Georges v State Rail Authority of NSW [2001] NSWCC 44

Compensation Court of New South Wales

CITATION : Georges v State Rail Authority of NSW [2001] NSWCC 44 PARTIES : George Georges v State Rail Authority of NSW MATTER NUMBER(S) : 1993 of 1992/1 JUDGMENT OF: Ashford J at 1 CATCHWORDS: Elements of Workers Compensation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 20/03/01 EX TEMPORE JUDGMENT DATE : 03/20/2001

FOR APPLICANT: Mr P C Sweeney instructed by Graham Goldberg Partners. LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr G Niven instructed by Creagh and Creagh.

JUDGMENT: 1. Mr Georges was awarded compensation by her Honour, Judge Truss, on 9 May 1994 in respect of injuries received in the employ of the respondent. Her Honour made findings that the applicant suffered injury to his back and the lower part of his right leg in the course of employment on 14 September 1983 and suffered injury by virtue of the nature and conditions of his employment with the respondent between 10 January 1982 and 17 March 1992, namely, binaural hearing loss. She further found injury to have been occasioned on 18 February 1991 by virtue of the nature and conditions of the employment, by way of a tinnitus and anxiety depressive condition. As a result of those injuries an award was made pursuant to s16 in respect of permanent loss of efficient use of the lower part of the right leg equivalent to 15 per cent of the total loss thereof, and binaural hearing loss of 9.6 per cent with a notional date of injury being 17 March 1992. 2. Truss J awarded compensation on a weekly basis at varying amounts from 18 March 1992. Those payments were made in accordance with the provisions of s40 up to 26 July 1999. Thereupon the respondent ceased those payments on the basis that having reached one year beyond his 65th birthday, the applicant was no longer entitled to receive payments of compensation, pursuant to s52 of the Workers Compensation Act. 3. Counsel for the applicant has referred me to the decision in the Royal North Shore Hospital v Riskz decided by the Court of Appeal on 23 August 1995. I am also referred to the judgment of her Honour and her findings. 4. It is clear from reading the judgment of her Honour, she found the applicant suffered injuries prior to 30 June 1985, to his back and to his right leg. It is also clear her Honour found a continuing partial incapacity as a result of those injuries. Additionally there was a finding that injuries subsequent to 30 June 1985 caused a partial incapacity, that partial incapacity being in relation to employment in a quieter environment and one not requiring a great deal of concentration. 5. The substantial part of the continuing partial incapacity, in my view, as found by her Honour, relates to the injuries to the back and right leg, such injury being pre 1985. Whilst there is partial incapacity as a result of those injuries and partly from other injuries, it seems to me the provisions of s52A apply, in that the injuries having been received prior to 30 June 1985, with a resulting partial incapacity, then in my view the applicant is clearly entitled to continue to receive payments of compensation pursuant to the award. 6. I so find. 7. Costs Pt29. Mr P C Sweeney instructed by Graham Goldberg Partners appeared for the applicant Mr G Niven instructed by Creagh and Creagh appeared for the respondent