DEPT OF EDUCATION, PARKES HIGH SCHOOL v HOWLETT SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL COLE, BEAZLEY JJA and ABADEE AJA 27 November 1996 [1996] NSWCA 150 Lourdes House Hospital v Wheeler (unreported), Court of Appeal, 3 October 1996 followed. Cole JA The Respondent suffered compensable injuries to her back and legs. On 20 April 1993 Judge McGrath held that her back problems were related to an injury caused on 18 August 1989. His Honour found that she had suffered permanent impairment of her back of twenty per cent and made an order pursuant to s66 of the Workers Compensation Act 1987. His Honour was not persuaded that she had suffered any loss of function in her legs. A further order for compensation for pain and suffering pursuant to s67 was made in the sum of $15,000 equivalent to 34 per cent of a most extreme case. Thereafter the Respondent underwent further medical procedures. The second proceedings were commenced by the injured worker for compensation claiming moneys pursuant to s66 and s67 in relation to the Respondent's back injuries and leg injuries. Judge Maguire on 13 February 1996 made orders pursuant to s66 for moneys payable for 50% permanent impairment of the back, 15% loss of the efficient use of the left leg and 10% of the efficient use of the right leg. In addition a s67 payment in the sum of $25,000 was ordered representing 57% of a most extreme case. On Appeal the employer initially advanced three submissions. The third submission was abandoned at the hearing. The first submission is that the Compensation Court had no power to make the further awards pursuant to s66 and s67. The appropriate procedure where additional sums were sought was to seek a reconsideration pursuant to s17(4) the Compensation Court Act. The second submission was to similar effect in respect of s67, it being asserted that it makes clear by its terms that only one application pursuant to the section can be brought. Although the written submissions on behalf of the Respondent contended that these two submissions were not advanced in the Court below at the hearing of the Appeal it was accepted that they were. In my view success in relation to the two submissions to which I have referred is precluded by the decision of this Court in Lourdes House Hospital v Wheeler.! Each of the submissions was advanced and rejected by this Court in that case. The endeavour to distinguish that case in my opinion fails, it is apparent on my reading of the judgments that Priestley JA with whom Clarke JA agreed addressed the question of the construction of the relevant provisions of the Act as a matter of principle. Whilst Powell JA expressed a different view, this Court should follow the majority view unless it be disturbed on Appeal to the High Court or leave to re-argue the questions of principle be granted. No such leave was sought nor would it be granted in respect of such a recent decision. 1. (Unreported), Court of Appeal, 3 October 1996. 2 UNREPORTED JUDGMENTS Senior Counsel for the appellant accepted that the decision of Priestley JA dealt with the matter on the basis of principle and accepted that if that approach were adopted then he must fail. However, he sought not only to distinguish the decision in Lourdes House Hospital but also to contend that the reasons of Clarke JA indicated a view which did not in truth accord with that of Priestly JA. I do not think those submissions should be sustained. Clarke JA commenced his reasons by saying, "I agree with the orders proposed by Priestley JA and generally with his Honour's reasons". It follows that there is a majority view of this Court addressing the matter as a matter of principle and in my opinion this Court should follow that decision. The endeavour to distinguish Lourdes House Hospital v Wheeler was put on two bases. First it was said that in that decision there was no prior award in relation to s66. The first compensation referred to was in fact by agreement. Thus it was argued that Priestley JA's decision should be regarded as obiter in relation to the present circumstances where there are successive awards. The second basis of asserted distinction was that in the Lourdes House Hospital case there was no earlier binding s67 decision as here there is. I do not think either basis of distinction should be upheld. As I have said Priestley JA addressed the matter upon the basis of principle and upon the basis of the proper construction of the Act. In my opinion this Court is obliged to follow the majority view in that decision. It follows accordingly that the Appeal should be dismissed with costs. Beazley AJA I agree. Abadee AJA I agree. Cole JA The orders will be as I have proposed The appeal is dismissed with costs. Counsel for the appellant: CR Hoeben QC/J Renwick Solicitors for the appellant: Moray & Agnew Counsel for the respondent: J Wynard Solicitors for the respondent: McIntosh Emerton & Thomas