LEMINGTON COAL MINES LTD v COLLINS [1997] NSWCA 189

LEMINGTON COAL MINES LTD v COLLINS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SHELLER and COLE JJA, and SHEPPARD AJA 29 August 1997

[1997] NSWCA 189

Sheppard AJA This is an appeal from a judgment of a judge of the District Court (Gallen DCJ) given in an action for damages for personal injury. The amount of it was $37,988 which included interest comprising the sum of $1988. His Honour said that the plaintiff (the respondent before us) claimed damages from the defendant, his employer, for negligence up to 4pm on 30 June 1987 together with such further damage or loss to his hearing causally connected to the damage already sustained as at 30 June 1987. A claim for economic loss which had been earlier maintained was abandoned.

The date, 30 June 1987, was the date when the then s149 of the Workers' Compensation Act 1987 took effect. It operated to abolish common law rights. Amendments effected by the Workers' Compensation (Benefits) Amendment Act 1989 restored common law rights retrospectively, but the provisions of s151G(4) provide for a deductible threshold of $36,000 for damages for non-economic loss.

The restoration of common law rights does not assist the respondent in the present case because the amount of the judgment, overlooking the amount awarded for interest, is $36,000.

At the hearing liability was in question. His Honour resolved this issue against the defendant (the appellant here). No appeal has been brought against that part of his Honour's decision.

His Honour said that it was the respondent's contention that he was entitled to recover not only damages for the injury sustained by him during the period between February 1984 and 30 June 1987, but also for any further damage or loss to his hearing or for any aggravation of his condition of tinnitus connected to the damage already sustained as at 30 June 1987. In the submission of counsel for the appellant, a reading of his Honour's judgments (his Honour gave judgment in two parts, one on 9 May 1996 and the other on 22 May 1996) discloses that Gallen DCJ found that damages should be assessed to allow for injuries which had not been inflicted and torts which had not been committed at the cut-off date (30 June 1987) but had occurred thereafter and which might occur in the future. On that basis his Honour. so counsel said, in the judgment delivered on 22 May 1996, allowed damages for injuries which he found were inflicted after June 1987. There is no question but this appears to have happened. Counsel for the appellant contends that his Honour was in error in taking the course he did.