Scanlon v Powercoal [2001] NSWCC 130

Reported Decision : (2001) 22 NSWCCR 82

Compensation Court of New South Wales

CITATION : Scanlon v Powercoal [2001] NSWCC 130 PARTIES : Garry John Scanlon v Powercoal Pty Limited MATTER NUMBER(S) : 56332 of 1999 JUDGMENT OF: Bishop J at 1 CATCHWORDS: Assessment of Compensation :- LEGISLATION CITED: S. 71(2) Glebe Rowing Club Pty Limited v Pride (unreported) 6 December 1995 - Neilson J; CASES CITED: Carroll v Forgacs Floating Dockyard Pty Limited (2000) 19 NSW CCR 353 - Armitage J; Marangoni v Grocon Pty Limited (2000) 19 NSW CCR 577; Callaby v State Transit Authority (Neilson J 7 December 2000) DATES OF HEARING: 5 December 2000 DATE OF JUDGMENT: 06/25/2001

FOR APPLICANT: Mr A Brown instructed by Reid & Reid LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr S Flett instructed by Sparke Helmore

JUDGMENT:

BACKGROUND 1. This is a claim for industrial deafness benefits brought by a 52 year old employee of the respondent. Compensation is sought for 15.8 per cent binaural hearing loss amounting to $13,587.21 and in addition for pain and suffering under s 67. 2. The application raises squarely for determination the issue of whether under the somewhat different legislation that applies to coalminers it is possible for a coalminer to aggregate claims for lump sum compensation for deafness under s 66 in order to surmount the threshold and be entitled to compensation under s 67. 3. With regard to the general application of the legislation this issue has been examined in recent times in a couple of decisions which will be referred to shortly relative to the repeal of s 71 of the Act and the consequences thereof on this particular problem. 4. Before examining the legislative framework and the submissions of the parties in some detail it is appropriate to set out the factual background of this particular application. 5. There was no issue about the exposure of the applicant to industrial noise in the course of his employment as a miner. In 1993 he gave notice of a claim for deafness against a prior employer in the mining industry and underwent a medical panel examination on 15 March 1993 which certified as to a 13.5 per cent binaural loss of hearing due to what can be referred to as boilermaker's deafness. Terms of settlement were filed on 29 June 1993 in accordance with the medical panel and the appropriate compensation under s 66 was paid. Subsequently on 16 March 1999 the applicant underwent a further medical panel examination which on this occasion assessed a binaural loss of 15.8 per cent. This second medical panel took place following notice of injury on 5 January 1999 at which stage the applicant was employed by the present respondent. 6. The amount paid to the applicant following the first medical panel was insufficient for him to surmount the threshold to qualify for compensation for pain and suffering under s.67. The assessment arrived at by the second medical panel was sufficient to surmount that threshold. 7. As to how his deafness had affected him the applicant indicated that he continued working after the medical panel in 1993 but that he had not improved since the second panel in March 1999. He had difficulty in communicating with his family and outsiders. Watching television was not easy because the volume had to be turned up and the same sort of problem occurred with the radio in his car. His wife would ask him from time to time why he was talking so loud and he would occasionally be irritated as a result of this problem. In social contexts he found he had to look at people to try to understand what they were saying. Communication was difficult and he had a feeling of isolation. This was particularly bad in dealing with children. He found it very difficult going out with his friends for a beer because he would have a lot of trouble determining who was talking because of background noise. He had similar problems sitting next to people at football matches and was feeling that it was not really worth going. Background noise affected his ability to carry out a conversation on the telephone and he had a ringing noise all the time in ears like cicadas. This he said occurred 24 hours a day. He had developed some ability with lip reading and sign language. He agreed that he had learned to live with it a bit. 8. The applicant was a perfectly straightforward and acceptable witness. SUBMISSIONS OF THE PARTIES 9. It is convenient at the outset to set out the terms of s 71 of the Act which provided as follows:- S.71(1) If: a) compensation is paid or becomes payable under this division (or s 16 of the former Act) for a loss, being: i) The loss of a proportion (but not all) of a thing: and ii) an occupational disease; and b) the worker suffers a further loss of that thing, compensation is payable under this Division for the further loss, but only the proportion of that further loss of the thing shall be taken into account in calculating the compensation payable. (2) Any such further losses may be taken into account for the purpose of determining whether compensation is payable for pain and suffering because of the operation of s 67(2). 10. Subsection (3) specifically included in the term occupational disease loss of hearing due to boilermakers deafness. 11. S 71 was repealed by the WorkCover legislation Amendment Act 1996 number 120 coming into force on 12 January 1997. 12. The submissions of the applicant were effectively three in number. 1) Even though s 71 has been repealed its operation has been preserved for the benefit of coalminers as defined in the legislation.