JOHN LYSAGHT (AUSTRALIA) LTD v COX [1990] NSWCA 99

JOHN LYSAGHT (AUSTRALIA) LTD v COX

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, MEAGHER and HANDLEY JJA 31 July, 14 September 1990

[1990] NSWCA 99

On 13 April 1987 a worker made a claim for compensation under s16 of the Workers' Compensation Act, 1926 in respect of the deterioration of his hearing in each ear. The employer agreed that deterioration had occurred and offered to pay specified sums in respect of the claim. Before the worker responded the 1987 Act came into force. The worker then sought to bring a claim for binaural loss of hearing under the later Act. Such a claim was not recognised by the 1926 Act. The employer contended that by virtue of CL3 and cl5 of Pt6 of Schedule 6 (the transitional provisions) of the 1987 Act the worker was not entitled to maintain the claim.

Held: (1) The worker had not agreed to receive compensation under the 1926 Act and accordingly CL3 did not apply.

(2) The loss in respect of which the claim was made resulted from an injury received before the commencement of the 1987 Act and was not a loss for which compensation was payable under s16 of the 1926 Act. It followed that CL5 applied and the worker was not entitled to maintain the claim.

Clarke JA The respondent suffers from industrial deafness in each ear which heclaims was caused by the noisy conditions in the appellant's factory in which he has worked at all relevant times. On 13 April 1987 his solicitors wrote to the appellant making a formal claim on his behalf under s16(1)A of the Workers' Compensation Act 1926 (as amended) ("the 1926 Act") in respect of the impairment of his hearing. In this claim the respondent's solicitors noted that the respondent may have made a previous claim for industrial deafness and sought details of any claim which he had made. The solicitors for the respondent also enclosed with the claim a copy of a medical report of Dr Senanayake.