STATE RAIL AUTHORITY OF NEW SOUTH WALES v THEW [1995] NSWCA 449

STATE RAIL AUTHORITY OF NEW SOUTH WALES v THEW

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, MEAGHER and HANDLEY JJA 8 May 1995, 8 May 1995 [1995] NSWCA 449

WORKERS COMPENSATION ACT — AWARDS UNDER s66, s67 — DOUBLE AWARDS FACTS: Appellant appealed double award damages under s66, s67 of the Workers Compensation Act. HELD: (1) The authority of KB Hutcherson Pty Ltd v Correia (1995) 128 ALR 75 makes it clear that double awards cannot be sustained.

ORDERS

(1) Appeal allowed.

(2) Proceedings in respect of determination of s66 award of each of the respondent's legs remitted for further consideration by the Workers Compensation Court.

(3) Respondent to pay the appellants costs and to have a certificate under the Suitor's Fund Act.

Clarke JA I will ask Mr Justice Meagher to give the first judgment.

Meagher JA This is an appeal against an award made by his Honour Judge Manser on 19 April 1994 in favour of Mr Gary Thew, the worker, against the employer, State Rail Authority of New South Wales.

Mr Thew gave evidence he sustained injuries to his back in September 1991 at a time when he was employed by the State Rail Authority. The injury occurred whilst the worker was standing on the roof of a railway carriage on a hatch cover when the hatch cover slipped and he tried to recover the cover and in the process hurt his back. He had immediate pain in the lower back and later had referred pains in both legs. He was medically retired from the employer's service on 24 July 1992.

His Honour heard his application and made the following awards: Under s66, an award of $14,700 in respect of 20 percent loss of use of the applicant's left leg at or above the knee; $13,720 in respect of a 20 percent loss of use of the applicant's left leg below the knee; similar amounts - $14,700 and $13,720 - for 20 percent loss of use of the right leg both above and below the knee and $19,600 in respect of a permanent impairment to the applicant's back.