LTD v BURLEY

Worker sustained back injures while employed as truck driver - Four separate injuries over period of time involving two different employers and three different insurers - Worker claimed compensation for incapacity due to injuries - Judge makes award of periodic compensation in respect of the various injuries and related periods of incapacity - Apportionment (70:30) of burden of compensation between employers - Appeal to Court of Appeal by one employer (McRae) and insurer

(Swiss NSW) and cross-appeal by other employer (Linfox) and insurer (QBE) - Court of Appeal on first hearing dismisses appeal with reasons and dismisses

Court of Appeal - Rehearing of cross-appeal - Question of which employer was liable to the worker for compensation and hence which insurer - Construction and application of s22 Workers Compensation Act 1987 re apportionment of liability for worker's compensation - Effect of subsequent amendments to Workers Compensation Act 1987 on question of power to apportion - Principles where incapacity may result from more than one injury or where results from only one of several injuries - Whether power of apportionment pursuant to s22 in these circumstances - Requirement to give reasons for decisions in compensation cases.

QBE appeals to High Court against dismissal of cross-appeal alleging not properly heard by Court of Appeal - High Court grants leave, allows appeal on grounds of miscarriage of justice and remits cross-appeal to Court of Appeal to be redetermined - cf QBE Insurance Ltd v Switzerland Insurance Workers Compensation (NSW) Ltd and Ors (1996) 70 ALJR 281 (HC).

(i) (per Priestley and Meagher JJA) Assuming but not deciding in favour of the cross-appellant, if there was a rehearing of the cross-appeal, it would be on the law (s22) since amended, but applying the law to the facts as decided at first instance by Duck J which were not challenged on appeal. The result of that process would arrive at the same conclusions regarding apportionment of liability between the respective insurers as found by Duck J. Therefore the rehearing is a futility and the cross-appeal should be dismissed.

(ii) (per Mahoney P, Priestley and Meagher JJA not commenting) This Court must accept and faithfully apply the ruling of the High Court that the cross-appeal is arguable:

Proctor v Jetway Aviation Pty Ltd (1984) 1 NSWLR 166; Hughes Bros Pty Ltd v Trustees Roman Catholic Church (1993) 31 NSWLR 91; applied.

(iii) (per Mahoney P) The cross-appeal could only succeed if it was held that s22 had no application to the case. But the orders made determining liability were made upon the basis that s22 did apply and that an apportionment could be made accordingly. Therefore the cross-appeal was plainly unarguable: Morris v George (1977) 2 NSWLR 552; Bushby v Morris (1980) 1 NSWLR 81 (PC); National and General Insurance Co Ltd v South British Insurance Co Ltd (1982) 149 CLR 327; applied.

Insurers Guarantee Fund NEM General Insurance Association Ltd (in liq) v GIO (1994) 33 NSWLR 247; MLC Insurance Ltd v Pinto (NSWCA) (1994) 8 ANZ Ins Cas 61-211; Insurers Guarantee Fund NEM General Insurance Association Ltd v - MMI (NSW Court of Appeal, 12 August 1994, unreported); referred to.

(iv) (per Mahoney P) In determining the need to give reasons it is necessary to take into account the nature of the jurisdiction and what is ordinarily involved in the hearing of those matters. It is not necessary for judges of the Compensation Court nor for this Court, to provide in the final judgment reasons for rejecting every matter that has been raised:

Pettitt v Dunkley (1971) 1 NSWLR 376; Public Service Board v Osmond (1986) 159 CLR 656; Housing Commission of NSW v Tatmar Pastoral Co Ltd (1983) 3 NSWLR 378; Soulemezis v Dudley Holdings Pty Ltd (1987) 10 NSWLR 247; Rajski v Bainton (NSW Court of Appeal, 6 September 1991, unreported); referred to.

Mahoney P When this proceeding was originally before this Court, the appeal and the cross-appeal were dismissed. I dismissed the appeal on its merits with reasons; I concluded that the cross-appeal was plainly unarguable and dismissed it summarily. The High Court subsequently held that the cross-appeal was arguable and that to dismiss it summarily was "a miscarriage of justice". It returned the cross-appeal to this Court to be dealt with.

This Court must accept and apply faithfully the ruling of the High Court that the cross-appeal is arguable: Proctor v Jetway Aviation Pty Ltd (1984) 1 NSWLR 166; Hughes Bros Pty Ltd v Trustees of the Roman Catholic Church for the Archdiocese of Sydney (1993) 31 NSWLR 91 at 94. The cross-appeal has been reargued. I remain of the opinion that the cross-appeal should be dismissed. The decision of the High Court and the argument as it has been presented raise for consideration a number issues of importance in the construction of the Workers Compensation Act 1987 and in the practical operation of courts of first instance and courts of intermediate appeal under that Act. In this case, I shall detail why I remain of that opinion.

I shall: (1) detail the course the proceedings took in the Compensation Court this Court and the High Court; (2) indicate why, in my opinion, the cross-appeal could not succeed; (3) identify the reason why the High Court found this Court to have erred in its summary dismissal of the cross-appeal; (4) refer generally to the nature of proceedings and awards under the Workers Compensation legislation; (5) state my view as to the construction of s22 of the Act and as to the powers of the Compensation Court and this Court to apportion the burden of compensation awards; and (6) refer to the significance of the decision of the High Court in relation to the reasons which the Compensation Court and this Court must give for decisions, in particular, decisions in Workers Compensation proceedings.

The basic facts are detailed in the judgments given by Duck J, a Judge of the Compensation Court, on 15 and 24 June 1994. I shall summarise the relevant parts of them. The worker Mr Burley was employed essentially as a truck driver.

WRVITZERLAND INSURANCE WORKERS COMPENSATION (NSW) LTD v BURLEY (Mahoney P)

During his work as such, he was employed first by Linfox Transport (Australia) Pty Ltd ("Linfox'"), then by H and D McRae Carriers Pty Ltd ("McRae'') and subsequently again by Linfox. While he was so employed, he suffered, as it has been found, four injuries: an injury on 13 May 1986 when he suffered trauma to his back; an injury in November 1986 when he was unloading a truck; an injury between 1986 and June 1989 arising from the nature and conditions of his work as a truck driver; and an injury on 30 December 1991. These injuries each involved his back and the use which he could have of it.

(The first, second and fourth injuries were injuries in the ordinary sense of the term. In describing the third injury, that which occurred between 1986 and June 1989, I have followed the conventional description of what happened as an "injury". As the judge indicated and as is now understood in the administration of this Act, the term is employed to describe the effect upon a worker of the nature and conditions of his employment. The appropriateness of the description of such as an "injury" has not been in question in this proceeding and nothing turns upon it).

Following these four injuries the worker was incapacitated for work within the terms of s33 of the Act. I shall refer subsequently to the details of that incapacity.

The periods during which the worker was employed first by Linfox, then by McRae and again by Linfox are, on the evidence, not clear. There was significant contest upon this matter at the trial and the trial judge made certain findings. For present purposes, it is sufficient to note that from about 1983 the worker worked for Linfox. He was employed by McRae from about September 1986. In about June 1990 it was suggested that Linfox took over the ownership of McRae. At some time thereafter he recommenced in employment with Linfox: the judge found that the date of the fourth injury, 30 December 1991, he was working for Linfox. It is, I think, not necessary for present purposes to attempt to fix more precisely the precise point in time when he ceased to be employed by McRae.

The respective employers were insured against workers compensation liability. Up to 30 June 1986 Linfox was insured by QBE Insurance Ltd ("QBE").

For a short period after 30 June 1986 it appears that the insurer was Switzerland General Insurance Co Ltd, a company associated with the party in the present proceeding Switzerland Insurance Workers Compensation (NSW) Ltd ("Switzerland"). Nothing has been urged to turn upon insurance in this period and, in the appeal, reference has been made only to QBE and Switzerland.

From 11 September 1986 or thereabouts to the end of the period here relevant, the insurer was Switzerland. Switzerland was the insurer as at 30 December 1991, the date of the last injury. (I have not pursued the detail of the evidence in relation to the periods of insurance. The issue now before this Court does not require that I do so).

The worker claimed compensation for incapacity consequent upon the injuries. More accurately, in his finally amended application filed in or about February 1994, he claimed that he had suffered several injuries more or less as the judge found. He specified the nature of his injury as "injury to back". He detailed incapacity from 13 May 1986 for various periods to the date of the application "and continuing". He claimed, for particular periods, total or partial incapacity and for a "continuing total incapacity". The application contained particulars given separately in respect of Linfox and McRae and acknowledged payment of compensation to various dates. This no doubt explains why the periodic compensation commenced when it did.

The learned trial judge gave a judgment on 15 and 24 June 1994. He awarded periodic compensation on the following bases: total incapacity between 7 January 1991 and 18 April 1991; and for partial incapacity between 19 April 1991 and 1 April 1994 "and continuing". He awarded compensation under s66 and s67 and made incidental orders.

At the hearing before the judge, counsel for the respective employers were permitted to appear in the interests of the respective insurers. This was no doubt because it was intended that the judge be asked to apportion (as I shall describe it in a neutral fashion) the burden of the compensation. In the event, after argument, the judge apportioned the burden in two ways. First, as between Linfox and McRae, he held Linfox to be liable for 70 per cent of the burden and McRae for 30 per cent. Then, as between the respective insurers, he made an apportionment of the burden (70 per cent) which Linfox was to bear: he directed that QBE bear 60 of that 70 per cent burden and Switzerland bear 10 of the 70 per cent. (The judge, in addition, made an apportionment between Switzerland and the other Switzerland company; it is not necessary to refer to that apportionment).

It was not submitted before Duck J that his Honour had no power to apportion liability to pay compensation to the worker either as between the two employers or as between the two insurers. In the detailed judgment given by Duck J, there is no reference to any submission that his Honour did not have the power to do as he did, namely, to apportion liability as between the employers and as between the insurers. Had the matter been seriously argued before his Honour in such a way as to raise arguable questions, it is probable that his Honour would have referred to the power to apportion and the contest in respect of it. Mr Holmes QC, for Linfox and QBE, has placed before the Court a copy of transcript of the trial before Duck J. From the terms of that transcript, I infer that no submission was made to Duck J that his power to apportion was, in the circumstances of this case, contested.

The proceeding was then brought to this Court on appeal. It is important to make clear what was, and what was not, done.

The appeal was brought by McRae and Switzerland as appellants. The grounds of the appeal were: that the worker was not employed on the relevant dates; that he was not incapacitated "from 7 January 1991 to the date of judgment"; that the judge erred in fact in finding that, as the result of the injuries, he sustained a permanent impairment of the back; and that the judge erred in finding the worker entitled to a s67 award (for pain and suffering). No appeal was brought against the apportionment between the employers Linfox and McRae or the apportionment between the insurers QBE and Switzerland; the power to apportion and (if the grounds of appeal were rejected) the apportionment made were accepted by the appellants McRae and Switzerland.

A cross-appeal was brought, the cross-appellants being Linfox and QBE. The cross-appeal noted that QBE had been granted leave at the trial to be represented as insurer of Linfox "for the period 30 June 1982 to 30 June 1986"; and that Switzerland had been granted leave to be represented as insurer of Linfox between | July 1986 and 26 June 1990. No reference was made to the possibility of conflict as between Linfox and QBE. The grounds of the cross-appeal (grounds 2-12) raised several issues. The grounds put in issue findings of partial and permanent capacity of the worker and matters relating to his capacity and the extent of it. In addition, there were grounds of appeal which put in issue the

WRVITZERLAND INSURANCE WORKERS COMPENSATION (NSW) LTD v BURLES (Mahoney P)

apportionment made between the employers, ie, the judge's finding that Linfox was "liable for any proportion of lump sum compensation for permanent impairment of the back and weekly benefits from 7 January 1991 to the date of judgment and continuing": ground 7. As an alternative to ground 7, ground 8 contended that the finding that Linfox "is liable for 70 per cent of' the lump sum and the weekly benefits "was excessive".

"9. That his Honour erred in finding the first cross-appellant (QBE) liable for any proportion of lump sum compensation for permanent impairment of the back and weekly benefits from 7 January 1991 to the date of judgment and continuing.

10. In the alternative to ground 9 that his Honour's finding that the first cross-appellant (QBE) is liable for 60 per cent of lump sum compensation for permanent impairment of the back and weekly benefits from 7 January 1991 to the date of judgment and continuing was excessive.

12. That his Honour, having found that the last injury made an effective causative contribution to the worker's resulting condition, erred in not holding that the insurer at risk at that time to be wholly responsible for any compensation payable."

In the written submissions filed for Linfox and QBE at the trial, those cross-appellants abandoned all grounds except grounds 9, 10 and 12. The Court was informed that grounds 9 and 10 were "supplementary to ground 12 and are strictly not necessary". They were not argued except in so far as they fell within the argument directed to ground 12.

As the result of this, the argument on the cross-appeal went forward on the basis that Linfox had expressly abandoned any appeal against the 70-30 apportionment of liability as between the employers, ie, between itself and McRae. The issues raised by the grounds of cross-appeal were issues going only to the apportionment as between the insurers, ie, between QBE and Switzerland (60-10) of the 70 per cent apportioned to Linfox. I shall return to the importance of this in due course.

During the oral argument before this Court on 16 June 1995, Mr Hislop QC, for McRae and Switzerland, argued the issues raised in their appeal. Those issues went to matters of substance, essentially between them and the worker: they went essentially to the injuries (whether and when they occurred and what if any incapacity they produced) and the quantum of the lump sum awards made under s66 and s67. The Court did not uphold the appeal of McRae and Switzerland and accordingly affirmed: that the worker had suffered the four injuries in question; that he had been incapacitated totally or partially as the judge found; and that the lump sum awards were properly made. As I have said, neither McRae nor Switzerland put in question the apportionment of the burden as between the employers Linfox and McRae or the apportionment of the burden as between the insurers QBE and Switzerland. It was not suggested, for example, that the judge had no power to make such apportionments: the apportionment between Linfox and McRae was not an issue in the appeal and the apportionment between QBE and Switzerland arose only on the cross-appeal. It was not in the interests of Mr Hislop QC to argue, eg, the construction of s22, at least at that stage. He did not do so, but, in passing, he referred (as I understood the inference to be drawn from what he said) to the difficulties confronting Linfox and QBE in relation to their cross-appeal.

In relation to the cross-appeal, the Court heard argument from Mr Holmes QC for Linfox and QBE. It dismissed the cross-appeal. It is in relation to what it did in dismissing the cross-appeal that the present issues arise. It is therefore necessary to refer in more detail to what occurred.

As I have indicated, the only ground remaining on the cross-appeal was whether the trial judge had had power to apportion liability between the insurers, QBE and Switzerland; and the only reason to be advanced for claiming that he did not was that the last injury made some "causative contribution" to the worker's incapacity. All other grounds of appeal had been expressly abandoned by the written submissions which had been filed before the hearing of the appeal.

In my opinion, the abandonment of the other grounds of appeal made it impossible for Mr Holmes QC to argue ground 12 of the notice of cross-appeal. The submission that Mr Holmes QC wished to make was essentially that (for the reason assigned in the ground) the trial judge had no power to apportion liability between the insurers QBE and Switzerland: his submission was essentially that the injuries and the incapacity were such that the only power under which such an apportionment could be made, that granted by s22, was not available to be used. In his written submissions he submitted that "the worker's incapacity while employed by Linfox was materially contributed to by injuries that occurred in periods of risk other than its own.. (In fact, the main cause of the incapacity was the first injury). "The findings of his Honour clearly indicate that the totality of the injuries suffered by the worker had a cumulative effect upon his capacity for work, so that the last injury made a causative contribution to the incapacity that resulted (see Handley JA in NEM v MMI, 12 August 1991)". Therefore, it was submitted, the last insurer for Linfox alone must bear all of the compensation payments to be made by Linfox. For this position, as the submissions recorded, QBE "relies on the authority of this Court in the insurers Guarantee Fund - NEM General Insurance Associated Ltd (In Liquidation) vy GIO General Ltd (unreported, Court of Appeal, 15 March 1994); MLC Insurance Ltd v Pinto and Anor (NSW Court of Appeal (1994) 8 ANZ Ins Cas 61-211 and Insurance Guarantee Fund NEM General Insurance Associated Ltd v Manufacturers Mutual Insurance and Ors (unreported, Court of Appeal, delivered 12 August 1994)".

Mr Holmes QC argued that all liability should borne by Switzerland because it was the insurer of Linfox at the date of the last injury or, perhaps, at the time of the incapacity existing at the date of the trial.

The cross-appeal was dismissed. My judgment was the principal judgment. I dismissed the cross-appeal summarily. I made no reference to the question of the applicability of s22 or the cases referred to. Priestly JA, in his judgment, said: "My views about the matter raised for decision in the appeal and cross-appeal are the same as those of Mahoney JA. I therefore agree with the orders he proposes."

The matter was taken to the High Court of Australia on an application for leave to appeal.

Mr Holmes QC has informed this Court that the application was made to the High Court on the basis that this Court had overlooked the submission that the trial judge had no power to apportion the burden of the compensation payments between the insurers. As I have said, the submission was not overlooked. It was the only submission made in support of the cross-appeal. The cross-appeal was dismissed summarily because it was thought unarguable. However, the High

WRVITZERLAND INSURANCE WORKERS COMPENSATION (NSW) LTD v BURLEY (Mahoney P)

Court in its judgment on the appeal adverted to the possibility that this Court had not overlooked the submission but had dismissed the appeal for other reasons. The High Court said:

"Special leave to appeal should be granted and the appeal allowed with costs.

The order of the Court of Appeal dismissing QBE's cross-appeal should be set aside. The matter should be remitted to that Court to hear and determine the cross-appeal."

In the course of its judgment, the High Court said:

"Tt is certainly arguable that the Insurers Guarantee Fund v GIO (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. Apportionment under s22 of the Act is available, therefore, only when there is a common liability of two or more employers or two or more insurers for the same compensation for an incapacity: see Insurers Guarantee Fund (1994) 33 NSWLR 247 (end of tape: check) 'These propositions are the basis for QBE's contentions (1) that Linfox is wholly responsible for Mr Burley's continuing incapacity and the awards made in respect of it because of the injury of 30 December 1991 was the last causative injury of that incapacity; and (2) that Switzerland (NSW), being the only insurer at risk at that time, must bear all liability for those awards."

"Tt is clear that Duck J did not apportion liability upon the basis for which QBE contends. Whether his Honour was referred to Insurers Guarantee Fund is not clear, but the point was clearly raised in the Court of Appeal by the notice of cross-appeal and the written submissions filed by QBE. Furthermore, the transcript of argument in the Court of Appeal shows that QBE argued the point in that Court and that counsel for Switzerland (NSW) did not argue that the principle of Insurers Guarantee Fund was inapplicable. However the judgment of the Court of Appeal gives no indication that the point was considered...".

"The judgment of the Court does not refer to the authorities or to the principle for which QBE contends. Nor does it make any evaluation of the findings of Duck J to determine whether Mr Burley had sustained a single partial incapacity caused by a succession of injuries, whether the injury of 30 December 1991 was the last causative injury of that incapacity or whether Switzerland (NSW) alone was at risk when the injury occurred."

The High Court recorded that Mr Bennett QC, for the respondents to the application for leave, had contended that the present proceeding did not fall within the Insurers Guarantee Fund line of cases. The Court said: "Whether or not Mr Bennett's categorisation of the authorities is correct is debatable. So is QBE's contention that the case falls within the principle that it claims is the basis of Insurers Guarantee Fund. But neither of these matters is relevant. The ground of cross-appeal raised by QBE was plainly arable and the judgment of the Court of Appeal gives no indication that the Court considered ground 12. If it did, the reason give by the Court cannot be regarded as proper reasons for rejecting that ground. In either case there has been a miscarriage of justice calling for the intervention of this Court."

Accordingly, the High Court decision involved two things. First, the High Court concluded that the cross-appeal was arguable: that must be accepted by this Court and the rehearing dealt with on that basis. Second, it concluded that, if this Court did not overlook the ground of the cross-appeal, it failed to give "proper reasons for' rejecting it summarily. This raises for consideration the form of the reasons which must be given by courts for dismissing a proceeding. I shall return to this in para(6).

There are at least two reasons why the cross-appeal could not succeed: (a) because the basis of the cross-appeal was inconsistent with the decisions and the bases of decision of the matters at issue in the appeal; and (b) because the cases relied on to support the cross-appeal did not support it.

(a) The argument in support of the cross-appeal faced fundamental difficulties: it was inconsistent with the position that the cross-appellants had taken on the appeal and with the orders accepted by them on the appeal. In view of the arguments advanced upon the rehearing of the cross-appeal, I shall spell out in a little detail why this is so.

The arguments or assumptions on which ground 12 of the cross-appeal is - more accurately must be - based are on proper analysis generally to the following effect: where an incapacitated worker has suffered more than one injury, the employer at the time of "the last injury (which) made an effective causative contribution to the workers resulting" incapacity is "wholly responsible for any compensation payable" in respect of that incapacity; therefore the insurer who must bear the burden of that compensation is the insurer of that employer at the time of that "last injury"; the "last injury" in this case was the fourth injury (30 December 1991); at that time, Linfox was the employer and therefore Linfox is solely responsible for the workers compensation; at that time, Switzerland and not QBE was the insurer of Linfox; therefore the burden of the compensation must be borne, and borne only, by Switzerland and not by QBE.

Before examining this argument, it is important to note two things: the basis on which QBE was - or any insurer could be - ordered to bear the burden of the compensation or part of it; and the relationship of the argument to s22.

At the risk of burning daylight, I note that the liability of QBE - or of any insurer - for the compensation is not direct but derivative. I mean by this that, in principle, the person liable to pay compensation to a worker is the employer. The insurer's liability is, in principle, only to indemnify the employer if and to the extent that the employer is so liable.

(I am conscious that an insurer may be made directly liable to a worker, by order of the court under specific provisions of the Act or by reason of the particular provisions of the statutory Workers Compensation policy. But in principle the position remains that it is the liability of the employer to the worker which is central to the legislative scheme and that the insurer is liable for the compensation only if and to the extent that the employer it insures is liable).

Accordingly, in deciding whether and to what extent QBE is liable to bear the compensation payable to the worker in this case, it is necessary to decide the liability for that compensation of the relevant employer.

Second, it is to be borne in mind that the central issue in the appeal and the cross-appeal was whether, in the circumstances of the present case, the power of apportionment given by s22 could be exercised. Duck J had apportioned liability between the employers upon the basis that s22 applied; there was no other basis on which that apportionment could be made.

WRVITZERLAND INSURANCE WORKERS COMPENSATION (NSW) LTD v BURLEY (Mahoney P)

I come now to the argument on which the cross-appeal is, or must be, based. As [have pointed out, the proceeding involved, inter alia, two distinct questions: which employer or employers were liable to the worker for compensation; and, in respect of each employer so liable, which insurer or insurers were to indemnify that employer. If, on the cross-appeal, QBE was to be held not liable to bear any portion of the compensation, that was because the injury (and the only injury) by reference to which the liability for compensation was to be ordered was the fourth injury (30 December 1991); because at that date Linfox was the employer; and because at that date Switzerland and not QBE was Linfox's insurer. The argument was based upon the contention that only one employer (and therefore one insurer was liable for the compensation and accordingly s22 could have no operation apportionment cannot be made where only one person is liable. But such matters are inconsistent with what the Court had found as to the liability for compensation of the respective employers. As I have indicated, the judge had held that the liability for compensation fell upon both Linfox and McRae and was to be apportioned between them (70-30). He had done that on the basis that the injury by reference to which liability for compensation was to be ordered was not the last injury; it was to be ordered by reference to all of the injuries (he had held the first injury to be mainly responsible). More than one employer being liable for the compensation, s22 could be applied and the apportionment could be made: it was on the basis that it applied that the liability for compensation was apportioned between Linfox and McRae.

These findings and the apportionment between the employers stood; Linfox and QBE expressly abandoned the grounds of appeal in the cross-appeal which suggested that they were wrong. Accordingly, as between the employers, liability for the compensation fell, not upon Linfox alone, but upon both Linfox and McRae. A finding on the cross-appeal that Linfox alone was liable for the compensation would have been inconsistent with this.

Similarly, the cross-appeal could succeed only if it was held that s22 had no application to the case. But the orders made determining liability as between the employers were made upon the basis that s22 did apply and that an apportionment could be made accordingly.

Therefore, in my opinion, the cross-appeal was plainly unarguable. The findings sought in the cross-appeal, viz, that QBE was not liable at all could only be made if the first injury, which occurred when Linfox was insured by QBE, could not be taken into account in relation to the compensation. But that was contrary to what had been held.

I do not think it necessary to pursue the possibility of an employer and an insurer taking different positions in relation to liability to compensation. In the present case, the possibility of conflict between them was not contemplated: this because, I think, there was no attempt to assert different positions between them. In the trial and before this Court they appeared by the same counsel submitted the same arguments, and suggested no difference between them.

This fundamental difficulty in relation to the cross-appeal was, in my opinion, referred to in argument before this Court and the original hearing. Early in the appeal, attention was directed to the question how the insurers had come to be before the Compensation Court. Priestley JA referred to s 22(5) and, as I understand the discussion, invited counsel to indicate whether it was in reliance upon s22(5) that the insurers had come before the Court and sought rulings and, if not that provision, under which provision their disputes had been litigated at the trial. Subsequently, during the argument of Mr Holmes QC, counsel was

invited to indicate how, if s22 did not apply, the insurers could have been before the Court to seek orders. Following the exchanges upon such matters, Mr Holmes was not able to find any section other than s22 upon which, in proceedings as they were before the judge, the insurers could have come before the Court as they did.

It is not, I think, necessary to find in the transcript of the argument before this Court a precise analysis of these issues. It is, in my opinion, sufficient that it is apparent that, for the reasons to which I have referred, what was sought on the cross-appeal could not be upheld consistently with the findings as to liability between employers which were made at the trial and not contested on appeal.

(b) There is a second ground on which the cross-appeal fails. It is based upon the contention that, in the circumstances of this case, s22 does not authorise apportionment: it was contended by Mr Holmes QC that this was determined by the three cases to which he referred. With respect to those who may be of a different opinion, it is, I believe, clear that they do not.

When the appeal and the cross-appeal were originally argued, I was of the opinion that it was plain that the cases relied on did not establish that s22 did not apply, plain to the extent that the contention warranted no further examination. The High Court concluded that the contention is arguable. Therefore I shall indicate why, in my opinion, the cases do not establish what Mr Holmes QC suggested. I shall do so subsequently, in para(5).

As I have indicated, the reasons for upholding the appeal against this Court's summary dismissal of the cross-appeal were two: because the cross-appeal was arguable; and because "proper reasons" were not given for the summary dismissal of it. These are, of course, related. I shall refer to them in Pt(5).

(4) THE NATURE OF COMPENSATION PROCEEDINGS AND AWARDS:

In view of the arguments addressed to the Court and because of the need to examine the right of apportionment of liability for compensation, it is convenient to refer to the way in which, in general, compensation proceedings may be taken and the forms of the awards which may be made.

The two basic concepts in Workers Compensation legislation are injury and incapacity. Where a worker receives an injury, he acquires a (qualified) right to receive compensation from his employer: s9(1). But compensation is not payable unless there be incapacity. (I put aside special forms of compensation and lump sum compensation under, eg, s66 and s67). Weekly compensation becomes payable where incapacity results from the injury: s33. Accordingly, a claim for compensation is, in principle, based on the existence of incapacity. It is not necessary for present purposes, to examine further the rights arising from injury: see Timber Trade Mutual insurance Ltd v National Employers Mutual General Insurance Association Ltd (1979) 2 NSWLR 532 and National Employers Mutual General Insurance Association Ltd v Calver (1983) 3 NSWLR 107; or the precise nature of incapacity and what it involves: see Arnotts Snack Products Pty Ltd v Yacob (1985) 155 CLR 177.

But there may be various combinations of injury and incapacity and, in my opinion, each may support a proceeding for compensation. Thus, there may be one or more injuries. The injury or injuries in question may result in one or several forms of or combinations of incapacity. Sometimes it involves incapacity for work which results from a single injury: cf s9(1) and s33. Sometimes it involves two or more discrete injuries, each of which produces a discrete incapacity, ie, a discrete inability to do work related acts. Thus, one injury may

WRVITZERLAND INSURANCE WORKERS COMPENSATION (NSW) LTD v BURLBY (Mahoney P)

affect the arm and the other the leg; each injury may result in an inability to do, respectively, things which formerly the worker did by his arm and by his leg and each may produce an incapacity for work. In such a case, the separate incapacities may be able to be identified and separately assessed. On one view of the rights created by the Act (I speak of the conventional periodic payments of compensation rather than the lump sums payable under s66 and s67) the worker may be able to sue for separately and compensation awarded separately in respect of them. But, I think, it has not been the practice to require that separate proceedings be brought in respect of the separate injuries producing separate incapacities. In practice, proceedings are ordinarily brought in a single claim and awards made appropriately.

Even in such a situation, complications may arise. Thus, the degree of incapacity created by the injury to the arm may be an incapacity to do acts of one kind, that created by the injury to the leg an incapacity to do acts of a quite different kind. The extent of the partial incapacity, and accordingly of the compensation payable, for each of the separate injuries and capacities, considered alone, may be less than the degree of incapacity created by a claim covering both injuries and incapacities. Each individual injury and incapacity may result in a partial incapacity and compensation assessed accordingly; the cumulative effect of the two may be to produce a total incapacity.

Sometimes, a proceeding may involve two or more separate physical injuries, each of which is separate from the other but (I use a neutral term) each of which goes to the same thing. Back injuries often are of this kind. Thus, the first injury may cause a spinal disc to protrude from its place, to cause pain, and to incapacitate the worker from doing some work related acts. The next injury may cause the disc to protrude further or otherwise increase the pain so that the number or kind of thing which the worker cannot do is increased. In such a case, there is a single incapacity, in the sense of only one set of work related acts which the worker can no longer do and by reference to which his incapacity is seen to exist.

The claims for compensation which may be made and the proceedings which may be brought to enforce them may vary accordingly. Procedure in the Compensation Court is, in general, flexible and free from basic rigidities. This is as it should be: the Court is a specialist court whose function is to deal with a large number of claims as expeditiously as may be. Its decisions are, in my opinion, to be given according to the law but with a regard to justice and merits appropriate to the nature of the social remedy which the legislation provides. Subject to observance of the specific statutory requirements, it should, in my opinion, exercise its jurisdiction in a beneficial manner and without undue emphasis upon technicalities.

In general, a worker may bring a proceeding for compensation in respect of any relevant incapacity. In principle, he is not obliged to treat separate injuries separately: he may bring a claim in respect of an incapacity arising from several injuries or he may bring several claims in respect of several distinct incapacities. Ordinarily it will be to the worker's advantage to bring a single proceeding in respect of such incapacity or incapacities as exist rather than to bring separate proceedings in respect of separate injuries and incapacities. Thus, for example, the extent of incapacity resulting separately from each of two separate injuries may be less in total than the totality of the incapacity produced by all of the injuries together.

I have referred to the complications which may arise in the bringing of such proceedings because they constitute the background against which to consider the power of the Court in respect of apportionment of liability for compensation.

(5) S22 AND THE POWER OF THE COURT TO APPORTION LIABILITY BETWEEN EMPLOYERS AND BETWEEN INSURERS:

In the administration of the Workers Compensation legislation it became plain that apportionment problems arose and that justice required that there be a statutory mechanism for the solution of them. The nature of the mischief to be dealt with is, I think, clear from what I have said as to the nature of Workers Compensation proceedings and awards. incapacity, properly understood, consists essentially in the incapacity to do particular acts and things: see the Arnotts case and the confirmation there of incapacity as constituting physical incapacity. The mischief may be illustrated by an example based upon the facts of the present case. The worker's inability to do the acts and things in question arose from the injured condition of his back. Presumably the condition of his back produced by the injuries caused unacceptable pain to him when he attempted to do the various acts and things in question.

The judge found that each of the four injuries contributed to the incapacity; to adapt the language of s33, the incapacity resulted from each of them. The judge held that the injury which contributed most, ie, the injury from which mainly the incapacity to do the acts and things resulted, was the first injury. The judge did not, of course, seek to determine, for example, the incapacity to do which things resulted from which injury. But his finding involved that the incapacity or a relevant part of it resulted from each of the injuries and that, in the main, the incapacity resulted from the first injury.

In such a case, the liability to pay compensation resulted, in a real sense, from various injuries for which (as I shall assume) various employers were required to bear responsibility. Prima facie justice would appear to require that each employer should bear part of the burden of compensation and that, if such an apportionment can be made, the burden should be apportioned according to the results produced by each injury.

It may, of course, be arguable that, in a system of compulsory insurance, such a procedure is unnecessary and that, with the existing mechanism for adjustment of premiums, apportionment serves no practical purpose. It might be argued that, where premiums vary with claims or are affected by the quantity of claims paid, the burden upon each employer will vary with the number of injuries for which it is responsible and accordingly apportionment is desirable. These are not matters which need be pursued: apportionment has been seen as necessary and the statutory mechanism provided for it. It is, I think, proper to assume that inability to apportion was a mischief and that the statutory mechanisms provided were the remedies chosen by Parliament for that mischief.

Apportionment procedures were provided in the Workers Compensation Act 1926:

see s7A. That section was initially inserted by Act No 79 of 1980, Schedule 2(2). It was amended by Act No 90 of 1984, Schedule 2(2). It provided:

"7A(1). Where the death or incapacity of a worker results from more than one injury, liability to pay compensation under this Act shall, in default of agreement, be apportioned in such manner as the court determines.

(2). Where a liability to make a payment under s10 or s16 results from more than one injury to a worker, liability to make the payment shall, in default of agreement, be apportioned in such manner as the court determines."

WRVITZERLAND INSURANCE WORKERS COMPENSATION (NSW) LTD v BURLEY (Mahoney P)

It is not necessary to pursue what was or could be done prior to this provision.

Two things at least may be said about s7A. It provided for apportionment only of "liability to pay compensation" and accordingly it was seen to be limited to apportionment as between employer and employer; it did not provide for apportionment of the burden to be borne, by, eg, successive insurers of the same employer.

Second, it was seen to apply only where more than one employer was liable to pay the compensation in question. If only one employer was, in law, liable to pay the compensation in question, there could be no "apportionment" of that liability.

In the 1987 Act, the provision for apportionment was contained in s22. That section did provide for apportionment as between insurers: see s22(2)(4) and

(5). Thus, the power of apportionment extended to "the liability of an insurer under a policy of insurance in respect of the payment of that compensation..."; "that compensation" referred to "the liability of an employer": see s22(2)(a) and (b). The Compensation Court was empowered to determine a dispute as to whether liability to pay compensation under the Act should be apportioned "under this section": s22(5).

The power of apportionment in relation to insurers was, in this way, part of the provision for apportionment of the liability to pay compensation of an employer set up $22.

More significant for present purposes, the power of apportionment was limited effectively to cases where the incapacity in question "results from more than one injury to the worker" and the power granted was to "apportion" the "liability to pay compensation". This was the basis of s7A of the 1926 Act.

There is, arguably, a distinction between a provision allowing apportionment where incapacity "results from more than one injury" and a provision allowing apportionment where more than one employer is liable to pay the compensation in question. In theory, there may be several injuries but, for particular (statutory) reasons only one employer may be liable to pay the resulting compensation. The use of "apportion" in the legislation was - I put the matter generally - seen to warrant the conclusion that the power given by s7A and s22 arose only where more than one employer was liable for the compensation in question.

This approach to the legislative provision was of particular significance by reason of the view earlier taken by some of the operation of the sections imposing liability. Incapacity for work attracts compensation where it "results from an injury". The employer at the time of the injury was liable for the compensation. The view taken was to the effect that, though there might have been several injuries, the incapacity for which the compensation was sought, the final state of incapacity, could ordinarily result from only one injury, ordinarily the last in time. Views of this kind were discussed in earlier cases: see, for example, Morris v George (1977) 2 NSWLR 552; affirmed on appeal to the Privy Council; Bushby v Morris (1980) 1 NSWLR 81.

As the result of the Morris v George litigation, it was authoritatively determined that an incapacity could result from more than one injury. With respect to those who may think otherwise, I am of the opinion that that has been unarguably clear and generally accepted since at least the Morris v George litigation: see, eg (1980) 1 NSWLR at 87-8 (Privy Council). Accordingly, it has been clear that the apportionment power is available in such a case.

But, notwithstanding the general principle established by the Morris v George litigation, there remain cases in which the incapacity in question results from one only of the several injuries which the worker has received. This may, of course, be because, as a matter of fact, the other injuries have not contributed, by way of result, to the incapacity the subject of the worker's claim. It was part of the argument of Mr Hislop QC in the present case that one or other of the four injuries here in question had not, or had not been shown to have, contributed to the worker's incapacity. In such a case, the power to apportion would not, of course, arise.

But there are other cases in which, upon the construction of statutory provisions, the incapacity in question is deemed, or is seen, to have resulted only from one of the injuries. In such a case, the conditions of the apportionment provision, viz, that the incapacity "results from more than one injury to the worker", are not satisfied and accordingly there is no power of apportionment.

The view which I took upon the hearing of the appeal and the cross-appeal was that the cases upon which Mr Holmes QC relied to establish the cross-appeal were cases of this kind. It followed that it was clear that they had no bearing upon the present case.

As the proper understanding of these cases has assumed relevance in this case, I shall examine each of them.

I shall go first to Insurers Guarantee Fund - NEM General Insurance Association Ltd (In Liquidation) v GIO General Ltd (1994) 33 NSLWR 247. That case affirmed that ordinarily where there are more than one contributing injury more than one employer may be liable for the resulting incapacity and compensation but held that s11(2) established, as a special case, an exception to that general principle. The case held that s22 did not authorise apportionment because: the power to apportion arose only if more than one party or insurer was liable for the compensation in question; that it was established, by National and General Insurance Co Ltd v South British Insurance Co Ltd (1982) 149 CLR 327 and otherwise that, where the incapacity in question was a deemed incapacity resulting from s11(2) of the 1926 Act, only one employer was liable for the compensation; and that accordingly there was no power to apportion in that case.

As was acknowledged by Kirby P (dissenting): 33 NSWLR at 253; and by Handley JA: at 262; prior to the Morris v George litigation, the view had been taken by some that, because of existing English decisions and otherwise, a particular incapacity could result, for purposes of the Act, only from one injury. Those who held that view would accordingly have seen the need for apportionment as arising only in "a rare case": cf National Employers Mutual General Insurance Association Ltd v Calver (1983) 3 NSWLR 107 at 109. But, as the judges in (as I shall describe it) the insurers Guarantee case each stated or assumed, it is now clear that, special cases apart, a single incapacity may result from independent injuries with different employers. As Handley JA said: at 263; there may be a single incapacity resulting from independent injuries with a single employer and there may, as I have suggested, be variations of this. Prima facie, therefore, the power of apportionment arose.

But the Court, by a majority, held that no apportionment could be made. It did this because of the effect of s11(2) of the Workers Compensation Act 1926 and the construction which had been placed on it by the High Court in National and General Insurance Co Ltd v South British insurance Co Ltd (1982) 149 CLR 327. (I put aside the questions which arose as to the retrospective effect of s22: see the Insurers Guarantee case at 262).

WRVITZERLAND INSURANCE WORKERS COMPENSATION (NSW) LTD v BURLEY (Mahoney P)

The majority of the Court of Appeal accepted that the instant case was a special case outside s22 by reasoning generally as follows: the worker had suffered a single partial incapacity resulting from the several injuries he had suffered: at 250, 262, 266; by reason of the operation of s11(2) the worker became thereafter entitled to compensation on the basis of a (deemed) total incapacity: at 262; where the incapacity for which compensation is sought is a (deemed) total incapacity, that total incapacity is, in law, caused only by the circumstances which give rise to the operation of the subsection, namely, the refusal of employment and/or the operation of s11(2): see the National and General case: 149 CLR at 334-5, per Deane J; therefore only one employer is liable for the compensation arising from the (deemed) total incapacity, namely, the employer at the time of the "last causative injury" who "has failed to provide suitable employment": at 335; and therefore, as there is only one employer liable, there is no basis for apportionment under s22. The correctness of the Insurers Guarantee has not been questioned in this appeal and accordingly no purpose will be served by going to the judgment of Kirby P (dissenting) and the reasoning which his Honour followed.

In my respectful opinion, the basic conclusion of the Court in that case was determined by the decision of the High Court in the National and General case. Deane J had made clear what was the effect to be given to s11(2). In a judgment with which at least the majority of the Court agreed, Deane J: at 334-5; had said:

"S11(2) is not, by reason of the reference to 'his injured worker', to be construed as applying only while the relationship of employment persists: an employer is, in an appropriate case, under the obligation to provide a partially incapacitated worker with suitable employment regardless of whether the worker remains in his employ. Thus, the fact that the Council terminated the worker's employment in the present case did not remove it from the scope of the subsection. On the other hand, where a single incapacity results from a number of injures sustained in the course of a worker's employment with a number of successive employers, the subsection does not impose a statutory obligation to provide suitable employment upon every employer in whose service a causative injury was sustained. While a previous employer will be liable to pay compensation in respect of a partial incapacity which, for the purposes of the Act, results from an injury sustained by a worker in the course of employment with him and from other injuries sustained in the course of subsequent employment with other employers, s11(2) does not require such an employer to provide suitable employment for such a former employee. In such a case, the employer to whom the subsection refers is the employer in whose service there was sustained the injury to which the partial incapacity in its present state can be related, namely, the employer at the time when the last of the causative injuries was sustained. The failure by an employer to fulfil the statutory obligation imposed upon him by s11(2) does not constitute an offence under the Act or lead to any sanction other than that for which the subsection itself provides, namely, that the worker's incapacity for work is deemed to be total and the worker is entitled to 'be compensated accordingly'. The Act does not expressly identify the person liable to pay compensation on the basis of notional total incapacity. In my view however, it is plain that the liability is imposed upon the employer whose failure to fulfil the statutory obligation of providing suitable employment has resulted in compensation being payable on that basis.... In a case where a single partial incapacity has resulted from a number of injuries sustained by a worker while employed by different employers and where the employer at the time of the

last causative injury has failed to provide suitable employment, the liability of that last employer to pay compensation on the basis of notional total incapacity can properly be seen as flowing from that injury. Similarly, where the underlying partial incapacity has resulted from a number of separate injuries sustained by a worker in the course of his employment with the one employer who has failed to provide suitable employment, the liability to pay compensation in respect of notional total incapacity is properly to be seen as flowing - from the last injury and as having arisen at the time of that injury."

Deane J: at 335; considered the liability of insurers where the incapacity for which compensation is payable is the (deemed) total incapacity. His Honour pointed out that the employer's liability under s11(2) is not dependent on his preceding partial incapacity and said that "... while it existed, (it) displaced any liability to pay compensation in respect of that partial incapacity. The liability to pay compensation on the basis of notional total incapacity in the event of a failure to fulfil the statutory obligation to provide suitable employment arose on, and flowed from, the occurrence of the last injury from which the partial incapacity resulted, namely, the injury sustained on 5 January 1977". His Honour did not, I think, accept that the insurer liable when s11(2) operated was the insurer at the date when the employer failed to provide suitable employment within s11(2). That distinction is not relevant for present purposes.

In the Insurers Guarantee case the effect of the High Court decision in this regard was not, I think, in doubt. The matter essentially in dispute lay in the effect to be given to s22(2)(d) of the 1987 Act. Notwithstanding the considerations to which Kirby P adverted, the majority of the Court, upon the basis of the National and General case, concluded that s22(2)(d) did not authorise the power of apportionment to be used in such a case. The Court, in so doing, acted upon the basis to which I have referred, namely, that because, in a s11(2) case, only one employer can be liable, there can be no apportionment. Therefore, the Insurers Guarantee case is contrary to and does not assist the case on which the cross-appeal was advanced by Mr Holmes QC.

I come to the second case relied on: MLC Insurance Ltd v Pinto (1994) 8 ANZ Ins Cas 61-211 at 75,336. The decision in that case was delivered on the same day as the Insurers Guarantee case. The Court consisted of Clarke, Meagher and Handley JJA. It was a back case in which an original injury had been received and the incapacity resulting from it had been aggravated subsequently by what had happened according to the course of the worker's employment. There was only one employer; that employer had had, at different times, different insurers. Therefore apportionment between different employers was not in issue.

The majority judgment was given by Handley JA. His Honour held the case was not one of separate and successive injuries. His Honour: at 75,341; pointed out that the trial judge had held that the case was "a disease case". Handley JA said:

"Tt is clear from the judge's findings that the worker has a single incapacity due to the cumulative effect of the 'incident' of May 1983 and the nature of the worker's employment after his return to work."

His Honour held that in those circumstances s22 did not authorise an apportionment of liability between the insurers. Meagher JA agreed with his Honour's judgment.

Clarke JA: at 75,339; also held that the case was not one where the incapacity "resulted from two or more distinct injuries". His Honour followed the view taken Moffitt P in earlier cases in the development of the legislation in respect of

WRVITZERLAND INSURANCE WORKERS COMPENSATION (NSW) LTD v BURLEY (Mahoney P)

apportionment, that it was difficult to envisage in the ordinary course, a finding that incapacity had resulted from each of two separate injuries. But Clarke JA was, I think, of the view that in such a case, apportionment was possible. Accordingly, the Pinto case does not, I think, assist Mr Holmes' submissions.

The final case relied upon was insurers Guarantee Fund (NEM General Insurance Association Ltd) v Manufacturers Mutual insurance Ltd, an ex tempore decision of the Court of Appeal given on 12 August 1994. The Court consisted of Handley, Sheller and Powell JJA. It also involved apportionment, not between successive employers but between successive insurers of the same employer. The worker had "suffered injuries to his cervical spine and neck" on four occasions and "the nature and conditions of his employment also contributed to his medical problems in that area". Handley JA, who gave the principal judgment with which the other judges agreed, referred to the two decisions to which I have referred and said:

"Tn the recent cases this Court has decided - in one case unanimously and in another case by majority - that s22 as amended in 1991 only authorised an apportionment of liability between employers and their insurers where concurrent awards for the same compensation have been or could have been made against two or more employers as a result of two or more injuries, on the basis that the worker's capacity 'resulted' from each of those injuries. The Court also decided that where only a single employer was involved apportionment could only be ordered between successive insurers if the injuries were such that had they occurred in the course of employment with different employers, concurrent awards could have been supported against two or more of those employers for the same amount of compensation. In other words, the Court held that s22 only applied to cases of the kind illustrated in Morris v George (1977) 2 NSWLR 552 affirmed by the Privy Council in Bushby v Morris (1980) 1 NSWLR 81, where the worker's injuries were such that concurrent awards could be supported against different employers for the same compensation.

Such awards can only be made where each of the injuries is itself a sufficient cause of the worker's incapacity, so that each injury would support a separate award for the full compensation against the employer responsible."

His Honour held that the injuries suffered by the worker had "a cumulative effect on his capacity for work so that the last injury made a causative contribution to the total incapacity which resulted". He held that in such a case "the insurer at risk at the time of the 1987 injury is wholly responsible for any compensation payable thereafter to the worker".

In the present case, there were, as I have indicated, four injuries. Having regard to the nature of the injuries and what they caused, I am unable to see why the present case is concluded by this lastmentioned decision. There was in the past, I believe, a confusion as to the nature of "injury.. For myself, I regard it as plain that the decision in the Morris cases, particularly that of the Privy Council, make it clear that separate injuries can and may often do, produce the same incapacity, particularly in the case of a back. Events may occur and work circumstances may be such that the underlying back condition leads to symptoms that are incapacitating. Once it be accepted that this is not an unusual circumstance but one which may be met from time to time, I find difficulty in accepting that what has been put by Mr Holmes QC, as to the decisions relied on and otherwise, produce the result for which he contends.

In the result, I remain of the opinion that his submission on the cross-claim was not open to him and should for this reason be dismissed. If it be open to him, I would hold that, for the reasons to which I have referred, it should be dismissed.

It is part of the function of courts such as those here in question to provide reasons for the orders they make where the circumstances and the nature of the case require that reasons be given. Failure to give reasons constitutes an error of law: Pettitt v Dunkley (1971) 1 NSWLR 376; see generally the Osmond case (1986) 159 CLR 656; Housing Commission of New South Wales v Tatmar Pastoral Co Ltd (1983) 3 NSWLR 378 and Soulemezis v Dudley Holdings Pty Ltd (1987) 10 NSWLR 247. In Rajski v Bainton (Court of Appeal, 6 September 1991, unreported) I dealt in more detail with some of the issues involved.

Judicial views have not been unanimous as to the circumstances in which reasons are required and what reasons must be given. What is here in question is whether it is necessary to deal with every claim made by a party and in particular whether it is necessary to give reasons for dismissing a claim which, at the end of argument, appears plainly unsupported.

In my respectful opinion, in considering what reasons are to be given and when, it is necessary that regard be had inter alia to the nature of the jurisdiction and what is involved. In the Compensation Court it is not unusual for a judge of the court, on any day, to list for hearing 7-8 cases. This Court is permitted to know, from what is obvious from the appeals from the Compensation Court and other courts, that in the course of dealing with cases before it, arguments are presented to that Court in a manner which is often less than formal. Submissions are made during the hearing of a proceeding which, in the light of what occurs during the hearing or for other reasons, are not referred to in address at the end of the evidence or are touched upon but gently. During addresses, submissions may be made which, in the course of dialogue between counsel or between counsel and the court, are sufficiently dealt with and are not referred to in the judgment. And there are submissions made during argument which may be passed over without mention.

In this Court, the pressure of business is substantial. At present this Court is required, in appeals, motions and otherwise, to deal with between 450 and 650 appeals and proceedings. In dealing with appeals from the Compensation Court, the Court may be required to deal with three-four or more appeals in one day. Counsel ordinarily submit written submissions to the Court. Not infrequency, in argument, counsel abandon those submissions and substitute further or other submissions.

Submissions made before the hearing are, in the light of further consideration, not infrequently not dealt with in argument or pursued. The function of the exchanges which take place between the bench and counsel is important. As in the present case, what has been submitted in general terms may be reduced to more precise terms and, so reduced, the significance of them may become greater or less.

Ihave referred to these matters because, in my respectful opinion, it should not be taken from what has occurred in this case that it is necessary for judges of the Compensation Court or, I think, of this Court to provide, in the final judgment given, reasons for rejecting every matter that has been raised or, if reasons are given, for dealing with matters at length. In my respectful opinion, if it appears to the Court that there is no substance in the submission, it may deal with it by saying so or by ignoring it.

(GAVITZERLAND INSURANCE WORKERS COMPENSATION (NSW) LTD v BURLEY (Priestley JA)

For these reasons, I am of opinion that the cross-claim should fail. The costs of the proceedings upon the cross-claim should be paid by its unsuccessful proponent.

On 13 May 1986 Mr W Burley (the worker), in the course of employment by Linfox Transport (Australia) Pty Ltd (Linfox) "received an injury" within the meaning of the Workers Compensation legislation. Linfox's workers compensation insurer at the time was QBE Insurance Ltd (QBE).

On or about 2 November 1986 the worker, in the course of employment by H and D McRae Carriers Pty Ltd (McRae) "received an injury" within the meaning of the Workers Compensation legislation. McRae's workers compensation insurer at the time was Switzerland and General Insurance Co Ltd (Swiss General).

Between about 11 August 1986 or alternatively 2 November 1986 and | June 1989 the worker, in the course of employment by McRae "received an injury" within the meaning of the Workers Compensation legislation by virtue of the nature and conditions of his employment. McRae's workers compensation insurer from 11 September 1986 to 30 June 1989 was Swiss General, and from 1 July 1989 to 30 June 1989 was Switzerland Insurance Workers Compensation (NSW) Ltd (Swiss NSW).

On 30 December 1991, the worker, in the course of employment by Linfox, "received an injury" within the meaning of the Workers Compensation legislation. Linfox's workers compensation insurer at the time was Swiss NSW.

These facts were found by Duck J when deciding the worker's claims for compensation against Linfox and McRae (on 16 June 1994) and were used by him in determining issues between QBE, Swiss General and Swiss NSW (on 24 June 1994).

Duck J did not explicitly state the starting date of the period within which the worker suffered the "nature and conditions of employment" injury he found. It must have been either about 11 September 1986 or 2 November 1986, in view of what appeared in the worker's application, (see this court's Appeal Book at 7T) and in Duck J's reasons (see AB 147 F-I, 154 E-G).

Ihave noted that the worker "received" his four injuries within the meaning of the Workers Compensation legislation because of what may have been (but was not) the complication in the case of the fact that the worker's first two injuries were suffered when the Workers Compensation Act 1926 (the 1926 Act) was in force, the "nature and conditions" injury straddled the period when the 1926 Act and the Workers Compensation Act 1987 (the 1987 Act) were in force, and the fourth injury was suffered while the 1987 Act was in force. Transitional provisions in the 1987 Act and connected legislation continued the operation of the 1926 Act in certain circumstances. Whether or not these matters may have affected the present case was never the subject of any argument between any of the parties (that is, the worker, the two employers and the three insurers).

The 1987 Act has been frequently amended since it came into force. The conjunction in the one case of the four injuries involving both the 1926 and the 1987 Acts, the amendments to the 1987 Act and its various transitional provisions, the two employers, the three insurers and the need to consider the apportionment provisions in the legislation, left it open for many difficult and basic questions to be raised in the litigation, had any of the parties found it

expedient to do that. Some of the possible questions are touched on in Mahoney P's reasons on this remitted point, and others were briefly discussed in (and may be read in the transcript of) the second argument in this court in this appeal. 1 mention them here in order that it be clear that none of them is now before this court, which has to consider one question, and one question only, which has arisen in the following circumstances.

On 16 June 1994, after Duck J made the findings above set out, he made awards of compensation of various kinds in favour of the worker against Linfox and McRae. He ordered that Linfox "bear 70% of the responsibility for the awards and" [McRae] "30%". He granted liberty to the insurers to apply pursuant to s22 of the 1987 Act if further apportionment orders were sought.

The insurers immediately made such application and on 24 June 1994 Duck J apportioned both Linfox's and McRae's liability to pay compensation pursuant to s66 of the 1987 Act and to make weekly payments, as to Linfox between QBE and Swiss NSW, and as to McRae between Swiss General and Swiss NSW.

Swiss NSW and McRae appealed against some of Duck J's orders, challenging various of his findings of fact. These appeals were dismissed. No application for leave to appeal to the High Court against the dismissals was made.

QBE and Linfox cross appealed against Duck J's apportionment orders. At the first hearing of the appeal in this court they relied on one ground only (ground 12: see written submissions of QBE filed for first hearing of appeal p1). This ground did not challenge any of Duck J's findings of fact.

Thus the dismissal of Swiss NSW's and McRae's appeals means that the factual findings of Duck J set out above remain as the facts of the case for the purposes of the one outstanding issue in the proceedings, ground 12 of the cross appeal. This remains to be dealt with because, although this court dismissed the cross appeal at the same time as the appeal, the High Court subsequently allowed an appeal by QBE against the dismissal of the cross appeal and remitted the cross appeal to this court to be re-determined by us:

for the details see QBE Insurance Ltd v Switzerland Insurance Workers Compensation (NSW) Ltd (1996) 70 ALJR 281.

The ground of the cross appeal remitted to this court for re determination, ground 12, was as follows:

"That his Honour, having found that the last injury made an effective causative contribution to the worker's resulting condition, erred in not holding the insurer on risk at that time to be wholly responsible for any compensation payable."

"QBE says that the worker's incapacity whilst employed by Linfox was materially contributed to by injuries that occurred in periods of risk other than its own. The QBE accordingly relies on the authority of this court in 'Insurer's Guarantee Fund - NEM General Insurance Associated Ltd (in liq) v GIO General Ltd (Court of Appeal, 15 March 1994, unreported); MLC Insurance Ltd v Pinto (CA (NSW)) (1994) 8 ANZ Insurance Cases 61-211 and Insurance Guarantee Fund NEM General Insurance Associated Ltd v Manufacturers Mutual Insurance (Court of Appeal, 12 August 1994), unreported).

The findings of his Honour clearly indicate that the totality of the injuries suffered by the worker had a cumulative effect on his capacity for work so that the last injury made a causative contribution to the incapacity which resulted (see Handley J in NEM v MMI, 12 August 1994).

(GRVITZERLAND INSURANCE WORKERS COMPENSATION (NSW) LTD v BURLBY (Priestley JA)

QBE submits that there is no reason why the last insurer for Linfox should not pay all compensation payments, whether or not they are in the nature of weekly payments or lump sum compensation and the like."

At 70 ALJR 283 the High Court said this submission was certainly arguable. They also said (at 284) that QBE's contention that the present case fell within the principle claimed to be the basis of the authorities relied on in its submission was also debatable.

When the parties argued the remitted question, QBE repeated the submission set out in its original written submission (above). This submission was controverted by Swiss NSW. The issue thus joined raised questions about the construction and application of s22 of the 1987 Act, the meaning of a number of decisions of this court going back at least to 1977, and their effect upon the construction and application of s22 as it stood at the time of Duck J's first instance decision of this case. Amendments since then to the 1987 Act mean that many of the decisions then relevant to s22 are not applicable to s22, and related sections, in their subsequent form.

Swiss NSW, as well as submitting that QBE's ground of cross appeal was incorrect, put an alternative submission.

This was that if QBE's ground were upheld then Duck J's apportionment orders would have to be set aside. This court, by virtue of s75A of the Supreme Court Act 1970, would then have to decide the case as on a rehearing if it were open to it to do so having regard to the factual situation, or, if the court considered that should not be done in the circumstances, return the matter to the Compensation Court to be determined there. In either event the law to be applied would be the law applying to the case as it stood at the time of the further determination. This would be so at the very least in regard to the power of apportionment under s22 and related sections. That power, following amendments made relevant to s22, including transitional and retrospectivity provisions, by Acts Nos 30 and 89 of 19951, unequivocally authorised the making of apportionment orders such as Duck J had made. QBE was not challenging the quantum or proportion of those orders, but the power to make them; (I understand this to have been so: see transcript of argument in this court of 29 May 1996, p 14, line 36). Therefore, since the tribunal redetermining the matter would have the power the previous absence of which was the foundation of QBE's argument, and since neither the facts founding the actual apportionments made, nor the orders the liability for which was apportioned, are in question, it would be a futility to do anything other than dismiss the cross appeal.

In my opinion it is permissible for Swiss NSW to put the foregoing argument. Because the argument assumes, in QBE's favour, that ground 12 was correct and should have been upheld, the High Court's direction that that matter be dealt with would thus be complied with if the argument were accepted. The argument goes on to say that subsequent legislation has had the effect of making QBE's success on this point of no continuing relevance to the still (on this hypothesis) unresolved question of apportionment between the insurers.

1. The principal relevant ones now appearing in Schedule 6 Pt2 r6 of the new Act. Other amendments made by Acts Nos 30 and 89 of 1995 might be relevant to questions mentioned earlier which have never been raised in this appeal; they accordingly need not be considered on the question remitted by the High Court.

I think Swiss NSW's line of argument is generally correct. It raises the question whether the apportionment issues should go back to the Compensation Court or be decided here in accordance with this court's ample powers. In the course of the second argument I was not sure whether there was a sufficient factual basis for this court to dispose of the matter as on a rehearing. On reflection I think there is. Having regard to the opinion expressed by Duck J several times in his reasons, about the major significance of the first injury in the worker's medical history, the.periods of time the worker was employed by Linfox and McRae, and the periods the insurers insured the employers, I would reach much the same conclusions about apportionment.

Thus, assuming, but not deciding, that QBE's ground of cross appeal should be upheld, I would nevertheless dismiss QBE's cross appeal with costs.

Counsel for the cross-appellants: MF Holmes QC/M Fordham Solicitors for the cross-appellants: Bruce and Stewart Counsel for the cross-respondents: JD Hislop QC/PR Stocley

Solicitors for the cross-respondents: Hunt and Hunt