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. The decision of the High Court of Australia in KB Hutcherson Pty Ltd v Correia (1995) 128 ALR 75 makes it clear that the double awards in respect of each leg cannot be sustained. Mr Catsanos, counsel for the respondent worker, concedes that the only question then remaining is what order should be made, whether the entire award should be set aside or only those parts of it which are infected by error. In my view only those parts infected by error should be referred back to the Commission. In my view, therefore, the following orders should be made: 1. Appeal allowed. 2. Orders and awards in the Compensation Court set aside insofar as they relate to s66 Awards as to the legs but otherwise confirmed. As to costs we shall hear counsel in due course. 2 UNREPORTED JUDGMENTS Clarke JA: I agree with the orders proposed by Mr Justice Meagher. I would only add this: Counsel for the appellant referred the Court to that portion of s67 of the Workers Compensation Act 1987 which instructs the Court to have regard to the degree and duration of pain and severity of the loss or losses. Counsel submitted that, insofar as the assessment of the loss or losses referred to there, which is or are the loss or losses mentioned in the table in the division, that is the table detailing permanent loss, must involve a consideration of the degree of personal impairment an error in the assessment for permanent impairment must led to an error in the assessment of compensation of pain. That is because of the words at the end of s67 (3), severity of the loss or losses. Counsel does however concede that there is nothing in the judgment to indicate that his Honour erred in his assessment under that section and, for my part, in the absence of any such indication I do not see that as a matter of logic the way the trial judge dealt with the compensation for loss of use of the leg in any way impacted upon his Award under s67. Handley JA I agree with both my brethren. Clarke JA The appeal will be upheld. The order will be that the proceedings in relation to the claims under s66 in respect of each of the respondent's legs be remitted for further consideration by the Workers Compensation Court. The balance of the award will stand. The respondent is to pay the appellant's costs and is to have a certificate under the Suitors Fund Act. (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. Counsel for the appellant: B MORRIS Solicitors for the appellant: GILLIS DELANEY BROWN Counsel for the respondent: J CATSANOS Solicitors for the respondent: TAYLOR SCOTT