Unilever Australia Ltd v Saab

[2013] NSWCA 374

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Unilever Australia Ltd v Saab [2013] NSWCA 374

Hearing dates:

16 October 2013

Decision date:

11 November 2013

Before:

Macfarlan JA at [1]
Meagher JA at [5]
Tobias AJA at [6]

Decision:

(1) Grant leave to appeal.

(2) Direct the appellant to file, within seven days of today, a notice of appeal in the form of the draft supplied to the Court.

(3) Appeal dismissed.

(4) The appellant to pay the respondent's costs of the application for leave to appeal and of the appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

WORKERS' COMPENSATION - six month time limit after injury received to commence claim for compensation - injury taken to have been received when worker first became aware of it - s 261(6) Workplace Injury Management and Workers Compensation Act 1998 - injury defined in Act as "personal injury arising out of or in the course of employment" - appellant worked in noisy conditions at factory operated by respondent - gradual onset of hearing loss - whether worker's opinion or belief that hearing loss causally related to noisy employment constitutes awareness where determination of the cause of a gradual hearing loss is a matter for expert opinion - whether worker only aware when received appropriate medical advice - discussion of concepts of awareness and knowledge

Cases Cited:

Unilever Australia Ltd v Petrevska [2013] NSWCA 373

Category:

Principal judgment

Parties:

Unilever Australia Ltd (Appellant)
Ali Saab (Respondent)

Representation:

Counsel:
G M Watson SC/D G Saul (Appellant)
M Joseph SC/R Petrie (Respondent)
Solicitors:
Astridge and Murray (Appellant)
Koutzoumis Lawyers (Respondent)

File Number(s):

CA 2013/37085

 Decision under appeal 

Citation:

Unilever Australia Limited v Saab

Date of Decision:

2013-01-14 00:00:00

Before:

Deputy President O'Grady

File Number(s):

A1-5805/11

Judgment

1. MACFARLAN JA: This matter was heard in conjunction with the hearing of Unilever Australia Ltd v Petrevska [2013] NSWCA 373. As with Ms Petrevska, Mr Saab suffered a hearing loss which he contends resulted from the high level of noise in Unilever's Streets ice cream factory. He worked there from about 1968 to 1998. As he was paid compensation for work-related hearing loss on 14 September 1990, the issue in his case was whether he suffered a further relevant hearing loss and whether that was caused by his noisy employment. He accepted in cross-examination that at all relevant times he had "known" that his hearing problems were caused by the noise at the ice cream factory. He first received medical advice concerning his further hearing loss in 2009 and lodged his Notice of Injury under s 254 of the WIM Act and his claim under s 260 on 7 August 2009.

1. In her Decision dated 30 October 2012, Ms Snell, Arbitrator, made the same findings as in her Decision in the Petrevska matter. She gave substantially the same reasons. Likewise Deputy President O'Grady dealt with an appeal from that decision of the arbitrator in the same way that he dealt with the appeal in the Petrevska matter.

1. The argument on Unilever's application to this Court for leave to appeal and on the concurrent hearing of the appeal was also to the same effect as that in the Petrevska matter.

1. For the reasons that I gave in the Petrevska matter, the following orders should be made:

(1) Grant leave to appeal.

(2) Direct the appellant to file within seven days of today a notice of appeal in the form of the draft supplied to the Court.

(3) Appeal dismissed.

(4) The appellant to pay the respondent's costs of the application for leave to appeal and of the appeal.

1. MEAGHER JA: I agree for the reasons given by Macfarlan JA that the orders his Honour proposes should be made.

1. TOBIAS AJA: I agree with Macfarlan JA.

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