GOVERNMENT CLEANING SERVICE (now known as Commercial Services Group) v KEMP and ANOR [1997] NSWCA 127

GOVERNMENT CLEANING SERVICE (now known as Commercial Services Group) v KEMP and ANOR

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P, MEAGHER and STEIN JJA 10 April 1997, 7 May 1997 [1997] NSWCA 127

WORKERS COMPENSATION — apportionment of liability for 2 separate injuries between consecutive employers — economic not physical consequences of injury relevant

WORKERS COMPENSATION — SEPARATE INJURIES SUSTAINED BY WORKER WHILE IN THE EMPLOY OF CONSECUTIVE EMPLOYERS — APPORTIONMENT OF LL\BILITY FOR PERIOD OF TOTAL INCAPACITY AND LATER PARTIAL INCAPACITY BETWEEN EMPLOYERS

Worker injured back in fall at premises of first employer, continuing back pain and impairment of function, but worker able to return to normal duties — worker injured neck during work journey concerning second employer. — Period of total incapacity followed by partial incapacity. — Trial judge apportioned total incapacity equally between first and second employer, and attributed partial incapacity to first employer. — Worker recovered damages in District Court for second incident.

On appeal:

(1) Whether reasonable to attribute whole of partial incapacity to first employer.

(2) Whether trial judge accorded procedural fairness to the first employer by failing to indicate the possibility of a finding that first employer wholly responsible.

(3) Whether s151Z(1)(b) Workers Compensation Act prevents recovery from second employer.

Held: It was open for the trial judge to attribute the whole of partial incapacity to first employer and that possibility should have been clear to the parties. It is the source of economic incapacity and not physical impairment which is relevant to apportionment.

Not necessary to decide the effect of s151Z(1)(b).

The Commonwealth v Muratore [1978] 141 CLR 296

and

Arnotts Snack Products Pty Ltd v Yacob [1984-5] 155 CLR 171 applied