BIRTASIC v BHP STEEL (AIS) PTY LIMITED [1996] NSWCA 49

BIRTASIC v BHP STEEL (AIS) PTY LIMITED

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

COLE JA, BEAZLEY JA and ABADEE AJA 27 November 1996

[1996] NSWCA 49

MON-AURAL/binaural hearing loss — no further compensation when paid for 41% loss when true loss was 18%.

Cole JA. On 13 March 1984 the employer paid the appellant worker $5,781.70. That sum was a sum paid in respect of 30% binaural hearing loss.

On 18 September 1991 the employer paid the worker $7,452.90. That sum was the sum payable in respect of a further 11% binaural hearing loss.

The worker ceased employment with the employer on 31 July 1992. On 14 February 1994 the worker claimed compensation in respect of a 55.8% binaural hearing loss. A medical panel subsequently determined in binding and unchallenged fashion that the binaural hearing loss was in truth only 18%. Thus the worker has been paid for 41.7% binaural hearing loss at the times when he claimed for it, although in truth he has suffered only 18% binaural hearing loss.

Unsurprisingly in my view Judge Nielson dismissed the worker's application on review.

Schedule 6 part 6 clause 3 in the transitional provisions to the 1987 Workers Compensation Act provided that "Compensation is not payable to a worker who has suffered a loss of a thing mentioned in the table to Division 4 part 3 of this Act (being an occupational hearing loss within the meaning of s 71 of this Act) ... if the worker received compensation for the loss in accordance with s 16 of the former Act'.

Here the worker received compensation in accordance with s 16 of the former Act in respect of 30% binaural hearing loss. To my mind it is plain he has no further claim where the loss in truth suffered was 18%.

Mr Joseph SC contended that there was no receipt or payment of compensation in accordance with s 16 of the former Act because, as is made clear in the Judgment of Clarke JA in John Lysaght Australia Limited v Cox!, it had been decided in The Commissioner for Railways v Bain? that under the 1926 Act there was only provision for payment in respect of partial mon-aural hearing loss.