AUSTRALIAN PADDING CO PTY LTD v ZARB [1996] NSWCA 34

AUSTRALIAN PADDING CO PTY LTD v ZARB

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, POWELL JJA and WADDELL AJA

17 April 1996, 16 August 1996

[1996] NSWCA 34

Workers Compensation

WORKERS COMPENSATION — claim for aggravation of cervical spondylosis — deemed time of happening of injury — s16(1) of 1987 Act — Compensation Court finds worker. discharged onus of showing his condition caused aggravation — this challenged on appeal — on consideration of lay and expert evidence, held: no error by trial judge — trial judge's application Schedule 6 Pt6 also challenged — on evidence accepted by trial judge, held: his application of Schedule 6 Pt6 was correct.

ORDERS Appeal dismissed with costs.

Priestley JA I agree with Waddell AJA. Powell JA I agree with Waddell AJA.

Waddell AJA This is an appeal from an award of compensation under the Workers' Compensation Act 1987 (the Act) in favour of the respondent against the appellant by the Compensation Court constituted by Moran, CCJ.

The respondent, who was born in 1941, had been employed by the appellant from 1960 for 32 years until its factory closed down on 24 December 1992. For many years before this date, he had been a maintenance fitter and foreman. Over the years he had suffered a number of injuries arising out of his employment.

The circumstances in which the respondent made the present application are described by Moran. CCJ as follows:

"He brought proceedings in this Court, Matter No.6573 of 1992, claiming weekly compensation from 24 July 1991 to date and continuing for incapacity resulting from a number of injuries and the nature and conditions of his employment. The injuries alleged were mainly to his neck, back both arms and right thumb.

Over the years his employer was indemnified in respect of its liability under the Workers Compensation Act by different insurers. In matter No. 6573 of 1992 Senior Commissioner Hopkins granted leave to four counsel to represent the Respondent in the interest of four insurers. Three of the insurers indemnified the Respondent for its liability under the 1926 Act and Employers Mutual Indemnity Workers Compensation Limited indemnified the Respondent in respect of its liability under the 1987 Act from Ist July, 1987 until the Applicant's employment ceased.