PRINCE OF WALES HOSPITAL v VYMENETS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MASON P, MEAGHER JA and FITZGERALD AJA 17 September 1998, 17 September 1998 [1998] NSWCA 173 WORKERS COMPENSATION ACT s40(2) calculation of compensation — permanent partial incapacity arising from two separate injuries. Fitzgerald AJA The respondent was employed by the appellant from November to 27 September 1995. Initially she was employed as a cook. She injured her groin and right leg on 28 June 1991. At least by August 1993 she was unable to continue cooking duties as a result of that injury and she was assigned to washing up and the role of a general assistant. She developed dermatitis from the washing up work and was certified unfit for further employment at the hospital on 27 September 1995. The single question of law raised by this appeal concerns the amount of the respondent's entitlement under subs40(2) of the Workers Compensation Act 1987 in respect of her permanent partial incapacity since 27 September 1995. That incapacity is related to the respondent's two injuries, the injury to her groin and right leg and her dermatitis condition. It is common ground that, but for her injuries, that is but for either the groin and right leg injuries and the dermatitis condition, the respondent's probable earnings would have been $455 per week. There is no finding or suggestion that the respondent is unable to earn $250 per week with her combined groin and right leg injury and dermatitis condition. In a judgment delivered on 23 September 1997, the Compensation Court of New South Wales held that, although the respondent would be able to earn $455 per week uninjured and is still able to earn $250 per week with both the injury to her groin and right leg and her dermatitis condition, a difference of $205 per week, she is entitled to $360 per week for her permanent partial incapacity. This surprising conclusion was arrived at by treating the respondent's uninjured earning capacity of $455 per week as a separate starting point in respect of each of her injuries. From that starting point of $455 per week, the trial judge deducted $300 per week in respect of her groin and right leg injury, described by her Honour as resulting in a continuing loss of $125 per week in respect of that condition. Then, again taking the figure of $455 per week as her starting point, her Honour deducted $250 per week, being the sum which the respondent is able to earn with her dermatitis condition, resulting in a loss of $205 per week in respect of that condition. Her Honour then aggregated the two sums of $155 and $205 per week, arriving at the total referred to above of $360 per week. Nothing in s40 of the Workers Compensation Act requires or supports that conclusion. The starting point of $455 per week is related to the respondent as a person who has neither the injury to her right leg and groin, nor her dermatitis condition. The effect of the injury to her groin and right leg was to reduce her capacity to earn to $300 per week and the effect of the dermatitis condition was 2 UNREPORTED JUDGMENTS to further reduce her capacity to earn to $250 per week. Her entitlement to compensation in respect of her permanent partial incapacity is the difference between the latter sum; of $250 per week and the amount which she would have been able to earn uninjured, $455 per week, that is a total of $205 per week. The appeal should be allowed with costs to be taxed and O1, O1AB and O2 made in the Compensation Court should be set aside. An order that the appellant pay the respondent $205 per week in respect of her partial incapacity for work weekly compensation at the rate of $205 from 27 September 1995, such weekly payments to continue in accordance with the provisions of the Workers Compensation Act 1987 should be substituted. The respondent, if qualified, should have a certificate under the Suitors Fund Act. Mason P IJ agree. Meagher JA I also agree. Mason P The orders of the Court will be as proposed. The appeal is allowed with costs to be taxed and O1, O1AB and O2 made in the Compensation Court are set aside. An order that the appellant pay the respondent $205 per week is respect of her partial incapacity for work weekly compensation at the rate of $205 from 27 September 1995, such weekly payments to continue in accordance with the provisions of the Workers Compensation Act 1987 are to be substituted. The respondent, if qualified, is to have a certificate under the Suitors Fund Act. Counsel for the appellant: L King SC Solicitors for the appellant: Abbott Tout Counsel for the respondent: C Evatt/ M Rollinson Solicitors of the respondent: Carters