MARITIME SERVICES BOARD OF NEW SOUTH WALES in the interests of GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v MOORE AND ANOR [1995] NSWCA 272

MARITIME SERVICES BOARD OF NEW SOUTH WALES in the interests of GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v MOORE AND ANOR

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MEAGHER, SHELLER and POWELL JJA 12 April 1995, 26 May 1995 [1995] NSWCA 272

WORKERS COMPENSATION ACT 822, s66, s67, s70 — APPORTIONMENT FACTS: The first respondent was employed by the Maritime Services Board as a crane chaser dog man between 1967 and 27 January 1991. The respondent employee was required to sling loads, and to bend and twist his body. Until 30 June 1989, the employer was insured for workers' compensation risk by the appellant, the Government Insurance Office. Thereafter the employer was self-insured. The worker brought proceedings under the Workers Compensation Act 1987 in the NSW Compensation Court for injuries resulting from the general nature and conditions of his employment between 1967 and 1991.

In determining proceedings in favour of the worker, the trial judge apportioned liability to pay awards under s66, s67 and s70 of the Workers Compensation Act as between the appellant and the second respondent (the respondent as self-insurer), pursuant to s22 of the Act.

HELD:

(1) (By Meagher, JA, Sheller and Powell JJA agreeing)

S22 of the Workers Compensation Act 1987 would only authorise apportionment in this case if there were a finding at trial that the nature and conditions of the respondent worker's employment, for that period during which the appellant bore the risk for workers' compensation liability, could on its own have supported the award for compensation. Decisions of this Court which have given such an interpretation to s22 should not be reconsidered.

Insurance Guarantee Fund - NEM General Insurance Association Ltd (In Liquidation) v Manufacturers Mutual Insurance (NSW Court of Appeal, 12 August 1994, unreported),