INSURERS GUARANTEE FUND - NEM GENERAL INSURANCE ASSOCIATION LTD (In Liquidation) and ANOR v ROYAL INSURANCE AUSTRALIA LTD and ORS [1997] NSWCA 160

INSURERS GUARANTEE FUND - NEM GENERAL INSURANCE ASSOCIATION LTD (In Liquidation) and ANOR v ROYAL INSURANCE AUSTRALIA LTD and ORS

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MEAGHER and BEAZLEY JJA, and GROVE AJA 7 April 1997, 8 May 1997 [1997] NSWCA 160

WORKERS COMPENSATION — apportionment between insurers — s22 Workers Compensation

Act 1987 — multiple traumata resulting in an injury — apportionment not available unless more than one injury

A worker's employment over many years involved the manipulation of a long poker to scour the insides of ovens by removing accretions from the walls and grates. He first noticed symptoms about 18 years after commencing these tasks. At surgery undertaken 5 years later still tendon damage was identified and repaired. The trial judge found that the worker had injured his arm as a result of performing those duties. He apportioned the liability for payment of the worker's entitlements among various insurers on risk at different times during the currency of employment.

HELD: The finding was not of multiple injuries but of multiple incidents culminating in an injury. S22 specifies that apportionment may be made where the loss results from more than one injury and hence, that precondition being unfulfilled, there was no jurisdiction to make an apportionment.

Meagher JA I agree with Grove AJA. Beazley JA I agree with Grove AJA.

Grove AJA This appeal raises an issue concerning the apportionment among insurers of liability to pay compensation to a worker pursuant to the Workers Compensation Act 1987. The jurisdiction of the Court in this appeal is limited to exercise upon error of law being shown.

Some background can be sketched. A worker (Kevin John Hampton, the third respondent) was employed by the fourth respondent (Edgell) initially as a labourer and from 1969 as a boiler attendant. Although the detail of his duties changed over the years, one constant task was the removal of clinkers from grates within ovens by means of the manipulation of a 12 foot long metal poker. At the end of 1987 he first noticed that his shoulder was feeling sore. He continued his labour tolerating the symptoms until 1989-90 when he reported them to his foreman and requested that he be given assistance in his tasks. He carried on his work thereafter receiving assistance from time to time. In early 1992 he embarked on long service leave but returned after ten weeks when the plant was closed down and he was retrenched. This occurred on 13 May 1992. In the following month he sought treatment for his shoulder for the first time.