Rail Services Australia v Dimovski

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.