Cunningham v State of New South Wales

Cunningham brought an application against the State of New South Wales regarding a claim for workers' compensation for loss of hearing. The matter was heard and determined by the NSW Workers Compensation Commission. The dispute centred on whether Cunningham's employment as a police officer involved activities that had the "tendency, incidents or characteristics" that could give rise to a real risk of industrial deafness. The central legal issue was whether the employment conditions met the criteria set out in relevant case law to warrant compensation.

The court examined the applicable legislation, specifically section 17 of the Workers Compensation Act 1987, and considered the precedents established in Blayney Shire Council v Lobley (1995) 12 NSWCCR 52 and Dawson t/as The Real Cane Syndicate v Dawson [2008] NSWWCCPD 35. These cases established the necessary criteria for determining the risk of industrial deafness in the workplace. The court needed to assess whether the nature of Cunningham's role exposed him to sufficient noise levels to be considered a real risk. The court determined that the evidence presented did not meet the established criteria for compensation, as the exposure to noise was not of a degree that warranted a finding of real risk under the Act.

Consequently, the court confirmed the Senior Arbitrator's determination of 22 February 2017, dismissing Cunningham's claim for workers' compensation for loss of hearing. The decision hinged on the application of the statutory criteria and the relevant case law, which did not support a finding that the employment involved a real risk of industrial deafness.