Chambers v Cascade Brewery Co Ltd

[1991] TASSC 79

Serial No 63/1991
List "A"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Chambers v Cascade Brewery Co Ltd [1991] TASSC 79; A63/1991

PARTIES:  CHAMBERS, Richard Andrew
  v
  CASCADE BREWERY CO LTD

FILE NO/S:  WC 119/1990
DELIVERED ON:  21 August 1991
JUDGMENT OF:  Zeeman J

Judgment Number:  A63/1991
Number of paragraphs:  13

Serial No 63/1991
List "A"
File No WC 119/1990

RICHARD ANDREW CHAMBERS v CASCADE BREWERY CO LTD

REASONS FOR JUDGMENT  ZEEMAN J

21 August 1991

1. The plaintiff has instituted proceedings against the defendant for workers' compensation and has invoked the jurisdiction which was conferred on this Court by s14(1) of the Workers' Compensation Act 1927 ("the 1927 Act"). That Act was repealed by the Workers Compensation Act 1988 ("the 1988 Act"), which commenced on 15 November 1988 ("the commencement date"). By virtue of s4(3) of the 1988 Act it does not apply in respect of an injury which occurred before the commencement date. Section 4(4) of the 1988 Act provides that the 1927 Act continues to apply in respect of an injury to which the 1988 Act does not apply by virtue of s4(3). This Court retains jurisdiction to deal with claims for compensation to which the 1927 Act continues to apply.

1. By his grounds and particulars the plaintiff alleges that at all material times he was a worker, within the meaning of the 1927 Act, employed by the defendant, and that between 1969 and 12 April 1990 he suffered industrial deafness caused by prolonged exposure to excessive noise in the environment in which he worked. He further alleges that as a result of having suffered industrial deafness, he has been partially incapacitated for work since 12 April 1990. He claims payment of weekly compensation for the period of his partial incapacity and payment of a lump sum pursuant to r7 of the First Schedule to the 1927 Act.

1. The plaintiff has closed his case. The defendant has elected to call no evidence and has submitted that it has no case to answer. That submission is upon the basis that if the plaintiff has any entitlement to compensation, then that entitlement does not arise under the 1927 Act. If the plaintiff has no entitlement to compensation under the 1927 Act, then the defendant has no case to answer. It matters not that the plaintiff might have an entitlement under the 1988 Act as this Court has no original jurisdiction under that Act. Such jurisdiction is conferred upon the Workers Compensation Division of the Court of Requests.

1. On the most favourable view of the evidence from the plaintiff's point of view it is capable of establishing the following facts:

1         The plaintiff has been in the continuous employ of the defendant since September 1969.

2         Whilst so employed the plaintiff has held various positions.

3         All positions held by the plaintiff up until 12 April 1990 required him to work in locations where he was exposed to very noisy machinery.

4         The noise emitted by such machinery has caused the plaintiff to suffer from industrial deafness, the severity of which has gradually increased from an 8% binaural loss measured in July 1986 to a 27% binaural loss measured in June 1989.

5         Immediately prior to 12 April 1990 the plaintiff continued in his employment with the defendant working in proximity to noisy machinery. His deafness had not then resulted in the loss of any time away from work or the loss of any salary or wages which but for his deafness he would have earned.

6         On 19 April 1986 there was a particularly noisy episode at the plaintiff's place of work when five compressors started up simultaneously and unexpectedly. From that time onwards, the plaintiff has suffered from a ringing in his ears.

7         In about 1986 the plaintiff's general practitioner provided a medical certificate of some description which at least suggested that it was desirable for the plaintiff to have a fortnight away from his work place to see whether the ringing noise in the plaintiff's ears would subside. Notwithstanding that certificate the plaintiff did not take time off work.

8         From about April 1987 the plaintiff made various approaches to his superiors seeking work which did not expose him to noise. Such approaches did not meet with immediate success but the plaintiff was led to believe that such work might be available at some time in the future. Medical advice obtained by the plaintiff was to the effect that he ought not to work in a noisy environment.

9         With effect from 12 April 1990, the plaintiff became a stores and purchasing officer at the defendant's brewery. He remains in that position. In that position he is not exposed to excessive noise.

10       It was reasonable for the plaintiff to move to a less noisy working environment. For him to remain in his former working environment was unreasonable, as the noise experienced there was productive of pain and exposed him to an increased risk of further hearing loss.

11       In his present position, the plaintiff earns a wage or salary which is considerably lower than that formerly earned by him and which he would have continued to earn had he remained in his previous position. The average loss of earnings is $220.56 per week.

1. It is necessary to consider some of the provisions of the 1988 Act. By virtue of s4(3) that Act does not apply in respect of an injury which occurred before the commencement date of that Act. It may be that the plaintiff has seen that provision as an impediment to taking proceedings under the 1988 Act upon the basis that his injury (which for the purposes of the 1988 Act includes a disease) occurred or substantially occurred prior to the commencement date. Consequently, the plaintiff may have seen s4(4) as preserving a right to proceed under the 1927 Act. That view is misconceived. In order to determine the date of the occurrence of the relevant injury for the purposes of s4(3), other provisions of the 1988 Act need to be looked at, and in particular s3(5). There can be no doubt that the condition of industrial deafness is a disease within the meaning attributed to that word by s3(1) of the 1988 Act. It follows that s3(5) has application to fix the date upon which the injury constituted by that disease is to be deemed to have occurred. Paragraph (b) of that subsection has no relevance unless the date referred to in para.(a) cannot be ascertained. It can be ascertained. On the evidence before me, it would be open for me to find that the plaintiff became partially incapacitated on 12 April 1990. It would not be open to me to find that he became incapacitated on any other day. The day on which a worker becomes totally or partially incapacitated by reason of an injury that is a disease is the day upon which he suffers an incapacity or reduced capacity for work. He cannot be said to have suffered such an incapacity or reduced capacity whilst he in fact remains at work performing his normal duties and earning his normal income. I understand that conclusion to be in accord with the conclusion reached by Underwood J in The Electrolytic Zinc Company of Australasia Ltd v Maister Serial No 23/1990 ([1990] Tas R 91) with which I respectfully agree.

1. I therefore conclude that it is not open to me to find that the plaintiff suffered an injury being a disease before the commencement date. It follows that if the plaintiff did in fact suffer such an injury, then s4(3) of the 1988 Act does not operate so as to make that Act inapplicable to that injury. That being the case, s4(4) of the 1988 Act has no application and the 1927 Act does not apply. If the plaintiff suffers from the condition of industrial deafness, and if that condition was productive of an incapacity as referred to in the evidence, then his claim for workers' compensation is within the jurisdiction of the Workers Compensation Division of the Court of Requests. It is not within the jurisdiction of this Court.

1. As s4(3) is expressed in negative terms, it might be argued that in an appropriate case s16(1)(c) of the Acts Interpretation Act 1931 could operate. In that context, the critical question to be answered is whether it is open to me to find that the plaintiff had any entitlement to compensation referable to his industrial deafness as at the repeal of the 1927 Act. Consideration of that question requires a consideration of a number of authorities. The leading case is Boucher v Motors Pty Ltd [1976] Tas SR 130. That was a case reserved for the consideration of the Full Court. The plaintiff in that case suffered from a partial loss of hearing which he claimed constituted industrial deafness caused by his employment with the defendant. The plaintiff continued to carry out his duties in the course of his employment with the defendant and was not prevented from carrying out such duties by reason of any loss of hearing or by reason of industrial deafness until he was involved in a motor vehicle accident wherein he suffered personal injury. He continued to be unable to carry out the duties required of him in his employment by reason of the injury sustained in the accident until he finally retired without having resumed his duties. The plaintiff claimed a lump sum under r7 and a sum representing the cost of a hearing aid.

1. After an exhaustive consideration of the relevant provisions of the 1927 Act and a number of authorities, Chambers J (with whom Rex AJ agreed) concluded that the plaintiff was not entitled to workers' compensation. Having so concluded, his Honour said, at p141:

"My judgment is to be taken as authority only for the proposition that a worker suffering from the condition known as industrial deafness caused by his employment but who has not been prevented thereby at any time from earning his full wages in that employment prior to his retirement on other grounds, is not entitled to compensation under the Workers' Compensation Act 1927."

As I understand his Honour's reasons for judgment, they proceeded upon the basis that the plaintiff's claim for compensation was one which, if maintainable at all, could only be maintained if the plaintiff was disabled as the result of a disease "arising out of and in the course of [his] employment" in the words of s5(1) of the 1927 Act, and that the word "disabled" meant a disablement involving incapacity to earn wages or full wages. The 1927 Act has not relevantly been amended since Boucher v Motors Pty Ltd (supra) was decided. On the face of it, it would appear to be fatal to the plaintiff's submission that he had a right to compensation arising under the 1927 Act which survived its repeal.

1. The matter was further considered by Cosgrove J in Petrov v A B Moore Pty Ltd [1981] Tas R 380 (NC4). In that case the plaintiff claimed workers' compensation for industrial deafness caused by the operation of a Ramset gun in a confined space. The defendant conceded that the plaintiff suffered from industrial deafness and that that condition had been contracted whilst the plaintiff had been in the employ of the defendant. Whilst in the employ of the defendant, the plaintiff had continued to be in receipt of his full wages and he had had no period during which he had an incapacity to earn wages or full wages. The plaintiff's employment with the defendant was terminated when the defendant dismissed him. He continued to be unemployed until the date of trial.

1. In the course of his judgment (which is not fully reported, so I refer to the unreported judgment, Serial No 819/81), his Honour said, at pp4–5:

"I am inclined to think that the true ratio of Boucher's case (supra) is that a distinction must be drawn between a condition which reduces the capacity to enjoy life and/or deprives the plaintiff of the amenities of life, including enjoyment of work, and a condition which reduces or impairs the plaintiff's capacity to work; that is, to earn income from his normal employment."

His Honour then concluded, at p5:

"In this case it is plain to me that the plaintiff, although he was earning full wages, was less useful as an employee from the time that he refused to operate the Ramset gun; and that upon his dismissal, his capacity to obtain employment was reduced. His total failure to look for employment is not fatal to his prospect of success. His condition was, and is, such that he could not reasonably be required to seek employment as a tradesman prepared to do all that a fully fit tradesman does. He would have been justified in seeking only those positions compatible with his condition. I am satisfied that he was disabled in the sense that the Chief Justice had in mind in Boucher's case because his ability to perform his trade was reduced, and remains reduced, and his capacity to earn income is therefore reduced. Upon being dismissed, his prospects of obtaining employment were and remain less than they would otherwise have been for a number of reasons arising from his ear condition. In that sense he was, and is in my view, disabled and therefore is entitled to compensation in the sum agreed by counsel."

1. That decision can be explained upon the basis that his Honour was dealing with a case where the plaintiff was suffering from industrial deafness and not then earning wages. It then became a question of fact to determine whether the disease had had the effect of reducing the plaintiff's capacity to earn full wages. If, as a matter of fact, he suffered from such incapacity (and his Honour held that he did) then there was disablement in the sense referred to by Chambers J for the purposes of s5(1) of the 1927 Act.

1. Counsel sought to avoid the effect of Boucher v Motors Pty Ltd (supra) and the provisions of s3(5) of the 1988 Act by arguing (as has been pleaded) that the plaintiff suffered injury by accident. I do not consider that that assists the plaintiff. The only condition alleged by the plaintiff to have been suffered by him is industrial deafness of gradual onset. If that is to be categorised as a disease arising out of and in the course of his employment, then there can be no compensation in the absence of disablement. Whilst it might once have been arguable that a condition of gradual onset, such as the plaintiff's industrial deafness, could be described as being personal injury by accident in the sense that the condition was caused by a large number of "accidents", that argument is no longer maintainable. It is not suggested that the one particular episode of noise specifically referred to as having given rise to a ringing in the ears was in any way the cause of the plaintiff's deafness, nor indeed the cause of any sudden deterioration in his hearing. The authority of The Public Trustee for the State of Western Australia v The State Energy Commission (1978–1979) 142 CLR 211, particularly per Gibbs J (as he then was) at pp225–227, is sufficient to dispose of the plaintiff's argument. At the time the 1988 Act came into force the plaintiff had no existing cause of action for or right to compensation under the 1927 Act.

1. On any view of the facts, the plaintiff has never had any entitlement to compensation under the 1927 Act. It is such compensation which is sought to be recovered and it is only an action for such compensation which is within the original jurisdiction of this Court. It follows that the defendant has no case to answer.