COMTOOL PTY LTD (IN THE INTERESTS OF EMPLOYERS MUTUAL INDEMNITY (WORKERS COMPENSATION) LTD) v HEATH WORKERS COMPENSATION (NSW) PTY LTD and ANOR [1996] NSWCA 119

COMTOOL PTY LTD (IN THE INTERESTS OF EMPLOYERS MUTUAL INDEMNITY (WORKERS COMPENSATION) LID) v HEATH WORKERS COMPENSATION (NSW) PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, CLARKE JJA and HUNTER AJA 6, 28 March 1996

[1996] NSWCA 119

S22 Workers Compensation Act — apportionment of liability — incapacity results from more than one injury — causation in workers compensation cases

This appeal is one of five heard on the same day, all dealing essentially with the same point, namely, the breadth of the power of apportionment in s22 of the Worker's Compensation Act 1987 since the amendment of that section in September 1995. The Court decided that it was clear the purpose of subs(1A) was to widen the meaning of the expression "results from more than one injury'. What is involved in the wider test introduced by s22(1A) is an inquiry whether the incapacity was so connected with a number of injuries that, as a matter of ordinary common sense and experience, it should be regarded as having resulted partly from all or any of them. If the question is answered in the affirmative the apportionment exercise will need to be carried out.

ORDERS

(1) Second respondent be dismissed from the appeal;

(2) Appellant to pay the second respondent's costs of this appeal;

(3) Appeal upheld;

(4) The proceedings be remitted to the Compensation Court for the apportionment of liability according to law;

(5) The first respondent to pay the appellant's costs and, if otherwise qualified, is to have a Suitors Fund Act certificate in respect of those costs.

(6) By consent order that the award entered in favour of the applicant on the basis of partial incapacity by way of weekly compensation at the rate of $200 per week from 14 October 1993 be apportioned pursuant to s22(1) in respect of 60% of the award, that is $120 per week, to the injury to the left forefinger and in respect of 40% of the award, namely $80 per week, to the back injury.