TEMPO SERVICES LTD v STATE OF NEW SOUTH WALES (COMMERCIAL SERVICES GROUP) [1996] NSWCA 519

TEMPO SERVICES LTD v STATE OF NEW SOUTH WALES (COMMERCIAL SERVICES GROUP)

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

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

[1996] NSWCA 519

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 s 22 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 sub-s (1A) was to widen the meaning of the expression "results from more than one injury". What is involved in the wider test introduced by s 22(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.

Priestley JA. I agree with Clarke JA.

Clarke JA. For the reasons given in Council of Sutherland Shire v Baltica General Insurance Co Ltd & Ors (Court of Appeal, 28 March 1996, unreported) I propose the following orders:

(1) First respondent be dismissed from the appeal;

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

(3) Appeal upheld;

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

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

I would, however, defer making these orders in order to enable the parties to consider the reasons of the court in Baltica and to bring in short minutes of order.

Hunter AJA. I agree with Clarke JA.

(1) First respondent be dismissed from the appeal;