JA CROCKETT PTY LTD v COX SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, PRIESTLEY and POWELL JJA 6 June 1994, 26 October 1994 [1994] NSWCA 151 Workers Compensation — Repeated injuries to lumbar spine — Injuries both pre — and post — commencement of 1987 Act — How dealt with for purposes of claim under s66 — How dealt with for purposes of claim under s67. Workers Compensation Act 1987 Sch 6 Pt6 CL6. Clutha Ltd v Danswan Court of Appeal 5th April 1993 unreported. New South Wales Department of Technical and Further Education v Pitt Court of Appeal 11th June 1993. Mahoney JA I agree with Priestley JA and Powell JA that the Court should not override the decisions referred to by Powell JA. It was conceded that, if the Court was of that view, this appeal should be dismissed. I therefore agree with the orders proposed by Powell JA. Priestley JA The circumstances of this case and the relevant statutory and case law are set out in the reasons of Powell JA. As was conceded by counsel for the appellant, the appeal could not succeed unless this court were to overrule two of its recent decisions. I see no reason why those earlier decisions should be disturbed. I would dismiss the appeal with costs. Powell JA The Respondent, Mr Cox, who is now some 56 years of age, and who was, by occupation, a truck driver, was employed by the Appellant for a period of a little over 20 years between 1967 and June 1988. Although, for the greater part of that period of 20 years, Mr Cox's employment appears to have been incident free, in a period of a little over 3 1/2 years, between April 1984 and November 1987, Mr Cox was involved in a number of incidents in the course of his employment, each of which incidents appears progressively to have aggravated, or exacerbated, then existing degenerative changes in Mr Cox's lumbar spine until, following the incident in November 1987, the stage was reached when Mr Cox was rendered totally incapacitated. Of the incidents to which I have referred, four - those occurring in August 1984, March 1985, April 1985 and August 1985 - occurred before the repeal of the Workers' Compensation Act 1926 (to which I shall refer as "the 1926 Act") and its replacement by the Workers' Compensation Act 1987 (to which I shall refer as "the 1987 Act"). Following each such incident, Mr Cox received weekly compensation in respect of the periods of time for which lie was off work but - as the "Table of Maims" which formed part of s16 of the 1926 Act made no provision for payment of lump sum compensation in respect of permanent impairment of the back, neck or pelvis received no lump sum compensation in respect of the progressive deterioration of his lumbar spine which resulted from each of those injuries. For the moment, it is sufficient to record that, although, following his return to work after the injuries suffered in the incidents which occurred in August 1984, March 1985 and April 1985, Mr Cox appears to have 2 UNREPORTED JUDGMENTS been able to resume his normal duties, it would seem that, after his return to work in December 1985 following the injury sustained in the incident which occurred in August 1985, Mr Cox appears to have been able only to undertake light duties, in consequence of which he suffered a diminution in his weekly earnings. Although the matter is not entirely clear, it would seem - in the light of the Award made in favour of Mr Cox by Commissioner Hopkins in November 1989 - that although, at some time prior to November 1987, Mr Cox was obliged to return to his former duties, he was, in reality, still only fit to perform light duties. In November 1987, Mr Cox, having delivered a load of about 150 sheets of Gyprock which he had unloaded at the customer's premises, and having driven back to the Appellant's depot, twisted his back while he was in the act of alighting from his truck. When he did so, he felt a sudden severe pain in his right thigh and calf and a cramping sensation, or a feeling of knotting of the muscles, in the area of the right buttock. Although, in the period which followed prior to the commencement of the proceedings which were disposed of by Commissioner Hopkins in November 1989 and the commencement of these proceedings which came before Burke CCJ in December 1991, the Respondent underwent a variety of forms of treatment, and, in addition, appears as if he might have received some form of rehabilitation training, he had not been able to return to work by the time the proceedings came before Burke CCJ in December 1991. Although the medical reports are not entirely clear, and, in some respects, are not consistent with each other, the general impression which one obtains is that, while the Respondent's underlying condition - lumbar spondylosis and facet-joint arthritis - was "constitutional" in - origin, nonetheless, the onset of, or exacerbation and acceleration of the inevitable progress of, that condition was in all probability caused, or at least significantly contributed to, by a variety of incidents - including those which led to the Respondent receiving compensation - over the period of 20 years, or thereabouts, during which he worked for the Appellant, and that this was in no small measure due to the fact that the Respondent's work involved him in long distance driving and, as well, heavy lifting and unloading an 8 ton truck. The pattern of the development of the Respondent's condition is sufficiently indicated when it is recorded that while, when a CT scan was taken in 1985, there were revealed moderate osteoarthritic changes, commensurate with his age, but with little abnormality to be seen, a CT scan of the Respondent's lumbo-sacral region performed after the incident in November 1987 revealed postero-lateral herniation of the L5/S1 disc with compression of the S1 right nerve root, annular bulging of L2/3, L3/4 and L4/5, degenerative changes in the posterior apophyseal joints of the L5/S1 and L4/S5 levels, with narrowing of the lateral recessive of the spinal canal. In addition, a discogram performed in March 1988 revealed serious pathology at the L3/4 and L4/5 levels. Although, as I have earlier recorded, the medical reports were not entirely clear and not consistent with each other, all seem, by December 1991, to have been of the view that there was little, if any, prospect of the Respondent ever being able to return to any form of paid work with which lie was familiar, that the Respondent was an unlikely candidate for formal retraining and resettlement and that, although surgical intervention by way of laminectomy and discectomy might be required in the future, such surgery would be unlikely to do more than give a little relief from low back pain and no patient undertaking such surgery would ever be permitted to undertake strenuous labouring work. URJ JA CROCKETT PTY LTD v COX (Powell JA) 3 As [have previously recorded, the Respondent's employment by the Appellant was terminated in June 1988. Although the date on which this was done is not revealed by the material before the Court, it seems clear enough that, at some time thereafter, and during 1988, the Respondent filed an Application seeking payment of weekly compensation, in respect of the periods when he was Oil light duties, upon the basis of partial incapacity pursuant to the provisions of s11(1) of the 1926 Act, and, in respect of the period from 15th June 1988 and continuing, upon the ground of total incapacity pursuant to the provisions of s37 of the 1987 Act. That Application, as I have previously indicated, was dealt with by Commissioner Hopkins in November 1989, at which time the Commissioner made an Award, pursuant to s11(1) of the 1926 Act, 'in favour of the Respondent for an amount at the rate of $75.00 a week from 2nd December 1985 to 30th June 1986: $82.00 a week from Ist July 1986 to 30th June 1987; $50.00 a week from Ist July 1987 to 9th November 1987; and an Award, pursuant to s37 of the 1987 Act, in favour of the Respondent at the rate of $165.70 a week from 15th June 1988 to date and continuing as adjusted, together with s60 expenses, and with the Appellant to pay the Respondent's costs. At some time during the following year, there was filed on behalf of the Respondent an Application for Determination in the present proceedings. The material before the Court does not reveal the content of that Application since it was replaced by a proposed Amended Application for Determination, apparently filed in July 1991, in which Application the "particulars of compensation claimed" were recorded as follows: "(b) s66 lump sum $49,380.00 in respect of 50 per cent permanent impairment of the low back; (c) s67 lump sum in respect to pain and suffering $41,150.00; (d) The Applicant claims interest at the rate of 17 per cent from 10.11.87." It being accepted that - although the application of those principles to the facts of this case mid to other cases involving like circumstances is in dispute - it is by reference to the provisions of the 1987 Act, as they were at the date of the accident, that the Respondent's claim is to be determined, it is convenient, here, to pause for the purpose of recording what are the relevant provisions. They are as follows: "61(1) In this Division 'lost' in relation to a thing means (a) the loss of that thing; or (b) the permanent loss of the use, or of the efficient use, of that thing. (2) in this Division, a reference to a loss mentioned in the Table to this Division, includes a reference to (a) the permanent impairment of the back, neck of pelvis or any other permanent impairment added to the Table; and (b) severe facial disfigurement. 66(1) A worker who has suffered the loss of a thing mentioned in the Table to this Division as the result of an injury is entitled to receive from the worker's employer by way of compensation for the loss, in addition to any other compensation under this Act, the amount equal to the percentage of $80,000.00 set out opposite to that loss in that Table. 4 UNREPORTED JUDGMENTS (3) Where by the operation of Division 6 the amount of $80,000.00 is adjusted, the compensation payable under this section shall be calculated by reference to the requisite percentage of the amount in force at the date of injury. 67(1) A worker who has suffered a loss mentioned in the Table to this Division 5 (or two or more of any such losses as a result of the same injury) is entitled to receive from the worker's employer by way of compensation for pain and suffering resulting from the loss or all of those losses, in addition to any other compensation under this Act, an amount not exceeding $40,000.00. (2) This section does not apply if the compensation paid or payable under s66 10 for the loss or all those losses is less than 10 per cent of the maximum amount from time to time referred to in that section. (3) The maximum amount of compensation payable under this section is payable only in a most extreme case and the amount payable in any other case shall be reasonably proportionate to that maximum amount having regard to the 15 degree and duration of pain and suffering and the severity of the loss or losses. (6) Where by the operation of Division 6 the amount of $40,000.00 is adjusted, the compensation payable tinder this section shall be calculated by reference to the amount in force at the date of injury. 20 easesseesseeseenseesees 68(1) If a loss suffered by a worker consists of the loss of a proportion (but not all) of a thing mentioned in the Table to this Division, a percentage of the compensation payable for the total loss of the thing equal to the percentage lost by the worker is payable as compensation under s66. COMPENSATION FOR PERMANENT INJURIES Percentage of maximum amount payable Nature of injury Permanent impairment of back, neck, pelvis - Permanent impairment of the back 0-60 NOTES: 35 (a) Where a range of percentages is provided by the Table, the maximum percentage is payable only in a most extreme case and the percentage payable in any other case shall be reasonably proportionate to that maximum percentage having regard to the severity of the matter. The amount payable in any particular case shall, in default of agreement, be determined in accordance with this Act by 40 a commissioner. (g) In the case of the impairment of the back, neck or pelvis, compensation is payable only in respect of the degree of permanent impairment suffered as a result of the injury concerned and as if any impairment existing before that injury 45 did not exist. " (Division 6 of Pt3 of the 1987 Act provides for the indexation of the amounts of benefits - including those provided for in the s66, s67 - at 6 monthly intervals - the adjustment dates being 1st April and 1st October in each year - by reference to the formula set out in s80. As at 10th November 1987, the maximum sums 50 provided for in s66, s67 had, by virtue of the operation of the indexation provisions, risen to $82,300.00 and $41, 150.00 respectively) URJ JA CROCKETT PTY LTD v COX (Powell JA) 5 Pt6 of Schedule 6 - Savings, Transitional and Other Provisions - of the 1987 Act contained the following (inter alia) provisions: "Pto PROVISIONS RELATING TO COMPENSATION FOR NON-ECONOMIC LOSS (TABLE OF MAIMS) Act applies irrespective of date of injury 1. Subject to this Schedule, Division 4 of Pt3 of this Act applies whether the injury was received before or after the commencement of that Division. Pain and suffering - does not apply to existing injuries. 2. CL1 does not apply to s67 of this Act (Compensation for pain and suffering) and that section applies only to pain and suffering in respect of injuries received after the commencement of Division 4 of Pt3 of this Act. Compensation for loss (except occupational diseases) payable under former Act existing injury 4. The amount of compensation payable to a worker who has suffered a loss of a thing mentioned in the Table to Division 4 of Pt3 of this Act (not being an occupational disease within the meaning of s71 of this Act) shall be determined in accordance with s16 of the former Act instead of Division 4 of Pt3 of this Act if the loss resulted from an injury received before the commencement of that Division. Compensation not payable in respect of new item if it resulted from existing injury. 5. Compensation is not payable to a worker who has suffered a loss of impairment of a thing mentioned in the Table to Division 4 of Pt3 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 s16 of the former Act. Interpretation 6. If a loss mentioned in the Table to Division 4 of Pt3 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 purposes of this Part and this Schedule, be treated as having resulted from the injury received after that commencement." (Division 4 of Pt3 of the 1987 Act is that part of the 1987 Act which deals with compensation for non-economic loss and includes s65, s66, s67 and the Table to which I have earlier made reference.) Although, in my view, it does not affect the outcome of this Appeal, it is perhaps as well to record that both the Workers' Compensation Legislation (Amendment) Act 1994 ("the Amendment Act') and the Workers' Compensation Legislation (Miscellaneous Amendments) Act 1994 ("the Miscellaneous Amendments Act") have made a number of which amendments appear to have been amendments to the 1987 Act I intended to overcome, in relation to proceedings which had not been commenced at the time of the coming into operation of those Acts, some, at least, of the problems to which factual situations such as are involved in the present proceedings were thought to give rise. However, while, for the most part, those amendments thus have had only a prospective operation, two of the amendments might be noted, they being: 1. Schedule 2(3) of the Miscellaneous Amendments Act provided: "After s65(3), insert: 6 UNREPORTED JUDGMENTS (4) For the avoidance of doubt the interpretation provisions following the Table to this Division form part of the Table and apply to the interpretation of the losses mentioned in the Table. This subsection is taken to have applied from the commencement of this Division to; 2. Schedule 2(18) of the Miscellaneous Amendments Act provided (inter alia) as follows: "(d) After CL6 of Pt6, insert: INTERPRETATION OF 'TABLE OF DISABILITIES' 7(1) The amendments to Division 4 of Pt3 of this Act made by Schedule 2(3)-(5) to the Workers' Compensation Legislation (Miscellaneous Amendments) Act 1994 are made for the purpose of avoiding doubt, and accordingly that Division is taken to have been so amended from the commencement of this Act. However, to return to the narrative: the Respondent's Application appears to have come on for hearing before Burke CCJ on 14th August 1991, when evidence was tendered on behalf of both the Respondent and the Appellant and submissions made - and perhaps even completed - on behalf of one, or other, or both, of the parties. The only oral evidence which was tendered was that of the Respondent and of Dr Chapman, a specialist orthopaedic surgeon who gave evidence on behalf of the Appellant. In addition to that oral evidence, there were tendered a Medical Panel Certificate - which certificate recorded the assessment of the Medical Panel, as at 19th February 1990, that the then permanent impairment of the Respondent's back was 50 per cent of the total loss thereof - and reports by a number of medical practitioners who had either treated, or examined, the Respondent over the years from as far back as 1985. As is not uncommon in such cases, there was a degree of variance between the opinions of the various medical practitioners, as indicated by the fact that Dr Neild - who appears to be a specialist surgeon - in December 1988 assessed the Respondent's condition as involving a 25% whole body impairment - an assessment which Burke CCJ seems to have regarded as not being inconsistent with the view of the Medical Panel - while Dr Chapman, in July 1991, was of the view that the Respondent had but a 25 per cent permanent impairment of the back. Although the medical evidence did not, in terms, deal with the percentage impairment of the Respondent's back prior to the incident in November 1987, such evidence as there was, coupled with the evidence as to the extent to which prior, to that time the Respondent had been able to carry out his duties, led Burke CCJ to find, on the balance of probabilities, that about one-half of the accepted permanent impairment to the Respondent's back resulted from the incidents occurring prior to, and the other half resulted from the incident occurring in, November 1987. Although the material which was before the Court on the hearing of the Appeal does not record in any detail the submissions which were advanced on behalf of the Appellant, the form and the content of Burke CCJ's Judgment coupled with the submissions which have been advanced on behalf of the Appellant on the hearing of the Appeal would seem to indicate that they were as follows: 1. having regard to the provisions of Pt6 of Schedule 6 of the 1987 Act, the Respondent was, for the purposes of s66 of the 1987 Act to be regarded as having sustained, not a 50% impairment, but, rather, only a 25 per cent impairment, of the use of URJ JA CROCKETT PTY LTD v COX (Powell JA) 7 his back; 2. that being so: (a) if the principle in Rodios v Trefle! ("Rodios") applied, the relevant proportion between the Respondent's impairment and a total impairment of the back was 1:3; (b) if, however, by reason of the terms of Note (g) to the Table, the principle in Rodios was to be regarded as no longer having any room for operation in this area of the law, the appropriate proportion, for the purposes of s66 of the 1987 Act, between the Respondent's impairment and a total loss of use of the back was 1:4. When lie came to deal with these submissions, Burke CCJ concluded, in this respect, as follows: "... It appears to me that this clause" (CL6 of Pt6 of Schedule 6) "requires that this Court when applying the earlier provisions of the Schedule, will regard the references to injuries before the enactment of the 1987 Act, or after it, in accordance with the terms of CL6, such that, where there are multiple injuries both before and after the commencement then, for the purposes of determining an entitlement under Division 4 of Pt3, all injuries. will be effectively regarded as occurring after the commencement of the 1987 Act. In effect, it makes provision for 'deeming' pre-1987 injuries to be post-1987 Act injuries. Therefore it follows, that when applying CL4 and CLS - having regard to the impact of CL6 - in a case such as this, the court is required to regard all the relevant injuries as occurring after the commencement of the 1987 Act and therefore not falling within the exclusory provisions of those clauses. In other words, the exclusions in CL4 and CL5 only operate when all the injuries concerned occurred prior to the enactment of the 1987 Act. IMPAIRMENT COMPENSIBLE UNDER 1987 ACT On that view of the transitional provisions I am of the view that the worker is entitled under s66 to the compensation therein provided for impairment of the back as if the totality of such impairment had resulted from injury after the commencement of that provision, there being no suggestion of any impairment prior to injury." Then, after dealing with "s67 entitlement", "Assessment of s66 entitlement', "Assessment of s67 entitlement" and "Interest", Burke CCJ concluded: Findings Therefore, I find: 1. In August, 19841 on 12/3/85, 1/4/85, 27/8/85 and 10/11/87 the worker received injury to his back. As the result of such injuries the worker suffers a 50% permanent impairment of the back. 3. In proportion to a most extreme case such impairment is a ratio of 1:2. 4. As a result of the injury of 10/11/87 the worker suffered at 25 per cent permanent impairment of the back. 5. As a result of such loss the worker experienced and will experience pain and suffering and such is proportionate to a most extreme case in the ratio of 1:4. Orders Thereby order and award that the respondent pay the applicant: 1. A lump sum pursuant to s66 of $24,690 in respect of permanent impairment of the back. 2. A lump sum pursuant to s67 of $10,287.50 in respect of pain and suffering resulting from the loss occasioned by injury on 10/1187. 3. Interest on the said lump sums at the rate of 17% pa in respect of the period 14/8/90 to 14/8/91, ie $5,947. 1. [1937] WCR 285 8 UNREPORTED JUDGMENTS 4. Costs Pt29 including certificate for Advice on Evidence." Thereafter, a formal Award giving effect to the "Orders" set out by Burke CCJ was settled by the Registrar and entered in the Court records. Being dissatisfied with that result, the Appellant, on 16th December 1991, filed a Notice of Appeal in which it took the following grounds of Appeal: "1. That His Honour erred in law in finding that the Respondent/Appellant liable (sic) to compensate the Applicant/Respondent for a permanent impairment of the spine amounting to 50% thereof pursuant to the Table of Maims pursuant to s66 of the Workers' Compensation Act, 1987. 2. That His Honour failed to properly consider and interpret note (g) to the Table of Maims pursuant to s66 of the Workers' Compensation Act, 1987. 3. That His Honour erred in law and failed to properly consider s67 of the Workers' Compensation Act, 1987 in assessing the Compensation which the Respondent/Appellant was liable to pay to the Applicant/Respondent. 4. That in consequence of His Honour failing to properly interpret the matters contained in CL1, CL2 and CL3 above has erred (sic) in his finding that the Respondent/Appellant was liable to pay the Applicant/Respondent the sum of $5,947.00 in interest from 14 August, 1990 to 14 August, 1991 pursuant to s19 of the Workers' Compensation Act, 1987. However, in the Written Submissions which were filed on behalf of the Appellant prior to the hearing of the Appeal, it was recorded that the Appellant did not press grounds 3 and 4 except to the extent that, if the s66 Award were reduced, then the amount of interest of $5,947.00 should be reduced accordingly. When the matter came on for hearing Mr HG Shore appeared for the Appellant, as he had on the hearing before Burke CCJ, while Mr PR Capelin QC appeared for the Respondent with Mr JT Kearney, who had also appeared for the Respondent on the hearing before Burke CCJ. The submissions which Mr Shore, on the hearing of the Appeal, sought to advance on behalf of the Appellant are conveniently summarised in the following extract from the Written Submissions which he had earlier prepared on behalf of the Appellant: "AS TO GROUND 1 1. Burke J erred in awarding 50 per cent of the maximum entitlement pursuant to s66 because His Honour found in proportion to a most extreme case, a ratio of 1:2. Such proportionality was based on an impairment of the back of 50 per cent. Such impairment was partly (25 per cent as found by His Honour) a result of the pre-1987 injuries, which part should have been ignored pursuant to note (g) to the Table pursuant to s66 of the Act. AS TO GROUND 2 2. His Honour found: (a) The Respondent worker had a 50 per cent impairment of the back as a result of the 5 injuries (finding 1, AB 120W-Y); (b) As a result of the injury of 10 November 1987, the Respondent worker suffered a 25 per cent permanent impairment of the back (AB 121F). Therefore, prior to the injury of 10 November 1987, the Respondent worker had 75 per cent efficiency of his back. 3. If Rodios v Trefle [1937] WCR 285 applied the result would be a necessary finding of one third or a finding of proportionality of 1:3. If the principle of Rodios v Trefle (supra) did not survive the introduction of note (g) to the Table the result should have been 25 per cent or a finding of proportionality of 1:4. URJ JA CROCKETT PTY LTD v COX (Powell JA) 9 4. The ratio of the decision in New South Wales Department of Technical and Further Education v Pitt - unreported - Court of Appeal - 11 June 1993 is that to deduct any percentage of impairment from New Act injury from a pre-existing impairment is contrary to note (g) of the Table. 5. The observations made in Pitt regarding CL6 of Pt6 of Schedule 6 of the Workers' Compensation Act 1987 were expressly made as being subject to doubt. They were also obiter dicta. 6. In any event the Appellant seeks leave should the Court deem it appropriate to argue that Pitt was wrongly decided: (a) As to the construction of CL6 of Pt6 of Schedule 6; and (b) As to the construction of note (g) to the Table." In order that one night more readily understand the significance, for the present case, of the decision of the Court in New South Wales Department of Technical and Further Education v Pitt? ("Pitt"), it is convenient to set out the relevant part of the Judgment of Cripps JA, with whom Priestley JA - subject only to two observations which I are not presently relevant - and Meagher JA agreed. hi his Judgment, Cripps JA, after referring to the argument, sought to be raised in that case, based upon the decision in Rodios3, and having set out the facts in Rodios and, as well, in King v Hayward? ("Hayward") where the principle in Rodios was applied, continued: "CL6 of Pt6 in Schedule 6 to the Workers Compensation Act relevantly provides: 'INTERPRETATION 6. If a loss mentioned in the Table to Division 4 of Pt3 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 purposes 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.' Schedule 6 is concerned with savings transitional and other provisions. Pt6 to Schedule 6 is concerned with 'Provisions Relating to Compensation for Non-Economic Loss (Table of Maims)'. Claims under s67 for pain and suffering resulting from injuries prior to the commencement of the 1987 Act are excluded from its operation (CL2). Also excluded are claims for losses with respect to occupational diseases if compensation has already been received for those losses under the former Act (CL3). CL4 provides also that if losses resulting from an injury are received before the commencement of the 1987 legislation, the amount of compensation is to be determined in accordance with s16 of the 1926 Act. Pt6 further provides that compensation is not payable to a worker suffering a loss or impairment of a thing mentioned in the Table if it resulted from an injury before the commencement of the Division and is not a loss or impairment for which compensation was payable under s16 of the form Act (CLS). It was submitted by Mr Sharpe, on behalf of the appellant, that CL6 of Pt6 of Schedule 6 is no more than a guide to interpretation and that it has relevance for the purpose of determining the amount of compensation payable only. He submits that to interpret it otherwise would be to contradict CLS which, as I have said, provides that compensation is not payable to a worker who has suffered a 2. Court of Appeal 11th June 1993 (as yet unreported) 3. (supra) 4. (1943) 67 CLR 488 10 UNREPORTED JUDGMENTS loss or impairment if that loss or impairment resulted from an injury received before the commencement of the 1987 Act or is not a loss or impairment for which compensation was payable under s16 of the 1926 Act. I do not think Mr Sharpe's argument can be accepted. CL4 provides that the amount of compensation payable to a worker who has suffered a loss shall be determined in accordance with s16 of the former Act 'if the loss resulted from an injury received before the commencement of that Division'. Under the 1987 Act, injured workers were to lose common law rights. However, it was also intended to increase benefits under the workers compensation legislation. In the present case, as Manser CCJ correctly observed, the provisions in question preclude any liability in the first employer for permanent impairment of Mr Pitt's back. This is because the injury with Metal Manufacturers Ltd occurred ten years before the passing of the Workers Compensation Act 1987 and under the 1926 Act he was not entitled to a lump sum for impairment. In my opinion, in the assumed case CL6 would require, for the purpose of determining the compensation payable, the loss suffered by the worker be treated as having resulted from the injury received after the commencement of the 1987 Act. However, if there be doubt about the application of CL6 of Pt6 of Schedule 6 to the Act with respect to losses generally there can, I think, be no doubt as to what the legislation provides with respect to impairment of backs. Note (g) to the Table in s73 provides: 'In the case of the impairment of the back, neck or pelvis, compensation is payable only in respect of the degree of permanent impairment suffered as a result of the injury concerned and as if any impairment existing before that injury did not exist. * It deals exclusively with back, neck or pelvis impairment and provides that compensation in these cases is payable 'as if any impairment existing before that injury did not exist'. That would seem to me to make it clear that the Court is to deal with the matter upon the basis that there has been no previous impairment and that the Court is directed to the consequences of the injury the subject of the claim. My view in this regard is strengthened by s71 of the Act. S71 deals with occupational diseases and makes it clear that with respect to such injuries as boilermaker's deafness, compensation is payable only for the 'further loss' - a clear statement that compensation is paid for the progressive losses. S71 is confined in its operation to 'occupational diseases'. It does not apply to the type of case considered by the High Court in Hayward. If the appellant's submission be accepted, the Compensation Court would be required to determine the impairment of back resulting from the injury after the commencement of the 1987 Act and the impairment of the back resulting from other cause (in the present case an injury before the commencement of 1987 Act) and deduct the second from the first. That is expressly what Note (g) forbids. To accede to the appellant's submission would be to oblige the Compensation Court to do what the legislation says it cannot do, viz treat the worker's previous impairment as if it did exist." In the light of what Cripps JA wrote in his Judgment, it is, I think, clear that, unless his observations as to the proper construction of CL6 of Pt6 of Schedule 6 are to be regarded as obiter dicta and, thus, as able to be set to one side by this Court, or unless because - so the submission runs - His Honour's observations are to be regarded as having been made subject to doubt - and for a number of other reasons that were advanced on the hearing - this Court were to give leave to re-argue the question determined by the Court in Pitt, that decision would seem URJ JA CROCKETT PTY LTD v COX (Powell JA) 11 to place an insuperable obstacle in the way of the Appellant's prospects of success on this Appeal. This being so, it is necessary to turn,, first, to consider the status of the observations made by Cripps JA in Pitt, and, if those observations are not to be regarded as obiter, then, to consider the question whether leave to re-argue the matter ought to be allowed. Tam unable to accept that the observations made by Cripps JA in his Judgment in Pitt ought to be regarded as obiter. Pitt was a case in which the applicant worker sought the payment of lump sum compensation pursuant to s66 of the Act and also lump sum compensation under s67 of the Act for his pain and suffering in respect of (inter alia) what was alleged to be the total permanent impairment of his back. In respect of this claim, the Respondent employer sought to establish that the whole of the injuries leading to the worker's impairment had been sustained prior to the commencement of his employment with the Respondent employer, and, alternatively, that, if that were not so, substantially the whole - of the impairment which the Applicant worker was later found to have had been sustained prior to the commencement of the 1987 Act and the occurrence of the incident which led to the Applicant worker ultimately being Tendered totally incapacitated. Manser CCJ having rejected the submission the whole of the impairment had been sustained prior to the commencement of the provisions of the 1987, Act and having awarded the Applicant worker the maximum sum allowable in respect of impairment of the back, the Respondent employer appealed, the grounds of appeal, so far as is relevant, including the following: "5. His.Honour erred in finding with respect to the impairment of the Respondent's back that he was a most extreme case and therefore entitled to the maximum amount prescribed for impairment to the back pursuant to s66 of the Workers Compensation Act 1987. 6. His Honour erred in failing to take into account when determining the Respondent's entitlement with respect to impairment of the back the extent of pre-existing permanent impairment which he found to have existed at the time of the injuries on 25 January 1989. 7. His Honour erred in failing to determine the extent of pre-existing impairment of the back and taking such finding into account when assessing the Respondent's entitlement pursuant to s66 of the Workers Compensation Act 1987. These being (inter alia) the grounds of appeal which were raised, it Is clear, in my view, that it became necessary for the Court, when dealing with the Appeal, to consider how, in such a case, the provisions of Pt6 of Schedule 6 of the 1987 Act, and Note (g) to the Table were to be construed and applied to a case involving a claim for impairment of the back caused by injury sustained both before, and after, the coming into operations of the provisions of the 1987 Act. Although - since the Court permitted Mr Shore to advance his arguments as if leave to do so had been granted - it is, in a sense a little artificial, I turn next to consider whether Mr Shore ought now to be regarded as having been given leave to re-argue the correctness of the decision of the Court in Pitt. Although the application which has been made sought only to re-argue the correctness of the decision of the Court in Pitt, it is to be observed that the decision of Pitt does not stand alone; indeed, it was preceded by the earlier decision of the Court in Clutha Ltd v DanswanS ("Danswan'),in which case the Court was also called upon to consider the operation of the relevant provisions 5. Court of Appeal Sth April 1993 (as yet unreported) 12 UNREPORTED JUDGMENTS of Schedule 6 to the 1987 Act. In that case, in which a claim was made for lump sum compensation in respect of the permanent loss of a leg at, or above, the knee, that loss being said to have resulted from both a pre-1987, and a post-1987, injury the Court (Kirby P, Meagher and Cripps JJA) held that, for the purposes of considering a claim for lump sum compensation, the loss was to be regarded as having resulted from post-1987 injury. Ill this respect it is to be noted that, in the course of his Judgment, Kirby P wrote (inter alia): "Assuming, however, that the proper interpretation of what Moroney CCJ decided was that the worker had a loss of the kind mentioned in the Table to the 1987 Act and that this resulted both from a injury received before and after the commencement of that Act, there is no doubt that CL6 of Pt6 of Schedule 6 to the 1987 Act deems that loss to have resulted from the injury received after the commencement of the 1987 Act in its entirety. while Cripps JA - with whose Judgment Kirby P generally, and Meagher J without reservation, agreed - wrote: "Tn my opinion, CL6 is not ambiguous. Read literally it provides that where, as in the present case, a worker has suffered a 15 per cent loss as the result of an injury before and after the 1987 Act, for the purposes of determining the amount of compensation payable, the loss is to be treated as having resulted from the injury (the 1990 injury) received after that commencement. To give the subsection the interpretation contended for by Mr O'Connor QC necessitates reading into the section the words to the effect 'subject to deduction of loss resulting from pre-1987 injury'. To add those words alters the whole meaning of the clause. But even if there were any ambiguity about the matter, I am not persuaded that recourse to what is said to be a purposive approach would yield a different result. Under the 1926 Act a number of cases established the position that lump sum compensation for successive injuries to the one member was payable, calculated in each case, by reference to the effect of the injury to that member as it was at the time of the injury the subject of the claim (see Bennett v General Motors Holdens Ltd (1940 40 SR (NSW) 117, King v Hayward (1943) 67 CLR 588 and Rodios v Trefle (1937) 54 WN (NSW) 197). In Bennett it was held that where a worker had suffered successive losses and had been paid compensation for the first loss, he was nonetheless entitled to compensation with respect to a second loss being compensation calculated by reference to the Table Amount 'however defective the part may have been before the injury' (at 124). At 125 Jordan CJ said: 'Thus if a worker had lost a finger in early infancy or whilst on a holiday, and subsequently lost his defective hand as the result of a compensatable injury, he would be entitled to receive 600 pounds, the whole sum allowed by the table for the loss of a hand. If he permanently lost half the use of his defective hand, he would be entitled to half that sum." The above mentioned cases are, in my opinion, applicable with respect to claims for losses under the 1987 Act except, of course, where the legislature has provided to the contrary. By way of illustration, s71 of the 1987 Act provides that where compensation is paid or becomes payable under the Act (or under s16 of the former Act) for a loss being the loss of proportion (but not all of it) of a thing and an occupational disease and the worker suffers a further loss of that thing: "compensation is payable under this Division for the further loss, but only the proportion of that further loss of the thing shall be taken into account in calculating the compensation payable.' With respect to the new category of loss, Note (g) to the table provides that: URJ JA CROCKETT PTY LTD v COX (Powell JA) 13 'In the case of the impairment of the back, neck or pelvis, compensation is payable only in respect of the degree of permanent impairment suffered as a result of the injury concerned and as if any impairment existing before that injury did not exist'. In my opinion, Moroney CCJ was correct, on the findings made, to conclude that Mr Danswan was entitled to compensation calculated by reference to a 15 per cent loss of efficient use of the left leg at or above the knee. If that is an unintended result, it is for the legislature and not the Court to correct." This being so, the question, in reality, is whether the Court ought now to review two considered decisions, each to the same effect, so recently given. The principles which this Court applies in determining whether or not it ought to review its own earlier decisions are, I believe, clear and have been long established. They were recently discussed in - Clutha Developments Pty Ltd v Barry®. In the course of his Judgment - in which Judgment Samuels and Priestley JJA and Hope A-JA concurred - Gleeson CJ said ((supra) at 99): "This Court is not bound by its own decisions and makes no claim to infallibility. It has the power to overrule Fraser Credits. The Court is, however, guided in the exercise of all its powers, including its power to overrule earlier decisions, by certain principles. One such principle is a principle of restraint embodied in the axiom stare decisis. As Brennan and Deane JJ observed, in Babaniaris v Lutony Fashions Pty Ltd (1987) 163 CLR 1 at 29, citing Broom's Legal Maxims, that axiom attributes authority to judicial precedents in order 'to keep the scale of justice steady, and not liable to waver with every new judge's opinion'. Another equally important principle, however, is that the Court should give effect to the intention of Parliament. If it concludes that an earlier decision construing a statute is erroneous then the corollary is that to apply the earlier decision is to defeat the intention of Parliament. Clearly, there is a tension between these two principles. Neither can be disregarded. No one suggests that every time this Court is confronted with a question of statutory construction it will resolve it for itself unconstrained by its earlier decisions. If it were so, this Court might overrule Fraser Credits and a differently constituted Court next year might prefer the decision in Fraser Credits to the decision of this Court, and give effect to that preference by holding appeals such as these to be incompetent. On the other hand, no one suggests that a slavish adherence to precedent could be allowed to override a conviction that an earlier decision, especially a decision as to the meaning of a statute, was wrong." and later, (supra) at 100: "However, making due allowance for the need for retaining flexibility and avoiding intransigence, it is generally accepted that before it is appropriate for an appellate court to overrule one of its own earlier decisions it must entertains strong conviction as to the incorrectness of the earlier decision. Where the point concerns the meaning of unclear statutory language, and the view expressed in the earlier decisions is well and truly open, a mere preference for a different view will not suffice." In the present case, far from entertaining a strong conviction as to the incorrectness of this Court's decisions in Danswan and Pitt, I am of the view that each was correctly decided. This being so, I would for my own part, not be prepared to accede to the application which was made by Mr Shore to review the decision in Pitt. 6. (1989) 18 NSWLR 86 14 UNREPORTED JUDGMENTS As that conclusion in my view, is sufficient effectively to determine the fate of this Appeal, Orders which I would propose are: 1. ORDER that the Appeal be dismissed. 2. ORDER that the Appellant pay the Respondent's costs of the Appeal. Counsel for the Appellant: HG Shore Instructed by: Sparke Helmore and Withycombe Counsel for the Respondent: PR Capelin QC and JT Kearney Instructed by: Moroney Rutter and Mantach