ABB POWER TRANSMISSIONS PTY LTD IN THE INTERESTS OF FAI TRADERS INSURANCE CO LTD vy IRVINE FAI WORKERS COMPENSATION NSW LTD v IRVINE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE, MEAGHER and HANDLEY JJA 13 July 1995, 17 May 1996 [1996] NSWCA 3 WORKERS' COMPENSATION — insurers on risk — initial and subsequent injuries. WORKERS' COMPENSATION — apportionment under Workers Compensation Act 1987 s22. WORKERS' COMPENSATION — interaction of Workers' Compensation Act 1926 and 1987 Act under Sch 6 Pt6 of 1987 Act. The respondent worker sustained an injury in 1984 requiring the amputation of the right index finger for which he received compensation under s16 of the Workers' Compensation Act 1926. He continued normal duties but these caused the removal in 1986 of a lump in his right hand and both before and after this he had pains in his right wrist, arm and elbow. His duties were changed to operating cranes but he continued to experience problems and in 1988 had the index finger knuckle removed. Work-related pain continued until he ceased operating cranes in 1993. NEM General Insurance was on risk until 30 November 1983, FAI Traders' Insurance then until 30 November 1987 and FAI Workers' Compensation (NSW) Ltd thereafter. The three insurers contended that the sole cause of the worker's losses was the original injury but the trial judge held otherwise finding that a further injury was sustained due to the nature and conditions of his work between 1984 and April 1993. The trial judge held that the injuries were sustained both before and after the new Act. The injuries therefore fell under s66 and he assessed the losses above and below the elbow at the rates applicable in April 1993. An award was also made under s67. The awards were apportioned between all three insurers under s22 in the form enacted in 1991. The appellants challenged the finding that injuries were sustained as a result of the nature and conditions of employment since 1984 and the orders for apportionment. The third insurer challenged the permanency of the upper arm injury and the quantum was awarded on that basis. HELD, allowing the appeal in part: (1) The initial injury was not the sole cause of the losses and there were successive compensable injuries: Kooragang Cement v Bates (1994) 35 NSWLR 452 dist'd; (2) Medical evidence as to the permanence of the injuries had not been challenged; (3) No basis for disturbing the s66 and s67 awards in favour of the worker had been raised by the appellants; (4) An insurer is only liable for the consequences of injuries sustained while it is on risk: Manufacturers Mutual v National Employers Mutual (1990) 6 ANZ Ins Cas 61,038; Insurers Guarantee Fund v GIO General (1994) 33 NSWLR 247 followed; (5) The apportionment orders could not be supported on the construction of s22 as it then stood: Insurers Guarantee Fund v GIO General (1994) 33 NSWLR 247 applied. Clarke JA Robert Irvine, the worker, has been employed by ABB Power Transmissions Pty Ltd, the employer, since 1981. On 4 November 1983 he received an injury at work when a steel splinter entered his right index finger. This injury led, on 30 July 1984, to the amputation of the first joint of that finger and, on 3 August of that year, the rest of the finger. 2 UNREPORTED JUDGMENTS During the next two years he carried out his normal duties with some difficulties due to problems with his grip. As a consequence of his activities at work he developed a lump in his right hand which restricted its movements. In addition, he found that his duties at work caused him pain in his right wrist, arm and elbow. In May 1986 his doctor, Dr Giblin, surgically removed the lump in his right hand. In October 1986 his duties were changed and he commenced to operate two cranes. Although this work might have been easier for him to handle he still had difficulties and eventually the knuckle of his right index finger became tender. This condition led to another operation when, on 17 February 1988 the knuckle was removed resulting in a substantial incursion into his hand. Following his return to work as a crane driver he continued to experience pain in his right hand and arm up to his elbow. By 1989 his work caused pain above his right elbow and in his shoulder and he found that he was using his left hand more often. In 1993 his duties were changed and he found that he could cope much better with his new obligations. The worker brought a claim under s66 and s67 of the Workers Compensation Act 1987 ("the Act") against the employer contending that the difficulties with his right arm and hand resulted from an injury, or injuries, which he had sustained in the course of his employment. His case was that the disabling condition in his right arm was caused by: (a) the original frank injury suffered on 4 November 1983; and (b) his altered pattern of use of his hand during the course of his continuing employment secondary to the loss of grip strength. (The paraphrase of this claim generally adopted in the Compensation Court is "injury caused through nature and conditions of his employment".) The employer did not appear and contest his application. Instead the three insurers which indemnified the employer during the time from the original accident to the date of trial appeared separately in order to resist the claim made against the employer insofar as it effected the period when each was on risk and to advance or resist submissions made on apportionment under s22 of the Act. The worker's case was heard by Geraghty CCJ who, on 24 November 1993, delivered a reserved judgment in which he made the following findings: 1. The worker sustained injury to his right dominant arm as a result of the nature and conditions of his employment from 1984 to April 1993, as well as from an injury he sustained on 4 November 1983; 2. The permanent loss of use of the worker's right arm at or above the elbow and below the elbow, was a result of the incident of 4 November 1983, and from the nature and conditions of his employment as a mechanic and as a crane driver from 1984 to April 1993; 3. The permanent loss of efficient use of the right arm, at or above the elbow, should be assessed at 12 per cent and below the elbow at 20 per cent. His Honour accordingly made an award consistently with these findings and an award under s67 of the Act for pain and suffering. His Honour then proceeded to apportion liability in respect of those awards between each of the insurers. Notices of appeal were filed by the two insurers who came on risk subsequent to the frank injury of November 1983. At that time the employer was insured by NEM General Insurance Association Ltd which, at the time of trial, was in liquidation and was represented by the Insurers' Guarantee Fund. On 30 November 1983 it ceased to be the insurer of the employer and was replaced by FAI Traders Insurance Co Ltd, the first appellant, who remained on risk until 30 UBB POWER TRANSMISSIONS PTY LTD IN THE INTERESTS OF FAI TRADERS INSURANCE CO LTD v IRVINE (Clarke JA) November 1987. It was replaced by FAI Workers' Compensation (NSW) Ltd, the second appellant, who remained on risk until the time of trial. Both the appellants were concerned to establish before the trial judge, and they repeated their arguments in this Court, that they were not responsible in respect of the worker's claims. The fundamental basis for their arguments was that all his problems resulted from the original frank injury which occurred before either of them came on risk. Although the statement I have just made substantially encompasses the submissions made by their counsel before the trial judge (which were transcribed, and appear in the appeal book) it is important, I think, to refer to them in more detail. Mr Dodd, counsel for the first insurer, contended that because the worker had received the sum of $5,950 pursuant to an award of the Compensation Court made under s16 in respect of the loss of his finger and in the light of the opinion of Dr Isaacs he was not entitled to any award under s66 or s67. He was, in substance, supporting the arguments on causation advanced by counsel for the other insurers, although on the hearing of the appeal counsel then appearing for the first insurer took a different stance. Counsel for both appellants essentially restricted their arguments to the issue of causation. Both said that all the worker's problems flowed from the frank injury in 1983. It is true that counsel for the first appellant contended that as his client was on risk only for a very short period after the passing of the Act in 1987 it could not be liable for awards under s66 and s67 but he went on to add that if his client was liable the trial judge should apportion liability between all the insurers under s22. Indeed Mr Levick, counsel for the first appellant, informed the trial judge that all insurers asked him to apportion liability. Despite this statement none of them made any submissions as to the way his Honour should apportion that liability. Prior to the hearing of the appeal the first appellant, by consent, amended its notice of appeal. In the amended notice it raised five separate grounds of appeal although the first three all challenged his Honour's finding on causation. Ground 4A, which was added by amendment, asserted error in the trial judge in apportioning, having regard to the decision of this Court in MLC Insurance Ltd v Pinto and Anor ((1994) 8 ANZ Insurance Cases 61-211). Ground 4 asserted error in his Honour in apportioning liability and particularised six separate grounds of error. The second appellant also relied on five grounds of appeal. In its notice the first two of those grounds challenged causation, the third was a general assertion that his Honour erred in his consideration of the medical evidence and the fourth and fifth were directed at the apportionment by the trial judge. Both appellants applied for leave further to amend their notices of appeal during the course of the hearing. They sought to argue that his Honour was in error in awarding compensation under s66 of the Act in respect of an injury below the elbow and an injury above the elbow. They relied on a decision of the High Court in KB Hutcherson Pty Ltd v Correia (1595) 69 ALJR 280, a decision published after the trial judge had made his awards. Handley JA has concluded that leave to raise this issue should not be granted and I agree with his Honour's conclusion. The appeal therefore falls to be determined upon the grounds raised in the notices of appeal which, succinctly stated, were causation and apportionment. 4 UNREPORTED JUDGMENTS It is only the first question which affects the worker and in my respectful opinion the appeal on this ground must fail. None of the appellants have demonstrated any error in his Honour's reasoning to his conclusion on this ground and I am content to express my agreement with Handley JA that there is no merit in it. It follows that, the worker having succeeded on the only issue raised in the appeal which affected his entitlement under the award of Geraghty CCJ, so much of the appeal must fail. I say this notwithstanding that the second appellant, in its written submissions, contended that the permanent loss resulting from the worker's injury was much less than his Honour's assessment. There was no ground of appeal which raised this question and I would not be disposed to entertain it. In any event it would, in my opinion, be bound to fail for the reason that there was evidence which clearly supported that conclusion (and I refer in particular to the evidence of Dr Collins who assessed the permanent loss in the figures accepted by his Honour) and no reason appears which would justify this Court in interfering with his Honour's acceptance of that evidence. I should add that counsel for the second appellant sought to support this submission in oral argument by questioning whether the worker's losses were permanent. Dr Collins clearly thought so and his Honour was entitled to accept the doctor's opinion. But quite apart from that consideration the question of permanence was never raised as an issue in the submissions before the trial judge and it is not open to this Court to entertain it on the appeal. Clearly enough if there had been an issue on permanence further evidence could have been called by the worker. It is not completely irrelevant that neither appellant cross-examined the worker (the only witness) nor led any evidence. The orders of apportionment stand in a different category. His Honour was invited to apportion but received no assistance at all on the principles to be applied in the apportionment process. Consequently, and completely understandably, his Honour gave a judgment which substantially affected the insurers without giving reasons for making the apportionment in each case. Furthermore, as Handley JA has pointed out, his Honour's orders cannot be supported on the construction of s22 which has been laid down in a series of decisions of this Court. In both appeals I agree with the orders proposed by Handley JA. Meagher JA I agree with Clarke JA. Handley JA These are appeals by two insurers of the same employer from awards of lump sum compensation by Geraghty CCJ. On 4 November 1983 Robert Irvine (the worker) was injured at work when a steel splinter entered his right index finger. On 30 July 1984 Dr Giblin amputated the first joint of that finger and on 3 August that year the rest of that finger. Between 1984 and 198G the worker carried out his normal duties as a second class machinist but had problems with his grip. As a result he developed a lump in his right hand which restricted its movements. This was removed by Dr Giblin in May 1986. Before and after this operation the worker's normal duties caused pain in his right wrist, arm and elbow. He found it increasingly difficult to use his tools of trade, and w as unable to wrap electrical tape tightly enough around cable. In October 1986 his duties were changed and he commenced to operate two cranes. One was a 200 tonne crane which was operated from about seventy feet above the ground. The worker found it difficult to grip the steps when climbing UBB POWER TRANSMISSIONS PTY LTD IN THE INTERESTS OF FAI TRADERS INSURANCE CO LTD v IRVINE (Handley JA) into the cabin and had problems getting down but could drive this crane without difficulty. The other was a pendent crane which was operated by buttons which had to be kept pressed. The worker used his thumbs for this purpose. He said there was quite a bit of pressure in the work and he could only do the work with his right hand for short periods before experiencing pain. Over time the knuckle of the right index finger became tender. During 1987 he experienced pins and needles in his hands and pain and numbness in his right hand and wrist particularly affecting his thumb and middle finger. He also had pain in his right arm. In November 1987 he came under the care of Dr Isaacs and on 17 February 1988 the knuckle beneath the index finger was removed resulting in a substantial incursion into his hand. Following his return to work as a crane driver he again experienced pain in his right hand, wrist, and arm up to his elbow. By 1989 his work caused pain above his right elbow and in his shoulder and he was using his left hand more often. By 1992 he was developing problems in his left arm. Fortunately his duties were changed in April 1993 and he became a despatch clerk, coping well with his new duties which did not place too much strain on his right arm. He still had to drive a crane in rare emergencies but only the larger one. These facts have given rise to much legal disputation owing to different insurers being on risk at different times, the repeal of the Workers Compensation Act 1926 on 30 June 1987 and the commencement of the 1987 Act. NEM General Insurance was on risk until 30 November 1983. It was represented by the Insurers' Guarantee Fund and was a respondent in both appeals. FAI Traders' Insurance, the second insurer, was then on risk until 30 November 1987. FAI Workers' Compensation (NSW) Ltd, the third insurer, was on risk thereafter. Medical evidence relating to the condition of the worker's right arm was given in report form by Drs Isaacs and Collins who qualified on his behalf. The insurers called no evidence. Dr Isaacs said in his early reports that the worker had a mild carpal tunnel syndrome which he had treated conservatively. The worker also had at and above his elbow a brachial flexitis, a tennis elbow syndrome and possible axcillary plexitis and lateral epicondylitis. He reported that the worker began to complain of pain in his right upper arm about mid 1988. The majority of the worker's discomfort was brought on by his work as a crane driver and was due to altered patterns of use of the right hand due to the loss of his previous grip strength. In his final report of 13 October 1993 Dr Isaacs said that the worker's disability had two components. The "main" component below the elbow was related to the amputation of his right index finger which he assessed as 20% loss of efficient use. His more proximal symptoms were related to "a fairly chronic axcillary plexitis" which affected the arm at and above the elbow. He considered that this caused a 10% loss of efficient use at and above the elbow. Dr Collins reported on 11 October 1991, 9 July 1992 and 7 September 1993. In his first report he referred to a diagnosis of carpal tunnel syndrome but did not advise surgery. He did not refer to this syndrome in his later reports. His last report concluded: "T believe that the efforts he has made to carry out his work with his right hand... have led to an overuse syndrome affecting the flexor muscles and tendons of the forearm and also to development of irritation to the right ulnar nerve. He has an overuse syndrome affecting his pectoral muscles in the region of the right axilla". 6 UNREPORTED JUDGMENTS He assessed the worker's permanent loss below the elbow at 20% and at or above the elbow at 12%. On 27 July 1992 a Medical Panel assessed the permanent loss at or above the elbow at 25%. The three insurers contended that the sole cause of the worker's losses was the original injury. The judge held: "\.. the true cause of the applicant's present loss is twofold: firstly, the injury to his arm caused by and resulting from the nature and conditions of his employment from 1984 to April 1993; and secondly the original injury which in itself resulted in a loss, but not the same loss nor the same degree of loss as he now experiences". The judge considered the relevant transitional provisions in Schedule 6 Pt6 of the 1987 Act and in particular cl4 and cl6. He held that the worker had losses below and at or above the elbow which resulted from injuries received before and after the 1987 Act. He applied cl6 and held that "the loss" was to be treated as having resulted from an injury received after the new Act which therefore fell within s66. He assessed the losses above and below the elbow in accordance with the opinion of Dr Collins and awarded compensation at the rates applicable in April 1993. He also awarded compensation under s67. He then purported to apportion the burden of his awards among the three insurers pursuant to s22. On 21 March 1985 the worker had been awarded $5,950 under s16 of the 1926 Act for the total loss of his right forefinger. By the judgment under appeal the worker has been awarded another lump sum under the 1987 Act for his full loss below the elbow without any allowance for the losses sustained before the Act or the compensation paid for them. At the date of the judge's award the 1987 Act contained no provision requiring credit to be given for lump sum compensation awarded under the 1926 Act. The second and third insurers appealed. When the appeal came on for hearing counsel for the third insurer was heard first. At an early stage he sought leave to amend its notice of appeal to rely on KB Hutcherson Pty Ltd v Correia (1995) 183 CLR 50 in order to challenge the awards for loss of efficient use of the right arm both above and below the elbow. He also sought leave to add a ground alleging that the judge should have apportioned liability under s22 in respect of so much of the worker's loss as was due to the nature and conditions of his employment. Counsel for the second insurer also sought leave to add a ground raising the KB Hutcherson Pty Ltd v Correia point. Counsel for the worker opposed these applications. The Court heard argument and reserved its decision to its final judgment. Neither point was taken at the trial, there are no relevant findings and evidence was not directed to these issues. If the appeal were to be allowed on either ground the Court would have to order a new trial. In such circumstances this Court has declined to allow appellants to take advantage of the decision in KB Hutcherson Pty Ltd v Correia. See Australian Specialised Meat Products v Turner (C/A unreported, 17 July 1995). In my opinion, both applications should be refused. The appellants attacked the judge's finding that the worker's problems in his right arm as a result of his overuse syndrome had been caused in part by the nature and conditions of his employment since 1984. They relied on Kooragang Cement v Bases (1994) 35 NSWLR 452 to establish that the original injury and the amputations were the sole cause of the losses. On this basis the first insurer alone would be liable. UABB POWER TRANSMISSIONS PTY LTD IN THE INTERESTS OF FAI TRADERS INSURANCE CO LTD v IRVINE (Handley JA) The disabilities due to the worker's overuse syndrome were a natural and foreseeable result of the original injury. He could have recovered damages for those losses in an action based on the original injury given negligence or a breach of statutory duty. However this does not establish that those losses were not also the result of further compensable injuries. That is a common occurrence which has been much litigated because it is not expressly covered by the provisions in the 1926 and 1987 Acts for adjusting the burden of damages and compensation. See Kempsey District Hospital v Thackham (1995) 36 NSWLR 492 and the cases there cited, and also Mahony v Kruschich Demolitions (1985) 156 CLR 522 at 527, 531 and March v Stratmare (1991) 171 CLR 506 at 514, 518. In Kooragang Cement v Bates the deceased ceased work on 10 June 1983 following a back injury in 1981. He died in 1992 of a heart attack which was found to have been the result of the back injury. That case is clearly distinguishable because it did not involve successive work injuries. In my opinion the judge was not required in this case to find that the original injury was the sole cause of all the worker's disabilities. Such a conclusion would defy common sense which has been said to be the basis of our legal concepts of causation. Indeed the evidence in favour of the judge's finding was almost overwhelming. Both appellants relied upon the decision of this Court in Manufacturers Mutual v National Employers Mutual (1990) 6 ANZ Ins Cas 61038 as authority that an insurer is only liable for the consequences of injuries sustained while it is on risk. This is undoubtedly the case. See also Insurers Guarantee Fund v GIO General (1994) 33 NSWLR 247 at 265. On this basis the appellants contended that they could not be jointly and severally liable with the first insurer to indemnify the employer for these lump sum awards. The judge found that the worker's losses were permanent. He made no finding that the losses due to his overuse syndrome were progressive and irreversible. Indeed, as the second insurer submitted, there was no express finding of injury while it was on risk. On the other hand there was no finding that those losses were suffered at particular times when parts of his condition having previously been reversible became permanent. If findings of the latter kind had been made the employer would have been entitled to be indemnified by each insurer for so much of the losses as occurred while it was on risk. Such orders would ordinarily be based on the rates of compensation in force when those losses occurred. On the other hand if his losses increased imperceptibly each working day there might be difficulties in making lump sum awards without legislation similar to that applicable to diseases and industrial deafness (s15, s16, s17). Nevertheless it may be possible to make such awards at some average of the rates in force during the relevant period, and a single award at the rate in force at the date of the last causative injury may be authorised by s65(3) in some cases. The judge did not find that the losses due to the overuse syndrome occurred in April 1993. Indeed his order apportioning 30% of the liability under the s66 award to the second insurer and 35% to the third demonstrates that this was not the case. He may have applied s65(3) but he did not refer to it in his reasons (not was it referred to in argument in this Court) and his findings were not directed to the issues it would raise. In particular there was no finding that the worker suffered a single loss at some time as a result of his over use syndrome and not a series of discrete losses at different times. 8 UNREPORTED JUDGMENTS There are further difficulties. The worker's losses by amputation occurred on 30 July 1984, 3 August 1984, and 17 February 1988. It is beyond argument that the first two were due to an injury or injuries received before the 1987 Act. The worker's losses increased after the new Act but this does not alter the fact that those two losses appear to have already crystallised. They appear to fall within cl4 of Schedule 6 Pt6 of the 1987 Act which provides: "The amount of compensation payable to a worker who has suffered a loss of a thing mentioned in the Table to Division 4 of Pt3 of this Act (not being an occupational disease...) shall be determined in accordance with s16 of the former Act... if the loss resulted from an injury received before the commencement of that Division". The worker had an operation in May 1986 for the removal of a lump from his right hand but there is no finding that this caused further permanent loss. There is evidence in Dr Isaacs' report of 13 October 1993 which would support a finding that there was no such loss. A further difficulty arises in relation to the amputation on 17 February 1988. This loss may have been the result of the original injury alone, but more likely was the result of that injury and the nature and conditions of the worker's employment since 1984. On the former view cl4 of Pt6 would apply and the loss would be compensable under s16. On the latter view cl6 of Pt6 would apply and the loss would be compensable under s66 of the new Act at the rate of compensation in force in February 1988. That loss, if any, was not assessed by the judge. Dr Isaacs considered this question in his report of 13 October 1993. He said: "That amputation was not finalised by me until early in 1988 but I assess that the relief of his neuroma discomfort following the metacarpal resection compensated for the loss of palmar width and therefore there was no change from what his disability would have been in 1985 ie 20% loss of efficient use... below the elbow". Dr Collins did not express any view on this question. The proportion allowable for a total loss below the elbow is 75% of the overall maximum and the judge allowed 20% or one-fifth of 75%, that is 15% of the overall maximum. This was less than 21% of that maximum allowable for the total loss of the forefinger. This suggests that the 20% was an under-estimate but it also supports Dr Isaacs' view that there has been no further loss below the elbow since 1985. This is also consistent with the fact that neither doctor reported finding carpal tunnel syndrome in their later reports. However none of these matters were raised before the trial judge or this Court. Instead the insurers elected to fight the case at the trial and on appeal on other and narrower issues. Both the appellants in their Notices of Appeal challenged the judge's findings that the worker had sustained an injury as a result of the nature and conditions of his employment from 1984 to April 1993 and the further finding that the frank injury of November 1983 was not the sole cause of his problems. Both appellants also challenged the order for apportionment. The third insurer's written submissions stated that there were broadly two issues in the appeal - causation and "to what extent, if at all should the appellant be liable to indemnify the employer for permanent loss of use of the right upper limb". The third issue based on the High Court decision in KB Hutcherson v Correia was also foreshadowed. This appellant's submission on quantum in relation to the right upper limb also challenged the finding that this loss was permanent. UABB POWER TRANSMISSIONS PTY LTD IN THE INTERESTS OF FAI TRADERS INSURANCE CO LTD v IRVINE (Handley JA) The Notice of Appeal of the second insurer challenged the findings on causation and injury as a result of the nature and condition of the worker's employment and the apportionment order. The latter challenge was supported on grounds which included the absence of an express finding of injury while this insurer was on risk, and the judge's adoption of the compensation rates in force in April 1993, well after this insurer had gone off risk. The oral submissions for this appellant were principally directed to the apportionment order, counsel submitting that the apportionment should have been between the first and third insurers. Accordingly the only clear challenges to the awards in favour of the worker were those directed to the findings of causation and injury due to the nature and condition of his employment, the quantum of his loss in the right upper limb and whether this was permanent. I have already dealt with the issues of causation and injury. There was ample evidence, including that of the Medical Board, that the worker's losses were permanent, and no evidence to the contrary. The evidence called for the worker presented the trial judge with a range of estimates of the loss to his right upper limb and there is no basis for a finding of error. Having regard to the conduct of the trial and the appeals there is no basis for disturbing the s66 award in favour of the worker. The judge awarded $12,500 for pain and suffering under s67. He held that this head of compensation was only allowable for pain and suffering in respect of injuries received after July 1987. The maximum allowable as at April 1993 was $64,650. Compensation payable for pain and suffering is to be calculated by reference to the adjusted maximum in force at the date of injury (s67(6)), although this is subject to the operation of s65(3). The worker may have received an injury in April 1993 although there is no finding to this effect. Even if he did it seems he also received either a number of discrete injuries at different times after 30 June 1987 or received his loss progressively. There was no apparent justification, on the Judge's express findings, for awarding the whole of the compensation for pain and suffering at the rate applicable in April 1993. In particular there was no finding that the worker suffered the whole of his post 1987 injury while that rate was in force. Moreover, in the absence of appropriate legislation similar to that applicable to diseases and industrial deafness (s15, s16 and s17) there appear to be difficulties in satisfying the 10% threshold requirement in s67(2) if the worker was receiving new injuries at work daily. The compensation payable under s66 for each of these daily losses would be less than 10% of the maximum referred to in s66(1). There may have been another difficulty. The judge's award of 12% in respect of the arm above the elbow did not exceed the 10% threshold. The maximum for loss of the right arm at or above the elbow was 80%. The proportion of 12% of 80% as awarded by the judge is 9.6%. If this was the only award under s66 the worker would not be entitled to an award under s67. However none of these points were raised before the trial judge or this Court. The notices of appeal of the second and third insurers simply challenged any apportionment of the s67 award against them. In these circumstances the award under s67 cannot be disturbed. Accordingly the appeals against the awards in favour of the worker fail and must be dismissed. However the orders for apportionment must be set aside because they cannot be supported on the construction of s22 in its then form which has been adopted in this Court. See Insurers Guarantee Fund v GIO UNREPORTED JUDGMENTS General (1994) 33 NSWLR 247 and the cases in which this decision has been followed. Although the appeals must be allowed on this ground, which raises a pure question of law, it is clear that no such point was ever taken before the trial judge. Since both appellants succeed on a question of law not taken below, orders 5 for costs should not be made in their favour against the first insurer. See NRMA Insurance v B and B Shipping (1947) 47 SR (NSW) 273 at 282. In my opinion the following formal orders should be made: CA 40750 OF 1993 1. 2. Appeal against the orders for apportionment allowed. Appeal against the awards under s66 and s67 in favour of the worker dismissed. 3. The appellant to pay the worker's costs of the appeal. 4. 5. Proceedings remitted to the Compensation Court for determination in Otherwise no order as to costs. accordance with the decision of this Court. CA 40752 of 1993 1. Appeal against the orders for apportionment allowed. 2. Appeal from the awards under s66 and s67 in favour of the worker dismissed. 3. Appellant to pay the worker's costs of the appeal. 4. Otherwise no order as to costs. 5. Proceedings remitted to the Compensation Court for determination in accordance with the decision of this Court. Counsel for the Appellant (FAI Workers Compensation): J Hislop QC and P Evans Solicitors for the Appellant (FAI Workers Compensation): Vandervords Counsel for the Appellant (FAI Traders): JL Sharpe Solicitors for the Appellant (FAI Traders): Edwards Johnstone and Sullivan Counsel for the Respondent (Worker): GB Hall QC and M Perry Solicitors for the Respondent (Worker): Taylor and Scott Counsel for the Respondent (Insurers Guarantee Fund): RA Vincent Solicitors for the Respondent (Insurers Guarantee Fund): Hunt and Hunt