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. During the hearing of the appeal by this Court, questions were raised, for example, by Priestley JA, as to whether matters now in issue had been raised at the trial and whether, had they been raised, the evidence might have been different. It is, to say the least, unsatisfactory for issues to be raised on appeal which were not, or not fully, raised before the trial judge. 2 UNREPORTED JUDGMENTS In order to deal with the issues raised by the appeal and the cross-appeal, it is necessary to detail the facts as they emerged at the trial and as the trial judge found them to be. The applicant at the times here relevant worked in the transport industry as a trucks driver and otherwise. In or about 1983 he worked as a truck driver for Linfox Transport (Australia) Pty Ltd. On or about 13 May 1986, when unloading a bag of cement. he suffered a back injury which caused serious and permanent damage to his back The scans made of his back disclosed injuries to discs at two levels of his lower back. He was off work for a number of weeks. He resumed work as a truck driver in or about August or September 1986. The better view is, I think, that in or about September 1986 he ceased work with the Linfox company, went to the Gosford area and became employed by H and D McRae Carriers Pty Ltd ("McRae"). In about November 1986 he suffered a further work related injury, the details of which he could not remember. Thereafter, he continued to drive trucks and continued to suffer back pain. Ultimately the pain became such that he was transfered from truck driving to office work. This occurred in or about June 1989. His office work involved, inter alia, organising loads and drivers for the work of his employer. He continued in office work until about December 1991 when he returned to truck driving. During the period of his office work, from June 1989 to December 1991, it appears, as far as the evidence extends, that he continued to work for McRae although, in June 1990, the Linfox company "took over" the McRae company. During this period, he continued to suffer back pain. In August 1990 he first saw a Dr Bannister, an orthopaedic surgeon. In January 1991 he underwent surgery for a spinal fusion with laminectomy and discectomy at the hands of Dr Bannister. Because of this, he was not able to work until April 1991. He then resumed work doing office duties until December 1991. On 30 December 1991, shortly after he had returned to truck driving, he suffered a further back injury. The truck he was driving struck a kerb and this caused him severe back pain. He was away from work for a few days but was able to continue truck driving until about the end of February 1992. His truck driving then ceased. Towards the end of April 1992 he ceased work. In August 1999 he undertook a rehabilitation course but he was not able to return fully to work and on 15 September 1992 his employment was terminated. His compensation claim came before the court on 22 February 1994 and judgments were given on 15 and 24 June 1994. The matter was dealt with by the trial judge essentially upon the basis that the applicant had suffered four relevant injuries: the injury to his back on 13 May 1986; the work related injury of November 1986; an injury by way of aggravation of his condition caused by the nature and conditions of his employment between 1986 and June 1989; and the injury of 30 December 1991 which caused additional aggravation to his condition. During the hearing it became relevant for the judge to determine the liability of the insurers responsible for workers compensation payments in relation to the applicant. Until 30 June 1986, the applicant was employed by the Linfox company and the insurer was QBE. Thereafter until a date which has not been precisely identified, the insurer was Switzerland General Insurance Co Ltd. The period for which that company was the insurer appears to have been from 30 June 1986 until 11 September 1986 or 30 June 1987. That company was not (GRVITZERLAND INSURANCE WORKERS' COMPENSATION (NSW) LTD v BURLES (Mahoney JA) represented at the trial. No objection was taken by QBE or by Switzerland to its absence. It was suggested in argument that an arrangement had been made between that company and Switzerland and, at the invitation of the insurers, the appeal has proceeded upon the basis that the Court is not concerned with the rights of that company. The trial judge found that it was in September 1986 that the applicant went to the Gosford area and became an employee of McRae. It has been suggested before this Court that that may have occurred, not in September 1986 but in September 1987. The trial judge adopted the date September 1986 and I am not convinced that his Honour was in that regard in error. I shall therefore deal with the matter upon that basis. THE GROUNDS OF APPEAL: Mr Hislop QC, for Switzerland and McRae, made essentially two submissions. First, he submitted that his Honour had erred in his findings as to the facts of the applicant's injuries and employment. In his explanation of his submissions before this Court, he submitted that the injury of 13 May 1986 was suffered whilst the applicant was employed by the Linfox company and the employer was insured by QBE: this, he submitted, was "a major injury". He submitted that the injury of November 1986 was supported by evidence "so vague as to be incapable of proving anything": it was submitted, as I understand the submissions, that such injury had not occurred. He then submitted that it was open to be and, presumably, should be determined that the change from employment with McRae to employment with the Linfox company occurred "at some time between 30 December 1991 and September 1992". He submitted that at 30 December 1991 the applicant was, on the evidence, employed by McRae: at least, although the evidence suggested that he had left McRae and returned to the Linfox company at some time, it had not been established that that had been done before 30 December 1991 and the injury then suffered. Finally, the submissions suggested that the injury resulting from the nature and condition of his work was not established: there was not, it was submitted, any pathological change during the period in question and that no injury had been shown to have been suffered during that time. Mr Holmes QC, for QBE, referred to passages or indications in the evidence which, he submitted, were inconsistent with Mr Hislop's submissions. I do not think it necessary to pursue each of the items or indications referred to. I am satisfied that his Honour's conclusions as to the occurrence of the injuries were correct. He accepted the applicant as a witness of truth. It may be inferred from, inter alia, his evidence, that those injuries occurred. His account of what he suffered from time to time warrants the findings the judge made. The medical evidence, in so far as it bears on each of the matters alleged. is not inconsistent with the applicant's evidence. I accept that the injuries occurred as the trial judge found. It is not necessary to pursue the evidence or indications relied on to establish who was the employer at the particular times. For a great part of the time, Linfox had "taken over" McRae. This does not make the issue academic but may assist in understanding why the applicant may have been confused as to which of the companies was his employer from time to time. But however that be, the substantial fact was that the judge, at the end of the judgment of 16 June 1994, apportioned the responsibility for the awards made seventy per cent against the Linfox company and thirty per cent against McRae. I see no error in that 4 UNREPORTED JUDGMENTS apportionment. It was the initial injury, of 13 May 1986, which, in my opinion, was the main cause of the applicant's difficulties. If it is permissible to make an (experienced) conjecture, the later difficulties would not have occurred had that injury not been suffered. The need for the operation and the consequences produced by it derived, I think, essentially from that injury. Whether the Linfox company was the employer at the date of the later injury of 30 December 1991, I think that the apportionment that the judge made was a proper one. For these reasons, in my opinion the appeal fails. 2. THE CROSS APPEAL: The two insurers were parties to the proceedings at the trial. On 24 June 1994 the judge, presumably pursuant to s22(5) - the circumstances of the apportionment were not dealt with in the material before the Court - apportioned the responsibility of Linfox to make, inter alia, weekly payments of compensation between the insurers as to sixty per cent to QBE and as to ten per cent to Switzerland. He apportioned the responsibility of McRae as to one-quarter to Switzerland General Insurance Co Ltd and as to three-quarters to Switzerland Insurance Workers' Compensation (NSW) Ltd. In relation to this the apportionment of McRae, there is, as I understand the matter, now no contest. It is in relation to the apportionment between QBE and Switzerland that the cross-appeal has been brought. Presumably the order made envisages that of the seventy per cent of the liability to be borne by the Linfox company, sixty of that seventy per cent is to be borne by QBE and ten of the seventy per cent by Switzerland. Mr Hislop QC submitted that, in relation to the order in question, namely, that concerned with and made under s67, $10,000, it is to be accepted that the amount is to take account only of pain and suffering from the injuries in so far as they arise from injuries after 30 June 1987. This, I understand, has not been contested by Mr Holmes QC. On that basis, Mr Hislop QC has then submitted that there was no evidence on which the judge could find that the effects of injury after that date could be identified or could support an assessment of $10,000. I shall deal with the matter upon the basis advanced by counsel. There is no doubt that, after 30 June 1987, the applicant suffered injury. He suffered, in part, the injury arising from the aggravation of his existing condition which occurred by reason of the nature and conditions of his employment between 1986 and June 1989. In addition, he suffered the injury of 30 December 1991. The pain and suffering that he underwent during these periods was, I think, substantial. They led him, inter alia, to undergo surgery and ultimately to cease work. I am not satisfied that the judge erred in assessing the sum in question. It is, in my opinion, an appropriate sum to be awarded. The question remains whether the liability of the Linfox company was properly apportioned between QBE (sixty) and as to Switzerland (ten). This apportionment presumably was made upon the basis to which I have referred, namely, that, as his Honour said, "the major harm was done in the first" injury. As the judge indicated, in his earlier judgment, apportionment in the relevant circumstances was "not susceptible of close mathematical analysis". I am not satisfied that the judge erred in the apportionment that he made. For these reasons the cross-appeal should, in my opinion, fail. Accordingly, the appeal should be dismissed with costs. The cross-appeal should be dismissed with costs. Switzerland and McRae should pay the applicant's costs of QBE of the appeal. QBE should pay the costs of Switzerland and of McRae of the cross-appeal. The applicant was not concerned in the (GRVITZERLAND INSURANCE WORKERS' COMPENSATION (NSW) LTD v BURLES (Meagher JA) cross-appeal but, in so far as his costs were increased by the hearing of the cross-appeal, those costs should be paid by Switzerland and McRae. Priestley JA My views about the matters raised for decision in the appeal and cross-appeal are the same as those of Mahoney JA. I therefore agree with the orders he proposes. Meagher JA I agree with Mahoney JA. 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. COUNSEL: Appellant: JD Hislop QC Respondent (1): C Evatt (2): MF Holmes QC SOLICITORS: Appellant: Hunt and Hunt Respondent (1): Teakle Ormsby (2): Bruce and Stewart Turton