ABB POWER TRANSMISSIONS PTY LTD IN THE INTERESTS OF FAI TRADERS INSURANCE CO LTD v IRVINE and ORS; FAI WORKERS COMPENSATION NSW LTD v IRVINE and ORS [1996] NSWCA 3

ABB POWER TRANSMISSIONS PTY LTD IN THE INTERESTS OF FAI TRADERS INSURANCE CO LTD vy IRVINE

FAI WORKERS COMPENSATION NSW LTD v IRVINE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, MEAGHER and HANDLEY JJA 13 July 1995, 17 May 1996

[1996] NSWCA 3

WORKERS' COMPENSATION — insurers on risk — initial and subsequent injuries. WORKERS' COMPENSATION — apportionment under Workers Compensation Act 1987 s22.

WORKERS' COMPENSATION — interaction of Workers' Compensation Act 1926 and 1987 Act under Sch 6 Pt6 of 1987 Act.

The respondent worker sustained an injury in 1984 requiring the amputation of the right index finger for which he received compensation under s16 of the Workers' Compensation Act 1926. He continued normal duties but these caused the removal in 1986 of a lump in his right hand and both before and after this he had pains in his right wrist, arm and elbow. His duties were changed to operating cranes but he continued to experience problems and in 1988 had the index finger knuckle removed. Work-related pain continued until he ceased operating cranes in 1993. NEM General Insurance was on risk until 30 November 1983, FAI Traders' Insurance then until 30 November 1987 and FAI Workers' Compensation (NSW) Ltd thereafter. The three insurers contended that the sole cause of the worker's losses was the original injury but the trial judge held otherwise finding that a further injury was sustained due to the nature and conditions of his work between 1984 and April 1993. The trial judge held that the injuries were sustained both before and after the new Act. The injuries therefore fell under s66 and he assessed the losses above and below the elbow at the rates applicable in April 1993. An award was also made under s67. The awards were apportioned between all three insurers under s22 in the form enacted in 1991. The appellants challenged the finding that injuries were sustained as a result of the nature and conditions of employment since 1984 and the orders for apportionment. The third insurer challenged the permanency of the upper arm injury and the quantum was awarded on that basis.