Stuckey v Wesley Contracting NSW Pty Ltd - [2018] NSWDC 32

District Court

New South Wales

Medium Neutral Citation: Stuckey v Wesley Contracting NSW Pty Ltd & Anor [2018] NSWDC 32
Hearing dates: 26 April 2017
Date of orders: 05 March 2018
Decision date: 05 March 2018
Jurisdiction: Civil
Before: Neilson DCJ
Decision:
I make an award for the plaintiff against the first defendant for $6,965.60 for 8.1% further loss of binaural hearing. Deemed date of injury 7 December 2011.

I make an award for the second defendant.
I order the first defendant to pay the plaintiff’s costs of establishing his claim against it. Such costs do not include:
(a) the drawing, filing and service of the First Amended Statement of Claim;
(b) of the Second Amended Statement of Claim, except in so far as it nominated Allianz as an insurer of the first defendant.
Catchwords:
WORKERS COMPENSATION – Lump sum compensation claim for loss of hearing – Boilermakers deafness – Plaintiff last employed by first defendant in Queensland – Whether plaintiff entitled to recover compensation under NSW law

Effect of WCA 1987 s 9AA on previous case law – construction of s 9AA
Jurisdiction of Court exercising Compensation Jurisdiction – Jurisdiction does not extend to disputes between insurers as to who insured an employer
Legislation Cited: District Court Act 1973
Workers Compensation Act 1926
Workers Compensation Act 1987
Workplace Injury Management and Workers Compensation Act 1998
Cases Cited: A & G Engineering Pty Ltd v Civitarese (1996) 41 NSWLR 41; (1996) 14 NSWCCR 158
Avon Products Pty Ltd v Falls [2009] ACTSC 141
Avon Products Pty Ltd v Falls [2010] ACTCA 21
Badior v Muswellbrook Crane Service Pty Ltd (2004) 2 DDCR 177
Ballantyne v Workcover Authority of NSW [2007] NSWCA 239; (2007) 5 DDCR 97
Central West Group Apprentices Ltd v Coal Mines Insurance Ltd [sic] [2008] NSWCA 348
Guardian of Parish of Brighton v Guardians of Strand Union [1891] 2 QB 157
Hanns v Greyhound Pioneer Australia Ltd [2006] ACTSC 5
Jakmax Pty Ltd v Taylor [2017] NSWWCCPD 24
Klemke v Grenfell Commodities Pty Ltd [2011] NSWWCCPD 27
Lennon v TNT Australia Pty Ltd [2013] NSWCA 77
Martin v RJ Hibbens Pty Ltd [2010] NSWWCCPD 83
Merrick v Aaron John Shelly and Geoffrey David Swan trading as Nationwide Transport Solutions & Anor [2010] NSWWCCPD 106
Monier Ltd t/as Reliance Roof Tiles v Szabo (1992) 28 NSWLR 53; (1992) 8 NSWCCR 305
Russo v World Services & Construction Pty Ltd [1979] 1 NSWLR 330; [1979] WCR (NSW) 70
Stewart v NSW Police Service (1998) 17 NSWCCR 202
Tamboritha Consultants Pty Ltd v Knight [2008] WADC 78
Telstra Corporation v Worthing [1999] HCA 12; 197 CLR 61
Workers Compensation Nominal Insurer v O’Donohue [2014] NSWWCCPD 1
Texts Cited: Beal, Edward, Cardinal Rules of Legal Interpretation, 3rd Edition, 1924
Category: Principal judgment
Parties: Michael William Stuckey (Plaintiff)
Wesley Contracting NSW Pty Ltd (First Defendant)
Garth Short Mining Pty Ltd (Second Defendant)
Representation:
Counsel:
Mr D Benson (Plaintiff)
Mr P Rickard (First Defendant)
Mr L King SC (Second Defendant)

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: [2018] NSWDC 32
Decision Date: 05 March 2018

CaseChat Overview and Summary

Stuckey commenced proceedings against Wesley Contracting NSW Pty Ltd and another party, seeking compensation for a loss of hearing due to occupational exposure. The plaintiff's last employment was with the first defendant in Queensland. The primary issue was whether Stuckey was entitled to recover compensation under New South Wales law for the hearing loss, given that his employment was not within the state. Additionally, the court had to interpret the effect of section 9AA of the Workers Compensation Act 1987 (NSW) on previous case law and determine whether the court had jurisdiction to decide the dispute between the insurers as to which one insured the employer.

The court examined the application of section 9AA of the Workers Compensation Act 1987 (NSW), which stipulates the criteria for awarding compensation for hearing loss in workers. The court held that section 9AA is intended to align with the common law and not to restrict the circumstances in which compensation can be awarded. The court also determined that it did not have jurisdiction to resolve disputes between insurers regarding which insurer was responsible for the employer's coverage. The court found that the plaintiff's claim for compensation was valid under New South Wales law, and the first defendant was liable for the hearing loss compensation.

The court awarded Stuckey $6,965.60 for 8.1% further loss of binaural hearing, with a deemed date of injury of 7 December 2011. The second defendant was also awarded compensation. The first defendant was ordered to pay Stuckey's costs of establishing his claim against it, excluding certain legal costs related to the amendment of statements of claim.

Orders

Orders of the court

I make an award for the plaintiff against the first defendant for $6,965.60 for 8.1% further loss of binaural hearing. Deemed date of injury 7 December 2011.

I make an award for the second defendant.

I order the first defendant to pay the plaintiff’s costs of establishing his claim against it. Such costs do not include:

(a) the drawing, filing and service of the First Amended Statement of Claim;

(b) of the Second Amended Statement of Claim, except in so far as it nominated Allianz as an insurer of the first defendant.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Stuckey v Wesley Contracting NSW Pty Ltd & Anor [2018] NSWDC 32
Hearing dates:	26 April 2017
Date of orders:	05 March 2018
Decision date:	05 March 2018
Jurisdiction:	Civil
Before:	Neilson DCJ
Decision:	I make an award for the plaintiff against the first defendant for $6,965.60 for 8.1% further loss of binaural hearing. Deemed date of injury 7 December 2011. I make an award for the second defendant. I order the first defendant to pay the plaintiff’s costs of establishing his claim against it. Such costs do not include: (a) the drawing, filing and service of the First Amended Statement of Claim; (b) of the Second Amended Statement of Claim, except in so far as it nominated Allianz as an insurer of the first defendant.
Catchwords:	WORKERS COMPENSATION – Lump sum compensation claim for loss of hearing – Boilermakers deafness – Plaintiff last employed by first defendant in Queensland – Whether plaintiff entitled to recover compensation under NSW law Effect of WCA 1987 s 9AA on previous case law – construction of s 9AA Jurisdiction of Court exercising Compensation Jurisdiction – Jurisdiction does not extend to disputes between insurers as to who insured an employer
Legislation Cited:	District Court Act 1973 Workers Compensation Act 1926 Workers Compensation Act 1987 Workplace Injury Management and Workers Compensation Act 1998
Cases Cited:	A & G Engineering Pty Ltd v Civitarese (1996) 41 NSWLR 41; (1996) 14 NSWCCR 158 Avon Products Pty Ltd v Falls [2009] ACTSC 141 Avon Products Pty Ltd v Falls [2010] ACTCA 21 Badior v Muswellbrook Crane Service Pty Ltd (2004) 2 DDCR 177 Ballantyne v Workcover Authority of NSW [2007] NSWCA 239; (2007) 5 DDCR 97 Central West Group Apprentices Ltd v Coal Mines Insurance Ltd [sic] [2008] NSWCA 348 Guardian of Parish of Brighton v Guardians of Strand Union [1891] 2 QB 157 Hanns v Greyhound Pioneer Australia Ltd [2006] ACTSC 5 Jakmax Pty Ltd v Taylor [2017] NSWWCCPD 24 Klemke v Grenfell Commodities Pty Ltd [2011] NSWWCCPD 27 Lennon v TNT Australia Pty Ltd [2013] NSWCA 77 Martin v RJ Hibbens Pty Ltd [2010] NSWWCCPD 83 Merrick v Aaron John Shelly and Geoffrey David Swan trading as Nationwide Transport Solutions & Anor [2010] NSWWCCPD 106 Monier Ltd t/as Reliance Roof Tiles v Szabo (1992) 28 NSWLR 53; (1992) 8 NSWCCR 305 Russo v World Services & Construction Pty Ltd [1979] 1 NSWLR 330; [1979] WCR (NSW) 70 Stewart v NSW Police Service (1998) 17 NSWCCR 202 Tamboritha Consultants Pty Ltd v Knight [2008] WADC 78 Telstra Corporation v Worthing [1999] HCA 12; 197 CLR 61 Workers Compensation Nominal Insurer v O’Donohue [2014] NSWWCCPD 1
Texts Cited:	Beal, Edward, Cardinal Rules of Legal Interpretation, 3rd Edition, 1924
Category:	Principal judgment
Parties:	Michael William Stuckey (Plaintiff) Wesley Contracting NSW Pty Ltd (First Defendant) Garth Short Mining Pty Ltd (Second Defendant)
Representation:	Counsel: Mr D Benson (Plaintiff) Mr P Rickard (First Defendant) Mr L King SC (Second Defendant)