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), Insurers Guarantee Fund - NEM General Insurance Association Ltd (In Liquidation) v GIO General Ltd (1994) 33 NSWLR 247, Manufacturers Mutual Insurance Ltd v National Employers Mutual General Insurance Associated Ltd (1989) 5 ANZ Ins. Cas. 60,906, Manufacturers Mutual Insurance Ltd v National Employers Mutual General Insurance Association Ltd (1990) 6 ANZ Ins Cas 61,038, MLC Insurance Ltd v Pinto and Anor (1994) 8 ANZ Ins. Cas. 75,336, applied. Morris v George [1977] 2 NSWLR 552, considered. (2) To read s22 in a wider form, such that it authorises a judge to order any past employer or insurer to contribute to an award if its conduct was in any way causative of a worker's injury, would be difficult to reconcile with other provisions of the Act, including CL6(1) of Pt6 of the Sixth Schedule. Conkey and Sons Ltd v Miller (1977) 51 ALJR 583, considered. ORDERS: (1) Appeal allowed. (2) His Honour the trial judge's apportionment of liability between insurers be set aside. (3) In lieu thereof there be substituted an order and Award that the second respondent as self insurer be liable to pay the award. (4) The second respondent to pay the costs of the appeal. 2 UNREPORTED JUDGMENTS CASES CITED: Conkey and Sons Ltd v Miller (1977) 51 ALJR 583 Insurance Guarantee Fund - NEM General Insurance Association Ltd (In Liquidation) v Manufacturers Mutual Insurance (NSW Court of Appeal, 12 August 1994, unreported) Insurers Guarantee Fund - NEM General Insurance Association Ltd (In Liquidation) v GIO General Ltd (1994) 33 NSWLR 247 Manufacturers Mutual Insurance Ltd v National Employers Mutual General Insurance Associated Ltd (1989) 5 ANZ Ins Cas 60,906 Manufacturers Mutual Insurance Ltd v National Employers Mutual General Insurance Association Ltd (1990) 6 ANZ Ins Cas 61,038 MLC Insurance Ltd v Pinto and Anor (1994) 8 ANZ Ins Cas 75,336 Morris v George [1977] 2 NSWLR 552 Meagher JA This is an appeal from a judgment of Manser CCJ. The relevant facts are as follows. Mr Raymond Moore, the first respondent, began working with the Maritime Services Board in 1967 as a crane chaser dog man, and continued in that position until about 27 January 1991. His job required him to sling loads, and to bend and twist his body. His duties included some lifting and a great deal of working in awkward places. He said at trial that his work was reasonably heavy, but the most arduous aspect of it, he said, was bending, being in awkward positions, and carrying timber. Until 30 June 1989, the employer was insured for workers' compensation risk by the appellant, the Government Insurance Office, and thereafter the employer was self-insured. The worker brought proceedings for benefits under the Workers Compensation Act 1987 in the Compensation Court of New South Wales alleging injury to the back resulting from the general nature and conditions of his employment with the Maritime Services Board over the years between 1967 and 27 January 1991. On 19 May 1992, Manser CCJ determined those proceedings in favour of the worker, finding that the worker had suffered from widespread degenerative changes in his lower back. His Honour the trial judge awarded the worker weekly compensation which was continuing from 4 February 1991 at the maximum statutory rate, such award being on the basis of total incapacity. His Honour also awarded the worker significant lump sum compensation under s66, s67 and s70 of the Act in respect of permanent impairment of the worker's back, his resulting pain and suffering, and his hospital and medical expenses. In giving judgment on that day, Manser CCJ, pursuant to s22 of the Workers Compensation Act, purported to apportion liability to pay the award as to 75 per cent against the appellant and 25 per cent against the second respondent to this appeal, that is, the respondent as self-insurer. Following further argument between the insurers on 23 June 1992, his Honour confirmed his earlier decision on apportionment. This appeal is in respect of Manser CCJ's apportionment of liability in respect of payments under s66, s67 and s70 of the Workers Compensation Act, and concerns the proper application of s22 of the Act. S22(1) provides that if (a) the death or incapacity of a worker; or (b) a loss suffered by a worker as referred to in Division 4 of Pt3 of the Act; or (c) a liability under Division 3 of Pt3 of the Act to a worker, results from more than one injury to the worker, liability to pay compensation under the Act is to be apportioned in such manner as the Compensation Court determines. WAARITIME SERVICES BOARD OF NEW SOUTH WALES in the interests & GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v MOORE AND ANOR (Meagher JA) The grounds of the appeal are that his Honour the trial judge erred in apportioning to the appellant any liability to satisfy the Award of compensation, or alternatively that his Honour apportioned to the appellant an excessive amount of liability to satisfy the Award or parts thereof. It is not disputed by the appellant that the nature and condition of the worker's employment between 1967 and 1989 contributed to his incapacity. Counsel for the appellant have argued, however, that apportionment could only be authorised in this case if there were a finding that the nature and conditions of the employment between those dates could, on its own, have supported the award for compensation. They have submitted that it is clear from the findings of the trial judge that the worker had what could be described as a 'single incapacity', and that the single incapacity was owing to the cumulative effect of the nature and conditions of his employment. On the appellant's submission there was no finding made by the trial judge that the conditions of the worker's employment between 1967 and 1989 could, alone, have supported the award for compensation; that is, the losses suffered and liabilities incurred by the worker did not in His Honour's view result from 'more than one injury' within the meaning of s22(1). Therefore, it is said, the trial judge's apportionment of liability between the two insurers was based on a misconstruction of that provision. The appellant invokes an interpretation of s22 of the Workers Compensation Act which has been well settled in a series of cases in this Court including Insurers Guarantee Fund-NEM General Insurance Association Ltd (In Liquidation) v GIO General Ltd (1994) 33 NSWLR 247; MLC Insurance Ltd v Pinto and Anor (1994) 8 ANZ Ins Cas 75,336; Insurance Guarantee Fund - NEM General Insurance Association Ltd (In Liquidation) v Manufacturers Mutual Insurance (NSW Court of Appeal, 12 August 1994, unreported); Manufacturers Mutual Insurance Ltd v National Employers Mutual General Insurance Associated Ltd (1989) 5 ANZ Ins Cas 60-906; and Manufacturers Mutual Insurance Ltd v National Employers Mutual General Insurance Association Ltd (1990) 6 ANZ Ins Cas 61-038. The appellant claims that the only legitimate use of s22 is in cases like Morris v George [1977] 2 NSWLR 552, where one unitary incapacity results from more than one injury, in the sense that each injury would have produced it in the absence of others. The respondent has, in substance, admitted the force of the appellant's case, agreeing that Manser CCJ's decision cannot be reconciled with the cases to which | have referred. The respondent would seek to read s22 in a wider form, so as to authorize a judge to order any past employer (or its insurer) to contribute to an award if its conduct was in any way causative of the injury complained of by the worker. In making this submission we have been asked to reconsider all these past decisions. It is pointed out that cases like Morris v George are fairly rare; that Parliament's intention might have been larger than these cases submit; that Kirby P's judgment in Insurers Guarantee Fund - NEM General Insurance Association Limited (In Liquidation) v GIO General Ltd (1994) 33 NSWLR 247 has great force; that to read s22 in the way suggested by the appellant would be more consistent with Conkey and Sons Limited v Miller (1977) 51 ALJR 583. However, when this Court has so often and so recently given an interpretation to s22, I do not think we should again consider the matter de novo. Not only do I think the cases which I have referred to not manifestly erroneous, I think they are perfectly correct. Indeed, the contention for which the respondent argues would lead to some very extraordinary results. For example, it would be difficult to reconcile with either s15 of s16 of the Act. Again, it would not be easy to 4 UNREPORTED JUDGMENTS accommodate it to the provisions of the transitional provisions of the Act. For example, CL6(1) of Pt6 of the Sixth Schedule provides as follows - "Loss resulting both from existing injury and from injury received after commencement of this Act. "6(1) If a loss mentioned in the table to Division 4 of Pt3 of this Act resulted both from an injury received before the commencement of that Division and an injury received after that commencement, the loss shall, for the purposes of determining the amount of compensation payable in accordance with this Part and this Schedule, be treated as having resulted from the injury received after that commencement. If each injury were incurred whilst employed by a different employer, it would seem odd if one could claim apportionment against the earlier employer when the Act mandates one to treat it as having been incurred in the later employment. In my view, therefore, the following orders should be made - 1. Appeal allowed; 2. His Honour's apportionment of liability between insurers be set aside; 3. In lieu thereof there be substituted an order and Award that the second respondent as self insurer be liable to pay the award; and 4. The second respondent to pay the costs of the appeal. Sheller JA I agree with Meagher JA. Powell JA I agree with Meagher JA. (1) Appeal allowed. (2) His Honour the trial judge's apportionment of liability between insurers be set aside. (3) In lieu thereof there be substituted an order and Award that the second respondent as self insurer be liable to pay the award. (4) The second respondent to pay the costs of the appeal. Counsel for the appellant: O; CONNOR QC/J CATSANOS Solicitors for the appellant: MORAY AND AGNEW Counsel for the respondent: L KING SC/P PERRY Solicitor for the first Respondent: CARROLL AND O'DEA Solicitor for the second Respondent: VARDANEGA ROBERTS