BISHOPSGATE INSURANCE AUST LTD (IN LIQUIDATION) v BENSON and ORS [1995] NSWCA 46

BISHOPSGATE INSURANCE AUST LTD (IN LIQUIDATION) v BENSON and ORS [1995] NSWCA 46

Burke CCJ had no power to apportion employer's liability between insurers under s22 Workers Compensation Act 1987; the apportionment orders were invalid and must be set aside. The evidence did not support a finding that MMI(NSW) incurred liability in the period it was on risk, nor was there adequate examination of whether post-June 1987 employment aggravated the injuries for s66/s67 purposes. Those awards must be set aside and the questions remitted for reconsideration.

Parties
Appellant: Bishopsgate Insurance Aust Ltd (In Liquidation); First Respondent: John Alfred Benson; Employer: Comalco Aluminium Ltd; Second Respondent: MMI Workers' Compensation (NSW) Ltd; Third Respondent: QBE Insurance Ltd; Fifth Respondent: QBE Workers' Compensation (NSW) Ltd; Fourth Respondent: QBE Workers' Compensation (NSW) Ltd
Jurisdiction
Australia
Judgment Date
08 August 1995
Procedural Posture
Appeal / Court of Appeal Judgment
Outcome
appeal allowed; cross-appeals allowed; awards set aside in part and remitted
Legal Topics
Apportionment Between Insurers, Workplace Injury, Statutory Interpretation
Insurance Law Workers Compensation Apportionment Between Insurers Workplace Injury Statutory Interpretation

Case Brief

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Parties

Bishopsgate Insurance Aust Ltd (In Liquidation)

Appellant

John Alfred Benson

First Respondent

Comalco Aluminium Ltd

Employer

MMI Workers' Compensation (NSW) Ltd

Second Respondent

QBE Insurance Ltd

Third Respondent

QBE Workers' Compensation (NSW) Ltd

Fifth Respondent

QBE Workers' Compensation (NSW) Ltd

Fourth Respondent

Procedural Posture

Appeal / Court of Appeal Judgment

Legal Issues

  1. 1 Whether the court had power to apportion liability between insurers under the Workers Compensation Act 1987, s22
  2. 2 Whether there was evidence to support liability for injuries during period MMI(NSW) was on risk
  3. 3 Entitlement to awards under s66 and s67 of the Act

Ratio Decidendi

Burke CCJ had no power to apportion employer's liability between insurers under s22 Workers Compensation Act 1987; the apportionment orders were invalid and must be set aside. The evidence did not support a finding that MMI(NSW) incurred liability in the period it was on risk, nor was there adequate examination of whether post-June 1987 employment aggravated the injuries for s66/s67 purposes. Those awards must be set aside and the questions remitted for reconsideration.

Court Disposition

appeal allowed; cross-appeals allowed; awards set aside in part and remitted

Orders

  • The appeal by Bishopsgate is allowed
  • The cross-appeal by MMI Workers' Compensation (NSW) Ltd, QBE Insurance Ltd and QBE Workers' Compensation (NSW) Ltd are allowed