ELECTROLYTIC REFINING and SMELTING COMPANY OF AUSTRALIA LTD v JIMINEZ [1991] NSWCA 90

ELECTROLYTIC REFINING and SMELTING COMPANY OF AUSTRALIA LTD v JIMINEZ

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, PRIESTLEY JJA and Hope AJA 13 March 1991, 26 June 1991

[1991] NSWCA 90

INDUSTRIAL DEAFNESS — WORKERS' COMPENSATION AMENDMENT ACT 1987 APPEAL from District Court — In 1985 plaintiff sued for damages for industrial deafness arising between 1979 and 1984 — Award $48,850, including $40,000 for general damages and $3850 for interest to trial. WHETHER Workers' Compensation Amendment Act 1987 disentitled plaintiff to damages in respect of injuries arising after 1987 and that damages included award for such injuries — Whether award of $40,000 general damages appealably excessive. HELD: Award of $40,000 not appealably excessive. HELD: Submissions based on Workers' Compensation Amendment Act 1987 were not based on defence pleaded or issues raised at trial — Not allowed to be relied on on appeal. HELD: In any event, notwithstanding s149 of the Workers' Compensation Amendment Act 1987, plaintiff was entitled to recover damages for aggravation of industrial deafness even though it occurred after proceeding commenced. ORDER Appeal dismissed with costs.

Mahoney JA I agree with Hope AJA. Priestley JA I agree with Hope AJA.

Hope AJA The plaintiff, who came to Australia from Spain in 1974 commenced employment with the defendant in May 1979. In the course of his work he was subjected to a considerable amount of industrial noise, and after some time began to suffer industrial deafness. In January 1985 he commenced proceedings in the District Court for the injury, commonly called industrial deafness, which he claimed that he had suffered between May 1979 and 1984 during the course of his employment by the defendant, and for disabilities consequential upon that injury from which he claimed he had suffered since 1984.