New South Wales Court of Appeal CITATION : Transfield Pty Limited v Mario Mastroianni [No 2] [1999] NSWCA 269 FILE NUMBER(S) : CA 40775/97 HEARING DATE(S) : Considered on the papers JUDGMENT DATE : 27 July 1999 PARTIES : Transfield Pty Limited Mario Mastroianni JUDGMENT OF : Handley JA at 1; Beazley JA at 1; Sheppard AJA at 1 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 255/93 LOWER COURT JUDICIAL OFFICER : Newtown DCJ COUNSEL : Appellant - M B Duncan Respondent - B S Robison SOLICITORS : Appellant - Edwards Johnstone Sullivan Respondent - Maurice May & Co CATCHWORDS : WORKERS COMPENSATION; INDUSTRIAL DEAFNESS; whether amount awarded for provision of hearing aids should be reduced to reflect worker's rights to medical expenses under s 60 of the Workers Compensation Act 1987 (NSW) ACTS CITED : Workers Compensation Act 1987: ss 60, 66 DECISION : Further Orders Made THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40775/97 DC 255/93 HANDLEY JA BEAZLEY JA SHEPPARD AJA Tuesday 27 July 1999 TRANSFIELD PTY LTD v MARIO MASTROIANNI [NO 2] JUDGMENT 1 THE COURT: This appeal was heard on 11 and 12 March 1998 and judgment was given on 24 June 1998. The Court made the following orders: (1) Appeal allowed; (2) Set aside the judgment of the District Court except as to costs and in lieu thereof substitute judgment for the plaintiff for $37,775 with effect from 5 November 1997; (3) The appellant to pay the respondent's costs of the appeal. 2 The reduction in the judgment of $7,475 made by this Court reflected the respondent's right, under s 66 of the Workers Compensation Act 1987, to lump sum compensation for his binaural deafness. The Court refused a further reduction that had been sought for the respondent's right to lump sum compensation for pain and suffering under s 67 of the Act. 3 On 29 June 1998 the solicitors for the appellant wrote to the Registrar drawing attention to the Court's failure to deal with part of its claim. 4 At the trial the plaintiff had claimed $5,000 for future hearing aids, but there was a conflict in the expert evidence as to whether he would benefit from such aids. In his judgment the trial Judge allowed an amount of $4,250 for the "possibility" of future hearing aids. The appellant contended at the hearing of the appeal that the District Court judgment should be reduced to reflect the plaintiff's rights to medical expenses under s 60 of the 1987 Act. The provision of hearing aids is within the definition of medical or related treatment in s 59 of the Act, and under s 60 a worker is entitled to the cost of such treatment if it is reasonably necessary and a result of his injury. 5 Mr Robison, in his written submission on behalf of the respondent worker, conceded that this issue had been "fully" argued. He drew attention to the different periods of noise exposure for which the respondent had legal entitlements - until 30 June 1987 for the common law liability of the appellant and until the date in October 1993 when he last worked for Gastonbury Steel for the purposes of the latter's liability to pay compensation under the 1987 Act. He submitted that the appellant had failed to prove "that the cost of the hearing aid applicable to the 30th June 1987 period of damage would be the same [as the cost of the] hearing aid applicable to the increased hearing loss after 30 June 1987". 6 In our opinion this provides no answer to the appellant's claim. The worker's right to recover the cost of hearing aids from Gastonbury Steel will relate to aids suitable for the full extent of his industrial deafness. This cost may indeed be greater than the cost of hearing aids suitable only for that part of his industrial deafness for which the appellant was responsible at common law. However there will be no injustice to the worker in this because any hearing aid powerful enough to alleviate the full extent of his industrial deafness will necessarily alleviate the lesser level of industrial deafness for which the appellant was responsible at common law. 7 In our opinion therefore our orders of 24 June should be varied by reducing the substituted judgment to $33,525. In accordance with the condition imposed when leave to appeal was granted the appellant should pay the respondents' costs of this application. The revised orders of this Court will therefore be: (1) Appeal allowed; (2) Set aside the judgment of the District Court except as to costs and in lieu thereof substitute judgment for the plaintiff for $33,525 with effect from 5 November 1987; (3) The appellant to pay the respondents' costs of the appeal including the costs incurred in the application for the variation of the Court's orders of 24 June 1998. ********** 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.