PASALIC v VANA PTY LTD [1994] NSWCA 250

PASALIC v VANA PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, PRIESTLEY and POWELL JJA 6 June 1994, 17 August 1994

[1994] NSWCA 250

Appeal from Compensation Court — Compensation for binaural hearing loss — Effect of Schedule 6 of Workers Compensation Act 1987 CL5 and CL5A — Basis of assessment of hearing loss.

Interest — Award of interest — s19A of Compensation Court Act — Principles on which interest to be awarded — Effect of Marsland v Andjelic [No 2] (Court of Appeal, 24 December 1993, unreported).

ORDERS

1. Appeal upheld with costs. 2. Judgment not to be entered until after the expiration of fourteen days from this date.

3. Liberty reserved to either party to apply to the Court for such other or different order for interest as in the circumstances may be appropriate.

4. If, by the expiration of that period, no application has been made or if the parties are not in agreement that some alternative order should be made, then the judgment of this Court should be entered accordingly.

5. The respondent to pay the appellant's costs of the appeal and have a certificate under the Suitors' Fund Act, if otherwise entitled.

Mahoney JA This appeal concerns the interpretation of the Sixth Schedule of the Workers Compensation Act 1987.

The applicant worker was employed by the respondent Co Vana Pty Ltd until a date in 1984. During his employment he suffered hearing loss arising out of the employment. The loss in the left ear was about eleven per cent and the loss in the right ear about eight per cent. His binaural loss was 8.6 per cent.

The loss was the result of an injury which, as it is agreed, was deemed to have occurred on the last date of his employment in 1984.

In 1984 the then existing legislation, the Workers Compensation Act 1926, made provision for a form of compensation in respect of the loss of hearing: see s16. The worker made no application for compensation under that Act.