CITATION: Yates Bros v Neil and Anor [1999] NSWCA 108 FILE NUMBER(S): CA 40329/98 HEARING DATE(S): 12 April 1999 JUDGMENT DATE:
12 April 1999PARTIES :
YATES BROS (STRATFORD) PTY LTD v WILLIAM GEORGE NEIL & ANORJUDGMENT OF: Mason P at 17; Handley JA at 1; Stein JA at 18
LOWER COURT JURISDICTION: Compensation Court LOWER COURT FILE NUMBER(S) : 1902/97 LOWER COURT JUDICIAL OFFICER: Walker CCJ
COUNSEL: M J Cranitch SC (Appellant)
J T Kearney (Respondent 1)
R I Harrington (Respondent 2)SOLICITORS: Rankin & Nathan Newcastle (Appellant)
Moroney Rutter & Mantach Newcastle (Respondent 1) Sparke Helmore Newcastle (Respondent 2)CATCHWORDS: WORKERS' COMPENSATION - Workers Compensation Act 1987 - s 15 - disease of gradual onset - whether apportionment under s 22 available for injuries under s 15 ACTS CITED: Workers Compensation Act 1987 CASES CITED: MLC Insurance Ltd v Pinto (1994) 10 NSW CCR 101 DECISION: Dismissed with costs
THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40329/98
1902/97MASON P
HANDLEY JA
STEIN JA
Monday 12 April 1999
YATES BROS (STRATFORD) PTY LTD v WILLIAM GEORGE NEIL & ANOR
WORKERS’ COMPENSATION - Workers Compensation Act 1987 - s 15 - disease of gradual onset - whether apportionment under s 22 available for injuries under s 15
The respondent worker was employed in the timber industry by two consecutive employers from 1959 to 1996. He suffered an injury to his right knee in 1969 and an injury to his left leg in 1973 which required amputation and the fitting of a prosthesis. The trial Judge found that the worker had developed degenerative arthritis in his right knee which fell within s 15. Accordingly the compensation was payable by the last employer, the appellant. The trial Judge refused an apportionment under s 22 against the first employer. The appellant claimed that a case for apportionment under s 22 was made out.
HELD : dismissing the appeal: (1) The appellant’s submission that the 1969 and 1973 injuries were distinct injuries that were partly the cause of the worker’s incapacity and this warranted an apportionment under s 22 was contrary to the Judge’s findings of fact. (2) There can be no apportionment under s 22 for injuries under s 15, which is a special provision dealing exclusively with the injuries which fall within its terms. MLC Insurance Ltd v Pinto (1994) 10 NSW CCR 101 applied. (3) The left leg injury was indirectly causative of the right knee injury and not part of it. This brought it wholly within s 15 and excluded an apportionment under s 22.ORDERSAppeal dismissed with costs.
THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40329/98
1902/97MASON P
HANDLEY JA
STEIN JA1 HANDLEY JA: This is an appeal from the Compensation Court limited to questions of law.
Monday 12 April 1999
YATES BROS (STRATFORD) PTY LTD v WILLIAM GEORGE NEIL & ANOR
JUDGMENT
2 The worker was employed in the timber industry from 1959 to 1996.…
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Details
- Case
- [1999] NSWCA 108
- Decision Date
CaseChat Overview and Summary
Yates Bros (Stratford) Pty Ltd appealed to the New South Court of Appeal against a decision of the Workers Compensation Commission. The appeal concerned a claim for workers' compensation by Mr Neil for a disease of gradual onset.
The primary legal issue before the Court of Appeal was whether the employer could seek an apportionment of liability under section 22 of the *Workers Compensation Act 1987* (NSW) in relation to a claim for a disease of gradual onset, which falls under section 15 of the same Act.
The Court of Appeal held that section 22, which permits apportionment of liability between employers where an injury is found to be due to the nature of employment with more than one employer, does not apply to diseases of gradual onset under section 15. The Court reasoned that section 15 deals with the specific circumstances of gradual onset diseases and does not incorporate the apportionment provisions of section 22. The appeal was therefore dismissed.
The primary legal issue before the Court of Appeal was whether the employer could seek an apportionment of liability under section 22 of the *Workers Compensation Act 1987* (NSW) in relation to a claim for a disease of gradual onset, which falls under section 15 of the same Act.
The Court of Appeal held that section 22, which permits apportionment of liability between employers where an injury is found to be due to the nature of employment with more than one employer, does not apply to diseases of gradual onset under section 15. The Court reasoned that section 15 deals with the specific circumstances of gradual onset diseases and does not incorporate the apportionment provisions of section 22. The appeal was therefore dismissed.
Orders
Orders of the court
Dismissed with costs
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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