Stuckey v Wesley Contracting NSW Pty Ltd & Anor [2018] NSWDC 32

District Court New South Wales

Medium Neutral Citation: Stuckey v Wesley Contracting NSW Pty Ltd & Anor [2018] NSWDC 32 Hearing dates: 26 April 2017 Date of orders: 05 March 2018 Decision date: 05 March 2018 Jurisdiction: Civil Before: Neilson DCJ Decision: I make an award for the plaintiff against the first defendant for $6,965.60 for 8.1% further loss of binaural hearing. Deemed date of injury 7 December 2011.

I make an award for the second defendant.

I order the first defendant to pay the plaintiff's costs of establishing his claim against it. Such costs do not include: (a) the drawing, filing and service of the First Amended Statement of Claim; (b) of the Second Amended Statement of Claim, except in so far as it nominated Allianz as an insurer of the first defendant. Catchwords: WORKERS COMPENSATION – Lump sum compensation claim for loss of hearing – Boilermakers deafness – Plaintiff last employed by first defendant in Queensland – Whether plaintiff entitled to recover compensation under NSW law

Effect of WCA 1987 s 9AA on previous case law – construction of s 9AA

Jurisdiction of Court exercising Compensation Jurisdiction – Jurisdiction does not extend to disputes between insurers as to who insured an employer Legislation Cited: District Court Act 1973 Workers Compensation Act 1926 Workers Compensation Act 1987 Workplace Injury Management and Workers Compensation Act 1998 Cases Cited: A & G Engineering Pty Ltd v Civitarese (1996) 41 NSWLR 41; (1996) 14 NSWCCR 158 Avon Products Pty Ltd v Falls [2009] ACTSC 141 Avon Products Pty Ltd v Falls [2010] ACTCA 21 Badior v Muswellbrook Crane Service Pty Ltd (2004) 2 DDCR 177 Ballantyne v Workcover Authority of NSW [2007] NSWCA 239; (2007) 5 DDCR 97 Central West Group Apprentices Ltd v Coal Mines Insurance Ltd [sic] [2008] NSWCA 348 Guardian of Parish of Brighton v Guardians of Strand Union [1891] 2 QB 157 Hanns v Greyhound Pioneer Australia Ltd [2006] ACTSC 5 Jakmax Pty Ltd v Taylor [2017] NSWWCCPD 24 Klemke v Grenfell Commodities Pty Ltd [2011] NSWWCCPD 27 Lennon v TNT Australia Pty Ltd [2013] NSWCA 77 Martin v RJ Hibbens Pty Ltd [2010] NSWWCCPD 83 Merrick v Aaron John Shelly and Geoffrey David Swan trading as Nationwide Transport Solutions & Anor [2010] NSWWCCPD 106 Monier Ltd t/as Reliance Roof Tiles v Szabo (1992) 28 NSWLR 53; (1992) 8 NSWCCR 305 Russo v World Services & Construction Pty Ltd [1979] 1 NSWLR 330; [1979] WCR (NSW) 70 Stewart v NSW Police Service (1998) 17 NSWCCR 202 Tamboritha Consultants Pty Ltd v Knight [2008] WADC 78 Telstra Corporation v Worthing [1999] HCA 12; 197 CLR 61 Workers Compensation Nominal Insurer v O'Donohue [2014] NSWWCCPD 1 Texts Cited: Beal, Edward, Cardinal Rules of Legal Interpretation, 3rd Edition, 1924 Category: Principal judgment Parties: Michael William Stuckey (Plaintiff) Wesley Contracting NSW Pty Ltd (First Defendant) Garth Short Mining Pty Ltd (Second Defendant) Representation: Counsel: Mr D Benson (Plaintiff) Mr P Rickard (First Defendant) Mr L King SC (Second Defendant)