Return to Work Corporation of South Australia v Renfrey
[2019] SASCFC 26
•21 March 2019
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA v RENFREY
[2019] SASCFC 26
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Nicholson and The Honourable Justice Parker)
21 March 2019
WORKERS' COMPENSATION - ENTITLEMENT TO COMPENSATION - PARTICULAR INJURIES, DISEASES AND DISABILITIES - INDUSTRIAL DISEASES - LOSS OF HEARING
WORKERS' COMPENSATION - ENTITLEMENT TO COMPENSATION - EMPLOYMENT RELATED INJURY, DISABILITY OR DISEASE - ARISING OUT OF EMPLOYMENT
WORKERS' COMPENSATION - ENTITLEMENT TO COMPENSATION - EMPLOYMENT RELATED INJURY, DISABILITY OR DISEASE - COMMENCEMENT AND TERMINATION OF EMPLOYMENT - TERMINATION
CONSTITUTIONAL LAW - OPERATION AND EFFECT OF THE COMMONWEALTH CONSTITUTION - INCONSISTENCY OF LAWS (CONSTITUTION, S 109) - PARTICULAR CASES - INDUSTRIAL LAWS
Appeal against a decision of the Full Bench of the South Australian Employment Tribunal, upholding the first instance decision that the respondent, Mr Renfrey, be entitled to a lump sum award for a claim for hearing loss.
Mr Renfrey was employed by TNT Express from October 1978 until July 2011, when he resigned for reasons unrelated to ill health. Under the Workers Rehabilitation and Compensation Act 1986 (SA) (the WRC Act), the appellant was liable to make compensation payments for any injuries Mr Renfrey suffered whilst he was employed by TNT Express. On 1 July 2008, TNT Express became a licensed corporation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act), and thereafter, the workers compensation entitlements of TNT Express’ employees were governed by this act.
On 15 February 2013, Mr Renfrey gave first notice of, and made a claim for, noise induced hearing loss. The appellant complains that because Mr Renfrey made his claim at a time he was no longer employed, and because when he was last employed by TNT Express he was not subject to the WRC Act, it is not bound to compensate him for his hearing loss.
Held, per Kourakis CJ (Nicholson and Parker JJ agreeing), dismissing the appeal:
1. Section 113(2) of the WRC Act does not deem hearing loss, which was sustained almost exclusively during employment and at a time when the WRC Act applied, to have occurred after that employment came to an end.
2. The appellant was liable to pay compensation for the whole of Mr Renfrey’s hearing loss because his employment with TNT Express was the last employment governed by the WRC Act in which he was exposed to noise capable of causing hearing loss.
3. The term employment in s 113(2) of the WRC Act means employment with respect to which the WRC Act confers a worker’s compensation entitlement for hearing loss.
4. The second limb of s 113(2) of the WRC Act deems the whole of Mr Renfrey’s loss to have occurred out of his employment with TNT Express, irrespective of the date on which notice was given.
5. Mr Renfrey became impaired at a time when TNT Express was not licensed under the SRC Act, and it follows that the operation of the WRC Act was not excluded.
6. Section 108A of the SRC Act expressly preserves the entitlements granted under State or Territory law, and is applicable only with respect to injury, loss or damage suffered by its employees after the licence comes into force.
Workmen's Compensation Act 1971 (SA) s 7, s 69(8), s 69(9), s 74; Workers Rehabilitation and Compensation Act 1986 (SA) s 6, s 30(1), s 31, s 43, s 43A, s 51, s 51(2), s 113, Schedule 2; Safety, Rehabilitation and Compensation Act 1988 (Cth) s 108A; Workmen's Compensation Act 1932 (SA); Workers' Compensation Act 1926 (NSW) s 7; Workers Compensation Act 1987 (NSW)b s 17, referred to.
Lennon v TNT Australia Pty Ltd (2013) 84 NSWLR 161, applied.
Coates v Commissioner for Railways [1964] NSWLR 129; Return to Work SA v Renfrey [2017] SAET 164, discussed.
General Motors-Holden Pty Ltd v Barkway (1975) 11 SASR 381; Adelaide Brighton Cement Ltd v Hofman (1981) 28 SASR 286; Sporsen v General Motors-Holdens Limited (1984) 37 SASR 331; State Government Insurance Commission v Clift (1990) 54 SASR 52; Arrowcrest Group Pty Ltd v Markowski (1991) 55 SASR 557; Russo v World Services and Constructions Pty Ltd [1979] 1 NSWLR 330; A & G Engineering Pty Ltd v Civitarese (1996) 41 NSWLR 41, considered.
WORDS AND PHRASES CONSIDERED/DEFINED
"Deteriorated injury", "Injuries that develop gradually"
RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA v RENFREY
[2019] SASCFC 26Full Court: Kourakis CJ, Nicholson and Parker JJ
KOURAKIS CJ: This is an appeal against a decision of the Full Bench of the South Australian Employment Tribunal (SAET) on a claim for a lump sum disability payment for hearing loss made by the respondent, Mr Renfrey. Mr Renfrey was employed by TNT Express from October 1978 until July 2011 when he resigned for reasons other than ill health. When he was first employed Mr Renfrey’s workers compensation entitlements were governed by the Workmen’s Compensation Act 1971 (SA) (the WC Act 1971) and from 30 September 1987 by the Workers Rehabilitation and Compensation Act 1986 (SA) (the WRC Act). Pursuant to the WRC Act, the Return to Work Corporation (the RTW Corporation) was liable to make compensation payments for injury suffered by Mr Renfrey in the course of his employment with TNT Express. On 1 July 2008 TNT Express became a licensed corporation pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act). The workers compensation entitlements of its employees were thereafter governed by the SRC Act.
Mr Renfrey first gave notice of, and made a claim for, noise induced hearing loss on 15 February 2013. The RTW Corporation rejected Mr Renfrey’s claim for compensation, relying on the deeming provision of s 113(2) of the WRC Act, which provides that the whole of a worker’s noise induced hearing loss occurs on the day notice is given. The RTW Corporation contended that because Mr Renfrey made his claim on 15 February 2013, at a time when he was no longer employed, and because when Mr Renfrey was last employed by TNT Express he was not subject to the WRC Act, it was not bound to compensate him for his hearing loss. The RTW Corporation contended that Mr Renfrey’s compensation entitlements for his hearing loss were exclusively governed by the SRC Act.
At first instance, the President of SAET found that Mr Renfrey was entitled to compensation pursuant to the WRC Act. The expert evidence was that Mr Renfrey had suffered a hearing loss which resulted in a 20 percent whole person impairment (WPI). Dr Matison, an ENT surgeon, assessed Mr Renfrey’s binaural hearing loss and determined that the best he could do was to ‘guesstimate’ that one or two percent of Mr Renfrey’s hearing loss was sustained after TNT Express became licenced pursuant to the SRC Act. Consequently, the President made an award based on a 19 percent impairment at the request of Mr Renfrey, who wished to limit his claim to the loss sustained before TNT Express became licensed.
A Full Bench of the SAET dismissed an appeal by the RTW Corporation, but, with the consent of both parties, increased the award to reflect a 20 percent WPI to accord with their construction of s 113(2) of the WRC Act.
I would dismiss the appeal. The deeming provision enacted by s 113(2) of the WRC Act does not deem noise induced hearing loss, which was sustained almost exclusively during employment and at a time when the WRC Act applied, to have occurred after that employment came to an end. Mr Renfrey became entitled to a lump sum for his hearing loss when he first suffered a hearing loss. On the undisputed evidence he suffered most of that hearing loss when his workers compensation entitlements were governed by the WRC Act. It follows that in the course of his employment with TNT Express, before it was licensed under the SRC Act, Mr Renfrey suffered either a hearing loss injury for the first time, or a deterioration of a pre-existing hearing loss to which his employment with TNT Express contributed. Mr Renfrey was entitled thereon to compensation for his hearing loss, the quantum of which would be assessed as if the entirety of the loss was occasioned when, and if, he gave notice of injury. The provision made by s 113(2) of the WRC Act for the quantification of the compensation for hearing loss against the then applicable lump sum for non-economic loss does not defer, suspend or detract from the accrual of his entitlement to compensation at the earlier time on which he sustained the injury. The SRC Act expressly preserves the entitlements to workers compensation which accrued in the course of Mr Renfrey’s preceding employment. The SRC Act therefore does not render the WRC Act inoperable with respect to injuries suffered before the licence was granted to TNT under the SRC Act. The RTW Corporation was liable to pay compensation for the whole of that hearing loss because Mr Renfrey’s employment with TNT Express was the last employment governed by the WRC Act in which, in accordance with s 113(2) of that WRC Act, he was exposed to noise capable of causing his hearing loss.
The Statutory Provisions
The effectiveness of the presumptions enacted by s 113 of the WRC Act is enhanced by the definition of injury in s 3 of the WRC Act and s 31 of the WRC Act. Section 3 of the WRC Act defines ‘injury’ to mean any physical or mental injury including a disease and the loss, deterioration or impairment of an organ or of a physical, mental or sensory faculty, and includes a secondary injury. A secondary injury is in turn defined as an injury that ‘is, or results from, the aggravation, acceleration, exacerbation, deterioration or recurrence of a prior injury’. I will refer to a secondary injury as a deteriorated injury. Compensation for a deteriorated injury is assessed by reference to the totality of the associated impairments whether they preceded or followed the deterioration.
Section 31 of the WRC Act provided that where a worker suffered a disability of a kind referred to in the first column of the second Schedule to that Act, and had been employed in work of a prescribed kind, it is presumed, in the absence of proof to the contrary, that the disability arose from that employment; any employment involving exposure to noise was prescribed alongside the disability described as ‘noise induced hearing loss’.
Section 30(1) of the WRC Act provided that an injury is compensable if it arises from employment and, in the case of secondary injury, it arises in the course of employment and the employment contributed to the injury, or alternatively, arises out of employment.
Section 46 of the WRC Act renders the RTW Corporation liable for compensation that is payable under the Act save for the compensable injury arising out of employment with a self-insured employer. The effect of ss 30 and 46 of the WRC Act is that a liability is imposed on the RTW Corporation, or a self-insured employer, as the case may be, on the occurrence of an injury.
The WRC Act also prescribes procedures for the making of a claim. Section 51 of the WRC Act requires a worker who suffers compensable injury to give notice of that injury to the employer by whom the worker is employed at the time of the occurrence of the injury. If the worker is not in employment, or is self-employed, the notice must be given to the corporation. Section 51(2) of the WRC Act provides that the notice should be given if practicable within 24 hours after the occurrence of the injury, but, if that is not practicable, as soon as practicable after the worker becomes aware of it. Section 52 provides that a claim for compensation must be made in the manner and form approved by the RTW Corporation, must be supported by a medical certificate, and must be made within six months from on the day on which the entitlement to make the claim arises.
Section 113 of the WRC Act relevantly provides:
113—Injuries that develop gradually
(1)An injury (not being noise induced hearing loss) that develops gradually or is a disease will be taken to have occurred when the worker first becomes totally or partially incapacitated for work by the injury.
(2)Subject to this section, where a claim is made under this Act in respect of noise induced hearing loss by a worker (not being a person who has retired from employment on account of age or ill-health), the whole of the loss shall be deemed to have occurred immediately before notice of the injury was given and, subject to any proof to the contrary, to have arisen out of employment in which the worker was last exposed to noise capable of causing noise induced hearing loss.
(2a)Where a claim is made under this Act in respect of noise induced hearing loss by a person who has retired from employment on account of age or ill-health, the whole of the loss shall be deemed to have occurred immediately before the person retired and, subject to any proof to the contrary, to have arisen out of employment in which the person was last exposed to noise capable of causing noise induced hearing loss.
The remaining subsections of s 113 of the WRC Act establish a scheme by which the RTW Corporation may require employers to carry out tests for injuries which develop gradually, and for self-insured employers and the RTW Corporation to seek contribution, one from the other, for compensation paid to such a worker (the contribution provisions).
Section 5B of the SRC Act includes within the definition of disease an aggravation of an ailment which was contributed to, to a significant degree, by the employee’s employment by a licensee. Section 7 of the SRC Act provides that an employee shall be taken to have suffered an injury which is a disease on the day when medical treatment for it is first sought, or when it first resulted in an impairment, whichever happens first.
Mr Renfrey first sought treatment on 17 January 2012, after leaving his employment with TNT Express on 22 July 2011.
Section 108A of the SRC Act provides:
108AThe consequences of a licensee’s authorisation to accept liability
(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.
(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.
(3)The fact that a licensee is authorised to accept liability to pay compensation and other amounts under this Act in respect of a particular injury, loss, damage or death does not render the licensee liable to have any proceedings (including proceedings under Part VI) brought against it in respect of that particular injury, loss, damage or death other than proceedings for the recovery of that compensation and those other amounts.
Note: If licensees are authorised to manage claims, proceedings may be brought against them in respect of the management of those claims (see subsection 108C(7)).
…
(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.
The scheme of s 108A of the SRC Act may be summarised as follows:
·Subsection (1) transfers liability to pay compensation from Comcare to the licensed employer for injuries occurring after the licencing date.
·Subsection (2) preserves Comcare’s pre-existing liability.
·Subsection (3) limits the licenced employers’ liability, by reason of the licencing, to the payment of compensation.
·Subsection (7) applies to injuries sustained by an employee after the date of licencing[1] and precludes the application of State or Territory workers compensation laws on that injury, but does not affect any pre-existing liability arising under a State or Territory law for injury occurring before the employer was licensed.
[1] Lennon v TNT Australia Pty Ltd (2013) 84 NSWLR 161.
Section 118(1) of the SRC Act provides that compensation is not payable to an employee under the SRC Act for an injury if he or she has received compensation under a State workers compensation scheme. Section 118(2) of the SRC Act provides that if an employee recovers State workers compensation for an injury after receiving compensation under the SRC Act, the Commonwealth compensating authority may recover the compensation paid under the SRC Act. Section 118 of the SRC Act recognises that both it, and a State or Territory Act, may apply to the same injury. The obvious area of overlap is in the case of a deteriorated injury.
The reasons of the Full Bench
The essential reasoning of Hannon DP, with whom the other members of the Full Bench agreed, appears in the following subparagraphs:[2]
[2] Return to Work SA v Renfrey [2017] SAET 164 at [47]-[48], [50], [58], [74-75].
[47]The President relied on this analysis, and also on Clift, where the Court cited Sporsen in holding that the fiction created by s 74 was limited to the assessment of compensation and did not apply for other purposes.
[48]In my view the President did not err in law in concluding that the reasoning in Sporsen and Clift applied equally to the first deeming limb of s 113(2) of the State Act. The adoption of a narrow approach to the scope of the deeming provisions of s 113(2) of the State Act is consistent with the strict construction to be given to the interpretation of statutory fictions as noted by Stanley J in Return to Work Corporation of South Australia v Watkins, where he said:
“… In construing a provision of this kind, it is important to consider the purpose for which the statutory fiction is introduced. Deeming provisions are required by their nature to be construed strictly and only for the purpose for which resort is had to them.” (footnotes omitted)
…
[50]The next question is whether the President was correct in his conclusion that, assuming injury and a consequent entitlement to claim compensation arose before 1 July 2008, that entitlement was preserved by s 108A(7) of the SRC Act, with the only issue being as to how it was to be assessed.
…
[58]In terms of the interaction of s 108A(7) of the SRC Act with [Workers Compensation Act 1987 (NSW)], Basten JA concluded that the effect of s 108A(7) was that if the injury occurred after the licence took effect on 1 July 2008, the NSW Act did not apply; but if the injury had, by application of the SRC Act, arisen before the licence came into force, then the SRC Act would not apply. In those circumstances, the Commonwealth and State Acts would each be applied on their own terms, with there being no inconsistency between them.
…
[74]As to the first deeming provision of s 113(2), given the expert evidence and the evidence of Mr Renfrey indicating that he suffered a relevant impairment before 30 June 2008, I consider the President was correct to conclude that Mr Renfrey suffered binaural hearing loss which gave rise to an entitlement to compensation before the SRC licence came into force, and that he was correct to follow the Full Court authorities of Sporsen and Clift. Further that he was correct to also conclude that this entitlement gave rise to a corresponding liability or obligation on the part of TNT which was preserved by the operation of s 108A(7) of the SRC Act. In my view, there was no material difference between the provisions of the NSW Act which Basten JA analysed, and the above cited provisions of the State Act being ss 3, 30, 31, and 52. For reasons given, the legal effect of an entitlement arising before 1 July 2008 was not altered by a proper understanding as to the limited scope of the deeming provisions of s 113(2) of the State Act.
[75]As to the second deeming provision in s 113(2) of the State Act, the reasons of the President indicate he considered it was appropriate to adopt Basten JA’s acceptance of the approach taken in Russo. In the paragraph of the reasons extracted above, the President set out five requirements for liability under the State Act, all of which he found to have been met. The third and fourth requirements were stated to be that employment be by an employer other than a licensed employer, that is, an employer subject to the State Act. I take this to be a shorthand way of stating that the President adopted the approach of Basten JA based on Russo. Namely, that in the construction of s 113(2) of the State Act, the reference to “employment” in the second deeming provision, whereby the whole of the loss shall be deemed to have arisen out of employment in which the worker was last exposed to noise capable of causing noise induced hearing loss, is to be understood as the last employment subject to the State Act, being the employment with TNT up to 30 June 2008. I consider the appellant has failed to demonstrate any error of law in this approach.
(Citations omitted)
Construction of s 113
Section 113 of the WRC Act has its origins in a similar provision enacted in the WC Act 1971. In General Motors-Holden Pty Ltd v Barkway (Barkway),[3] this Court considered the effect of a deeming provision similar to s 113(2) of the WRC Act enacted by s 74 of the WC Act 1971. In Barkway the noise induced hearing loss was sustained in the course of employment during the operation of the Workmen’s Compensation Act 1932 (SA) (the repealed Act) and in periods after the commencement of the WC Act 1971.
[3] (1975) 11 SASR 381.
Section 7 of the WC Act 1971 provided that it applied only in relation to a worker who had suffered an injury that occurred after its commencement. An injury included an aggravation, acceleration or exacerbation of a pre-existing injury. Section 69(9) of the WC Act 1971 defined a ‘prior injury’ to mean ‘any injury or disease in respect of which compensation has been paid under this section or section 26 of the repealed Act’. Section 69(8) of the WC Act 1971 allowed the deduction of any lump sum compensation payment for disability paid under the repealed Act to be deducted from a disability lump sum payable under the WC Act 1971.
Section 74 of the WC Act 1971 provided:
74.If compensation under this Act is claimed in respect of the injury known as noise induced hearing loss and that injury was not a prior injury as defined in subsection (9) of section 69 of this Act that compensation shall be assessed as if the whole of the loss of function arising from that injury occurred immediately before the notice of that injury was given.
Under both the repealed Act and the WC Act 1971, disability lump sums were assessed as a proportion of a prescribed sum. Both Acts provided that the maximum award payable for the loss of a particular limb or faculty was a percentage of the prescribed sum. Lump sum awards of compensation were made by applying the percentage loss of function to the maximum sum which could be awarded for a total loss of that faculty. The maximum prescribed sum under the repealed Act was $9,000, and under the WC Act 1971 was $20,000. It followed that the compensation payable under the WC Act 1971 was significantly greater than under the repealed Act.
Section 74 therefore both applied the higher prescribed sum if the notice of claim was given after the WC Act 1971 came into effect, and aggregated the hearing loss suffered in employment of any kind, both before and after the WC Act 1971, unless compensation had been paid under the repealed Act.
The dispute in Barkway was not as to the compensability of Mr Barkway’s hearing loss under the WC Act 1971 but as to whether the award should be limited to that loss suffered in employment after the WC Act 1971 came into effect. General Motors Holden contended that s 74 of the WC Act 1971 should be read down to limit the ‘whole of the loss of function arising from that injury’ to the loss of function suffered after the WC Act 1971 came into effect, to accord more closely with s 7 of the Act. Mr Barkway argued that s 7 was not expressly limited to injuries occurring after the WC Act 1971 came into effect, but only to employees who had sustained an injury after it came into effect. It followed on Mr Barkway’s construction of the WC Act 1971 that its provisions applied to an employee who had suffered an acceleration, exacerbation or aggravation, after its enactment, of a pre-existing condition.
Bray CJ proceeded on the basis that the relevant injury in a case of noise induced hearing loss was not the trauma or effect of noise on the cellular structures of the ear, but the loss of function that was eventually produced. His Honour said:[4]
In other words, though in logic and common sense the injury can never be identical with the loss of function it produces, in the case of a noise induced hearing loss it is completely coincidental with it. This type of injury occurs in the eyes of the law each time a loss of function occurs and not otherwise.
[4] General Motors-Holden Pty Ltd v Barkway (1975) 11 SASR 381 at 386.
Bray CJ concluded that the whole of the hearing loss was compensable by reference to the sum prescribed for the purposes of the WC Act 1971:[5]
Unless [the noise induced hearing loss suffered by a worker] is a prior injury as defined in s 69(9), i.e. an injury for which he has previously received compensation either under the old Act or the new, his compensation has to be assessed as if the whole of the noise induced hearing loss from which he was suffering at the date of the claim had occurred immediately before he gave notice of it. It is accepted for the present purpose that the date of that notice was 2nd March, 1973. I say the whole of the noise induced hearing loss because that loss is both the injury and the loss of function arising from it. I repeat that the phrases are not identical and the concepts are different, but they are coterminous in time and to say that one is deemed to have happened at a certain time is to say that the other is deemed to have happened at that time also. If this makes the event and its consequence simultaneous, I cannot help it. No one has challenged the dictum of Walsh J. referred to above.
[5] General Motors-Holden Pty Ltd v Barkway (1975) 11 SASR 381 at 386.
The dictum of Walsh J in Coates v Commissioner for Railways, to which Bray CJ referred is: [6]
… I think it can properly be said that an injury occurs when and not until there has been a significant and measurable diminution of hearing. We are concerned with an Act which provides compensation for injury. An injury may result from many small causes, but it is not until these have had an appreciable effect that it can be said that an injury has occurred.
[6] [1964] NSWR 129 at 1295-1296.
In Adelaide Brighton Cement Ltd v Hofman (Hofman),[7] the worker was exposed to noise in employment engaged in both before and after the WC Act 1971 came into effect. King CJ, in holding that the whole of the worker’s hearing loss was compensable by reference to the sum prescribed under the WC Act 1971, explained:[8]
It seems to me, however, that the reasoning which is essential to the decision in Barkway’s case and which therefore constitutes its ratio decidendi is the following. There can be no injury without loss of function. By virtue of s 74 the whole of the loss of function is to be treated as occurring on the date of the giving of the notice. Therefore the injury must be treated as occurring on that date. The correctness of the minor premise of the syllogism is, I think, a matter upon which opinions might differ. An alternative view of s 74 would be that the fiction which it creates exists only for the purpose of assessing the quantum of compensation under the table. Be that as it may, the above reasoning is essential to the decision and must be regarded as its ratio. It is, in my opinion, decisive of the present appeal.
(Citation omitted)
[7] (1981) 28 SASR 286.
[8] Adelaide Brighton Cement Ltd v Hofman (1981) 28 SASR 286 at 289.
In Sporsen v General Motors-Holdens Ltd (Sporsen),[9] this Court considered a claim in which the only relevant employment of the worker had ceased prior to the WC Act 1971 coming into effect. The Court held that the mere giving of notice after that time did not give the worker any entitlement under that Act.
[9] (1984) 37 SASR 331.
In Sporsen, counsel for the worker relied on the just cited passage from Hofman cited above. King CJ explained that the fiction created by s 74 of the WC Act 1971 was only that the loss of function occurred immediately before notice, and it did not deem that point in time to be the date of injury for all purposes:[10]
[Counsel for the worker] focussed upon my description of the alternative view to that taken in Barkway’s case, and therefore the unacceptable view, as that “the fiction which it creates exists only for the purpose of assessing the quantum of compensation under the table”. To sustain Mr. Perry’s argument it is necessary to understand that sentence as implying that Barkway’s case decided that the section deemed the date of the injury not only for the purpose of the assessment of compensation but for all purposes. But that is to misread the passage. The fiction referred to is that “the loss of function arising from that injury occurred immediately before the notice of that injury was given”. The alternative view, not accepted in Barkway’s case, to which I referred in the passage under discussion, was that that fiction exists only for the narrow purpose in connection with the assessment of compensation of quantifying the compensation under the table and not for the wider purpose of fixing the date of the injury for the purpose of the assessment of the compensation. The passage was not intended to imply that Barkway’s case decided that the effect of s 74 was to deem the date of the injury for purposes other than the assessment of the compensation. That would be contrary to the words of the section which plainly confine the use of the fiction to the assessment of the compensation. Both Barkway’s case and Hofman’s case were concerned with a question related to the assessment of the compensation, namely the applicable rate of compensation, and they treated s 74 as fixing the date of the injury of noise induced hearing loss for that purpose. Neither case held that s 74 fixed the date of the injury for purposes beyond the assessment of the compensation. I do not read any of the judgments in Hofman’s case as stating or implying that s 74 can be used to fix the date of the injury for the purpose of determining the applicability of the 1971 Act to the injury. That would be contrary to the passages in the judgments in Barkway’s case which are referred to below.
I return to the relevant statutory provisions. The 1971 Act applies to a worker only if he can bring himself within s 7 as a worker who has suffered injury after the commencement of the Act. That was made clear in Barkway’s case, per Bray C.J. at p. 385, per Walters J. at p. 388 and per Wells J. at pp. 391-392. Noise induced hearing loss being a disease, the date of the injury is to be determined in accordance with s 8(4) as that sub-section is expressed to apply for all the purposes of the Act. Only if the worker brings himself within the 1971 Act does s 74 apply for the purpose of the assessment of his compensation. As the injury consists in the loss of function, s 74 has the effect of deeming, for the purpose of the assessment of compensation, both the injury and the loss of function to occur immediately before the giving of the notice. That is the effect of Barkway’s case.
(Emphasis in original; citations omitted)
[10] Sporsen v General Motors-Holdens Limited (1984) 37 SASR 331 at 335.
In State Government Insurance Commission v Clift, King CJ explained the decision in Sporsen as follows:[11]
The purpose of fixing the date of the injury in the present case does not relate to the assessment of compensation and it is clear from Sporsen’s case that s 74 does not operate to fix the date of the occurrence of the injury for any other purpose. The section has no application to the determination of the date of the occurrence of the injury for the purpose of ascertaining whether it occurred during the currency of the insurance cover provided by SGIC.
[11] (1990) 54 SASR 52 at 54.
In Arrowcrest Group Pty Ltd v Markowski (Markowski),[12] this Court considered s 113(2) of the WRC Act in its application to noise induced hearing loss suffered by a worker in the course of employment spanning the WC Act 1971 and the WRC Act. It should be observed at the outset that s 113(2) of the WRC Act expressly addressed the ellipsis in s 74 of the WC Act 1971 by not only deeming the date which would determine the applicable prescribed sum but also deeming the injury to have arisen out of the last employment in which the worker was exposed to noise.
[12] (1991) 55 SASR 557.
In Markowski, Mr Markowski’s hearing was tested in June 1985. He was found to have a 44.6 percent binaural hearing loss, but he made no claim at that time. In August 1988, Mr Markowski was found to have a 47.3 percent binaural hearing loss and he gave notice of disability on 22 September 1988. The Workers Compensation Appeal Tribunal held that Mr Markowski was entitled to be compensated for his entire loss by reference to the higher sum prescribed by the WRC Act. The appeal was unanimously dismissed, but King CJ and Olsson J differed on whether s 113 of the WRC Act deemed both the disability, and the traumata giving rise to it, as having occurred immediately prior to giving the notice. Both King CJ and Olsson J held that the WRC Act applied by reason of the transitional provisions which provided that, in the case of a disability partially attributable to different traumas occurring before and after the appointed day, the WRC Act applied. King CJ also held that the purposes of the fiction enacted by s 113(2) of the WRC Act did not extend to the determination of whether the WC Act 1971 or the WRC Act applies to a particular hearing loss disability.
On the other hand, Olsson J held that the date deemed by s 113(2) also operated to attract the provisions of the WRC Act:[13]
Once that conclusion can be arrived at, then cl 2 of the First Schedule permits of only one application in the relevant circumstances. That conclusion may be arrived at by two separate routes which produce an identical end result.
First, the claim, when lodged, necessarily invoked the operation of ss 113 and 31 of the current Act, with the consequence that both the whole of the then existing noise-induced hearing loss and the traumata giving rise to them were conclusively deemed to be coterminous and to have given rise to the relevant disability immediately prior to the notice of claim. By means of that statutory fiction, it simply could not be said that there was a disability that was attributable to a trauma that occurred prior to the appointed day.
[13] Arrowcrest Group Pty Ltd v Markowski (1991) 55 SASR 557 at 563.
Section 43 of the WRC Act provides for lump sum compensation where a compensable injury results in a permanent impairment assessed in accordance with s 43A. It is compensation of this kind which Mr Renfrey claimed. Mr Renfrey had a vested entitlement to that compensation when he first sustained the injury of hearing loss caused by the ‘traumata’ suffered in the course of his employment with TNT before it became licensed under the SRC Act. As I observed earlier, the giving of notice and the making of a claim is not a condition precedent to the entitlement, it is a procedural requirement which affects the quantification of that entitlement.
I respectfully agree with the observation of King CJ in Arrowcrest that it is generally not the purpose of a provision like s 113 of the WRC Act to operate as a transitional provision. Equally, it is not its purpose to delineate the operation of the WRC Act on injuries of gradual onset that arise out of both employment governed by its provisions, and employment covered by the workers compensation legislation of other Australian jurisdictions. Section 113 both governs liability and determines the quantification of compensation for injuries arising out of employment to which the WRC Act applies, but it does not speak to whether the WRC Act should give way to a federal or interstate analogue.
Importantly, s 113(2) of the WRC Act provides both an aid to proof and the factual and monetary basis against which the worker’s entitlement is to be measured. The object of s 113 is to address the uncertainty, which would otherwise attend the application of the provisions of the WRC Act, as to injuries that develop gradually. Relevantly, these uncertainties are: the prescribed monetary amounts by reference to which awards are to be made, the employer who; is liable to pay the award in the first instance; and the contribution between employers.
Section 113 addresses those uncertainties by:
·deeming a date on which a gradually-developed injury occurred for the purposes of the applicability of the relevant prescribed sum;
·in the case of noise induced hearing loss, deeming the last employer prima facie liable for the whole of the loss, but allowing that employer to prove otherwise; and
·providing for contribution between employers.
Section 113(1) of the WRC Act deems a gradually developing injury to have occurred when the worker first becomes totally or partially incapacitated for work by reason of that injury. However, by reason of the words in parentheses, noise induced hearing loss is excluded from that deeming provision, perhaps because fixing on incapacity as the deemed date of occurrence is not apt for a loss of a faculty of that kind.
Importantly, s 113(1) of the WRC Act does not deal with the question of liability for the injury. Even though the injury is taken to have occurred when the worker first becomes totally or partially incapacitated, s 113(1) does not address, and does not create a presumption as to which, if any, employment the injury arose out of. To establish a compensable connection with a particular employer, a worker suffering a gradual onset injury may rely on s 31 of the WRC Act if the injury is specified in Schedule 2, or on evidence. Nor does s 113(1) of the WRC Act deem the whole of the impairment to have occurred in any particular employment. That result generally follows, as I observed earlier, from the extended definition of injury, which includes a deteriorated injury.
On the other hand, s 113(2) deems a date for the occurrence of ‘the whole of the [hearing] loss’ and not just the injury; the irrebuttable presumption is that the whole of the loss occurred immediately before notice of the injury was given. The first limb fixes the date on which the whole of the loss is taken to have occurred and determines the applicable prescribed sum for the purposes of s 43. The second limb of s 113(2) deems the whole of the hearing loss to have arisen out of employment in which the worker was last exposed to noise capable of causing noise induced hearing loss, subject to proof to the contrary. The effect of the second limb of s 113(2) of the WRC Act appears to be threefold. First it makes it clear that the rebuttable presumption enacted by s 31 is preserved. Secondly, unlike other injuries of gradual onset, it deems all of the loss, including hearing loss which is sustained when subsequently employed, as having been sustained in the last employment which was capable of causing it. Thirdly it encourages a single claim against the last employer whose employment was capable of causing the loss.
On a purely textual analysis, the presumption enacted by the second limb of s 113(2) would appear to be rebutted by proof that something less than the whole of the loss arose out of the last relevant employment. However, as I observed above, in the case of injuries of gradual onset, because any deterioration of the injury renders the whole of the injury compensable, it follows that the presumption can only be rebutted by showing that the last employment, although ‘capable of causing’ hearing loss, in fact made no contribution to the deterioration of the worker’s condition. Alternatively it would allow proof that some of the loss was caused subsequently.
It follows from the evidence of Dr Matison in [3] above, and the extended definition of injury to which I referred earlier, that Mr Renfrey suffered an injury which was compensable under the WRC Act before TNT Express was licensed under the SRC Act.
It is convenient next to consider the hypothetical case of an employee who, after being employed in South Australia, in employment governed by the WRC Act, takes up interstate employment (not covered by the extra-territorial provision in s 6 of the WRC Act) before giving a notice of noise induced hearing loss. It is difficult to see that Parliament could have intended to disadvantage that worker over a worker who became self‑employed and remained in South Australia. Both the worker who takes up interstate employment and the self-employed South Australian should be assessed, subject to proof to the contrary (that is that some or all of the injury was subsequently caused), on the basis that the whole of hearing loss occurred in the course of their employment with the last South Australian employer.
It is convenient to observe interstate cases which have considered the applicability of the deeming provisions for hearing loss claims on workers who subsequently took up employment capable of causing hearing loss in another jurisdiction. In Russo v World Services and Constructions Pty Ltd (Russo),[14] the Court of Appeal of New South Wales heard a hearing loss claim made by a worker who, after a period of employment by World Services that was covered by the Workers’ Compensation Act 1926 (NSW) (the 1926 Act), joined the Australian Navy. Mr Russo subsequently received compensation from the Commonwealth for an aggravation of his hearing loss whilst employed by the Navy. Mr Russo was still employed by the Commonwealth when he made a claim for hearing loss against World Services.
[14] [1979] 1 NSWLR 330.
Hope JA described the operation of the deeming provision enacted by s 7 of the 1926 Act as follows:[15]
Under s. 7 (1) of the Workers’ Compensation Act, when read with the definition of “injury” in s. 6 (1) of that Act, a worker is entitled to obtain compensation when he has contracted a disease in the course of his employment to which, or to the aggravation of which, the employment was a contributing factor. Where the injury is a disease which is of such a nature as to be contracted by a gradual process, compensation is payable by the employer in whose employment the worker is or who last employed the worker: s. 7 (4). For the purposes of this provision, the condition known as “boilermaker’s deafness” is deemed to be a disease, and to be of such a nature as to be contracted by a gradual process: s. 7 (4B). In such a case, the worker’s injury is deemed to have happened at the time when he makes his claim for compensation, that is, in the present case, on 2nd October, 1975: s. 16(1A).
[15] Russo v World Services and Constructions Pty Ltd [1979] 1 NSWLR 330 at 332C.
The Court held that the word ‘employer’ in s 7 of the 1926 Act meant the last employer subject to the Act’s provisions. The Court then went on to hold that the last such employer of Mr Russo was World Services because the 1926 Act did not bind the Commonwealth Crown.
In A & G Engineering Pty Ltd v Civitarese (Civitarese),[16] the New South Wales Court of Appeal considered a hearing loss claim made against A & G Engineering by a worker who had, after his employment with A & G Engineering in New South Wales, moved to the Northern Territory, where he was employed by another employer in noisy conditions.
[16] (1996) 41 NSWLR 41.
Section 17(1)(a) of the Workers Compensation Act 1987 (NSW) (the 1987 State Act) provided:
17 Loss of hearing-special provisions
(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.
…
(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 …
Beazley JA, with whom Handley and Sheller JJA agreed, held that Mr Civitarese’s last employer for the purposes of s 17(1)(c)(ii) was A & G Engineering because the 1987 State Act did not apply to Mr Civitarese’s employment in the Northern Territory:[17]
That being so, s 17 operates so as to make the appellant the last employer. In other words, the appellant is the last employer to whom the legislation applies and is thus liable to pay compensation. This construction of s 17 is confirmed by this Court’s decision in Russo … In that case, the Commonwealth was the last noisy employer and the respondent the noisy employer before that. It was held that, as the Commonwealth was not bound by the provisions of the New South Wales legislation, the respondent was the last noisy employer for the purposes of s 17 and thereby liable to pay compensation.
[17] A & G Engineering Pty Ltd v Civitarese (1996) 41 NSWLR 41 at 44.
In Lennon v TNT Australia Pty Ltd (Lennon),[18] the New South Wales Court of Appeal considered the effect of the deeming provision in s 17 of the 1987 State Act in the case of hearing loss in circumstances similar to the present case. Mr Lennon, an employee of TNT, made a claim for compensation under the 1987 State Act on 24 March 2011. From 1 July 2008, TNT was licensed under the SRC Act. Mr Lennon had been employed by TNT for 15 years before he made his claim. Unlike the circumstances in Russo and Civitarese, Mr Lennon was continuously employed by the same corporate entity which, in the course of his employment, was covered by different statutory workers compensation regimes. The Workers Compensation Commission of New South Wales held that s 17 of the 1987 State Act deemed Mr Lennon to have suffered his injury on 24 March 2011 and that he was, therefore, not entitled to compensation under the 1987 State Act.
[18] (2013) 84 NSWLR 161.
Mr Lennon’s appeal to the Supreme Court was allowed. Basten JA, with whom the other members of the Court agreed, held that, pursuant to s 17(1) of the 1987 State Act, the applicant’s binaural hearing loss was deemed to have happened on the last day before TNT’s licence under the SRC Act came into effect. Basten JA accepted that the word ‘employer’ in the 1987 State Act could not be read down by reason of its inoperability in respect of employment governed by the SRC Act. Nonetheless, Basten JA held that pursuant to s 17 of the 1987 State Act the whole of the injury occurred immediately before TNT was licenced under the SRC Act:[19]
[36] The effect of Russo and A & G Engineering is that the term “employer” does not extend to the Crown in right of the Commonwealth or employers in other law areas within or outside Australia. Because TNT was, from 1 July 2008, no longer an employer to which the obligations of the 1987 State Act attached, the applicant thereafter did not have an employer for the purposes of the 1987 State Act. Accordingly, applying the reasoning in those authorities, TNT was liable, not as the worker’s employer at the time of giving notice, but as the last employer by whom the worker was employed in relevant employment, before he or she gave notice: s 17(1)(c)(ii). If that is the correct construction of s 17(1)(c), consistency requires that a similar reading be given to par (a), so that the injury was deemed to have happened on the last day on which the worker was employed in a relevant employment before he or she gave notice, which was 30 June 2008.
…
[42]On the other hand, Telstra v Worthing accepted the correctness of the decision in Russo, which was not challenged by the Attorney General: Telstra v Worthing at [13] and [20]. Further, Telstra v Worthing was concerned with a series of specific injuries and not with the operation of s 17 of the 1987 State Act. Nor was it concerned with a change in employment, but only with employers, none of which was covered by State legislation. Finally, it was not concerned with the effect, for the purposes of the 1987 State Act, of a single employer obtaining a licence under the Commonwealth Act.
[43]In this Court, the respondent did not contend that either Russo or A & G Engineering was wrongly decided. The reasoning in Russo was accepted in Telstra v Worthing; A & G Engineering was not discussed. Because Telstra v Worthing was not directed to the problem raised for the first time in this case, it is appropriate for this Court to follow its own unchallenged earlier authorities. That entails the conclusion that the applicant acquired an entitlement under the 1987 State Act as at 30 June 2008. Even if under the Commonwealth Act his injury is taken to have occurred after the licence took effect, his entitlement under State law is preserved by s 108A(7)(b).
[19] Lennon v TNT Australia Pty Ltd (2013) 84 NSWLR 161 at [36], [42]-[43].
Discussion
The approach of Basten JA in Lennon was to accept that the Court of Appeal was bound as a matter of precedent to accept that the settled meaning of the words employer and employment in s 17 of the 1987 State Act limited those terms to an employer and employment subject to the provisions of the 1987 State Act. The question for this Court, free of binding authority and independently of any inoperability of the WRC Act by reason of the licensing of TNT Express, is whether the term ‘employment’ in s 113(2) of the WRC Act should be given similar construction.
The RTW Corporation contends that the effect of s 113(2) of the WRC Act is to deem the injury to have occurred in the course of Mr Renfrey’s last employment, that is with TNT Express, but also at a time when the SRC Act, and not the WRC Act, applied to his employment. The construction advanced by the RTW Corporation has the paradoxical result that a provision, the manifest purpose of which is to facilitate claims brought by workers for hearing loss, would deny Mr Renfrey any compensation under the WRC Act for hearing loss which was caused almost entirely in the period of his employment with TNT Express before it was licensed under the SRC Act.
There is no reason for s 113(2) of the WRC Act to deem noise induced hearing loss to have arisen out of employment to which its terms do not apply. If Parliament had wished to preclude workers who had been exposed to noisy employment not governed by the WRC Act from making a claim under its provisions for loss sustained in employment governed by it, it can be expected to have expressly so provided. It is a tortuous and disingenuous way to preclude a compensation entitlement which has accrued under the Act by deeming it to have occurred in the course of employment not governed by the Act. No such intention should be lightly attributed to Parliament. There is no textual or contextual indication that Parliament intended a deeming provision, which has a manifestly beneficial operation in the case of local State employment, to exclude workers who had been exposed to noise in interstate employment, after employment in South Australia, from making a claim for noise induced hearing loss under the WRC Act. Different consideration might have applied if it appeared that s 113(2) of the WRC Act was part of a national scheme which addressed liability for noise induced hearing loss. It was common ground that there was no such scheme.
There is no reason as a matter of State legislative power why the State cannot attach presumptive liability on the RTW Corporation for all of the loss caused by a gradually developing injury, a material proportion of which occurred during a period of employment covered by the WRC Act. A worker’s entitlement must be founded on employment which attracts the application of the WRC Act, but the compensation for it may be quantified by reference to additional loss occasioned in employment or activities for which there is no entitlement under the WRC Act. The legislative purpose for quantifying a worker’s entitlement in that way can be discerned from the beneficial operation of the WRC Act and the particular difficulties of proof faced by workers suffering from a gradual onset injury.
For the above reasons, I would hold that ‘employment’ in s 113(2) of the WRC Act means employment with respect to which the WRC Act confers a worker’s compensation entitlement for hearing loss.
Applying s 113(2) of the WRC Act to this case, TNT Express was Mr Renfrey’s employer. The second limb of s 113(2) deems the whole of his loss to have occurred out of that employment irrespective of the date on which notice was given.
Mr Renfrey’s employment was continuous albeit covered for successive periods by the WRC Act and the SRC Act. The second part of the deeming provision deems the whole of the loss to have occurred in the course of that employment, meaning throughout the course of that employment. The effect of that deeming provision is that the RTW Corporation, being liable to pay compensation entitlement for part of that period, is liable for the whole of the loss. Alternatively, s 113(2) can be construed as applying to that part of a worker’s employment served under the WRC Act.
With respect to the loss suffered before 1 July 2008, Mr Renfrey was entitled to compensation as and when that loss was first suffered. Section 113(2) operates merely for the purpose of quantifying the amount of compensation to which he was entitled.
Inconsistency with the SRC Act
In this case the employer is TNT Express, which has always fallen within the provisions of the WRC Act, but which provisions were rendered inoperable by s 108A(7) of the SRC Act with respect to injury suffered after 1 July 2008 when it was granted the licence.
In Lennon¸ Basten JA, with whom the other members of the Court agreed, held that the phrase ‘after the licence comes into force’ in the chapeau qualifies the date of the occurrence of the injury and not the date on which an obligation to pay compensation arose.[20]
[20] (2013) 84 NSWLR 161 at [16].
Accordingly, Basten JA concluded:[21]
[17]If, by application of the Commonwealth Act, the injury occurred after the licence took effect on 1 July 2008, the 1987 State Act did not apply: s 108A(7)(a). If the injury had, by application of the Commonwealth Act, arisen before the licence came into force, then that Act would not apply to it: that is, s 108A(1) and (7) read together do not envisage a licence applying except in respect of an injury suffered after it comes into force.
[18]However, if the Commonwealth Act did not apply, it would not be inconsistent with a state Act. Because the tests under s 7(4) of the Commonwealth Act and 17(1) of the 1987 State Act differ, a single injury of gradual onset could be taken to have occurred at different dates under each provision. If, for the purposes of the Commonwealth Act, the applicant first sought medical treatment for his hearing loss or the impairment arose before the date of the licence, the Commonwealth Act would not apply to that injury. According to the President, under the 1987 State Act the applicant’s loss was deemed to have happened on 24 March 2011, when the claim for compensation was made. If that were correct, the 1987 State Act applied in its terms, and TNT was an employer subject to liability under the state Act, regardless of the existence of the Commonwealth licence. Because the state and Commonwealth Acts must each be applied in its own terms, the result is not anomalous.
[19]The opposite disparity could also arise; that is, the Commonwealth law might determine that the injury occurred after the licence came into force, but under the state law an entitlement may have arisen prior to the licence coming into force, thus creating a liability in the employer under the state law, preserved by s 108A(7)(b). Double compensation is avoided in such circumstances by the Commonwealth Act withdrawing its benefits: s 118(1).
(Emphasis added)
[21] Lennon v TNT Australia Pty Ltd (2013) 84 NSWLR 161 at 166, [17]-[19].
In the present case, under the terms of s 7 of the SRC Act, Mr Renfrey suffered injury when he became impaired which was when TNT Express was not licensed and Mr Renfrey’s employment was subject to the WRC Act. It follows that Mr Renfrey does not fall within s 108(1)(7)(a) and that that subsection does not exclude the operation of the WRC Act. It is equally clear that the RTW Corporation became subject to an obligation to compensate Mr Renfrey before TNT Express was licensed, even though the quantification of that liability depended on the timing of the making of his claim.
Basten JA gave the following answers to the questions referred to the Court of Appeal based on his construction of s 17(1) of the 1987 State Act and s 108A of the SRC Act:[22]
[22] Lennon v TNT Australia Pty Ltd (2013) 84 NSWLR 161 at 171, [44].
[44]The court should make the following orders:
(1) Grant the applicant leave to appeal.
(2) Allow the appeal and set aside the answer to the question given by the President.
(3) Answer the question identified for the Commission’s determination as follows:
(a) Under s 17(1) of the Workers Compensation Act 1987, the applicant’s binaural hearing loss was deemed to have happened on the last day before the employer’s licence under the Safety, Rehabilitation and Compensation Act 1988 (Cth) came into force, namely 30 June 2008.
(b) If, under the Safety, Rehabilitation and Compensation Act (Cth), the applicant’s binaural hearing loss was taken to have occurred after the employer’s licence under that Act came into force, that Act applied to the applicant’s injury, but any liability or obligation of the respondent under the Workers Compensation Act in respect of the injury occurring before the licence came into force was, by virtue of s 108A(7) of the former Act, unaffected.
(c)If, under the Safety, Rehabilitation and Compensation Act (Cth), the applicant’s binaural hearing loss was taken to have occurred before the employer’s licence under that Act came into force, neither that Act nor the licence applied to the applicant’s injury.
(4) Order the respondent to pay the applicant’s costs in this court.
Section 108A of the SRC Act does not require any different conclusion in the circumstances of this case. Section 108A saves a licensed employer from any liability under a law of a State or Territory only with respect to injury, loss or damage suffered by its employees after the licence comes into force. The liability attached by the WRC Act is in respect of an injury, loss or damage suffered before TNT Express was licensed even though the entitlement is calculated by reference to the whole of the injury. Accordingly, s 108A(7)(b) preserves the entitlement of Mr Renfrey under the WRC Act. In any event, it is the liability of the RTW Corporation and not TNT Express which is in issue on Mr Renfrey’s claim. As Basten JA observed in Lennon, s 118 of the SRC Act contemplates, and makes provision to avoid double compensation for, injuries of gradual onset for which there may be a liability under the SRC Act and a workers compensation statute of a State or Territory.
Conclusion
I would dismiss the appeal.
NICHOLSON J: I would dismiss the appeal. I agree with the reasons of the Chief Justice.
PARKER J: I would dismiss the appeal for the reasons stated by the Chief Justice.
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