HIH Workers Comp v Iacullo

[2000] NSWCA 279

CITATION:

HIH Workers Comp v Iacullo & Ors [2000] NSWCA 279

FILE NUMBER(S):

CA 40156/00

HEARING DATE(S):

10 October 2000

JUDGMENT DATE:

10 October 2000

PARTIES :

HIH Workers Compensation (NSW) Pty Ltd
(Appellant)

v

Felice Iacullo
(First Respondent)

World Marine & General Insurances Pty Limited (Formerly Vanguard Insurance Company Limited)
(Second Respondent)

Mercantile Mutual Insurance (NSW Workers Compensation) Limited
(Third Respondent)

American Home Assurance Company (Formerly AIU)
(Fourth Respondent)

GIO General Limited
(Fifth Respondent)

GIO Workers Compensation (NSW) Limited
(Sixth Respondent)

JUDGMENT OF:

Mason P at 21; Heydon JA at 15; Davies AJA at 1

LOWER COURT JURISDICTION :	Compensation Court
LOWER COURT FILE NUMBER(S) :	39675/98
LOWER COURT JUDICIAL OFFICER :	Curtis CCJ

COUNSEL:	A: Mr C R R Hoeben SC 1R: Mr G Edwards 2R: Mr M Ballen 3R: Mr J D Hislop QC, Mr G Little 4R: Mr W P Kearns SC, Ms J Strathdee 5R: Mr J A McIntyre SC, Mr A Candy 6R: Mr I Khan
SOLICITORS:	A: Abbott Tout 1R: Paul Curtis & Co 2R: Blake Dawson Waldron 3R: McCulloch & Buggy 4R: Connery & Partners 5R: Hunt & Hunt 6R: W K Chambers
CATCHWORDS:	Worker's Compensation - whether apportionment of awards between insurers erroneous - whether trial judge's findings and orders inconsistent - whether insufficient findings
LEGISLATION CITED:	Compensation Court Act 1984, s 32 Workers Compensation Act 1987, ss 22, 22A, 66, 67, 68A and 68B
DECISION:	Appeal upheld. Order 2 set aside. Remit proceedings to Curtis CCJ. Dismiss cross appeal. See para 21 for full orders.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40156/00
CC 39675/98

MASON P
HEYDON JA
DAVIES AJA

Tuesday, 10 October 2000

HIH WORKERS COMPENSATION (NSW) PTY LIMITED v
Felice IACULLO & ORS


JUDGMENT

1 DAVIES AJA: This is an appeal from a determination of a judge of the Compensation Court of New South Wales. Under s 32 of the Compensation Court Act, 1984, the appeal raises relevantly only a question of law.

2    There is no dispute raised in the appeal as to the worker's entitlement to the awards made by the trial Judge. The only dispute is as to the apportionment of those awards between the relevant insurers.

3 The trial Judge made an award of weekly payments for total incapacity. This award was made under Division 2 of Part 3 of the Workers Compensation Act, 1987 ("the Act"). In relation to the award, the apportionment provisions of s 22 of the Act were applicable. The trial Judge also made lump sum awards under s 66 of the Act in respect of permanent injuries and under s 67 of the Act for pain and suffering. As those provisions are contained in Division 4 of Part 3 of the Act, ss 22, 68A and 68B were applicable.

4 On the issue of apportionment under s 22, the trial Judge said that it was Dr Limbers' opinion that the worker's back impairment was as to one-third due to an injury sustained in August 1997, as to one-third due to an injury sustained in September 1996 and as to the remaining one-third equally to incidents in September 1986 and March 1993. His Honour said that the case was not an appropriate one in which liability should be assigned pro-rata to the period on risk pursuant to s 22A(1)(b) and that he proposed to accept the opinion of Dr Limbers on apportionment.

5 The trial Judge found that the appropriate s 68A deduction was 20 per cent.

6    However, inconsistently with these findings, his Honour's determination read as follows:-

"24. I order the respondent pay to the applicant:
1. $16,800 in respect of 28 per cent impairment of his back
2. $6,000 in respect of 8 per cent permanent loss of efficient use of his right leg at or above the knee.
3. $9,000 in respect of 12 per cent permanent loss of efficient use of his left leg at or above the knee.
4. $18,800 in respect of 40 per cent permanent loss of sexual organs.

5. $25,000 pursuant to s 67.

6. I order the respondent to pay the applicant's hospital and medical expenses

7. I order the respondent pay to the applicant $330.20 per week from 6 February 1998 pursuant to s 36 as adjusted.

25. I order that the liability of the respondent in respect of the awards pursuant to s 66 and s 67 be borne by HIH.

26. So far as the award for weekly payments is concerned 80 per cent of that award is to be borne by HIH, the remaining 20 per cent to be borne on the basis of the relevant length of the employer's period of insurance with each insurer.

The hospital and medical expenses are to be borne in the same proportion as the weekly payments."

7    The reason for the change between the order made in para 26 and the findings that his Honour made as to Dr Limbers' apportionment appears to be explained by para 19 of his Honour's reasons, which were expressed shortly before his Honour arrived at the orders which he proposed. That paragraph read:-

"In that circumstance while I was wrong in referring to the injury of 1986 as being causally related to the impairment, it does seem reasonable to maintain my finding that the pre-1987 impairment for which no lump sum compensation is payable is 20 per cent".

8    It may be that, by that paragraph, his Honour intended to substitute entirely for Dr Limbers' apportionment, a new apportionment of 80/20, the 20 per cent to be borne on the basis of the relevant length of employer's period of insurance and he intended to do that and rejected Dr Limbers' basis of apportionment for the reason that Dr Limbers' apportionment included amongst the four incidents to which cause was attributed the incident of 1986, which had been the subject of a common law settlement. However, if that was his Honour's intention, his Honour did not say so expressly.

9    Counsel for HIH Workers Compensation (NSW) Pty Limited ("HIH"), the appellant, has put the submission that the mere substitution of 20 per cent for various traumas on the back in the period of 1975 to 1986, in place of the injury of 1986, would not necessarily, of itself, affect the attribution to HIH of a 66 per cent responsibility for the injuries of 1997 and 1996 or to GIO Worker's Compensation of a liability for the injury of 1993.

10 There is one other matter that is unexplained in his Honour's reasons. Paragraph 25 orders the liability in respect of the awards pursuant to ss 66 and 67 be borne by HIH. This finding has, however, failed to take into account that there was an injury in 1993 at a time when GIO Worker's Compensation was the insurer and that no reasons have been given as to why HIH should bear the whole of that sum or why the appropriate sum should not be apportioned to GIO Worker's Compensation.

11    Various counsel for the respondents have attempted to uphold his Honour's reasons and pointed to facts which would justify the precise orders made. I accept that there would have been evidence before his Honour which would have justified the orders made in paras 25 and 26 of his Honour's reasons but it seems to me that the propositions put forward for supporting those paragraphs were not expressed in his Honour's reasons and that the error which appears from his Honour's reasons is that it is not possible to ascertain, from what his Honour has said, what was the basis upon which his Honour came to the orders which his Honour proposed and made.

12 In my opinion, the orders as to apportionment made by his Honour should be set aside. Those orders do not reflect the findings which are expressed in the reasons for judgment. Findings were not made on every matter that needed to be considered and the reasons that were expressed were internally inconsistent. The matter should be, in my opinion, remitted to the trial Judge to consider the apportionment under s 22 with respect to both the awards made under ss 66 and 67 and the award as to weekly payments.

13    This is an unfortunate result for it appears that an order of this matter will inevitably result in the matter having to go back with all the respondents as parties to the remitted proceedings but I cannot find any way of clarifying the matter so as to send the matter back for reconsideration in a way which would involve only a few of the respondents. I very much encourage the respondents to come to some practical solution in this matter which is, after all, only a very minor matter so far as they are concerned.

14    As to costs, I would order that the appellant pay the costs of the first respondent. As to the remainder of the costs, I am of the view that this is a matter which ought to have been dealt with by approaching the trial Judge to clarify the patent problems which appeared in his judgment and which appear to have arisen from the problem which his Honour perceived in the course of his reasons and which, because his Honour gave attention to it for only a short time, led to his failing to express a clear view as to the basis for the orders made.

15    HEYDON JA: The Compensation Court Act, 1984, s 32(4)(c), requires the grant of leave by the Court of Appeal to appeal from a final decision of the Compensation Court which does not involve directly or indirectly a claim for or a question relating to an amount of $20,000 or more. There is no satisfactory evidence that there was a claim for or a question relating to an amount of $20,000 or more here. An affidavit purporting to comply with Part 51 rule 8 of the Supreme Court Rules is with the papers but it does not, in fact, comply with that rule. Mr Hoeben SC, who appeared for the appellant, put arguments suggesting that there was such a claim or question, but those arguments do not show that the sum involved was significantly more than $20,000.

16    Since the appellant has not demonstrated by evidence that an appeal lies of right, since leave has not been requested and since if leave were requested it should be refused, a strong argument could be mounted for the proposition that the appeal should be struck out.

17 Were leave sought it should be refused for the following reasons. No point of general law or statutory construction is involved. The only errors of law rest on an alleged failure to give reasons and on an alleged failure to proceed to make a s 22 apportionment. According to counsel for the appellant the errors were clear and in part based on a “glaring inconsistency”. If the errors were clear or based on inconsistencies, counsel appearing for the appellant below could have risen at the conclusion of the trial judge’s ex tempore judgment and asked the trial judge to complete his task or clarify any inconsistency. Alternatively, if notes were not taken of the reasons for judgment, they should have been, and later study of them would have caused the errors to become apparent so that an application could have been made speedily to the trial judge for him to complete his task or clarify what he had done. The same would apply if there were perceived to be ambiguities calling for clarification. To some extent the appellant’s arguments were not put to the trial judge. Further, the impact of the appeal on the interests of the worker are nil, the only point in the appeal resting on a dispute between insurers. Over the course of time insurers such as those before this Court must suffer small wrongs of the kind allegedly here suffered. Over any substantial period successes on the swings and losses on the roundabouts would tend to balance out. The stand of the insurer parties pays no regard to the difficulties facing a trial judge conducting a busy list and seeking to expedite business by delivering ex tempore judgments.

18    It is quite unsatisfactory that this appeal was brought. It reflects a disgraceful state of affairs. Ten counsel appeared. Seven solicitors appeared to be in court. Certainly, seven solicitors were on the record. For all the insurers what was at stake was disproportionate to the costs. For example, the second respondent was liable for 1.74% of weekly payments of about $18,000. Any slight change in that percentage would not justify its attendance before this Court at the behest of the appellant because its costs of doing so must far exceed its stake in the appeal.

19    The appellant relies on its right to appeal. If it wishes to rely on that right it ought to have complied with the conditions pursuant to which that right is to be exercised. It has not done so. However, since no respondent has contended that leave is necessary, it is my reluctant view that this Court ought not to take that point.

20    In all the circumstances I would agree with Davies AJA. His reasons and orders do not contemplate any disturbance by the Compensation Court of the trial judge’s findings and orders in favour of the worker. The remitter relates only to questions of the apportionment between the insurers.

21    MASON P: I agree with the reasons of Davies AJA and of Heydon JA. It seems to me that the following orders should be made:

1. In the appeal, appeal upheld.
2. Set aside paragraph 2 of the orders and awards made on 17 February 2000 (RAB 34).
3. Remit the proceedings to Judge Curtis to reconsider the application under s 22 in accordance with the reasons of this Court.
4. Dismiss the cross appeal.
5. Order the appellant to pay the costs of the first respondent in the appeal.
6. Otherwise, no order as to costs of the appeal or cross appeal.

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