MLC INSURANCE LTD v PINTO and ANOR [1994] NSWCA 206

MLC INSURANCE LTD v PINTO

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, MEAGHER and HANDLEY JJA 21 October 1993, 15 March 1994 [1994] NSWCA 206

WORKERS' COMPENSATION — liability of successive insurers of employer of injured worker — worker entitled to compensation for single incapacity pursuant to s16(1) of the Workers' Compensation Act 1987 — whether Compensation Court has power pursuant to s22 of the Workers' Compensation Act to order apportionment between insurers when worker suffered successive injuries

INSURANCE — apportionment amongst insurers — workers' compensation — liability for award under s16(1) Workers' Compensation Act 1987 — whether falls on last insurer — whether may be apportioned among insurers at times of relevant injuries

Held: (by the Court) s22 only enables Compensation Court to order apportionment where two or more injuries have given rise to a single incapacity so that two or more employers or two or more insurers are liable for the same compensation.

Held: (per Clarke JA) liability amongst insurers for s16 award may not be apportioned under s22 because s16 contains its own code.

The Insurers ' Guarantee Fund NEM General Insurance Association Ltd (In Liquidation) v GIO General Ltd (Court of Appeal, 15 March 1994) followed; Morris v George [1977] 2 NSWLR 552, [1980] 1 NSWLR 81; NEM v Calver [1983] 3 NSWLR 107 and Manufacturers Mutual v National Employers' Mutual (1989) 5 ANZ Insurance Cases 60 - 906, (1990) 6 ANZ Insurance Cases 61.938 referred to.

Clarke JA This appeal concerns the power of the Compensation Court to apportion liability to indemnify an employer amongst two or more insurers in circumstances where the worker recovered an award for compensation against that employer for total incapacity resulting from the aggravation of a disease caused by the work undertaken by the worker in the course of his employment.