Rail Services Australia v Dimovski

Case [2004] NSWCA 267

NEW SOUTH WALES COURT OF APPEAL

CITATION:    Rail Services Australia v Dimovski & Anor [2004]  NSWCA 267

FILE NUMBER(S):
40686/02

HEARING DATE(S):             17/02/2004

JUDGMENT DATE:               11/08/2004

PARTIES:
Rail Services Australia (Appellant)
Steve Dimovski (First Respondent)
State Rail Authority (Second Respondent)

JUDGMENT OF:      Handley JA Hodgson JA Young CJ in Eq   

LOWER COURT JURISDICTION:             Compensation Court

LOWER COURT FILE NUMBER(S):        CC 5731/01

LOWER COURT JUDICIAL OFFICER:   Ashford CCJ

COUNSEL:
L King QC/D Saul (Appellant)
P Biggins (First Respondent)
R Hanrahan (Second Respondent)

SOLICITORS:
Leigh Virtue & Associates (Appellant)
The Hargreaves Practice (First Respondent)
Dibbs Barker Gosling (Second Respondent)

CATCHWORDS:
RES JUDICATA - issue estoppel - no estoppel in changing situation
WORKERS COMPENSATION - injury - disease - frank injury - workers compensation - causation - results from injury
WORKERS COMPENSATION - causation - results from two or more injuries - apportionment or contribution  - D

LEGISLATION CITED:
Workers Compensation Act 1987

DECISION:
1. Appeal against the awards in favour of the worker, the first respondent, dismissed with costs.
2. Motion for summary dismissal of the appeal filed by the first respondent dismissed with costs.
3. Appeal against the award for the State Rail Authority, the second respondent, allowed.
4. The award in the Compensation Court in favour of the second respondent set aside.
5. Order that the proceedings be remitted to the District Court to hear and determine the appellant's claim for apportionment or contribution from the second respondent.
6. The second respondent is to pay one-half of the appellant's costs of the appeal excluding any costs payable by it to the first respondent.

JUDGMENT:

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40686/02

HANDLEY JA
HODGSON JA
YOUNG CJ in Eq

11 AUGUST 2004

RAIL SERVICES AUSTRALIA v STEVE DIMOVSKI & ANOR

CATCHWORDS

RES JUDICATA – issue estoppel – no estoppel in changing situation

WORKERS COMPENSATION – injury – disease – frank injury – workers compensation – causation – results from injury

WORKERS COMPENSATION – causation – results from two or more injuries – apportionment or contribution

FACTS

The worker injured his left knee working for the State Rail Authority prior to 1 July 1996 on which date that corporation became two corporations, the appellant was created, and the worker’s employment was transferred to it.  In October 1996 the worker settled his claim under s 66 for loss of the use of his left leg by a consent award based on a 25% loss.  He injured his left knee and back working for the appellant on 28 May 1998.  He ceased work on 20 August and was terminated on 6 January 1999.  He began to favour his left leg and as a result suffered an overuse injury to his right leg on and after March 1999.  He claimed lump sum compensation under ss 66 and 67 from both corporations.

The Compensation Court assessed the loss of the use of the worker’s left leg at 25% and made no further award for that leg. However it made awards…

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AGLC
Rail Services Australia v Dimovski [2004] NSWCA 267
Case
[2004] NSWCA 267
Decision Date

CaseChat Overview and Summary

Rail Services Australia (the appellant) appealed against awards of compensation made by the primary judge in favour of the worker (the first respondent). The State Rail Authority (SRA) was the second respondent. The worker had claimed compensation for injuries sustained during his employment with both SRA and Rail Services Australia. The primary judge found that the worker had suffered injuries to his left leg while employed by SRA and subsequently further injuries to his left leg, and consequential symptoms in his right leg, while employed by Rail Services Australia. The primary judge also found a back injury sustained during his employment with Rail Services Australia, and that the aggregated compensation for these injuries crossed the threshold for pain and suffering under s 67 of the *Workers Compensation Act 1987* (NSW).

The appeal raised several legal issues. Rail Services Australia contended that there was insufficient evidence to support the finding regarding the right leg injury, that the primary judge erred in dealing with the effect of an earlier consent award, and that aggregation of injuries was not available to support the award for pain and suffering. Furthermore, Rail Services Australia argued that the primary judge incorrectly applied s 16 of the Act to make it solely responsible for the worker's continuing weekly compensation.

The court considered the definition of "injury" under s 4 of the Act, and the provisions relating to aggravation of diseases (s 16), apportionment where more than one injury results in incapacity (s 22), and compensation for pain and suffering (s 67). The court found that the primary judge's findings regarding the right leg injury were supported by evidence. However, it determined that the primary judge had erred in applying s 16 of the Act, which mandates contributions from previous employers in cases of disease aggravation. The court held that the primary judge should have considered apportionment under s 22 of the Act to determine the contribution of SRA to the worker's incapacity.

The appeal against the awards in favour of the worker was dismissed, but the appeal against the award for the SRA was allowed. The award in the Compensation Court in favour of the SRA was set aside, and the proceedings were remitted to the District Court to determine Rail Services Australia's claim for apportionment or contribution from the SRA. The SRA was ordered to pay one-half of Rail Services Australia's costs of the appeal, excluding any costs payable by the SRA to the worker.

Orders

Orders of the court

1. Appeal against the awards in favour of the worker, the first respondent, dismissed with costs.

2. Motion for summary dismissal of the appeal filed by the first respondent dismissed with costs.

3. Appeal against the award for the State Rail Authority, the second respondent, allowed.

4. The award in the Compensation Court in favour of the second respondent set aside.

5. Order that the proceedings be remitted to the District Court to hear and determine the appellant's claim for apportionment or contribution from the second respondent.

6. The second respondent is to pay one-half of the appellant's costs of the appeal excluding any costs payable by it to the first respondent.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

YOUNG CJ
In about March 1999, he began to experience symptoms in his right leg. DECISION OF PRIMARY JUDGE As against SRA, the worker relied on a nature and conditions claim for the period 25 January 1990 to 30 June 1996, and on frank injuries on 9 May 1994 and 6 June 1995. Against Rail Services, the worker relied on a nature and conditions claim for the period 1 July 1996 to 15 August 1998, and a frank injury on 28 May 1998. The primary judge found that the worker suffered an injury to his left leg in the employment of SRA on 6 June 1995, and also further injuries to his left leg in the employment of Rail Services between 1 July 1996 and 15 August 1998, and also on 28 May 1998; but found that the worker “now” had a 25% loss of the left leg at or above the knee (the same as in the consent award of 16 October 1996). The primary judge also found that, by reason of the further injuries to the left leg, the worker began to over use that leg, and that caused symptoms in the right leg; and on that basis, made the award based on 10% loss of the right leg at or above the knee. The primary judge found that the worker suffered 10% permanent impairment of the back as a result of the injury on 28 May 1998; and that, when aggregated, the awards of compensation for the back and right leg crossed the threshold necessary for an award for pain and suffering under s.67 of the Workers Compensation Act 1987 (the Act). The primary judge held that the worker’s continuing incapacity arose at the time he ceased work with Rail Services; and that the employment by Rail Services caused the back injury, and also caused aggravation of the left leg injury and thereby the right leg symptoms. The primary judge held that the provisions of s.16 of the Act applied, and that, in accordance with Colliar v. Bulley (2000) 19 NSWCCR 302, the award should be met by Rail Services alone.ISSUES ON APPEAL Rail Services raised three issues against the worker:1.That there was no satisfactory evidence supporting the finding concerning the right leg.2.That the judgment was vitiated by error in the way the primary judge dealt with the effect of the earlier consent award.3.That aggregation was not available to support the award for pain and suffering. Rail Services also alleged error in the primary judge’s application of s.16 of the Act so as to make Rail Services entirely responsible for the continuing weekly compensation.STATUTORY PROVISIONS The appeal requires reference to the definition of injury in s.4 of the Act, the provisions of ss.16, 22 and s.67(1), (1A) and (2) at the relevant time. Those provisions are as follows:4 Definition of “injury”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(c) does not include (except in the case of a worker employed in or about a mine to which the Coal Mines Regulation Act 1982 applies) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.16 Aggravation etc of diseases - employer liable, date of injury etc(1) If an injury consists in the aggravation, acceleration, exacerbation or deterioration of a disease: (a) the injury shall, for the purposes of this Act, be deemed to have happened: (i) at the time of the worker’s death or incapacity, or(ii) if death or incapacity has not resulted from the injury—at the time the worker makes a claim for compensation with respect to the injury, and(b) compensation is payable by the employer who last employed the worker in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration.(2) Any employers who, during the 12 months preceding a worker’s death or incapacity or the date of the claim (as the case requires), employed the worker in any such employment shall be liable to make to the employer by whom compensation is payable such contributions as, in default of agreement, may be determined by the Compensation Court.(2A) The Compensation Court is to determine the contributions that a particular employer is liable to make on the basis of the following formula, or on such other basis as the Court considers just and equitable in the special circumstances of the case: where: C is the contribution to be calculated for the particular employer concerned,T is the amount of compensation to which the employer is required to contribute,A is the total period of employment of the worker with the employer during the 12 month period concerned, in employment that has been a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration concerned,B is the total period of employment of the worker with all employers during the 12 month period concerned, in employment that has been a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration concerned.(3) In this section, a reference to an injury includes a reference to a loss or impairment for which compensation is payable under Division 4 of Part 3.(4) This section does not apply to an injury to which section 17 applies.22 Compensation to be apportioned where more than one injury(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 Part 3, or(c) a liability under Division 3 of Part 3 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.(1A) Death, incapacity, loss or liability that results partly from one injury and partly from one or more other injuries is taken to have resulted from more than one injury.(2) Liability to pay compensation under this Act includes: (a) the liability of an employer (including an employer who is a self-insurer), and(b) the liability of an insurer under a policy of insurance in respect of the payment of that compensation (including a direct liability to the worker), and(c) a liability under the Uninsured Liability and Indemnity Scheme, and(d) in the case of a worker who is partially incapacitated for work, a liability that arises because the worker is entitled to be compensated under this Act as if totally incapacitated.(3) Liability to pay compensation under this Act is not to be apportioned by the Compensation Court if the parties to whom the liability relates have agreed on the apportionment.(4) Liability to pay compensation under this Act may be apportioned by the Compensation Court even though it is the liability of a single insurer in respect of different periods of insurance, but only if the employer or the Authority applies for such an apportionment.(5) The Compensation Court may, on the application of any insurer or employer concerned or of the Authority, determine a dispute as to whether: (a) liability to pay compensation under this Act should be apportioned under this section, or(b) any such liability should be apportioned under this section in respect of different injuries.The determination of the Compensation Court has effect despite any agreement on apportionment if the application for determination was made by an employer (in the employer’s own right) or the Authority.(6) (Repealed)(7) A person who is liable to pay compensation under this Act is not entitled in any proceedings under this Act to a reduction in that liability by apportionment on account of the existence of any other person who is also liable to pay any part of that compensation unless that other person is a party to the proceedings.(8) This section applies to any liability arising before or after the commencement of this Act.67 Compensation for pain and suffering(1) A worker who has suffered a loss mentioned in the Table to this Division (or 2 or more of any such losses as a result of the same injury) is entitled to receive from the worker’s employer by way of compensation for pain and suffering resulting from the loss or all those losses, in addition to any other compensation under this Act, an amount not exceeding $50,000.(1A) Because there is a distinction between injury and loss resulting from an injury (and compensation is payable under this section only for pain and suffering resulting from a loss), the pain and suffering for which compensation is payable under this section does not include pain and suffering that results from the injury but not from the loss.(2) This section does not apply if the compensation paid or payable under section 66 for the loss or all those losses is less than 10 per cent of the maximum amount from time to time referred to in section 66 (1).…….NO EVIDENCE

Ratio Decidendi

Legal Principle Established

Established by: YOUNG CJ

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