CONTAINER TERMINALS OF AUSTRALIA LTD v FINNEY SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MEAGHER, SHELLER and POWELL JJA 12 April 1995, 14 September 1995 [1995] NSWCA 93 Workers Compensation — Assessment and amount of compensation — Claim for weekly compensation and for lump sum awards pursuant to s66 and s67 — Incapacity resulting from injuries received before and after commencement of 1987 Act — Against whom award to be made. Workers Compensation — Liability for — Successive employers — Worker suffering successive injuries resulting in incapacity — Injuries received before and after commencement of 1987 Act — Sole liability of last employer — Claim for apportionment. Workers Compensation — Assessment and amount of compensation — claim for weekly compensation and for lump sum awards pursuant to s66 and s67 — Incapacity resulting from injuries received before and after commencement of 1987 Act — Against whom award to be made. Workers Compensation — Liability for — Successive employers — Worker suffering successive injuries resulting in incapacity — Injuries received before and after commencement of 1987 Act — Sole liability of last employer — Claim for Apportionment. The First Respondent ("the worker") was, for a period of 12 years, or more, employed on the waterfront in the capacity of a tally clerk, the duties then expected to be performed by a tally clerk seemingly being far more extensive than used once to have been the case. During that period, the worker was employed, in succession by the Respondents, Liner, Conaust, and SEAL. and the Appellant, CTAL. The worker's employment with Liner was all before 1987, that with Conaust partly before, and partly after the coming into force of the 1987 Act, that with SEAL between November 1991 and 1992, and that with CTAL from and after November 1992. At varying times while in the employ of Liner, Conaust and SEAL the worker sustained compensable injuries to his back, in respect of which he received, for varying periods, and either pursuant to the 1926 Act or the 1987 Act, weekly compensation. Despite those injuries, the worker's back continued to function, albeit symptomatically, adequately enough so that the worker was able to continue to Perform his usual duties. In February 1993, the worker, while driving a forklift at CTAL's premises, sustained a further injury to his back, which injury led to him being off work for 3 months, during which time he underwent a laminectomy/discectomy. The worker then brought proceedings in the Compensation Court seeking as against Liner, Conaust, SEAL and CTAL, weekly compensation, lump sum payments pursuant to s66 and s57, and s60 expenses. Burke CCJ held that, although the earlier incidents had contributed to the worker's deteriorating back condition, the incapacity which the worker suffered in 1993 resulted from the injury sustained in 1993, and therefore made an Award against CTAL alone. On appeal, CTAL sought to argue: 1. that Burke CCJ erred in finding that the incapacity resulted from the 1993 injury; and 2 UNREPORTED JUDGMENTS 2. that, while, in a case such as this, liability to pay weekly compensation could not be apportioned, liability to pay lump sum compensation could. ORDER Appeal dismissed with costs. Meagher JA I agree with Powell JA. Sheller JA I agree with Powell JA. Powell JA The question which arises for determination on this appeal from a Judgment delivered, and Award made, in favour of the First Respondent ("the Applicant') against the Appellant on 22nd September 1994 by Burke CCJ in the Compensation Court is whether, notwithstanding such decisions of the Court of Appeal as Insurers Guarantee Fund - NEM General Insurance Association Ltd (In Liq) v GIO General Ltd! ("NEM v GIO"); MLC Insurance Ltd v Pinto and Ors? ("Pinto"); Insurance Guarantee Fund - NEM General Insurance Association Ltd (In Liq) v Manufacturers Mutual Insurance Ltd and Ors} ("NEM v MMI), it was, in the circumstances of the case, open to Burke CCJ to apportion the Award which he made pursuant to the provisions of s66 of the Workers Compensation Act 1987 and whether in imposing the liability to meet that Award solely on the Appellant, his Honour fell into error. Because the parties appear to have been of the view that that issue did not require a consideration of the evidence which was placed before Burke CCJ on the hearing the appeal papers contain no evidentiary material whatsoever. Further, Burke CCJ's Judgment, which was clearly an ex tempore Judgment, is very short and does not descend to a great deal of detail. By reason of these facts, it is difficult, indeed, to have any great confidence in the accuracy of the history which I set out below, which history I have had to cobble together from such few documents as are in the appeal papers and such facts as I have been able to glean from Burke CCJ's Judgment. As best as I can judge it, the Applicant, who is now aged 45 years, was, at least between August 1981 and February 1993, employed on the waterfront in the capacity of a tally clerk - the duties then expected to be performed of a tally clerk in that period appear to have been rather more extensive than those expected to be performed by a tally clerk some 40 or 50 years ago. During the period to which I have just referred, the Applicant was employed in succession by each of the Second to Fifth Respondents and the Appellant, the period during which he was employed by each, and his employer's insurer during each such period, being as I set out below: 1. Liner Services Pty Ltd ("Liner") subsequently known as Lucasen Pty Ltd (In Liq) between August 1981 and October 1985, Liner's Workers Compensation insurer during this period being Manufacturers Mutual Insurance Ltd ("MMI"). 2. the Second Respondent, Conaust (NSW) Pty Ltd ("Conaust") (wrongly sued as Conaust (Australia) Pty Ltd) from October 1985 to June 1990 - it being noted that it was during this period, namely on 30th June 1987, when the Workers Compensation Act 1987 ("the Act") came into operation - Conaust's Workers Compensation insurer during this period being the Government Insurance Office of New South Wales ("GIO") (as it was then known); 1. (1994) 33 NSWLR 247 2. Court of Appeal 16th March 1994 (as yet unreported) 3. Court of Appeal 12th August 1994 (as yet unreported) URJ CONTAINER TERMINALS OF AUSTRALIA LTD v FINNEY (Powell JA) 3 3. the Third Respondent, Conaust (wrongly sued as Conaust Limited) from June 1990 to November 1991, Conaust's Workers Compensation insurer during this period being GIO; 4. the Fourth Respondent, Stevedoring Employers of Australia Ltd ("SEAL") (wrongly sued as Association of Employers of Waterside Labour) from November 1991 to November 1992, SEAL's Workers Compensation insurer during this period being GIO; 5. the Appellant from November 1992 to and including 2nd March 1993 - the relevance of which date will shortly appear - and thereafter, the Appellant's Workers Compensation insurer during this period being Heath Workers Compensation (NSW) Pty Ltd ("Heath"). At various times during the period when he was employed by Liner, Conaust and SEAL, the Applicant sustained compensable injury in respect of which he was to receive, for varying periods, and either pursuant to the provisions of the Workers Compensation Act 1926 ("the old Act") or of the Act, weekly compensation - it is, of course, to be recalled, that the "Table of Maims" set out in sl6 of the old Act did not provide for the payment of any lump sum compensation in respect of any permanent impairment of back, neck or pelvis sustained by a worker as the result of a work related injury - those injuries, and the times at which they were sustained, being as I set out below: 1. on 4th October 1984 whilst employed by Liner, and while working at Liner's premises, the Applicant injured his back while lifting a hand trolley; 2.(a) on 30th March 1987 while employed by Conaust, and in the course of his employment, the Applicant slipped and struck his back upon a large paper roll; (b) on 26th November 1987, while still in the employment of Conaust, and in the course of his employment, the Applicant lifted a work case on to a desk and injured his back; 3.(a) on 3rd June 1992, while employed by SEAL, and in the course of his employment, the Applicant injured his back while unpacking containers; (b) on 14th July 1992 while still in the employ of SEAL, and whilst at work, the Applicant sneezed and further aggravated his back condition. However, although - whether with or without the need for filing a formal application - the Applicant received weekly compensation in respect of the periods during which he was unable to work as the result of his various injuries, no claim for either lump sum compensation for permanent impairment or for pain and suffering was filed prior to June 1993 when these proceedings were commenced. While, given the date of the relevant injury, and the provisions of the old Act, this is explicable enough in the case of the injury which the Applicant sustained while employed by Liner, the only explanation for the failure to make any such application in respect of either of the injuries sustained by the Applicant while employed by Conaust or in respect of the injuries sustained by the Applicant while employed by SEAL seems to be that - as Burke CCJ was to observe during the course of his Judgment (Appeal Book 81) - that "until the cessation of employment with (SEAL) the Applicant's back had continued to function albeit symptomatically but at least adequately, to perform the work without any major medical intervention". The incident, in respect of what were alleged to be the sequelae of which Burke CCJ made his Award is recorded in his Honour's Judgment in the following terms (Appeal Book 79-80): 4 UNREPORTED JUDGMENTS *Ultimately, on 2 February 1983 he ceased work. Immediately prior thereto he had been doing some 3 hours of driving a forklift over bumpy conditions and the vehicles themselves not particularly well sprung (sic) and he probably added a sneeze in there somewhere. In any event, by the time he was off the forklift he, in fact, was in a fairly parlous condition. He tried his usual self-help remedies over the ensuing days without effect, sought medical advice, was referred to various people and ultimately underwent surgery by Dr Bentivoglio. That achieved a satisfactory result insofar as it relieved the major symptoms of which he was complaining. He still has problems. He still has what he termed a 'sciatica' in the left leg. He still has a back problem, but certainly the acute symptoms which caused him to cease work on 2 February 1993 have been relieved by surgery." The Applicant was off work for a period of 3 months from 2nd February to 2nd May 1993 during which time he underwent the surgery by Dr Bentivoglio - a laminectomy/discectomy - referred to in the passage from Burke CCJ's Judgment to which I have just referred, and thereafter returned to work with the Appellant. On 7th July 1993, there was filed on behalf of the Applicant an Application for Determination in which the Applicant sought as against each of the Appellant, Liner, Conaust and SEAL, weekly compensation, lump sum compensation pursuant to s66 of the Act and s60 expenses. On 6th July 1994 there was filed on behalf of the Applicant a Further Proposed Amended Application for Determination,in which the Applicant sought as against the Appellant,Liner, Conaust and SEAL weekly compensation, lump sum payments of compensation pursuant to s66 and s67 of the Act and s60 expenses. In that Further Proposed Amended Application for Determination, the Applicant assigned as the cause of his injury as against the Appellant, Liner, Conaust and SEAL the respective incident, or incidents, which had occurred while the Applicant was employed by each Respondent to the Application. When he came to determine which of the Appellant, Liner, Conaust and SEAL was liable to pay compensation to the Applicant, Burke CCJ proceeded as follows (Appeal Book 80-82): "The question posed is, firstly, from which injury or injuries does the incapacity on and after 2 February result. It seems to me the man carried on with whatever had happened to him before, up until the event of 2 February 1993 and that that was the last straw that broke the camel's back or however you care to phrase it, but it was the incident which progressed the condition to such a degree that he then needed operative treatment and, indeed, was incapacitated. I do not think there is any doubt that the last and fifth respondent, Container Terminals Limited is responsible for compensation for the period of incapacity and the reasonable necessary medical treatment. When we arrive at s66 we get some very interesting philosophical arguments. Mr Wynyard for the fifth respondent says, essentially, the first respondent injured his back in 1984 and has been downhill ever since. True, there have been a variety of incidents, some with the second, third, fourth respondents and ultimately, with him, the fifth respondent, but really they have merely been essentially incidents in a continuum, predictable from the results of the first injury back in 1984. The other limb of the argument is, true, the man was by virtue of the events of 2 February 1993, rendered incapacitated and in need of treatment, but that treatment has, to a degree, relieved symptoms and, indeed, the applicant is no worse off now as far as his back is concerned, or the condition of his back, than URJ CONTAINER TERMINALS OF AUSTRALIA LTD v FINNEY (Powell JA) 5 he was when he came into the employment of CTAL originally. In my view, that overlooks the one critical fact, that the applicant has undergone back surgery. There has been surgical intervention. He was left with a recommendation that he curtail the types of activities. That is not unusual following back surgery. Surgeons are always prone to suggest that you do not expose the back to stresses which will cause a recrudescence of the problem and it seems to me that the last event cannot be excluded from the series of events which brought the applicant to his present condition. 'Results from' is a simple phrase which has had much judicial gloss. The applicant, in my view, is in the condition which he is in at present because of a whole variety of factors, including the work with all the other respondents up to and including CTAL. In one sense, they have all contributed to bringing about the current situation. If one were to apportion it, one would tend, I think, to suggest that the first injury was probably the beginning of the end, as it were, but the question is still, from what injury or injuries does the applicant's current condition result? Until the cessation of employment with the fourth respondent, the applicant's back had continued to function albeit symptomatically, but a least adequately, to perform the work without any major medical intervention. Following the incident with the fifth respondent, it was not so. The applicant's back did not function and he did require major medical intervention. It seems to me that the post-operative result can be said to be the consequence of the last injury, in the sense of the present state of his back, the present disability or permanent impairment results from the last injury, albeit there were a whole variety of injuries and incidents before, which have contributed to that effect. It is therefore my view that the fifth respondent is not only liable for the period of weekly payments and the medical expenses, but also liable for the payment in respect of any permanent impairment." Having earlier indicated that, as it appeared that there might be a further claim, or further claims, in respect of further losses resulting from the incident on 2nd February 1993, he was not disposed at that stage to make any Award under s67 of the Act, Burke CCJ then made an Award that the Appellant pay the Applicant weekly compensation in the sum of $545.10 from 3 February 1993 to 2 May 1993, a lump sum pursuant to s66 of the Act of $19,500.00 in respect of permanent impairment of the back, interest on the lump sum calculated at the rate of 6% per annum in respect of the period 3 February 1993 to 22 December 1994, medical and other expenses pursuant to s60 of the Act and costs. His Honour also reserved to the Applicant leave to apply in respect of further losses and any entitlement under s67, and the Appellant leave to apply "in respect of any apportionment (which might) be applicable. His Honour also made an Award in favour of each of Liner. Conaust and SEAL. Despite the fact that, as I have noted, Burke CCJ had reserved to the Appellant "leave to apply in respect of any apportionment", on 17th October 1994, there was filed on behalf of the Appellant a Notice of Appeal in which the grounds upon which the Appeal was sought to be sustained were as follows: "1. That his Honour erred in ordering the Appellant to pay compensation to the worker pursuant to s66 of the Workers Compensation Act 1987. 2. That his Honour erred in holding that the Appellant the last employer at risk when an incident occurred was liable for payment of all non-economic loss. 6 UNREPORTED JUDGMENTS 3. That his Honour erred in that he failed to find what portion of the loss suffered by the worker was caused by each injury pleaded." the relief sought being (inter alia): "1. That the Judgment (sic) of His Honour Judge Burke be set aside. 2. That the matter be remitted to the Compensation Court of New South Wales for determination in accordance with this Honourable Court's findings." When the Appeal was called on for hearing, Mr CJ Wynyard appeared for the Appellant, Mr PJ Menary appeared with Mr GJ Ballard for the Applicant, Mr JE Maconachie QC appeared with Mr LG Stone for Liner and Mr IW Raine appeared for Conaust and SEAL. In opening the Appeal, Mr Wynyard informed the Court (Transcript at 1): "T am content with the law as it is at the moment. I am simply going to say the {sic) apportionment is available between the new Act respondents for this particular injury." while, in his Written Submissions on behalf of the Appellant, Mr Wynyard had earlier written (Submissions at 2): "(a) It is submitted that s22(1)(b) provides explicitly for the apportionment of non-economic loss. (b) None of the decisions of this Honourable Court relating to s22 deal with the question of non-economic loss. They are concerned with the entitlement to economic loss, which is dependent upon a worker proving incapacity for work. The ratio decidendi of each case is dependent upon the factual finding as to which injury caused an incapacity." (the decisions of the Court to which Mr Wynyard later referred in his submissions being Pinto4+; NEM v GIOS; and NEM v MMI°). Later again in his Written Submissions, and in his submissions on the hearing of the Appeal, Mr Wynyard sought to demonstrate that since no "liability to pay" what he described as "compensation for economic loss" arises until incapacity arises, the cases to which he referred do not apply to cases of "non-economic loss", since "liability to pay" is fixed by statute upon the insurer or respondent bearing the risk at the time the loss occurred. As will be apparent from what I have recorded above, Mr Wynyard did not appear to advance any submission to the effect that, whatever might be the fate of his submissions, any Award for apportionment in the Appellant's favour could be made against Liner. This is hardly surprising since, as I have pointed out above, the "Table of Mains" contained in s16 of the old Act made no provision for compensation in relation to impairments of the back, and since CLS of Pt6 of Schedule 6 of the Act provides: "6. Compensation is not payable to a worker who has suffered a loss or impairment of a thing mentioned in the table to Division 4 of Pt3 of this Act if (a) it resulted from an injury received before the commencement of that Division; and (b) it is not a loss or impairment for which compensation was payable under s16 of the former Act." it following that Liner was never subject to any liability to pay to the Applicant lump sum compensation for any permanent impairment to his back which he might have sustained as the result of the incident in October 1984. 4. supra 5. supra 6. supra URJ CONTAINER TERMINALS OF AUSTRALIA LTD v FINNEY (Powell JA) 7 With respect, I am unable to accept Mr Wynyard's submissions in regard to the Appellant's claim for an Award of apportionment against Conaust and SEAL. The simple answer to those submissions, as it seems to me, is that a claim for weekly compensation is not dependent solely upon incapacity, nor is a claim for lump sum compensation, whether under s66 or s67 of the Act, dependent upon there having been a loss; each of those claims, if it is to be successful, depends on the Applicant having first received an injury (s9(1)) from which injury the incapacity, or partial incapacity (s33) or loss (s66) or pain and suffering resulting from such loss (s67) has resulted. Thus, while it may be true to say that no Award may be made unless, and until, incapacity, or partial incapacity, or loss, has resulted from an injury, the liability to pay whatever compensation to which an applicant is held to be entitled is fixed by, and at the time of, the relevant injury. It follows, that, even H it were true to say - as Mr Wynyard has submitted - that the cases to which he referred in his submissions have not dealt, in express terms, with the question of apportionment of lump sum payments, the principle expounded in such cases, is nonetheless applicable to claims for an Award of apportionment in respect of lump sum payments. That that is the correct view of the application of the provisions of s22 of the Act is demonstrated by two more recent decisions of this Court (Maritime Services Board of New South Wales v Moore7; Leone Holdings Pty Ltd v JW Kirkwood Pty Ltd8) each of which was concerned to deal with a claim for an award of apportionment in relation to lump sum compensation pursuant to s66 of the Act, and the former of which was also concerned to deal with a claim for an award of apportionment in respect of lump sum compensation pursuant to the provisions of s67 of the Act, in each of which cases the principle enunciated in NEM v GIO®, and thereafter applied in both Pinto! and NEM v GIO!! was applied in relation to claims for an Award of apportionment in relation to lump sum payments. It follows, in my view, that as Burke CCJ held that while each of the various incidents to which I have earlier referred other than the last, contributed to the deterioration of the Applicant's back, but that it was the last incident in February 1993 which led to the Applicant's need for surgery and the impairment of the efficient use of his back consequent upon that injury and the necessary surgery, this is not a case in which it could be said that there was a concurrent liability in each of the Appellant, Conaust and SEAL for the Appellant's loss of the efficient use of his back. For these reasons I would propose that the Appeal be dismissed with costs. Appeal dismissed with costs. Counsel for the Appellant: CJ Wynyard (Last Employer) Counsel for the Respondents: 1 Worker: PJ Menary and GJ Ballard 2 Former Employer: JE Maconachie QC and LG Stone Court of Appeal 26th May 1895 (unreported) Court of Appeal 9 June 1995 (unreported) supra supra supra FSeen 8 UNREPORTED JUDGMENTS 4 Former Employers: IW Raine Solicitors for the Appellant: John Sharpe, Solicitor for Heath Workers Compensation (NSW) Pty Ltd Solicitors for the Respondents: 1 Worker: WG McNally and Co 2 Former Employer: Gadens Ridgway 4 Former Employers: PW Turk and Associates