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. In due course he was referred to Dr Meachim, an orthopaedic surgeon practising in Orange who admitted him to hospital and on 2 December 1992 surgically decompressed his right shoulder. Significant impingement of the rotator cuff tendons on the acromion and the coraco-acromial arch was found at operation and repair was undertaken. 2 UNREPORTED JUDGMENTS At the hearing below Geraghty CCJ found that Mr Hampton "injured his right arm as a result of the nature and conditions of his employment from 1969 to the beginning of 1992, and especially in performing the duties of knocking clinkers off the wall of the ovens with a long, heavy poker". His Honour proceeded to make awards for weekly payments under s40 for various specified periods of incapacity; a lump sum pursuant to s66 for loss of the use of his right arm and elbow; a further lump sum pursuant to s67 in respect of pain and suffering and for the payment of interest and for the payment of treatment expenses pursuant to s60. The learned trial judge then ordered the liability for weekly compensation, the lump sum under s66 and the s60 expenses to be apportioned and paid: (i) as to 40% by the first appellant (NEM) (ii) as to 15% by the second appellant (Switzerland), and (iii) as to 45% by the second respondent (QBE). The particulars supplied in the originating application for determination show that the first respondent (Royal) was on risk until 30 June 1982; NEM from 1 July 1982 to 31 December 1983; Switzerland from | January 1984 to 30 June 1987 and QBE on 1 July 1987 (and relevantly thereafter). The power to apportion is vested and regulated by s22 and s22A of the Act. For present purposes it suffices to recite only some parts of those provisions. "22 (1) If: (a) the death or incapacity of a worker; or (b) a loss suffered by a worker as referred to in Division 4 of Pt3; or (c) a liability under Division 3 of Pt3 to a worker, results from more than one injury to the worker, liability to pay compensation under this Act is to be apportioned in such manner as the Compensation Court determines. (8) This section applies to any liability arising before or after the commencement of this Act. 22A (1) The apportionment of liability under s22 is: (b) in the case of the apportionment of liability between insurers of the same employer - to be on the basis of the relative length of the employer's period of insurance with each insurer concerned during which the worker concerned was employed by the employer (not including any period of insurance after the last relevant injury was received), or on such other basis as the Court considers just and equitable in the special circumstances of the case." In taking into account the various periods during which insurers were on risk his Honour overlooked and omitted Royal and thereby estimated that its successor (NEM) was on risk for about thirteen years rather than eighteen months. If apportionment was authorized, that matter would demand attention and correction and it is conceded by all parties that if that course is required the case must be remitted to the Compensation Court for that purpose. Although the grounds of appeal are multiple, the appellants (NEM and Switzerland) supported by the first respondent (Royal) raise a short, and potentially determinative point. In paraphrase, it is this. The relevant loss and liability must result from more than one injury to the worker in order for s22 (or s22A which is consequential upon it) to be available to be put into effect. Geraghty CCJ did not find more than one injury as is demonstrated by his expression that Mr Hampton "injured his right arm". Injury is defined in the Act in these terms: UWRSURERS GUARANTEE FUND - NEM GENERAL INSURANCE ASSOCIATION LTD (18 Liquidation) and ANOR v ROYAL INSURANCE AUSTRALIA LTD and ORS (Grove AJA) "4. In this Act: 'injury': (a) means personal injury arising out of or in the course of employment; (b) includes: (i) a disease which is contracted by a worker in the course of employment and to which the employment was a contributing factor; and (ii) the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration; and " Subs(c) may be ignored for present purposes. The appellants contended that the finding abovementioned did not satisfy the requirement of s4 but clearly his Honour found that Mr Hampton suffered personal injury although I accept that he did not find (nor was there evidence to this apparent affect) that he was suffering from any disease. Dr Meachim found the frank damage already mentioned and the use of the description "tendonitis" did not transmute the damage into a disease. His Honour's phrase "as a result of the nature and conditions of his employment" conveys a concept somewhat similar to that encompassed by s4(b)(ii) where it speaks of the employment being "a contributing factor" to the aggravation etc of any disease. His finding, however, was an injury and it was not suggested on behalf of the contesting respondent (QBE) that he erred in not finding that the worker suffered from a disease. It was contended that his Honour's determination was effectively that loss and incapacity resulted from minor and multiple injuries whereas the appellants contended that his Honour had found but a single injury which could not therefore in the terms of s22 authorize apportionment. It is convenient to turn to the proposition advanced on behalf of QBE. It was summarized in written submissions thus: "Clearly, what is assumed by the medical experts is a process similar to that identified in Milne v International Combustion Aust Ltd (1953) WCR 80, that is, a succession of trauma each causing some minute amount of damage, the cumulative effect of which was to initiate and then worsen symptoms in the right shoulder and to cause gradually increasing impairment of function." Milne involved what Rainbow CCJ stated he would call for convenience "boilermaker's deafness" which has been labelled in later years as industrial deafness. It was not of consequence in that case whether the relevant trauma was single or repeated. In the course of his judgment and in distinguishing a situation existing under English law his Honour said: "These difficulties never arose in New South Wales after 1926, and if the sum total of employment conditions caused incapacity whether single trauma, repeated minor traumata, elements such as gases, bacteria, etc, giving rise to poisoning or disease, quite apart from occupational injuries of gradual onset, the worker could recover compensation directly upon the basis of receipt of injury as defined in s6." He also recapitulated some of his remarks in Day v Concrete Constructions Ltd [1949] WCR 103 where he said: 4 UNREPORTED JUDGMENTS 'Injury', taken as a word, simply means harm or damage and 'personal injury' means damage to a man, to his physical or mental structure. Preliminary to injury there are the more remote and immediate causes of injury, then the injury and complementary to it is the result." A difficulty which QBE faces is that in the present case Geraghty CCJ did not find that Mr Hampton suffered multiple traumata causing damage. He found that he was exposed to multiple traumata and as a result he damaged his arm. The evidence did not address - and therefore his Honour did not make any finding - what was the physiological situation affecting the worker either specifically at the time he first noticed symptoms or prior to it. It is to be noted that the first loss occurred in December 1992 or, possibly at the earliest, in June 1992 when Mr Hampton may have incurred expense when first consulting a doctor about his shoulder. In the absence of such material it would be difficult to assess a finding of single injury as wrong (which in any event given the nature of this appeal would be inconsequential: Azzopardi v UEB Industries Ltd 1985 4 NSWLR 139). His Honour specifically rejected a submission that the activity with the poker prior to the emergence of first symptoms in 1987 was not causative of his "condition" but having regard to s4 the worker had either to sustain injury (or injuries) or contract or aggravate etc a disease. In the context of that definition "condition" is ambiguous but it cannot in the light of the evidence in this case be referrable to a disease and it casts no light on whether his Honour found a single injury or multiple injuries. Thus it is necessary to return to the express finding that Mr Hampton "injured" his arm. His Honour did not find that he sustained injuries to the arm rather his finding in its terms plainly conveys that a plurality of events were causative of an injury. It therefore follows that the multiplicity of injuries which preconditions the exercise of power vested by s22 is absent. It also follows that remission to the Compensation Court to correct the omission of Royal which was on risk prior to both appellants is unnecessary. The appeal should be allowed. The successful appellants were jointly represented and only QBE among the respondents appeared and participated in the appeal to resist the orders sought. Royal was also represented by counsel who adopted and supported the submissions of the appellants. Royal presumably would have been an appellant but for its omission from the apportionment by the trial judge. QBE should pay one set of costs to NEM and Switzerland. I propose that no order for costs be made affecting Royal and that all parties have liberty to apply within seven days for any costs order in relation to it. The orders I propose are: 1. Appeal allowed. 2. Orders in para2(ii) of the award of the Compensation Court dated 13 November 1996 quashed. 3. The second respondent (QBE) to pay one set of costs to the appellants (NEM and Switzerland). 1. Appeal allowed. 2. Orders in para2(ii) of the award of the Compensation Court dated 13 November 1996 quashed. 3. Second respondent to pay one set of costs to the appellants. UWRSURERS GUARANTEE FUND - NEM GENERAL INSURANCE ASSOCIATION LTD (16 Liquidation) and ANOR v ROYAL INSURANCE AUSTRALIA LTD and ORS (Grove AJA) 4. Liberty to apply in relation to the costs of the first respondent. Counsel for the appellants: J West QC and F Davies Solicitors for the appellants: N W Aussel Counsel for the 1st respondent: J Fernan Counsel for the 2nd respondent: P Morris 10 Solicitors for the respondents: Moray & Agnew