DEMOLON PTY LTD (T/AS P and T CORFE) v PARBURY BUILDING PRODUCTS LTD and ANOR [1996] NSWCA 147

DEMOLON PTY LTD (T/AS P and T CORFE) v PARBURY BUILDING PRODUCTS LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

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

[1996] NSWCA 147

S22 Workers Compensation Act 1987 — apportionment of liability — incapacity resulting from more than one injury — causation in workers compensation cases

Workers Compensation Act 1987 — transitional and savings provisions — injuries received before and after commencement of Act

In August 1985 the second respondent, Warren James Seccombe, suffered an injury to his knee whilst working for the appellant, Demolon Pty Ltd. In 1989 he commenced employment with the first respondent, Parbury Building Products Pty Ltd, and during that employment suffered another injury to his knee. The worker claimed compensation against both employers and Neilson CCJ made an award in his favour for weekly payments as well as a lump sum award. His Honour was of the opinion that he did have power to apportion the liability, and he apportioned 60 per cent of the award to the appellant (the first employer) and 40 per cent to the first respondent (the second employer).

The first employer appealed against the award on the basis that his Honour was in error in concluding that he had power to apportion the liability, and in error in apportioning 60 per cent of the liability, calculated in accordance with the relevant provision of the new rather than the old Act, to the first employer. The Court dismissed the appeal.

HELD:

(1) The trial judge had power to apportion liability between the two employers: Council of Sutherland Shire v Baltica General Insurance Co Ltd and Ors (Court of Appeal, 28 March 1996, unreported).

(2) His Honour was correct in determining the amount of compensation on the basis that where one injury was received before and one injury after the commencement of the Act, the loss and incapacity are to be treated as having resulted from the injury received after that commencement.