A little later she said that because of her finding that the worker suffered a frank injury on 6 October 1995 " albeit in the nature of aggravation of degenerative changes ", s 16 had no application to the finding in regard to the third employer. She made clear why she reached this conclusion by the following passage in her reasons:
"The applicant did not rely upon the nature and conditions of her employment with the fourth respondent [the third employer] and what I have not found is that the fourth respondent last employed the applicant in employment which was a contributing factor to the aggravation which would invoke the operation of s 16(1)(b)."
28 The trial judge found s 16(1)(b) did apply as against the first and second employers. She therefore found two injuries, the deemed date of the first of which was the last day of employment with the second employer, 15 December 1992 (this being a s 4(b)(ii) injury), and the second injury, suffered on 16 October 1995 (this being a s 4(a) injury).
29 Because, on her findings, there were two injuries, s 22 of the Act required the judge to apportion the liability to pay in such manner as she determined. The operation of s 16 meant that in regard to the first injury the second employer was liable so that the apportionment took place between the second employer and the third employer. The trial judge apportioned 60% of the liability to the second employer and 40% to the third. These apportionments were not challenged in the appeal.
30 The appeal arguments.
Basic to the appeal, and accepted as such by counsel for the appellants, was that it was limited to points of law; the appellant had no appeal against findings of fact.
31 The point in the appeal for which the appellants wished to contend was that the trial judge should have found that the incident of 6 October 1995 was not a separate, ordinary, injury but was part of a progressive disease constituting only one injury for the purposes of the Act and thus to be dealt with pursuant to s 16 and leaving the third employer solely liable for the worker's compensation.
32 This submission had two branches. The first was that although the trial judge had found that the injury suffered in the employment of the third employer was a frank injury, nevertheless, because she had also found that it was in the nature of aggravation of degenerative changes and because, (it was contended), that description satisfied the terms of s 16, s 16 had, as a matter of law, to be applied. The second branch was that if the first branch failed, then there was no evidence upon which the trial judge could have found that the relevant injury was a frank injury.
33 It will be easier to explain the various reasons why I think the first branch of the submission must fail if I first state my opinion on the second branch, which, to repeat it, was that there was no evidence to support the trial judge's finding that the injury in the third employer's employ was a frank (s 4(a)) injury. The rather unsatisfactory state of the medical evidence which I earlier mentioned gave the appellants a slightly specious basis for this submission.
34 Notwithstanding this, there was, in my opinion, ample evidence before the trial judge that the worker suffered a frank injury on 6 October 1995. Probably her own evidence was sufficient. She was at work, she slipped, she fell, she hit her knee, she suffered pain as a result, and from then on she had significantly more difficulty in trying to use the knee than she had had before. This might be an unsophisticated way of approaching the point, but to my mind a proper and sufficient one. However, the evidence of the worker was not the only evidence. In one of the medical reports in evidence Dr Gibson said:
"Marilyn first began work at J & K Mushrooms in 1989. She mentioned soreness in her knees from 1990 onwards, however it wasn't until early 1992 that her symptoms warranted x-rays and orthopaedic opinion. She was assessed by Dr Hyde-Page at this stage. During this period she was working at the mushroom farm, kneeling on concrete, then climbing ladders throughout her hours of employment. It was quite evident at the time that she was developing a disease process whilst she worked. It is clearly my opinion that this progress was directly related to the nature of her work, and would not have occurred were she not working in that particular job. She further aggravated and advanced her disease whilst working at the Riverview Motel, Taree, where she slipped whilst cleaning a spa, landing forcefully onto both knees. I attributed liability as follows: 60% to the time she worked at the Mushroom Farm, 30% when she slipped in the spa and 10% to natural progression of an underlying tendency to osteoarthritis."
35 It seems reasonably clear to me that in this passage Dr Gibson was drawing a distinction between, on the one hand, the worker's employment by the first and second employers at the mushroom farm where she was developing a "disease process" (sic) while working, that "progress" (sic) being directly related to the nature of her work and such as would not have occurred if she were not working in that particular job and, on the other hand, her later employment with her third employer where she slipped landing forcefully on her knees, suffering an injury not of a progressive kind. It seems to me the only reasonable way of reading her percentage allocations at the end of the quoted part of her opinion is that 60% of her disability was attributable to the progressive aggravation of her disease while working for the first and second employers, 30% to the distinct injury she suffered when she fell and 10% to what would have happened to her in any event regardless of her employment at the mushroom farm and the injury at the motel. It follows from this that in my opinion the "no evidence" argument fails.
36 The only other way the appellant might conceivably hope to overcome the trial judge's factual findings (which I should mention in passing, were in my opinion fully open to her) would be by a submission that, as a matter of law, it followed from the factual findings she did make about the injury of 6 October 1995 ("a further aggravation of degenerative changes" etc), that the injury was a progressive disease injury and only a progressive disease injury. This however simply fails on the facts. Zickar holds that an injury can be both a s 4(a) injury and a s 4(b) injury. When it is, an applicant worker can, as here, rely simply on the s 4(a) injury. Zickar establishes this also. There was evidence on which the trial judge could and did find the relevant injury was a s 4(a) injury. The judge's finding on that evidence defeats the submission.
37 A lesser, but also fatal, point is that to uphold the submission, this court would have to hold that as a matter of fact, the worker's employment with the third employer was a contributing factor to progressive osteoarthritic damage to the worker's knee on 6 October 1995. This court has no power in this appeal to make factual findings.
38 I return now to the first branch of the appellants' submission, on which most time in the argument was spent.
39 With all respect to others who take a different view, this submission is not acceptable. It overlooks altogether the judge's statement that the worker's claim against the third employer was that she had suffered (received, as the Act says) an injury in that employer's employment within the meaning of s 4(a). As Zickar held, the applicant was quite entitled to put that part of her case on that basis, if the facts supported it. The judge held they did. The appeal is confined to questions of law. If there was material upon which the judge could make a finding of a s 4(a) injury, then her finding cannot be questioned in this court.
40 On the footing that the trial judge upheld the worker's claim that her injury in the third employer's employment was a s 4(a) injury, there was no need for her to consider whether the worker's injury could also be classified as a s 4(b) injury, nor was there any point in her doing so. Nor did the judge consider the question. This is made crystal clear by her statement that she had not found as a fact that the worker's employment with the third employer was a contributing factor to the injury the worker suffered in that employment. In the absence of such a finding, (i), an essential ingredient of a s 4(b) progressive disease injury was missing, (ii), it was impossible to conclude there had been such an injury and (iii), no question about the operation of s 16 in regard to the injury in the third employer's employment could arise.
41 In my opinion this branch of the appellants' submission cannot succeed.
42 On the views I have expressed, this court never reaches the main point the appellants wished to argue, but I will note it nevertheless. This point depended upon a view of the trial judge's findings which for reasons already given I do not think is sustainable, that is, the submission went upon the basis that when the trial judge referred to the injury of 6 October 1995 as being a frank injury "albeit in the nature of aggravation of degenerative changes" she was either making a finding or was bound to make a finding that the injury was both a frank injury and a progressive disease injury.
43 Starting (inadmissibly) from there, the argument was that in an overlapping situation where the court finds that the same incident falls within the description both of a frank injury and a progressive disease injury, s 16 must be applied. This contention then became the main focus of the appellants' argument.
44 My own opinion on the argument, if it were necessary to reach a conclusion on it, is to the opposite effect: namely, that if an injury falls into both categories, and the worker relies on, and the court finds a s 4(a) injury, then s 16 has no application. This clearly follows from both majority opinions in Zickar.
45 To avoid this conclusion the appellants sought to rely on MLC Insurance Ltd v Pinto (1994) 10 NSWCCR 101; they also sought to bolster what was said to be the continuing effect of that decision with the comment made in the High Court in QBE Insurance Ltd v Switzerland Insurance Workers Compensation (NSW) Ltd (1996) 70 ALJR 281 in which the court said that
"It [was] certainly arguable that Insurers Guarantee Fund NEM General Insurance Ltd v GIO General Ltd (1994) 33 NSWLR 247 establishes that, when a worker has a single partial incapacity caused by a succession of injuries, the insurer who is liable for that incapacity is the insurer who was on risk when the last causative injury occurred. According to that decision, insurers who were on risk in respect of the earlier injuries are not liable to contribute." (at 283)
46 There are a number of problems for the appellants in their reliance on these two decisions. In regard to Pinto, what was decided in that case was not applicable to the facts of the present case, even if the present case were being decided on the law as it stood when Pinto was decided. In Pinto, Clarke JA said that the provisions of s 16(1)(b) and (2) provided in effect a code in disease cases so that there was no room for apportionment of liability to a worker between employers (at 107). This view was partly based on the then standing authority of the Insurers Guarantee Fund case. Clarke JA went on to say, however, that there was a proviso, which he regarded as a remote possibility, to his conclusions. The proviso was that there might be a case "in which the incapacity is found to result from each of a frank injury and the aggravation of a disease" (at 107). He continued by saying that that however was not the case before the court (at 107).
47 A further difficulty with reliance on Pinto is that it depended upon the correctness of propositions laid down in the Insurers Guarantee Fund case which were subsequently overridden by amendments made to the Act in 1995. These amendments, among much else, inserted in the Act the s 22(1A) referred to in par 15 above. In a set of cases heard consecutively to consider the effect of the amendments, (see Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 39 NSWLR 87) Clarke JA (with whom Hunter AJA and I agreed) accepted that the legal position had been substantially altered by the amendments. Part of what was required under the changed system was factual findings by the trial judge whether the particular incapacity in a case resulted partly from one injury and partly from another injury or other injuries. Clarke JA made it quite clear that in answering these questions the trial judge would be deciding questions of fact (at 94).
48 In short, Pinto is neither an authority on the facts of the present case nor on the relevant provisions of the Act which affect this case, materially different as they are from those in force at the time of Pinto.
49 The appellants have similar problems in relying on the observation made by the High Court in QBE Insurance concerning the arguability of the point that court defined in light of the Insurers Guarantee Fund case. The High Court's decision in QBE Insurance was that the point they there isolated as arguable, which had not been dealt with when the case was heard on appeal in this court, should be considered and decided by this court. As directed, this court considered the point and handed down its reasons and decision on 5 December 1996 under the name Switzerland Insurance Workers Compensation (NSW) Ltd v Burley. So far as I know, the decision is unreported. Mahoney P came to the conclusion that the Insurers Guarantee Fund case did not establish the proposition which the High Court had held was arguable. The other two judges (Meagher JA and myself) dealt with the case differently. Assuming without deciding that the Insurers Guarantee Fund case did establish the proposition said by the High Court to be arguable, the further point was made that in light of the retrospective changes to the legislation that had been made as discussed in Baltica General Insurance since this court's first decision in the Switzerland Insurance case and since those amendments were retrospective and brought about the same result as the court had originally arrived at in any event, then the court should dismiss that ground of appeal, because the question of apportionment would, even if the arguable proposition were held to be correct, have to be decided on the newly current law, which made that proposition inapplicable.
50 A decision which the appellants very properly brought to the notice of the court as being possibly inconsistent with their contention, as indeed, in my opinion, it is, was Australian Conveyor Engineering Pty Ltd v Mecha Engineering Pty Ltd (1998) 45 NSWLR 606. The appellants sought either to distinguish the facts of this case from the present or to have this court overrule it as being inconsistent with Pinto.
51 In Mecha Engineering Sheller JA concluded that s 16 was confined to what were entirely aggravation injuries (at 616). Powell JA said that given the trial judge's findings of fact and what had been decided by the High Court in Zickar:
"it was open to the trial judge to hold that the worker's impairments were due to two discrete 'injuries' - a simple 'injury' in 1992 and an 'injury' brought about by the nature and conditions of his employment with the first respondent and that he did not err in doing so. This being so, it seems to me that the case did not call for the application of the provisions of s 16 of the Act." (at 619)
52 Fitzgerald AJA dissented.
53 There can be no question of Mecha Engineering being inconsistent with Pinto in any relevant sense, because it was decided on later and different legislation, as explained by Clarke JA in Baltica General. Pinto remains an authority on the law with which it dealt and Mecha Engineering in my opinion is an authority which should be followed in the present case. Sheller JA's opinion goes further than that of Powell JA and I would conclude that since Sheller JA's proposition includes that of Powell JA, then the lesser proposition of Powell JA should be treated as the governing rule that emerges from the case.
54 Thus, in my view, the case law relied on by the appellants can be of no assistance to them. Zickar by itself, in conjunction with the relevant statutory provisions governing the present case, in my opinion requires this court to agree with the legal basis on which the trial judge proceeded. Further, Mecha Engineering likewise requires this court to come to the same conclusion, or if that be putting the authoritative effect of that decision too high, it is at the very least strongly persuasive in support of the trial judge.
55 I therefore would not accept the first and principal branch of the appellants' submission even if it were arguable on the facts.
56 Conclusion.
Put shortly, the course of the trial judge's reasoning was that she found there was a frank injury on 6 October 1995, therefore no question of the application of s 16 arose in regard to that injury. Further, although perhaps less fundamentally, she did not find there was progressive disease injury on that day, so again no question of the application of s 16 arose. On the facts of the case as the trial judge found them, and in my opinion was entitled to find them, her line of reasoning seems to me to be fully valid. In my opinion the appellants have been unable to show that the trial judge made any error of law in her decision.
57 In my opinion the appeal should be dismissed with costs.
58 MEAGHER JA: I agree with Davies AJA.
59 DAVIES AJA: This is an appeal from a determination of the Compensation Court of New South Wales. The issue is whether the provisions of s 16 of the Workers Compensation Act 1987 ("the Act") should have been applied so as to exculpate from liability Mr and Mrs Colliar, who are the present appellants and were the third respondents below. As the appeal is brought under s 32 of the Compensation Court Act 1984, it is limited to a question of law.
60 Section 9(1) of the Act provides, inter alia:
(1) A worker who has received an injury (and, in the case of the death of the worker, his or her dependants) shall receive compensation from the worker's employer in accordance with this Act.
61 Section 16 of the Act provides, inter alia:
(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