New South Wales Court of Appeal CITATION : LIGHTFOOT v RILEY [1999] NSWCA 155 revised - 02/06/99 FILE NUMBER(S) : CA 40408/98 HEARING DATE(S) : 20 May 1999 JUDGMENT DATE : 20 May 1999 LIGHTFOOT & CO PTY LTD PARTIES : v WILLIAM JAMES RILEY JUDGMENT OF : Handley JA at 1; Fitzgerald JA at 19 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : DC 7280/96 LOWER COURT JUDICIAL OFFICER : Balla ADCJ COUNSEL : C R R Hoeben SC (Claimant) K W Andrews (Opponent) SOLICITORS : Leigh Virtue & Associates (Claimant) Shanahan Tudhope (Opponent) CATCHWORDS : ACTS CITED : Workers Compensation Act 1987 CASES CITED: Transfield Pty Limited v Mastroianni 24/6/98 unrep Warr v Santos [1973] 1 NSWLR 432 DECISION : Appeal allowed THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40408/98 DC 7280/96 HANDLEY JA FITZGERALD JA Thursday 20 May 1999 LIGHTFOOT & CO PTY LTD v WILLIAM JAMES RILEY DAMAGES - compensation rights not affected - to be deducted from damages WORKERS' COMPENSATION - compensation rights not affected by recovery of damages - to be deducted A worker recovered damages for his deafness suffered from exposure to industrial noise prior to 4 pm on 20 June 1987. He had not crystallised his right to compensation under the Workers Compensation Act 1987. The trial Judge held that his damages should not be reduced to reflect the value of those rights, which would not be affected by the recovery of damages. HELD: The worker's damages must be reduced to reflect his rights under the Workers Compensation Act, although these had not been crystallised by award or settlement. Transfield Pty Ltd v Mastroianni (14/6/98 CA u/r) applied. ORDERS (1) Leave to appeal be granted. (2) Appeal be allowed. (3) Judgment entered by the trial Judge, except as to costs, be set aside. (4) There be substituted a judgment for a lesser amount to reflect the deductions of $39,869 and $11,488, the appropriate figure being $18,072.06. (5) Claimant should have the costs of the appeal. (6) Opponent should have a certificate under the Suitors Fund Act. THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40408/98 DC 7280/96 HANDLEY JA FITZGERALD JA Thursday 20 May 1999 LIGHTFOOT & CO PTY LTD v WILLIAM JAMES RILEY JUDGMENT 1 HANDLEY JA: This is a summons by an employer, Lightfoot and Co Pty Limited, for leave to appeal from a decision of Her Honour Balla ADCJ given on 20 May 1998. Her Honour had before her a claim by William James Riley for common law damages for industrial deafness arising from his work for the defendant as a stonemason and monumental mason from 1952 to 30 June 1987. 2 The plaintiff continued to work in the same business until May 1992, when he retired. Her Honour found that there had been a breach of the employer's common law duty of care which had caused the plaintiff to suffer massive industrial deafness. There was a dispute in the medical evidence as to the extent of the plaintiff's industrial deafness, but no dispute that he was profoundly deaf. 3 The worker called Dr Scoppa, an ear nose and throat specialist, to give expert evidence on his behalf. He assessed the plaintiff in 1997 as having a binaural loss of 88.3 per cent after allowing for presbycusis, and he attributed 70.1 per cent out of this figure to industrial deafness, the balance being due to other causes not related to his occupation. The defendant called Dr Raymond Carroll, who assessed the plaintiff's industrial deafness at a much lower figure, of the order of 28 per cent. 4 Both doctors gave oral evidence at the trial. Her Honour accepted the opinion of Dr Scoppa. At p 9 of her judgment she said, correctly, that he had concluded that the plaintiff had a binaural loss of 70.1 per cent due to industrial deafness, with the balance of his hearing loss probably unrelated to his occupation. However, at the bottom of p 10 of her judgment, she said, with reference to Drs Scoppa and Carroll,: "Neither of the doctors has specified with any certainty the percentage loss of hearing which is directly attributable to having worked in a noisy environment". 5 With respect to her Honour, this appears to be a slip, since both doctors specified with considerable precision the percentage losses of hearing, which, in their opinion, were directly attributable to the plaintiff's exposure to industrial noise. She then proceeded to accept in express terms Dr Scoppa's evidence in preference to that of Dr Carroll and found that most of the plaintiff's hearing loss was a consequence of the defendant's negligence. The plaintiff therefore succeeded on this issue at the trial and secured a finding that 70.1 per cent of his total deafness was due to his exposure at work. 6 Her Honour assessed general damages for this hearing loss and awarded $45,000. This amount is not challenged. However, she declined to deduct the value of the plaintiff's entitlements to lump sum compensation for his industrial deafness under s 17 of the Workers Compensation Act 1987. It is this part of her Honour's decision which has been challenged. 7 The plaintiff was entitled, pursuant to s 17, on giving notice of his claim to his employer, to receive compensation for his deafness caused by exposure to industrial noise during the whole of his employment with the appellant and its successor. Section 17 deems the whole of this loss, for the purposes of the Workers Compensation Act, to have accrued on the date the plaintiff last worked for the appellant's successor in May 1992. 8 The claimant has sought leave to appeal to challenge the refusal of the Judge to deduct the plaintiff's workers' compensation entitlements from his common law damages. The very point was decided by this Court in Transfield Pty Limited v Mastroianni 24 June 1998 unreported, not long after her Honour gave judgment in this case. This Court there held that a worker's inchoate rights under the Workers Compensation Act in respect of industrial deafness must be allowed for and deducted when assessing common law damages for that deafness. Mr Hoeben SC for the claimant relied on this decision, and Mr Andrews for the opponent did not challenge it. It is therefore common ground that this Court should apply the principles established in that case. 9 On Dr Scoppa's assessment of the plaintiff's loss due to industrial deafness as at 1997, the plaintiff would be entitled to lump sum compensation under s 66 of the Workers Compensation Act in the amount $45,565. The plaintiff only claimed damages for his deafness caused by exposure to industrial noise on or before 30 June 1987. However, he continued to work in the industry and continued to be exposed to industrial noise until May 1992. Accordingly some part of his industrial deafness must be apportioned to this period after the commencement of the 1987 Act for which common law damages have not been claimed. 10 Mr Hoeben submits that the appropriate allowance for this purpose is one-eighth, and Mr Andrews did not challenge that figure. On this basis, the amount to be deducted from the plaintiff's common law damages would be $39,869. 11 Mr Andrews' submissions in opposition to such an allowance sought not a reassessment by this Court along the lines submitted by Mr Hoeben, but an order for a new trial in the District Court limited to damages or perhaps limited to this aspect of the claim for damages. His submission was based upon a fear that the plaintiff would not recover compensation for his industrial deafness at the level found by Balla ADCJ. In that event he would have his damages reduced for compensation he would not recover in the Compensation Court. 12 The plaintiff is at risk on this matter, and unfortunately the claimant is not his deemed employer for the purposes of his claim for industrial deafness in the Compensation Court and the deemed date of injury for that purpose occurred after his employment with the claimant had ceased. Consequently, there will be no issue estoppel which would bind the Compensation Court. 13 However this difficulty is the inevitable result of allowing the common law claim to go to trial before the plaintiff's compensation rights have been crystallised by agreement or award in the Compensation Court. Moreover there has been no attempt to crystallise those rights during the year which has elapsed since the trial. Once it became necessary to reassess the plaintiff's damages on appeal, this Court would have readily admitted evidence of matters which had occurred since the trial. See Warr v Santos [1973] 1 NSWLR 432. However the plaintiff's compensation rights remain uncrystallised as at today's date. 14 The Court is bound to reassess the plaintiff's damages if it can. No question of credibility arises in this case. Dr Scoppa, who was called by the plaintiff in the District Court proceedings, was accepted by the Judge, who adopted his estimate of the extent of the plaintiff's hearing loss due to industrial deafness. This Court is not permitted to speculate in these matters, and no proper basis exists for sending the matter down for a new trial in view of the clear and unchallenged findings of the Judge. In my judgment therefore, the claimant succeeds on this point and the plaintiff's damages must be reduced by the amount of $39,869 to reflect his workers' compensation rights for industrial deafness. 15 The claimant initially sought deductions in respect of the plaintiff's compensation rights under ss 67 and 40 of the Act, but these were properly withdrawn by Mr Hoeben as they lacked a proper evidentiary basis. 16 The only other matter concerned the allowance made by her Honour for the plaintiff's future out-of-pocket expenses in respect of hearing aids, batteries for those hearing aids, and medical attendance. It was submitted that this claim was recoverable under s 60 of the Workers Compensation Act. The amount agreed at the trial for this claim was $13,129.06. Mr Hoeben only claims for seven-eighths of this amount, although there may be an element of concession in this figure. Mr Andrews accepted that this was a proper claim and did not dispute the quantum or suggest that it had to be remitted to the District Court for reassessment. The basic figure flowed from an agreement reached between the parties at the trial as to the amount to be included in the plaintiff's verdict. 17 In those circumstances, I would propose that leave to appeal be granted, that the appeal be allowed, and that the judgment entered by the trial Judge, except as to costs, be set aside and that there be substituted a judgment for a lesser amount to reflect the deductions of $39,869 and $11,488, the appropriate figure being $18,072.06. The claimant should have the costs of the appeal and the opponent should have a certificate under the Suitors Fund Act. 18 They are the orders I would propose. 19 FITZGERALD JA: I agree with the orders proposed by the presiding judge, and subject to the reservation that I have not sufficiently considered whether any question of estoppel might arise in future Compensation Court proceedings with his Honour's reasons. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.