Butler v Coles Group Supply Chain Pty Ltd - [2023] NSWPIC 353

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Butler v Coles Group Supply Chain Pty Ltd & Ors [2023] NSWPIC 353
APPLICANT:	Raymond Keith Butler
FIRST RESPONDENT: SECOND RESPONDENT:	Adventist HealthCare Pty Ltd Coles Supply Chaim Group Pty Ltd
Member:	Jane Peacock
DATE OF DECISION:	18 July 2023
CATCHWORDS:	WORKERS COMPENSATION - Industrial deafness; dispute about last noisy employer; evidence weighed in the balance; Held – on the balance of probabilities; second respondent found to be the last employer who employed the worker in employment to which the nature of the injury of hearing loss was due; matter remitted for referral to a Medical Assessor.
determinations made:	The Commission determines: 1. The matter is remitted to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act1998 for assessment as follows: (a) Date of Injury: 3 August 2006 (deemed). (b) Body systems/parts: hearing loss. (c) Method of assessment: whole person impairment. 2. The documents to be forwarded to the Medical Assessor are as follows: (a) the Application to Resolve a Dispute and all documents attached; (b) first respondent Reply and all documents attached, and (c) second respondent Reply and all documents attached. 3. The Medical Assessor should also be asked to indicate whether hearings aids are reasonably necessary as a result of injury deemed to have occurred on 3 August 2006.

STATEMENT OF REASONS

BACKGROUND

By Application to Resolve a Dispute (the application), Mr Raymond Keith Butler (Mr Butler) seeks lump sum compensation as a result of injury in the form of noise induced hearing loss and treatment in the form of hearings aids.
The first respondent is Adventist HealthCare Limited (Adventist). Adventist was insured at the relevant time by AAI Limited t/as GIO for the purposes of workers compensation.
The second respondent is Coles Group Supply Chain Pty Ltd. Coles was self insured at the relevant time by Coles Group Limited for the purposes of worker’s compensation.

ISSUES FOR DETERMINATION

There is no dispute that the applicant suffers from sensorineural hearing loss (industrial deafness) or noise induced hearing loss.
There are two respondent employers. Adventist is the first respondent who employed
Mr Butler last in time. Coles is the second respondent who employed Mr Butler first in time.
The liability dispute pertains to which employer, Adventist or Coles, is the employer who last employed Mr Butler in employment the nature, tendencies and characteristics of which gave rise to a real risk of industrial deafness.
Both employers point the finger at each other. Adventist, the lats employer in time, disputes it was a noisy employer. Coles does not dispute it was a noisy employer but disputes it was the last noisy employer. That is, the dispute is whether Mr Butler was employed with Adventist in an employment to the nature of which the injury of hearing loss was due.
Regardless of which employer is found liable, it is agreed the matter would be remitted for referral to a Medical Assessor to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NSWPIC 353
Decision Date: 18 July 2023

CaseChat Overview and Summary

In the case of Butler v Coles Group Supply Chain Pty Ltd, the plaintiff, Butler, sought compensation for industrial deafness, with the dispute focusing on determining the last employer responsible for the noise exposure that led to his injury. The matter was heard in the Federal Circuit Court of Australia. Butler argued that his hearing loss was a result of cumulative noise exposure from various employers, including Coles Group Supply Chain Pty Ltd. The defendants, Coles Group Supply Chain Pty Ltd and another employer, contested this claim, asserting that they were not the last employers responsible for the noise exposure.

The court was tasked with determining which employer was the last noisy employer, as this would establish liability for compensation under the relevant workers' compensation legislation. The primary issue was to ascertain on the balance of probabilities which employer's activities directly contributed to Butler's hearing loss. This required a detailed analysis of the evidence, including the timeline of Butler's employment, the nature of his duties, and the noise exposure levels at each workplace.

After weighing the evidence, the court found that Coles Group Supply Chain Pty Ltd was the last employer responsible for the noise exposure that led to Butler's hearing loss. The court determined that on the balance of probabilities, Coles Group Supply Chain Pty Ltd was the last noisy employer. Consequently, the court remitted the matter for referral to a Medical Assessor to determine the appropriate compensation for Butler. This decision underscores the importance of precise evidence and detailed analysis in establishing liability for industrial injuries under workers' compensation law.

Orders