Lennon v TNT Australia Pty Ltd

In *Lennon v TNT Australia Pty Ltd*, the applicant worker appealed to the Court of Appeal of New South Wales against a decision concerning the date of occurrence of his binaural hearing loss for the purposes of workers' compensation. The dispute centred on whether the applicant's injury should be deemed to have occurred on 30 June 2008, when his employer ceased to be insured under New South Wales workers' compensation legislation, or on 24 March 2011, when the claim was made and the employer was insured under the Commonwealth's *Safety, Rehabilitation and Compensation Act 1988* (SRC Act).

The primary legal issues before the Court of Appeal were: first, the construction and application of section 17(1) of the *Workers Compensation Act 1987* (NSW), specifically the meaning of "employer by whom the worker was employed in an employment to the nature of which the injury was due"; and second, the interplay between the NSW Act and the SRC Act, particularly whether the latter rendered the former inoperative due to inconsistency under section 109 of the Commonwealth Constitution, and how section 108A(7) of the SRC Act preserved existing liabilities.

The Court of Appeal reasoned that the application of the SRC Act was determined by its own terms, and that section 108A(7) of the SRC Act was crucial in preserving liabilities and obligations arising under the NSW Act. The Court held that the applicant's binaural hearing loss was deemed to have occurred on the last day before the employer's licence under the SRC Act came into force, which was 30 June 2008. The Court further clarified that if the injury was considered to have occurred after the SRC Act licence came into force, that Act would apply, but any liability under the NSW Act for an injury occurring before the licence commenced would remain unaffected by section 108A(7). Conversely, if the injury was deemed to have occurred before the SRC Act licence, neither the SRC Act nor the licence would apply.

The Court of Appeal granted leave to appeal, allowed the appeal, and set aside the President's answer. The Court provided a detailed answer to the question posed for determination, establishing that the injury occurred on 30 June 2008. The respondent was ordered to pay the applicant's costs.