QBE Workers Comp (NSW)Ltd v Insurers Guarantee Fund

[1997] HCATrans 337

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S57 of 1997

B e t w e e n -

QBE WORKERS’ COMPENSATION  (NSW) LTD

Applicant

and

INSURERS’ GUARANTEE FUND - NEM GENERAL INSURANCE ASSOCIATION LTD (In Liquidation)

First Respondent

SWITZERLAND INSURANCE AUSTRALIA LTD

Second Respondent

ROYAL INSURANCE AUSTRALIA LIMITED

Third Respondent

KEVIN JOHN HAMPTON

Fourth Respondent

EDGELL BIRDSEYE A DIVISION OF PETERSVILLE INDUSTRIES LTD

Fifth Respondent

Application for special leave to appeal

BRENNAN CJ
TOOHEY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 NOVEMBER 1997, AT 10.07 AM

Copyright in the High Court of Australia

____________________________

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friend, MR P.M. MORRIS, for the applicant.  (instructed by Moray & Agnew)

MR J.N. WEST, QC:   If the Court pleases, I appear with my learned friend, MR F.F.J DAVIS, for the first, second and third respondents.  (instructed by N.W. Aussel)

BRENNAN CJ:   The Deputy Registrar certifies that he has been informed that the fourth and fifth respondents in this matter do not wish to be represented at the hearing of the application for special leave to appeal and will submit to any order of the Court save as to costs.

Yes, Mr Jackson.

MR JACKSON: Your Honours, although the original summary of argument went to larger issues, the issue which we seek to agitate is that which your Honours will see set out, for example, in paragraph 4.6 of our written submissions. That is that we were entitled to the benefit of the judge’s finding in our favour on the application of section 22 of the Workers Compensation Act and that a miscarriage of justice occurred by the approach taken by the Court of Appeal in setting aside that judgment.

Your Honours, could I say that the case turns on very simple facts.  The Workers Compensation Act 1987 provides for apportionment of the liability for compensation amongst various insurers in the circumstances which are referred to in

sections 22 and 22A which your Honours will see set out at page 23 of the application book. Your Honours will see ‑ ‑ ‑

BRENNAN CJ:   Does this case involve an interpretation of these sections?

MR JACKSON:   It does, your Honour, in one sense.  What it involves is the question of what is meant by the expression “more than one injury”.

BRENNAN CJ:   Is there some basic principle of statutory interpretation that that gives rise to?

MR JACKSON:   Your Honour, I do not think I can say that.

BRENNAN CJ:   Then it is a question of the construction of a phrase in a New South Wales statute.

MR JACKSON:   Your Honour, I accept all that, and having ‑ ‑ ‑

BRENNAN CJ:   Then what is the special leave point, Mr Jackson?

MR JACKSON:   It is the one to which I adverted earlier, and that is that, in our submission, it is one where the approach taken by the Court of Appeal effected a miscarriage of justice.

BRENNAN CJ:   A miscarriage of justice as between insurers under a workers compensation policy issued pursuant to a New South Wales statute which is subject to construction by the New South Wales Court of Appeal.

MR JACKSON:   Yes, your Honour, insurers, of course, being persons for whom the courts are available as much as ‑ ‑ ‑

BRENNAN CJ:   No question of that.  I am thinking in terms of which courts should be available for the purpose.

MR JACKSON:   Indeed, your Honour, and if I can just say in response to what your Honour has put to me, that so far as the various courts to which resort might be had are concerned, any party is entitled to have the court deal with it according to law and, if not dealt with according to law, then if the departure from that is sufficiently great, then it is entitled also, with respect, to have this Court exercise its functions under section 73.

BRENNAN CJ:   Yes.

MR JACKSON: Your Honours, if I could just say in relation to the case that your Honours will see from section 22(1) that it says that if one of the three events referred to in one of the subparagraphs of section 22(1):

results from more than one injury to the worker, liability to pay compensation under this Act is to be apportioned -

Then one sees under section 22A(1) that:

The apportionment of liability under section 22 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 -

As section 22(1) makes clear, unless there is more than one injury to the worker, there is no occasion for an apportionment.

Your Honours, it was plain in this case that the primary judge had understood the task upon which he was engaged in the light of the argument that was put to him.  Your Honours will see that at page 9, about line 15, he said:

This is a difficult question of causation or of the meaning of “results from”. 

That can only take one back to the terms of section 22(1).

TOOHEY J:   Is not the first question one of determining whether there had been an injury and, if so, what it was and when it took place?

MR JACKSON:   Yes, your Honour.

TOOHEY J:   How do you have a personal injury that occurred over a period of time?

MR JACKSON:   A succession of ‑ ‑ ‑

TOOHEY J:   Depending on the language of the statute, of course, but normally one would be looking to a particular incident on a particular day.

MR JACKSON:   What he was saying was - and your Honour will appreciate he was speaking in a particular context - what he was speaking of was an activity that involved a man using a very long iron rod to knock down something, knock down slag in the furnace year after year and that, in the end, that caused there to be some manifestation of pain. What he was saying was, and what he in fact found, was that the ultimate condition to which he came in 1992 when he retired was one that had been caused by all the various events that had taken place, namely the jarring and the hammering that had gone on over the years from 1969 until 1992.

TOOHEY J:   I understand how that might produce, in the appropriate case, an industrial disease which would attract the operation of the Act.  But that is not the basis upon which the tribunal at first instance proceeded.

MR JACKSON: No, your Honour. What was done was to - what the case was treated as, and in our submission correctly, as being one where there was a succession of minor injuries, very minor ones, no doubt, caused, but in the end the ultimate things that attracted the operation of section 22(1) were caused by more than one injury. That was all that was required. That was what the ‑ ‑ ‑

TOOHEY J:   If you say it quickly, yes.

MR JACKSON:   I have some temporal restraint, your Honour.  It means I will not be dallying in saying it.  If one looks at the evidence to which he referred, that is plainly enough, we would submit, what his Honour was saying.  What your Honours will see is that, if one goes to page 3, for example, at lines 14 to 30, he described the activity in which he was engaged, particularly lines 25 to 30:

by jarring and pushing with the 12 foot poker to remove the clinkers.....his arm started to become very sore, and.....as it became worse, he needed help from his fellow workers.

That is the type of activity he was engaged in.  The medical evidence, your Honours, suggested progression which you can see in the passages at page 5, lines 37 to 40; page 6, lines 9 to 13, Dr Greenwell.  On the same page, lines 29 to 33 and about line 40, “using a poker ‘for many years.’”  On page 7, lines 15 to 33; on the same page, lines about 38 to 43; and then page 8, about line 13. 

Your Honours, what we would submit is that it is apparent that the primary judge was expressing the view that the condition from which the worker was suffering was one of its nature which was the result of a large number of minor jarrings, minor injuries over the years.  That that is so appears at page 8 at the bottom of the page, line 38 through to page 9, about line 25 and at page 10 when he makes his finding, paragraph 1 on page 10, “from 1969 to the beginning of 1992”.  He appears specifically to have rejected the contention that because the work before 1987 did not produce

symptoms, there could not have been an earlier injury.  That is at line 36 on page 8, where he deals with the submission that is made, that is a passage I have referred to before, and goes through to line 16 on page 9.

The essence of the Court of Appeal’s approach can be seen in two brief passages, page 28, lines 10 to 16 and page 29, lines 20 to 30.  Your Honours, those passages, in our submission, appear to disregard the evidence which was accepted by the primary judge and what we would submit is that our entitlement to an apportionment has been taken from us by a misapprehension.  That is an error which it is appropriate for this Court to correct albeit we are, of course, an insurer.

BRENNAN CJ:   We need not trouble you, Mr West.

The application for special leave invites this Court to depart from the interpretation placed by the Court of Appeal of New South Wales on the Workers Compensation Act 1987 (NSW) as amended. It does not attract consideration of any new general principle of statutory interpretation. The case also involves a consideration of the particular facts of the case. The case is not one which raises a question requiring a grant of special leave to appeal to this Court. Accordingly, special leave will be refused.

MR WEST:   I ask for costs.

MR JACKSON:   I have nothing to say about that.

BRENNAN CJ:   It will be refused with costs.

AT 10.19 AM THE MATTER WAS CONCLUDED