Bannon v Commissioner of Police

[2015] NSWDC 60

District Court

New South Wales

Medium Neutral Citation:

Bannon v Commissioner of Police [2015] NSWDC 60

Date of orders:

13 March 2015

Decision date:

13 March 2015

Jurisdiction:

Civil

Before:

Neilson DCJ

Decision:

Set aside the decision of the Commissioner of Police made 12 August 2013

Determine that the suffering by the plaintiff of the condition of "moderate to severe bilateral high frequency sensori-neural deafness" was caused by her having been hurt on duty

Set aside the decision of the Commissioner of Police made 16 August 2013

Determine that the plaintiff's "hearing loss" to which her application to the SASTC dated 24 July 2013 relates was caused by her having been hurt on duty

Catchwords:

WORKERS COMPENSATION – Police superannuation – Whether plaintiff’s hearing loss boilermakers’ deafness or hereditodegenerative – Plaintiff’s deafness disproportionate to noise exposure – Attributable to personal susceptibility

Legislation Cited:

Police Regulation (Superannuation) Act 1906

Cases Cited:

Brown v Commissioner of Police [2013] NSWDC 273
Galdemar v Asta Enterprises Pty Ltd (1998) 17 NSWCCR 165

Category:

Principal judgment

Parties:

Anastasia Therese Bannon (Plaintiff)
Commissioner of Police (Defendant)

Representation:

Counsel:
Mr T Ower (Plaintiff)
Ms K Petrolo (Defendant)

Solicitors:
Walter Madden Jenkins (Plaintiff)
Rankin Ellison (Defendant)

File Number(s):

RJ48/14

Publication restriction:

No

Judgment

1. HIS HONOUR: The plaintiff, Ms Anastasia ("Stacey") Bannon, is a former detective sergeant of police. She was attested as a probationary constable of police on 7 August 1987 and then became a contributor to the Police Superannuation Fund established under the Police Regulation (Superannuation) Act 1906. On 29 July 2013, the Police Superannuation Advisory Committee (PSAC) established under the Act determined that the plaintiff was unfit for police duty due to the infirmities of "disc protrusion at the lumbo-sacral level and cervical spine multiple levels of degeneration as well as protrusion and moderate to severe bilateral high frequency sensori-neural deafness".

2. In a decision made on 12 August 2013, the Commissioner of Police, the defendant, determined that the suffering by the plaintiff of the injuries to her low back and neck were caused by her having been hurt on duty. At the same time, he determined that the suffering by the plaintiff of high level sensori-neural deafness was not caused by her having been hurt on duty. In a similar vein, on 16 August 2013, four days later, the defendant by his delegate determined pursuant to s 12D(4)(b) of the Police Regulation (Superannuation) Act 1906 that the suffering by the plaintiff of "hearing loss" was not caused by her having been hurt on duty. Being aggrieved by the two decisions against her made by the defendant, the plaintiff brings an application to this Court seeking to set aside the two decisions of the Commissioner of Police to which I have referred and asking the Court to determine that the suffering by the plaintiff of severe bilateral high frequency sensori-neural deafness and the resulting hearing loss were caused by her having been hurt on duty.

3. At the time of her attestation as a probationary constable, the plaintiff commenced general duties police work at both Kogarah and Rockdale police stations. She spent most of her day in a police vehicle with a partner. When she was junior, she was the driver of the police vehicle. After obtaining some seniority, that is, after a couple of years, she became the observer sitting next to the driver in the front seat of the police vehicle. In 1987 and until the plaintiff went to alternative work on 8 December 1990, police cars were not air conditioned. The siren on the police car was mounted on the roof of the police car that is, on top of the cabin and was not mounted, as has been the position for some time now, in the front grill of the car, in front of the radiator of the car. The plaintiff often drove the car or was a passenger in the car with the window or windows open. That was, in essence, to provide air conditioning by a natural process rather than being kept in stale air in the vehicle. When the siren was activated, it was necessary for the plaintiff to speak loudly to her partner in order for her to communicate with her partner. It was also necessary for her partner to speak very loudly in order for him or her to communicate with her. The only occasions in which the plaintiff did not keep the window of the car open was in very cold weather, in the depth of winter, or when it was raining heavily.

4. The plaintiff whilst performing general duties often was assigned to conducting fixed base, random breath testing. That was on the major arteries in the Kogarah and Rockdale patrols: namely, Rocky Point Road, Stony Creek Road, the Grand Parade between Sandringham and Brighton-Le Sands and on General Holmes Drive. That random breath testing was generally done on afternoon shifts. She was exposed to roadway noise, and she described that noise as being "extremely noisy", caused by the sounds emitted by passing trucks and vehicles. She told me that she would have to speak above normal voice level in order to communicate with her colleagues. There is no evidence of an epidemiological nature about the noise to which police officers are exposed when conducting an RBT.

5. However, there is evidence of a general nature which was accepted both by Dr Scoppa, who gave evidence in the plaintiff's case, and by Associate Professor Croxson, who gave evidence in the defendant's case. This general evidence is set out on p 3 of Dr Scoppa's report of 19 August 2014 which forms part of exhibit G. Normal conversation is carried out at levels between 60 dB(A) and 65 dB(A). When it is necessary to raise one's voice to communicate when two people are one metre apart, the ambient noise level is 85 dB(A). If it be necessary to shout to communicate, the ambient noise level is 90 dB(A). This is known in the United States of America as the "2-3 Foot Rule":

"When a sound level meter is not available, you should use the 2 to 3 Foot Rule: stand about an arm's length away from your co worker: If you have to raise your voice to be heard 2 3 feet away, you should assume that the sound level is at or above 85 dB(A)."

On the plaintiff's evidence, when she was conducting RBT and exposed to road noise, the ambient noise level would have been 85 dB(A).

6. According to the same report of Dr Scoppa, it is well known that sirens and alarms can cause sound levels as high as 120 dB(A). According to Associate Professor Croxson, police sirens can generate sound intensities between 115 dB and 120 dB. Associate Professor Croxson provided written evidence of the sound emitted by sirens being mounted behind the grill of the vehicle, and in front of the radiator which he thought provided significant attenuation of sound for those in the cabin. Unfortunately, that was not the position in which the plaintiff found herself between 1987 and 1990. The Associate Professor also understood that it was a requirement of the NSW police that the windows are wound up when the police siren is activated. There is no evidence that supports that understanding. However, in more recent years, police cars are air conditioned. The Associate Professor went on to say this:

"Given the grill mounting of the siren, the average two metre distance from the cabin, and the attenuation with the windows wound up, I would estimate the sound pressure level within the cabin to be approximately 85-90 dB."

When confronted with the position in which the plaintiff found herself as far as sirens are concerned, the Associate Professor estimated a noise level of 95 dB(A) and said it perhaps could be 100 dB(A). If the noise level were 97 dB, one would only need to be exposed to it for 30 minutes for the exposure to carry the risk of inducing boilermakers' deafness or deafness of a similar origin. If the noise level were 100 dB, then one would only need to be exposed to it for 15 minutes in order for the exposure to carry the risk of inducing boilermakers' or deafness of a similar origin. If the noise level were, in fact, 130 dB, one would only need to be exposed to it for seven and a half minutes to be exposed to the risk of boilermakers' deafness or deafness of a similar origin. The plaintiff told me that she could be exposed to siren noise when travelling relatively long distances from one end of the patrol in question to the other: for example, from the southern end of Rocky Point to nearby the Sydney International Airport.

7. Between 8 December 1990 and 5 April 1997, the plaintiff worked for Crime Stoppers. Her work involved her taking telephone calls from the public. The plaintiff does not rely on that period of her service as one in which she was exposed to loud, industrial noise. During that period, the plaintiff was promoted to senior constable on 28 February 1995.

8. On 6 April 1997 officially, but unofficially earlier in late 1996, according to evidence given in cross-examination, the plaintiff joined the licensing agency dealing with gaming and liquor. There were two different roles which the plaintiff performed during her time with the licensing agency, between late 1996 and 11 June 2003. There was a change in the focus of the agency in about the year 2000. Between late 1996 and 2000, the agency was mainly concerned with enforcing regulations governing licensed premises. From 2000 onwards, the agency was more concerned with trying to combat organised crime, in particular, dealing with organised crime carried on from licensed premises, most probably, as the evidence attests, trying to detect drug dealing in licensed premises.

9. However, in both roles, the plaintiff was required to carry out covert surveillance work in hotels and nightclubs and "strip joints" often in the City of Sydney and Kings Cross and also she would go to the country, sometimes for periods of six days, in order to carry out her work at country venues. If she were engaged in a period of covert surveillance, the period would appear to be, at its minimum, two hours and could extend to as long as four hours. During such work, the plaintiff was exposed to the noise generated within the hotels and clubs, which was often loud noise.

10. On the subject of the level of noise within licensed premises where music is played, there is evidence directly from Dr Scoppa and from Associate Professor Croxson. In his report of 19 August 2014, Dr Scoppa said, this:

"...it is well known that noise from loud music in premises such as clubs, pubs and discos can reach levels of up to 120 dB.

By way of example I refer to the following references:

• An article published in the Sun Herald on May 29, 2005 reported measured noise levels as high as 95 dB in several Sydney pubs on a busy Friday night...

• A Danish study found that in each of five randomly selected nightclubs in Denmark's second city, Aarhus, the average noise levels were recorded to be in excess of 100 dB. The highest recorded level was as high as 119 dB...

• An online study found that workers in venues playing amplified music will be exposed to noise levels ranging from 84 to 104 dB..."

Associate Professor Croxson said this in his report of 20 October 2014:

"Irie et al (1985)...suggested that live bands can generate sound pressure levels of up to 120 dB immediately in front of the stage. It was established that floor staff can be exposed to sound pressure levels of approximately 93 dB."

It is clear from such evidence that the plaintiff would be exposed to noise levels of around 95 dB for a minimum of two hours and perhaps for up to four hours when she was carrying out covert surveillance. If the noise level is 91 dB, one only needs to be exposed to that noise for two hours to work in conditions to which boilermakers' deafness or deafness of a similar origin is due. If the noise level is 94 dB, one only needs to be exposed to that for one hour to work in conditions which carry a real risk of suffering from boilermakers' deafness or deafness of a similar origin. Each of such exposures represents a Daily Noise Dose of at least 1. True it is, the plaintiff did not suffer from such exposure every day of her service between late 1996 and 12 June 2003. The inference to be drawn is the plaintiff might do covert surveillance about two times per week when she was actually working.

11. During her period with Crime Stoppers, the plaintiff had two periods of maternity leave, the first for approximately one year and the second for approximately six months, but that is quite irrelevant as, during the period the plaintiff worked for Crime Stoppers she was not exposed to levels of noise sufficient to induce industrial deafness.

12. The plaintiff's work after 12 August 2003 did not expose her to loud, ambient noise in her general working conditions. There, however, was one exception to that. Each year, each member of the police force must undergo annual firearms training. That consists of firing practice rounds of bullets followed by firing a number of rounds, the results of which are recorded, to ascertain whether the police officer is still proficient in the use of the police firearm, initially the Smith & Wesson revolver and, since about 1999 or 2000, the Glock pistol. According to Associate Professor Croxson, a gunshot causes a sound pressure level of between 140 and 170 dB. Dr Scoppa in his report of 10 February 2015 assumed that the noise emitted when a Glock pistol was fired ranged between 133 dB and 143 dB. However, it is clear from his earlier report of 19 August 2014 that he was relying on a Canadian study indicating that noise levels emitted during "simunition" testing of Glock pistols ranged between 133 dB to about 143 dB. The neologism "simunition" is a registered trademark. It is an amalgamation of two words: simulation and ammunition. It is clear from the evidence of the plaintiff that during simunition testing of Glock pistols, bullets were not fired but paint balls were. According to the plaintiff's evidence, the level of noise when paint balls were fired was not as high as the level of noise when bullets were fired. Associate Professor Croxson agreed with the thrust of that evidence. Therefore, it is, in my view, preferable to accept Associate Professor Croxson's evidence that the sound pressure level of a gunshot is between 140 and 170 dB.

13. As a general proposition, the plaintiff wore earmuffs when undergoing firearms training. That was supposed to attenuate the noise from the discharge of a bullet by 30 dB. However, in his report of 10 February 2015, Dr Scoppa pointed out that although the manufacturer reported that earmuffs would reduce noise levels by 30 dB, it was preferable to see the reduction as being only 75% of that level; therefore, that it should be 22.5 dB. That is contained in the paragraph numbered (iii) of Dr Scoppa's report of 10 February 2015. Accordingly, if the plaintiff was wearing earmuffs, she may have been exposed to noises between 118.5 dB and 148.5 dB.

14. At 118.5 dB, one needs only to be exposed to the sound for 14 seconds to obtain a Daily Noise Dose of 1. If one be exposed to a noise level of 148.5 dB, one would expect instantaneous damage to the ear. Such a high level of noise would be sufficient to cause acoustic trauma but, equally, it might only cause the pathological damage responsible for the deafness commonly called boilermakers' deafness or deafness of a similar origin. It is patently clear from the plaintiff's evidence that she was exposed to the noise of gunshots for long periods on any one day of firearms training. It is clear that such training would have lasted for hours, not a matter of seconds.

15. On one occasion, 7 November 2006, the plaintiff's hearing protection was dislodged, exposing her right ear completely and partially exposing her left ear. That can be seen from exhibit D and also from the evidence of the plaintiff which I have no hesitation in accepting. Clearly, without hearing protection, the plaintiff would have been exposed to a level of noise sufficient to cause acoustic trauma and, by definition, sufficient to cause industrial deafness.

16. The evidence in this case is overwhelmingly in favour of the plaintiff's case. At the commencement of her police career, the plaintiff underwent a pre-employment medical check which included audiometry. The audiogram was made on 27 April 1987. It shows completely normal hearing. When the plaintiff first became bothered by hearing problems, she consulted Dr Barrett at the Caringbah Medical Centre and was sent for an audiogram at the same centre. That audiogram is reported by the audiologist as revealing a bilateral, mild moderate sensori-neural loss from 500 Hz. The audiologist, on the cover sheet of the audiogram, which is exhibit E, questioned the cause of the hearing loss and questioned whether it might be due to noise. According to Dr Scoppa's recension of that audiogram, it shows a 20.1% binaural loss of hearing. The next audiogram was made by Dr Scoppa himself after the plaintiff was referred to him by Dr Barrett. Dr Scoppa first consulted with the plaintiff on 28 November 2012, and he carried out an audiogram on that day. That establishes a 20% binaural loss of hearing. On my viewing of the audiograms, there is little difference. The next testing of the plaintiff was by Dr Scoppa on 20 February 2013. That audiogram establishes a 20.4% binaural loss of hearing. On 12 June 2013, the plaintiff had administered to her an audiogram at the request of Associate Professor Croxson. The audiogram was not made by the Associate Professor himself but by an audiologist identified merely as Ms Sorbello. That establishes a binaural hearing loss of 37.8%. Nine days later, the plaintiff underwent a further audiogram performed by Dr Robert Payten, an otorhinolaryngologist, retained by the administrator of the Police Superannuation Fund. Dr Payten's audiogram establishes a bilateral 20.8% loss of hearing. I recite the levels of hearing loss recorded by the various audiograms to show that one of them is completely different to the other four. The completely different audiogram is that performed on 12 June 2013 by Ms Sorbello at the request of Associate Professor Croxson.

17. Dr Scoppa was of the view that the plaintiff had a history of occupational noise exposure leading to her suffering from boilermakers' deafness or deafness of a similar origin, usually now known as industrial deafness. Dr Payten was of the same opinion. It is Associate Professor Croxson who does not agree with the diagnosis of industrial deafness. To some extent, this is a debate between Dr Joseph Scoppa, the plaintiff's treating otorhinolaryngologist, and Associate Professor Croxson, also an otorhinolaryngologist. This, to an extent, is a rematch of Brown v Commissioner of Police [2013] NSWDC 273. In Brown, I accepted evidence given by Associate Professor Croxson over that given by Dr Scoppa and held that the deafness which former Sergeant Brown was suffering was not industrial deafness. However, these cases are completely different. In [5] of Brown v COP, I said this:

"Sensori-neural deafness can be inherent or acquired. Some children are born deaf due to sensori-neural deafness. There are a number of ways in which sensori-neural deafness can be acquired. For many years, there has been in my library a book called Deafness, 2nd Edition (1970) published in London by J&A Churchill, written by an eminent British otologist, Dr John Ballantyne. Dr Ballantyne provides me with the following list of the causes of acquired sensori-neural deafness:

1. Due to head injuries which might include fractures of the skull base and concussion of the labyrinth.

2. Due to pressure changes such as blast injuries of the inner ear and barotraumatic otitis interna.

3. Due to noise (acoustic trauma).

4. Due to infections.

5. Due to the toxic effects of certain drugs, the commonest of which are aspirin and quinine.

6. Due to acoustic tumours.

7. Due to Meniere's Disease.

8. Presbycusis."

In the following paragraph of that judgment, I quoted in extenso from Dr Ballantyne's work concerning deafness due to noise. I go on in the judgment to refer to developments since the publication of Ballantyne's work and to the appropriate case law concerning boilermakers' deafness. There is no suggestion here of the plaintiff’s having suffered any of the other causes of sensori-neural deafness given by Dr Ballantyne, only the plaintiff's exposure to noise. The plaintiff had no employment other than her service with the NSW police. She has had no noisy hobbies. She has had no recreational noise exposure apart from the occasional live band when she was under 19 years of age. She has no history of ototoxic medication. There is no family history of ear disease. There is no family history of hearing loss. There is no personal history of any ear disease. Examination of the external ear canals and tympani is completely normal. Tuning fork testing is completely normal.

18. Associate Professor Croxson accepted the plaintiff was suffering from bilateral sensori-neural hearing loss. However, it is common ground between Dr Scoppa and Associate Professor Croxson that the extent of the plaintiff's hearing loss is greater than what one would expect given the extent of the plaintiff's exposure to noise sufficient to induce industrial deafness. According to Dr Scoppa, this is consistent with there being personal susceptibility of the plaintiff to exposure to noise.

19. In Galdemar v Asta Enterprises Pty Ltd (1998) 17 NSWCCR 165, I said, at [21]:

"Mr Parker for the respondent has submitted that I would not so find because the evidence of Mr Day is that with an 85 dB(A)LAeq over a period of 40 years, 95% of the population would have their hearing unaffected. However, that equally means that 5% of the population would. In my view, that is sufficient to carry the risk of contracting boilermakers' deafness or deafness of a similar origin. To accede to the submission of Mr Parker in that regard appears to me to be inconsistent with what fell from Meagher JA in Coal and Allied Operations Pty Ltd v Collins (1989) 5 NSWCCR 218, commencing at 225."

The proposition to which I was referring was the proposition that a noise of 85 dB(A)LAeq or over carried a real risk of suffering from boilermakers' deafness or deafness of a similar origin. In Brown, in the quotation I made from Dr Ballantyne's work in [6] is the proposition that there is a marked individual susceptibility to noise, and with that all the literature agrees. Some people react differently to certain levels of noise. Although the extent of the plaintiff's noise exposure may not be theoretically proportionate to the level of her deafness, it may represent individual susceptibility.

20. In the current case, Associate Professor Croxson reached the view that the plaintiff was suffering from a hereditodegenerative hearing loss which explained the plaintiff's hearing loss completely and solved the conundrum caused by the extent of the plaintiff's exposure to noise being disproportionate to the level of her deafness. On p 5 of his report of 20 October 2014, Associate Professor Croxson said this:

"1. Ms Bannon's audiogram performed on 12/6/2013 shows low-tone involvement at 250, 500 and 1000 Hz, not found in classic noise-induced hearing loss.

2. Ms Bannon's hearing loss at 4000 Hz exceeds the 90th percentile deafness level of workers exposed to 90 to 100 dB over a 40 year period.

3. Ms Bannon's historical noise exposure does not equate to forty years of industrial noise exposure at 90 to 100 dB for eight hours per day."

21. Unfortunately, there is a flaw with that comment. The only audiogram which shows low tone involvement at below 500 Hz is that made by Ms Sorbello. It is not replicated in any other audiogram. For example, Ms Sorbello's audiogram shows the right ear commencing with a loss of 30 dB, and the left ear commencing with a loss of 35 dB at 5 KHz. However, on Dr Payten's audiogram, the loss for the right ear at 5 KHz is 20 dB, and for the left ear is 25 dB. In other words, the audiogram relied upon by Associate Professor Croxson starts at much greater levels of hearing loss than each other audiogram. It is not necessary for me to cite all the other audiograms because they all have a marked similarity with each other and the "odd man out" is the audiogram performed by Ms Sorbello at the request of Associate Professor Croxson. The first matter relied upon by Associate Professor Croxson is, in my view, not established and certainly not established to my satisfaction on the balance of probabilities.

22. Accordingly, I am faced with very similar findings and two competing opinions: that of Dr Scoppa that this is industrial deafness; and that of Associate Professor Croxson that this is a hereditodegenerative loss. As the Associate Professor conceded, that is a default position. Since he does not believe that the extent of the plaintiff's hearing loss is commensurate with the plaintiff's exposure to loud noise, there must be some other explanation for the hearing loss. However, if it is hereditary, it must be genetically determined and the gene cannot be currently identified and, certainly, has not been identified in the past. The Associate Professor concedes that the gene is a recessive but why it should strike the plaintiff and not other members of her family cannot be adequately explained, and one would think that a recessive gene would be shed with the passage of generation upon generation.

23. This is a very different case to Brown v COP. In that case, I said commencing at [21]:

"… Associate Professor Croxson advanced these reasons for maintaining his diagnosis about the hereditodegenerative deafness:

'My reasons for this are:

The audiogram shows no notching at 3,000, 4,000 or 6,000 Hz.

There is no preservation of hearing thresholds at 8,000 Hz.

There is evidence of progressive hearing loss in the audiograms obtained between 14 January 2008 and 3 March 2011. During this period of time, Sergeant Brown was not fit for work between 22 December 2009 and 3 March 2011. Such progression in hearing loss despite the absence of noise related to his police duties, would suggest that the hearing loss is not noise related.'"

In the next paragraph of that judgment, I went on to point out that the plaintiff in that case was only performing clerical work from August of 2009 until completely stopping work in 2009 and, therefore, there was a longer period when there was no exposure to noise when Sergeant Brown's hearing loss continued to increase, pointing to another cause of such hearing loss. In Brown's case, the audiograms did not have the classical appearance one would expect in a noise induced hearing loss and put into evidence in that case were other audiograms from other sources used epidemiologically to establish that the hearing loss of Sergeant Brown did not fit the classic pattern of hearing loss due to exposure to noise. As I said, this is a very different case.

24. I am confronted by conflicting opinions. The opinion of the Associate Professor is largely based on an audiogram I do not accept to be accurate. The opinion of Dr Scoppa is supported by an independent otorhinolaryngologist, Dr Payten. There is nothing in the evidence which raises any alternative cause for the plaintiff's hearing loss other than her exposure to loud noise in the course of her service with the NSW Police. The Associate Professor accepted that it was possible that her hearing loss was so caused and the thesis of the Associate Professor is really an hypothesis which is not supported by any factual matter at all.

25. Accepting the plaintiff's evidence, as I do, rejecting the accuracy of the audiogram of 12 June 2013, and looking at all the evidence, I am persuaded on the balance of probabilities that the suffering by the plaintiff of moderate to severe bilateral hearing frequency sensori-neural deafness was caused by her having been hurt on duty. For those reasons, I set aside the decision of the Commissioner of Police bearing date 12 August 2013. I determine that the suffering by the plaintiff of the condition of "moderate to severe bilateral high frequency sensori-neural deafness" was caused by her having been hurt on duty. I also set aside the decision of the Commissioner of Police given on 16 August 2013. I determine that the plaintiff's "hearing loss" to which her application to the SASTC dated 24 July 2013 relates was caused by her having been hurt on duty.

26. The only remaining issue is the notional date of injury. The plaintiff's last regular work, and I use the word "regular" advisedly, was on 11 June 2003. However, thereafter, there was the annual firearm training which I am persuaded exposed the plaintiff to noise sufficient to cause industrial deafness or deafness of a similar origin. I do know that there was an annual pistol shoot on 7 November 2006. However, the plaintiff told me that her last firearms training was in either 2009 or 2010. The notional date of injury is the date of the plaintiff's last firearms training, and the parties can ascertain that from the records of the Commissioner of Police.

27. I have inquired of counsel for the parties whether any further reasons for judgment or findings or orders are sought. I am told that no reason is required, nor are there any other finding or order required. I order the defendant to pay the plaintiff's costs.

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Decision last updated: 07 May 2015