BISHOPSGATE INSURANCE AUST LTD (IN LIQUIDATION) v BENSON and ORS [1995] NSWCA 46

BISHOPSGATE INSURANCE AUST LTD (IN LIQUIDATION) v BENSON

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, MEAGHER and HANDLEY JJA 14 July 1995, 8 August 1995

[1995] NSWCA 46

FACTS

The worker was injured several times before he was retrenched in 1990 while working for Comalco. During the time that the worker was employed, Comalco was represented by 5 insurers. Burke CCJ apportioned liability for damages between those insurers with the earliest insurer bearing the major share of responsibility and the last insurer (MMI(NSW)) the smallest share. The worker challenged the apportionment as erroneous in law.

MMI(NSW) submitted that neither the findings made by Burke CCJ nor the evidence in the case provided a basis for a finding against the employer during the period between 1 January 1990 and October 1990 when MMI(NSW) was on risk.

HELD

Burke CCJ did not have the power to apportion the employer's liability between different insurers: s22 Workers Compensation Act 1987. That order is thus invalid and must be set aside.

There is no evidence upon which it could be said that anything which occurred in the last ten months aggravated the worker's back or knee problems. The court is not in a position to make an award against MMI(NSW) on the evidence in the case.

In awarding the worker an award under s66 and s67, the trial judge did not closely examine the question whether the nature and conditions of employment after 30 June 1987 did, in fact, aggravate his problems. The awards under s66 and s67 should be set aside and the proceedings remitted to the Compensation Court to reconsider the effects of the post July 1987 employment on the worker's injuries and the question as to which insurer should bear the responsibility.

ORDERS

(1) The appeal by Bishopgate is allowed;

(2) The cross-appeal by MMI Workers' Compensation (NSW) Limited QBE Insurance Limited and QBE Workers' Compensation (NSW) Limited are allowed;