GRATE LACE PTY LTD t/as GRATE LACE BRICKLAYING CO v THEISS WATKINS WHITE (CONSTRUCTIONS) PTY LTD AND ORS [1995] NSWCA 183

GRATE LACE PTY LTD t/as GRATE LACE BRICKLAYING CO v THEISS WATKINS WHITE (CONSTRUCTIONS) PTY LTD AND ORS

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL GLEESON CJ, KIRBY P and SHELLER JA

14 September 1995, 11 October 1995

[1995] NSWCA 183

WORKERS' COMPENSATION — incapacity — disease of gradual onset — obligation of last employer — exclusion of irrelevant employments — bricklayer sensitised — held: (Allowing appeal): Liability fell on last employer employing worker as bricklayer.

WORKERS' COMPENSATION — incapacity — disease contracted by gradual process — assignment of liability to particular employer — dermatological condition caused by exposure to allergen in cement — first manifestation in 1985 — subsequent bricklaying employments up to 1986 — in Compensation Court, Grayson C assigns liability to last employer — on review, Manser CCJ assigns liability to employer in whose employment sensitisation was first manifested upon return to Grayson C, the award is amended to conform to Manser CCJ's opinion — upon further appeal to the Court of Appeal — held: (1) Having regard to the date of commencement of proceedings, the appeal was limited to correction of an error or law; (2) Manser CCJ erred in law in his application of the provisions of the Act assigning liability to the last employer; (3) Having regard to the transitional provision contained in the Workers' Compensation Act 1987, the relevant, applicable section for determining liability was s15(1) of the 1987 Act; (4) Under that section the proper employer, liable to pay compensation, was the last employer. Smith v Mann (1932) 47 CLR 426 considered.

Workers' Compensation Act 1926, s7(4), s7(5). Workers Compensation Act 1987, s15, Schedule 6, Pt4, CL4, CLS.

Gleeson CJ I have had the benefit of reading in draft form the judgment of Sheller JA.