Yates Bros v Neil and Anor [1999] NSWCA 108 | Case summary

WORKERS' COMPENSATION - Workers Compensation Act 1987 - s 15 - disease of gradual onset - whether apportionment under s 22 available for injuries under s 15 The respondent worker was employed in the timber industry by two consecutive employers from 1959 to 1996. He suffered an injury to his right knee in 1969 and an injury to his left leg in 1973 which required amputation and the fitting of a prosthesis. The trial Judge found that the worker had developed degenerative arthritis in his right knee which fell within s 15. Accordingly the compensation was payable by the last employer, the appellant. The trial Judge refused an apportionment under s 22 against the first employer. The appellant claimed that a case for apportionment under s 22 was made out. HELD : dismissing the appeal: (1) The appellant's submission that the 1969 and 1973 injuries were distinct injuries that were partly the cause of the worker's incapacity and this warranted an apportionment under s 22 was contrary to the Judge's findings of fact. (2) There can be no apportionment under s 22 for injuries under s 15, which is a special provision dealing exclusively with the injuries which fall within its terms. MLC Insurance Ltd v Pinto (1994) 10 NSW CCR 101 applied. (3) The left leg injury was indirectly causative of the right knee injury and not part of it. This brought it wholly within s 15 and excluded an apportionment under s 22. ORDERS Appeal dismissed with costs. THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40329/98 1902/97 MASON P HANDLEY JA STEIN JA

1 HANDLEY JA: This is an appeal from the Compensation Court limited to questions of law. 2 The worker was employed in the timber industry from 1959 to 1996. He suffered an injury to his right knee in 1969 while working for Hardboards Australia Ltd, the second respondent. He suffered a further injury to his left leg in 1973 while working for that company which led to the amputation of that leg and the fitting of a prosthesis. Commendably he worked on in the industry. In 1986 he ceased working for Hardboards Australia and commenced to work for Yates Bros, the appellant. He worked for the appellant until July 1996, and then had casual employment until January 1998 when he ceased all work. 3 He brought proceedings for weekly and lump sum compensation originally against the appellant but later against his original employer as well. 4 In a careful and closely reasoned judgment, Walker CCJ found that as a result of various frank and aggravating injuries to his right knee, arising out of and in the course of his employment with both companies, the worker developed degenerative arthritis, a disease of gradual onset within s 15, in his right knee. He found that the injury to the worker's right knee was deemed, pursuant to s 15, to have occurred on 10 December 1996, and that compensation was payable by the appellant which had last employed the worker in the relevant industry. 5 He found that the worker was partially incapacitated for work and entitled to weekly benefits from 6 July 1996 and continuing. On the basis of these findings, the Judge made an award of weekly compensation for partial incapacity and made a lump sum award for the injury to the worker's right leg and for pain and suffering. 6 The awards were made against the appellant as the second employer and the Judge refused to order an apportionment under s 22 against the earlier employer. The second employer challenged the award of weekly payments and the s 66 award in respect of the right leg contending that liability for these awards should have been apportioned under s 22 to reflect the injuries to the worker's right leg in 1969 and to his left leg in 1973. 7 The Judge found that the worker had been free of symptoms in his right knee prior to the 1969 injury, that this was a serious injury which had required an operation from Dr Plowman, and it was an injury from which he never recovered. The knee continued to trouble the worker from that time onwards. 8 Following the amputation of his left leg in 1973, and the fitting of the prosthesis, the worker favoured his right leg and this imposed abnormal stresses on the right knee. The Judge found accordingly that the degenerative arthritis in the right knee was directly related to the injury to the left leg, and its amputation. 9 His ultimate conclusions on these issues were: "Taking a common sense approach to all the evidence I determine on the balance of probabilities that the applicant's degenerative arthritic condition of the right knee is a disease initiated by the 1969 injury and exacerbated and accelerated both by favouring his right leg whilst doing heavy work for both respondents as well as the nature and conditions of heavy work for both respondents. In other words the applicant has sustained an injury in the form of a degenerative disease by a gradual process within the meaning of section 15 of the Act. Although both periods of employment made a substantial contribution to the deterioration of the right knee, on the authorities I have previously quoted section 15 operates to deem compensation payable by the second respondent. This obviates the need to make any apportionment pursuant to section 22 in respect of the right leg injury". 10 In dealing with the worker's claim for weekly payments for partial incapacity, the Judge found he was no longer fit for the heavy work he had done for both employers and had come to that point well before July 1996 but "was too macho to admit it". As there was no economic loss before 5 July 1996, he found that 6 July 1996 was the appropriate date to commence the applicant's entitlement for weekly benefits in respect of his partial incapacity. 11 As the worker continued in heavy work from 1973 to 1996, despite the amputation of his left leg, it is clear that the precipitating cause of his partial incapacity after 5 July 1996 was the condition of his right knee which the Judge found was the result of a disease within s 15. This finding does not deny the relevance of the 1969 and the 1973 injuries, as the Judge clearly acknowledged, but while these were necessary causes, or perhaps conditions, of his post 1996 incapacity, they had not been sufficient on their own to cause that incapacity. The sufficient cause of that incapacity was the condition of the worker's right knee as it had developed by July 1996. 12 Mr Cranitch SC for the appellant submitted that the 1969 injury to the right knee was a distinct injury from which, as the Judge found, the worker never recovered. Accordingly, in his submission, the worker's incapacity due to the injury to his right knee was caused partly by the 1969 frank injury, partly by the 1973 injury and partly by the deemed s 15 injury and thus a case for apportionment within s 22 was made out. 13 In my judgment, this submission is contrary to the Judge's findings of fact to which I have already referred. The 1969 and 1973 injuries, while precipitating causes of the s 15 disease, had been insufficient to cause the incapacity which accrued in July 1996. In these circumstances the Judge was fully entitled to hold that the case fell within s 15 and that apportionment under s 22 was excluded. 14 The same analysis leads to the conclusion that there is no ground for apportioning the weekly payments for partial incapacity under s 40 against the earlier employer. Section 15 is a self contained code which deals exclusively with injuries of the kind which fall within its terms. One can express the same point by saying that it is a special provision which stands outside the general provision in s 22. 15 So much was decided by this Court in MLC Insurance Ltd v Pinto (1994) 10 NSW CCR 101 and there has been no relevant change in the Act. Mr Cranitch fairly conceded that unless he could establish that the 1969 and 1973 injuries were separate causes of the worker's incapacity standing outside the deemed injury under s 15, he could not support a case for apportionment under s 22. 16 I have previously referred to the contribution to the right knee injury made by the 1973 injury and to the long period during which the worker favoured his right leg during his work and imposed abnormal stresses on his right knee. In this way, as the Judge found, the degenerative arthritis in the right knee was directly related to the left knee amputation. This contributing cause led, as the Judge found, to the s 15 disease in the right knee. The injury to the left leg, in itself as an injury, formed no part of the injury to the right knee. Its role was causative and indirect, and the claim for compensation in respect of the right knee depended on the condition in that knee, however caused, and that fell within s 15. That section determines the liability for compensation and its terms exclude any right to contribution or apportionment under s 22. In my judgment therefore the appeal fails and should be dismissed with costs. 17 MASON P: I agree. 18 STEIN JA: I also agree.

Yates Bros v Neil and Anor

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