating in an incident on 5 January 1977 when a tractor, which he was driving, slipped over a bank. He was totally incapacitated for work from that day to 31 March 1978 and partially incapacitated for work from 1 April 1978 onwards. At some time subsequent to 5 January 1977, his employment was terminated on the ground that he was medically unfit for work. In July 1978, while unemployed and partially incapacitated, the worker sought suitable employment with the Council. The Council advised him that it was not in a position to offer him employment at that time. It is common ground that, from 25 July 1978, the Council failed to provide the worker with suitable employment during his partial incapacity for work.