Grixti and Linfox Australian Limited

[2009] AATA 566

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 566

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/0617

GENERAL ADMINISTRATIVE DIVISION		)
Re		LOUIS GRIXTI

Applicant

And LINFOX AUSTRALIA LIMITED

Respondent

DECISION

Tribunal Justice Buchanan (Presidential Member)
Dr I Alexander (Member)

Date31 July 2009

PlaceSydney

Decision

 The Tribunal:

(a)  Dismisses the application for review made on 15 February 2008; and

(b)  Affirms the decision made on 6 February 2008 that Mr Grixti not be paid compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth).

Justice R J Buchanan

(Signed)

Presidential Member

CATCHWORDS

COMPENSATION – hearing loss – some hearing loss prior to employment with Commonwealth corporation – employer became self-insured under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”) before workers compensation claim was made – compensation not payable if binaural hearing loss suffered by employee is less than 5% – Safety, Rehabilitation and Compensation Commission determines the scope of the licence of a Commonwealth corporation to pay compensation to employees – “injury” primarily suffered before the licence period began – Commonwealth corporation not authorised or liable to pay compensation referable to an “injury” suffered outside the licence period – no compensable injury to which the SRC Act applies – possibility that applicant has no remedy under the Workers Compensation Act 1987 (NSW) is not a basis to construe the SRC Act so as not to defeat the current claim – decision affirmed.

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5A, 5B, 7(4), 7(7), 24(1), 89A, 98A, 102, 103, 108, 108A.

Workers Compensation Act 1987 (NSW) s 17

Attorney-General (Victoria) v Andrews (2007) 230 CLR 369

REASONS FOR DECISION

31 July 2009 Justice Buchanan (Presidential Member)
Dr I Alexander (Member)   

1.Louis Grixti is 56 years old.  For a good deal of his working life he has worked as a motor mechanic or as a truck driver.  From 1973 to 1989 he worked for the Public Transport Commission of New South Wales (later the State Transit Authority) at various depots.  His work was carried out in a noisy environment.  In 1979 he complained of deterioration of his hearing over the previous two to three years.  He was examined by Dr Robert Talbot who found that he was suffering a 2.9% hearing loss in his right ear which Dr Talbot attributed to exposure to loud industrial noise.  Mr Grixti made a claim for compensation and was paid $198.65.

2.He was examined again by Dr Peter Winkler in October 1980 and his hearing loss was confirmed.  Dr Winkler saw Mr Grixti again in August 1989.  On this occasion he was diagnosed with a hearing loss of 12.2% in his right ear and 8.4% in his left ear.  It would appear that this examination took place after Mr Grixti was retrenched from the State Transit Authority because Dr Winkler recorded that he was no longer working in a noisy job.  In August 1989 Mr Grixti also saw Dr Carroll, an ear, nose and throat surgeon.  Dr Carroll assessed him as having lost 8.3% hearing in his left ear and 8.9% in his right ear with a resultant binaural impairment of 8.42%.  Dr Carroll thought that Mr Grixti’s previous employment had been the cause.

3.When Dr Carroll’s report was assessed in the light of the previous claim and payment an administrative calculation was made that Mr Grixti had a binaural hearing loss of 6.06% and a payment to him on this basis was made ($3,285.12) on 12 September 1989.  Two weeks later, on 25 September 1989, a further payment of $791.46 was made for an additional 1.46% binaural hearing loss apparently as the result of a calculation which took into account both Dr Carroll’s report and Dr Winkler’s report, as well as the previous claim and payment based on 2.9% hearing loss in Mr Grixti’s right ear.

4.All the audiograms from the previous reports in 1979 and 1989 have been examined by Dr Joseph Scoppa, an ear nose and throat specialist physician,  to whom Mr Grixti was referred by his present solicitors in 2006.  Dr Scoppa has recalculated the effect of the audiograms in accordance with tables which came into effect in 1988.  These calculations, which were not disputed, show that, for the purpose of considering his present claims, Mr Grixti was compensated for a total of 11.2% binaural hearing loss.

5.According to Mr Grixti’s evidence, between 1989 and 1993 he worked in his own air conditioning business.  There was no evidence that this work was carried out in a noisy environment. 

6.On 11 October 1993 Mr Grixti applied for employment with the respondent (“Linfox”).  In his application he represented that he had not ever worked in a noisy environment and that his hearing had not ever been affected by his work.  Those representations led to a submission in the present proceedings that Mr Grixti was disentitled to any form of relief.  That submission will be dealt with in due course.

7.However, it is clear from the notes of the clinical examination carried out by Dr S Perla that audiometry results showed that Mr Grixti had high tone loss in each of his ears.  Dr Perla considered that further examination was necessary.  He said:

“Further audiometry is advised to ascertain degree of industrial deafness, if any, and claim against previous employer, if appropriate.”

8.Guidelines for the medical examiner suggested that it would only be appropriate to certify Mr Grixti as unfit on account of his hearing if he had suffered from profound deafness.  Dr Perla found Mr Grixti to be fit for employment, subject to the “restriction” he identified but it does not appear from the material before the Tribunal that any follow-up examination was carried out, before or after Mr Grixti commenced his new job.

9.From 1993 Mr Grixti worked for the respondent as a truck driver in a number of noisy jobs.  There is no dispute in the present case that his work contributed to further hearing loss in subsequent years.

10.On 11 April 2006 Mr Grixti was examined by Dr Scoppa who assessed him as suffering binaural hearing loss due to industrial deafness of 15.4%.  Based upon Dr Scoppa’s report a claim for worker’s compensation under the Workers Compensation Act 1987 (NSW) was made on 30 June 2006. The claim was rejected on the basis that Linfox had become self-insured on 3 April 2006 under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”). A claim directly against Linfox under the SRC Act was sent to Linfox on 29 January 2007. The claim was based on Dr Scoppa’s assessment. The claim was rejected on 24 December 2007 upon the basis that Mr Grixti’s exposure to noise between the time that Linfox became self-insured on 3 April 2006 and Dr Scoppa’s medical examination on 11 April 2006 would not have contributed to Mr Grixti’s “disease” to a significant degree. Reconsideration of the claim by a Reconsiderations Officer employed by CGU Self Insurance Services resulted in a decision on 6 February 2008 to also reject the claim. The Reconsiderations Officer said:

“In considering the evidence available to me, I am not convinced that the claimant’s hearing loss has been contributed to, to a significant degree by his employment with Linfox since becoming self insured under the SRC Act.”

11.The SRC Act permits an application to be made to the Administrative Appeals Tribunal for review of such a decision (s 64). An application for review was made on 15 February 2008.

12.The SRC Act (which applies to employees of the Commonwealth and to employees of Commonwealth authorities and corporations licensed under the SRC Act) established Comcare (see s 68). Comcare has a liability to pay compensation for compensable injuries to Commonwealth employees (s 14). Comcare is directed by s 28 of the SRC Act to prepare a “Guide to the Assessment of the Degree of Permanent Impairment”. Where an injury to an employee results in permanent impairment s 24 of the SRC Act directs Comcare (in cases where it has responsibility) to determine the degree of permanent impairment in accordance with the provisions of the Guide (s 24(5)). In the case of permanent hearing loss compensation is not payable if the binaural hearing loss suffered by the employee is less than 5% (s 24(7A)).

13.At first Dr Scoppa had been unaware of Mr Grixti’s earlier claims and the assessments then made of the extent of his hearing loss.  For the purpose of the hearing Dr Scoppa provided further reports which took into account the earlier findings of impairment.  Those reports finally resulted in an opinion that Mr Grixti has suffered binaural hearing loss, since the hearing loss for which he was earlier compensated, of 4.2%.

14.Mr Grixti was also sent, by the respondent, to see Dr P W Noyce, an ear nose and throat surgeon, who carried out an independent assessment on 15 October 2008.  He assessed Mr Grixti’s total binaural hearing loss initially as 18.8%.  Dr Noyce excluded from his assessment hearing loss below 2,000 cycles per second.  He had, however, not excluded the hearing loss in Mr Grixti’s right ear which exceeded that in his left ear as Dr Scoppa had done.  In oral evidence, Dr Noyce agreed that Dr Scoppa’s approach to that issue was one with which he would not disagree.  Before giving oral evidence he had been asked to make further calculations, firstly excluding hearing loss in Mr Grixti’s right ear which exceeded that in his left ear, and by making various other adjustments, including taking into account hearing loss below 2,000 cycles per second.  The applicant and respondent agreed, for the purpose of the present evaluation, that Dr Noyce’s later assessment, taking into account hearing loss below 2,000 cycles per second, while excluding the additional hearing loss in the right ear, should be accepted for the purpose of the proceedings as a reliable assessment of Mr Grixti’s hearing loss at 15 October 2008.  That has the added benefit of permitting a direct comparison with Dr Scoppa’s assessment of 11 April 2006.

15.On those bases Dr Noyce’s assessment was that Mr Grixti suffered a total binaural hearing loss of 20.1% of which 8.9% might be attributed to the period following his latest claim (in 1989) and, in particular, to his employment with the respondent.  If other conditions are met, such a permanent binaural hearing loss satisfies the threshold requirements permitting compensation to be paid.  However, Mr Grixti’s claim faced further obstacles.

16.The respondent contended that Mr Grixti’s hearing loss was not compensable under the SRC Act because the period before the respondent became self-insured under the provisions of the SRC Act could not be taken into account.

17.It is convenient to deal at once with the significance of this submission if it correctly states the legal position.  Dr Scoppa saw Mr Grixti only eight days after the respondent became self-insured.  His evidence was that any hearing loss in that period would not be measurable.  Dr Noyce said it would be very small or nil.  The only other information that might permit an assessment now to be made of Mr Grixti’s hearing loss since 3 April 2006 is a comparison of the assessments made by Dr Scoppa and Dr Noyce.  They were made at different times.  We were not invited to reject either of them.  A comparison of those assessments yields a mathematical difference of 4.7% binaural hearing loss.  Over a period of 30 months that would represent a significant proportion of Mr Grixti’s total hearing loss over a period of about 20 years.  A hearing loss of that amount over that period seems unlikely.  Both experts gave evidence that major hearing loss usually occurred in the first 10 years and thereafter dropped more slowly.  During Dr Scoppa’s evidence the following exchange took place:

“In terms of industrial deafness is it true to say that the loss of hearing is generally greater in the first 10 years of exposure, and that there is less of a tendency for noise to cause further damage as deafness increases?---To some extent that’s true because the most sensitive part of the ear to noise once it’s all damaged then there’s less – there’s less hearing in that specific hearing to be damaged, and the hearing that you’ve got left is more resistant to noise so – the reason you’re losing – you’re less susceptible is because basically all the damage has been done if you like.”

18.During Dr Noyce’s evidence the following exchange took place:

“Let’s assume for a moment you’re exposed to the same kind of noise, general noise over a period of years, is the hearing loss linear or is it, sort of, random?  Do you understand what I’m getting at?  Would you lose a similar of – would there be a similar amount of loss per year if you had the same amount of noise or is it unpredictable?  It’s just, sort of, up and down?---I can answer that by saying that studies have shown that the major loss occurs in the first 10 years, so you’ve got a continuous – you’ve got a continuous level, right, and then after the first 10 years you still get loss, but not at the same rate, and if you’re exposed to the same level of noise after 10 years the hearing level will still drop slowly.”

19.However, the possibility that one or the other of the two assessments was not completely accurate (either Dr Scoppa’s was too low or Dr Noyce’s was too high, or both) is neither of concern nor necessary to determine. We see no reason to suppose that Mr Grixti’s binaural hearing loss might reasonably be supposed to have exceeded 5% since the respondent became self insured. It is more probable that it was less than 4.7%. If that is so he can only succeed in his present claim if he can rely upon his employment with the respondent before it became self-insured. An examination of that question must proceed by reference to the provisions of the SRC Act. It is not greatly assisted by any appeal to general notions of equity and fairness.

20.Mr Grixti suffers from an “ailment” (as defined by s 4 of the SRC Act) because he has a physical disorder or defect. His ailment was contributed to, to a significant degree both doctors agreed, by his employment with the respondent. Accordingly, he suffers from a “disease” (as defined by s 5B of the SRC Act). As a further result, for the purposes of the SRC Act he has suffered an “injury” (as defined by s 5A of the SRC Act).

21.Section 7(4) of the SRC Act provides:

“(4)For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:

(a)the employee first sought medical treatment for the disease, or aggravation; or

(b)the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;

whichever happens first.”

22.There was some debate about the significance of this provision in the present proceedings. It raised questions of whether Mr Grixti had seen either Dr Scoppa or Dr Noyce for medical treatment (we think he did not) and what would otherwise be the date to be attributed to his “injury”. There can be no doubt, on the medical evidence, that Mr Grixti continued, after the commencement of his employment with the respondent and after 3 April 2006, to suffer trauma (injury) to his ears, the progressive consequence of which has been further and increasing hearing loss over a period of time. There is no occasion to establish a time and place of injury for the purpose of assessing whether the injury arose out of or in the course of employment (s 6 of the SRC Act). This is not a “journey” case, for example.

23.Mr Grixti’s impairment is permanent. If other conditions are met it will be compensable under the SRC Act if his injury/disease/ailment (as defined) resulted in permanent impairment (s 24(1) of the SRC Act). There is no doubt that this condition is met. If compensation is payable it would be assessed on the basis of the latest medical evidence. We think that s 7(4) of the SRC Act is not relevant to any issue we must decide.

24.Apart from its application to employees of the Commonwealth, the SRC Act also applies to employees of corporations who apply for, and are granted, a licence under Part VIII of the SRC Act by the Safety, Rehabilitation and Compensation Commission established under s 89A of the SRC Act (“the SRC Commission”).

25.     Section 98A(1), (3) and (4) provide:

“(1)This Part enables the Commission to grant licences to Commonwealth authorities or eligible corporations.

(2)…

(3)If a licence is granted to an eligible corporation, this Act applies in relation to some or all of the employees of the corporation in a similar way to the way in which it applies to employees of the Commonwealth but the application is subject to:

(a)the acceptance by the corporation of the whole or a part of the liability under this Act for payments in respect of injury, loss or damage suffered by, or the death of, those employees; and

(b)the acceptance by the corporation of the function of managing claims under this Act in respect of that injury, loss, damage or death.

(4)If a licence is granted to a Commonwealth authority or to a corporation, the application of this Act is also subject to the conditions to which the licence is subject.”

26.Application for a licence may be made in accordance with s 102.  Section 103 provides:

“(1)The Commission may, on application made in accordance with section 102, grant the eligible applicant a licence for a specified period.

(2)If the Commission grants a licence to an eligible applicant, the Commission must determine:

(a)in accordance with Division 3 – the scope of the licence so far as concerns the degree to which, and the circumstances in which, the licensee may accept liability for compensation; and

(b)in accordance with Division 4 – the scope of the licence so far as concerns the degree to which, and the circumstances in which, the licensee is authorised to manage claims; and

(c)in accordance with Division 5 – the conditions (if any) to which the grant of the licence is subject.”

27.The distinction amongst the matters to be determined in accordance with Divisions 3, 4, and 5 of Part VIII should be noted.  Sections 108 and 108A are in Division 3.  They concern liability.  Division 4 concerns management of claims.  Division 5 primarily concerns the imposition of administrative requirements.  It is Division 3 which is relevant here.  Sections 108 and 108A(1) provide:

“108(1)A licence may provide that the licensee is authorised to accept liability to pay compensation and other amounts under this Act in respect of particular injury, loss or damage suffered by, or in respect of the death of, some or all of its employees under this Act.

(2)The scope of the licence, so far as it authorises acceptance of liability to pay such compensation and other amounts, may be determined by the Commission.

(3)The Commission may determine, as part of the scope of the licence, that the licensee may accept such liability in respect of such injury, loss, damage or death occurring at a time before the licence came into force.

108A

(1)If:

(a)a licensee is authorised to accept liability to pay compensation and other amounts under this Act in respect of particular injury, loss or damage suffered by, or in respect of the death of, some or all of its employees; and

(b)such injury, loss, damage or death occurs;

then:

(c)the licensee is liable to pay compensation and other amounts under this Act in respect of that injury, loss, damage or death; and

(d)Comcare is not liable to pay compensation or other amounts under this Act in respect of that injury, loss, damage or death.”

(Emphasis added.)

28.Section 108A(1) imposes a liability to pay compensation on the licensee (which may be a Commonwealth authority or an eligible corporation) and relieves Comcare of a liability it would otherwise have under Part II of the SRC Act to pay compensation to “employees” (defined by s 5 to include employees of Commonwealth authorities). The liability imposed on a corporation, such as the respondent, to pay compensation is identified by the scope of its authority to accept liability. The SRC Commission may also determine that a licensee may accept liability arising from injury before the licence came into force (s 108(3)), but there is no suggestion it has done so, either generally or so far as the respondent particularly is concerned. The scope of the licence (as referred to in s 103(2)(a) and s 108(2)) determined by the SRC Commission at the time relevant to the present claim will be discussed shortly.

29.Section 108A also deals with the question of pre-existing liability in various ways.  For example, s 108A(2) provides:

“(2)Nothing in subsection (1) affects Comcare’s liability to pay compensation or other amounts under this Act in respect of a particular injury, loss, damage or death for which Comcare would have been liable, but for the operation of the licence, to the extent that the liability is not a liability that the licensee is authorised to accept.”

30.This provision accommodates the possibility that the SRC Commission might permit a Commonwealth authority to accept liability for events prior to the licence coming into force, under s 108(3). Otherwise, it makes it clear that Comcare remains liable. To similar effect, in our view, s 108A(7) provides, in the case of licensed corporations, such as the respondent:

“(7)If a licensee who is a corporation is authorised to accept liability to pay compensation and other amounts under this Act in respect of a particular injury, loss or damage suffered by, or in respect of the death of, some or all of its employees after the licence comes into force then:

(a)no law of a State or Territory relating to workers compensation applies to a licensee in respect of such injury, loss, damage or death; and

(b)any liability or obligation of the corporation under a law of a State or Territory in respect of such injury, loss or damage suffered, or death occurring, before the licence came into force is unaffected.”

31.The effect of this provision is twofold. It both excludes and preserves the operation of State and Territory laws. Doubtless it attempts to clarify the extent of the intended operation of the SRC Act for the purpose of assisting to resolve any potentially inconsistent operation between the SRC Act and the laws of the various States and Territories. There has been a suggestion in the present case that Mr Grixti may have lost his rights under the Workers Compensation Act 1987 (NSW) (“the WC Act”). We shall return to that issue. For the moment it is sufficient to say that, if that is so, which we doubt, it is not the result of the operation of the SRC Act, by virtue of which any pre-existing rights remain unaffected.

32.As already mentioned, the SRC Commission was obliged by s 103, and expressly empowered by s 108(2), to determine the scope of the respondent’s licence to accept liability to pay compensation. That was done by clauses 4A, 4B and 4C of a licence granted on 15 March 2006, to operate from 3 April 2006 to 30 June 2007. Only clauses 4A and 4C are here relevant. They appear in “Part I – Grant and Scope of Licence” under a heading which makes their significance clear:

“Scope of licence – acceptance of liability

4A.The Commission determines, under section 108 of the SRC Act that the Licensee is authorised to accept liability to pay compensation and other amounts under the SRC Act in respect of all injuries, loss or damage suffered by, or in respect of the death of, any of the employees of the Licensee, where such injuries, loss, damage or death occur within the scope of the licence, except in respect of any injuries, loss or damage suffered by, or in respect of the death of, any employees of the Licensee who are:

(a)labour hire workers; or

(b)independent contractors.

4B.…

4C.The Licensee is authorised to pay compensation and other amounts under the SRC Act in respect of all injuries, loss or damage suffered by, or in respect to the death of, all of the employees covered by the scope of this licence where such injuries, loss, damage or death occur within the period of this licence.”

(Emphasis added.)

33.Both 4A and 4C relate to the scope of the licence. The period of the licence (apart from appearing in the Notice of Grant of Licence) is stated in clause 3 – 3 April 2006 to 30 June 2007. In our view the respondent was not authorised by this licence, in accordance with s 108(3), to accept liability or pay compensation arising from events before the licence came into force. To the contrary, it was explicitly denied any such discretion or authority. It follows that it was not, during the currency of this licence, authorised or liable to pay compensation referable to an “injury” suffered before 3 April 2006. Neither is it so authorised now.

34.By a Notice of Extension of Licence dated 25 June 2007 the SRC Commission provided authorisation to the respondent to accept liability under the SRC Act for a further period until 30 June 2011. That licence remains current. Clause 4 provides:

“4.The Licensee is authorised to accept liability to pay compensation and other amounts under the SRC Act in respect of all injuries, loss or damage suffered by, or in respect of the death of:

(a)any of the employees of the Licensee where such injuries, loss, damage or death occur within the period of this licence; and

(b)any of the employees of the Licensee where such injuries, loss, damage or death occurred in the period commencing on 3 April 2006 (the initial licence) and ending when this licence came into force being employees as defined in the initial licence.”

35.In accordance with s 108(3) of the SRC Act the extended licence authorises acceptance of liability in a period before the extension came into operation, but not prior to 3 April 2006.

36.As the claim in the present case was made on 29 January 2007 it is to the terms of the original licence that reference must be made but it would make no difference if the matter were to be tested by reference to the current position.

37.On the foregoing analysis Mr Grixti cannot succeed in his present claim. He has not established that he suffered a compensable injury to which the SRC Act applies. It is therefore only necessary to deal briefly with two further matters.

38.The respondent submitted that Mr Grixti was disentitled to compensation, in any event, by the operation of s 7(7) of the SRC Act which provides:

“(7)A disease suffered by an employee, or an aggravation of such a disease, shall not be taken to be an injury to the employee for the purposes of this Act if the employee has at any time, for purposes connected with his or her employment or proposed employment by the Commonwealth or a licensed corporation, made a wilful and false representation that he or she did not suffer, or had not previously suffered, from that disease.”

39.We do not accept this submission. It has not been established that Mr Grixti made a wilful and false statement of the kind required to activate this provision. Mr Grixti, if he could now remember what was his state of mind, or belief, in 1993 made no admission or concession which could provide an adequate foundation upon which to conclude that the statements in his written employment application had the necessary qualities of falsity and wilfulness to engage s 7(7) of the SRC Act. There was no evidence of the discussion between Mr Grixti and Dr Perla at the time that Dr Perla assessed his fitness for employment, although it is clear that his hearing loss, which was identified by Dr Perla, was not a barrier to his employment in accordance with the respondent’s guidelines at the time.

40.The remaining issue concerns a submission made for Mr Grixti that he could not now seek any remedy under the WC Act. Based on that contention it was submitted that the respondent was under some obligation not to resist his claim and that the provisions of the SRC Act should be construed so as not to defeat it. Neither submission is tenable.

41.Section 17 of the WC Act makes special provision for loss of hearing claims. It provides, in s 17(1), so far as here relevant:

“(1)If an injury is a loss, or further loss, of hearing which is of such a nature as to be caused by a gradual process, the following provisions have effect:

(a)for the purposes of this Act, the injury shall be deemed to have happened:

(i)where the worker was, at the time when he or she gave notice of the injury, employed in an employment to the nature of which the injury was due – at the time when the notice was given, or

(ii)where the worker was not so employed at the time when he or she gave notice of the injury – on the last day on which the worker was employed in an employment to the nature of which the injury was due before he or she gave the notice,

(b)…

(c)compensation is payable by:

(i)where the worker was employed by an employer in an employment to the nature of which the injury was due at the time he or she gave notice of the injury – that employer, or

(ii)where the worker was not so employed – the last employer by whom the worker was employed in an employment to the nature of which the injury was due before he or she gave the notice”.

42.Mr Grixti’s earlier claim for compensation under the WC Act was rejected by an officer of the workers compensation insurer upon the basis that his deemed injury post-dated the period to which the WC Act applied. We doubt that s 17 has the effect of extinguishing a claim relating to Mr Grixti’s employment since 1993 because his claim form was sent by his solicitors on 30 June 2006, after the respondent’s licence came into effect.

43.In Attorney-General (Victoria) v Andrews (2007) 230 CLR 369 the High Court considered, and held valid, the terms of s 108(7) of the SRC Act which we earlier discussed. The majority judgment said (at [51]):

“51Section 108A(7) is directed to those licensees which are corporations (rather than Commonwealth authorities) which are authorised to accept the liability to pay compensation in respect of the injury, loss, damage and death of employees, as already spelled out in the same form of words appearing as para (a) of s 108A(1).  Those licensees retain, unaffected by the grant of the licence under the federal statute, such liability in respect of that injury, loss, damage and death occurring before the licence came into force as they carried under a law of a State or Territory relating to workers compensation.  That is the effect of para (b) of s 108A(7).”

44.It would be surprising (and unintended) if any such liability had become extinguished merely by the grant of a licence under the SRC Act.

45.However, whatever might be the correct view of that matter, which is not within the scope of the present proceedings to decide, it has no effect on the matters we have discussed. Mr Grixti would not become entitled to compensation under the SRC Act by virtue of the operation of s 17 of the WC Act, or any decision of an insurer under that Act.

46.Inevitably, on the findings we have made, the application to review the decision that Mr Grixti not be paid compensation under the SRC Act must be dismissed and the decision affirmed.

I certify that the 46 preceding paragraphs are a true copy of the reasons for the decision herein of Justice Buchanan, Presidential Member and Dr Alexander, Member.

Signed:.......................[sgd].........................................................
  Associate

Dates of Hearing  22, 23 June 2009 and 13 July 2009         
Date of Decision  31 July 2009
Counsel for the Applicant               Mr J Trainor
Solicitor for the Applicant               Mr C Santone, Maurice Blackburn
Counsel for the Respondent          Mr B Kelly
Solicitor for the Respondent          Mr B Ablong, Dibbs Barker