Coles Supermarkets Australia Pty Limited v Moyes - [2023] NSWPICPD 73

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Coles Supermarkets Australia Pty Limited v Moyes [2023] NSWPICPD 73
APPELLANT:	Coles Supermarkets Australia Pty Limited
RESPONDENT:	Trina Moyes
INSURER:	Coles Group Limited
FILE NUMBER:	A1-W3929/22
PRESIDENTIAL MEMBER:	Acting Deputy President Geoffrey Parker SC
DATE OF APPEAL DECISION:	13 November 2023
ORDERS MADE ON APPEAL:	1. The Member’s Certificate of Determination dated 18 November 2022 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – hearing loss – section 17 of the Workers Compensation Act 1987 – whether worker’s employment was noisy – sections 254 and 261 of the Workplace Injury Management and Workers Compensation Act 1998
HEARING:	On the papers
REPRESENTATION:	Appellant:
Ms N Compton, counsel
Turks Legal
Respondent:
Mr M Bechelli, solicitor
Whitelaw McDonald
DECISION UNDER APPEAL
MEMBER:	Mr Philip Young
DATE OF MEMBER’S DECISION:	18 November 2022

INTRODUCTION

This is an appeal from a Certificate of Determination dated 18 November 2022 in which the Commission determined:
“The [appellant] is liable to pay the costs of and incidental to the provision of bilateral digital hearing aids as recommended by Dr Macarthur and quoted by Bay Audio.”
Oversimplifying, the point before the Member and in the appeal is whether the Member was correct to conclude that the respondent’s employment with the appellant exposed her to noise of sufficient magnitude and duration as to occasion her industrial deafness requiring bilateral hearing aids to ameliorate the disability.
I observe that the ‘guiding principle’ embodied in s 42 of the Personal Injury Commission Act 2020 (the 2020 Act) seems to have got lost in the present matter.
The amount involved is $5,910.
This modest amount has involved a great deal of professional endeavour. The hearing before the Member could not be completed on the allocated day. The appellant and the respondent each filed written submissions. The transcript of the oral submissions occupied 21 pages, and the Member’s written reasons for decision were eight pages. The six grounds of appeal are now supported/opposed by written submissions from the appellant and the respondent. To these endeavours must be added the present reasons for determination.
For the reasons that follow, the appeal is dismissed and the Certificate of Determination of the Member confirmed.

THE MEMBER’S STATEMENT OF REASONS

The Member observed that there was no issue on the medical evidence that the respondent’s audiograms demonstrated that she required hearing aids. There was furthermore no issue that the loss of hearing was noise induced.
The appellant identified the issues for determination before the Member as follows:
“(a) whether a valid notice of injury was given to the [appellant] – s 254 of the Workplace Injury [Management] and Workers Compensation Act 1998 (1998 Act);
(b) whether a valid notice of claim made [sic – was made] on the [appellant] – s 261 of the 1998 Act;
(c) whether the [respondent’s] employment with the [appellant] was employment to the nature of which the injury was due, so as to determine the last noisy employer, and
(d) whether the employment with the [appellant] had the necessary tendencies, incidences and characteristics to [sic] which would have exposed the [respondent] to industrial deafness and the nature of that exposure.”[1]
[1] Moyes v Coles Supermarkets Australia Pty Ltd [2022] NSWPIC 642 (reasons), [3].
The appellant made an application to cross-examine the respondent regarding the nature of the work she was undertaking and the periods of time she was doing the work. The Member took the view that there was ample material already in evidence and it was unnecessary to submit the respondent to cross-examination.[2]
[2] Reasons, [7].
The Member summarised the appellant’s case with respect to (a) and (b) (ss 254 and 261 of the 1998 Act) as a dispute that the worker was not aware of her potential claim for industrial deafness until she saw her lawyer. The appellant submitted that was “untrue” because in her role as a “workers compensation injury management consultant” the respondent would have been aware of the requirement to report injuries as soon as practicable.[3]
[3] Reasons, [10].
The evidence from the notice of injury form indicated that the respondent was a “Team Leader (Injury Management Adviser)”, a proposition confirmed by the worker in a statement dated 25 October 2021. Subsequently, the respondent was employed as a business manager, a rehabilitation manager and a manager/supervisor employed by the State Insurance Regulatory Authority (SIRA).
The respondent’s statements dated 6 December 2021[4] and 21 February 2022[5] recorded that in 2019 her husband had suggested that there may be something wrong with her hearing. She attended her family doctor, Dr Paul, on 26 July 2019, mentioning her husband’s concerns. The doctor gave her a referral to Australian Hearing. She did not act on the referral at the time, but in 2021 consulted Bay Audio for assessment.
[4] Application to Resolve a Dispute (ARD), p 21.
[5] ARD, p 239.
The Member found:
“16. The [respondent’s] awareness of her ability to function effectively because of her hearing arose according to her with the onset of Covid and the requirement that she work from home effectively with computers and telephones. It was not until she consulted Bay Audio in about 2021 that it was suggested to her that her hearing loss might have a Workers Compensation connection.
17. The [appellant’s] assertion that the [respondent] was a Workers Compensation Injury Management Consultant appears to be a broad-based implication that she has knowledge of the need to report injuries as soon as practicable and so she should have reported her own injury. The [respondent] has been described as a Team Leader in injury management and is qualified as an occupational therapist, not as a Workers Compensation Lawyer, or specialist Workers Compensation legal consultant. In the [respondent’s] case, she may have been aware of the requirement to report injuries but the effect of her evidence is that for some time she thought her hearing loss (which her husband had to alert her to) was simply age-related and on her evidence she was in fact ignorant of any potential connection between any risk imposed by her employment and her gradual onset of hearing loss.”
The appellant directed the Member to the medical notes and a medical certificate of Dr Paul dated 26July 2019[6] regarding concerns about the respondent’s hearing, as well as an entry of 14 January 2021 [sic, 19 January 2021][7] where Dr Jogessar, Doctor of Audiology at Bay Audio, noted binaural hearing loss and that she would be “looking into a potential Workcover claim to assist her with ongoing care” as a basis for discounting the worker’s evidence.
[6] ARD, p 104.
[7] ARD, p 226.
The respondent’s submissions highlighted the distinction between the concepts of “ignorance” in ss 254 and 261(3) and “awareness” in s 261(6) of the 1998 Act and that ss 261(4) and 261(6) can be pursued simultaneously. The Member said that it was “clear” that awareness for the purpose of s 261(6) is a more difficult concept in the context of industrial deafness than it is with respect to injuries from specific trauma or injurious incident.
After referring to the respondent’s statements of 6 December 2021 and 21 February 2022 and to the discussion the respondent had with Ms Walker of Whitelaw McDonald Lawyers on 27 April 2021, who confirmed that Dr Macarthur, ear, nose and throat surgeon, “was of the opinion that [she] was suffering from hearing loss that had been caused by employment with Coles Supermarkets Australia Pty Limited” the Member concluded:
“22. It was after the receipt of Dr Macarthur’s report that the [respondent’s] solicitors made the claim on the [respondent’s] behalf dated 1 June 2021. I am of the view that the [respondent’s] awareness in an objective sense but considered in relation to her personal knowledge occurred in April 2021. Up until that point I am satisfied that the [respondent] on her own evidence was ignorant of her rights to be derived from the legislation and the obligations imposed by it because although on the facts the [respondent] had been aware of gradual deteriorations in her hearing, she was not aware of the connection between that deterioration and the real risks of her work.
23. In terms of both s 254 and s 261(4) of the 1998 Act the [respondent] was ignorant of her entitlement and therefore there has been no relevant failure to make a claim in time nor give notice of injury.”
The Member adverted to the submission made by the respondent that there was a potential to allow the respondent to bring the claim on the basis that the appellant had not complied with s 231 of the 1998 Act. The Member did not, find it necessary to deal with that argument.
The Member dealt with the issues of exposure and last noisy employer – issues (c) and (d) set out at [8] above – commencing at paragraph [25] of the reasons.
He noted that from her statement of 21 February 2022, the respondent’s main role was to provide practical assistance for injured workers. From that statement he recorded that 50% of her time was spent in an office environment “but she was also required to travel to various worksites, for example distribution centres, to provide on-the-job assistance.”[8]
[8] Reasons, [27].
In her earlier statement, the respondent had said that she had been exposed to noise in the loading docks of a number of stores and that she had been further exposed to the “noise of floor cleaning machines, cardboard packages being split open, announcements on loudspeakers and the occasional confrontation with fellow workers and customers”. The respondent estimated that she was exposed to loud noise for about 3 or 4 hours a day.
The Member said:
“29. As pointed out in the [respondent’s] submissions in reply, Dr Macarthur had both histories and provided a supplementary report after having seen the further [respondent’s] statement. Additionally, the [appellant’s] expert noise assessment report, although perhaps not of significant weight because it is unclear whether the [respondent] worked at the particular facility referred to, does demonstrate the types of noises the [appellant] knew can be experienced in loading docks. The [respondent’s] evidence is of exposure to excessive noise in the [appellant’s] loading docks and the [appellant’s] own assessment report adds some corroboration to the [respondent’s] claims.”
The evidence of the appellant’s witness, Susie Morando, that the workplace was not a noisy environment was rejected on the basis that the witness relied on her “understanding” and belief as to where the respondent was working. The Member accepted the respondent’s submission “that Ms Morando’s evidence involves speculation and should be given little weight”.[9]
[9] Reasons, [30].
The other lay evidence advanced by the appellant was in large part rejected because it was the subjective views of those witnesses as to the degree and level of noise and because the evidence lacked clarity as to whether the sites were the same as the sites the respondent was required to attend. The Member accepted part of the evidence of Mr Amini who said that he needed to project his voice “because there are people working in the area, there is a PA system and there is Coles radio.”
The Member accepted the respondent’s submission “that hearing protection was available in the plant room [which] corroborate[d] the fact that there was a risk of hearing loss when in the plant room”.[10]
[10] Reasons, [32].
The Member acknowledged the appellant’s reliance on the Injury Management Adviser Activity Record and List of Responsibilities as showing that the respondent’s store visits were only a very small part of her role “with administrative tasks relating to the role taking up the majority of the work.”
Mr Amini, who held a role similar to that of the respondent, said that he was required to visit various sites and to enter into the plant room. “Mr Amini [gave] evidence that the [appellant] required persons using the plant room to use earplugs.”
The Member said:
“As submitted by the [respondent], Mr Amini’s evidence supports the [respondent] in that one would infer that the need to wear earplugs was because the plant room was a place where the [respondent] was at real risk of hearing damage even if this be for very short periods of time.”[11]
[11] Reasons, [34].
There was “no serious debate with Dr Macarthur’s opinion” by Dr Howison, qualified by the appellant,[12] because the latter “simply suggest[ed] that there may be some factual discrepancy between the evidence of the [respondent] and Mr Amini.” It followed that Mr Amini’s account was supportive of the [respondent’s] account of exposure to excessive noise.[13]
[12] Report dated 8 December 2021, ARD, p 43.
[13] Reasons, [35].
Dispositive of these two issues (c) and (d), the Member said:
“The [respondent’s] statement of 5 August 2022 provides a detailed explanation from the [respondent] of the various stores she was required to attend and exposure to garbage compactors, the noise of forklift trucks in back docks, exposure to refrigerator noise and trucks, noise from machinery used for removing tires at K-mart Tyer and Auto, and at the Somersby Distribution Centre noise that was ‘so loud that it was necessary to shout in order to have a conversation with a person standing about one metre away’.”[14]
[14] Reasons, [36].
The respondent was exposed to noise in her employment which had the necessary tendencies, incidence and characteristics to present the respondent with a real risk of suffering industrial deafness. The Member was satisfied that the appellant was the respondent’s last noisy employer.

THRESHOLD MATTERS

The written decision was published on 18 November 2022 and the appeal application was made within time and s 352(4) of the 1998 Act is satisfied. The amount in issue is $5,910 and accordingly the monetary threshold is satisfied (s 352(3)).

ON THE PAPERS

The appellant submits that it is a matter for me to determine whether or not an oral hearing is required. The respondent makes no submissions with respect to that issue. I am satisfied that the material and submissions are sufficient to enable me to determine the matter without an oral hearing.

JURISDICTION

The jurisdiction I exercise under s 352(5) of the 1998 Act is a jurisdiction to correct error. It is not a jurisdiction to conduct a review of the Member’s determination. It follows that the jurisdiction to intervene is not engaged unless the appellant establishes error as to fact, law or discretion.

GROUNDS OF APPEAL

The appellant identifies and relies upon six grounds of appeal, namely:
(a)    The appellant was denied procedural fairness when the Member refused to allow cross-examination of the respondent worker on evidence which was evidence that was ultimately accepted completely by the Member without being tested (Ground One).
(b)    The Member made findings of fact which were not open to him on the evidence and in doing so fell into error (Ground Two).
(c)    The Member failed to apply the relevant test correctly and in doing so made an error of law (Ground Three).
(d)    The Member failed to provide sufficient reasons with respect to the determination of the matter, and did not consider relevant evidence with respect to the critical aspects of the case (Ground Four).
(e)    The Member failed to consider all available evidence in providing his determination (Ground Five).
(f) The Member failed to determine s 254 and s 261 of the 1998 Act in accordance with the law (Ground Six).

Ground One – Denial of procedural fairness in failing to allow cross-examination of the respondent worker

Appellant’s submissions

The appellant submits that the application to cross-examine was intended to explore the nature of the work and locations where the respondent worker was working and the period during which the worker alleged that she had been exposed to a noisy environment.
The appellant makes three basic submissions with respect to this ground of appeal.
Firstly, the respondent’s solicitor had previously consented to cross-examination during an initial telephone conference and did not object to the request for cross-examination in an email to the appellant’s solicitor dated 1 August 2022. However, at the hearing counsel for the respondent did object.
Secondly, the Member determined the application for cross-examination against the appellant on the ground that he had in his view all the information he required to determine the matter. However, the Member did not articulate what information he considered at the time to be sufficient to determine the matter “noting that this was before the Member had heard the submissions of either of the parties”.[15]
[15] Appellant’s submissions, [4.1.4]–[4.1.5].
Thirdly, the Member did not provide in his written determination that there had been an application to cross-examine the worker which he declined nor the reasons for that application being declined in writing.
The appellant asserts that had it been able to cross-examine the respondent, “the extent of the worker’s exposure, timing and nature would have been exposed.”[16]
[16] Appellant’s submissions, [4.1.7].
The appellant refers to, in the alternative, an argument in the event that the ruling by the Member was interlocutory, that leave should be granted to allow the appeal with respect to this ground of appeal to proceed. In my view, the determination being final it follows that the intermediate procedural rulings are properly subject to the rights of appeal and no leave is required.

Respondent’s submissions

The respondent submits that cross-examination does not form part of the “usual procedure” in the Commission.
The respondent submits that:
“an application for cross-examination of a worker must be based upon the necessity to resolve a factual dispute that is of material significance to the outcome of the proceedings. In this regard what the appellant failed to do before the Member was to make submissions that identified those parts of the appellant’s and respondent’s evidence that were in direct conflict, and which were of material significance to the outcome of the proceedings, such that findings in relation to those aspects of the evidence could not be made without the benefit of cross-examination i.e., identify those parts of the evidence which as referred to in paragraph 4.1.4 of the appellant’s submissions were of vital importance to the central issue for determination—being was the employment noisy and what was the extent of the respondent’s exposure.”
More fundamentally, however, the respondent submits that because the onus of proof rested with the worker, if there was a conflict in the evidence that was of material significance which could only be resolved by cross-examination, then the onus was on the worker to have made an application to the Member to cross-examine the appellant’s witnesses.

Consideration

Cross-examination in the Personal Injury Commission is by leave granted by the Member having regard to the statutory context in which the matter is determined.[17]
[17] Aluminium Louvres & Ceilings Pty Limited v Xue Qin Zheng [2006] NSWCA 34.
The exercise of a procedural discretion by the Member required to determine the matter at first instance is not easily overturned or reversed on appeal.
Dealing with the argument advanced by the appellant that the respondent’s solicitor had consented to cross-examination and not objected to cross-examination, whereas at the hearing counsel for the respondent worker did object. There are three answers to this submission:
(a)    there was no prejudice to the appellant by the reversal of the respondent’s position;
(b)    it does not appear to me having regard to the transcript that the appellant informed the Member of the prior consent to the cross-examination by the worker’s representatives, and
(c)    it was in any event a matter for the Member’s discretion and that discretion could not have been fettered by the parties’ agreement or non-agreement.[18]
[18] In the Will of Gilbert (1946) 46 SR(NSW) 318

The information relied upon by the Member, as his written decision makes clear, was the entirety of the material advanced by the appellant and the respondent. The Member made clear at [8] of the reasons the documents in evidence before him. It is correct that he made a determination before he had received the parties’ submissions, but the oral submissions as to the application for cross-examination were full and complete at the time he made that determination. He could anticipate submissions based on the evidence.
Furthermore, given that the issue of cross-examination was prefatory to the final hearing, it was appropriate that short cursory reasons be given. I do not think that the Member was required to do more than the cursory expression of reasons provided in the transcript.[19] In this context it is also appropriate to have regard to s 42(1) of the 2020 Act directing the Commission to proceed expeditiously and inexpensively to determine the real issues between the parties.
[19] Transcript of proceedings 20 September 2022 (T), T14.33–15.1
Contrary to the appellant’s submission at [4.1.6], the Member did record in his written reasons at [7] that the appellant had made an application to cross-examine the respondent regarding the nature of the work she was undertaking and the time and periods of time she was doing the work. He recorded that in his view “there was ample material already in evidence and it was unnecessary to submit the [respondent] to cross-examination.”
I would add this in relation to this complaint made by the appellant that it was denied procedural fairness, in that it was not permitted to cross-examine the worker:
(a) The absence of cross-examination means that the appellant was at liberty to assert that the respondent’s evidence was inconsistent, unreliable or otherwise should not be accepted, notwithstanding that these propositions had not been put to the worker in cross-examination. The rule in Browne v Dunn[20] did not apply in circumstances where the application for cross-examination has been denied. This is a considerable advantage because the witness is deprived of the opportunity to explain inconsistency and the like.
(b) The procedures in the Commission require the evidence to be disclosed in advance. This means that each party has an opportunity to answer, explain and/or contradict evidence to be relied upon against the party. The disclosure in advance of such evidence enhances the efficiency with which the parties and thus the Member can be directed to the matters truly in issue. Pre-hearing disclosure is intended to enhance the merit based determination of disputes before the Commission.
[20] (1893) 6 R 67.
I am not persuaded that the appellant has demonstrated the Member erred in his discretion to refuse cross-examination of the respondent.
Ground One of the appeal is dismissed.

Ground Two – Finding of material facts which were not open to the Member and incorrect on the evidence

Appellant’s submissions

The appellant submits that the Member incorrectly referred to the respondent worker as being employed by the appellant as an occupational therapist. This is said to be “factually incorrect” and that while “perhaps nothing falls” on this, the respondent’s role was “fundamentally entrenched within the workers compensation scheme”.
The Member found the respondent to be ignorant of her rights and obligations to provide notice. The appellant’s submission is that given the respondent’s qualification and role in injury management, and the further finding that the respondent was aware that notification of injury was required, the Member should not have made the finding in favour of the respondent because “there [was] no basis in the evidence” for it.
The appellant refers to the worker’s statement of 6 December 2021 and observes there was no evidence regarding what occurred between 27 April 2021 and when the claim was made on or about 1 June 2021. Furthermore, the appellant submits:
“However, there is also no information as to what the Respondent worker was advised between 28/1/2021 and 27/4/2021 to which the Member could form the conclusion on the facts before him that she was ‘ignorant of her rights’.”[21]
[21] Appellant’s submissions, [4.2.8].
The appellant’s submission follows:
“The only conclusion which was open to the Member on the evidence is that the claim was not investigated until 2021. The Respondent worker is silent on what rights she was aware of, in all of her statements. However, given that the Respondent worker must have been aware of at least some workers compensation legislation given her role of assisting workers for the Appellant’s organisation (ARD 239) (see also diary entries attendances on workers compensation legislation) the Member in his determination has made findings which were not open to him on the evidence and those findings were fundamental with respect to the determination of the matter.”[22]
[22] Appellant’s submissions, [4.2.9].
The appellant submits that the Member was in error in drawing the inference that because the plant room had hearing protection, this signified that there was a risk of hearing loss. The appellant submits that conclusion “was not open to the Member to find” because “[t]he provision of hearing protection is not conclusive evidence that there was a risk of hearing damage.”[23]
[23] Appellant’s submissions, [4.2.10].
The appellant submits there was no evidence however as to how often the respondent worker went into a plant room, whether every day or week or once in her employment, nor the length of time that she spent in the actual plant room. The actual exposure to the “noisy employment environment” is a fundamental issue which was not determined by the Member causing him to fall into error.

Respondent’s submissions

The respondent submits that whatever the respondent’s occupation, she did not have the qualifications of an ear, nose and throat specialist and therefore did not have expertise to diagnose her condition.
Further, what happened between 27 April 2021 and 1 June 2021 is of no relevance because the Member found that up until that point, the respondent was ignorant of her rights under the legislation and the obligations imposed by it.
The appellant’s submission that the respondent worker must have been aware of at least some workers compensation legislation given her role assisting workers is speculation. Even if the worker were aware of some of the provisions of the legislation, that is no basis for inferring she was aware of the provisions relating to the giving of notice of injury or the making of a claim. Those provisions would not be expected to be of concern to the worker having regard to the nature of her occupation.
The inference from the provision of hearing protection that the plant room was noisy was open to the Member. It can be reasonably inferred that the hearing protection was undertaken as a result of some degree of investigation and deliberation.

Consideration

The Member’s determination on this issue is at [22]–[23] of the reasons where the following appears:
“22. It was after the receipt of Dr Macarthur’s report that the [respondent’s] solicitors made the claim on the [respondent’s] behalf dated 1 June 2021. I am of the view that the [respondent’s] awareness in an objective sense but considered in relation to her personal knowledge occurred in April 2021. Up until that point I am satisfied that the [respondent] on her own evidence was ignorant of her rights to be derived from the legislation and the obligations imposed by it because although on the facts the [respondent] had been aware of gradual deteriorations in her hearing, she was not aware of the connection between that deterioration and the real risks of her work.
23. In terms of both s 254 and s 261(4) of the 1998 Act the [respondent] was ignorant of her entitlement and therefore there has been no relevant failure to make a claim in time nor give notice of injury.”[24]
[24] Citing Gregson v L & MR Dimasi Pty Limited [2000] NSWCC 47.
The appellant’s first complaint with respect to this ground of appeal is that the Member’s statement at [1] (that the respondent was employed as an occupational therapist) is factually incorrect. However, the appellant’s witness, Susie Morando, says at paragraph [23] of her statement dated 4 February 2021:
“Trina was hired as a professional Occupational Therapist. This training was outside of Coles.”[25]
[25] Reply, p 16.
Furthermore, the respondent’s Curriculum Vitae indicates that she has a Bachelor of Applied Science (Occupational Therapy).[26]
[26] Reply, p 36.
The Member may have been confused, but as the appellant notes “nothing falls on this”.
The second ground of complaint is that there was no evidence for the conclusion that the respondent was ignorant of her rights to be derived from the legislation and the obligations imposed by it.[27]
[27] Appellant’s submissions, [4.2.5].
The Member’s conclusion was based on the reasonable proposition that until Dr Macarthur’s report dated 6 April 2021[28] had been received by the respondent’s solicitors and she received advice from Ms Walker of Whitelaw McDonald, the respondent did not know that she had had an injury in the course of employment with Coles.
[28] ARD, p 4.
As the Member correctly points out, although the respondent was aware of the gradual deterioration in her hearing, she was not aware of the connection between the deterioration of the hearing and the risk to her occasioned by the employment.
Furthermore, the date of injury for the purpose of the respondent’s claim is determined by s 17 of the Workers Compensation Act1987 (the 1987 Act); a deeming provision fraught with legal and medical complexity.
The respondent’s entitlement to compensation with respect to her loss of hearing depended on satisfaction of s 17 of the 1987 Act. The identification of injury in the form of a loss of hearing and the further determination of a potential to claim compensation from Coles required, at the very least, consideration as to the fact and degree of hearing loss; the cause of the hearing loss by exposure to noise; and the identification of the last noisy employer as Coles.
It is, with respect, not unreasonable to accept that even a knowledgeable injury management officer would not without professional assistance (both medical and legal) conclude that she had an entitlement to compensation under s 17 and thus an obligation to give notice under s 254 and s 261.
There is no evidence as to what the respondent may have known.
The Member concluded that it was not until Dr Macarthur’s report and the advice from Whitelaw McDonald that the respondent could be said to be aware of her right to claim compensation with respect to her deteriorating hearing. No error is demonstrated in the Member’s conclusion in this regard.
The inference to be drawn from the provision of hearing protection with respect to the plant rooms is that as a conscientious employer, the appellant made available hearing protection because the noise level was likely to expose persons who entered the plant room to a risk of harm. The Member drew that inference which was open to him. A conclusion to the contrary would be difficult to support.
Ground Two of the appeal is dismissed.

Ground Three – Failure to apply the relevant test regarding hearing loss

Appellant’s submissions

The appellant submits that there was no evidence of the noise levels to which the respondent was exposed, the periods of that exposure or whether those two factors were sufficient to result in the employment being employment to the nature of which boilermaker’s deafness was due.
The test for whether the worker’s employment is employment to the nature of which boilermaker’s deafness is due is whether the tendencies, incidents or characteristics of that employment were of a type which could give rise to boilermaker’s deafness.[29]
[29] Blayney Shire Council v Lobley (1995) 12 NSWCCR 52.
The worker is required to prove that the employment involves a real, as opposed to a theoretical, risk of hearing loss. The level of noise to which a worker is exposed and whether that level is sufficient to cause boilermaker’s deafness is not evidence which can be given by a lay person.
In this matter, the only evidence that the noise levels that this worker was exposed to were sufficient came from Dr Macarthur, who relied solely on the lay evidence of the worker.
The appellant submits that there was therefore no evidence that the noise level to which the respondent worker was exposed was sufficient to result in her employment being employment to the nature of which the boilermaker’s deafness was due. This submission is expanded to suggest that there is no evidence as to whether the employment exposed the worker to a noise level of 85dBA for more than 8 hours a day.
The appellant refers to the limitation on the tribunal’s ability as an expert tribunal[30] and to the principles enunciated in Makita (Australia) Pty Ltd v Sprowles,[31] to support the proposition that the “history provided in Dr Macarthur’s report is almost verbatim as the worker’s statement” and accordingly inadequate to support the opinion.
[30] Hevi Lift (PNG) Limited v Etherington [2005] NSWCA 42, [82]; Wallaby Grip v Macleay Area Health Service (1998) 17 NSWCCR 355, [20].
[31] (2001) 52 NSWLR 705.
The appellant makes the point that the evidence came only from the worker who was seeking to prove her employment was indeed noisy, and that the respondent was unable to test that evidence by cross-examination.
It further submits that Dr Macarthur does not opine as to the extent of the exposure to the noise, was it 5 minutes or 5 hours. The appellant submits:
“The test makes it clear that it [is] insufficient to establish that there was a noisy environment, the worker must also establish on the evidence that her exposure over certain periods caused the deafness. The real question which ought to have been asked by the Member was how noisy was the employment and over what periods was she exposed to that noise, noting in particular the nature of her role being substantially administrative in nature.”[32]
[32] Appellant’s submissions, [4.3.10].
The appellant submits:
“Although it is not necessary to prove that the employment has caused the hearing loss, the comments in Costello are equally applicable to a claim under section 17 of the 1987 Act, which involves establishing that the worker was employed in employment to the nature of which boilermaker’s deafness was due. The nature and quality of the evidence needed for a worker to succeed will depend on the circumstances of each case, in this case it was only the worker’s own evidence.”[33]
[33] Appellant’s submissions, [4.3.13], citing Costello v Citra Constructions Limited [1990] FCA 9; 22 FCR 247.

Respondent’s submissions

The respondent quotes from Dawson & Ors t/as The Real Cane Syndicate v Dawson.[34]
[34] [2008] NSWWCCPD 35, [40]–[48].
The respondent submits that the proof of noisy employment in relation to the worker’s employment is contained in the reports of Drs Macarthur and Howison.
The respondent says that Dr Macarthur’s second report dated 6 June 2022[35] addressed the matters contained in the respondent’s statement dated 21 February 2022 and that from that material the following matters are apparent:
“·     That over the 8 years in which she was employed by Coles, [the respondent] spent at least 50% of her time in the field, there were three large distribution centres she was required to attend and these centres were engaged in receiving and distribution of goods involving trucks, forklifts and other lifting devices,
·        She found the distribution centres were noisy as there were forklifts and pallet movers where loud, audible alarms or horns or peeps were often used to warn workers of their presence,
·        … often there were multiple forklifts and other automated lifting devices, all of which had alarm mechanisms,
·        The noise would be compounded by other factors such as announcements and truck movements, the noise being such that Ms Moyes had to raise her voice significantly to speak to fellow workers standing only one metre away from her,
·        She was also exposed to the noise of pallets being dropped, collisions between vehicles and objects and the occasional use of tools and other [percussive] implements,
·        There were also specific times when excessive noise would be generated e.g. the doors of large trucks being closed, engines running while trucks waited to enter the docks, or braking/releasing of brakes, the trucks would also activate their horns when reversing,
·        She was exposed to loud noise when she would go onto the trucks to assess the work methods used and the safety of the drivers.”[36]
[35] ARD, p 242.
[36] Respondent’s submissions, [20].
The respondent submits:
“Having regard to the above, it is submitted that there was evidence upon which Dr Macarthur based the opinion contained in the last paragraph of the first page of that report i.e. ‘In my opinion Mrs Moyes’ employment was employment of the nature to which the disease of boilermakers deafness was due and thereby its tendencies, incidences, and characteristics have been such as to give rise to a real risk of boilermakers deafness or deafness of a similar origin’.”[37]
[37] Respondent’s submissions, [21].

Consideration

The Member found, relying upon the respondent’s statement, that her main role was to provide practical assistance for injured workers and that 50% of her time was spent in an office environment but that she was also required to travel to work sites, for example, distribution centres, to provide on the job assistance.[38]
[38] Reasons, [27].
The Member would appear therefore to have accepted the description of her work experience given by the respondent.[39]
[39] See reasons, [28]–[29].
The Member rejected the evidence of Ms Morando that the workplace was not a noisy environment because she “refers to [her] ‘understanding’ and various beliefs about where the [respondent] was working”. Further, the Member accepted the respondent’s submission that Ms Morando’s evidence involved speculation and should be given little weight. That conclusion was open to the Member.
He said of the other evidence given by the appellant’s witnesses that it “involves subjective views of noise and indeed it is unclear whether any of the sites were those sites which the [respondent] was required to attend. Mr Amini refers to a need to project his voice ‘… because there are people working in the area, there is a PA system and there is Coles radio’.”[40]
[40] Reasons, [31].
Dr Macarthur’s report of 6 April 2021 contains objective corroboration of the respondent’s claim in the form of the audiological testing. The pure-tone audiogram showed “a bilateral mild to moderately severe high tone sensori-neural deafness, the pattern of the audiogram being consistent with exposure to loud noise.”[41]
[41] ARD, p 5.
Dr Howison said:
“I note the pure tone audiogram carried out by Dr Macarthur is consistent with the type of audiogram you would see in occupationally induced hearing loss.”[42]
[42] ARD, p 44.
Dr Macarthur obtained a history that the respondent was not engaged in any employment after her employment with the appellant that involved any significant noise exposure. Dr Howison, having concluded the respondent’s audiogram was consistent with noise induced hearing loss, says:
“I note that Ms Moyes has had no significant noise exposure since leaving Coles in 2012. Ms Moyes does not have sufficient recreational noise exposure, according to Dr Macarthur to account for the pure tone audiogram carried out by Dr Macarthur.”[43]
[43] ARD, p 45.
Dr Howison himself excluded use of a mobile phone or headset as being noisy.[44]
[44] ARD, p 47.
On the evidence not in dispute, the respondent has bilateral sensori-neural hearing loss due to exposure to occupational noise in which the last noisy employment (indeed the only noisy employment) was with the appellant.

Doctors and medical witnesses as part of their daily practice hear and interpret histories and symptoms provided by their patients as part of their diagnostic and treatment processes. When the doctor undertakes such an interpretive process, the resulting medical opinion is expert evidence. It is not just lay evidence from the patient, though it is based in part on the history given by the patient.
Drs Macarthur and Howison interpreted the history given to them together with the other material to form their opinions. It was open to the Member to accept the respondent’s evidence and to combine that with the medical evidence to the effect that the respondent had noise induced bilateral sensori-neural hearing loss.
In my view, the Member was not in error in his acceptance of the respondent’s evidence and the conclusions of the medical witnesses. The finding that the appellant was the last noisy employer for the purpose of s 17 of the 1987 Act based on that evidence was open to the Member and is not shown to be in error.
Ground Three of the appeal is dismissed.

Ground Four – Failure to give adequate reasons and reasoning process in his determination

Appellant’s submissions

The appellant submits that the Member did not expose his reasoning process with regard to the ultimate determination of the matter. The Member was entitled to accept some parts of the witnesses’ evidence and reject other parts, but he was required to give reasons for doing so. The appellant submits that the Member did not deal with all of the evidence and that he failed to provide an explanation or any adequate reasons for rejecting other evidence and not considering other parts.
The appellant accepts that the Member does not need to consider and analyse every single page of evidence, but submits he was required to consider the evidence and explain the reasoning process by which came to the conclusions he did. It is submitted that the Member did not do this.
Further, given that the issue of the nature and extent of the noise exposure was such a fundamental issue in this case, the Member was obliged to carefully assess the respondent worker’s evidence in order to determine its reliability.[45]
[45] Appellant’s submissions, [4.4.4], citing Malco Engineering Pty Limited v Ferreira (1994) 10 NSWCCR 117 (Ferreira).
The appellant’s concluding submission is:
“In the 11 paragraphs [of the Member’s reasons which deal with the evidence of noisy employment] referred to above the Member has not established the basis of his reasoning that the employment in issue was noisy nor the extent to which the worker was exposed to that noise. It follows that his conclusion that the employment had the tendencies[,] incidences and characteristic[s] to present the Respondent worker with a real risk of suffering industrial deafness is not made out. He provides no details as to what the tendencies, incidences and characteristics of the employment [were] which caused the noisy employment nor the extent of the causation risk. There is no ability as a lay observer to follow the reasoning process in forming his conclusions. The reasoning process is not articulated. Accordingly the Member has fallen into error.”[46]
[46] Appellant’s submissions, [4.4.6].

Respondent’s submissions

The respondent points out that Drs Howison and Macarthur refer to the pure tone audiogram, and that, properly understood, Dr Howison’s reports support the conclusions that Dr Macarthur drew, namely that the respondent has noise induced hearing loss as a consequence of her employment with the appellant.
The respondent submits that the appellant fails to identify the relevant competing evidence which the appellant contends should have been considered and was not. Furthermore, that the appellant in its submissions does not identify those aspects of the evidence that were in conflict in relation to which factual findings were made without the provision of adequate reasons.

Consideration

The Member exposed his reasons for the conclusion that the appellant was the last noisy employer in paragraphs [25]–[37] inclusive. In my view those reasons adequately:
(a) exemplify to the parties what material he relied upon for the conclusion that the employment with the appellant was noisy employment;
(b) enable appellate review of the reasoning process, and
(c) satisfy the requirements of s 294(2) of the 1998 Act and r 78(2) of the Personal Injury Commission Rules 2021 for setting out the Commission’s reasons for determination.
The appellant does not specify any piece of evidence or submission that it says the Member should have dealt with but did not deal with. It is apparent from the reasons that the Member accepted the respondent’s evidence and to the extent there was other evidence from the appellant inconsistent with the respondent’s evidence, that evidence was rejected.
Ferreira was a case far removed from the circumstances of the present matter. In that case, the primary judge found that the worker had told deliberate lies in an attempt to obtain compensation to which he was clearly not entitled. The leading judgment was provided by Powell JA but a succinct distillation of the issue was provided in the decision of Handley JA who said:
“… The respondents in the Compensation Court established to the point of demonstration that the worker had told deliberate lies in an attempt to obtain compensation to which he was clearly not entitled.
This did not necessarily require the trial Judge to reject the whole of his evidence. Nor on the other hand was the trial Judge entitled to simply accept the whole of his evidence except those parts that the respondents had established was false.
In my opinion the perjury by the worker required the trial Judge to carefully assess the rest of his evidence in order to determine its honesty and reliability. Some of his evidence may have been acceptable because it was confirmed by other independent or objective evidence. However where the worker’s evidence was not independently supported it clearly had to be assessed with great care to determine whether it could properly be accepted as proof of any matter that was in issue in the proceedings.
…
In my opinion, and with the greatest respect, these statements demonstrate that the trial Judge failed to use and culpably misused the advantage he had in seeing and hearing the oral evidence of the plaintiff. It was not open to his Honour, as the Judge of fact, to decide that the proved perjury in this case was in any sense a ‘penalty’ which was ‘inflicted’ on the worker or that his proved lies had ‘a finite life’. Nor in my opinion could the trial Judge properly determine this case by simply deciding to quarantine the worker’s proved lies and not use or ‘transpose’ them in order to carefully weigh other parts of his evidence which were neither corroborated nor shown to be false.”[47]
[47] Ferreira, 118–119.
The Member in this matter did not find the respondent to have lied, much less to have committed perjury. The fact that her evidence may be contradicted by other evidence does not mean the witness is untruthful or dishonest, much less does it mean that the witness has perjured herself.
Furthermore, to make good the submission made by the appellant at [4.4.4] (see [106 above), in my view the appellant was required to identify the impugned evidence which it is said was of such a nature as to require the degree of scrutiny prior to acceptance of such evidence contemplated by the Court of Appeal’s decision in Ferreira. The nature and extent of noise exposure was a fundamental issue in the matter but the fact that the respondent’s evidence may have been contradicted by evidence advanced by the appellant, even if that evidence had been accepted by the Member (which it was not), it would not have made the respondent’s evidence false, dishonest or perjured.
In my view, Ground Four of the appeal is not made out and is dismissed.

Ground 5 – Failure to consider all available evidence in providing his determination

Appellant’s submissions

The appellant submits that the respondent did not adduce evidence of noise levels above 85dBA for 8 hours per day necessary, so it submits, to “create a real risk of hearing loss”.
The appellant refers to the National Standard for Occupational Noise setting forth the maximum daily occupational noise exposure levels and says that there was no evidence of this level of noise exposure at any time during the periods of employment. “The highest the evidence got was the ‘lay’ opinion of the Respondent worker that it was noisy.”[48]
[48] Appellant’s submissions, [4.5.5].
The appellant makes this submission:
“The real issue is whether the Respondent worker’s hearing loss was sustained as a result of her employment with the Appellant employer.”[49]
[49] Appellant’s submissions, [4.5.7].
The appellant refers to the work diary as a “significant guide as to the nature and extent of” the respondent’s role. The appellant submits there was no reference whatsoever to this evidence in the determination and that it has “considerable weight demonstrating, not just whether the employment had the tendencies to be noisy, but that [sic, whether] the Respondent worker was actually exposed over relevant periods of time to the noise as alleged which caused her hearing loss. By failing to have regard to the Appellant’s evidence or the entirety of its written submissions, the Member fell into error.”[50]
[50] Appellant’s submissions, [4.5.9].

Respondent’s submissions

The respondent submits:
“The respondent refers to the submissions at paragraphs 17 to 29 above, and in particular to the opinion of Dr Howison as detailed in paragraphs 25 to 29 above, which provides support for the contention that the appellant was a noisy employer conditional upon the accuracy of the assumptions relied upon by Dr Macarthur.”
The earlier submissions by the respondent are recorded with respect to Grounds Three and Four of the appeal above.

Consideration

In my view, there is no requirement in s 17 for the worker to establish by precise measurement the level of noise to which she was exposed. If there were readings, doubtless the Member would be required to take them into account. The issue is whether or not she has noise induced hearing loss. That is a medical issue.
Whether or not the respondent’s employment was a noisy employment by reason of the characteristics of that employment is an issue of fact which needs to be determined on the available evidence.
The appellant’s submission that the real issue is whether the respondent’s hearing loss was sustained as a result of her employment with the appellant employer misstates the test.[51]
[51] See Blayney Shire Council v Lobley (1995) 12 NSWCCR 52 (Lobley), 64D.
In Lobley, Cole JA said this at 65D:
“In my view it is sufficient for a claimant worker to establish that the employment in which he was engaged occurred in an environment which, were he unprotected, could cause injury of the type suffered by him. If evidence establishes that circumstance the worker satisfies the onus of establishing that at the time of giving notice he was employed in an employment to the nature of which the injury was due. It is consistent with the intent of the workers’ compensation legislation and with the intent that Dixon CJ referred to in Commonwealth vBourne (1960) 104 CLR 32 at 38–39 of giving to the worker ‘ready recourse by the employee to the latest employer who employed him in the work to the nature of which his complaint was due independently of the question of whether working for that particular employer contributed at all to his condition or aggravated it or accelerated its development’ that this lesser onus be imposed upon the applicant. It also accords with the views expressed by Jordan CJ and Street J in Tame v Commonwealth Collieries Pty Ltd (1947) 47 SR 269 at 272F. The evidentiary onus then shifts to such employer sued to seek to establish that protective measures in fact in place excluded the possibility of any such injury. Like Davidson J in Tame, I prefer to express no concluded view regarding whether, if an employer were able to exclude the possibility of injury because of protective measures taken, the worker, having establish the ‘tendency, incidents, or characteristics’ of the employment engaged in would, in those circumstances, fail. This case does not require a decision on that question.”
In the present matter, the Member was satisfied that the employment with the appellant was noisy employment, that is to say, an employment the incidence and characteristics of which were such as to give rise to a risk of injury in the form of noise induced deafness. He was not required to form a view as to whether or not the particular employment with the appellant in fact caused the respondent’s industrial deafness.
To the extent that the evidence adduced by the appellant in the form of the identification of the worker’s work locations throughout the entirety of her employment, extracted diary entries showing various locations of meetings and conferences, was intended to show that the loss of hearing which the respondent suffered was not caused by employment with the appellant, it was irrelevant to the enquiry under s 17 of the 1987 Act. So far as I am aware, the question left unresolved in the passage from Lobley referred to above remains unresolved in relation to industrial deafness, although there may be a different possibility available in other areas.[52]
[52] See CIC Workers Compensation (NSW) Ltd v Alcan Australia Ltd (1994) 35 NSWLR 160, 177A–B.
It is unnecessary to consider the issue further. The evidence adduced by the appellant was far short of establishing that the respondent’s industrial deafness could not have been caused by her employment with the appellant.
Ground Five of the appeal is dismissed.

Ground Six – Failure to determine sections 254 and 261 of the 1998 Act in accordance with the law

Appellant’s submissions

The appellant submits that there was simply no basis for the Member to make the findings of the connection between the respondent worker’s employment with the appellant and the deterioration in her hearing, particularly noting that the respondent worker ceased employment with the appellant in 2012 and did not make her claim until some 9 years later in 2021. The Member did not determine in his findings how the respondent worker in 2021 was able to make the claim that her employment was then noisy, noting that the opinion of Dr Macarthur regarding occupational history could only have come from the respondent worker herself in April 2021.[53]
[53] Appellant’s submissions, [4.6.1].
The appellant submits that it follows that by 6 April 2021, the respondent must have formed the view that the employment with Coles was noisy. The respondent worker however does not inform Coles until 1 June 2021.[54] That delay is not explained in any statement of the respondent worker and is not dealt with by the Member in his determination. The appellant submits that the Member ignored factually that the respondent was an injury management adviser who would have been aware of the timeliness of claim notification. This aspect is specifically ignored by the Member.
[54] ARD, p 3.

Respondent’s submissions

The respondent submits that the point being made by the appellant at [4.6.1] of its submissions (see [130] above) is not apparent. Nor is the relevance of the 2-month delay. The respondent submits that the Member dealt comprehensively with the issues of ss 254 and 261 in paragraphs [21] to [23] of the reasons.

Consideration

I must say I am unable to detect the gravamen of this ground of appeal. In any event, it seems to me that much of what is complained of is addressed under the rubric of Ground Two of the appeal when dealing with the conclusions expressed by the Member at [22] of the reasons.
The Member did not ignore the circumstances of the respondent’s employment. He specifically referred to the description of the respondent as a team leader in injury management and a qualified occupational therapist, pointing out that she was neither a workers compensation lawyer nor a specialist workers compensation legal consultant. He accepted that she may have been aware of the requirements to report injuries, but the effect of her evidence was that for some time she thought her hearing loss (which her husband had alerted her to) was simply age related and on her evidence she was in fact ignorant of any potential connection between any risk imposed by her employment and her gradual onset of hearing loss.[55]
[55] Reasons, [17].
The Member plainly acknowledged the respondent’s qualifications but in the circumstances explained why, in his view, those qualifications and abilities were not such as to provide her with the requisite knowledge and awareness to engage the requirement to give the appellant notice.
In my view, this ground of appeal must be dismissed for the reasons advanced in relation to Ground Two.

CONCLUSION

The appeal is dismissed.

DECISION

The Member’s Certificate of Determination dated 18 November 2022 is confirmed.

Geoffrey Parker SC
ACTING DEPUTY PRESIDENT

13 November 2023