GLEBE ROWING CLUB PTY LTD v PRIDE and ANOR [1995] NSWCA 178

GLEBE ROWING CLUB PTY LTD v PRIDE

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, MEAGHER JJA and ROLFE AJA 18 August 1995, 6 December 1995

[1995] NSWCA 178

S22, s66 AND s67 WORKERS COMPENSATION ACT 1967 — IMPAIRMENT — INJURY

IMPAIRMENT — INJURY — worker suffers injury to back — off work for three months — worker then commences work with different employer — sustains further injury to back — trial judge finds permanent back impairment at 22% of a most extreme case — and awards $13,000 — impairment caused by two distinct injuries so that each employer liable for half of this amount — also makes award for pain and suffering under s67 — first employer appeals only in respect of s67 award — Held: per Meagher JA and Rolfe AJA: trial judge erred in making award under s67 — worker suffered two distinct injuries that equally contributed to her impairment — therefore there is no loss from a single injury that was not less than 10% of maximum amount referred to in s66(1) — per Priestley JA dissenting: although worker sustained two distinct injuries, the worker has only back condition and one permanent impairment of the back — worker therefore has only one "loss" — such loss sufficient to

qualify for award under s67 and apportionment under s22 — appellant's second argument, based on Note (g), also fails.

Priestley JA The materials and arguments relevant to the decision of this appeal are all set out in the reasons of Rolfe AJA which I have had the benefit of reading in draft.

In my view the trial judge arrived at the challenged conclusion by deciding: that at the time of commencement of the Compensation Court proceedings the worker was suffering one loss, being a permanent impairment of her back (see s65(2) of the Workers Compensation Act 1987 (the Act) and the Table following s73 (the Table)); that that one loss resulted from the two injuries received successively in the employ of the two employers; and that the liability for the loss under the Act should be apportioned equally between the two employers pursuant to s22.