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Sukkar v Adonis Electrics Pty Ltd

Sukkar v Adonis Electrics Pty Ltd

Case [2013] NSWWCCPD 59 8 November 2013

Statutory Interpretation

Amendments to Legislation

Aggregation of Impairment

Compensation Claims

Threshold for Compensation

Workers Compensation Law

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WORKERS COMPENSATION COMMISSION
REFERENCE OF A QUESTION OF LAW TO THE COMMISSION CONSTITUTED BY THE PRESIDENT
Status: Leave to appeal to the Court of Appeal granted to the extent necessary to vary the answers given by the Commission to the referred questions of law, otherwise leave to appeal refused – Sukkar v Adonis Electrics Pty Ltd [2014] NSWCA 459
CITATION:		Sukkar v Adonis Electrics Pty Limited [2013] NSWWCCPD 59
APPLICANT:		Jamil Sukkar
RESPONDENT:		Adonis Electrics Pty Limited
INSURER:		Allianz Australia Workers Compensation (NSW) Limited
INTERVENER:		WorkCover Authority of NSW
FILE NUMBER		A1- 10937/12
DATE OF HEARING:		15 October 2013
DATE OF DECISION:		8 November 2013
SUBJECT MATTER OF DECISION:		Question of law; s 351 of the Workplace Injury Management and Workers Compensation Act 1998; application of amendments to lump sum compensation provisions introduced by the Workers Compensation Legislation Amendment Act 2012 with respect to claims for hearing impairment pursuant to s 17 of the Workers Compensation Act; aggregation of impairment arising from the same injury
PRESIDENTIAL MEMBER:		President Judge Keating
HEARING:		Oral
REPRESENTATION:		Applicant:	Mr B McManamey, instructed by Turner Freeman
Respondent:	Mr G Beauchamp, instructed by Sparke Helmore
Intervener:	Ms B Tronson, for the WorkCover Authority of NSW
ORDERS MADE:		The answers to the questions of law referred for determination are: 1. Do the amendments to Div 4 Pt 3 of the Workers Compensation Act 1987 (the 1987 Act) introduced by Sch 2 of the Workers Compensation Legislation Amendment Act 2012 apply to claims for permanent impairment compensation for hearing loss (to which s 17 of the 1987 Act has application) made on or after 19 June 2012 when a worker has made a previous claim for permanent impairment compensation for hearing loss prior to 19 June 2012? Answer: Yes 2. If yes, whether in claims for compensation pursuant to s 66 of the 1987 Act, including hearing loss claims (to which s 17 of the 1987 Act has application), involving the same pathology of injury arising from multiple injurious events of injury, the multiple injuries can be aggregated for the purpose of determining whether or not the worker’s claim exceeds the s 66(1) threshold? Answer: No, in circumstances where a worker has made a prior claim for compensation pursuant to s 66 of the 1987 Act.
3. Mr Sukkar’s costs are to be costs in the cause. 4. The respondent and WorkCover are to pay their own costs

INTRODUCTION

This is an application to refer two questions of law to the President of the Commission pursuant to s 351 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). The application is made by a Commission Arbitrator, Ms Nicholl, of her own motion.
The issues involve questions concerning the construction of the amendments to Div 4 of Pt 3 of the Workers Compensation Act 1987 (1987 Act) (Compensation for Non-Economic Loss) introduced by Sch 2 of the Workers Compensation Legislation Amendment Act 2012 (the amending Act) concerning claims for permanent impairment compensation for hearing loss…

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.

Continue reading Sukkar v Adonis Electrics Pty Ltd

Details

AGLC: Sukkar v Adonis Electrics Pty Ltd [2013] NSWWCCPD 59
Case: [2013] NSWWCCPD 59
Decision Date: 8 November 2013

CaseChat Overview and Summary

The case of Sukkar v Adonis Electrics Pty Ltd involved a dispute regarding the application of legislative amendments to claims for workers' compensation for hearing impairment. Sukkar, the worker, sought to determine whether the amendments introduced by the Workers Compensation Legislation Amendment Act 2012 applied to his claims for hearing impairment compensation. The amendments in question pertained to the aggregation of impairments arising from the same injury. Adonis Electrics Pty Ltd and WorkCover, the respondent and insurer, argued against the applicability of the amendments and the aggregation of impairments in certain circumstances. The case was heard and determined by the court, which was required to address specific legal questions regarding the interpretation and application of the Workers Compensation Act 1987.

The primary legal issues before the court involved the retrospective application of legislative amendments to claims for workers' compensation and the aggregation of impairments in claims involving multiple injurious events. Specifically, the court had to determine whether the amendments to the Workers Compensation Act 1987 introduced by the Workers Compensation Legislation Amendment Act 2012 applied to claims made after the amendments' commencement date of 19 June 2012, where a worker had previously made a claim for hearing impairment compensation prior to that date. Additionally, the court needed to decide whether, in cases involving the same pathology of injury arising from multiple injurious events, the impairments could be aggregated for the purpose of determining if the worker’s claim exceeded the threshold set out in section 66 of the Workers Compensation Act 1987.

In its decision, the court found that the amendments to the Workers Compensation Act 1987 introduced by the Workers Compensation Legislation Amendment Act 2012 did apply to claims for hearing impairment compensation made on or after 19 June 2012, even if the worker had made a previous claim for hearing impairment compensation prior to that date. The court clarified that the legislative amendments were intended to be applied prospectively and did not have retrospective effect. Regarding the aggregation of impairments, the court ruled that in cases where a worker had made a prior claim for compensation pursuant to section 66 of the Workers Compensation Act 1987, the multiple injuries arising from the same pathology could not be aggregated for the purpose of determining whether the worker’s claim exceeded the threshold set out in section 66(1). The court emphasised the importance of adhering to the legislative framework and the intent of the amendments in reaching its decision.

Orders

Orders of the court

The answers to the questions of law referred for determination are:

1. Do the amendments to Div 4 Pt 3 of the Workers Compensation Act 1987 (the 1987 Act) introduced by Sch 2 of the Workers Compensation Legislation Amendment Act 2012 apply to claims for permanent impairment compensation for hearing loss (to which s 17 of the 1987 Act has application) made on or after 19 June 2012 when a worker has made a previous claim for permanent impairment compensation for hearing loss prior to 19 June 2012?

Answer: Yes

2. If yes, whether in claims for compensation pursuant to s 66 of the 1987 Act, including hearing loss claims (to which s 17 of the 1987 Act has application), involving the same pathology of injury arising from multiple injurious events of injury, the multiple injuries can be aggregated for the purpose of determining whether or not the worker’s claim exceeds the s 66(1) threshold?

Answer: No, in circumstances where a worker has made a prior claim for compensation pursuant to s 66 of the 1987 Act.

3. Mr Sukkar’s costs are to be costs in the cause.

4. The respondent and WorkCover are to pay their own costs

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Sukkar v Adonis Electrics Pty Ltd [2013] NSWWCCPD 59

Most Recent Citation

Thomas v Holcim (Australia) Pty Ltd [2021] NSWPIC 124

Cases citing this decision · 7 of 7 shown

Thomas v Holcim (Australia) Pty Ltd
[2021] NSWPIC 124 Para 12

…ry was deemed to have happened on 19 June 2012, when Mr Sukkar gave notice of his further loss of hearing. [18] Sukkar v Adonis Electrics Pty Limited [2013] NSWWCCPD 59, ( Sukkar No.1 ). [19] [2008] NSWWCCPD 42. [20] [2011] NSWWCCPD 20.…
Yildiz v Fullview Plastics Pty Ltd
[2019] NSWWCCPD 24 Para 1

…beneficial construction which was not permitted ( ADCO Constructions Ptv. Limited v Goudappel [2014] HCA 18; Sukkar v Adonis Electrics Ptv Ltd [2013] NSWWCCPD 59; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28). In Wagg it was held that Goudappel did not limit the exclusion from the operation…
Bluescope Steel (AIS) Pty Ltd v Sekulovski
[2018] NSWWCCPD 48 Para 5

…ble to industrial noise, relying on Sukkar v Adonis Electrics Pty Ltd ,[11] Manuel v BOC Limited ,[12] and Eraring Energy v Brownlie .[13] [11] [2013] NSWWCCPD 59. [12] [2011] NSWWCCPD 20. [13] [2008] NSWWCCPD 42.…
Woolworths Ltd v Wagg
[2017] NSWWCCPD 13 Para 6

…The Arbitrator considered whether the decision in Sukkar v Adonis Electrics Pty Ltd [2013] NSWWCCPD 59 ( Sukkar ) would stand in the way of an award for compensation pursuant to s 67 in the particular circumstances of this case. He concluded that it did not. He distinguished Sukkar on the basis that the worker in tha…
Trustees of the Roman Catholic Church for the Diocese of Parramatta v Barnes
[2015] NSWWCCPD 35 Para 10

…ing aggregation of impairments to satisfy the s 66(1) threshold. Such aggregation, in any event, is contrary to Sukkar v Adonis Electrics Pty Ltd [2013] NSWWCCPD 59 at [106]–[112] ( Sukkar ). This part of Sukkar was not affected by the Court of Appeal’s decision in the same case ( Sukkar v Adonis Electrics Pty Ltd [2…
Sukkar v Adonis Electrics Pty Ltd
[2014] NSWCA 459 Para 1

…to appeal against a decision of Judge Keating, President of the Workers Compensation Commission (the "Commission"): Sukkar v Adonis Electrics Pty Ltd [2013] NSWWCCPD 59. The primary judgment answered two questions of law referred to the President pursuant to s 351 of the Workplace Injury Management and Workers Compen…
BP Australia Ltd v Greene
[2013] NSWWCCPD 60 Para 1

…Mr Beauchamp submitted that some of the issues touched upon in Sukkar v Adonis Electrics Pty Ltd [2013] NSWWCCPD 59 ( Sukkar ), a case argued before the President on 15 October 2013 and decided on 8 November 2013, are relevant to Mr Greene’s appeal.…

View all 7 citing cases →

Cases cited in this decision · 23 of 23 shown

Sukkar v Adonis Electrics Pty Ltd
[2014] NSWCA 459

…to vary the answers given by the Commission to the referred questions of law, otherwise leave to appeal refused – Sukkar v Adonis Electrics Pty Ltd [2014] NSWCA 459…
Di Matteo v RDM Ceramics Pty Limited
[2013] NSWWCCPD 27 Para 2

…ns Pty Limited & anor [2012] NSWWCCPD 60; Goudappel v ADCO Constructions Pty Ltd [2013] NSWCA 94 (Goudappel) and Di Matteo v RDM Ceramics Pty Limited [2013] NSWWCCPD 27 ( Di Matteo ); (b)the issue of whether aggregation of impairments resulting from the same pathology is permissible when determining an entitlement pu…
Goudappel v ADCO Constructions Pty Ltd
[2013] NSWCA 94 Para 2

…ot yet been resolved by the decisions in Goudappel v ADCO Constructions Pty Limited & anor [2012] NSWWCCPD 60; Goudappel v ADCO Constructions Pty Ltd [2013] NSWCA 94 (Goudappel) and Di Matteo v RDM Ceramics Pty Limited [2013] NSWWCCPD 27 ( Di Matteo ); (b)the issue of whether aggregation of impairments resulting f…
Goudappel v ADCO Constructions Pty Limited
[2012] NSWWCCPD 60 Para 2

…ore the Commission and yet to be filed. These issues have not yet been resolved by the decisions in Goudappel v ADCO Constructions Pty Limited & anor [2012] NSWWCCPD 60; Goudappel v ADCO Constructions Pty Ltd [2013] NSWCA 94 (Goudappel) and Di Matteo v RDM Ceramics Pty Limited [2013] NSWWCCPD 27 ( Di Matteo ); (b)the…
OneSteel Ltd v Devine
[2012] NSWWCCPD 52 Para 2

…t previously arisen. Whilst the decisions in Department of Juvenile Justice Services v Edmed (2008) NSWCCPD 6 ( Edmed ) and OneSteel Limited v Devine [2012] NSWWCCPD 52 ( Devine ) are relevant they do not address the specific questions created by the passage of the 2012 amending Act; (c)there may be many cases of thi…
Manuel v BOC Limited
[2011] NSWWCCPD 20 Para 5

…In Manuel v BOC Ltd [2011] NSWWCCPD 20 (at [66]) Deputy President O’Grady also noted the distinction between claims that result in “a loss” of hearing and claims that result in a “further loss” of hearing. He concluded that the worker must establish that the employment had the “tendencies, incidents or characteristic…
Lauda Enterprises Pty Ltd v Akkanen
[2010] NSWWCCPD 91 Para 3

…one pathological condition where aggregation of the claims is permissible to reach the former s 67 threshold: Lauda Enterprises Pty Limited v Akkanen [2010] NSWWCCPD 91 ( Akkanen ).…
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue
[2009] HCA 41 Para 7

…In Alcan (NT) Alumina Pty Limited v Commissioner of Territory Revenue (NT) [2009] HCA 41; 239 CLR 27, in the context of the construction of a taxation statute, his Honour the Chief Justice stated at [4]: “The starting point ... is the ordinary and grammatical sense of the statutory words to be interpreted having…
Eraring Energy v Brownlie
[2008] NSWWCCPD 42 Para 4

…In Eraring Energy v Brownlie [2008] NSWWCCPD 42 (at [38]) Deputy President Roche accepted a submission that in the application of s 17 of the 1987 Act, for there to be an injury by way of a further loss of hearing there must have been an initial injury by way of a loss of hearing. In that case he accepted that the wo…
Amaca Pty Ltd v Cremer
[2006] NSWCA 164 Para 2

…on, to construe it in this way would “give it a construction that is unreasonable or unnatural”: Devine referring to Amaca Pty Limited v Cremer [2006] NSWCA 164; 66 NSWLR 400.…
Eagle & ANOR. v Prosser
[1999] NSWCA 166 Para 2

…so would directly contradict the intention of Parliament in repealing that provision and would not be based in the text of the legislation: R v Young [1999] NSWCA 166 (at [12]-[15]); 46 NSWLR 681.…
Project Blue Sky Inc v Australian Broadcasting Authority
[1998] HCA 53 Para 5

…In Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 ( Project Blue Sky ) McHugh, Gummow, Kirby and Hayne JJ, discussing the principles of statutory construction held at [78]: “... the duty of a Court is to give the words of a statutory provision the meaning that the legislatu…
Project Blue Sky Inc v Australian Broadcasting Authority
[1998] HCA 28 Para 5

…In Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 ( Project Blue Sky ) McHugh, Gummow, Kirby and Hayne JJ, discussing the principles of statutory construction held at [78]: “... the duty of a Court is to give the words of a statutory provision the meaning that the legislature…
IW v City of Perth
[1997] HCA 30 Para 18

…ssion to give it a construction that is unreasonable or unnatural (per McColl JA in Amaca Pty Ltd v Cremer [2006] NSWCA 164 citing IW v City of Perth [1997] HCA 30; 191 CLR 1 (at 11-12 per Brennan CJ and McHugh J). Where two constructions are possible, that which is favourable to the worker should be preferred (…
Collector of Customs v AGFA-Gevaert Ltd
[1996] HCA 36 Para 1

…workable result. To avoid such an outcome, the construction for which WorkCover contends should be preferred: Collector of Customs V AGFA-Gevaert Ltd (1996) 186 CLR 389 at [401].…
Corporate affairs Commission (NSW) v Yuill
[1991] HCA 28 Para 7

…lative purpose. That proposition accords with the approach to construction characterised by Gaudron J in Corporate Affairs Commission (NSW) v Yuill [1991] HCA 28; (1991) 172 CLR 319 at 340 as: ‘dictated by elementary considerations of fairness, for, after all, those who are subject to the law’s commands are enti…
Taylor v Public Service Board
[1976] HCA 36 Para 6

…ant provisions so that it is consistent with the language and purpose of all the provisions of the statute: see Taylor v Public Service Board (NSW) [1976] HCA 36; (1976) 137 CLR 208 at 213 per Barwick CJ. The meaning of the provision must be determined ‘by reference to the language of the instrument viewed as a…
Commissioner for Railways v Bain
[1965] HCA 5 Para 8

…a nature as to be caused by a gradual process is an injury (s 17(1)). 3. In the language of Barwick CJ, in Commissioner for Railways v Bain [1965] HCA 5; (1965) 112 CLR 246 at 256-257, the injury is taken to have happened ‘as it were, in one blow’. If the worker was, at the time when he or she gave notice of th…
Wilson v Wilson's Tile Works Pty Ltd
[1960] HCA 63 Para 18

…McHugh J). Where two constructions are possible, that which is favourable to the worker should be preferred ( Wilson v Wilson’s Tile Works Pty Ltd [1960] HCA 63; 104 CLR 328 at 335 per Fullagar J).…
Commissioner for Railways (NSW) v Agalianos
[1955] HCA 27 Para 6

…les [1985] AC 609 at 617 per Lord Scarmon, ‘In the context of the legislation read as a whole’. Commissioner for Railways (NSW) v Agalianos [1955] HCA 27; (1955) 92 CLR 390 at 397, Dixon CJ pointed out that ‘the context, the general purpose and policy of the provision and its consistency in fairness are surer gu…
Bull v Attorney-General (NSW)
[1913] HCA 60 Para 17

…of a benefit must be “construed so as to give the fullest relief which a fair meaning of its language could allow”: Bull v Attorney-General (NSW) [1913] HCA 60; 17 CLR 370.…
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation
[1981] HCA 26 Para 6

…e provision must be determined ‘by reference to the language of the instrument viewed as a whole’: Cooper Brooks (Wollongong) Pty Limited v FCT [1981] HCA 26; (1981) 147 CLR 297 at 320 per Mason and Wilson JJ. See also South West Water Authority v Rumbles [1985] AC 609 at 617 per Lord Scarmon, ‘In the context of…
[1985] AC 609
[1985] AC 609 Para 6

…(Wollongong) Pty Limited v FCT [1981] HCA 26; (1981) 147 CLR 297 at 320 per Mason and Wilson JJ. See also South West Water Authority v Rumbles [1985] AC 609 at 617 per Lord Scarmon, ‘In the context of the legislation read as a whole’. Commissioner for Railways (NSW) v Agalianos [1955] HCA 27; (1955) 92 CLR 390…

Legislation cited in this decision · 4

Workers Compensation Act 1987 (NSW)
1 mention (from Para 2)
Workers Compensation Legislation Amendment Act 2012 (NSW)
1 mention (from Para 2)
Workers' Compensation Act 1926 (NSW)
1 mention (from Para 7)
Workplace Injury Management and Workers Compensation Act 1998 (NSW)
1 mention (from Para 1)