INSURERS GUARANTEE FUND NEM GENERAL INSURANCE ASSOCIATION LTD (IN LIQUIDATION) v FAI WORKERS COMPENSATION (NSW) LTD and ORS [1995] NSWCA 208

INSURERS GUARANTEE FUND NEM GENERAL INSURANCE ASSOCIATION LTD (IN LIQUIDATION) v FAI WORKERS COMPENSATION (NSW) LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, MEAGHER and HANDLEY JJA 14 July 1995, 29 August 1995 [1995] NSWCA 208

WORKERS COMPENSATION — s11(1) WORKER'S COMPENSATION ACT 1926 — 1985 INJURY — PERIODIC PAYMENTS — MUTUALITY REQUIREMENT.

FACTS: The respondent worker suffered injuries on 8 February 1985 to his back, right leg, and neck. In April 1989 he suffered another injury while working for the same employer, which further reduced his ability. In 1987 an award was made by consent pursuant to s11(1) of the Workers Compensation Act 1926 in respect of the 1985 injury.

The worker applied to the Compensation Court to vary the award. The trial judge made the following orders: (1) an award under s11(1) of the 1926 Act for periodic payments from 5 June 1989 to 4 April 1991 in respect of the 1985 incident, but only in respect of the right leg; (2) an award under s11(2) of the 1926 Act in respect of the same accident from 5 April 1991 to date; and (3) an award under s40 of the 1987 Act in respect of the 1989 injury. The appellant, insurer for the employer, appealed against the s11(1) award, stating that it was impermissibly limited to the right leg; and that the trial judge treated the worker's case as if it were an original application. The appellant also submitted that the second accident suffered by the worker destroyed the mutuality necessary for an award under s11(2) of the 1926 Act.

HELD:

(1) (By Meagher JA, Clarke and Handley JJA agreeing) The fact that the trial judge limited the s11(1) award to the worker's right leg does not matter, because the words in the award, "resulting from injury to his right leg on 8 February 1985" can be read as "resulting from his 8 February 1985 injuries", in which event the award becomes unexceptionable.