GIO GENERAL LTD v BOJKO SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL GLEESON CJ, PRIESTLEY JA and WADDELL AJA 15 April 1996, 20 December 1996 [1996] NSWCA 213 WORKERS COMPENSATION ACTS 1926 AND 1987 WORKERS COMPENSATION ACTS, 1926 (OLD ACT) AND 1987 (NEW ACT — worker suffering old Act and new Act injuries — liability of old Act insurer in light of factual findings of trial judge — transitional provisions — argument not raised below not, in circumstances of case permitted on appeal — interpretation of orders of court below — subject to some adjustments, appeal to be dismissed. ORDERS Draft minutes of orders according with the reasons of the court to be filed with Court of Appeal Registrar within twenty-eight days. Gleeson CJ I have had the advantage of reading, in draft form, the judgment of Priestley JA. I agree with the orders proposed by his Honour and with his reasons for those orders. Priestley JA PRELIMINARY. This appeal requires the court to decide issues stemming from the commencement in 1987 of a Workers Compensation Act (which I will call either the new Act or the 1987 Act) which replaced the previous one (the old Act or the 1926 Act). The new Act continued many of the main ideas and kept much of the language of the previous one. It also changed the language and expanded the scope of some of the main ideas; eg s16 of the old Act and the table of injuries which followed it were replaced by s66 and other sections appearing in Pt3 Division 4 of the new Act and the table at the end of Division 4. The fact that s16 and its Table of the old Act are the immediate parents of parts of Division 4 and its Table of the new Act is clear enough; but there are many significant differences in the two tables and the words of the relevant provisions. Also, included in Division 4 is s67 which introduced a head of compensation into the new Act which had no counterpart in the old Act. Transitional provisions in the new Act provided for some problems foreseen to follow from the changes in the new Act. These provisions have been amended quite frequently. Substantive amendments have also been made to the new Act, bringing their own transitional provisions in their train. The present case involves a worker injured in the course of her employment in 1983 and 1988. In view of the sequence of amendments to the 1987 Act care is needed to ensure that the new Act in its form at the relevant time is applied to the case. Both counsel in the appeal have assured the court that a consolidated reprint as at 18 March 1984 of the new Act showed the statute in the form it took when the case was decided by Egan J in the Compensation Court on 10 December 1993. BACKGROUND FACTS AND AWARDS OF TRIAL JUDGE. 2 UNREPORTED JUDGMENTS The worker in the case is Mrs E Bojko. At relevant times she was employed as a cleaner at the Royal Newcastle Hospital by Hunter Area Health Service (the employer). She claimed (i) that at work on 13 September 1983 she suffered an injury to her neck and right knee, and (ii), that on 7 April 1988 she was struck in a pedestrian crossing when going to the hospital's canteen area in the course of her employment. On 10 September 1992 the worker filed an application in the Compensation Court for orders for weekly compensation payments and for lump sum payments under s16 of the old Act and s66 and s67 of the new Act. At the trial, in November 1993, the employer was represented by separate counsel for two insurers. One was GIO General Ltd, which traded as GIO Australia, and was referred to in the argument before us as "the old Act insurer". The court was told it was the insurer liable to indemnify the employer for compensation awards in respect of injuries suffered before 30 June 1987. The other was GIO Workers Compensation (NSW) Ltd, the "new Act insurer" said to be liable as from 1 July 1987, the date of commencement, for a number of purposes, of the 1987 Act. In Egan J's reasons for the orders he made on 10 December 1993 he found that the worker had been injured on 13 September 1983 as she claimed; she had suffered injury in the right side of her neck, shoulder and knee; she was off work until 11 January 1984; she had some continuing after effects from the injury but was able to do her normal duties until 7 April 1988; then on 7 April 1988 she was injured in an accident in a pedestrian crossing near the hospital, while in the course of her employment; was off work until 6 July 1988; again she suffered some after effects but was able to do her ordinary work until September 1991; she was then offered and accepted voluntary redundancy. The trial judge further found that the worker had been paid compensation for the periods off work prior to September 1991 and that her claims before him started from that time. The worker gave evidence of a number of symptoms from which she was suffering while still working for the employer. The trial judge found that she was not entirely reliable in giving this evidence. However he found, as already mentioned, that she had had the two incidents complained of and had had ongoing problems in her knee, neck and right shoulder, although he thought their extent had been grossly exaggerated. After reviewing the evidence, the trial judge found that looking at the worker's situation in September 1991, the state of her right leg, arm and shoulder in particular would have had some adverse effect on her earning capacity in the labour market ordinarily available to her. On this footing he awarded her compensation pursuant to s40 of the new Act in the weekly amount of $30 from 29 September 1991. The trial judge then dealt with the worker's application for lump sum payments under s16 of the old Act and s66 and s67 of the new Act. He referred to the widely varying assessments by different medical practitioners as to the degree of the injuries. In regard to the neck he expressed the view that an appropriate estimate compared to a most extreme case was 10%; as to loss of efficient use of right leg at and above the knee, 10%; and as to loss of efficient use of the right arm at and above the elbow, 15%. A little later he continued: URJ GIO GENERAL LTD v BOJKO (Priestley JA) 3 "In my view although the initial problems in relation to her neck, arm and shoulder resulted from the injury in 1983 the subsequent encounter with the motor vehicle in 1988 aggravated the conditions and accordingly the date to which one would have to look for these assessments is 4th April, 1988. I make an Award in favour of the applicant in accordance with S67 for the sum of $8,340.00 and I apportion that amount as to half for the past and half for the future." And, a little later again: "So far as the loss of efficient use of the leg is concerned I am of the view that this should be borne by the first Insurer and so far as the other injuries and the Award under S40 is concerned it should be borne 50/50 by each of the Insurers." THE ORDERS. In the result the following formal orders were made: "1. In the exercise of its discretion, that the respondent pay the applicant, on the basis of partial incapacity, weekly compensation at the rate of $30.00 from 29th September 1991; such weekly payment to continue in accordance with the provisions of the Act. 2. That the respondent pay the applicant, as lump sum compensation under Pt6 of Schedule 6, $2,200.00 in respect of 10% loss of use of the greater part of the applicant's right leg." [Pt6 r4 continued s16 of the old Act for the purpose of this loss.] "3. That the respondent pay the applicant as lump sum compensation under s66 - (1) $3,336.00 in respect of 10% permanent impairment of the applicant's neck. (2) $10,008.00 in respect of 15% loss of use of the applicant's right arm at or above the elbow. 4. That the respondent pay the applicant, as lump sum compensation under s67, $8,340.00 in respect of pain and suffering; such sum to be apportioned as to one-half thereof in respect of past pain and suffering and as to one-half in respect of future pain and suffering 5. That the respondent pay the applicant interest on the said lump sums awarded under s66 and on the past apportionment of the said lump sum awarded under s67, at the rate of 8% per annum from 7th April 1988 to 10th December 1993. 6. That the respondent pay the applicant's s60 expenses. 7. That the respondent pay the applicant's costs forthwith after they have been agreed or taxed. 8. That liability be borne by GIO Australia insofar as such liability relates to the said loss of use of the applicant's right leg and the said lump sum awarded in respect thereof. 9. That liability be borne equally by GIO Australia and GIO Workers Compensation (New South Wales) Ltd in respect of all other injuries the subject of this award and in respect of payment of the above weekly compensation." THE APPEAL. GIO General Ltd, the old Act insurer, appealed. The final version of its appeal was stated in a further amended notice of appeal filed on 16 January 1995. The first paragraph in the preamble to this notice said: "The appellant appeals against that part of the judgment that finds that injury to the right arm at or above the elbow or the right shoulder resulted from the incident of 13 September 1983." This would raise questions of fact in respect of O3(2). The second paragraph of the preamble said: 4 UNREPORTED JUDGMENTS "The appellant appeals against that part of the decision of Egan J which orders that the appellant make any contribution to the awards pursuant to s66 and s67 of the Workers Compensation Act 1987 (as amended), and the consequential orders for interest." This showed that O9 was being appealed against, in its operation upon O3, and as the appellant understood, O4. The notice then stated six grounds of appeal. In written submissions a summary of the argument in support of each ground was stated. I set out below each ground, immediately followed by the written submission in support of it. If the appeal against O1 failed, the apportionment of liability in respect of it was not challenged. The appeal did not challenge O2, nor the amounts of compensation to be paid to the worker pursuant to O3 and O4. GROUND NO 1. "His Honour erred in making any finding that the second respondent injured her right shoulder or right arm at or above the elbow in the incident of 13 September, 1983." SUBMISSION. "The application for determination made no allegation of injury to the right arm at or above the elbow as a result of the injury of 13 September 1983 (the first injury). The applicant's counsel was questioned about the allegations of injury and he specifically placed no reliance upon any such injury. The only allegations relied upon re the first injury were an injury to the right knee and an injury to the neck. In these circumstances it is submitted that Egan J fell into error when he found "on the whole of the evidence' (AB 124 V) that an injury to the shoulder was established." GROUND NO 2. "His Honour erred as a matter of law in apportioning any liability to the appellant to make a contribution to the award pursuant to s66 of the Workers Compensation Act 1987 (as amended)." SUBMISSION. "Egan J held the appellant to be 50% liable for s66 awards re the neck and right arm at or above the elbow. It is submitted that the 1926 Act insurer could not be liable because Schedule 6, Pt6, C16 of the 1987 Act deems those losses. in their entirety, to have resulted from the injury received after 30 June 1987, ie, the second injury (see Clutha Ltd v Danswan)." GROUND NO 3. "His Honour erred as a matter of law in apportioning any liability to the appellant to make a contribution to the award pursuant to s67 of the Workers Compensation Act 1987 (as amended)." SUBMISSION. The only permissible permanent loss suffered as a result of the first injury was a % loss of use of the right leg as defined by s16 of the 1926 Act. The first injury did not result in any losses of the kind set out in s66 of the 1987 Acct, ie, right arm at or above the elbow or neck. Therefore any claim under s67 would fail if it was based on the first injury alone. URJ GIO GENERAL LTD v BOJKO (Priestley JA) 5 Furthermore, there can be no apportionment of a s67 award between successive insurers of the same respondent under s22 of the 1987 Act, unless the injuries were such that had they occurred with different employers, concurrent awards could have been supported against two or more of those employers (see IGF v NEM and MMI)." GROUND NO 4. "His Honour erred as a matter of law in that he failed to give any effect to the provisions of Schedule 6, Pt6, Cl6 of the Workers Compensation Act 1987 (as amended)." SUBMISSION. "See Ground 2 above." GROUND NO 5. "His Honour erred as a matter of law in that he failed to give any effect to Note (g) of the table to Pt3, Division 4, of the Workers Compensation Act 1987 (as amended)." SUBMISSION. "Tn relation to the finding that the appellant was 50% liable for the s66 award re the neck, Egan J failed to give effect to note (g) of the table of maims set out in Pt3, Division 4, of the 1987 Act, in so far as he ought to have ordered that the first respondent in this appeal be 100% liable for that loss (see NSW Department of Technical and Further Education v Pitt and JA Crockett Pty Ltd v Cox)." Ground No 6. "His Honour erred as a matter of law in that he ordered the appellant to make any contribution to the consequential orders for interest on the sums awarded pursuant to s66 and s67 of the Workers Compensation Act 1987 (as amended)." SUBMISSION. "This ground follows as a matter of course from the grounds set out above." GROUND | FAILS. The appellant's written submission that the application for compensation in referring to the 1983 injury did not allege injury to the right arm at or above the elbow is correct. However, early in the worker's evidence in chief she described the 1983 injury and gave details of injury which included pain in and treatment of her right shoulder. She was cross-examined about this allegation, and the remainder of the transcript shows that it became an issue litigated between the parties. Egan J said "the question of shoulder injury" had been "put in dispute" but that the whole of the evidence suggested that it had been established. From then on he acted on that basis. The Division 4 Table would appear to permit the right shoulder injury to be dealt with under the description "Loss of right arm at or above elbow" and it is apparent that this is what Egan J did. In these circumstances, although it would have been better if the pleadings had been put in order, the objection in the written submissions based on the pleadings could not succeed. The assertion in the written submissions that the worker's counsel "specifically placed no reliance upon any such injury" was not supported or pressed in the oral submissions. The way the trial appears to have proceeded, according to the transcript before this court, makes it very unlikely that the worker's counsel ever made any such concession. Counsel for the old Act insurer, in the oral submissions to this court. recognised the difficulties mentioned in the last two paragraphs, and confined the submission in support of Ground 1 to the argument that in his reasons the trial judge had relied on doctors' records which suggested the worker was complaining of referred pain towards the right shoulder, and that inspection of the 6 UNREPORTED JUDGMENTS medical reports in evidence (no doctor was called to give oral evidence) did not support that statement. That assertion is not itself correct (see for example Dr Millons' report of 18 August 1993, AB 85) but even if it were, the appellant could get nothing out of the point, because the worker gave direct oral evidence concerning the shoulder after the 1983 injury, and was cross examined upon it. The trial judge accepted this evidence, to a degree, noting that he thought the extent of problems including the problem of the right shoulder had been grossly exaggerated. I do not think the appellant made good any basis for disturbing the relevant findings of the trial judge. GROUND 3. In the oral submissions to this court, counsel dealt with ground 3 before ground 2. If O9 did purport to apportion liability for the s67 compensation, and if that compensation included an element for pre 30 June 1987 pain and suffering, then, on the face of it this ground would appear to be a sound one. $282 of the Act provided "Schedule 6 has effect". Schedule 6 dealt with transitional and other provisions. Pt6 of Schedule 6 was headed "PROVISIONS RELATING TO COMPENSATION FOR NON ECONOMIC LOSS (TABLE OF DISABILITIES)". It continued: "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. Cll 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." It seems clear that nowhere in the 1987 Act or its transitional provisions is any right conferred on a worker to compensation for pain and suffering resulting from losses in the Division 4 Table when such losses occurred before the commencement of the 1987 Act. So, an award of compensation for pain and suffering resulting from a Division 4 Table loss which occurred before the commencement of the 1987 Act, would appear to be an error. However, I do not think Egan J made such an error. This view follows from a closer consideration of Egan J's reasons and orders than was given to them in argument.! In O04 Egan J apportioned the sum he awarded in respect of pain and suffering as to one half in respect of past pain and suffering and as to the other in respect of future pain and suffering; then in OS in awarding interest on the lump sums awarded under s66 and s67 in regard to the s67 amount, he ordered that interest be paid on the one half of the sum for pain and suffering apportioned to the past to be paid from 7 April 1988 to 10 December 1993, that is from the date of the second injury to the date of judgment. When this is considered together with what Egan J said in the paragraph set out at p4 above, it seems to me quite plain that Egan J thought pain and suffering had only begun, for practical purposes, from 7 April 1988, the date of the second accident and the date from which he regarded interest as appropriately running, and that it was only in respect of the pain and suffering from that date and from that injury that he awarded the lump sum compensation under s67. This in turn suggests to me that when in O9 Egan J said that liability 1. After the court reserved its decision, the parties were requested to make written submissions on this topic. Such submissions were then made. What follows in regard to Ground 3 takes those submissions into account. URJ GIO GENERAL LTD v BOJKO (Priestley JA) 7 was to be borne equally by the old and new Act insurers "in respect of all other injuries the subject of this award and in respect of payment of the above weekly compensation" he was not intending to include the s67 liability within O9. It seems most unlikely to me that Egan J was not aware that the Compensation Court had no power to award s67 compensation for pain and suffering resulting from losses occurring before the commencement of the new Act. Further, the words in O9, "liability... in respect of all other injuries the subject of this award" do not seem apt to include compensation for pain and suffering resulting from a loss mentioned in the Division 4 Table. The term "pain and suffering" does not describe an injury or a loss, but, as s67(1) itself recognises, something resulting from the loss, (or, I add for myself, an injury). The conclusion I have come to is that O9 did not apportion liability for the s67 compensation amount; it simply said nothing about it; the consequence being that Egan J's orders did not deal in terms with the question of which insurer or insurers should indemnify the worker's employer for the s67 compensation payment. There is only one possible candidate for the meeting of this indemnity; it seems to me it would be sufficient and appropriate for this court to deal with the s67 point by adding an order to those made by Egan J making explicit what in my view was implicit in his judgment, that GIO Workers Compensation (NSW) Ltd, the "new Act insurer" is liable to pay the amount of lump sum compensation ordered by O04 to be paid under s67. In written submissions before the oral argument, and in the oral argument, the new Act insurer argued against any such result. Its principal argument was that it had never been submitted to Egan J that it was not open to him under s22 of the new Act to apportion s67 liability between the two insurers. However, that argument assumed that Egan J was intending to apportion that liability between the two insurers. In written submissions furnished after the oral argument, the new Act insurer sought to maintain this assumption. However, for the reasons I have given, I do not think Egan J ever had the assumed intention. The law seems to have been quite clear that s67 compensation could not be awarded for pre new Act pain and suffering. I see no reason why, on my understanding of Egan J's reasons and orders. both that plain legal position, and what in my opinion was his intention, should not be given effect, which would be done by adding the order that I propose. This does not involve any interference with Egan J's judgment, beyond the correction, which will ensure his reasons are fully implemented, of a slip. GROUND 2. This ground asserts that the judge should not have ordered the old Act insurer to bear any liability in respect of the orders he had made under s66 of the new Act. Those orders were contained in O3 set out above. The order making the old Act insurer liable for half of what had been ordered under s66 was O9, which apportioned liability in respect of other injuries besides those under s66. Accordingly it is only against that part of O9 which imposed liability to pay compensation on the employer in respect of "all other injuries" than those dealt with in O8, that the appeal is brought. The appeal therefore does not ask this court to disturb the order that the old and new Act insurers bear equally the order for weekly payments in O1. In the course of argument counsel confirmed that this was so. The relevant injuries are those the subject of O3. At the time of Egan J's decision, Schedule 6 Pt6 cl6 of the New Act was as follows: 8 UNREPORTED JUDGMENTS "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 in the Schedule, be treated as having resulted from the injury received after that commencement." In Clutha Ltd v Danswan (1993) 9 NSWCCR 225, this court held that, for the purposes of determining the amount of compensation payable, a loss falling within cl6, (as in Clutha, and in the present case) the loss was to be treated as having resulted from the post 1987 injury. That is, the lump sum was to be calculated on the basis of the amount that would be payable if the only injury or injuries involved had been received after the commencement of the new Act: see per Cripps JA (with whom Meagher JA agreed) at 236-236; see also New South Wales Department of Technical and Further Education v Pitt (1993) 9 NSWCCR 309. The situation disclosed in the two cases referred to has been altered by subsequent amendment, but not in a way that needs to be considered in relation to Ground 2 which does not challenge the amount of compensation awarded to the worker but the apportionment of the consequent liability between the two insurers. In JA Crockett Pty Ltd v Cox (1994) 10 NSWCCR 622 leave was sought to re-argue the correctness of the two cases just referred to, but leave was refused. Although the decisions made clear the position that in cases falling within cl6 the amount of compensation was to be determined on the basis that the whole effect of the injury had come about in the period governed by the new Act, no question had been raised about whether apportionment would be possible between old and new Act insurers in a case such as the present. However, for the old Act insurer it was submitted that there was a line of authority in this court which would require that the later of the two insurers should bear the whole liability, notwithstanding the apportionment power contained in s22 of the New Act, in the form in which it appeared at the time of these decisions. Amongst the decisions is Insurers Guarantee Fund - NEM General Insurance Association Ltd (In liq) v GIO General Ltd (1994) 33 NSWLR 247. The situation was fully examined in that case, and was to the general effect relied upon by counsel for the old Act insurer. However, one aspect of the situation disclosed by the detailed analysis in that case was as follows: "The section, apart from subs(4)" [which does not apply in the present case] "only applies in a Morris v George case where there is a common liability in two or more employers or insurers and it authorises an apportionment of that liability so as to exonerate each employer from so much of that liability as is apportioned to another." (at 266 per Handley JA) In The Council of Sutherland Shire v Baltica General Insurance Co Ltd (1996) 39 NSWLR 87 Clarke JA discussed this point and the fact that it had been accepted in subsequent decisions in this court: see at 91, where the various cases are listed. The line of authority thus shows that where the same liability has resulted from two injuries then the s22 apportionment power is available. Cl6 upon which the old Act insurer relies only comes into operation in that very situation. The line of authority relied upon by the old Act insurer would therefore be of no assistance to it if Egan J acted on the basis that the s66 loss resulted from the pre and post new Acct injuries. URJ GIO GENERAL LTD v BOJKO (Priestley JA) 9 If that were the case, then it would appear that the question emerging in the circumstances of the present case would be whether a loss mentioned in the Division 4 Table which has in fact resulted both from an old Act and a new Act injury, and which is to be treated as having resulted from the new Act injury, is to be borne (as between insurers) entirely by the new Act insurer because of the deeming effect of cl6, or whether it remains subject to the apportionment power of s22 because in fact the loss resulted from both injuries. This seems to me to be a question of construction of cl6 as it stood at the relevant time. It also seems to me that there are arguments both ways as to the answer to the construction question. My tentative view is that the better construction would be that the deeming provision in cl6 required that the amount of compensation was to be based on the actual condition of the worker after the later injury but did not itself say anything about how the liability for that amount of compensation should be borne. The deeming clause is expressly said to operate "for the purposes of determining the amount of compensation payable". It would follow that on this approach s22 was available to Egan J for the purpose for which he used it. However, I do not think the court should decide these points in this appeal. The matter principally relied on by counsel for the new Act insurer in the oral argument in regard to this ground was that the point raised under it had never been taken before Egan J. This submission however was not based on any direct knowledge of counsel but upon inferences he drew from a reading of the appeal papers. Simply on the appeal papers which were before this court I doubt whether it would be proper to draw the inference contended for by counsel. Senior counsel for the old Act insurer, who likewise had not been at the trial before Egan J, said his instructions were that the point had been argued. Evidentiary difficulties about what actually had been argued led to counsel for the new Act insurer saying he would accept what his opponents told the court (junior counsel for the old Act insurer having been at the trial below) had been argued there. The court was then told by counsel for the old Act insurer, based on junior counsel's notes, what the issues were that had been argued below. The full text of what the court was told appears at p17 and p18 of the transcript of the argument. Most of the noted issues were factual ones. All this court was told about any apportionment issue was: "Counsel for the first respondent" [the new Act insurer] "submitted that, upon the proper construction of s22, the court was entitled to apportion liability for s66 awards between the appellant" [the old Act insurer] "and the first respondent and that submission was opposed by counsel for the appellant." There was thus no assertion that Schedule 6 Pt6 of the new Act had been referred to. In light of the non assertion of any such argument having been put, I think the reasonable inference from the corresponding non reference by the judge to any such argument having been put is that in fact it was not put. Nor is there any indication whether there was any substantive argument on s22 itself. The silence of the experienced judge's reasons on the matter indicates it was not. It seems to me that had the points that have emerged in the course of the appeal been in any substantial contest before the trial judge, it is by no means improbable that the evidence given relating to the comparative effect upon the worker of the 1983 and 1988 injuries would have been treated in more detail than it was. From the point of view of this court in deciding whether or not points not argued at trial should be allowed to be argued on appeal, it is not necessary for the party opposing the argument of the points on appeal to show that the course 10 UNREPORTED JUDGMENTS of proceedings below WOULD have been different had the points been taken there, but that as a matter of reasonable possibility the course of proceedings MIGHT have been different. In my view there is a distinct possibility of that having been the case had the points been taken. Since on a view of the case which was open to the trial judge, and which was not contested before him, he had jurisdiction under s22 to do what he did, I do not think that the arguments relied on in support of Ground 2 by the old Act insurer in this appeal should be entertained in this court, in this case. In my opinion Ground 2 should be dismissed. GROUND 4. This ground shares the same fate as Ground 2. GROUND 5. The same reasoning pursuant to which Ground 2 should in my opinion be dismissed, applies to this ground also, which should also be dismissed. GROUND 6. In regard to the orders for interest on the s66 amounts, this ground fails consequentially upon the failure of Grounds 2, 4 and 5. In regard to interest on the s67 amount, an order should be made, consequential upon the order that I have proposed pursuant to my views on Ground 3, making it clear that the new Act insurer is to bear the whole of the interest on that amount. In engrossing the formal orders resulting from the decision of the court in this appeal, attention should be given to the apparent slip in formal 03(2), in regard to which it seems that in light of what the trial judge said in his reasons (at AB 127K-M) the amount should not be $10,008 (which is the sum of the two amounts mentioned by his Honour for the two injuries dealt with in O3 but $6,672. It may be there is some matter of which I am unaware which explains the $10,008 figure in which case the formal order would remain as it is. However, as I read his Honour's reasons and the formal orders it seems likely that a slip in engrossment has been made. In my opinion therefore the appeal should be dismissed, with costs, but there should be some orders added to those formally made below in order to implement the trial judge's decision fully. Draft minutes of the orders to be made should be filed with the Registrar of the Court of Appeal within twenty-eight days from the date of publication of these reasons. Waddell AJA I agree with Priestley JA. Appeal dismissed, with costs. Draft minutes of the orders according with the reasons of the court to be filed with Court of Appeal Registrar within twenty-eight days. Counsel for the appellant: PR Garling SC/P Hedman Solicitors for the appellant: William K Chambers Counsel for the first respondent: HG Shore Solicitors for the first respondent: Baker Love, Newcastle Counsel for the second respondent: M Joseph SC Solicitors for the second respondent: Hunt and Hunt