Antonio Pinto v Civil & Civic Pty Ltd [1992] NSWCC 9; (1992) 8 NSWCCR 124 (24 April 1992)

[1992] NSWCC 9; (1992) 8 NSWCCR 124 (12507-89)

ANTONIO PINTO v. CIVIL & CIVIC PTY LTD

Compensation Court of New South Wales: Burke J

31 JANUARY 1991

4 DECEMBER 1991

24 APRIL 1992

WORKERS COMPENSATION ACT 1987 - BACK INJURIES BEFORE AND AFTER 30 JUNE 1987 - AGGRAVATION OF DISEASE - SCHEDULE 6, PART 6, CLAUSES 5 & 6 - IMPAIRMENT OF THE BACK - SECTION 66 - APPORTIONMENT BETWEEN INSURERS - SECTION 22

S.B. Benson for the applicant

C.J. Wynyard for the respondent in the interest of MLC

P.A. Rickard for the respondent in the interest of QBE

BURKE J: Mr Pinto is a 52 year old builder's labourer, well at least he was a builder's labourer. He has a wife and two children dependent upon him for support. He was employed by the respondent on 10 August 1979; thereafter continued to work for them on various building sites. He did the usual work of a builder's labourer which had its elements which were fairly physically strenuous.

On 3 May 1983, the applicant, along with three others, was lifting some heavy timber; he gave a fairly graphic description of it, and also a restrained demonstration of it in the witness box. In the course of that lift he suffered an onset of back pain. He said his back was all right prior to that, notwithstanding the subsequent radiological findings of what looks to be a compression fracture of L4. That is also adverted to by a number of the doctors, but the applicant has always maintained that he has no recollection of any injury prior to 3 May 1983. Some of the doctors ventured the opinion that the radiological change be explained by injury in infancy, so there is no contradiction in that.

Following that incident in May 1983, the applicant saw Dr Kumaradeva. He was off work for about a month. In fact, Dr Kumaradeva gave him a certificate for precisely a month. He then went back to work. He also had then a certificate from Dr Kumaradeva, which is in evidence, and he asked for some lighter type of work and was, according to his own account, furnished with a lighter type of work which he continued to do for some five or six months; then he essentially returned to full duty. There has been some discussion as to whether, even on full duty, he still carried out the same type of work but the applicant maintains that, more or less, he did carry on doing the builder's labourer's type of work for Civil & Civic.

The applicant continued to do that up until April of 1988, some five years. He says that, particularly over the last 12 months, there was fairly marked deterioration in his back with the passage of time; that he ultimately ceased for the simple reason that he could no longer continue.

The applicant has been seen thereafter by a variety of doctors. Firstly, back in June 1983, Dr Kumaradeva gave him a certificate to resume work in June 1983 with the suggestion that he wear a brace. He had also been seen by Dr David Evans for the respondent on 1 June 1983. He gave him precisely the same advice. So there does not seem to be much doubt that, as at the resumption of work, the man was still having an ongoing problem and doctors on both side of the record were obviously aware that he needed assistance in the sense of some surgical support to carry on at work, even in this suggested restricted form of work.

Since he ceased work in April of 1988, he has been seen by a variety of doctors. There is almost a unanimity of opinion that this man has a back problem which impedes him in his capacity to carry on unrestricted work. The only dissentient from that is Dr Clift who, in June of 1988, regarded the worker as unrestrictedly fit for all forms of work. He was seen by Drs Seaton, Bannister and Mahoney on his own account, and Drs Johnson and Scarf on behalf of the respondent - all of whom find that there are restrictions on what this man could be reasonably be expected to do.

It seems to me there is no doubt that the applicant has an incapacity, at all times with which I am concerned. Following the cessation of work in April of 1988, he was paid compensation up to 6 July 1988 and the claim is in respect of the period thereafter. He was also seen in 1983 by Dr Pillemer who thought the man had a genuine back problem then.

There have been a variety of investigations. Certainly he has a congenital abnormality in the formation of the vertebra at L4. There is a suggestion of the compression fracture. There is certainly spondylolisthesis of L4 on L5. There are bulges at L4-5, L5-S1. In other words, the various investigations, discography, CAT scans, plain X-rays, have shown that the man has some fairly substantial localised pathology. Some obviously pre-existed the incident of May 1983. All of it may have so pre-existed. Certainly a number of the doctors comment on the fact that radiological investigations from 1983 up to 1988 and 1989 show reasonably marked progression of the radiological changes. In other words, there seems to be some corroboration for the fact that the applicant says there was a gradual deterioration in his condition with the passage of time and that he came to the stage where he just could not carry on with builder's labourer's work. That is quite compatible with the totality of the objective investigations and indeed the subjective assessments of most of the doctors, Dr Clift excluded.

On 6 or 7 July 1988, the applicant went back to light work and was furnished with the ubiquitous job on a building site of being the nipper. He did that for five or six days. The applicant says he could not continue. Subsequent to that, he made one further attempt to resume work. He obtained a position with Fernando's Constructions, worked a day and said: "That's that". The applicant patently regards himself as unable to work. He has not sought any further work since. He says, in effect, he regards that as an exercise in futility since his own assessment is there is no type of work that he is familiar with which he could reasonably carry out. Certainly, he gets some reasonably strong support for that proposition from Dr Seaton and a measure of support from a variety of the other doctors who have given evidence in this matter.

The first problem is: has the applicant got a back problem? That, in my view, is undoubtedly so. One must then ask: does it impinge upon his capacity to work? Once again, there is an overwhelming body of evidence that that also is so. The next question is the nexus. Is there any relationship between that situation as at July 1988 and the incident of May 1983? Whatever radiological changes the applicant may have had antecedent to the incident of May 1983, he says he carried on work without symptoms. He had certainly worked for the respondent for some four years or so before, as a builder's labourer, performing fairly heavy work. There is no suggestion that he was losing time or having any problem. That adds an air of verisimilitude to his statement that his back was all right.

On 3 May 1983 he had an injury with an onset of back symptoms. He says those symptoms have continued since and, indeed, there is a degree of corroboration for that, namely his intermittent consultations with Dr Kumaradeva. The applicant says he has been taking analgesics etc. ever since and has had to go and see the doctor if he needs a new prescription, since, in his view, there is nothing the doctor could do about it other than give him a prescription. That is probably a pretty accurate assessment.

So you have a man who is asymptomatic, has an incident, remains symptomatic thereafter. Those symptoms gradually increase. During the time that those symptoms are gradually increasing, the applicant is still performing substantial, physical work with an impaired back. It seems to me the probabilities, therefore, would favour the conclusion that the incident of 3 May 1983 is certainly one of the factors from which his current situation results and that the work that he had performed with the respondent over the ensuing years has contributed its measure to the deterioration in his back condition. Whether you regard it as frank injury or disease process, it seems to me the result is the same. If he has degenerative disease affecting his lumbar spine, and there is a fair suggestion of that amongst a number of the doctors, then both the incident of 3 May 1983 and the work that he has done for the respondent since have contributed to the aggravation, exacerbation, acceleration and deterioration of that disease.

If you consider it as injury simpliciter, then 3 May 1983 was one defined incident which has contributed to his back condition and the five years of heavy lifting, carrying thereafter, have also contributed their measure of injury to his already injured spine.

So therefore I think the applicant has an incapacity that results from injury in the course of his employment. The degree of that incapacity thereafter is the interesting problem. There is no doubt that Drs Seaton, Bannister, Mahoney, Johnston and Scarf all regard the applicant as not being a candidate for heavy work.

On the face of the evidence, the applicant has never done anything else other than heavy work, so the fact that he cannot think of any job that he can do, that he is aware of, is perfectly logical. The real question is what can the applicant do. Firstly, he is a nice, though rather soft-spoken gentleman - even the interpreter had difficulty in hearing him - who gave a fairly modest, straight-forward, unembellished account of an ongoing problem. His actions in working for five years with that ongoing problem also suggest that, while he could earn his living, the applicant was perfectly prepared to do so, notwithstanding this evolving back problem. When compensation ceased, he went back to work as a nipper. The one thing about a nipper is, it does not involve too much physical stress. In fact, the applicant's real complaint is he was on his feet and moving around, which was sufficient to exacerbate his back symptoms to the degree where, after five or six days, he felt he could not continue. If one accepts that the applicant could not carry out the duties of a nipper, it is very difficult to visualise any work in a reasonably accessible labour market which a man, affected as he is, could reasonably be expected to do.

I do accept the applicant. I am therefore of the view that the applicant is, essentially, totally incapacitated and has been since the cessation of payments on 6 July 1988. I find:

(1) On 3 May 1983, the applicant received injury to his back in the course of his employment.

(2) Between May 1983 and April 1988, the applicant received multiple further injury to his back in the course of his employment.

(3) The applicant was incapacitated thereby and paid compensation in respect of any period of incapacity up to and including 6 July 1988.

(4) The applicant was totally incapacitated thereby 7 July 1988 to date and continuing.

(5) At all material times, the applicant had a wife and two children dependent for support upon him.

(6) His current weekly wage rate and average weekly earnings are sufficient to support an award at maximum rates.

I make an award for the applicant on the basis of total incapacity for $241.60 per week as adjusted from 7 July 1988 to date and continuing.

I also make an award for medical, hospital and rehabilitation expenses in accordance with section 60, costs in accordance with Part IV, and a certificate for advice on evidence.

This matter is stood over for mention with a view to fixing a date for further hearing after the return of the medical panel ordered pursuant to section 132.

S.B. Benson for the applicant

C.J. Wynyard for the respondent in the interest of MLC

P.A. Rickard for the respondent in the interest of QBE

4 DECEMBER 1991

BURKE J: In this matter a judgment was given on 31 January 1991. In the course of that I found that the applicant had suffered a fairly clear frank incident on 3 May 1983 and that that had resulted in an injury to his back. I also found that thereafter he had continued to do work between May 1983 and April 1988 and that that work had also done further injury to his back. In respect of the incapacity resulting therefrom an award was made at the maximum rate of weekly compensation in respect of his total incapacity.

There was then reserved the question of any entitlement pursuant to section 66 and section 67. The applicant was referred to a medical panel constituted pursuant to section 132. That medical panel convened, examined the applicant and reported that in the opinion of the medical panel there was a 15 per cent permanent impairment of the applicant's back.

Today submissions have been made as to what, if any, entitlement the applicant may have in respect of impairment of the back. The basic submission of the respondent is that insofar as there is any impairment the evidence would suggest that, more likely than not, it results from the initial frank incident in May 1983; that that is an injury which pre-dates the 1987 Act; that there was no lump sum provision in relation to impairment of the back under the 1926 Act and that the applicant is thereby excluded from any reliance on any benefits pursuant to section 66 of the new Act.

Essentially the matter considered in the further addresses has been the impact, if any, of Schedule 6 to the 1987 Act, particularly Part 6. That Schedule starts off with a provision in clause 1:

1 Subject to this schedule, Division 4 of Part 3 of this Act applies whether the injury was received before or after the commencement of that Division.

Division 4 of Part 3 concerns the compensation in respect inter alia of permanent impairment of the back. Prima facie, the 1987 Act applies in respect of injuries both before and after. The substantive provision upon which the respondent relies is clause 5. Clause 5 provides:

5 Compensation is not payable to a worker who has suffered a loss or impairment of a thing mentioned in the Table to Division 4 of Part 3 of this Act if -

(a) it resulted from an injury received before the commencement of that Division; and

(b) it is not a loss or impairment for which compensation was payable under section 16 of the former Act.

The respondent suggests that both those conditions are fulfilled in this case and thereby this worker is precluded from access to the benefits of Part 3, Division 4. The Schedule concludes with clause 6, which purports to be an interpretation provision. It provides:

6 If a loss mentioned in the Table to Division 4 of Part 3 of this Act resulted both from an injury received before the commencement of that Division and an injury received after that commencement, the loss shall, for the purpose of determining the amount of compensation payable in accordance with this Part and this Schedule, be treated as having resulted from the injury received after that commencement.

It is my view that that is exactly what it purports to be: an interpretation provision that says, for the purposes of calculating compensation under Division 4 of Part 3, where you have injuries both before and after, then the calculation of entitlement shall be as if all the injuries were post the commencement of the 1987 Act. Therefore, when one comes to look at clause 5 providing that compensation is not payable to the worker where there is a loss or impairment resulting from injury received before the commencement of the 1987 Act, the interpretation section acts to indicate that neither pre-condition actually has any effect.

Certainly the provision of clause 5(a) is inapplicable since it only applies where an impairment resulted from an injury received before the commencement of that Division and clause 6 has acted to take any such impairment and any impairment resulting after it and say it shall be treated as having resulted from injury received after that commencement. If it is to be treated as having been received after that commencement then it did not result from an injury before it.

It is, therefore, my view that in relation to any entitlement pursuant to section 66, since clause 6 specifically relates to a loss falling within the ambit of those provisions, this applicant is entitled to rely upon section 66 and his entitlement is calculable as though any and all loss were received in an injury after the commencement of that Act.

When you come to section 67, if you come to it, there is a wholly different problem. Clause 1, which is the primary provision in Schedule 6, provides for the application of the 1987 Act to injuries before and after the commencement of the Act. Clause 2 specifically excludes from the operation of clause 1 the provisions of section 67. So there is a wholly different set of problems that arise. In this the only actual assessment of the impairment of the applicant's back is that of the medical panel assessing it at 15 per cent. No other medical evidence specifically adverts to it.

If one looks through the findings on examination, certainly there is some restriction on flexion. Furthermore, some doctors find some restriction on extension, some do not. Dr Scarf seeing the applicant for the respondent under one guise or another, found, in effect, no restriction on flexion, extension, lateral bending, rotation or anything else. If that was the view that was accepted, patently, there would be minimal, if any, impairment of the back.

The applicant has given some supplementary evidence as to the inhibitions that affect him in his day to day living as a consequence of his back and what would appear to be, left-sided sciatica. He has given an account of much the sort of restrictions that one often hears of in a not dissimilar situation: the need to change posture, the inability to maintain himself constantly sitting or constantly standing or walking for any duration, restriction in his ability to bend, certainly a restriction in his ability to carry weights.

All those complaints are compatible with the applicant's having an impairment. The inability of the applicant to work, which has already been found, also suggests that there is probably an impairment and one collates, with all those matters, the applicant's subjective complaints, the various findings on examination and the opinion of the medical panel.

Accepting the restrictions to which he deposes, it seems to me that certainly the applicant has a permanent impairment of the back, probably more likely to get worse than better. It is the quantification of it that is really the problem. With the diversity of findings on formal medical examination, the Court would be sorely tested to come itself to an independent conclusion. The only real guidance is that of the medical panel. That assessment of 15 per cent is consonant with the types of restrictions to which the applicant has deposed, and it appears to me that that is probably the better assessment, at least in medical terms, of the impairment.

There being an impairment, the Act enjoins that the compensation awarded pursuant to section 66 shall be proportionate to the maximum sum, as this case is proportionate to a most extreme case of impairment. The applicant, I think, was about 51 when he ultimately ceased work in April 1988; he is now about 53, perhaps 54. Restrictions which are obviously substantial in the sense that they impact upon his day-to-day life assist in quantifying an impairment in terms of its relationship to a most extreme case of impairment.

It is an infernal sort of calculus where you compare one man with a hypothetical disaster area. By and large I have tended to the view that in doing that, one has regard to a number of factors other than the medical impairment. In HICKS V. CEMAC, No. 8748/89, 18 March 1991, I suggested that one of those factors would be the age of the worker, and indeed, perhaps, the uses to which he put his back antecedently. One can envisage that, with the same medical impairment, someone in a clerical occupation with an interest in classical music as a hobby is probably not as impaired in his day-to-day function as the unskilled labourer who lives by the sweat of his brow and the strength of his back, plays rugby league and a few things like that. Such a man would find he is impaired much more.

I think the lad of 21 who has that sort of impairment probably is more proximate to an extreme case than a man of 60 or 70 who probably did not use his back all that much anyway. This man is middling to all those sorts of propositions. He certainly did some heavy work. His interests aliunde are apparently not sufficiently particular to require any elucidation in evidence. One just assumes it affects him in the ordinary sort of way that a back problem would affect anybody of his age and habitus.

So by and large, weighing those sort of factors, I think the medical impairment probably equally reflects the proportionality to a most extreme case, in other words it is about as 3 is to 20.

I therefore find additionally to the findings made on 31 January 1991:

(1) That as a result of the several injuries the applicant has sustained a 15 per cent permanent impairment of his back;

(2) That in relation to a most extreme case of impairment this case is proportionate in the ratio of 3 is to 20.

I add to the orders then made an order that the respondent pay the applicant a lump sum pursuant to section 66 of $7,506 in respect of permanent impairment of the back. The sum being such as it is, it does not pass the gateway of section 67(2), so there is no need to go into an erudite exposition of the true construction of Schedule 6, Part 6, clause 2 and/or its relationship to clause 6.

The applicant also seeks interest - belatedly. It is an amendment which I think is probably formal at this stage, since the original application was initiated before the current rules came into existence. I have on a number of occasions expounded what is probably an idiosyncratic view in respect to interest, basically I am an "ask and you shall receive" man. If interest is a compensation for deprivation and somebody bears the burden, then presumably the deprivation results from some act or omission of him who bears the burden. If a man does not ask for his entitlements under section 66 or 67 for that matter, then it does not seem to me he is deprived by any act or omission of the employer.

The first indication that there was such an application is the amended application dated 25 January 1991. The original matter was heard and determined on 31 January 1991. In my view, properly prepared, the issue and entitlements pursuant to section 66 and/or section 67 could then have been decided. That is a period of about 6 days. It appears to me to be a de minimis situation in respect of which I would do nothing. In those circumstances the amendment to claim section 66, having been made fairly belated and the case fairly ill-prepared, there seems to be no reason why the respondent should bear the burden of any such dilatory presentation as has occurred in this case. Therefore I decline the application for interest.

In relation to who should pay the award pursuant to section 66, the insurers of the respondent each have different ideas. There is some preliminary discussion as to whether or not section 22, as amended, permits apportionment and as to whether the general law imposes the liability totally on the last injury. That is a matter on which the insurers of the respondent, at least, have suggested they would like to be heard before any formal order is made, and indeed, they are entitled to be heard where an order could be adverse to their respective interests. The only problem is, when.

I will stand the matter over to a date to be agreed in the new year, probably February. In the interim I order that the respondent in the interest of MLC lodge written submissions in relation to any question of apportionment or the liability of the individual insurers on or before 28 January 1992 and that the respondent in the interest of QBE lodge written submissions on or before 11 February 1992. I will stay the order for payment of the sum awarded under section 66 pending the completion of the hearing on the question of who is liable.

S.B. Benson for the applicant

C.J. Wynyard for the respondent in the interest of MLC

P.A. Rickard for the respondent in the interest of QBE

24 APRIL 1992

BURKE J: I have already delivered myself of two judgments in this matter. On 31 January 1991 I quite happily found that at times between 3 May 1983 and April 1988 the worker had suffered a series of injuries to his back which collectively resulted in his total incapacity and awarded weekly payments accordingly. Claims under sections 66 and 67 were stood over.

Ultimately on 4 December 1991 this additional element was disposed of and entitlement to a section 66 payment was found but of a degree which didn't pass the threshold of section 67(2).

At that juncture it was suggested that the liability found should be apportioned between the two relevant insurers of the respondent. Subsequently each of the insurers has made written submissions. Some of those are in the alternative, depending upon the legal nature of the injury found.

In the original judgment I had canvassed whether, within the definition of injury in section 4, the worker had suffered injury simpliciter or whether what had occurred to him was more properly conceived as a series of aggravations of an existing disease to which the employment was a contributing factor. I had then blissfully concluded that as between worker and employer it was immaterial. However conceived, the effects of the injuries was to produce a total incapacity.

The formal findings ultimately formulated towards the conclusion of that judgment included -

(1) On 3 May 1983 the applicant received injury to his back in the course of his employment.

(2) Between May 1983 and April 1988 the applicant received multiple further injury to his back in the course of his employment.

The employer was insured by MLC to 30 June 1987 and by QBE thereafter. QBE submits that the liability should be apportioned under section 22 between it and MLC. The latter suggests that such is not an available option.

One basis on which apportionment was suggested by QBE to be available was the formal findings set out above. While the judgment canvassed the alternatives of injury simpliciter and aggravation of disease and suggested that it was unnecessary to decide between them, it is submitted that the formal findings subsequently made did in fact choose between these alternatives and opted in favour of injury simpliciter. That being so the Court had found a series of injuries simpliciter. They occurred variously in periods during which the employer was indemnified by the different insurers. Therefore there should be apportionment according to the respective contributions to the found incapacity of the injuries within each period of indemnity.

In my view I maintained my ambivalent attitude to the end. In finding "injury" I merely found that the worker had received injury within the meaning of that term in the definition. That included both alternatives offered in that definition as being available to satisfy that finding. There was no opting for one or other alternative.

Both parties explicitly or implicitly conceive the impact of the apportionment provisions of section 22 as varying according to whether one is dealing with a series of injuries in the primary sense or whether one is dealing with a series of events which have contributed to the deterioration of a pre-existing disease. Whatever the general provisions of section 22, it is suggested by MLC that in the case of "disease" there is effectively a separate code within the Act that has its own specific provisions regarding apportionment. This particular proposition is not traversed by QBE. The contention is merely made that this is not a case of relevant aggravation etc. of a disease.

Just what is the difference between these two forms of injury can be rather difficult to adumbrate. Back in 1953 Rainbow J in MILNE V. INTERNAL COMBUSTION (AUST.) LTD, [1953] WCR 80 found that boilermakers' deafness was not a disease process but rather the ultimate result of an almost infinite series of minor traumata each having a minute physiological effect. As far as boilermakers' deafness was concerned, the Legislature subsequently removed it from the field of dispute and effectively provided a code to deal with it sui generis. However the basic principle adopted by Rainbow J still remained. In relation to a back problem, for instance, it was clearly open to regard what might be thought of in one sense as a progression of a disease as rather an accumulation of minute pathological changes induced by an indefinite series of minor traumata. In COMMISSIONER FOR RAILWAYS V. BAIN, [1965] ALR 880 Windeyer J wasn't much impressed by this approach, particularly to boilermakers' deafness. It seemed to him that such a hearing loss could adequately be conceived as a disease process within the ordinary meaning of the word "disease". Then one has cases such as FAVELLE MORT LTD V. MURRAY, [1976] HCA 13; (1976) 133 CLR 580 where an encephalitis was seen as the consequence of injury simpliciter, rather than the contraction of a disease. The entry of the bacteria into the system was the injury, the encephalitis was the consequence of that injury. A similar type of analysis occurred in AMERICAN HOME ASSURANCE CO V. SAUNDERS, (1987) 11 NSWLR 363 where mesothelioma was found to be the consequence of injury simpliciter. The entry of the minute particle of asbestos was just as much injury in the primary sense as the entry of the bullet into Mr Weston: (WESTON V. GREAT BOULDER GOLD MINES LTD, [1964] HCA 59; (1964) 112 CLR 30). The mesothelioma was the consequence of that injury.

One can understand Mr C.P. Mills' bemusement in his text Workers Compensation New South Wales (at paragraph 2015.62-63) where he wonders what areas remain for the operation of the concept of disease and its aggravation, acceleration etc. or how one discriminates between them. Perhaps the answer is that both approaches are valid. The same circumstances may from one perspective be conceived as injury in the primary sense and from another as the contraction or aggravation of a disease. The concepts are not necessarily mutually exclusive. This is a view canvassed by Mills (op cit). If the problem of a particular worker fits within either limb, he is entitled to appropriate compensation. He is no less, nor more, entitled if perchance he fall within both. In O'NEILL V. LUMBEY, (1987) 11 NSWLR 640, Kirby P embarked on a fairly lengthy analysis of the problems of categorising a particular event as injury simpliciter or as the culminating event in a disease process. He felt, in the particular case, the rupture of a cerebral aneurism more properly classified as the end event of a disease process. Clarke and Priestley JJA inclined more to the view of injury simpliciter. Or, perhaps more accurately, they were of the view that there was no error of law in so finding and the majority decision is probably authority for no wider proposition than there was no error of law involved in the primary Judge's holding the relevant event to fall within the definition of injury in the primary sense. It contributes nothing to the question of whether there was any error of fact.

It seems to me that the factual situation may well be that, in given circumstances, it is open in law to find that a particular event is both injury simpliciter and a relevant disease or an aggravation etc. thereof.

However, be that as it may, where it is necessary to adjudicate as to the rights inter se of disputing interests and those rights may vary according to whether the relevant injury is adjudged to be injury simpliciter or a relevant disease, it would seem that the Court would make a definitive finding. Even though the particular circumstance may have elements tending to satisfy both elements of the definition of injury, the Court would need to discriminate between the two mechanisms and prefer that which the preponderance of evidence favoured. It is a question of fact to be determined. As illustrated in KONSIATORIS V. WARMAN INTERNATIONAL LTD, CA 705/88, 19 June 1990, it is not unusual for there to be facts leading to competing inferences as to the categorisation of an ultimate fact. The question in that case was whether there had been an unreasonable refusal to undergo treatment. The trial Judge found facts capable of supporting affirmative and negative answers. On balance he opted for the affirmative.

The scheme of the Act in relation to disease has many elements that are quite arbitrary. These provisions are directed to achieving certainty rather than any concept of abstract justice. Sections 15 and 16, in regard to relevant diseases, are directed to establishing an employer liable to pay compensation with scant regard to any contribution by the employment to the development of the disease. Having arbitrarily fixed liability on a particular employer, the Act proceeds in section 18 to impose the full extent of the liability to indemnify the employer upon the insurer at the last date on which the worker actually worked. It goes on to provide a right of contribution from any other employer in the antecedent 12 months. It certainly tends to indicate that the apportionment provisions of section 22 are not applicable to such a case.

In my view this is a case where the preponderance of evidence and inference leads to a conclusion that this worker suffered from degenerative disease of the back and some pre-existing developmental anomalies before any relevant injury. Following the initial injury there was found what appeared to an L4 compression fracture. The most likely source of this was injury in infancy. There was probably also spondylolisthesis of L4 on L5. That too would have pre-existed the initial injury. There was some narrowing of the L4-L5 disc space (Dr Evans, report of 1 June 1983). The more recent radiological investigations, some considerably more sophisticated than plain x-rays, show much the same general picture though more accentuated in degree. That is more likely to represent progression of the underlying degenerative changes. The better interpretation of the effects of the various injuries on Mr Pinto's back is that they have contributed to the acceleration and deterioration of those changes. So much, in my view, is fairly implicit in the discussion of these aspects in the original judgment. I am therefore of the view that this is a "disease" case. The injuries have aggravated etc. that pre-existing disease.

At all relevant times the worker remained employed by the same employer. There can therefore be no question of contribution by another employer within section 16(2) nor the operation of the provisions of section 18 in that regard. Those provisions are irrelevant for present purposes.

That there can be no contribution from another employer does not seem to me to necessarily exclude apportionment of a single employer's liability among its relevant insurers. The fundamental question seems to be: from what injury or injuries does the found incapacity result? It has been found to result from the initial incident of May 1983 and the multiple traumata constituted by heavy work thereafter to April 1988. In this particular case whether the process be classified as injury simpliciter or as aggravation of a disease seems to me to be irrelevant. It may appear otherwise to others. However I find no incongruity or incompatibility between the provisions of sections 16 and 18 on one hand and those of section 22 on the other. It seems to me that they deal with different problems altogether.

Where the injury is an aggravation of a disease, section 16, for relevant purposes, deems the injury to have happened at the time of incapacity. By operation of section 16 the worker would be deemed to have suffered injury at the time he ceased work in April 1988. The purpose for which this is deemed to be so, is to establish an employer liable to pay compensation where employment by multiple employers has been a contributing factor to the incapacity. It says nothing about whether the worker may or may not have had other injuries or whether or not such contributed to the incapacity. At least for the purpose of establishing an employer liable there is a deemed injury in April 1988. In this case there is no need of any deeming provision to establish a relevant employer. It therefore seems to me that these "disease" provisions do not impact upon the problem of apportionment where multiple injuries in the same employ have contributed to the exacerbation of a disease producing total incapacity.

I am of the view that while in the employ of the respondent, this worker received multiple injuries which collectively exacerbated disease of the back. All were relevant injuries within section 4. All contributed to the ultimate incapacity. The provisions of sections 16 and 18 are irrelevant to this question.

Even so, MLC suggests that it is not open to the Court to apportion the employer's liability in respect of that incapacity between its relevant insurers. It is submitted that section 22 is incompetent to empower the Court to do so. It is suggested that this provision suffers the same defects as its predecessor, section 7A in the 1926 Act, and cannot operate to allow apportionment of liability between different insurers of the same employer. Reference has been made to NATIONAL EMPLOYERS' MUTUAL GENERAL INSURANCE ASSOCIATION LTD V. CALVER, [1983] 3 NSWLR 107 and PICKERSGILL V. FREIGHTBASES PTY LTD, [1983] 3 NSWLR 117. In particular the dictum of Moffitt P to the effect that any amendment of section 7A, or the drafting of any substitute for it, would not be a straightforward problem for the draftsman. There would need to be a clear legislative intent disclosed that the normal common law principles were being abrogated. QBE suggests that such an intent is manifestly clear in the wording of the section which it is suggested could hardly be more explicit. This has been supported by some references to the Minister's Second Reading speech in the Legislative Assembly. It certainly seems to me that Parliament intended that such questions should be resolved by this Court.

MLC has contended that the Court is constrained by decisions such as NATIONAL & GENERAL INSURANCE CO LTD V. SOUTH BRITISH INSURANCE CO LTD, (1982) 56 ALJR 903 and MANUFACTURERS MUTUAL INSURANCE LTD V. NATIONAL EMPLOYERS' MUTUAL GENERAL INSURANCE ASSOCIATION LTD, (1989) 5 ANZ Insurance Cases 60-906 and that consequent upon such constraint the Court must necessarily find, as I apprehend the submission, that the incapacity results from the last of the series of injuries. The cases were concerned with the liability to indemnify an employer in respect of an award under section 11(2) of the former Act. They dealt with whether there was or was not double insurance. Such matters, as I see it, do not appear to impinge upon the problem that I am called upon to address.

I am of the view that section 22 empowers the Court to apportion the liability of the employer between its two insurers and that this is so, in this case, whether the relevant injuries be considered as injury simpliciter or injuries by way of aggravation etc. of a disease. I view the words of the section as clearly envisaging the apportionment of liability between successive insurers of the employer in respect of periods when the worker received relevant injuries.

On the question of how the employer's liability should be apportioned between the two insurers I regard the following matters as relevant. The worker was essentially asymptomatic prior to the frank incident of May 1983. That injury resulted in the manifestation of symptoms which, temporarily, totally incapacitated the worker. With the aid of a back brace the worker returned to lighter work and graduated to fairly unrestricted duties as a builder's labourer by the beginning of 1984. He continued to have symptoms of back pain. These gradually increased in degree. That was particularly so over the last twelve months of his employment culminating in his becoming totally incapacitated in April 1988. The nature of the work performed from early 1984 to April 1988 was essentially the same. The employer was indemnified by MLC up to 30 June 1987 and thereafter by QBE.

It appears to me that the frank incident of May 1983 set in train all that followed. True, without the added insult of the stresses of heavy work there may have been little if any progression of the worker's symptoms. That they did progress has been accepted. Indeed that the underlying pathology progressed has been demonstrated and accepted. The worker's account that he suffered more towards the latter part of his employment than in the earlier period after resumption from the 1983 injury tends to suggest that, with the progression of the disease, the same work was producing increasing symptoms. While the work that he was then doing, in this last twelve months, was adding its contribution to that progression, it does not appear to me that, proportionately, it was necessarily contributing any greater aggravation to the disease than the prior work of the same nature. It could be just that the worker experienced increased symptoms. Probably the work in the presence of increasing pathology over that last twelve months was effectively aggravating the condition to a slightly greater degree. In that situation it appears to me that the liability in respect of the injurious period of work, early 1984 to mid-1988, would be apportioned between the insurers approximately in proportion to the periods of their indemnity with a minor additional increment to QBE in respect of the ten months during which the symptoms markedly increased while it indemnified the employer. As between the frank incident and its consequences and the more general undifferentiated series of injuries occasioned by the general work thereafter and its consequences, it seems to me that the frank incident was a very significant event and that it is substantially implicated in what followed. I would regard it as attracting 40 per cent of the liability. The remaining 60 per cent would be allocated between the insurers roughly in proportion to the periods of their indemnity, perhaps with a little extra increment in respect of the last period of work as suggested above. Those considerations lead me to the conclusion that this remaining 60 per cent should be apportioned in the ratio of 3:1 as between MLC and QBE. That results in an ultimate apportionment of 85 per cent to MLC and 15 per cent to QBE.

Well, however that may be in respect of the employer's liability for weekly payments, MLC submits that it cannot be so in relation to the amount awarded pursuant to section 66. This is the suggested consequence of the transitional provisions to the 1987 Act and particularly to Schedule 6, Part 6, clause 5. It is implicit, I believe, in this submission that the following clause, namely clause 6, is expressly limited in purpose i.e. it only applies for the purpose of determining an amount of compensation payable under Division 4 of Part 3 of the Act. Clause 6, having exhausted its function once that is done, the balance of the transitional provisions operate according to their terms. That seems to excise a phrase from clause 6. Its purposes certainly include the determining of an amount payable but that is followed by the phrase: "and this Schedule". It appears to me that clause 6 is an interpretation provision applicable when considering the impact of the other clauses of the Schedule. If that be so, then the pre-condition for the operation of clause 5 is not fulfilled. It is conditioned, in the first place, upon the loss resulting from an injury received before the advent of the 1987 Act. To determine whether Mr Pinto's loss falls within that condition, one has regard to clause 6 which effectively says it doesn't, or at least, whether it does or doesn't, Mr Pinto's loss shall be treated as if it doesn't. As was mentioned in the submission of QBE, that conclusion finds some inferential support in the provisions of Schedule 6, Part 15, clause 15 which extend the liability under a policy of insurance in such a way as to meet liabilities such as this.

For those reasons I order that the liability of the respondent be apportioned pursuant to section 22 as to 85 per cent to MLC and 15 per cent to QBE.

Solicitors for the applicant: G.H. Healey & Co, then Bowen & Gerathy

Solicitors for the respondent in the interest of MLC: Neville & Edwards

Solicitors for the respondent in the interest of QBE: Michell Sillar McPhee Myer, then Gadens Ridgway