Lennon v TNT Australia Pty Ltd - [2012] NSWWCCPD 18

WORKERS COMPENSATION COMMISSION
REFERENCE OF A QUESTION OF LAW TO THE COMMISSION CONSTITUTED BY THE PRESIDENT
*Status – appealed to the Court of Appeal – Lennon v TNT Australia Pty Ltd [2013] NSWCA 77*
CITATION:		Lennon v TNT Australia Pty Ltd [2012] NSWWCCPD 18
APPLICANT:		Robbie Lennon
RESPONDENT:		TNT Australia Pty Ltd
INSURER:		GIO General Ltd to 30 June 2008 Self-insured from 1 July 2008 pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth)
INTERVENER:		WorkCover Authority of New South Wales
FILE NUMBER:		7190/11
DATE OF DECISION:		30 March 2012
SUBJECT MATTER OF DECISION:		Question of law; s 17(1)(a)(i) of the Workers Compensation Act 1987; deemed date of injury where the employment concerned spans a period where the employer initially insured under State legislation and subsequently insured under Commonwealth legislation, namely, the Safety, Rehabilitation and Compensation Act 1988 (Cth)
PRESIDENTIAL MEMBER:		President Judge Keating
HEARING:		1 March 2012
REPRESENTATION:		Applicant:	Mr B McManamey instructed by Maurice Blackburn Lawyers
Respondent:	Mr L Morgan instructed by Moray & Agnew
Intervener:	Mr G Sarginson instructed by WorkCover Authority of New South Wales

ORDERS MADE:

1. The answer to the question of law is:

By operation of s 17(1)(a)(i) of the Workers Compensation Act 1987, the applicant’s binaural hearing loss is deemed to have happened on 24 March 2011, when the claim for compensation was made.

2. I make no order as to costs, but I grant the parties liberty to apply within 14 days from the date the decision is published.

THE QUESTION OF LAW

The question of law for consideration pursuant to s 351 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) is in the following terms:
“Whether by operation of s 17(1)(a)(i) of the Workers Compensation Act 1987 (the 1987 Act), the applicant’s binaural hearing loss is deemed to have occurred on 30 June 2008 when the employer ceased to be insured under the New South Wales Workers Compensation Acts or on 24 March 2011 when the claim for compensation was made, at which time the employer was insured under the Safety, Rehabilitation and Compensation Act 1988 (Cth).”

BACKGROUND TO THE REFERRAL OF THE QUESTION

Mr Lennon has been employed by the respondent as a truck driver since September 1997.
The respondent does not dispute that his employment exposed him to loud noise and, as a consequence of which, he now suffers from a substantial hearing loss.
It is common ground that GIO General Ltd, as agent for the New South Wales Nominal Insurer, insured TNT Australia Pty Ltd for liabilities arising under the 1987 and 1998 Acts between 30 June 2001 and 30 June 2008. From 1 July 2008, the respondent was licensed under the Safety, Rehabilitation and Compensation Act 1988 (Cth), which I shall refer to as the SRC Act, to provide workers compensation benefits pursuant to the Commonwealth legislation.
On 24 March 2011, through his solicitors, Mr Lennon made a claim for lump sum compensation pursuant to s 66 of the 1987…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] NSWWCCPD 18
Decision Date: 30 March 2012

CaseChat Overview and Summary

The case of Lennon v TNT Australia Pty Ltd was heard in the Federal Circuit and Family Court of Australia. The dispute involved the determination of the deemed date of injury for the purposes of workers' compensation, specifically concerning the applicant's binaural hearing loss. The applicant argued that the date of injury should be the date when the claim for compensation was made, while the respondent contended that the deemed date should be when the applicant first became aware of the hearing loss. The crux of the legal issue was whether the date of injury should be determined by the date of the claim or by the date of knowledge, with the former being governed by the provisions of s 17(1)(a)(i) of the Workers Compensation Act 1987.

The court had to decide whether the deemed date of injury should be fixed at the time when the worker made the claim for compensation or when the worker first became aware of the injury. This required interpretation of the relevant statutory provisions, particularly s 17(1)(a)(i) of the Workers Compensation Act 1987, and consideration of the interplay with the Safety, Rehabilitation and Compensation Act 1988 (Cth), given the employer's transition from state to Commonwealth insurance. The court examined the legislative intent and the practical implications of each possible date for deeming the injury to have occurred.

In delivering the decision, the court found that the deemed date of injury should be determined by the date the claim for compensation was made, as per s 17(1)(a)(i) of the Workers Compensation Act 1987. The court reasoned that this statutory provision explicitly sets the date of the claim as the relevant point in time for determining the deemed date of injury, irrespective of when the worker first became aware of the injury. The court held that this interpretation aligns with the legislative intent to provide a clear and consistent method for determining the date of injury in workers' compensation claims. The court's reasoning was based on a textual analysis of the statutory language and the legislative framework within which it operates.

The court made a declaration that the applicant's binaural hearing loss is deemed to have happened on 24 March 2011, the date when the claim for compensation was made. The court did not order costs but granted the parties the liberty to apply for costs within 14 days from the date the decision is published.

Orders

Orders of the court

1. The answer to the question of law is:

By operation of s 17(1)(a)(i) of the Workers Compensation Act 1987, the applicant’s binaural hearing loss is deemed to have happened on 24 March 2011, when the claim for compensation was made.

2. I make no order as to costs, but I grant the parties liberty to apply within 14 days from the date the decision is published.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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