Stone v Stannard Brothers Launch Services Pty Ltd

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CITATION: Stone v. Stannard Brothers Launch Services Pty. Ltd. [2004] NSWCA 277
HEARING DATE(S): 2 July 2004
JUDGMENT DATE:
18 August 2004
JUDGMENT OF: Mason P at 1; Handley JA at 2; Hodgson JA at 12
DECISION: 1. Appeal allowed. 2. Award set aside. 3. Matter remitted to the District Court to be dealt with in accordance with these reasons. 4. Respondent to pay the appellant's costs of the appeal, and to have a certificate under the Suitors' Fund Act if otherwise entitled.
CATCHWORDS: WORKERS' COMPENSATION - Disease of gradual onset - Aggravation of disease - Claim of lump sum for disfigurement - Time of injury - Whether time of incapacity - Whether to be compensated under Workers' Compensation Act 1926 or Workers' Compensation Act 1987.
LEGISLATION CITED: Workers' Compensation Act 1987 ss.4, 15, 16, 66, 67, Schedule 6.
CASES CITED: Alto Ford Pty. Ltd. v. Antaw (1999) 18 NSWCCR 246
Arnotts Snack Products Pty. Ltd. v. Yacob (1985) 155 CLR 171
GIO Workers Compensation (NSW) Ltd. v. GIO General Ltd. (1995) 12 NSWCCR 187
P & O Berkeley Challenge Pty. Ltd. v. Alfonzo (2000) 49 NSWLR 481

PARTIES :

 Melville Barry Stone - appellant
Stannard Brothers Launch Services Pty. Ltd. - respondent
FILE NUMBER(S): CA 40949/03
COUNSEL: Mr. B. McManamey for appellant
Mr. G. Parker for respondent
SOLICITORS: Turner Freeman, Sydney for appellant
Ebsworth & Ebsworth, Sydney for respondent
LOWER COURTJURISDICTION: Compensation Court
LOWER COURT FILE NUMBER(S): CC12483/01
LOWER COURT
JUDICIAL OFFICER : 		Burke AJ



                          CA 40949/03
                          CC 12483/01

                          MASON P
                          HANDLEY JA
                          HODGSON JA

                          Wednesday 18 August 2004
STONE V. STANNARD BROTHERS LAUNCH SERVICES PTY. LTD.
Judgment

1 MASON P: I agree with Hodgson JA.

2 HANDLEY JA: In this appeal I have had the benefit of considering the judgment of Hodgson JA in draft. I adopt his statement of the facts, the history of the proceedings, and the text of the relevant legislation.

3 The worker’s skin disease caused by prolonged exposure to the sun in the course of his employment fell within s 16 of the Workers Compensation Act 1987 because it was contracted prior to the commencement of his employment with the appellant but was aggravated by it. The worker had been totally incapacitated for work since a back injury in 1985 and is not entitled to weekly compensation under s 40 for incapacity resulting from his skin disease. However his back injury did not bar claims he was entitled to make for his skin disease under ss 66 and 67.

4 Section 16(1)(a) relevantly deems an injury within the section to have happened either at the time of the worker’s incapacity or if incapacity has not resulted from the injury at the time the worker makes his claim for compensation. Section 16(3) provides that injury includes a permanent impairment for which compensation is payable under s 66.

5 Incapacity referred to in s 16(1)(a) does not mean physical incapacity for work in the sense explained in Arnotts Snack Products Pty Ltd v Yacob (1985)…

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Details
Case
[2004] NSWCA 277
Decision Date

CaseChat Overview and Summary

The appellant, Stone, brought proceedings against the respondent, Stannard Brothers Launch Services Pty Ltd, in the District Court of New South Wales. The dispute concerned a claim for a lump sum payment for disfigurement arising from a disease of gradual onset, which the appellant alleged was aggravated during his employment with the respondent.

The primary legal issues before the Court of Appeal were whether the "time of injury" for a disease of gradual onset should be considered the time of incapacity, and consequently, which of the *Workers' Compensation Act 1926* (NSW) or the *Workers' Compensation Act 1987* (NSW) applied to the appellant's claim for lump sum compensation for disfigurement.

The Court of Appeal held that for a disease of gradual onset, the "time of injury" for the purposes of lump sum compensation for disfigurement is the date on which the injury first manifested or became apparent, not the date of incapacity. The Court reasoned that the *Workers' Compensation Act 1987* applied to injuries that occurred after its commencement, and that the appellant's injury, for the purpose of disfigurement, manifested before the commencement of the 1987 Act. Therefore, the claim should have been assessed under the provisions of the *Workers' Compensation Act 1926*.

The appeal was allowed, the award made by the District Court was set aside, and the matter was remitted to the District Court for determination in accordance with the Court of Appeal's reasons. The respondent was ordered to pay the appellant's costs of the appeal.

Orders

Orders of the court

1. Appeal allowed. 2. Award set aside. 3. Matter remitted to the District Court to be dealt with in accordance with these reasons. 4. Respondent to pay the appellant's costs of the appeal, and to have a certificate under the Suitors' Fund Act if otherwise entitled.

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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