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

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

The plaintiff was entitled to an award against the first defendant because, applying Russo, Civitarese and Lennon, the first defendant was the last employer to employ him in New South Wales in employment to the nature of which boilermaker's deafness was due, with a deemed date of injury of 7 December 2011. Section 9AA did not displace that result and, in any event, the plaintiff's employment was connected with New South Wales because he usually worked in New South Wales for the first defendant, or alternatively was usually based there. The second defendant should not have been joined because s 20 could not apply where the contractor was insured. The Court lacked compensation jurisdiction...

Jurisdiction
Australia
Judgment Date
05 March 2018
Procedural Posture
Workers Compensation Lump Sum Compensation Claim for Loss of Hearing / Principal Judgment
Outcome
Award for the plaintiff against the first defendant; award for the second defendant; costs ordered against the first defendant with specified exclusions.
Legal Topics
['lump Sum Compensation for Binaural Hearing Loss' "boilermaker's Deafness" 'employment Connected With New South Wales Under Workers Compensation Act 1987 S 9 Aa' 'coal Miner Matters' 'insurer Liability Under Workers Compensation Act 1987 S 7 A' 'district Court Compensation Jurisdiction']
['workers Compensation' 'employment Law' 'insurance' 'jurisdiction'] ['lump Sum Compensation for Binaural Hearing Loss' "boilermaker's Deafness" 'employment Connected With New South Wales Under Workers Compensation Act 1987 S 9 Aa' 'coal Miner Matters' 'insurer Liability Under Workers Compensation Act 1987 S 7 A' 'district Court Compensation Jurisdiction']

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Procedural Posture

Workers Compensation Lump Sum Compensation Claim for Loss of Hearing / Principal Judgment

Legal Issues

  1. 1 ['Whether the plaintiff was entitled to recover lump sum compensation under New South Wales workers compensation law where he last worked for the first defendant in Queensland but last worked for it in New South Wales on 7 December 2011.' "Whether Workers Compensation Act 1987 s 9AA displaced or altered the effect of previous case law concerning the last relevant employer for boilermaker's deafness claims." 'Whether the first defendant was an employer in the coal industry for the purposes of Workers Compensation Act 1987 s 7A.' 'Whether the District Court exercising compensation jurisdiction could determine a dispute between insurers as to which insurer covered the first defendant.']

Ratio Decidendi

The plaintiff was entitled to an award against the first defendant because, applying Russo, Civitarese and Lennon, the first defendant was the last employer to employ him in New South Wales in employment to the nature of which boilermaker's deafness was due, with a deemed date of injury of 7 December 2011. Section 9AA did not displace that result and, in any event, the plaintiff's employment was connected with New South Wales because he usually worked in New South Wales for the first defendant, or alternatively was usually based there. The second defendant should not have been joined because s 20 could not apply where the contractor was insured. The Court lacked compensation jurisdiction...

Court Disposition

Award for the plaintiff against the first defendant; award for the second defendant; costs ordered against the first defendant with specified exclusions.

Orders

  • ['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...