Brown v Roche Bros Pty Ltd
[1988] TASSC 72
•29 February 1988
Serial No B4/1988
List "B"
COURT: SUPREME COURT OF TASMANIA
CITATION: Brown v Roche Bros Pty Ltd [1988] TASSC 72; B4/1988
PARTIES: BROWN
v
ROCHE BROS PTY LTD
FILE NO/S: WC 53/1985
DELIVERED ON: 29 February 1988
JUDGMENT OF: Nettlefold J
Judgment Number: B4/1988
Number of paragraphs: 34
Serial No B4/1988
List "B"
File No WC 53/1985
BROWN v ROCHE BROS PTY LTD
REASONS FOR JUDGMENT NETTLEFOLD J
29 February 1988
During the course of the hearing the defendant made a formal admission of the fact that the plaintiff, Mr Brown, was employed by the defendant in Tasmania in about 1963.
Mr Brown gave evidence to the effect that when first employed by the defendant he worked on a job which he called the Sorell Pipeline job. It is not necessary to be precise in relating his subsequent employment because the details are not of critical importance. The general picture which emerged from Mr Brown's evidence is that, after the Sorell job he worked for the defendant in the Great Lake area in 1964. This was dam construction work which continued until 1967. At about that stage in his career he went to work for an employer whom he described as "Hornibrooks". Apparently that employer employed him to work on dam construction work at Risdon Vale near Hobart. When he finished with "Hornibrooks" he returned to work with the defendant. At this stage his place of employment was Garden Island in Tasmania. It appears that he continued to work for the defendant in Tasmania until 1972 when the defendant transferred him to Melbourne where he worked for the defendant for six months. Then he worked for the defendant at Ardlethan in New South Wales and, at Waratah in Tasmania. After that he worked for the defendant on the Currie River Dam on the North East Coast of Tasmania. Then he worked for the defendant at Kingaroy in Queensland for about 18 months in the early part of this decade. Then the defendant transferred Mr Brown to Hamilton Island. Mr Brown mentioned a number of other places where he worked for the defendant including, Miena, Savage River, Lithgow and the Dandenongs. There are conflicting details in the defendant's answers to interrogatories concerning Mr Brown's work record but these conflicts are immaterial. Expressed generally, it is clear that the situation is that, with the exception of a period in the years 1967 to 1968 when he worked for "Hornibrooks", Mr Brown worked continuously for the defendant from his initial engagement in 1963 until the termination of the employment in 1984.
It is material to note the kind of work which Mr Brown performed for the defendant. In general terms he described his work as that of a driller, powder–monkey and pipe layer. It was work which involved working in noisy conditions, drilling holes for blasting and blasting and working with noisy, heavy equipment.
Mr Brown was born on 14 May 1930. Hence, he was about 54 years of age at the time his employment with the defendant was terminated and 33 years when he was first engaged by the defendant. Prior to that first engagement he had various jobs, including fisherman, fish–merchant, postman and yardman. He left school when aged 14½ years.
The specialist Otolaryngologist, Dr Philip Moore, gave evidence on behalf of the plaintiff. He said he had examined the plaintiff on 6 December 1984. On that occasion he was given a history of exposure to noise for approximately 20 years. On examination on that occasion Dr Moore found signs of recent surgery to the left ear. Dr Moore found that the hearing loss in each ear was mainly due to hearing loss from the organ of hearing and the inner ear. In the left ear there was some hearing loss from a middle ear factor. The hearing loss was greater in the right ear. In that ear the cause was inner ear deafness secondary to noise exposure. The overall hearing loss in each ear was moderate to severe hearing loss mainly related to the sensori neural component. Dr Moore said that he felt that the cause of the vast majority of the hearing loss "problems" was noise exposure. He felt that the bulk of the plaintiff's hearing problems came from the sensori neural component, that is, the inner ear component.
Dr Moore felt that Mr Brown's employment background was in this work around noisy things and in a background of noise. He was unsuitable for that work because it would be difficult to warn him of imminent danger around machinery and the like and he must protect the hearing he has left from further noise exposure.
Dr Moore calculated the hearing loss according to the tables of the National Acoustics Laboratory, the recommendations of October 1974. Dr Moore found that the sensori neural component was of the order of 31.3 percent. Total hearing loss, all components, was of the order of 58.9 percent. Dr Moore explained that what we know as industrial hearing loss, noise induced hearing loss, is really sensori neural loss. He explained further that there are two factors playing a part in his overall hearing loss. He has the conductive element in the left ear, but, more so, a sensori neural element in the left ear. The right ear has a hearing loss which is really of a sensori neural cause. Later he added to that by saying that the ear drum perforation makes a small contribution to his loss of hearing because of middle ear factors related to that disease which can still be observed despite the successful surgery he had in Queensland.
Dr Moore accepts that, assuming no further noise exposure from the end of 1983 until his examination of the plaintiff in December 1984, the element of hearing loss due to noise exposure would have remained much the same.
Dr Moore also said that, if the conductive hearing loss in the left ear is left out of account, for the plaintiff's purposes, that does not make a lot of difference.
Dr Moore expressed the opinion that, if the plaintiff had the same hearing loss at the end of 1983 as he had at the time of the examination in December 1984, he was unfit for work at that time "in the trade he had been working in".
The relevant history leading to the termination by the defendant of the plaintiff's contract of employment is as follows. The plaintiff was working in Queensland and experienced some difficulty with an ear. There was a lump in it. He saw a general practitioner who referred him to a specialist surgeon Mr Tiong. Mr Tiong saw the plaintiff on 15 March 1984. Mr Tiong performed an operation. This operation was not done to improve the sensori neural deafness which the plaintiff had before the operation. It was to improve as much as possible the conductive deafness in the left ear. The plaintiff came back to Tasmania after the operation with the consequence that there was "no follow up".
Back in Tasmania Mr Brown consulted Dr R.A. Goldfinch. A number of reports written by him are in evidence by consent. The critical reports are dated 17 May 1984 and 21 June 1984 respectively. The report of 17 May 1984 states:
"Mr Arthur Brown has hearing that demonstrates a very definite sensori neural loss bilaterally so that his hearing is below 50 percent of normal. In consequence I do not think it is wise for him to work as a powder monkey as he may well miss some warning shout which may place his life in jeopardy".
The report of 21 June 1984 reads:
"This patient has severe sensori neural deafness probably related to his work. In my opinion it is dangerous for him to continue working with his impaired hearing. I do not consider he is fit to work in industry".
It is clear that the defendant accepted Dr Goldfinch's advice and terminated the contract of service. The plaintiff was in Hobart when he was paid off and did not return to Queensland.
Dr Goldfinch advised the plaintiff to apply for an invalid pension. The plaintiff did so successfully. He is still receiving that pension.
There is an affidavit in evidence sworn by Dr Patrick Hamilton. It states that the plaintiff consulted him on the 27 October 1984 and brought with him audiograms done by Dr Goldfinch which showed a severe deafness. Dr Hamilton's examination of Mr Brown revealed that he suffered from sensori–neural deafness with over 50 percent decrease in activity in both ears on a whispered speech test. It also revealed conductive deafness in the left ear which Dr Hamilton felt was caused by chronic ear infection. Dr Hamilton formed the opinion that Mr Brown was totally unfit for work in the construction industry "as he runs the risk of exacerbating his already extensive deafness and at the time of my examination he was so deaf that his continued activity in that industry especially in his occupation as a powder monkey created considerable risks of injury to himself and his fellow workers".
After Mr Brown's employment was terminated on 29 June 1984 he did not seek other work. He said "the job I was doing was my profession". He felt he was capable of doing some work and he mentioned farm work, fencing, "stuff like that".
He spends his time pottering about in the garden, around the house and also at the property of his daughter and son–in–law.
On that evidence I find that, praying in aid s5(4), which he may do, the plaintiff has established a case under s5(1). That is to say that he has established that in his employment with the defendant he suffered personal injury by accident arising out of and in the course of that employment with the result that, subject to the Act the defendant is liable to pay him compensation in accordance with the provisions of Schedule 1.
The evidence does establish that he suffered "personal injury" within the primary meaning of that conception, a meaning established by clear and binding authority. I refer first to the following statement of the relevant principle by Barwick CJ in Favelle Mort Limited v Murray (1974–75) 133 CLR 580 at 587:
"... an external excitement initiating a morbid condition of the body would, in my opinion, be an injury within the meaning of that word in the context of a workers' compensation law. It must be remembered that at the outset of such legislation, i.e. the original English Act, the injury had to be by accident or, perhaps more accurately expressed, the worker had to suffer or receive an injury by accident. Consequently, the universal character of the word 'injury' was to an extent limited by its conjunction with the word 'accident'. But the English courts held that the contraction of a disease by external cause could be the reception of an injury by accident. Brintons Ltd. v. Turvey [1905] A.C. 230 and cases which followed that case sufficiently evidence that course of decision. The same view has been adopted in New Zealand – see Storey v. Wellington Hospital Board [1932] N.Z.L.R. 1553. The removal of the word 'accident' from the expression 'injury by accident' did not, in my opinion, reduce the connotation of the word 'injury'. Rather, it increased the occasions on which that connotation could be given effect ................................................................ It may thus be concluded, as I would conclude, that in its normal meaning the word 'injury' in the Act itself embraces an externally excited disease." See also McTiernan J in the same case at page 593; Mason J pages 595 – 596; Jacobs J page 600; see also the following cases, Storey v Wellington Hospital [1932] NZLR1553 at 1557 and 1570 – 1571; Fife Coal Co Ltd v William Young [1940] AC 479; Stevenson v Buchanan and Brock Pty Ltd [1971] VR 503 at 508.
When discussing whether any disease will attract compensation under the Act by the combined effect of subs5(1) and 5(4) it is important to keep in mind the distinction between idiopathic and autogenous diseases and other diseases. I refer again to the decision of Barwick CJ in Favelle Mort Limited v Murray (supra) at page 587–8:
"The word 'disease' is itself a word of some difficulty in this context, particularly in the expression 'contraction of a disease'. Properly used, disease denotes a morbid condition of the body. It may be initiated by some external cause or be idiopathic or autogenous. Quite clearly, when such a condition is idiopathic or autogenous, it will not qualify as an[i] injury in the normal use of language. The actual decision in Slazengers (Australia) Pty. Ltd. v. Burnett [1951] A.C. 13 was an affirmation of precisely that proposition, though the reasons given for it were not those I may venture to suggest. Such a disease is not 'received', to use the language of the Act, but it may be contracted in the sense of becoming manifest or being commenced as a morbid condition of the body".
On the evidence in this case I find that it is more probable than not that in his employment with the defendant Mr Brown was subjected to an external exciting cause, i.e. noise, which progressively over time produced a morbid condition of his body, namely industrial deafness. Thus, Mr Brown suffered 'personal injury' arising out of and in the course of his employment. The term 'personal injury' in s5(1) in its normal meaning embraces this externally excited disease. I emphasise the conditions in which Mr Brown worked for the defendant with a short break of 14 months in the late sixties, for over 20 years.
I now turn to construe s5(4) of the Act which reads, "The disablement or death of a worker by disease shall be treated as the happening of an accident". That provision must be construed in obedience to the principles ennunciated by Isaacs J and Rich J in McGuire v The Union Steamship Co. of New Zealand (1920) 27 CLR 570 at 584. It is a remedial provision, designed as a vehicle for compensation for injured workers. The construction must not be narrow and grudging but one which gives effect to its words recognising the problems it was designed to remedy. Among other things, it was designed to give a remedy to workers who contracted work caused disabling or fatal diseases in the course of their employment, but could not make a case for compensation using the primary meaning of the term "personal injury" because they could not point to an "accident" or show it was "by accident". This problem is fully expounded and explained in the leading case of[ii] Roberts v Dorothea Slate Quarries Co Ltd (1948) 2 All ER 201, see particularly at pages 203–4, 205, 206, 207, 208. See also Storey v Wellington Hospital Board (supra); Fife Coal Co Ltd v William Young (supra); Darling Island Stevedoring and Lighterage Co Ltd v Hussey (1959) 102 CLR 482 at 497–8 per Fullager J The following statement by Viscount Caldecote LC in Fife Coal Co case (supra) at pages 484–5 is the classic statement of the position:
"The two cases, one of 'beat hand' and the other of 'beat knee', which came before the Court of Appeal very shortly after the decision of your Lordships' House in Brintons, Ld v Turvey [1905] AC230 followed a different line. They were each decided in favour of the employer – Marshall v East Holywell Coal Co (1905) 93 LT 360 and Gorley v Backworth Collieries (1905) 93 LT 360, on the grounds that the injury was the inevitable result of work long continued, and was not anything which could be described as having happened on a particular date. Walker v Hockney Brothers 2 BWCC 20 the case of the man who gradually over a period of five years acquired paralysis by riding a carrier bicycle, was another decision in favour of the employer. There is no reason to doubt the correctness of the decisions in the three cases I have last mentioned. In all of them the facts were such as to make it impossible to identify any event which could, however loosely, be called an accident. In these cases the workmen failed, not because a disease was outside the purview of the Workmen's Compensation Act altogether, but because the burden of proof that there had been an accident was not discharged.
When the workman's claim is in respect of a progressive disease the difficulty of pointing to a definite physiological change which took place on a particular day is, in general, likely to be almost insuperable, and in 1906 Parliament, in the case of certain diseases and later by an enlargement of the schedule of industrial diseases, relieved the workmen in the specified cases of this obligation. But if the circumstances of any claim in respect of incapacity due to disease are such as to make it possible to discharge this burden, I see no reason for thinking that what is called a disease is different in principle from a [iii]ruptured aneurism as in Clover, Clayton & Co, Ld v Hughes [1910] AC 242, or heart failure as in Falmouth Docks and Engineering Co, Ld v Treloar [1933] AC 481".
Mr Brown was disabled by the disease of industrial deafness while in the employ of the defendant. That disablement is to be treated as the happening of an accident. The cases cited above clearly establish that that proposition completes Mr Brown's case for compensation under s5(1). On the evidence it is clear that he was disabled. The industrial deafness left him in a condition in which he could not earn wages in the employment he had held for 20 years. Further, I find that it left him in a condition where he could not earn wages anywhere in the construction industry for reasons which the medical evidence explains. But, further, I accept Mr John Green's argument to the effect that, having regard to all the relevant circumstances, including Mr Brown's age, background and inadequate education, the observations of Fletcher Moulton LJ in Cardiff Corporation v Hall (1911) 1 KB 1009 at 1020 – 1021 apply.
The evidence suggests that Mr Brown's contract of employment was terminated on 29 June 1984 because the defendant did not think he should continue because of the industrial deafness. The termination of that contract was not the disablement of Mr Brown but a consequence of the disablement of Mr Brown. I say that in response to an argument put by counsel for the defendant. Mr Brown no doubt received wages for the 29 June 1984 and the immediately preceding days. But he did not earn any wages on any of those days. He did not because he was disabled by industrial deafness during that time. He received wages in respect of those days but that receipt is referable to the terms of his contract of employment and the fruits of work done before he was put off work because of the problem found in his ears.
The same result can be achieved by another route. On the evidence I find that in his employment with the defendant Mr Brown was disabled as a result of a disease which arose out of and in the course of the employment.
I can now turn to Schedule 1. Mr Brown is entitled to a weekly payment under rule 3. Having regard to the long period of time which has elapsed since 29 June 1984 Mr John Green asked that this entitlement be now quantified and awarded as a lump sum. There was no submission to the contrary and it seems an obvious course to take.
In addition medical expenses are agreed at $870.18.
There is an entitlement under rule 7 which must be calculated. It should be calculated by ignoring rule 7(4)(b) because no percentage of the defectiveness of the hearing of the worker has been shown to have been contracted outside this State. But there must be a deduction by applying rule 7(4)(a). In view of Dr Moore's new report, I need the submissions of counsel in respect of that deduction and generally before arriving at a figure under rule 7. I draw attention to rule 7(5) and rule 5 sub–rules (5) and (6).
I shall publish these reasons and leave it to counsel for the plaintiff to move for judgment in accordance with them.
There is no doubt that s8D(1) of the Act applies. The word "employs" may be read as "engages". (Helmers v Coppins (1961) 106 CLR 156). The worded "contracted" may be read as including the situation here where the industrial deafness became manifest in Queensland. On the evidence, the other provisions of the sub–section are satisfied.
tasInLaw edit: These words do not appear in the paper version of the judgment.
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tasInLaw edit: The paper version has the words ’an “accident” or show it was “by accident”. This problem is.‘ at the beginning of page 9. These words seem to be mistakenly duplicated from the previous page.
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tasInLaw edit: These words do not appear in the paper version of the judgment.
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