WOOLWORTHS LTD v ALLEN [1988] NSWCA 180

WOOLWORTHS LTD v ALLEN

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, SAMUELS and MCHUGH JJA 25 May 1988

[1988] NSWCA 180

WORKERS' COMPENSATION — "results from injury" — causation — two injuries — change in insurance of employer — whether incapacity results from one or both injuries — worker entitled to benefits of notional total incapacity — by whom compensation payable — trial judge (Manser J) holds incapacity "results from" second injury — whether erred in applying Pickersgill v Freightbases Pty Ltd [1983] 3 NSWLR 117 — whether evidence to support award — held: (1) Evidence to support judge's conclusion and so decision immune from disturbance by Court of Appeal. Azzopardi v Tasman UEB Industries Ltd [1985] 4 NSWLR 139 applied. (2) (per Kirby P and Samuels JA) No error shown in consideration of whether incapacity resulted from relevant injury; (per McHugh JA) if by applying a test of "proximate cause" the trial judge erred, the error was to apply a too stringent test than that required by the statutory test "results from". Conkey & Sons Ltd v Miller (1977) 51 ALJR 583 and National & General Insurance Co Ltd v South British Insurance Co Ltd & Ors (1982) 149 CLR 327 considered. LAW REFORM — workers' compensation — apportionment of liability — successive injuries to worker — suggestion by Kirby P that s7A Workers' Compensation Act be amended to permit apportionment between different insurers as well as employers. Workers' Compensation Act 1926, s7a, s9, s11(2), s37(4). Compensation Court Act 1984, s32. ORDER Appeal dismissed with costs.

Kirby P This appeal illustrates once again the limits which apply to appeals on questions of law from the Compensation Court to this Court. It does so in the context of successive injuries which raise a question for determination concerning the attributability of the continuing incapacity of the worker, as found, to the respective injuries and his entitlement to compensation in the circumstances of a change in his employer's insurance between the injuries.