Compensation Court of New South Wales CITATION : Antaw v Alto Ford Pty Ltd [2001] NSWCC 133 PARTIES : Brian R Antaw and Laoma Pty Ltd t/as Alto Ford Artarmon and others and Workcover Authority of New South Wales MATTER NUMBER(S) : 17903 of 1996 JUDGMENT OF: Campbell CJ at 1 CATCHWORDS: Miscellaneous Matters - Statutes & Delegated Legislation :- LEGISLATION CITED: s15 Workers Compensation Act 1987 CASES CITED: General Steel Industries v Commissioner for Railways New South Wales (1964) 112 CLR 125 DATES OF HEARING: 05/06/01 EX TEMPORE JUDGMENT DATE : 06/05/2001 FOR APPLICANT: Mr I W Raine instructed by Taperell Rutledge LEGAL REPRESENTATIVES: FOR RESPONDENT: MR A Ventura instructed by Hickson Wisewoulds appeared for the 5th respondent JUDGMENT: 1. This matter was listed yesterday for directions, it having been returned to the Court, in a different form to its present form, by the Court of Appeal in view of a decision by that court that the matter should be returned and further heard as to an issue to which I shall refer later. 2. At the Court of Appeal hearing and prior to that, there had only been one respondent, that is the first respondent. However, pursuant to what fell from the Court of Appeal, the applicant's advisers took the view that it was necessary to join in the further proceedings the series of motor maintenance firms, to put it in a general sense, with which the applicant had worked after leaving the employment of the first respondent. 3. In respect of the directions, the matter has been stood over to be heard by me at a later point in time. However, there was also heard yesterday an application by Mr Ventura of counsel on behalf of the fifth respondent that the claim be struck out as against that respondent on the basis that it had no prospect of succeeding. 4. The appropriate principles for dealing with such an application are conveniently set out in General Steel Industries v Commissioner for Railways New South Wales (1964) 112 CLR 125 at 130 and in the cases referred to in that authority. 5. The applicant worker was injured when a metallic particle struck his left eye while he was employed as a mechanic by the first respondent in 1976. He settled a claim in respect of a 10 per cent loss of sight of the left eye under the Workers Compensation Act 1926. His sight however continued to deteriorate. By reason of the provisions of s 15(3) of the Workers Compensation Act 1989, such a deterioration is deemed to be a disease and to be of such a nature as to be contracted by gradual process. That being so, the provisions of s 15(1) provide as to the time at which any injury relied upon is deemed to have occurred and importantly, s 15(1)(b) provides that compensation is payable by the employer who last employed the worker in employment to the nature of which the disease was due. 6. Judge Ashford, in a long and careful judgment, concluded that the relevant deemed date of injury was in January 1992 and, for the purposes of a claim under s 66, on 29 July 1996. The Court of Appeal held that her Honour fell into no error in reaching those conclusions. Her Honour, however, took the view that none of the subsequent employers of the applicant who had not been joined as parties employed him in employment which was causally related to the continuing deterioration of the condition of his eye, and on that basis, she made an award against the first respondent. The Court of Appeal held that that conclusion was in error for she should have not directed her mind to the causal connection between the subsequent employments and the condition, but rather to the question whether any of those employers had employed the worker in employment to the nature of which the disease was due. 7. It is pursuant to that error that the matter is returned to the Court. The question becomes one of determining which was the last of the various employers prior to the respective injury dates to have determined who had employed the applicant in an employment to the nature of which the injury was due. 8. Mr Ventura, relying upon the dates of injury determined by her Honour which were not set aside or otherwise criticised by the Court of Appeal, contended that on that basis, his client could not have been found to have been a relevant employer as the employment period had been from 19 June 1998 to 6 December 1999, more than 12 months before the deemed date of injury. Mr Raine of Counsel appeared for the applicant. I accept his argument that the question which was the employer whoo last employed the worker in employment of the relevant nature, is to be answered by a factual inquiry not be reference to a deemed date of injury except as an end point. 9. It is not possible in a striking out application for the Court to examine what evidence is available against each of the subsequent employers. It is regrettable that so many respondents have been brought to the Court, in the sense that one would hope they would be able to work out some way between themselves of determining on whom the liability might lie. It may well be that questions of costs will arise as each employer denies, as this case has proceeded on the basis is the position, that it employed the worker in the relevant type of employment. However, that is a matter that must await the hearing. 10. There is no basis, in my view, for concluding that the claim against Mr Ventura's client, the fifth respondent, is bound to fail. That being so I decline to strike out the application as against that respondent. It would seem to me that I should then order that the fifth respondent pay the applicant's costs of the notice of motion. I make such an order. I certify for counsel as on a motion. 11. The others that I otherwise made yesterday are confirmed. Mr I W Raine instructed by Taperell Rutledge. appeared for the applicant Mr A Ventura instructed by Hickson Wisewoulds appeared for 5th respondent DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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