LEONE HOLDINGS PTY LIMITED v JW KIRKWOOD PTY LIMITED [1995] NSWCA 259

LEONE HOLDINGS PTY LIMITED v JW KIRKWOOD PTY LIMITED SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

MEAGHER, SHELLER and POWELL JJA 12 April, 9 June 1995 [1995] NSWCA 259

In April 1982 John Loewenthal sustained injuries to his back and left leg in the course of his employment with JW Kirkwood Pty Limited, the respondent. In March 1992 he injured his back in the course of employment with Leone Holdings Pty Limited, the appellant with which he had commenced work in September 1985.

In an application for determination under the Workers Compensation Act 1987 (WCA) by the worker against Leone and Kirkwood, her Honour Judge Truss held that the worker was either totally or partially incapacitated for work for various periods as a result of the April 1982 and March 1992 injuries in a proportion of one-third for the first and two-thirds for the second.

In respect of the permanent back impairment and loss of the use of his left leg, an award was entered pursuant to s66 against Leone. Apportionment of the liability to pay compensation pursuant to s22(1) was refused. Leone appealed against this part of her Honour's decision.

Held:

1. Although the first injury was received before and the second after the commencement of the WCA, Division 4 of Part 3 still applies; Schedule 6, Part 6, clause 1.

2. Clause 6 provides that in a case where a loss results from an injury received before and an injury received after the commencement of Division 4, the loss shall, for the purposes of determining the amount of compensation payable, be treated as having resulted from the injury received after the commencement.

3. Her Honour's conclusion that the worker had sustained permanent impairment and loss "as a result of the injuries in April 1982 and on 22 March 1992" means no more than that the two injuries collectively contributed to the loss. As s22 only applies when there is common liability for the same compensation, her Honour correctly held that there could