McDermott & Anor v Harvey & Ors [1999] NSWCA 337 | Case summary

1 PRIESTLEY JA: In the Compensation Court on 17 December 1998 Johns J made various orders for compensation in favour of a worker against an employer named Harvey, including an order under s 16 of the Workers Compensation Act 1987 (the Act). Mr Harvey was the employer who last employed the worker within the meaning of s 16(1)(b). Pursuant to s 16(2) Johns J also ordered that other employers of the worker during the twelve months preceding his s 16 incapacity were liable to make contributions to the employer by whom compensation was payable, that is, Mr Harvey. 2 The present proceedings in the Court of Appeal raise the question whether Johns J was right in making the contribution orders or whether, as two of the other employers argue, he was precluded from doing so by s 18(3) of the Act. No question is raised about the orders in favour of the worker 3 The worker was a shearer who had worked for a number of employers in the twelve months preceding 27 April 1995 when, while working for Mr Harvey, he suffered pain to his back which stopped him working any longer. The worker made an application to the Compensation Court against Mr Harvey for determination of compensation payable to him. Mr Harvey filed a notice putting all of the worker's claims in issue and also filed third party notices against other persons who had allegedly employed the worker during the twelve months preceding 27 April 1995. 4 When the proceedings came on for hearing, Mr Harvey was represented and there were also separate appearances for the other alleged employers, one counsel appearing for employers named McDermott and O'Brien, the two other alleged employers being represented by two other counsel. Messrs McDermott and O'Brien brought the present proceedings in the Court of Appeal. 5 Evidence in the first instance proceedings was given before Johns J on 11 June 1998. Written submissions were later filed. Reasons for judgment were given on 17 December 1998 when the orders disposing of the various issues before the Compensation Court were made. 6 In his reasons Johns J said that the matters that had been put before the court for determination related to questions of the worker's injury and incapacity and whether any injury and incapacity fell within the description of a disease pursuant to the provisions of s 15 or s 16 of the Act or whether alternatively the worker had suffered a series of injuries or a single injury which had resulted in injury, incapacity and disability. In addition to determining how any awards he should make in regard to these matters were to be quantified, the trial judge also noted that three of the employers had raised a question under s 18(3) of the Act. 7 Johns J's findings were that the worker had suffered compensable injury and that the date of incapacity began on 28 April 1995. He went on to find further that the worker had not suffered "an injury simpliciter" but rather "an exacerbation, acceleration or aggravation of an existing disease to which his employment [had] been a contributing factor". He then found that by operation of s 16 the worker was deemed to have suffered injury at the time claimed in his application, 28 April 1995. Johns J next considered what orders should be made in favour of the worker. The proceedings now before this court do not require that the details of the awards be set out. Having discussed the orders he proposed to make, Johns J passed to the point that is the subject of the present proceedings which he described as a submission by a number of the third party employers that the entitlement of the worker to receive compensation fell within the provisions of s 18(3) so that par (a) of s 18(3) applied to them. Section 18(3) was in the following terms: " (3) In a case to which section 15, 15 or 17 applies, if each of the employers who is liable to pay the compensation or to make a contribution under the section concerned is insured in respect of that liability by an insurer who is an insurer within the meaning of Division 4 of Part 7 and the entitlement of the worker (or other claimant) to receive compensation is not disputed: (a) a contribution that would otherwise be payable by an employer under section 15, 16 or 17 in respect of the claim is not payable. (b) for the purposes of calculating an insurance premium payable by any of those employers, their claims histories are to be determined on the assumption that any contribution that would have been payable but for paragraph (a) was payable. " 8 The submission by the relevant third parties was that each of the employers was insured by an insurer within the meaning of Division 4 of Pt 7 (this was not in issue) and that the entitlement of the worker to receive compensation was not disputed. The "no dispute" point was supported by two arguments. The first contended that from the conduct of the proceedings by all parties and by reason of a written submission filed on behalf of Mr Harvey on 5 November 1998, the entitlement of the worker to receive compensation was not disputed. The second argument was that the same conclusion was in any event supported by the reasoning of Bishop J in Carver v Doolan (delivered on 26 February 1998). 9 Johns J did not accept either submission. He said that it was clear in the circumstances including the answers which had been filed in the case, the conduct of the proceedings and the evidence placed before him for decision that the worker's entitlement to compensation had been disputed by each of the third parties and Mr Harvey. On this footing his opinion was that the matter did not fall within s 18(3). 10 Johns J then made orders for compensation in favour of the worker, and found that the third party employers were liable to make contributions to Mr Harvey amounting to twenty per cent of the worker's entitlements to compensation. 11 Before this court Messrs McDermott and O'Brien applied for leave to appeal against John J's decision on the s 18(3) point and concurrently, but conditionally upon leave being granted, appealed against that decision. 12 In the summary of argument filed on behalf of Messrs McDermott and O'Brien in support of their application for leave to appeal, the same two arguments were relied on as had been briefly described by Johns J. However, when the matter came on for hearing the first argument was immediately dropped, and quite rightly so. It was plain that until Johns J delivered judgment on 17 December 1998, when he made orders determining the workers compensation entitlements and also fixing the contributions to be made by the various third parties, the entitlement of the worker to receive compensation had been both formally and substantially in dispute. The written submission to Johns J on behalf of Mr Harvey of 5 November 1998 recognised that on the evidence that had been presented in June it was likely that the court would find the worker was entitled to compensation and did not waste time in making futile argument to the contrary. However, all matters had been in dispute at the hearing. From the transcript it appears all the employers adopted this position. It could not be said that simply by the nature of the submission made for Mr Harvey the requirement of s 18(3) that the entitlement of the worker to receive compensation not be disputed had at that point or at any point before delivery of judgment by Johns J on all matters in issue, been fulfilled. 13 The argument relied on in the hearing in this court was that the reasoning of Bishop J in Carver v Doolan was correct, that it was inconsistent with the decision of Johns J and that it should be adopted in preference to what had been said by Johns J. However, Carver v Doolan is different in a significant respect from the present case. Bishop J had made an award in favour of the worker in the case on 2 October 1997. A question of contribution between employers had not been decided at the time of the making of the award. The matter came before Bishop J again on a later date when it was argued by an employer from whom contribution was sought that s 18(3) applied to the case. Bishop J decided the s 18(3) question on 26 February 1998. 14 In his reasons, Bishop J dealt with each of the two requirements necessary for the operation of s 18(3). In regard to the first, that each of the employers concerned should be insured by an insurer within the meaning of Division 4 of Pt &, he pointed out that such insurers were those who were licensed and managing the statutory funds of the WorkCover Authority; pursuant to s 196(2) such licensed insurers had no beneficial interest or entitlement to the assets of that particular insurer's statutory fund (necessarily established pursuant to s 195). Bishop J was of the view that "In other words the funds are all the funds of the Authority". So, in Bishop J's opinion, when the two requirements of s 18(3) were fulfilled, the scheme could be seen to be one "which obviates the necessity for a physical transfer of money from one statutory fund to another but at the same time preserves a notional credit or debit to the claims experience of the relevant employer". 15 Bishop J continued: " The second element to attract the operation of s 18(3) is that the entitlement of the worker to receive compensation should not be disputed. At the commencement of these proceedings it undoubtedly was. However, as a consequence of the award of 2 October 1997 the entitlement of the applicant to compensation became clear being the subject of an order of the Court. It is the issue of contribution that has come back before the Court. A dispute as to contribution is a discrete issue from the point of view of the Court - see s 17(1)(g). 16 Putting the submission for the two employers in the present case in what seems to me to be its strongest form, it involves the following steps: (a) Bishop J was right in the way in which he handled the s 18(3) argument in Carver v Doolan; (b) once Johns J had decided upon the awards to be made to the worker in the present case, the entitlement of the worker to receive compensation was not disputed; (c) the purpose of the insertion of subs (3) of s 18 by the Workers Compensation Legislation Amendment Act 1995 (the 1995 Amendment Act) would be achieved by applying the reasoning of Bishop J to the present circumstances. 17 The third step of the argument was elaborated in the following way. Subsection (3) of s 18 was inserted in the Act by Schedule 4 item [8] of the 1995 Amendment Act. An explanatory note to item [8] in Schedule 4 said: " Explanatory note (item (8)) Item (8) of the proposed amendments provides a streamlined procedure for ' statutory fund ' insurers when dealing with a claim in which contribution is payable between them under section 15 (Diseases of gradual onset), 16 (Aggravation of disease) or 17 (Loss of hearing) of the Act if there is no dispute as to the entitlement to compensation. Under the new procedure there is to be no actual contribution between insurers but there is to be ' notional ' contribution for the purpose of calculating the claims histories of the employers concerned. " 18 In further explanation of the explanatory note it was submitted that the "streamlined procedure" it referred to was intended to overcome a situation that had become noticeable in some cases in the Compensation Court which was considered to be unnecessarily wasteful of time and costs, that is, the situation where as in the present case a number of employers in addition to the last employer, the actual respondent to the worker's application, took part in the proceedings, but, differently from the present case, in proceedings where there was no real dispute about compensation and thus no need for the third party employers to attend the part of the proceedings involving decisions upon the worker's claims. 19 The explanatory note and the further submission about it put before the court show why Bishop J reached the conclusion he did in Carver v Doolan. However, it does not seem to me to be necessary in the present case to decide whether the first step in the argument for the employers is correct, that is, it seems to me the present case can be decided without deciding upon the correctness or otherwise of the s 18(3) aspect of Carver v Doolan. This is because I do not see how it can be said that at any time relevant to the operation of s 18 in the present case the entitlement of the worker was not disputed within the meaning of s 18(3). 20 It may be that in a practical sense in the course of the hearing before Johns J it became clear to all parties that Johns J was going to order that compensation be paid to the worker. It does not seem to me to follow from that state of affairs that the entitlement of the worker was not disputed at any stage before Johns J made his orders. Even at that point, the record showed that the worker's entitlement had been disputed and it was open to Mr Harvey, should he have been advised that he had grounds to do so, to lodge an appeal against the orders made against him. The appeal may have been hopeless, but even so, until disposed of, I would have thought that the entitlement of the worker to receive compensation remained in dispute. The result is that, assuming without deciding the correctness of Bishop J's s 18(3) opinion in Carver v Doolan on s 18(3), that opinion does not help the employers in the present case. I do not think the clear words (in this respect) of s 18(3) admit of any other result than that reached by Johns J. 21 The proceedings in this court do not involve significant amounts of money (at least from the employer's point of view). It may be the application for leave was made in the hope of obtaining a ruling on Bishop J's s 18(3) opinion in Carver v Doolan, but for reasons already given, I do not think this case is suitable for that purpose. 22 In my opinion Johns J was right in deciding, on the different situation that existed before him, that the second requirement for the applicability of s 18(3) was not fulfilled, so that the subsection was not applicable to the case before him. 23 In my opinion the application for leave should be dismissed with costs. 24 BEAZLEY JA: I agree with Priestley JA. 25 DAVIES AJA: I agree with Priestley JA. **********

McDermott & Anor v Harvey & Ors

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