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. However, it is clear, and indeed undisputed, that where a person suffers mon-aural hearing loss in each ear, there is a formula which is well recognised which permits conversion of those two mon-aural hearing losses into binaural loss. It seems to me to be clear that here, as appears to have been agreed, in fact the appellant was paid for the equivalent of 30% binaural hearing loss back in 1984. That binaural hearing loss was calculated by reference to the two mon-aural hearing losses which were losses in respect of which compensation was payable under s 16 of the former Act. 1. (1990) 6 NSW Compensation Court Reports, 311 at 320 and 321. 2. (1965) 112 CLR 246. 2 UNREPORTED JUDGMENTS Accordingly, as it seems to me, the provisions of Schedule 6 part 6 clause 3 are applicable to defeat this appeal. In my opinion the appeal should be dismissed with costs. 5 Beazley JA. I agree. Abadee AJA. I agree, and I agree with all of the reasons given for the proposed orders. Cole JA. The orders will be as I have proposed. 10 F Orders accordingly. Counsel for the appellant: M Joseph SC/A Monaghan Solicitors for the appellant: CartersCounsel for the respondent: J Hislop QC Solicitors for the respondent: Blake Dawson Waldron253545