SWITZERLAND INSURANCE WORKERS' COMPENSATION (NSW) LTD and ANOR v BURLEY and ANOR [1995] NSWCA 463

SWITZERLAND INSURANCE WORKERS' COMPENSATION (NSW) LTD v BURLEY

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, PRIESTLEY and MEAGHER JJA 16 June 1995, 15 September 1995 [1995] NSWCA 463

WORKERS COMPENSATION — PERSONS LIABLE TO PAY COMPENSATION — APPORTIONMENT BETWEEN INSURERS WORKERS COMPENSATION — persons liable to pay compensation — apportionment between insurers — worker injured several times during period of employment — whether trial judge erred in his apportionment of liability between the two insurers — whether trial judge erred in assessment of amount payable for pain and suffering — no question of principle — held — appeal dismissed — no error shown.

ORDERS

1. Appeal and cross appeal dismissed with costs.

2. Switzerland and McRae should pay the applicant's costs of QBE of the appeal. 3. QBE should pay the costs of Switzerland and of McRae of the cross-appeal.

4. Costs of the applicant which were increased by the hearing of the cross-appeal should be paid by Switzerland and McRae.

Mahoney JA The applicant for compensation Mr Wayne Brian Burley ("'the applicant") suffered a number of work related injuries. He claimed weekly compensation, compensation under s66 and compensation for pain and suffering under s67 of the Workers Compensation Act 1987. On 16 June 1994 Duck J made findings and awards in relation to his application. On 24 June 1994 his Honour apportioned liability as between the relevant insurers.

Switzerland Insurance Workers' Compensation (NSW) Ltd ("Switzerland") has appealed to this Court against the orders made by Duck J and, by cross-appeal, QBE Insurance Ltd ("QBE") has appealed against the apportionment of the liability between it and Switzerland.

The facts are complicated. They are dependent, in the event, to a great extent upon the understandably vague recollection of the applicant as to what happened as far back as 1986 and as to who was his employer at relevant times since that date. The only relevant evidence given at the trial was that of the applicant Mr Burley. No attempt appears to have been made to clarify the various matters in respect of which questions have now been raised: at least, those who might have been expected to clarify the facts, namely, the employer companies and their insurers from time to time, did not attempt - at least they did not succeed - in clarifying these matters. Issues have now been raised and submissions have been made which, to an extent, depend upon the failure to clarify these matters at the trial.