Commonwealth Steel Company Pty Ltd t/as Moly-Cop v Boccola - [2025] NSWPICPD 19

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Commonwealth Steel Company Pty Ltd t/as Moly-Cop v Boccola [2025] NSWPICPD 19
APPELLANT:	Commonwealth Steel Company Pty Ltd t/as Moly-Cop
FIRST RESPONDENT:	Raul Boccola
SECOND RESPONDENT:	Orica Australia Pty Ltd
APPELLANT’S INSURER:	GFG Alliance Australia Workers Compensation
SECOND RESPONDENT’S INSURER:	QBE Workers Compensation (NSW) Limited
FILE NUMBER:	A1-W1260/24
PRESIDENTIAL MEMBER:	Acting Deputy President Michael Perry
DATE OF APPEAL DECISION:	11 March 2025
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 17 June 2024 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – factual findings, application of principles from Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 in relation to factual findings – asserted error of fact and law in applying wrong test by requiring proof of actual causation of boilermaker’s deafness injury, consideration of Blayney Shire Council v Lobley (1995) 12 NSWCCR 52 and Commonwealth v Bourne (1960) 104 CLR 32
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr G Guest, solicitor
Sparke Helmore Lawyers
First respondent:
Mr M Bechelli, solicitor
Whitelaw McDonald Solicitors & Attorneys
Second respondent:
Mr A Rago, solicitor
Moray & Agnew, Lawyers
DECISION UNDER APPEAL:	Boccola v Commonwealth Steel Company Pty Ltd t/as Moly-Cop [2024] NSWPIC 314
MEMBER:	Ms R Homan
DATE OF MEMBER’S DECISION:	17 June 2024

INTRODUCTION AND BACKGROUND

Raul Boccola (the worker) was employed by the appellant between 1989 and 1994 as a chief electrical engineer. He then worked for the second respondent (Orica) between 1994 and 2005 as an electrical engineer. The parties agree the worker sustained a “boilermaker’s deafness” which was caused by a gradual process injury (the injury).
The appellant also concedes the worker’s employment with it was to the nature of which the injury was due – but disputes it was the last such employment, pointing to the worker’s employment with Orica between 1994 and 2005.
The essential and relevant issue before the Member was whether the work with Orica was employment to the nature of which the injury was due pursuant to s 17 of the Workers Compensation Act1987 (the 1987 Act), in particular, whether the “tendencies, incidents or characteristics” of the Orica employment were of a type that could give rise to the injury.
The Member ultimately determined that the appellant was the last employer by whom the worker was employed in an employment to the nature of which the injury was due for the purposes of s 17 of the 1987 Act.[1] The appellant has appealed that determination, alleging the Member erred in fact and law in so finding.
[1] Boccola v Commonwealth Steel Company Pty Ltd t/as Moly-Cop [2024] NSWPIC 314 (reasons).

ON THE PAPERS AND THRESHOLD MATTERS

Section 52(3) of the Personal Injury Commission Act 2020 (the 2020 Act) allows the Commission to exercise functions under that Act without holding any conference or formal hearing if satisfied that sufficient information has been supplied. Given Procedural Directions PIC2 and WC3; and the documents and submissions before me, I am satisfied I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing. There is no dispute between the parties that the threshold requirements as to quantum and time under ss 352(3) and 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) have been met.

THE EVIDENCE

The evidence comprised the Application to Resolve a Dispute (ARD) and Replies (both with attached documents), and Applications to Admit Late Documents (ALD) dated 8 March and 19 April 2024. It is unnecessary to summarise the evidence as the Member accurately summarised it, with neither party raising any issue or question about that summary, and I will also summarise the evidence when recording the Member’s reasons.

THE MEMBER’S REASONS

The Member noted the worker’s statement.[2] As to the Orica employment, she noted he estimated that 95% of his time was spent working in an office which was not noisy, and that approximately two to three times per year he would go to a noisy site where he would attend project meetings in an office, then go into a workshop while wearing hearing protection, to inspect the work being undertaken, remaining there for no more than 10 to 15 minutes.
[2] ARD, p 1.
The Member also noted the worker’s statement that once or twice a year he also attended mining sites where he spent most of his time in an office or inspecting the mine by car, during which time he stated he was not exposed to any loud noise.
The Member noted the employment history taken from the worker by Dr Daron Cope, ear, nose and throat surgeon (ENT), in a report requested by the worker’s solicitor dated 25 January 2022.[3] Relevantly she noted he was employed by the appellant from 1989 to 1994 when he was exposed to loud noise from machinery in mills and a foundry for four to five hours per day five days per week, and also needing to raise his voice generally in order to communicate at a distance of 1 m and use hearing protection.
[3] ARD, p 10.
The Member noted Dr Cope also taking a history of the worker’s employment with Orica between 1994 and 2005, with exposure to noise from metal fabrication and trucks for one hour per day, two to three times per week, and having to raise his voice generally in order to communicate at a distance of 1 m, with hearing protection being used.
The Member then noted Dr Cope identifying the appellant as the last “noisy employer”, referring to the work as chief electrical engineer involving exposure to potentially damaging noise (from furnaces, mills, forge presses and saws) of five hours per day, five days per week. She also noted his supplementary report of 13 September 2022 reiterating his view that the appellant was the last “noisy employer”, and his last report of 12 October 2023 where she noted the same view was expressed.
The Member summarised the reports of Dr Tamhane, ENT surgeon engaged by the appellant, dated 23 December 2022[4] and 6 March 2024.[5] In his 2022 report she noted he took a history of employment as an electrical engineer with Orica between 1994 and 2005 which was “mainly office-based employment with only intermittent noise exposure when visiting the Factory … was not exposed to loud and/or continuous noise during this employment”, and “had worn hearing protection whenever possible since the 1980s” - and “gave the opinion that the last noisy employer in New South Wales was the [appellant]”
[4] ARD, p 56.
[5] ALD 8 March 2024.
The Member noted that in his 2024 report, Dr Tamhane said that during his examination of the worker on 23 December 2023, the worker said he visited “the Plant” (which I take to be “the Factory” referred to in the preceding paragraph) for “a total of 2 to 3 occasions a week, for up to 2 hours at a time”, and that he wore ear protection at all times and did not recall any incident of exposure to sudden, extremely loud noise during those visits.
The Member noted[6] that Dr Tamhane referred to a table showing the length of time a person without hearing protection can be exposed to noise before exceeding the exposure standard, and at 100 dB(A) the exposure time was 15 minutes. She also noted the “additional information” provided to him by the appellant’s solicitor, apparently being an abstract of an article titled ‘Noise exposure and hearing levels of workers in the sheet metal construction trade’ (the sheet-metal abstract).[7]
[6] Reasons, [34]–[35].
[7] ALD 19 April 2024.
The Member also noted the employment history given by the worker to Dr Ken Howison, ENT surgeon on 23 June 2023 and reported at the request of Orica on 6 July 2023.[8] That report relevantly states:
“From 1994–2004, he worked as an Electrical Engineer with Orica … [He] said 95% of his employment was office-based with only intermittent noise exposure when visiting the factory. [He] explained that for less than 5% of the working day he was out of his office and exposed to some noise of the factory and the mine. He said for only 1% of the 5% was he exposed to noise above which he would have to shout to be heard. [He] explained … that Orica Explosives was not a noisy employer. For example, [he] described that he would be in the workshop for 10–15 minutes, 3–4 times per year and would only then even consider requiring ear protection. I therefore consider that Orica Explosives was not [his] last noisy employer.
He was previously employed … with [the appellant] … spent 50% of his time in the office and 50% of his time exposed to the noise generated by the manufacturing of steel and steel products … exposed to the noise of heavy fixed machinery … conveyors, band saws, electric furnaces … warning signals and alarms. [He] explained that he would have to shout above this noise for 50% of the working day to converse with colleagues at a distance of one metre and I therefore conclude … that he was working exposed to an 8-hour equivalent continuous A-weighted sound pressure level of LAeq 90dB(A) or above. More than two hours of exposure to this level of noise would be sufficient to be responsible for the causation of industrial deafness … wore ear protection when exposed to loud noise.”
[8] Orica’s Reply, p 12.
After summarising the submissions for the parties, the Member set out[9] the terms of s 17 of the 1987 Act and the principles arising from A & G Engineering Pty Ltd v Civitarese,[10] Fadallah v Canterbury City Council,[11] Blayney Shire Council v Lobley[12] and Dawson t/as The Real Cane Syndicate v Dawson.[13]
[9] Reasons, [60]–[64].
[10] (1996) 41 NSWLR 41 (Civitarese).
[11] [2004] NSWWCCPD 6 (Fadallah).
[12] (1995) 12 NSWCCR 52 (Lobley).
[13] [2008] NSWWCCPD 35 (Real Cane).
The Member observed[14] that the dispute largely arose due to the conflicting evidence as to the nature of the worker’s employment with Orica, also noting that the worker’s own evidence was contradictory in that it was different to the history recorded by Dr Cope - pointing to the worker’s history of working in an office which was not noisy for about 95% of the time, going to a noisy site two to three times per year but only being in the noisy workshop for up to 15 minutes, and although also attending mining sites, spending his time there either in an office or inspecting the mine in the car. The Member said this was at odds with Dr Cope’s history taken from the worker – exposure to noise from metal fabrication and trucks for one hour per day two to three times per week when he needed to raise his voice generally in order to communicate at a distance of 1 m.
[14] Reasons, [67].
The Member then stated[15] that Dr Cope’s employment history “is not repeated anywhere else in the evidence. It is also somewhat difficult to reconcile with comments made by Dr Cope elsewhere in his reports that the [worker] had denied any noise exposure during his employment with [Orica]”.
[15] Reasons, [71].
The Member then observed[16] that the most similar history to that recorded by Dr Cope is in Dr Tamhane’s 2024 report, but that there were differences, in particular, Dr Tamhane’s history included the worker visiting a plant on two to three occasions a week for up to two hours at a time, i.e. noise exposure for about double that recorded by Dr Cope.
[16] Reasons, [72].
The Member said the history in Dr Tamhane’s 2024 report was difficult to reconcile with his 2022 report which recorded that the Orica employment was mainly office-based, with only intermittent noise exposure when visiting the factory, and that the worker was said to have denied any loud and/or continuous noise during this employment. The Member then added[17] that it was “not clear why the more detailed account recorded in the [2024] report was not set out in Dr Tamhane’s first report”.
[17] Reasons, [74].
The Member went on to observe that “Dr Tamhane’s revised opinion also appears to have been influenced by the ‘additional information’ provided to him ... [the sheet-metal abstract]”. The Member then said she was not satisfied that the information contained in this abstract was directly applicable to the Orica employment, noting the worker’s evidence was consistent that his role was predominantly office-based rather than factory based, and that the date of the study was also not clearly identified but may have been from August 1975.
The Member then found that “I am not satisfied that the noise levels recorded in the study to which Dr Tamhane was referred can be equated to those on [Orica’s] factory floor during the period of [1994 to 2004]”, and that there was no evidence before her of the actual noise levels on the Orica factory floor.
The Member noted[18] the appellant’s submission that the fact of the worker wearing hearing protection in the Orica factory was of itself indicative of him working in employment to the nature of which the injury was due, but then said the evidence showed that both the nature of the noise and duration of exposure to that noise is relevant.
[18] Reasons, [77].
She also found it significant that both Dr Cope and Dr Tamhane (at least in his 2022 report) were of the view that even with the weekly exposure to noise described in their reports, Orica was not the last noisy employer. She then said that Dr Howison’s history was “broadly consistent with the [worker’s] statement … also arguably more detailed than the histories recorded by either Dr Cope or Dr Tamhane”, noting Dr Howison recorded that 95% of the employment was office-based with only intermittent noise exposure when visiting the factory, was only exposed to some noise from the factory for less than 5% of the working day, and only exposed to noise above which he would have to shout to be heard for 1% of that 5% of the time out of the office. The Member then observed that the worker described being in the workshop for 10 to 15 minutes, three to four times per year.
The Member also considered the appellant’s submission that even on Dr Howison’s history, the worker may have been exposed to noise levels greater than 100 dB, at which level there was potential for hearing loss with less than 15 minutes of exposure, but said she was not satisfied Dr Howison did take a history of having to shout to be heard at a distance of 1 m for periods of up to 15 minutes at a time. She said he rather recorded that the worker said he had to shout for only 1% of the 5% of time during which he was exposed to the noise of the Orica factory and mines.
The Member said Dr Howison’s conclusion that Orica was not the last noisy employer was consistent with opinion given by Dr Cope and Dr Tamhane’s initial opinion. She added[19] that “[n]oting the more detailed history, its close alignment with the [worker’s] statement evidence, as well as the consistency between Dr Howison’s opinion and that expressed by Dr Cope, I prefer and give greater weight to the views expressed by Dr Howison”. She then found she was “not satisfied that the tendencies, incidents or characteristics of the [worker’s] employment with [Orica] were of a type to give rise to hearing loss”.
[19] Reasons, [82].

GROUNDS OF APPEAL

The appellant brings the following grounds of appeal:
(a) Error of fact in finding the appellant was the last noisy employer (Ground 1).
(b) Error of law in finding the appellant was the last noisy employer (Ground 2).

NATURE OF THE APPEAL

This appeal is brought pursuant to s 352(5) of the 1998 Act. This section limits the appeal to a determination of whether or not the decision was affected by any error of fact, law or discretion, and to the correction of any such error. It is not a review or new hearing.
In Raulston v Toll Pty Ltd,[20] Roche DP (at [19]) applied Whiteley Muir & Zwanenberg Ltd v Kerr[21] as to the nature of the appeal process under s 352(5) of the 1998 Act, relevantly as follows:
“(a)    [A member], though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [member] that it can be said that [the] conclusion was wrong’.
(b)     Having found the primary facts, the [member] may draw a particular inference from them. Even here the ‘fact of the [member’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the [member] was wrong.
(c)     It may be shown that [a member] was wrong by ‘showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [member] is so preponderant in the opinion of the appellate court that the [member’s] decision is wrong”
[20] [2011] NSWWCCPD 25 (Raulston).
[21] (1966) 39 ALJR 505, 506.
In Northern NSW Local Health Network v Heggie,[22] Sackville AJA, Basten and Ward JJA agreeing, stated (at [72]):
“A fortiori, if a statutory right of appeal requires a demonstration that the decision appealed against was affected by error, the appellate tribunal is not entitled to interfere with the decision on the ground that it thinks that a different outcome is preferable …”.

SUBMISSIONS

[22] [2013] NSWCA 255 (Heggie).

The appellant’s submissions

As to Ground 1, the appellant cites Lobley, per Kirby ACJ (at 55) as authority for the principle that one of the purposes of s 17 of the 1987 Act was “to relieve the worker of the burden … to prove that actual trauma in the employment of a particular employer … had caused the loss of hearing”. The appellant says Lobley confirms that these principles also apply to a dispute between employers as to which one is the last noisy employer.
The appellant says the worker’s expert evidence was in a table in Dr Cope’s report (at ARD, p 12), which confirmed he was employed by Orica for about 11 years until 2005 during which he was exposed to metal fabrication and truck noise and when he had to “generally raise his voice … to communicate at a distance of 1m … more than 1 h/day, 2–3 days per week … with hearing protection being used”.
The appellant also noted the history Dr Howison took – that the worker’s time with Orica as an electrical engineer was 95% office-based with only intermittent noise exposure when visiting the factory, explaining that for less than 5% of the working day, he was “exposed to some noise of the factory and the mine”, and “that for only 1% of that 5% was he exposed to noise above which he would have to shout to be heard”. The appellant also noted Dr Howison took a history from the worker that “he would be in the workshop for 10–15 mins, 3–4 times per year and would only then even consider requiring ear protection” and therefore considered “Orica … was not [the worker’s] last noisy employer”.
The appellant then noted the supplementary report of Dr Tamhane records the history noted in paragraph [13] above. The appellant noted Dr Tamhane wrote:
“Taking into consideration the additional information you have provided, it is likely that the noise levels generated on the Factory Floor during his employment with Orica … were higher than 100dB and on occasion, could have been potentially louder. If [he] was not wearing his ear protection correctly or … at all enabling communication during discussions with other workers, it is likely that on the balance of probabilities and after giving him the benefit of the doubt that he was exposed to noise levels which could have been harmful to his ears and which could cause an additional hearing loss”.
The appellant says there was a factual dispute as to the exact extent of the worker’s exposure as “arguably paragraphs 4 and 5 of the worker’s statement … were inconsistent and the evidence given to Dr Tamhane was also inconsistent with paragraph 5”. The appellant further noted that the Member accepted the Orica employment was not noisy, based on the evidence of Drs Cope and Howison who both said “the employment with [Orica] was not of the nature to give rise to a risk of hearing loss” - but that these “opinions were not consistent with the legal test” set out in Lobley and were erroneous. The appellant says this is because the worker conducted inspections in a metal manufacturing factory when he wore hearing protection and was required to raise his voice and shout to be heard.[23]
[23] Referring to ARD, p 114.

The appellant submitted that this evidence established that the employment with Orica “gave rise to a risk of hearing loss such that hearing protection was required in such that it was the last noisy employment” and that Orica recognised this by requiring the worker to wear hearing protection when inspecting the factory.
The appellant further says there was evidence (e.g. at p 1 of its Reply) that hearing loss can occur in very short periods when noise exceeds 100dBA, and that Dr Tamhane and the appellant’s evidence was that “the likely noise in metal manufacturing confirmed that noise exposure during the worker’s employment could have exceeded these levels”, and that it was unnecessary to perform an analysis of the actual noise level exposure during his employment, because Orica had recognised the relevant risk by requiring the worker to wear hearing protection. The appellant further puts that “[f]urther analysis of the extent and intensity of the noise was unnecessary and inconsistent with [Civitarese] where the Court of Appeal confirmed that there was no requirement to prove actual causation of the loss”.
The appellant emphasises that it was unnecessary for it, and the worker, to conduct expert analysis of noise levels because the legal test required only proving “a risk of injury”, not actual causation of injury, and the risk had already been identified by Orica and mitigated by hearing protection.
The appellant also submits that none of the parties were “in a position to adduce reliable scientific evidence as to the level of noise in the factory” as the allegations were historical, except to the extent it involved a metal fabrication factory, noting the appellant “adduced evidence that such factories potentially give rise to significant noise well above 100dBA”.
The appellant says the fact that the worker needed to shout when conversing with other employees was sufficient evidence to establish the employment was of the nature that could cause industrial deafness and further analysis to establish exact times and levels of exposure were unnecessary, and that such inquiries go to actual causation of the loss and not the nature of the work.
The appellant says the Member erred (at reasons [79]) by proceeding on an analysis of exactly how many minutes of potential noise exposure occurred, as this was relevant to whether or not the exposure caused hearing loss, not whether the employment was to the nature of the condition.
The appellant repeated its Ground 1 submissions for the purposes of Ground 2, putting that the Member erred in law (at [83] of the reasons) in finding she was “not satisfied that the tendencies, incidents or characteristics of the … employment with [Orica] were of a type to give rise to hearing loss”, because the test adopted was for actual causation rather than risk of injury.

The second respondent’s (Orica’s) submissions

Orica says the Member’s decision does not involve any error of fact or law, and that the decision was one which was open to her. Orica also says the appellant’s submissions amount to the Member erring because she did not find Orica was a noisy employer on the basis of the evidence that the worker wore hearing protection and needed to raise his voice.
Orica submits that given the state of the evidence, the Member provided meticulous analysis of the competing factual accounts and disentangled various inconsistent evidence. Orica then says the Member gave detailed reasons as to why she ultimately preferred the factual account in the worker’s statement, which was largely repeated in the report of Dr Howison.[24]
[24] Referring to [69]–[73] of the reasons.
As to Ground 2, Orica submits Lobley was correctly applied, and that the appellant has misapprehended the task the Member undertook and the method she went about it. Orica says the Member “was required to undertake a forensic analysis of ‘a range of matters that may include a worker’s evidence, [and] the proof of relevant facts about the specific employment’ in order to determine whether the ‘tendencies, incidents or characteristics’ of employment were of a type to give rise to permanent hearing loss”, citing Fadallah. Orica says the Member undertook that task when considering the duration and nature of the worker’s noise exposure at Orica.
Orica says that after “disentangling the various inconsistent evidence”, the Member preferred “the view of Dr Howison” in relation to the worker’s employment with Orica, and that having undertaken that forensic task, she correctly determined that she was not satisfied that the tendencies, incidents and characteristics of the employment with Orica were of the type to give rise to hearing loss. Orica submits that this finding was open to the Member and disclosed no error of law.

THE FIRST RESPONDENT’S (WORKER’S) SUBMISSIONS

THE FIRST RESPONDENT SUBMITTED ONLY TO RELY UPON THE SUBMISSIONS OF THE SECOND RESPONDENT AND ASKS THAT THE APPEAL BE DISMISSED WITH NO ORDER AS TO COSTS.

DISCUSSION AND FINDINGS

AS THE APPEAL GROUNDS AND SUBMISSIONS OVERLAP WITH EACH OTHER, AND BECAUSE THEY DO NOT COMPLY WITH CL 24 OF PROCEDURAL DIRECTION WC3, IT IS BEST THEY BE DEALT WITH TOGETHER. THE APPELLANT’S REFERENCE (AT PARAGRAPH [31] ABOVE) TO THE BROAD PRINCIPLE IN LOBLEY OVERSIMPLIFIES THE SPECIFIC PRINCIPLE RELEVANT TO THE ISSUES ON THIS APPEAL. IN OTHER WORDS, THE FACT THAT S 17 OF THE 1987 ACT RELIEVES A WORKER OF THE BURDEN OF PROVING THAT “ACTUAL TRAUMA … CAUSED THE LOSS OF HEARING” DOES NOT MEAN A WORKER (AND IN THIS CASE, THE APPELLANT) IS ALSO RELIEVED OF THE REQUIREMENT TO BRING EVIDENCE TO SHOW THE TENDENCIES, INCIDENTS OR CHARACTERISTICS OF THE NATURE OF THE EMPLOYMENT WERE OF A TYPE THAT COULD GIVE RISE TO INDUSTRIAL DEAFNESS. IN LOBLEY, COLE JA (KIRBY ACJ AND ROLFE AJA AGREEING, AT 64 D-E, STATED THAT:
“… IN DETERMINING WHETHER … MR LOBLEY WAS ‘EMPLOYED IN AN EMPLOYMENT TO THE NATURE OF WHICH THE INJURY WAS DUE’, ATTENTION MUST BE DIRECTED NOT TO WHETHER THE EMPLOYMENT THEN ENGAGED IN ACTUALLY CAUSED THE INJURY BUT WHETHER THE ‘TENDENCIES, INCIDENTS OR CHARACTERISTICS’ OF THAT EMPLOYMENT WERE OF A TYPE WHICH COULD GIVE RISE TO THE INJURY …
SUCH AN EXPRESSION OF THE ISSUE INDICATES THE REQUIREMENT OF A CLAIMANT TO BRING EVIDENCE CONCERNING THE TENDENCIES, INCIDENTS OR CHARACTERISTICS OF THE NATURE OF THE EMPLOYMENT ENGAGED IN AT THE TIME OF GIVING NOTICE”.
In Real Cane, a case which the worker has relied upon both before the Member and on this appeal, Roche DP considered the principles arising from Lobley, as well as other relevant authorities[25] before stating (at [44]):
“While it is not necessary for a worker to call an acoustic engineer in every case of boilermaker’s deafness, it is not sufficient for a worker to merely say ‘my employment was noisy and I have boilermaker’s deafness’. It is always essential that he or she present detailed evidence (if no acoustics expert is to be relied on) of the nature (volume) and extent (duration) of the noise exposure and for that evidence to be given to an expert for his or her opinion as to whether the ‘tendency, incidents or characteristics’ of that employment are such as to give rise to a real risk of boilermaker’s deafness. That is exactly what [the worker] did in the present matter. His evidence as to the noise to which he was exposed was unchallenged and that evidence, combined with the evidence from Drs Fernandes and Macarthur, clearly discharged the onus of proof he carried. The … acceptance of that evidence discloses no error.” (emphasis added).
[25] Including Callaby v State Transit Authority (NSW) [2000] NSWCC 30; 21 NSWCCR 216; Ilievski v Sutherland Shire Council (Compensation Court NSW, unreported, 6 March 2001, Burke J); Costello v Citra Constructions Ltd [1990] FCA 9; 22 FCR 247.
The Member was aware of these principles. She set out (at reasons [64]) the same passage. She immediately went on to add (at [65]) that there was “no dispute in this case that the [worker] has sustained an injury in the form of a loss of hearing which is of such a nature as to be caused by a gradual process. Nor … that the … employment with [the appellant] was an employment to the nature of which the injury was due”.
The following further statement by Roche DP in Real Cane (at [48]) is also apposite to the present case, and relates to a significant feature of the evidence and submissions:
“Whether the need for workers to shout indicates that the particular employment is noisy depends on the circumstances and evidence in each case. That was not the only important feature of [the worker’s] evidence about the noise to which he was exposed. He also stated that he would often go home at the end of a working day ‘with ringing in the ears’. He also gave evidence as to the duration of his exposure to noise. Drs Fernandes and Macarthur accepted that [the worker’s] evidence established that his employment was noisy employment within the terms of the legislation. [The employer] called no evidence to the contrary.” (emphasis added).
I respectfully agree with the first sentence in Real Cane (at [48]) and the relevance of the principles drawn by Roche DP from the above authorities. Real Cane is analogous to the present case at least in the sense that the relevant issue of whether an employment was “noisy” was debated not between a worker and employer but between two employers. The appellant says the worker was “required to raise his voice and shout to be heard”, and “this evidence [including the requirement to wear hearing protection during factory inspections] establishes that the employment with [Orica] gave rise to a risk of hearing loss such that … it [in the present case] was the last noisy employment”. But in the circumstances and evidence of the present case the Member has found the appellant has not shown that the tendencies, incidents or characteristics of the Orica employment were of a type which could give rise to the injury. In my opinion, this finding was open to her, and it has not been shown that it was erroneous in fact, law or discretion. Further reasons follow.
The Member noted and dealt with the appellant’s argument immediately above (at reasons [77]–[82]). She accepted the worker was required to wear hearing protection in the Orica factory but found that both the nature and duration of that noise exposure was relevant. This is clearly consistent with the authorities, including Lobley and Real Cane. The appellant says there is evidence that hearing loss can occur in very short periods when noise exceeds 100dBA, pointing to a table which “provides examples of the length of time a person without hearing protection can be exposed before the standard (85dB(A)) is exceeded”: SafeWork NSW Code of practice Managing noise and preventing hearing loss at work December 2022 (the code).[26]
[26] Appellant’s Reply, pp 1–2.
The code relevantly refers to an exposure time of 15 minutes before the standard is exceeded with a noise level of 100dBA. The appellant submits that “Dr Tamhane, and the evidence adduced by the appellant as to the likely noise in metal manufacturing confirmed that noise exposure during the worker’s employment could have exceeded these levels”. This presumably refers to Dr Tamhane’s 2024 report where he appears to set out the table in the code (without expressly sourcing it, nor was I able to find a letter to him which might have identified what he was referring to), then stating:
“Taking into consideration the additional information that you have provided, it is likely that the noise levels generated on the Factory Floor during his [Orica] employment … were higher than 100dB and on occasion, could have been potentially louder … even if he was not wearing ear protection … it is likely that on the balance of probabilities and after giving him the benefit of the doubt that he was exposed to noise levels which could have been harmful to his ears and which could cause an additional hearing loss.
Whether the exposure standard (85dB(A) averaged over eight hours) is exceeded depends on the level of noise involved and how long workers are exposed to it”.
However, the Member has clearly rejected (at reasons [75]) the sheet-metal abstract, saying she was not satisfied that it was directly applicable to the worker’s employment at Orica. Her reasons in this regard include that the date of the study was not clearly identified, although there was some indication that it dated from August 1975, between 20 to 30 years before the worker’s employment with Orica. She also expressed concern about the applicability of this information given her acceptance that the worker “consistently indicated that his role was predominantly office-based rather than factory based”.
The Member then said she was not satisfied that the noise levels recorded in the sheet-metal abstract “study to which Dr Tamhane was referred can be equated to those on the [Orica] factory floor during the period of the [worker’s] employment”, and that there was no evidence before her of the actual noise level on the Orica factory floor. In my opinion, these findings were at least open to her, and were also the correct findings. To find otherwise would be contrary to the following principles referred to by Allsop P (McColl and Basten JJA agreeing) in Onesteel Reinforcing Pty Ltd v Sutton:[27]
“The relationship between the rules of evidence and hearings by the Commission is made clear by [s 43 of the 2020 Act]. The rules of evidence do not apply. Thus, there is no prohibition on hearsay material and opinion evidence. Nevertheless, as the cases discussed by McColl JA … show, the Commission is required to draw its conclusions from material that is satisfactory, in the probative sense, in order that it act lawfully and in order that conclusions reached by it are not seen to be capricious, arbitrary or without foundational material”.
[27] [2012] NSWCA 282, [2].
The substantive content of the sheet-metal abstract contains only one paragraph, essentially referring to noise levels being “measured at a jobsite involving sheet metal construction work and at a sheet metal fabrication shop”, where noise levels of up to 114dBA (slow response) were measured when various powered hand tools were used. “Noise levels exceeded 85dBA between one-fourth and one-third of the time”, and “impact noise levels averaged about 120–125dB peak SPL”. There is no identification of the “sheet metal fabrication shop” nor any basis to support the abstract content. The document also appears, to me, to be dated August 1975 – so far as one can tell. There is also a reference on the document to “An official website of the United States government”.
The appellant also submits there was evidence in Dr Tamhane’s 2024 report that “the likely noise in metal manufacturing confirmed that noise exposure … could have exceeded these [100dBA] levels”. I do not accept this argument either because in this case its viability depends upon an acceptance of the sheet-metal abstract or the opinion in Dr Tamhane’s 2024 report that taking into consideration “the additional information”, it is likely that the noise levels were higher than 100dB. It is not totally clear from these submissions, or the evidence, what the additional information is, although I can infer it comprises the code and the sheet-metal abstract.
But of course, the appellant cannot rely on the code in isolation to establish a noise level finding. Its reference to a noise level of 100 dB(A) for 15 minutes’ exposure time before the standard is exceeded does not assist the appellant’s case unless it is shown that the tendencies, incidents or characteristics of the Orica employment were of a type that could give rise to industrial deafness. This applies to the evidentiary utility of the code both on its own or as a basis to underpin Dr Tamhane’s 2024 opinion.
However, the Member said (at [83]) she was “not satisfied that the tendencies, incidents or characteristics of the [worker’s] employment with [Orica] were of a type to give rise to hearing loss. Part of her reasons for this finding was that she found no evidence of the actual noise levels in the context of rejecting use of the sheet-metal abstract. The appellant does not direct any, at least clear, submissions to criticise these findings.
I do not accept the argument that the appellant was not “in a position to adduce reliable scientific evidence as to the level of noise in the factory at the time of the alleged injury [given] that the allegations were historical, except to say it involved a metal fabrication”. There is no evidence of this, nor is there any evidence as to whether any direction to produce documents from Orica was sought. I similarly do not accept the appellant’s argument that an analysis of the actual noise level exposure was unnecessary given Orica recognised the relevant risk because it required the wearing of hearing protection and/or it was inconsistent with Civitarese. This does not deal with the principles discussed by Roche DP in Real Cane referred to in paragraph [49] above.
The Member also did not err in finding she was not satisfied that the tendencies, incidents or characteristics of the Orica employment were of a type to give rise to hearing loss. I have emphasised “type” to show she clearly enough had the correct legal test in mind: it is essentially the same formulation of the relevant test by Cole JA (Kirby ACJ and Rolfe AJA agreeing) in Lobley (at 64), and which she recited in her reasons (at [62]). The appellant has set out the Member’s finding (at reasons [83]). If it is a criticism of the decision because she used the expression “of a type to give rise to hearing loss” rather than the precise words used by Cole JA in Lobley (at 64 – “were of a type that could give rise to the injury”, my emphasis), I do not accept any such argument.
Clearly, the Member was aware, and did proceed on the basis, that it was not necessary to prove that actual trauma caused the loss of hearing. She acknowledged this submission at reasons [49], also noting the relevant issue was whether the employment was of such a nature as to potentially give rise to hearing loss. She also said there was no controversy about this and reading the decision as a whole, and fairly, shows that is not the way she conducted the analysis. For example, she stated (at reasons [65]–[66]) that there was “no dispute in this case that the [worker] has sustained an injury in the form of a loss of hearing which is of such a nature as to be caused by a gradual process … The dispute in this case centres on the question of whether the [worker’s] employment with [Orica] was an employment to the nature of which the injury was due” (my emphasis). This language follows the terms of s 17 of the 1987 Act (see also Lobley at 63C-G referring to the statement by Dixon CJ in Commonwealth v Bourne (1960) 104 CLR 32 at 38F) regarding the history, meaning and purpose of the words “due to the nature of the employment”, in contrast to the words “due to the employment”).
I similarly do not accept the appellant’s argument that an analysis of the actual noise level exposure was unnecessary given Orica recognised the relevant risk because it required the wearing of hearing protection and/or because it was inconsistent with Civitarese “where the Court of Appeal confirmed that there was no requirement to prove actual causation of the loss”. Again, as noted at paragraph [48] above, the appellant was still required to show that the tendencies, incidents or characteristics were of a type that could give rise to industrial deafness.
The appellant, and the worker, bore the onus of satisfying the Commission that the worker’s employment was of a type or character that could give rise to the injury.
As Roche DP stated in Real Cane, it is not necessary for a worker to call an acoustic engineer in every industrial deafness case. But if no acoustics expert is to be relied upon, it is always essential that he or she present detailed evidence of the nature (volume) and extent (duration) of the noise exposure, and for that evidence to be given to an expert for his or her opinion as to whether the nature of the employment is such as to give rise to a real risk of industrial deafness. As to whether the Commission is able to be satisfied of this depends on the circumstances of each case. In Real Cane, Roche DP noted that the worker’s unchallenged evidence as to noise, combined with the opinions of two experts, was sufficient to discharge the onus of proof he carried. In the present case, the Member dealt with conflicting evidence containing some inconsistencies and found she was not satisfied the Orica employment was to the nature of which the worker’s hearing loss injury was due.

This finding was open to the Member and there was no error of fact or law in the making of it. In fact, there is no clear identification, either in the appeal grounds or the appellant’s submissions, about what error of fact or law may have been made. The submissions seem to rise no higher than saying the preferable decision should have been an acceptance of the appellant’s case that the Orica employment was relevantly noisy.
The appellant also says the Member ultimately accepted the employment with Orica “was not noisy based on the evidence of Dr Cope and Dr Howison who both indicated that the employment with [Orica] was not of the nature to give rise to a risk of hearing loss”, and that “the opinions” were inconsistent with the legal test as set out in Lobley. However, the appellant does not say how and why “the opinions” were not consistent with Lobley. Nevertheless, I see nothing essentially wrong with the expression “not of the nature to give rise to a risk of hearing loss”, when read fairly and in the context of the decision as a whole (e.g. Heggie at [166]. The ultimate question is whether or not the Member dealt with the evidence erroneously. I reject this submission (as no error of fact or law has been identified let alone shown). The Member has clearly not dealt with this evidence on the basis that actual causation of injury needed to be shown.
The appellant’s submission goes on to say, “this finding was erroneous and inconsistent with [Lobley]” because during the employment with Orica the worker “conducted inspections of a factory involved in metal manufacturing and wore hearing protection” and “was required to raise his voice and shout to be heard”. I do not accept this submission either. It is not quite correct to say the Member based her findings on the evidence of Dr Cope. In the context of unravelling the evidentiary inconsistencies, she noted the worker’s evidence was different to the history recorded by Dr Cope, with the worker estimating 95% of his time working in an office which was not noisy and then going to a noisy site two to three times per year, but would only be in the noisy workshop for up to 15 minutes, whereas Dr Cope recorded the worker being exposed to noise from metal fabrication and trucks for one hour per day, two to three times per week, having to raise his voice generally in order to communicate at a distance of 1 m. The Member said this history is not repeated otherwise in the evidence and is also difficult to reconcile with the comments in his reports otherwise that the worker denied any noise exposure during the Orica employment.
The Member noted that the closest account to that recorded in Dr Cope’s table is that given by Dr Tamhane in his 2024 report, but that Dr Tamhane’s history of noise exposure was about double that recorded in Dr Cope’s tables. She then expressed concern about the detail of noise exposure in Dr Tamhane’s 2024 report being difficult to reconcile with the lack of any such history in his first report where he only relevantly recorded that the worker’s employment with Orica was mainly office-based with only intermittent noise exposure when visiting the factory and denying any loud and/or continuous noise. Importantly, the Member also noted that it was not clear why the more detailed account in the 2024 report was not recorded in the 2022 report. There was no explanation for this inconsistency. As noted earlier, she also observed that Dr Tamhane’s “revised opinion” in his 2024 report appeared to have been influenced by the “additional information” consisting of the sheet-metal abstract.
Thus, the Member did not substantially base her decision on the opinions of Drs Cope or Tamhane. She noted there were significant inconsistencies between the histories taken by both those doctors, and unexplained inconsistencies in the histories taken between Dr Tamhane’s 2022 and 2024 reports. She did find it “significant that both Dr Cope and Dr Tamhane (at least in his initial report) formed the view that even with the weekly exposure described in their reports, (Orica) was not the last noisy employer”. But it was not of itself erroneous to take these matters into account. It also appears there is no submission that the Member erred in this respect, except to the extent that she ultimately accepted the Orica employment was not noisy based on the opinion of Dr Cope and Dr Howison which were “not consistent with the legal test” in Lobley – because the worker conducted inspections of a factory involved in metal manufacturing and wore hearing protection at that time and was required to raise his voice and shout to be heard.
The appellant does not make any submissions to how or why the opinions of Drs Cope and Howison did not comply with Lobley. But again, what matters is how the Member dealt with the evidence. If the appellant’s concern relates to what Kirby ACJ said (at 55) – that a worker is not required to prove that actual trauma in the employment caused the loss of hearing, that submission was acknowledged by the Member (at [49] of the reasons). She also noted the submission that the relevant issue was whether the employment was of such a nature as to potentially give rise to hearing loss. There was no controversy about this and reading the Member’s decision as a whole shows that is not the way she conducted the analysis. She analysed the case on the basis of the issue being whether the tendencies, incidents and characteristics of the employment were of a type or nature that could give rise to the injury.
The appellant submits (at [5]) that the Member’s asserted reliance on the opinions of Drs Cope and Howison was erroneous because the worker conducted inspections of a factory involved in metal manufacturing and wore hearing protection at that time and was required to raise his voice to be heard. This submission does not, at least clearly, identify error. It merely appears to request a different outcome on the basis of the evidence and submissions already dealt with by the Member. For example, there is no submission that the Member overlooked this matter. There could not be because she clearly did not. She preferred the evidence of Dr Howison and the worker on the basis that the history in both was “broadly consistent”, and because Dr Howison’s history was arguably more detailed than that taken by either Drs Cope or Dr Tamhane. There is no submission, or at least one giving any detail, that these findings involve error in the sense referred to in Raulston (see paragraph [29] above).
Further and importantly, the Member stated in this respect (at reasons [77]) that “[t]he evidence … demonstrates, however, that the duration of exposure to noise is relevant, as is the nature of the noise” – immediately after having found that there was no evidence before her of the actual noise levels on the Orica factory floor. In my opinion this finding was open to the Member and does not involve any error of fact, law or discretion, nor do I discern a clear argument on appeal that there was any such error. She did acknowledge the appellant’s submission to her that even on Dr Howison’s history, the worker may have been exposed to noise levels greater than 100 dB, at which level there was potential for hearing loss with less than 15 minutes of exposure. But she was not satisfied this accurately summarised Dr Howison’s history. She said Dr Howison rather recorded that the worker said he had to shout for only 1% of the 5% of time when he was exposed to the noise in the factory and mines. A reading of that history[28] shows the Member was correct in that respect, and the appellant has not detailed any error of fact or law even allowing for an inference that an error occurred.
[28] ARD, p 114.
The appellant further says that the Member proceeded “on an analysis of exactly how many minutes of potential exposure the worker was exposed at paragraph 79, [and] … fell into error as this evidence was relevant to whether or not the exposure caused hearing loss or not, not whether the employment was to the nature of the condition. The fact that the worker wore hearing protection in the factory, and had to shout to be heard was sufficient to establish … noisy employment”. I reject this argument as well. Again, the Member did not proceed on the basis that the appellant needed to prove causation. At reasons [79] she was simply doing her best to analyse the limited and inconsistent evidence going to the nature and duration of the relevant noise.
For these reasons, the appellant has not shown the Member erred in either fact or law in finding the appellant was the last noisy employer within the meaning of the 1987 Act, nor did she apply the wrong test by requiring proof of actual causation of the injury.

DECISION

The Certificate of Determination dated 17 June 2024 is confirmed.

Michael Perry
ACTING DEPUTY PRESIDENT

11 March 2025