FAI TRADERS INSURANCE CO LTD v FAI WORKERS COMPENSATIONS (NSW) LTD and ORS [1996] NSWCA 178

FAI TRADERS INSURANCE CO LTD v_ FAI WORKERS COMPENSATIONS (NSW) LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY P, HANDLEY and BEAZLEY JJA 16 July 1996 [1996] NSWCA 178

Workers Compensation — Injury sustained prior to 1987 Act — Apportionment of liability by judge — Worker received payment — Application for adjournment to join worker in appeal — Point not raised in court below — Whether leave likely to be granted — Workers Compensation Act s22, s66, s67.

Appeal against judge's orders under s22 Workers Compensation Act 1987 apportioning 60% of employer's liability for lump sum award under s66 and s67 to the appellant - Worker sustained back and leg injuries prior to Workers Compensation Act 1987 - Subsequently awarded lump sum payment in respect of injuries and for pain and suffering - Challenge to judge's power to apportion award of compensation for pre-1987 Act injury between pre-Act employer and post-Act employer (and respective insurance companies) - Payment already made to worker after time for appeal expired and not challenged by appellant - Application for adjournment of appeal to join worker - Substantive point not raised in court below - Leave to join worker at later stage not likely to be granted - Proposed adjournment futile: Held (by majority) adjournment refused, accordingly appeal dismissed.

Sun Life Assurance Co v Jarvis (1944) AC 11 Workers Compensation Act 1987, s22, s66, s67. Appeal dismissed with costs.

Handley JA This appeal from a decision of Burke CCJ given on 1 December 1995 has been brought by the pre-1987 insurer of the Blayney County Council and challenges the judge's orders under s22 of the Workers Compensation Act 1987 as amended which apportioned 60 per cent of the employer's liability for lump sum awards under s66 and s67 in respect of the worker's back to the appellant.