INSURERS GUARANTEE FUND NEM GENERAL INSURANCE ASSOCIATION LTD v MANUFACTURERS MUTUAL INSURANCE LTD AND ORS [1994] NSWCA 149

INSURERS GUARANTEE FUND NEM GENERAL INSURANCE ASSOCIATION LTD v MANUFACTURERS MUTUAL INSURANCE LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

HANDLEY, SHELLER and POWELL JJA 12 August 1994, 12 August 1994

[1994] NSWCA 149 WORKERS COMPENSATION — APPORTIONMENT BETWEEN PARTIES

MUTUAL INSURANCE LTD and ORS WORKERS' COMPENSATION — liability of successive insurers of employer of injured worker — trial judge held worker entitled to compensation as a result of injury causing total incapacity when last insurer on risk — whether trial judge correct to apportion liability under s22 Workers' Compensation Act 1987 — held: he was not — s22 only authorises apportionment between employers and insurers where concurrent awards for the same compensation have been or could have been made against two or more employers as a result of two or more injuries: Insurers Guarantee Fund — NEM General Insurance Ltd (In Liquidation) v GIO General Ltd (1994) 33 NSWLR 247; MLC Insurance Ltd v Pinto and Anor (1994) 8 ANZ Insurance Cases 75336 applied.

WORKERS' COMPENSATION — apportionment — whether findings of trial judge supported finding that incapacity resulted from earlier injury in 1982 when appellant on risk — HELD: they could not — the trial judge's findings could only support the view that the last injury in 1987 was the cause of the worker's total incapacity: Manufacturers Mutual Insurance v National Employers Mutual (1989) 6 ANZ Insurance Cases 76788, (1990) 6 ANZ Insurance Cases 76960 applied.

ORDERS

1. Grant leave to the appellant to amend the notice of appeal in accordance with the draft filed in Court.

2. Appeal allowed.

3. Orders for apportionment made by Johns CCJ set aside.

4. Declare that the second respondent, MMI Workers Compensation (NSW) Ltd is liable to indemnify the Kiama Municipal Council for the award made by Johns CCJ in favour of the worker.