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 employerLegislation Cited: District Court Act 1973
Workers Compensation Act 1926
Workers Compensation Act 1987
Workplace Injury Management and Workers Compensation Act 1998Cases 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 1Texts 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)
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- Case
- [2018] NSWDC 32
- Decision Date
CaseChat Overview and Summary
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
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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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