SMITH v JAQUES CULLEN PTY LIMITED [1988] NSWCA 137

SMITH v JAQUES CULLEN PTY LIMITED

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KirBy P, Hope and SAMUELS JJA 27 April 1988

[1988] NSWCA 137

WORKERS' COMPENSATION — boilermakers' deafness — award of compensation in 1971 based on Medical Board report — later claim in 1980 — claim dismissed — judge holds no nexus established between deterioration in hearing and employment — whether decision involves going behind earlier award and findings inherent in it — whether issue estoppel precludes finding — case stated to Court of Appeal — held: (Hope JA; Kirby P and Samuels JA concurring) (1) Judge not precluded from finding of fact that no relevant nexus to employment of deterioration in hearing; (2) No issue estoppel precludes finding; (3) Case stated answered accordingly. The Electricity Commission of New South Wales v Benham, unreported, CA, 26 October 1981 distinguished.

EVIDENCE — issue estoppel — earlier award of Workers' Compensation Commission — later claim for alleged deterioration of hearing of worker — employer challenges connexion with employment — whether such challenge precluded by issue estoppel — held: Not so precluded. Workers' Compensation Act 1926, s16(1A), s16(5A).

ORDERS

1. Case stated answered: (a) No. (b) Does not arise.

2. Claimant to pay opponent's costs.

Hope JA This is an appeal by way of a stated case from an award made by his Honour Judge McGrath in favour of the respondent in a case where the applicant worker was seeking compensation pursuant to the provisions of s16(1A) of the Workers Compensation Act 1926 in respect of what he claimed to be a diminution in his hearing due to what is commonly called boilermaker's deafness.

The history of the matter may be shortly stated. The worker was at all times employed in a business in parts of which there was such noise as could cause persons working there to suffer the condition of boilermaker's deafness. The worker suffered a degree of deafness and in 1970 made an application to the Workers' Compensation Commission against the employer claiming compensation for that deafness.