Reynolds and Rus Mining Services Pty Ltd [2019] NSWDC 516

Reynolds and Rus Mining Services Pty Ltd [2019] NSWDC 516

The Medical Panel certificate conclusively established a 23.2% binaural hearing loss due to boilermaker's deafness, but the plaintiff had extensive prior noisy employment in New Zealand and a mixed hearing loss. The evidence, including the 2004 New Zealand material and audiograms, was inadequate to determine with precision the deductible proportion attributable to non-compensable prior exposure. The defendant's proposed 2.9% approach was unacceptable, and s 69A did not bar recovery because the plaintiff's total certified loss due to boilermaker's deafness exceeded 6%. Section 68A(6) therefore required a 10% deduction, reducing the compensable hearing loss to 20.88%.

Jurisdiction
Australia
Judgment Date
21 August 2019
Procedural Posture
Civil Coal Miners' Workers Compensation Lump Sum Claim for Industrial Deafness / Principal Judgment After Hearing
Outcome
Award for the plaintiff with a 10% deduction under s 68A(6); defendant to pay the plaintiff's costs.
Legal Topics
['industrial Deafness' "boilermaker's Deafness" 'lump Sum Compensation' 'deductible Proportion' 'presbycusis' 'medical Panel Certificate' 'pain and Suffering Compensation']
['workers Compensation' "coal Miners' Workers Compensation"] ['industrial Deafness' "boilermaker's Deafness" 'lump Sum Compensation' 'deductible Proportion' 'presbycusis' 'medical Panel Certificate' 'pain and Suffering Compensation']

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Procedural Posture

Civil Coal Miners' Workers Compensation Lump Sum Claim for Industrial Deafness / Principal Judgment After Hearing

Legal Issues

  1. 1 ["Whether the plaintiff's lump sum compensation for binaural hearing loss due to boilermaker's deafness should be reduced for hearing loss incurred during noisy employment in New Zealand." 'What deductible proportion should be applied under s 68A where the evidence was inadequate to determine the extent of the prior loss.' "Whether s 69A prevented recovery on the defendant's argument that only a 2.9% further loss was payable." 'What amount was payable for pain and suffering, anxiety and distress under s 67.']

Ratio Decidendi

The Medical Panel certificate conclusively established a 23.2% binaural hearing loss due to boilermaker's deafness, but the plaintiff had extensive prior noisy employment in New Zealand and a mixed hearing loss. The evidence, including the 2004 New Zealand material and audiograms, was inadequate to determine with precision the deductible proportion attributable to non-compensable prior exposure. The defendant's proposed 2.9% approach was unacceptable, and s 69A did not bar recovery because the plaintiff's total certified loss due to boilermaker's deafness exceeded 6%. Section 68A(6) therefore required a 10% deduction, reducing the compensable hearing loss to 20.88%.

Court Disposition

Award for the plaintiff with a 10% deduction under s 68A(6); defendant to pay the plaintiff's costs.

Orders

  • ['Award for the plaintiff for $17,955.76 pursuant to s 66 for 20.88% binaural loss of hearing, being 23.2% before s 68A deduction.' 'Award for the applicant for $6,620 pursuant to s 67.' "The defendant is to pay the plaintiff's costs."]