Paunovic v Email Ltd [2002] NSWCC 49 (22 May 2002)

Last Updated: 15 July 2003

NEW SOUTH WALES COMPENSATION COURT

CITATION: Paunovic v Email Ltd [2002] NSWCC 49


PARTIES:
Miroslav Paunovic
v
Email Ltd


CASE NUMBER: 40187 of 2001 of 2002.00


CATCH WORDS: Entitlements & Liability


LEGISLATION CITED:
Workers Compensation Act 1987 ss 16, 18 & 151AB
Workers Compensation Act 1926 s 7(4A)

CORAM: Johns J

DATES OF HEARING: 23/04/02, 24/04/02, 26/04/02

DECISION DATE: 22/05/2002


LEGAL REPRESENTATIVES

FOR APPLICANT: Mr D R Campbell instructed by Campbell, Paton & Taylor

FOR RESPONDENTS:
Mr J O Tancred instructed by Hicksons Lawyers appeared for the first respondent
Mr S M L Grant instructed by A O Ellison appeared for the second respondent
Mr R A Stanton instructed by Goldrick Farrell & Mullan appeared for the third respondent


JUDGMENT:

1. The applicant in these proceedings makes a claim for lump sum entitlements in respect of his neck, right and left arm at or above the elbow together with a s 16 claim in respect of 15 per cent permanent loss of the use of the right arm. Additionally he makes a claim pursuant to s 67 for pain and suffering. The applicant is a 59 year old man who was born in Serbia. In his home country he finished his high school and came to Australia when he was 18 years of age. He initially worked for one year on the railways at Nyngan and then moved to Sydney where he was spot welding for some 18 months. In 1963 he moved to Orange and came into the employ of the respondent on 28 August 1963. He married in 1965 and had two children who have since grown up and moved away from home.

2. When he began his work with the respondent he was welding steel liners. He did this work for some 16 years, when he then moved to enamel fabrications. Between 1979 and 1995 he worked on the door line which involved folding on a press. This work would require him to put steel lengths into the press, fold them over and repeat the process. Although this work was repetitive he did not have any difficulty with his arms in this work. Neither did he experience any problems during this period with his neck. He had a motor vehicle accident in 1981 in which he had some injury to his low back. However, he says he recovered. He was a keen soccer player and played until he was 38 years of age, whereafter he coached various soccer teams, until about 1995 when he began a change in his duties with the respondent. He was a keen swimmer and jogger and was interested in walking. His general health had been normal.

3. Between 1995 and 1996 he moved to the plastic section making liners for fridges. In this work he was on afternoon shift from 3 pm to 11 pm Monday to Friday. There were a number of operations involved in this type of employment, which included a great deal of trimming with a knife, continual turning of the liner, the use of air guns, all of which he said was much more involved work and was physically a much harder job. There was much more work involved in using his arms on a constant and repetitive basis. The knife used was specifically for cutting the liners. The machine which he operated in this work also contained a number of operations. The liners were coming at the rate of one every one-and-a-half minutes. It was work which he described as hard and continuous. He did not take a break until 6.30 pm which meant he had been three-and-a-half hours continually on the job. There was a quota of some 250 to 300 for each shift which he was able to make provided there was no breakdown. He continued this work until some time towards the middle of 2000.

4. Some time in the latter half of 1999 he first noticed some problems, by way of some pain, inside both elbows after a few hours of work. I have come to the conclusion that the symptoms began at this time. This comes from my overall impression of the number of histories he has given to the various medical practitioners together with his oral evidence and also from a statement he made to the respondent's insurer's investigator which was tendered and is Exhibit AX1. In this statement the applicant confirmed the nature of the work he had undertaken and a description of the change of work towards the latter half of June 2000. The duties involved as a result of this change were very similar to that previously described except that the size of the liners were smaller.

5. The applicant, although he had been experiencing some symptoms in 1999, did not attend for any medical assistance until 20 June 2000. On this occasion he went to the first aid office, as his elbows were sore. Soon after, he consulted Dr Leslie and he was treated for tendonitis in both elbows. He undertook physiotherapy for a short period. He was also at this time experiencing symptoms in his shoulders particularly in working the bigger liners. Initially the symptoms were intermittent which was the reason he did not seek any additional medical assistance. The notes of the medical clinic confirm the consultation regarding the painful elbow on the diagnosis of tendonitis (see Exhibit AX9).

6. He did not previously report these symptoms nor consult a doctor as he was hoping the pain would go away. He was also concerned at that time about his employment. However, when the symptoms became consistent, rather than intermittent, he reached a stage where he could not continue and he went to the first aid office. He returned to light duties after a period which involved working for periods of four hours but lasted only three days. He was then engaged in what he described as a sitting job for a period but he then described symptoms which by this time had radiated up to the nape of his neck and made it impossible for him to continue.

7. There was a medical appointment, arranged by the respondent, with Dr Byrnes and later the applicant made the statement to the investigator to which I have already referred. He has since that time constantly and continually suffered symptoms. He has undergone various medical examinations together with radiology. He has had some cortisone injections which improved his condition for a short period of time. He has become depressed, for which he takes medication with beneficial results. Overall, however, he says that his condition is worsening. He has been paid weekly payments of compensation since ceasing his employment and his medications and medical consultations have been paid for by the respondent. He gave a description of his general activities and the manner in which he is now restricted, particularly in his interaction with his family, especially his grandchildren.

8. In his cross-examination it was apparent to me that the applicant was not always clear in his understanding of what was being asked of him. In that regard any inconsistencies in any answers that he gave did not have the impact that in other circumstances they would have. In any event they were soon clarified either by further cross-examination or re-examination. I did not form an adverse opinion of the applicant's evidence and have concluded that his evidence is an accurate reflection of the circumstances.

9. The medical evidence in this case clearly indicates that the applicant suffers from an underlying degenerative condition. The radiological evidence found in exhibits AX2, AX3, AX4 and AX5 shows a definitive level of osteoarthritic changes in the right and left shoulder with some chronic irritation to the rotator cuff of both shoulders. There is also a suggestion of a partial tear on the left. The applicant's cervical spine shows mild to moderate disc space thinning which was confirmed by an MRI scan. A later radiology report confirms osteoarthritis of the right and left shoulder but of moderate degree.

10. Dr Morgan, in his opinion (Exhibit AX8), concludes that the applicant has quite severe cervical spondylitis with disc degeneration and narrowing. He confirms the osteoarthritis affecting both shoulder joints together with a bilateral epicondylitis of the elbows. He concludes that it was likely that the type of work he was doing exacerbated the cervical spondylitis and the arthritis and osteoarthritis in the shoulders. Additionally he said the applicant's work almost certainly caused the lateral epidondylitis he suffers in both elbows. The nature of this evidence seems to me to be consistent with the nature of the applicant's complaints and the manner in which they have arisen.

11. Dr Leslie said that the applicant had a combination of overuse injury including tendonitis and arthritic changes in his shoulders and elbows. He believed that his employment was the main contributor to the wear and tear seen in his shoulders and arms. He says this in the context of continuing chronic pain despite several months of not aggravating the injuries.

12. Dr Hassall, whose evidence was tendered by the respondent, concluded that the applicant's employment over the years had contributed to the problems with his right shoulder and his elbows. He concluded that constitutional factors accounted for most of the changes in the cervical spine and probably to the arthritic changes in his shoulders. He said the degenerate changes were common but it was likely that the employment had been a substantial contributing factor to the pain in his shoulders and arms although it was difficult to make any objective assessment about his pain because of what he described as the over-reaction of the plaintiff (see Exhibit 3RX1).

13. Dr Macaulay confirmed severe osteoarthritis of the neck and mild osteoarthritis of the shoulders. He did not find any history of any workplace injuries involving the areas of complaint. He said there was a genuine underlying osteoarthritic condition which he said was not work-related but constitutional in nature. I do not accept this view because in the evidence before me there was a history of the pain commencing during the work that he was involved in and which has continued since the onset of symptoms. I did not find the applicant to be exaggerating. In fact I found him somewhat laconic in his approach to his symptoms.

14. The doctor, however, did indicate that there was no doubt that repetitive movement, bending and lifting would aggravate pre-existing osteoarthritis. He also said that the arthritis in the neck, whilst constitutional in nature, would be temporarily aggravated by his work. The difficulty I have in accepting this latter view, in relation to the neck, is that there has been a continuation of the symptoms. The more difficult question is that they arose in the neck some months after the applicant ceased his employment. However, given the nature of his employment and its repetitive nature, it is my view that his employment exacerbated or aggravated the underlying arthritis in his neck nonetheless.

15. Dr Maxwell's evidence, which was also tendered by the respondent, again confirmed the osteoarthritis of the shoulders and the degenerative changes in the cervical spine. But he said that any aggravation of these conditions occurred from 1995 onwards.

16. Dr Mitcham considered that any aggravation had long since ceased but nonetheless confirmed the underlying condition.

17. Dr Byrnes made the diagnosis of generalised osteoarthritis but he did not believe that the work had been a significant contributing factor to the applicant's current discomfort.

18. Dr Smith was also tendered by the respondent, but it was my view that he took such an adverse view of the applicant that he entered into the adversarial arena. He nonetheless confirmed longstanding degenerative changes. He did stress the need for more to be known about his behaviour when he was away from the medical scene. No evidence has been tendered by the respondent in regard to the applicant's activity away from medical examinations.

19. Dr Burgess whose report was tendered on behalf of the applicant concluded a different diagnosis founded upon an overuse syndrome due to the nature and conditions of his employment. He did indicate, however, a cervical spondylitis and neuralgia together with excessive wear and tear in the shoulder joints and a bilateral epicondylitis. I conclude therefore that the applicant has aggravated and exacerbated an underlying osteoarthritic and degenerative condition as a consequence of the nature and conditions of his employment, in particular after 1995. I also conclude that the applicant suffers from lateral epicondylitis of both elbows as a consequence of the nature and conditions of his employment from the latter half of 1999.

20. In relation to determining the appropriate entitlement of lump sums it is relevant to indicate that the nature of the medical evidence involves a range of percentages. In regard to the applicant's neck, a range of percentages varying from 10 to 35 per cent is indicated in the medical reports. In relation to both the applicant's arms at or above the elbow a range of 5 to 50 per cent loss is expressed. In regard to the applicant's arms it seems that given the nature of the symptoms in the elbows his condition of epicondylitis would contribute some 10 per cent to the overall loss of his arms. Dr Morgan concluded that 30 per cent is the assessment of the permanent loss at or above the elbow. I agree with that conclusion for the reasons that I have already expressed. The applicant is to be compensated accordingly.

21. In relation to the applicant's back I am required to engage in an exercise which involves determining reasonable proportionality as against a most extreme case. It is a relatively objective assessment. However, any evidence in relation to the applicant's general activities has been held to be relevant although the effect of his neck disability on his work is not. Additionally, authority has indicated that the medical evidence in this regard is not of much assistance as the exercise in which the medical practitioners engage is not the same as that which is required of the Court. As the reports do not disclose the criteria utilised in order to determine the percentages. It seems to me in the circumstances that 30 per cent of a most extreme case is appropriate and the applicant's entitlement is to be determined accordingly.

22. In this matter the respondent was represented by its two previous insurers and in its own right as self-insurer. Where the employment may contribute to the aggravation, acceleration or exacerbation or deterioration of the disease, either through long-term nature and conditions of the employment or by the happening of a single event, the question arises as to whether or not s 16 of the Act applies. When it does apply it applies as a code and excludes the operation of other provisions, such as s 22. Section 16 applies only when an injury in respect of which compensation sought consists of an aggravation, acceleration, exacerbation or deterioration of a disease.

23. It was held in Colliar v Bulley (2000) 19 NSWCCR 302 that when an injury occurs in these circumstances it does not fall outside s 16 and that to find so would be an error of law (Colliar at 327) But see contra Acacia Timber & Trading Co. Pty Ltd v Kacanic NSWCA, No. 40767/97, 23 December 1998, unreported.. The Court of Appeal held that s 16 should be applied having regard to the terms which it uses (Colliar at 327) See also MLC Insurance Ltd v Pinto (1994) 10 NSWCCR 101 at 109 per Clarke JA.. An injury which constitutes an aggravation or other exacerbation of the disease and to which the employment has contributed does not fall outside s 16 simply because the claim for compensation was framed in terms of par (a) of the definition of "injury" (see Colliar at 326). The importance of giving the words of s 16 their ordinary and significant meaning is to enable the section to achieve its designed purpose of reducing litigation which is further promoted by the terms of s 18.

24. It is clear, therefore, from my findings that the applicant has a single incapacity due to the cumulative effect of the nature of his employment with the respondent. The last period of that employment occurred while the respondent was its own self-insurer and the deemed date of injury is also at the time when the respondent was its own self-insurer. So much is confirmed by the evidence and by my findings in regard to s 16 which deems an injury which consists of an aggravation of the worker's osteoarthritic and degenerative disease by his employment to have happened at the time of his incapacity in June 2000. Section 16 was designed to determine liability in the aggravation of any diseases.

25. The determination, however, of which insurer is liable, in the circumstances of this case is provided for under the provisions of s 18, which has contained special insurance provisions relating to occupational diseases, namely those referred to in s 16. In that particular section compensation to a worker in respect of an injury at the time the injury is deemed to have happened is after the worker ceased to be employed by the employer. The liability of the employer is, despite s 16, taken to have arisen immediately before the worker ceased to be employed by the employer. Section 16(1) applies to an injury, which is a gradual process disease. It includes a loss or impairment for which lump sum compensation is payable.

26. Section 16, as indicated, refers to an injury which is an aggravation et cetera of a disease and it fixes a deemed date of injury for such a case. Unlike the former s 7(4A) of the 1926 Act, the operation of the deemed date of injury is not limited to the case where employment with two or more employers has been the contributing factor to the aggravation. It applies to every case where the injury is an aggravation, etc, of a disease (see also Mills 1996 ed at 1909, Colliar v Bulley (Supra) and MLC Insurance v Pinto (Supra)).

27. Once the "links in the chain" (as described by Mills) have been traced thus far, one comes to the question of the insurance rights of the employer who has been found liable to pay the compensation. For determining this question Section 18(1), which I have previously referred to, describes in mandatory terms that the liability of the employer shall, despite s 16, be deemed to have arisen immediately before the worker ceased to be employed by the employer — in this case the respondent as self-insurer. However, see Addendum to Judgment dated 28 June 2002.

28. Accordingly it is the respondent, as self-insurer, who is liable in the circumstances in regard to any liability that relates to his underlying conditions but not to his condition of epycondylitis in relation to this issue. In regard to the latter it is clear that the self-insurer is liable as the injury occurred as a consequence of the nature and conditions of the applicant's employment from the latter half of 1999.

29. In respect of determining the entitlements of the applicant the provisions of s 68B are to be considered. A detailed consideration of the provisions of this section as they are to apply was made to Neilson J in the case of Brown v Bernard [1998] NSWCC 53; (1998) 17 NSWCCR 275. It is to be recalled that the aggravation, exacerbation or acceleration of the applicant's condition in this case has been in the employment of one employer. As a consequence, the anomaly in the legislation referred to by Neilson J at 296 (par 61) is apparent. As noted in s 68B(3) of the present provisions, only work done before 30 June 1987 by a previous employer is to be deducted. Therefore, if there is only one employer, as in this case, there is no deduction. If, however, for example, there were two employers — one prior to 1987 and one after 1987 — the effect of the work in the first period of course would be deducted.

30. There remains therefore the consideration of any deduction to be made as a consequence of a pre-existing condition which has been accelerated, exacerbated or aggravated by his employment. A significant amount of the medical evidence deals with the question of the effect of the nature and conditions of his employment before July 1987. Some of the medical evidence considers the question of the proportion of his disability that is due to underlying degenerative changes. Dr Leslie concluded that half of the loss related to the applicant's neck was due to normal ageing and other stresses on the neck.

31. Dr Maxwell considered that one-third of the applicant's permanent impairment of his neck was due to underlying degenerative changes and one-third of the applicant's loss of function of both arms was also due to the underlying degenerative changes. It is also my opinion that the deduction to be made in respect of the pre-existing degenerative condition relates to the proportion of the losses that relate to the aggravations. I consider Dr Macaulay's conclusion suffers from the difficulties which I have already commented upon and is therefore not to be preferred. I consider that in relation to the applicant's neck 50 per cent is the appropriate deduction in accordance with Dr Leslie's opinion of normal aging and other stresses on the neck.

32. In regard to the applicant's arms I consider Dr Maxwell has accurately described the appropriate percentage that is due to the underlying degenerative changes and 30 per cent is to be deducted to that portion of the loss that relates to the underlying changes. The applicant also makes a claim in respect of pain and suffering pursuant to the provisions of s 67. He is entitled to an award for pain and suffering as a consequence of his loss because he has suffered more than 10 per cent of the maximum from time to time referred to in s 66(1). The applicant is entitled to a reasonably proportionate sum to the maximum from time to time provided for by the section. I am to determine that reasonably proportionate amount having regard to the duration and degree of pain and suffering and the severity of the loss. It includes past, present and future pain and distress suffered or likely to be suffered by the applicant resulting from the loss or any necessary treatment. It depends not only on the severity of the physical injury but on the consequences of the physical injury upon the applicant. I do not reduce him to some common denominator as with other all human beings and require the impact of the injuries upon him to be ignored. There is no necessary proportion between the award of permanent impairment on the one hand and pain and suffering on the other. A determination involves a resolution of questions of fact and degree, matters of opinion, impression and estimation all of which call for the exercise of common sense and judgment.

33. It is not an exercise which allows a comparison of like cases in any systematic way. My judgment is to conform with current general ideas of fairness and moderation in judgments generally. A reasonable conception of what is adequate to the occasion is necessary: see Dixon CJ in Pamment v Pawelski [1949] HCA 43; (1949) 79 CLR 406.

34. In the end it rests upon the findings and my reaction upon those findings drawing upon my general experience. Therefore, in this case, taking into account the applicant's age, the extent of his suffering in the future and determining where that rests and reflecting upon where this matter rests in proportion to a most extreme case considering the evidence and the applicant's age, I think the appropriate proportion is 1:5 and the applicant should be awarded that sum accordingly.

35. I therefore make the following formal findings:
· That the applicant suffered employment injury to his neck, left and right arms, due to the nature and conditions of his employment in the form of an aggravation, exacerbation and acceleration of his osteoarthritic and degenerative conditions and that the applicant suffered an epicondylitis to his left and right elbows as a consequence of the nature and conditions of his work.
· That the applicant suffers 30 per cent permanent impairment of the neck to which there is to be applied a deduction of 50 per cent due to the normal aging and other stresses on the neck in accordance with the provisions of s 68B(3).
· That the applicant suffers 30 per cent permanent loss of his right and left arms at or above the elbow to which there is to be applied a deduction of 30 per cent to 20 per cent of that loss in accordance with the provisions of s 68B(3).
· There is no deduction to be made in respect of his employment prior to 1 July 1987.

36. I hereby order and award that the respondent as self-insurer pay the applicant:
· The sum of $6,000 in respect of 30 per cent permanent impairment of the neck after the deduction pursuant to the provisions of s 68B(3).
· The sum of $19,200 in respect of 30 per cent permanent loss of his right arm at or above the elbow after the deduction pursuant to the provisions of s 68B(3).
· The sum of $18,000 in respect of 30 per cent permanent loss of his left arm at or above the elbow after deduction pursuant to the provisions of s 68B.
· The sum of $10,000 pursuant to the provisions of s 67 for pain and suffering.

37. I order the respondent to pay the applicant's costs.

38. I make an order pursuant to the provisions of s 60 for medical expenses.

28 June 2002

ADDENDUM TO JUDGMENT
JOHNS J

39. I delivered judgment in this matter on 22 May 2002 and found that the applicant was suffering from an aggravation, exacerbation and acceleration of an underlying disease. As a consequence, in accordance with the authority that I therein expressed, this meant that the provisions of s 16 of the 1987 Act applied. In doing so, it was then necessary, in accordance with the provisions of the Act, to determine which of the insurers who had a policy of insurance within the terms of the section was liable for the applicant's award. I held in accordance with the section that the time of liability which was required by it arose during the time of the period of the respondent's self-insurance.

40. Subsequently, I discovered the authority of Johnson & Johnson Pty Ltd v Manufacturers Mutual Insurance Ltd [2000] NSWSC 155 which was a decision of his Honour Young J. Because of that decision it became necessary, in my view, that I recall the parties in accordance with the review powers contained in the Compensation Court Act 1984 However the power of Review contained in s 17(4) of the Compensation Court Act 1984 has been limited from 1st. April 02 by s 105 of the Workplace Injury Management Act 1998 and Regulation 93 (3) of Workers Compensation (General) Regulation 1995. by my own motion, and allow them the opportunity to address the Court as to whether or not, and if so in what manner, the application of Young J's decision would have on the outcome of the case.

41. Therefore, the matter was listed for mention to inform the parties of the decision, and the other decisions, that were relevant in respect to it. A date was set in order that the parties could address the Court, before I determined if I would review the decision and if so on what basis and give a subsidiary judgment. Today the matter is before me for that purpose. I have heard from the parties and as a consequence I add an addendum to the judgment.

42. In Johnson's case it was held that a self-insurer was not an insurer within the meaning of s 151AB of the 1987 Act. The section could not apply so as to impose liability on that self-insurer without rights to contribution. In his ruling, Young J referred to the decision of Yeldham J in Wunderlich Ltd v Manufacturers Mutual Insurance Ltd [1981] 2 NSWLR 678 at 685 in respect of ss 18(6A) and 18(6B) of the 1926 Act.

43. Though the wording of each of the sections is somewhat different, it seems to me that little distinction can be made between the present s 18 with its use of the words "under a policy of insurance" and the words "being maintained in force" in the previous sections mentioned.

44. Yeldham J indicated that the subsection operated for the purpose of a claim against an insurer whose policy continued in force. The object of the policy was one which was entered into, and maintained in force, to avoid affecting rights and liabilities between insurer and insured when a policy was terminated.

45. In Australian Iron & Steel Pty Ltd v GIO (NSW) (1985) 2 MVR 362, Yeldham J considered the case of a self-insurer.

46. It was argued in that case that the self-insurer was in the position of an insurance company, or alternatively, that a self-insurer assumed liability and indemnity in the same way as indemnity was given by an insurer. He said at 366 that the matter could not be resolved merely by looking to the use of the term "self-insurer" as used in the Act or to the definition of insurer.

47. The reality of the situation is that such an employer, he said, is not an insurer at all. It has exemption from the obligation imposed upon all other employers to obtain a policy as specified in s 18.

48. The liability upon a so-called self-insurer derives from the relevant sections of the Act, and is in no way related to insurance or to the absence of it. Such an employer is simply uninsured, but because it is the holder of an appropriate licence under the terms of the Act, although it is exempted, it is not exempted from the obligation to assume liability.

49. Young J in Johnson's case indicated that the words "a number of insurers under policies of insurance obtained by the employer" referred to insurers who had issued policies of insurance. This, in his view, precluded liability in the self-insurer because the self-insurer does not issue a policy of insurance and the section makes clear that there are two distinct entities: the employer and the insurer. Accordingly, it was his view that a self-insurer was not an insurer under s 151AB.

50. Similarly, it is my view that when s 18 refers to insurers liable under a policy of insurance it refers to insurers who have issued policies of insurance. Also, because a self-insurer does not issue a policy of insurance this section also makes clear two distinct entities: employer and the insurer. For the reasons expressed by Young J, it is also my view that a self-insurer is not an insurer under the provisions of s 18 of the 1987 Act.

51. The question then arises as to which, if any, of the two remaining insurers is liable under the provisions of s 18, as in each case the insurer has indemnified the employer during a period when it held policies of indemnity for the respondent. However, the insurers are liable only in respect of injuries to workers during the currency of their policies (State Mines Control Authority v GIO (NSW) (1964) 65 SR (NSW) 258). In respect of each insurer the employer has no indemnity. Liability arose at a time when in each case no current policy of indemnity was held. Liability therefore, cannot be established as between the insurers and the self-insurer/employer pursuant to the provisions of s 18.

52. The question, then, is what is the effect of s 18 in this case. Burke J, in Di Giovanni v Smorgon Arc Pty Ltd [1992] NSWCC 26; (1992) 8 NSWCCR 582 at 588, in considering s 18, held that the deeming provision of s 18 indicated that it only operates where the worker's employment firstly has been terminated and the insurer on risk at that date is liable under the policy of insurance in respect of the compensation.

53. At 594 he indicates that the section operates for the purpose of determining which of two or more insurers is liable under a policy of insurance in respect of that compensation. He held that the section had a limited purpose.

54. A comparison of s 16, he said, which operates also to provide a deemed date of injury is expressed to do so for the purposes of the Act — that is, all purposes of the Act. That comparison emphasised, he said, the limited ambit of s 18. It determined who was liable to pay the compensation, or more specifically, who was to indemnify the employer. So much, he indicated, exhausts the operation of the section. For any other purpose s 16 would operate in accordance with its terms. See Colliar v Bulley (supra).

55. As liability cannot be established between the insurers and the self-insurer pursuant to the provisions of s 18, it seems to me correct (as Burke J indicated in Di Giovanni at 594) that s 16 would operate in accordance with its terms as s 18 has exhausted its full function.

56. For those reasons I affirm my decision of 22 May 2002 that the respondent employer is liable in the circumstances in regard to any liability that relates to the findings I made regarding the question of injury.

57. I make an order that the respondent pay the applicant's costs.
Mr D R Campbell instructed by Campbell, Paton & Taylor appeared for the applicant
Mr J O Tancred instructed by Hicksons Lawyers appeared for the first respondent
Mr S M L Grant instructed by A O Ellison appeared for the second respondent
Mr R A Stanton instructed by Goldrick Farrell & Mullan appeared for the third respondent