Despotoski v Qantas Airways Ltd - [2009] NSWWCCPD 42

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Despotoski v Qantas Airways Ltd [2009] NSWWCCPD 42
APPELLANT:		Miroslan Despotoski
RESPONDENT:		Qantas Airways Ltd
INSURER:		Allianz Workers Compensation (NSW) Ltd
FILE NUMBER:		A1 –8596/08
DATE OF ARBITRATOR’S DECISION:		29 December 2008
DATE OF APPEAL DECISION:		17 April 2009
SUBJECT MATTER OF DECISION:		Industrial deafness claim; whether the worker’s evidence was sufficient to discharge the onus of proving ‘ noisy employment’.
PRESIDENTIAL MEMBER:		Acting Deputy President Deborah Moore
HEARING:		On the papers
REPRESENTATION:		Appellant:	Maurice Blackburn Pty Ltd
Respondent:	Sparke Helmore
ORDERS MADE ON APPEAL:		The decision of the Arbitrator dated 29 December 2008 is confirmed. No order as to costs of the appeal.

BACKGROUND TO THE APPEAL

On 21 January 2009 Miroslan Despotoski (‘the Appellant / Mr Despotoski’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision dated 29 December 2008.

The Respondent to the Appeal is Qantas Airways Ltd (‘the Respondent/ Employer’).

The Appellant is presently 60 years old. He commenced employment with the Respondent in 1987 in its division known as Q Catering. Up until about 1998 he was employed in the wash up area, and claimed to have been exposed to noise all day from washing machines and other machinery. Since 1998 he has been employed delivering carts to jet aircraft on the tarmac at Sydney Airport. He claims to have been exposed to significant noise from aircraft engines on the tarmac as well as from loading and unloading trucks in the dock area.

He claimed that, as a consequence of his employment, he suffers from industrial deafness within the meaning of section 17 of the Workers Compensation Act 1987 (‘the 1987 Act’). Notice of his claim was given to the Respondent on 19 February 2008.

There was no dispute that the Appellant suffers from sensori-neural hearing loss of a type that is due to industrial noise. What was in issue between the parties was whether or not the Respondent was responsible for that loss.

On 27 October 2008 the Appellant filed an ‘Application to Resolve a Dispute’ (‘the Application’) in the Commission seeking lump sum compensation and medical expenses pursuant to the provisions of the 1987 Act. The parties attended a conciliation / arbitration hearing on 16 December 2008. Since the claim had not been assessed by an Approved Medical Specialist (‘AMS’) the issue for determination was solely whether or not the Respondent was liable to pay compensation for any hearing loss and any consequential hearing aids.

The Arbitrator found in favour of the Respondent on the basis that the Appellant had failed to discharge the onus upon him to prove that his hearing loss arose out of or as a consequence of his employment with the Respondent.

It is from this decision that the Appellant seeks leave to appeal.

THE DECISION UNDER REVIEW

The ‘Certificate of Determination’ dated 29 December 2008 records the Arbitrator’s orders as…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2009] NSWWCCPD 42
Decision Date: 17 April 2009

CaseChat Overview and Summary

The case of Despotoski v Qantas Airways Ltd involved a claim by the applicant for compensation for industrial deafness sustained during his employment with the respondent. The applicant alleged that his deafness was caused by prolonged exposure to loud noise at work. The matter was heard in the Federal Court of Australia, with the appeal being brought before the court from a decision made by an arbitrator. The respondent, Qantas Airways Ltd, contested the claim, arguing that the applicant had failed to discharge the onus of proving that his employment was noisy and that this noise was the cause of his deafness.

The court was tasked with determining whether the applicant had provided sufficient evidence to establish that his employment was sufficiently noisy to be considered a cause of his deafness. This required the court to consider the nature and extent of the noise exposure, as well as the reliability and sufficiency of the evidence provided by the applicant. The court had to assess whether the applicant's evidence was credible and sufficient to meet the legal standard required to establish a causal link between his employment and his industrial deafness.

The court confirmed the decision of the arbitrator, holding that the applicant had not discharged the onus of proving that his employment was noisy to the extent required to establish the claim. The court found that the applicant's evidence was not sufficient to prove that his exposure to noise at work was the cause of his deafness. The court held that the applicant's evidence did not provide a clear and convincing demonstration of the level and duration of noise exposure, nor did it sufficiently establish a causal link between the noise and the deafness. The court concluded that the applicant had not met the necessary burden of proof to succeed in his claim.

The court confirmed the decision of the arbitrator and made no order as to the costs of the appeal. This decision reinforces the requirement for claimants to provide clear and convincing evidence to establish the causal link between their employment conditions and the injury claimed, particularly in cases involving industrial deafness.

Orders

Orders of the court

The decision of the Arbitrator dated 29 December 2008 is confirmed.

No order as to costs of the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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