New South Wales Consolidated Acts

WORKERS COMPENSATION ACT 1987 - SECT 22A

22A Further provisions concerning apportionment of liability under section 22

(1) The apportionment of liability under section 22 is:

(a) in the case of the apportionment of liability between employers-to be on the basis of the relative length of the worker’s employment with each employer concerned (not including any period of employment after the last relevant injury was received), or on such other basis as the Commission considers just and equitable in the special circumstances of the case, and

(b) in the case of the apportionment of liability between insurers of the same employer-to be on the basis of the relative length of the employer’s period of insurance with each insurer concerned during which the worker concerned was employed by the employer (not including any period of insurance after the last relevant injury was received), or on such other basis as the Commission considers just and equitable in the special circumstances of the case.

(2) If a worker’s partial incapacity for work results from more than one injury to the worker and consequently more than one person would be liable to pay compensation in respect of that incapacity were the worker not entitled to compensation under section 38 of this Act or section 11 (2) of the former Act (as applied by Schedule 6 to this Act), those persons are nevertheless liable for the compensation so payable and accordingly that liability may be apportioned under section 22.

(3) Liability may be apportioned under section 22 even if the liability has been discharged.

(4) When liability to pay compensation is apportioned under section 22 between 2 or more persons, the Commission may order that the compensation is payable to the worker by one of those persons and that the other persons are to pay (by way of contribution) their apportioned share of that compensation to that person.

(5) The person ordered under subsection (4) to pay compensation to the worker is to be:

(a) in the case of apportionment between employers-the employer who most recently employed the worker, or such other of the employers as the Commission considers reasonable in the special circumstances of the case, and

(b) in the case of apportionment between insurers-the insurer of the employer at the time of the last injury, or such other of the insurers as the Commission considers reasonable in the special circumstances of the case.

(6) An order is not to be made under subsection (4) if the parties concerned have agreed as to the payment by one of them of the compensation concerned.

(7) In this section a reference to an insurer includes a reference to a self-insurer and a reference to a period of insurance includes a reference to a period of self-insurance. A liability in respect of a claim under Division 6 of Part 4 is for the purposes of this section taken to be a liability of the insurer of the employer concerned during the period that is relevant to that liability.

(8) In a case to which section 22 applies, if all of the insurers concerned (being either insurers of the same employer or of the different employers concerned) are insurers 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) the compensation is (despite subsection (5)) payable by the last insurer or the last employer (as relevant to the case), with no apportionment of liability under section 22, and

(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 liability had been apportioned under section 22 (without the need for a determination of, or agreement as to, that apportionment).

(9) The operation of section 22 is not to be limited because of the fact that it provides for liability to be apportioned rather than providing for payment of contributions.