PASMINCO MINING - BROKEN HILL v MANERA [1995] NSWCA 361

PASMINCO MINING - BROKEN HILL v MANERA SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, HANDLEY and SHELLER JJA

8 August 1995, 24 August 1995

[1995] NSWCA 361

WORKERS COMPENSATION — industrial deafness injury — s67 award

On 6 February 1995, Judge Johns awarded the worker, Emmanuel Manera compensation under s67 of the Workers Compensation Act 1987 in respect of an industrial deafness injury. In so holding, his Honour, in the interests of comity followed the decision of Judge Geraghty in Winders v Pasminco Mining - Broken Hill. The parties have agreed that the fate of that appeal determines the fate of this appeal.

Held:

As the appeal in Winders v Pasminco Mining - Broken Hill succeeded, this appeal is allowed.

ORDERS

1. Appeal allowed;

2. Set aside the orders and awards made by Judge Johns on 6 February 1995;

3. In lieu thereof order that the applicant's claim be dismissed;

4. The respondent to pay the appellant's costs of the appeal.

Clarke JA I agree with Sheller JA. Handley JA I agree with Sheller JA.

Sheller JA The employer, Pasminco Mining - Broken Hill, appeals from a decision of Judge Johns on 6 February 1995 in which he awarded the worker, Emmanuel Manera, compensation under s67 of the Workers Compensation Act 1987 in respect of an industrial deafness injury. The issue was whether the applicant, who had suffered injury in the form of industrial deafness representing on 26 October 1977, if assessed on a binaural basis, a 50 percent binaural loss of hearing and who suffered a further loss of hearing in both ears, of which he gave notice on 18 February 1993 and for which he was paid compensation under s66 of the Act for a 4 percent binaural loss of hearing, was entitled to a lump sum for pain and suffering under s67. In holding that he was so entitled, his Honour, in the interests of comity, followed the view expressed by Judge Geraghty in Winders v Pasminco Mining - Broken Hill which was under appeal to this Court. In that case the Court has allowed the appeal, set aside the award