DJ BATCHEN PTY LIMITED v SAUNDERS [1991] NSWCA 72

DJ BATCHEN PTY LIMITED v SAUNDERS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, CLARKE and HANDLEY JJA 27 March 1991, 27 March 1991 [1991] NSWCA 72

STATUTORY CONSTRUCTION — COMPENSATION ACT 1987 — SCHEDULE 6, Pt6 CL4 — OCCUPATIONAL DISEASE — BOILERMARKERS' DEAFNESS

Clarke JA The question at issue in this appeal concerns the meaning of the words "not being an occupational disease within the meaning of s71 of this Act" where they appear in CL4 of Pt6 of Schedule 6 of the Workers Compensation Act 1987.

The circumstances in which the difference between the parties arose can be shortly stated. The respondent claimed that he was suffering from boilermaker's deafness and he gave notice of his claim on 28 August 1986.

It is accepted by the appellant in these proceedings that by virtue of the provisions of the Workers Compensation Act 1987, which I shall continue to refer to as "the Act", that date should be regarded as the notional date of injury.

Approximately 9 months after the date of injury and before the hearing of the claim in respect of which the respondent had given notice, the Act was passed, coming into force on 30 June 1987. The Act repealed the 1926 Workers Compensation Act and provided a code under which compensation claims by workers fell to be determined. (See John Lysaght Australia v Cox, Court of Appeal, 14 September 1990, unreported.)

When the respondent's case duly came on for hearing an issue was raised as to whether his claim for compensation should be determined under s16 of the 1926 Act or Division 4 of Pt3 of the Act.

The resolution of this issue depended, according to the arguments advanced in the court today, on the meaning of CL4 of Pt6 of Schedule 6 of the Act. That clause reads:

"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 within the meaning of s71 of this Act) shall be determined in accordance with s16 of the former Act instead of Division 4 of Pt3 of this Act if the loss resulted from an injury received before the commencement of that Division."