Ambulance Service of New South Wales v Daniel

This case concerned an appeal by the Ambulance Service of New South Wales against a decision of a trial judge who found that the nature of Mr. Daniel's employment with the Ambulance Service was such that his hearing impairment or disability was due to that employment. The primary dispute revolved around whether the trial judge had applied the correct legal test under section 17 of the *Workers Compensation Act 1926* (NSW) and whether the facts found by the judge fell within the provisions of that statutory enactment. The appeal was brought before the court on the basis of alleged errors of law, including that there was no evidence to support the finding, that the judge went beyond the evidentiary material, failed to give adequate reasons, applied the wrong test, and wrongly held that the facts found were within the statute.

The court was required to determine whether the trial judge had erred in law by applying an incorrect test for "employment to the nature of which an injury is due." Specifically, the court had to consider whether the trial judge's finding that the noise Mr. Daniel was subjected to "constituted a sufficient number of incidents, characteristics and tendencies to translate into a hearing impairment or disability" equated to the correct legal standard. Furthermore, the court had to assess whether the question of whether the facts found by the trial judge fell within the relevant statutory provision was a question of law, as argued by the appellant, or a question of fact.

The court reasoned that the correct test for determining whether employment was "to the nature of which an injury is due" involved assessing whether the employment involved a real, as opposed to a theoretical, risk of the injury occurring. It found that the trial judge, by stating that the employment could be characterised as "noisy" if there were sufficient incidents to "translate into" a hearing impairment, had in substance equated this to involving a real risk. Therefore, the court concluded that the appellant had not established that the trial judge failed to purport to apply a correct test. However, the court also considered the appellant's submission that the question of whether the facts found fell within the statute was a question of law, referencing authorities such as *Hope v. Bathurst City Council* and *Harris v. McKenzie*. Ultimately, the court found that the trial judge's reasons for the crucial finding were insufficient, as they did not refer to potentially relevant expert evidence or indicate reliance on the Compensation Court's specialist knowledge, leaving the appellate court to speculate on the basis of the decision.