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. S22 and s65(3) both contemplate that one loss may result from more than one injury, so that I see nothing wrong with the trial judge's method, nor, so long as his factual findings were sound, with his conclusion. Did he make a mistake on the facts? The appellant, the first employer, argued, and both Meagher JA and Rolfe AJA accept, that because there were two injuries there were two losses. That is, the criticism made of Burke CCJ's fact finding (and the only criticism) is that he found one loss only, although on his own primary findings that there were two injuries, he had to find two losses. This criticism is logical so far as it goes, but does not deal with the whole of what is involved in Burke CCJ's reasoning. It is obvious that after the worker's first injury the loss she then suffered was different from the loss she came to suffer after the second injury. The second injury aggravated the consequences of the first. The further point however is that 2 UNREPORTED JUDGMENTS after the second injury the worker had one back condition; her problem was located at L4-5; she had one permanent impairment of her back; and she had one loss, as that word is defined in s65. The loss she had suffered as a result of the first injury was gone. She now had a different and greater loss. But although the loss resulting from her first injury was gone, the loss in place after the second injury was still the result, in part, of the first injury, as well as being in part the result of the second. Both s22 and s65 recognise multiple causes of impairments such as the one in question here, and seem to me to be directed to situations such as the one the worker here finds herself in. In my opinion Burke CCJ's method and fact finding were both sound. The result is that, on the basis of there being one loss, the worker was entitled to an award under s67. In case the court came to this conclusion, the first employer had an alternative argument, that Note (g) (as it was called at the relevant time) to the Table, taken together with this court's decision in New South Wales TAFE v Pitt (1993) 9 NSWCCR 309. and similar cases, references to which are given in Crockett Pty Ltd v Cox (unreported, Court of Appeal, 26 October 1994), had the effect that the second employer alone should be liable under s67. I need not get involved in the intricacies of this argument, because I do not think Note (g) is relevant in the present case. On the view I have indicated of the way the sections involving the concept of "loss" work, it is in my opinion necessary, on the facts of the present case, to read "injury" in the two places in which it appears in Note (g) as referring to the two injuries from which the loss resulted. On this footing Note (g) can have no work to do in the case. In my opinion both of the appellant's arguments fail, and its appeal should be dismissed with costs. The second employer briefly argued a cross appeal which depended upon a different view being taken of the facts from the one I have indicated I think this court should take. I see no basis for the view of the facts contended for by the second employer. In my opinion the cross appeal also should be dismissed with costs. I note that Tagree with Rolfe AJA that the orders consequential upon the reasons of Meagher JA and himself are those indicated by him in the final paragraph of his reasons. Meagher JA Miss Pride, the worker, was employed in 1990 by the appellant Glebe Rowing Club Pty Ltd, for whom she worked, apparently in the kitchens. Before she worked there she was not affected by any back problems. On 29 May 1990 when endeavouring to manipulate a hopper of coins from a poker machine in an awkward fashion she suffered an onset of back pain. She was off work for three months or so. His Honour, Burke CCJ, accepted medical evidence to the effect that she had a moderate broad-based bulge at L4-5 which appeared to indent the dura, which caused her problem. Medical evidence accepted by his Honour was that after her period off work she was much improved, probably well enough to resume her former work, although there was a "high probability" of future recurrence and she should therefore avoid any work which involved heavy lifting. She then commenced work with the second respondent, trading as Croydon Hotels. She worked long hours doing work of a fairly heavy kind: obtaining supplies from the cellars, putting them into dumb waiters, stocking refrigerators and shelves, handling cases of beer and cases of wines. Then, suddenly, on 14 URJ GLEBE ROWING CLUB PTY LTD v PRIDE (Rolfe AJA) 3 November 1991, he found she was unable to get out of bed. She returned to her doctors, who eventually performed a laminectomy and a discetomy at L 4-5 level. After this she returned to the work force, but not to her former job. She sought, inter alia, awards under s66 and s67 against both employers. His Honour found that both injuries contributed to Miss Pride's ultimate condition. This is unremarkable, and was not challenged by anybody. It is, I think, also true that his Honour found that each employer was 50% responsible for that ultimate condition. From his language it is not presently possible to locate such a clear finding, but it is implicit in his judgment, and certainly explicit in the unchallenged medical evidence. His Honour made an award of $13,000 in respect of permanent impairment of the back, and ordered each employer to contribute equally to this award. He also purported to make an award of $ 12,000 under s67 and ordered each employee to contribute equally to this amount. The appellant has appealed against the s67 order. The appellant's argument is simple, and, I think, convincing. At the relevant time the maximum entitlement for impairment of the back, pursuant to s66, was $59,220 and the total maximum entitlement was $98,700. His Honour's award of $13,000, as a matter of mathematics, was approximately 22% of the maximum for back impairments. Miss Pride was not entitled to an award under s67 against either employer unless she obtained as against that employer an award under s66 of at least 10% of the maximum amount, ie $9,800. Since the amount awarded by his Honour against each employer under s66 was only $6,500 (ie, half of $13,000), in each case it was under $9,800. Consequently there was no occasion to make an award against either employee under s67. One would reach a different result if one injury had caused the ultimate impairment. That, however, seems to me irrelevant. There was some debate about the applicability of s22 of the Act to the present case. Again, it is unclear whether his Honour did or did not purport to rely on that section. However, I cannot see how that section has any application when, as here, there is a finding of two distinct injuries, each with a quantified amount of damage resulting. In my view the following orders should be made 1. Appeal allowed. 2. O.3 of the judgment of Burke CCJ of 7 December 1992 be set aside. 3. Respondents to pay the appellant's costs of the appeal and to have a certificate under the Suitors Fund Act. 4. Cross-appeal dismissed with costs. Rolfe AJA INTRODUCTION Miss Karen Rhonda Pride, who was the applicant in the Compensation Court and is the first respondent to this appeal, made application to that Court for determinations in respect of low back injuries she alleged she sustained in the course of her employment. She alleged that whilst employed as an assistant manager by Glebe Rowing Club Pty Ltd, ("the appellant"), on 29 May 1990, she was carrying out a lifting activity and injured her back, from which she suffered total incapacity from 29 May 1990 to 4 September 1990, and partial incapacity thereafter "to date and continuing". She also alleged she sustained an exacerbation of that injury, together with an associated anxiety state, whilst employed as an assistant manager by Guy Reynolds Constructions Pty Ltd and Drumcourt Pty Ltd trading as The Croydon Hotel. These companies were the 4 UNREPORTED JUDGMENTS second respondents on the appeal and I shall refer to them as "The Croydon Hotel". Her Application for Determination alleged that during a time of staff shortages additional work undertaken over a two week period culminated with a lifting incident on 14 November 1991 when sharp pain in her lumbar spine made it impossible to continue to work, in consequence of which she alleged total incapacity from 14 November 1991 "and continuing". She claimed compensation, inter alia, under s66 and s67 of the Workers Compensation Act. The matter came on for hearing before Burke CCJ on 7 December 1992. His Honour noted that as against the appellant Miss Pride claimed under s66 and s67 and in respect of "a closed period of partial incapacity between September and November 1990", and that she claimed as against The Croydon Hotel under those sections and also for weekly payments. He said, and as I understand it accepted, that prior to the incident in 1990 Miss Pride was not affected by any back problem, but that as a result of the lifting incident on 29 May 1990 she suffered a moderate protrusion at L4-5 encroaching onto the thecal sac. He considered the weekly payments to which he thought she was entitled and passed to what he regarded as the "more vexed question", namely the entitlement to compensation pursuant to s66 and s67. He was of the view that Miss Pride had a permanent impairment, noting that none of the doctors seemed to doubt that. He referred to various assessments of the degree of that impairment and said, AB69: "Proportionate to that of a most extreme case, I would think this applicant's impairment is in a ratio of 1:5 approaching 1:4. I suppose one can get all very mathematical and say 'well, somewhere halfway between those would be 9:40' but that is the sort of proportionality that I find a bit difficult. It gives an air of accuracy which I do not think this type of calculation really allows. In any event, that impairment could, if compensible as the result of a single injury, certainly entitle the applicant to the benefits of s67." THE PROBLEM WHICH GIVES RISE TO THIS APPEAL His Honour concluded that each of the incidents contributed equally to the condition from which Miss Pride was suffering at the date of the hearing. This gave rise to an argument, to which I shall refer in more detail in a moment, to the effect that as there were two separate injuries, for which each employer was equally liable, the threshold amount under s66, which would entitle Miss Pride to compensation under s67, had not been achieved in respect of either injury. His Honour recorded the submissions thus:- "But, both respondents have said 'well, be that as it may, the applicant's ultimate state is the result of discrete injuries with separate respondents and the Court will necessarily find what degree of impairment resulted from each individual injury and the applicant will only be entitled under s67, to pain and suffering from such as produces an impairment adequate to pass the gateway of s67(2) or, more probably, neither, since whilst the combined effects may be as I suggested, the individual effects are probably 50:50 and neither of those would generate an entitlement that would pass the gateway to s67(2)." I pause to repeat that his Honour was setting forth the submissions made on this aspect. He continued: "Tf it be so, it appears to me to be a lacuna in the Act, but be that as it may, in looking at s22 - the apportionment legislation - it is fairly clear that where you have two distinct, separable, identifiable incapacities resulting from two discrete injuries, then there is no need to embark upon apportionment. Each are perfectly capable of being compensated in accordance with the Act. However, where URJ GLEBE ROWING CLUB PTY LTD v PRIDE (Rolfe AJA) 5 apportionment arises in relation to weekly payments is where there is a single incapacity resulting from successive injuries. It seems to me that the same situation applies in relation to Pt4 Division 3; the losses and impairments provided under the Act. Where there is a single impairment resulting from multiple injuries then the appropriate course to follow is to compensate for the impairment and any consequences that follow and apportion the liability appropriately, as between the several injuries, be they with the same or with different employers." The last cited paragraph posed what was considered on the hearing of the appeal to be the critical question, viz whether the two injuries (and there was no issue that there were two injuries), gave rise to one loss or to two losses within the meanings of s66(1) and s67(1). His Honour said: "In those circumstances, having been satisfied that the applicant has an impairment which of itself would generate an entitlement sufficient to pass the gateway of s67(2), I think the applicant is entitled to compensation pursuant to that section." Implicit in this statement is the finding that there was one loss arising from the two injuries. After further considering the matter his Honour continued, AB71: "Tt seems to me that the applicant then suffered an L4-5 disc injury, probably in the nature of a rupture and probably involving protrusion. There was a resolution symptomatically. Pathologically, that does not seem to have been so. Without the subsequent work with the respondent, particularly that latter period in November 1991, it may well be that the applicant would have survived with a low level intermittent back problem. However, it seems to me on the evidence that her back had been considerably weakened as a result of the first injury and that the variety of doctors who ponder this problem of who did it, there seems to be a fair preponderance of them who come down to the idea that it is a 50:50 contribution. That while the last injury with the second respondent obviously triggered the overt problem and need for surgery, the real underlying reasons for the back coming to the state that it was in then, is largely attributable to the pathological changes effected by the first injury with the superimposed stress, of course, of the work with the second respondent. In the circumstances, I would think that if one is apportioning on the basis of relative contributions to the causality the, both the s66 and s67 awards would be apportionable 50:50 as between the two respondents. Those findings, in my opinion, mean the two injuries gave rise to two losses, each of which was, in the view his Honour took, compensible under s66. However, he held the extent to which each was compensible, in financial terms, was at a figure which did not meet the threshold for compensation under s67(1) required by s67(2). That flows from his finding that the amount payable under s66 was $13,000 of which one half was attributable to each injury. His Honour then made findings that on 29 May 1990, in the course of her employment with the appellant, Miss Pride sustained back injury, and that on and before 14 November 1991, in the course of her employment with The Croydon Hotel, she received injury to her back and that, "'as a result of such injuries, the applicant suffers permanent impairment of the back" in the ratio of approximately 1:4 of a most extreme case. He made an award that the appellant and The Croydon Hotel pay her a lump sum pursuant to s66 of $13,000 in respect of permanent impairment of the back, and a lump sum pursuant to s67 of $12,000 6 UNREPORTED JUDGMENTS in respect of pain and suffering resulting from such loss. He further ordered that the liability of the appellant and The Croydon Hotel in respect of the awards pursuant to s66 and s67 and costs be apportioned as to fifty per cent to each. THE RELEVANT STATUTORY PROVISIONS S65(1), which is the first section of Pt3 Division 4, defines "loss" in relation to a "thing" as meaning "the loss of that thing" or "the permanent loss of use, or of the efficient use, of that thing". Subs(2) provides that a reference to a loss mentioned in the Table to the Division includes a reference to "the permanent impairment of the back". S66(1) provides that a worker, who has suffered the loss of a thing mentioned in the Table "as the result of an injury is entitled to receive from the worker's employer by way of compensation for the loss", and in addition to any other compensation, the amount equal to the percentage of $98,700, (which was then the amount specified by the Act), set out opposite that loss in the Table. The Table provides for 0 to 60 per cent in respect of permanent impairment of the back. The maximum amount payable under s66(1) for impairment to the back was, accordingly, $59,220. His Honour awarded $13,000 pursuant to s66(1), which is 21.95 per cent. The parties, understandably enough, referred to it as 22 per cent. S67(1) provides that a worker, who has suffered a loss mentioned in the Table, "is entitled to receive from the worker's employer by way of compensation for pain and suffering resulting from the loss" and in addition to any other compensation, a further amount, provided the amount of compensation under s66 for the loss is not less than 10 per cent of the maximum amount referred to in s66(1). His Honour awarded Miss Pride $12,000 under this provision, being his assessment of the percentage compared to "a most extreme case". The amount, per se, is not challenged. Note (g) of the interpretation provision provides: "In the case of impairment of the back... 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." The interpretative provision, so it seems, was seeking to overcome the situation where, prior to the occurrence of the compensible injury, the worker already had an impairment, which was made the greater by the work injury, to the intent that the worker could only recover for the degree of impairment arising from the compensible injury. The legislative intention, at least in relation to backs, was to reverse the approach applied in Rodios v Trefle (1938) 54 WN (NSW) 197. However, it would appear this was not achieved. In NSW Department of Technical and Further Education v Pitt (1993) 9 NSWCCR 309 Cripps JA, with whom, relevantly for this point, Priestley and Meagher JJA agreed, said, after quoting the provision: "That would seem to me to make it clear that this Court is to deal with the matter upon the basis that there has been no previous impairment and that this Court is directed to the consequences of the injury the subject of the claim." To make the clearer what his Honour was saying, he continued: "If the appellant's submission be accepted, the Compensation Court would be required to determine the impairment of the back resulting from the injury after the commencement of the 1987 Act and the impairment of the back resulting from other causes (in the present case an injury before the commencement of the 1987 Act) and deduct the second from the first. That is expressly what Note (g) forbids. URJ GLEBE ROWING CLUB PTY LTD v PRIDE (Rolfe AJA) 7 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." Judgment was delivered on 11 June 1993. On 15 August 1993 this Court heard New South Wales Baptist Nursing Homes Trust (t/as Yallambie Nursing Home) v Bingham (1993) 9 NSWCCR 493. Judgment was delivered on 21 September 1993 by Mahoney JA, with whom Sheller and Cripps JJA agreed without reservation. Counsel for the appellant, as in Pitt, was Mr JL Sharpe. Thus the Judge who gave the leading judgment in Pitt, and counsel for the appellant in Pitt were involved in Bingham and, one would have anticipated, it would have been considered by the Court, if it was thought to be relevant. Once again the applicant in the Compensation Court suffered from several injuries to her back. At 502 Mahoney JA commenced to deal with Note (g) and s71 and, at 503, his Honour said: "The total effect of these provisions is, I think, intended to deal with a case of the present kind. If an award of compensation has been made for a partial loss of a thing and a further loss of the thing occurs the (sensible) intention is that the partial compensation awarded by the Table is to be increased but only proportionately to the further loss. For this purpose, a reference to "loss" is a reference to, inter alia, the impairment of the back. If 'the impairment of the back" be read into the provisions in the place of "loss" there is, I think, no semantic difficulty in concluding that the purpose and intention emerges that, where there has been an increase in the permanent impairment of the back, further compensation proportionate to the further impairment may be awarded." As I understand it this decision says the exact opposite to Pitt. Yet there is no reference to Pitt. In the present appeal Mr Curtis of Counsel, who appeared for The Croydon Hotel, after citing the passage from the judgment of Mahoney JA, which I have just quoted, submitted "that is entirely the contrary of what" Cripps JA decided in Pitt: Tp 13. That submission accords with my own view. In my respectful opinion the view in Bingham is correct, because it, unlike Pitt, has regard to the words that "compensation is payable only in respect of the degree of permanent impairment suffered as a result of the injury", ie an assessment is made of the degree of permanent impairment resulting from the injury on a back otherwise assumed or deemed not to be impaired, so there is no doubling up. In that way only the degree or extent of impairment relating to the injury is compensible and the decision in Rodios v Trefle is overcome. However Pitt has been referred to frequently and often approved in this Court, whereas my researches have disclosed no further reference to Bingham. In Clutha Ltd v Danswan (1993) 9 NSWCCR 225, in which judgment was given on 5 April 1993, Cripps JA, with whom Meagher JA agreed, said: "With respect to the new category of loss, Note (g) to the Table provides that 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 this Court to correct." In view of the nature of the injury I do not see the relevance of Note (g) and perhaps what his Honour said was obiter dictum. 8 UNREPORTED JUDGMENTS In JA Crockett Pty Ltd v Cox (Court of Appeal - 26 October 1994) Powell JA gave the principal judgment with which, relevantly for present purposes, Mahoney and Priestley JJA agreed. The worker suffered successive injuries to his lumbar spine and, as in the earlier cases, attention was directed to Schedule 6 Pt6 CL6 of the transitional provisions. Powell JA, after a full recitation of the relevant statutory provisions and a lengthy recital from Pitt, including the passage concerning Note (g) to which I have referred, held that what Cripps JA had said in Pitt, at least in relation to Schedule 6 Pt6 CL6, was not obiter dictum and his Honour said further, at least on this point, that Pitt was supported by Danswan. Once again Powell JA included a reference to Cripps' JA observations about Note (g) in Danswan. He posed the question whether these two decisions should be reconsidered and decided they should not. There was no reference to Bingham. In Wilkes v State Rail Authority of New South Wales (Court of Appeal - 2 February 1995) the Court comprised Kirby P and Powell and Cole JJA. Once again the transitional provision required consideration and Danswan and Pitt were expressly approved. This Court refused leave to re-argue Danswan in Australian Iron and Steel Pty Ltd v Nixon (Court of Appeal - 13 April 1995 - unreported) and Pitt, in so far as it dealt with transitional provisions, was approved expressly by Kirby P in Kempsey District Hospital v Thackham (Court of Appeal - 7 June 1995 - unreported). In Mulwaree Shire Council v Bezzina (Court of Appeal - 9 June 1995 - unreported) Mahoney, Priestley and Powell JJA were asked to re-consider the transitional provisions and Note (g). Priestley JA, who delivered the judgment of the Court, held that leave to re-argue the decisions to which I have referred and Leonie Holdings Pty Ltd v JW Kirkwood Pty Ltd (Court of Appeal - 9 June 1995 - unreported) should not be granted. Once again there was no reference to Bingham. This line of authority leads me to the conclusion that the interpretation given to Note (g) by Cripps JA in Pitt has been approved by this Court and that the refusal to grant leave to re-argue the matter in Bezzina means that is the interpretation I should accept, viz that the whole consequences of the loss can be visited on the second injury, notwithstanding that there was a prior injury, which caused loss. Therefore, in the present case, it would have been open to Miss Pride to submit that her entitlement fell to be determined only by reference to the injury she sustained in the second incident during her employment with The Croydon Hotel. This she did not do nor did she cross-appeal against the decision seeking any such order. $22 provides that if a loss by a worker, as referred to in Division 4 of Pt3, results from more than one injury to the worker, liability to pay compensation under the Act is to be apportioned as the Compensation Court determines. THE APPEAL The appellant appeals from so much of his Honour's decision as found Miss Pride was entitled to an award of compensation in the sum of $12,000 pursuant to s67 of the Act. The grounds of appeal assert that he erred in law in awarding that amount without due regard to s67(1) and s67(2), and that having found that Miss Pride suffered a permanent impairment of the back of between twenty and twenty five per cent of "a most extreme case" resulting from injuries sustained by her equally in the employment of the appellant and The Croydon Hotel, he could not, in law, award her compensation pursuant to s67 as she did not, in respect of URJ GLEBE ROWING CLUB PTY LTD v PRIDE (Rolfe AJA) 9 either injury, suffer a loss of at least ten per cent of the relevant maximum amount referred to in s66(1), which was required before an award could be made pursuant to s67(2). THE SUBMISSIONS ON BEHALF OF THE APPELLANT The submissions on behalf of the appellant were that his Honour erred, having found that Miss Pride suffered two injuries that equally contributed to her impairment and having found that the total impairment was between 1:5 and 1:4, in that there was no loss from a single injury that was not less than ten per cent of the maximum amount referred to in s66(1). His Honour, having found that $13,000 was payable pursuant to s66, found, so it was submitted, that only $6,500 was payable "in respect of the loss resulting from each of the injuries" and it was not in issue, if that be the correct view as to what his Honour did, that the amount of the award under s66 was insufficient to attract the provisions of s67, so that Miss Pride was not entitled to an award thereunder. It was submitted that if the appellant's basic proposition was not correct, the alternative position was that the appellant's liability was for "the eleven per cent impairment pursuant to s66" so that when Miss Pride went to the employment of The Croydon Hotel and suffered a further injury and a further "loss" Note (g) is applied as suggested in Pitt, so that for the purpose of assessing the s67 compensation the Court should "ignore" the ten per cent loss in the appellant's employment: "\.. and simply say: this worker has, because of the injury with the second employer, twenty per cent loss and therefore the worker is entitled to an assessment under s66 and whatever flows pursuant to s67." For the reasons I have given I think this is correct, but, as I have come to a view favourable to the appellant on its first submission it is not necessary to pursue it. On behalf of The Croydon Hotel it was submitted that s9(1) provides that a worker, who has received an injury, shall receive compensation from his/her employer in accordance with the Act, that s66 provides that if the worker suffers the loss of a thing mentioned in the Table "as a result of an injury" he/she is entitled to compensation "for the loss", and that his Honour found, as a fact, that Miss Pride suffered a single impairment, which was equated in the submission, to loss as a result of multiple injuries. From this point it was submitted that the appellant's contentions wrongly assumed that the phrase "results from" necessarily denoted a single cause, whereas, so the submission ran, a relevant loss may result from two or "both" injuries and, in these circumstances, once his Honour's finding pursuant to s66 was accepted, the award pursuant to s67 must follow. Thereafter it was appropriate for his Honour to consider apportionment, as between the employers, pursuant to s22. THE APPROACH FOLLOWED BY HIS HONOUR The first task his Honour undertook, which in my view was correct, was to determine whether Miss Pride had suffered "the loss of a thing" within s66(1). Relevantly, for present purposes, that loss could only be permanent impairment of the back. To achieve the result he did it seems to me his Honour had to find that only the second injury caused the loss, either as a matter of fact or as a matter of the construction of Note (g). The problem, at this stage, is whether there was one loss resulting from two injuries, or whether there were two losses resulting from two injuries within the meaning of s66. For the appellant to succeed it must show the latter. It canna be in dispute that after the second incident Miss Pride was suffering from a loss 10 UNREPORTED JUDGMENTS different from that from which she was suffering after the first incident. But the proper inference from his Honour's findings is that each injury gave rise to a loss compensible equally under s66. That is made clear by his Honour's findings at AB71, which I have quoted. Thus as a matter of fact his Honour found two injuries giving rise to two losses each of which was compensible in the sum of $6,500, which sum was insufficient to justify an award of compensation under s67. THE SUBMISSIONS ON BEHALF OF THE CROYDON HOTEL AND MISS PRIDE The submissions on behalf of the Croydon Hotel and Miss Pride were, in my respectful opinion, encapsulated in the following passage, Tp 10: "PRIESTLEY JA: Is this your argument, looking at s67, Judge Burke found this worker had suffered the losses (sic) as a result of two injuries and was entitled to recover from two employers an amount on that one loss? CURTIS: Yes. PRIESTLEY JA: And that s22 only comes into the picture after he has reached that stage and then via s22(1)(b) enables him to apportion between the two employers... CURTIS: Exactly. PRIESTLEY JA: That is all it is. That is your argument and that is what you say the Judge properly did. CURTIS: Yes. I do not think Mr Menary would dispute his Honour is entitled to do that as a matter of law and the only question is whether he has properly done so. Your Honour is familiar with the authorities as to specialist jurisdiction and the reasons, if they are sufficiently clear, need not be exemplary." The word "losses" should obviously read "loss". CONCLUSIONS The problem I have with the submission is that it overlooks the existence of two injuries each of which gave rise to a compensible loss under s66, and it is clear from his Honour's findings that had he been considering each such loss separately he would have found that the amount of compensation payable for each was $6,500. This, as was not in issue, was below the threshold. The aggregation of the two losses into one loss was not, in my opinion, a permissible exercise. The situation may have been different if the factual findings had been that the first incident did not give rise to a compensible loss. But it is not necessary to explore that because it clearly did. I would uphold the primary submission of the appellant. On the view I take it is unnecessary to consider the apportionment his Honour undertook. The appellant did not appeal against it. The Croydon Hotel filed a Notice of Contention and Cross-Appeal. It firstly sought to uphold his Honour's finding on the ground that there was but one injury. In my view that is untenable on the findings his Honour made. Secondly, it challenges the apportionment, it being assumed that what his Honour did was make an apportionment under s22. The ground of that challenge is that as there was only one injury s22 has no application. That ground must similarly fail for the same reason. This conclusion also avoids a consideration of the difficulties pointed up in Patrick Sanderson Stevedoring Pty Ltd v Mali and Anor (Court of Appeal - 11 August 1995 - unreported). However, notwithstanding that Note (g) and its effect was expressly raised for consideration, Miss Pride did not seek to submit that the application of Note (g), which has found favour with this Court, would have allowed her to maintain the compensation under s67 as against The Croydon Hotel. The submissions on her URJ GLEBE ROWING CLUB PTY LTD v PRIDE (Rolfe AJA) 11 behalf were directed to repulsing the first submission on behalf of the appellant and not to embracing the second. This approach is, no doubt, understandable by dint of there being no cross-appeal as the procedural basis for launching such a submission. Indeed counsel for Miss Pride acknowledged firstly that he only had to deal with the appellant's first submission and conceded that if that submission succeeded his client failed to establish an entitlement to s67 compensation: Tp 16. PROPOSED ORDERS The consequence is that I agree with the orders proposed by Meagher JA, although, in addition, I note that in consequence of O.3 being set aside, O.5 should also be set aside. 1. Appeal allowed. 2. O.3 and O.5 of judgment below set aside. 3. Respondent to pay appellant's costs of the appeal and to have certificate under Suitors Fund Act. 4. Cross-appeal dismissed with costs. Counsel for the Appellant: P MENARY Counsel for the Respondent: (1) N MAYELL (2) J CURTIS Solicitors for the Appellant: AO ELLISON AND CO Solicitors for the Respondent: (1) IAN M GENGE (2) HICKSON LAKEMAN AND HOLCOMBE