Shepherd v Macquarie Coal [2001] NSWCC 124

Compensation Court of New South Wales

CITATION : Shepherd v Macquarie Coal [2001] NSWCC 124 PARTIES : Peter Vincent Shepherd v Macquarie Coal Joint Venture MATTER NUMBER(S) : 39443 of 2000 JUDGMENT OF: Bishop J at 1 CATCHWORDS: Assessment of Compensation :- LEGISLATION CITED: CASES CITED: Garry John Scanlon v Powercoal Pty Limited (unreported) 25 June 2001 DATES OF HEARING: 26 February 2001 DATE OF JUDGMENT: 06/25/2001

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

JUDGMENT: 1. The applicant is a 41 year old coalminer and he brings a claim for compensation for pain and suffering under s 67 for industrial deafness. No issue arises as to notice, claim or exposure to industrial noise as in fact the relevant payments under s 66 for binaural hearing loss have all been attended to. The issue for determination is whether it is open to a coalminer to aggregate claims under s 66 for industrial deafness in order to surmount the threshold for s 67. To put it another way does the repeal of s 71 of the Workers Compensation Act apply to coalminers or is the section preserved for their benefit? If so the issue for determination is the quantum of the applicant's entitlement under s 67. 2. By way of background no medical material was put before the court as it was conceded in the pleadings that the applicant on 24 May 1993 received an appropriate lump sum for 8.1 per cent binaural hearing loss and on 18 October 1999 a further sum for an additional 7.6 per cent binaural hearing loss. The combination of those two figures if it is possible to aggregate them is sufficient for the applicant to surmount the s 67 threshold. That issue was the subject of examination in my judgment in Scanlon v Powercoal Pty Limited (25 June 2001), in which matter the question was answered in the affirmative for the worker. I do not propose to set out the arguments again but will now discuss the evidence before the court relative as to s 67. 3. The applicant's age has been indicated earlier. He is younger than the average for this sort of problem. Socially he lives with his daughter and a lady friend and is presently off work as a result of injuries unrelated to these proceedings. 4. He indicated that following his first medical panel he was having sufficient problems listening to television that he put most of the money into buying a surround television set. Despite having done this he indicated that he still had to have it up sufficiently high that the other people in the household are inconvenienced and he commented in particular about this situation as it affected his daughter as it interfered with her sleep. He indicated that his interest in television was particularly relative to horse racing as until his recent injuries he used to train race horses. He has not dissimilar problems with the level he has to have for volume on radios both at home and in his car. Since he bought the original television set he very seldom goes to the pictures. He said that although he has a special telephone he has difficulty understanding discussions on the phone and prefers to talk to people face to face. Background noise is a problem and this adversely affects socialising. He said that his male friends understood his problems if he was having drinks in the pub but it was he indicated chatting up the ladies that was causing him some difficulty. Two other instances that he gave of the way in which his deafness affected him were as follows. One was an episode when he was pulled up by the police for speeding. He did not know that the police car was pursuing him until the police lights were flashed. He also indicated that at one stage he was trying to get a helicopter licence but he found when he put the headset on he could not hear the control tower properly and had to give the concept away because of the obvious danger. This he said disappointed him. Until his recent injuries he managed to carry out his duties in the pit which he agreed was noisy but he said that his supervisors would often hand him notes about what he was to do but mostly he knew his job and did it anyway. Not being able to have a decent conversation upset him. 5. The applicant was a fairly unorthodox character but there was no reason not to accept his testimony. 6. In assessing the relativities under s 67 the age of the applicant is in my opinion a very significant factor because the nature of the condition is such that it will not at any stage improve for the rest of his life. The inhibitions in his social life were in my opinion genuinely expressed and I am satisfied that the level of interference with his general activities is well over and above the level of irritation and moves into actual distress and embarrassment. Doing the best I can I consider that the relativities should be in the are of 1:6. 7. The award I make in the applicant's favour is in the following terms. 1. I find that on 22 June 1999 the applicant made a claim for compensation for boilermakers deafness against the respondent which employed on that date in employment to the nature of which boilermakers deafness may be due.