Electrolytic Zinc Company of Australasia v Maister
[1990] TASSC 29
•10 July 1990
Serial No 23/1990
List "A"
COURT: SUPREME COURT OF TASMANIA
CITATION: EZ Co of Aust Ltd v Maister [1990] TASSC 29; (1990) Tas R 91; A23/1990
PARTIES: ELECTROLYTIC ZINC COMPANY
OF AUSTRALASIA LIMITED
v
MAISTER, Edgar
FILE NO/S: LCA 105/1898
DELIVERED ON: 10 July 1990
JUDGMENT OF: Underwood J
Judgment Number: A23/1990
Number of paragraphs: 57
Serial No 23/1990
List "A"
File No LCA 105/1989
ELECTROLYTIC ZINC COMPANY
OF AUSTRALASIA LIMITED v EDGAR MAISTER
REASONS FOR JUDGMENT UNDERWOOD J
10 July 1990
This is an appeal from an order of the Workers' Compensation Commissioner, brought pursuant to the provisions of the Workers' Compensation Act 1988, s63 which provides:
"(1)If any party to a proceeding before the Commissioner is aggrieved by any determination, order, ruling, or direction of the Commissioner in point of law, that party may appeal to the Supreme Court.
(2)An appeal under this section shall be instituted, heard, and determined in accordance with the provisions of the Supreme Court Civil Procedure Act 1932 and the Rules of Court made under that Act."
The learned Commissioner determined that the respondent was entitled to a payment in respect of industrial deafness and ordered the appellant to pay the respondent $9,070.45. This amount was calculated in accordance with the provisions of ss71 and 73.
The Issue
Is an employer liable to pay compensation in accordance with the provisions of the Workers' Compensation Act 1988, to a worker who has industrial deafness but is not incapacitated by reason of that condition and who is unable to establish that any loss of hearing has occurred since the Act came into force?
Some background to this appeal
On 16 March 1989 another employee of the appellant, Mr Arthur Fisher, made a claim under the 1988 Act for compensation for industrial deafness. At that time, Mr Fisher was not incapacitated for work and not able to establish that he had suffered any binaural loss of hearing since the Act came into operation on 15 November 1988. The claim was determined by the learned Commissioner in favour of the worker. He gave written reasons for the determination. The appellant appealed to this Court against the determination. At the hearing (before me) the question of the jurisdiction of the Court to make consequential orders on the determination of an appeal was raised with counsel for the appellant. He made a concession that the Court had no jurisdiction to make any consequential order on the determination of the appeal and in result, the appeal was dismissed. The appellant later sought to revive the matter by an application to recall the order of dismissal. The application was refused. See Ez Co v Fisher, Underwood J 31/1989 (21 August 1989).
I interpolate here that it is now common ground that this Court has full power to make appropriate orders consequential upon the determination of an appeal. See Rules of Court, O76, r55 and Supreme Court Civil Procedure Act 1932, s197(3).
On 22 February 1989 the respondent made a claim for compensation in respect of industrial deafness. It was determined by the Workers' Compensation Commissioner on 21 September 1989. This determination was delayed to await the outcome of Mr Fisher's appeal. As that appeal was concluded without resolving any substantive question of law, the learned Commissioner called the parties before him. What transpired appears from the following passage in the learned Commissioner's determination:
"On the 15th of September they [the parties to this appeal] appeared before me again and tendered an agreed statement of facts. I stated that in my opinion the facts agreed upon were in principle no different from those the subject of the aborted appeal. I stated the point of law was the same and I stated that my decision was the same. I adjourned the further hearing until the 21st of September and undertook to deliver a written decision on that day."
Further on, the learned Commissioner said that Mr Fisher's case was "directly applicable" to the respondent's claim and that "I ought therefore to apply the same reasoning to the facts in this case". Thus, on the resolution of this appeal it is appropriate to have regard to the learned Commissioner's reasons for determination in Mr Fisher's case.
The material facts
In his reasons in the present matter the Commissioner set out what he described as the agreed facts. However, it was common ground on the hearing of the appeal that a number of them were either not facts or not agreed facts. Fortunately, nothing turns on this, as the parties agreed on the hearing of the appeal that, insofar as the "agreed facts" included propositions of law, those propositions are correct and, insofar as they are inferences drawn by the learned Commissioner, they are the only inferences that can reasonably be drawn.
The learned Commissioner set out the agreed facts as follows:
"1The claimant was born on the 7th of August 1928. He has been employed by the employer for over 30 years. He was and is a worker within the meaning of the Workers Compensation Act 1988.
2He is presently employed as a shift operator in the leaching division of the employer's plant.
3His binaural hearing loss was measured in December 1988 and checked again in May 1989. The agreed average percentage hearing loss of both ears is 29.5%. All tests were carried out in accordance with the Act and Regulations.
4The claimant has suffered a permanent loss of hearing caused by exposure to industrial noise in his employment by his employer over about the past 30 years. At no time has the claimant ever been either totally or partially incapacitated by reason of his progressive deafness. There is no present incapacity for work.
5While it is agreed that the deafness has been progressively caused by his employment over about 30 years, there is no evidence that any degree of deafness has been caused by his employment since the 15th day of November 1988.
6Thus if the claimant is lawfully entitled to compensation it is agreed that the applicable formula is 29.5% x 113 x basic rate ($272.10), that is a total of $9,070.45 in accordance with Section 71 of the Act.
7The claimant made a formal claim for compensation for his deafness on the 22nd day of February 1989. The claim was made in the prescribed form and was accompanied by a prescribed certificate from a medical practitioner. The claim was made in accordance with the provisions of Sections 32 and 34 of the Act. This was the claimant's first claim for compensation for deafness under the 1988 Act. No claim for compensation for deafness was ever made under the 1927 Act."
It should be noted that counsel were not in agreement that the basic rate referred to in para6 was the "applicable" basic rate but they did agree that it was the basic rate at the date the 1988 Act came into force.
The Workers' Compensation Act 1927
Section 5 of this Act defined the circumstances which give rise to an employer's liability to pay compensation:
"5(1) If in any employment a worker suffers personal injury by accident, or is disabled or dies as the result of a disease, arising out of and in the course of the employment, his employer shall, subject to this Act, be liable to pay compensation in accordance with the provisions of Schedule I:
Provided that no such compensation shall be payable in respect of any disease arising before the commencement of this subsection out of and in the course of any employment in which the worker was employed.
.....................................................
(4) The disablement or death of a worker by disease shall be treated as the happening of an accident."
A disease was defined by s3(1) as:
"Any disease or condition specified in Schedule II, and includes the aggravation, acceleration, or recurrence of any such disease or condition".
Schedule II included "the condition known as industrial deafness". Schedule I, r.7 provided a formula for calculating the amount payable for that condition. In Boucher v Motors Pty Ltd [1976] Tas SR 130 it was held that disablement or incapacity for work was a condition precedent to liability to pay compensation for industrial deafness. Chambers J said at p 141:
"My judgment is to be taken as authority only for the proposition that a worker suffering from the condition known as industrial deafness caused by his employment but who has not been prevented thereby at any time from earning his full wages in that employment prior to his retirement on other grounds, is not entitled to compensation under the Workers Compensation Act 1927."
See also Petrov v AB Moore Pty Ltd [1981] Tas R 380. As the respondent has never been incapacitated for work by reason of his industrial deafness, the appellant incurred no liability to pay compensation for this condition under the 1927 Act.
The 1988 Act
This Act repealed the Workers' Compensation Act 1927. Liability to pay compensation arises upon the happening of the events prescribed by s25 which provides:
"(1) If in any employment –
(a)a worker suffers an injury, not being a disease, arising out of and in the course of his employment; or
(b)a worker suffers an injury, which is a disease, arising out of and in the course of his employment and to which his employment contributed to a substantial degree,
his employer is, except as otherwise provided by this Act, liable to pay compensation in accordance with this Act.
(c)to the worker; or
(d)if the injury results in the death of the worker, to the persons who are the worker's dependants at the date of his death or who would, but for any incapacity due to the injury, have been his dependants."
Section 25(1) of the 1988 Act effected the following material changes to the law as enacted by the 1927 Act, s5(1):
1In the case of an injury not being a disease, the relevant event is "an injury" instead of "personal injury by accident".
2Subject to s3(5) and (6), in the case of an injury which is a disease, liability is no longer dependent upon incapacity or death resulting from the disease but is dependent upon the disease being one to which the employment contributed to a substantial degree.
The opening words of the 1927 Act, s5(1), "If in any employment a worker suffers ...", are re–enacted in the 1988 Act, s25(1). In the repealed legislation the only object of the transitive verb "suffers" is "personal injury by accident", but s25(1) of the 1988 Act makes both an injury, not being a disease and an injury which is a disease objects of the governing verb.
The use of the verb "suffers" in its transitive form has been used in workers' compensation legislation in this State since 1947 to identify the time when an employer incurs liability to pay compensation. As Neasey J observed in Fenton v JC Hutton Pty Ltd [1972] Tas SR (NC) 11 unrep 34/72 at p2:
"[it is a] well understood principle of the workers' compensation legislation that the rights and liabilities of the worker and the employer respectively to receive and to pay compensation were vested at the time of the injury."
This decision was followed by Brettingham–Moore J in Riley v State Fire Commission 75/1984.
It has long been accepted in the field of workers' compensation, as between employer and employee that, when a worker suffers a relevant event in the prescribed circumstances, there is imposed on the employer an immediate obligation to pay compensation when, and to those persons and in the amounts which the Act specifies, in relation to events which may thereafter occur and which result from the relevant event. See Ogden Industries Pty Ltd v Lucas (1968) 118 CLR 32 at p42; Moakes v Blackwell Colliery Co [1925] 2 KB 64; Kraljevich v Lake View & Star Ltd (1945) 70 CLR 647; Fisher v Hebburn Ltd (1960) 105 CLR 188 at pp202, 203. It may be noted here that the Tasmanian Parliament used the same verb in the same form for the same purpose in the Motor Accidents (Liabilities and Compensation) Act 1973, s23(1).
The adoption in the 1988 Act, s25(1), of a form of words used in the 1927 Act, well understood and judicially interpreted, to determine the moment when rights and liabilities between employer and employee become vested, inescapably leads to the conclusion that Parliament intended to give those words the same meaning that has always been given them. There is nothing in the Act to indicate to the contrary. As was the case under the 1927 Act, later sections quantify the extent of a liability incurred as provided in s25(1) and identify the persons to whom or in respect of whom compensation is to be paid.
There is nothing in the words of the 1988 Act to justify construing s25(1) to mean that liability to pay compensation accrues upon a worker "suffering from" an injury as did the learned Commissioner when he said in his reasons for determination in Mr Fisher's case at p18:
"When the sun rose on November 15th [the date the 1988 Act came into force] the worker in this case did not cease to 'suffer' from his impairment within the meaning of the word 'suffer' in s71. In my opinion the omission of the word disabled in s25 of the Act had the result that the worker became the holder of a contingent right to claim compensation in respect of his industrial deafness on November 15th. He has continued to suffer from his disease of impairment each and every day since then. His contingent right to claim compensation was perfected on the 16th of March last when he made a formal claim for compensation by serving a claim upon his employer in accordance with ss 32(2) and 34 of the Act."
It would appear that the learned Commissioner fell into error, firstly by concluding that s71 itself created a liability to pay compensation (p7) and secondly by inferring from unidentified material that Parliament intended "to overcome the effect of Boucher's case". Section 71 only operates to quantify the amount of compensation "payable ... under this Act"; viz payable in discharge of liability incurred by reason of the occurrence of the matters set forth in s25(1), para (a) or (b).
With reference to the Workers' Compensation Act (Vic), s11(1), a section in similar terms to s71 (Tas), Murphy J (with whose reasons the other members of the court agreed) said in Howe v Simmons Bedding Co Pty Ltd [1980] VR 177 at p182:
"It is of course s5 [the equivalent of s25(1) of the 1988 Tasmanian Act] alone which creates the liability in the employer to pay compensation to the worker and s11 is not expressed to be anything more than a section with a Table attached fixing amounts of compensation in an arbitrary way for what used to be called a Table of Maims. When 'personal injury' within the context of s5 occurs, liability to pay compensation springs up in the employer.
Thereafter it is simply a matter of looking at the consequences to see whether compensation is payable under the general provisions of s9, or under the special arbitrary provisions of s11, or under s26."
Until the worker suffers a compensable injury being one of the injuries set out in s25(1)(a) or (b) the employer is under no liability to pay compensation.
It is a well established cannon of statutory construction that an Act will not be construed to have retrospective operation in the absence of a clear intention to the contrary. Reference is often made to the following passage in the judgment of Dixon CJ in Maxwell v Murphy (1957) 96 CLR 261 at p267:
"The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events."
In Fisher v Hebburn (supra) Fullager J said at p194:
"There can be no doubt that the general rule is that an amending enactment – or, for that matter, any enactment – is prima facie to be construed as having a prospective operation only. That is to say, it is prima facie to be construed as not attaching new legal consequences to facts or events which occurred before its commencement."
In Sunshine Porcelain Potteries Pty Ltd v Nash [1961] AC 927 the Judicial Committee said at p938:
"Generally, there is a strong presumption that a legislature does not intend to impose a new liability in respect of something that has already happened, because generally it would not be reasonable for a legislature to do that. So if a worker has already sustained injury or contracted a disease at a time when the employer is under no statutory liability to him arising out of that injury or disease, there would in general be a presumption that an Act bringing that injury or disease within the scope of compensation would not apply to that case: otherwise there would be liability on the employer arising out of a state of things which existed before the Act was passed. But this presumption may be overcome not only by express words in the Act but also by circumstances sufficiently strong to displace it."
There is nothing in the provisions of the 1988 Act to suggest that Parliament intended s25(1) to have retrospective operation. Indeed, s4(3) provides that the Act does not apply "in respect of an injury which occurred" before the date of commencement. It follows that, in order to establish liability against the appellant under s25(1) (a) or (b), the respondent must show that on or after 15 November 1988 he suffered an injury arising out of and in the course of his employment and, if that injury was a disease, it was one to which his employment contributed to a substantial degree.
Whether the injury which grounds liability to pay compensation is a disease or not, the word "suffers" connotes, as it did under the repealed legislation, a definable point in time when the injury was suffered, sustained, occurred to, or befell the worker. It is the occurrence of injury in the circumstances prescribed by s25(1) (a) or (b) which attracts the liability to pay compensation. The date the injury was suffered is significant for other purposes. For example, it determines the value of the unit used to quantify the extent of liability pursuant to ss67, 69(6) and 73, (cf 1927 Act, s3(5) Schedule I, r1(1)) and it determines the period within which proceedings to recover damages may be commenced, (cf s135(1) 1927 Act, s9(7)).
The employer is liable to pay compensation in accordance with the 1988 Act only if the worker suffers an injury in the circumstances set out in s25(1)(a) or (b) on or after the 15 November 1988.
By s3(1), industrial deafness is defined to mean "permanent loss of hearing caused by exposure to industrial noise in a worker's employment". It is a well recognised condition. The statutory definition is consistent with the description given it by Barwick CJ in Commissioner for Railways v Bain (1965) 112 CLR 246 at p251:
"It seems that boilermaker's deafness results from successive impacts of sound on the terminal nerve system connected with hearing and that the effect of these successive traumas is to cause cumulative deterioration in the capacity to hear. Apparently it does not, as a rule, incapacitate a boilermaker from following that occupation."
With respect to this passage Fullager J said in Burles v AA Mitchell Pty Ltd [1979] VR 417 at p423:
"We were invited by each side to take judicial notice of the matters of fact referred to in this statement by the learned Chief Justice, and the law reports of the last 15 years show that we are clearly justified in doing so."
Section 3(1) further provides that, unless the contrary intention appears, "injury includes a disease" and disease means "any ailment, disorder, defect or morbid condition, whether of sudden or gradual development".
It is apparent that many "conditions" may be both an injury and a disease as defined.
The learned Commissioner made no express finding that the boilermaker's deafness suffered by the respondent was an injury which is a disease within the meaning of the 1988 Act although the following passage appears at p18 of his reasons for determination in Mr Fisher's case:
"Turning now to the provisions of the Tasmanian Act, in my opinion industrial deafness must be regarded as a disease by virtue of the definition of disease in the Act. True it is a special case of a disease because it is separately defined in the Act and special provisions in the Act deal with it, (See Sections 32(2), 71, 73 and 78). It is a disease of impairment."
The learned Commissioner returned to this question at the end of his reasons for determination. He made it clear that industrial deafness "must only be regarded as a disease and a continuing disease at that." Without challenging the conclusion that industrial deafness is an injury which is a disease within the meaning of the 1988 Act, I confess to experiencing no little difficulty in following the reasoning of the learned Commissioner that led to his conclusion.
Assuming that the respondent's deafness is a disease it is necessary to ascertain when he suffered the disease to determine whether he acquired a right to compensation under the 1988 Act. In the case of a disease of gradual development it is often difficult to prove when the disease was suffered, and the entitlement to compensation arose. Under the 1927 Act, which limited the number of compensable diseases to those enumerated in Schedule II, incapacity or death as a result of a disease was the event which gave rise to a right to compensation. In the 1988 Act, which very considerably extended the scope of compensable diseases, s3(5) and (6) notionally define the time a disease is suffered within the meaning of s25(1)(b).
"3–(5) For the purposes of this Act, where a worker suffers an injury that is a disease, that injury shall be deemed to have occurred –
(a)on the day on which the worker became totally or partially incapacitated by reason of that injury; or
(b)if a day cannot be ascertained under paragraph (a), on the day on which a medical practitioner has certified that the worker was first incapacitated by reason of that injury.
(6) Where a medical practitioner is unable to certify as to the day on which a worker was first incapacitated by reason of an injury referred to in subsection (5) or where there is a dispute as to the day on which such an injury occurred, the matter may be referred, as prescribed, by the worker or his employer, to the Commissioner for determination as to the day on which the injury occurred and the day so determined by the Commissioner shall be deemed to be the day on which that injury occurred."
In his reasons for determination in Mr Fisher's case, the learned Commissioner described these sections as transition provisions. However that description fails to give full weight to the opening words, "For the purposes of this Act ...".
Section 4(3) and (4) are transitional provisions:
"4–(3) This Act does not apply in respect of an injury which occurred before the day fixed under section 2 (2). [The date of commencement].
(4) In relation to an injury to which this Act does not apply by virtue of subsection (3), the repealed Act continues to apply as if this Act had not been enacted and any claim, application, matter, or proceeding in relation to such an injury shall be heard and determined as if this Act had not been enacted."
In the case of an injury that is a disease, s3(5) and (6) apply, not only to s4(3), but also to s25(1)(b) and other provisions in the Act such as ss32 (excepting cases of industrial deafness), 67, 69(6) and 78. In part they maintain the concept in the 1927 Act that in the case of a disease, the right to receive compensation (in accordance with the Act) is dependent on incapacity by reason of the disease. In part they introduce into the Tasmanian Act a concept, common in other States, of deeming a notional date as the date on which the disease occurred. (See for example Workers' Compensation Act (Vic) s12). The effect of a similar deeming provision, the Workers' Compensation Act (NSW), s7(5) was considered in Coates v Commissioner for Railways (1961) 78 WN (NSW) 377. The subsection provided:
"For the purposes of subsections four and (4A) of this section and of sections forty–four and fifty–three of this Act the injury shall be deemed to have happened at the time of the worker's incapacity." [My emphasis].
Kinsella and Collins JJ said at p384:
"The third submission of counsel for the respondent, in relation to s7(5) was that notwithstanding the provisions of s7(5) the worker was entitled to establish, and had established as a matter of evidence, that he had in fact received the injury alleged before he filed this application. This proposition, however, involves a direct contravention of the terms of s7(5). That subsection provides for what James LJ, in Ex parte Walton. In re Levy (1881) 17 Ch D 746 at p756 describes as 'a statutory fiction'. Where a statute provides that something shall be deemed to be a fact, it is necessarily implicit in such a provision that the assumption shall be made if necessary contrary to fact; and it is not open to a worker, against whom the provision operates that the injury shall be deemed to have happened at a certain point of time, to seek to establish that he has in fact received the injury before that time.
We are of opinion that s7(5) so operates as to prevent a worker who has not suffered any incapacity, from establishing that he has received an injury within the meaning of s7(4), and consequently that his Honour erred in law in making an award in favour of the worker on that basis."
In Muller v Dalgety & Co Ltd (1909) 9 CLR 693 Griffith C. J at p696 described the statutory use of a deeming provision as creating a statutory fiction and emphasised the importance of considering the purpose for which the fiction was introduced. See also City of Hobart v Chen& Ors [1966] Tas SR 271 at p277; Wainer v Rippon (1979) 29 ALR 643 at p650.
Having expanded very considerably the compensable diseases provided for by the 1927 Act, thereby consequentially creating evidentiary difficulties in establishing the date upon which liability to pay compensation in respect of such diseases arises, the Legislature, by s3(5) and (6) created a number of alternative statutory fictions to establish such date.
In the present case, assuming the respondent's condition to be an injury which is a disease, the absence of evidence to satisfy any of the criteria laid down in s3(5) or (6) means that the respondent has failed to establish that he has suffered a disease within the meaning of s25(1)(b). It follows on this assumption, that he is not entitled to receive a lump sum calculated in accordance with ss71 and 73. If in the future he is able to establish one of the matters in s3(5), or, in the events described in subs(6) the Commissioner makes an appropriate determination, he will be able to satisfy the provisions of s25(1)(b) and, having regard to s4(3) will have an entitlement to compensation under the 1988 Act.
As mentioned earlier, the learned Commissioner appears to have approached the task of ascertaining the will of Parliament upon an assumption that it intended to provide for the payment of lump sum compensation in respect of industrial deafness regardless of the existence of a resultant incapacity for work. The following passage is taken from his reasons for determination in Mr Fisher's case, p10:
"It is a new Act. Among other things it has extended the range of benefits to employees, set up a new method of settling disputes, set up a Board to monitor and measure the working of such legislation for the first time, set up rehabilitation procedures, and made it possible for employees to get compensation without undue delay or expense. Of course violence cannot be done to the plain language of the Act, but the legislature ought to be given the credit for having had a sincere intention to compensate workers for industrial deafness. In the present case the employer's submission if successful will result in the industrial deafness provisions being little more than a sham. As I have already observed, in most cases industrial deafness is caused over many years with no incapacity for work so that for the present the practical effect would be that no claims can be made for industrial deafness under either the old Act or the new Act. As the years roll by and employees perhaps commence to make claims, the employers will then no doubt retreat to the next line of defence. I imagine that few employees were astute enough to take audiometric tests soon after November 15th. If employees claim for industrial deafness in the future they are liable to be met with the reply that since they cannot prove how much of their hearing loss was attributable to their employment before November 15th 1988 their claims must fail. And doubtless other arguments based upon a meticulously literal interpretation of the Act are available to defeat the will of our legislature with regard to industrial deafness (and no doubt progressive loss of sight)."
The provisions relating to an injury which is a disease govern all compensable diseases as widely defined, not just industrial deafness. Had the legislature intended to overcome the effect of Boucher's case in cases of industrial deafness it could easily have done so by an express provision. At first sight it might be thought that s32(2) indicates an intention to make industrial deafness compensable notwithstanding absence of incapacity for work. Section 32(1) makes provision for the giving of notice of injury within a specified time after "the occurrence of the injury" as a condition precedent to entitlement to compensation. Subsection (2) provides:
"(2) Subsection (1) does not apply to industrial deafness, but proceedings for the recovery under this Act of compensation in respect of industrial deafness are not maintainable unless the claim for compensation is made while the worker is still in the employment of the employer or within 6 months after the termination of that employment."
However that subsection is in substantially the same terms (apart from the period of time) as its predecessor in the 1927 Act, s11(1A) which provided:
"(1A) Subsection (1) does not apply to the condition known as industrial deafness, but no proceedings for the recovery under this Act of compensation in respect of that condition is maintainable unless the claim for compensation is made while the worker is still in the employment of the employer or within 3 months after the termination of that employment."
Both provisions are consistent with the proposition that the incapacity may be partial incapacity not resulting in termination of employment (Petrov v AB Moore Pty Ltd (supra)) and consistent with the construction that if industrial deafness is an injury which is a disease it is not suffered prior to the notional date referred to in s3(5) and (6). Nothing can be discerned from either the words of the 1988 Act, its general purpose or the changes it made to the 1927 Act to indicate that Parliament intended to alter the effect of the decision in Boucher's case.
A conclusion that the respondent's industrial deafness was an injury which is a disease does not, as a matter of statutory construction, necessarily exclude a finding that it was an injury, not being a disease.
The Public Trustee (WA) v State Energy Commission (1979) 142 CLR 211 is authority for the proposition that boilermaker's deafness or industrial deafness is not a "personal injury by accident". Gibbs J (as he then was) said at p225:
"Hearing loss, caused by a sudden explosion, would in my opinion clearly be personal injury by accident within s 7, notwithstanding that noise induced hearing loss is specified as a disease in the Third Schedule to the Act. However, the deafness from which the worker suffered in the present case developed slowly and gradually, as the result of exposure to noise over many years. Such a disability cannot in my opinion be described as 'personal injury by accident' within the meaning which has been authoritatively applied to that expression in workers' compensation legislation, or within its ordinary meaning.
In Weston v Great Boulder Gold Mines Ltd (1964) 112 CLR 30 at p34, Menzies J said:
'It has been established since Fenton v Thorley & Co Ltd (12) that when a worker is injured in his employment by an unlooked–for mishap or an untoward event which is not expected or designed by the worker himself, there is injury by accident for the purposes of the Workers' Compensation Act ...'.
There may be a series of such events which result in the injury, and it is not necessary that the time at which any accident occurred should be established (provided that it was sufficiently related to the employment). However, if the disability or disease has developed by a continuing process, over a long period, it cannot be said to be injury by accident."
However, the 1988 Act, s25(1)(a) has abandoned the description "personal injury by accident" used in the 1927 Act and refers only to "an injury not being a disease". In the context of this paragraph injury remains undefined by the Statute save to exclude "any ailment, disorder, defect, or morbid condition, whether of sudden or gradual development".
In Coates v Commissioner for Railways [1964] NSWR 1292 the Full Court held that boilermaker's deafness was an injury within the meaning of the New South Wales Act, s6, which defined injury to mean:
"Personal injury arising out of or in the course of employment and includes a disease which is contracted by the worker in the course of his employment ... and to which the employment was a contributing factor ...".
Walsh J referred, at p1295, to the evidence given in that case and in Milne v Internal Combustion of Australia [1953] WCR 80. In the latter decision, Rainbow J held (p95), on the evidence given as to the cause of the worker's deafness, that it could not be described as a disease, but only as an injury. Walsh J adopted the conclusion of Rainbow J and said at pp1295–6:
"But the argument here being considered seems to me to rest upon a mistake as to the way in which the term 'injury' should be understood and upon confusion between an injury and the causes which, according to expert evidence, have produced it. In relation to a case such as the present, I think it can properly be said that an injury occurs when, and not until, there has been a significant and measurable diminution of hearing. We are concerned with an Act which provides compensation for injury. An injury may result from many small causes, but it is not until these have had an appreciable effect that it can be said that an injury has occurred. Of course, the stage which must be reached to attract compensation was fixed formally [sic] in all cases, and now in many cases, by reference to incapacity. Where that reference point is not available, it seems reasonable to adopt the view which I have stated rather than to adopt the view which the argument puts forward which would prevent s 16 from ever being applicable to a claim such as this. The view I have taken seems also to accord with the reasoning in Burrell (Charles) & Sons Ltd v Selvage (1921), 14 BWCC 158; [1921] All ER 122, and Fitzsimons v Ford Motor Co Ltd (Aero Engines) (1946), 39 BWCC 26; [1946] 1 All ER 429, although it may be granted that they are not directly in point in a case such as this in which no incapacity is involved."
In Burles v AA Mitchell Pty Ltd (supra) the majority of the Full Court held that in a case of industrial deafness an injury "occurred" at every point in time when there is shown to exist a new state of affairs or result of "partial loss of hearing of both ears" the extent of which can be ascertained from the evidence (p427).
For the purpose of resolving this appeal I do not think it necessary to pursue the question of whether the respondent's deafness is an injury which is not a disease. The definition of industrial deafness encompasses work caused deafness from a single exposure to noise such as a boiler explosion, as well as deafness caused gradually by prolonged exposure to noise. However the agreed fact is that the respondent's permanent loss of hearing was caused by exposure to industrial noise over "about the past 30 years". That condition is clearly "a disorder or defect of gradual development" and accordingly a disease as defined by s3(1). Even if that deafness, or a measurable and measured increase in that deafness, can also be described as an injury it is not a compensable injury.
Section 25(1)(a) refers to "an injury not being a disease". Incorporating the definition of disease into that paragraph produces the following:
S25 – (1)(a) If in any employment a worker suffers an injury, not being any ailment, disorder, defect, or morbid condition, whether of sudden or gradual development arising out of and in the course of his employment his employer is ... liable to pay compensation.
It may be that there are many "conditions" which would ordinarily be described as injuries but which would also be diseases within the meaning of the Act. In such cases a right to compensation would only arise under s25(1)(b), as s25(1)(a) confers a right only with respect to an injury not being a disease. It seems to me that those are the plain words of the Act. This is a significant matter because:
(i)in the case of an injury which is a disease the right to compensation is dependent on proof that the employment contributed to the injury to a substantial degree.
(ii)in the case of an injury which is a disease the injury only occurs on the notional date prescribed by s3(5) or (6).
(iii)no liability to pay a lump sum referred to in s71 arises until after the injury has occurred in accordance with s3(5) or (6).
(iv)the evidentiary provision, s25(5) applies only to injuries, not being a disease.
(v)the evidentiary provision, s26(1) is limited in its scope having regard to the extended meaning given the word disease by s3(1).
Whether the foregoing was intended I doubt, but it seems to me that the words of s25(1)(a) are so clear as to admit to no other construction. The compensable event is there described as "an injury, not being a disease", as defined by s3(1). If the injury suffered comes within the definition of disease, a right to compensation can only arise under s25(1)(b).
However further examination of this problem is unnecessary to determine the present matter.
Before concluding these reasons it is perhaps appropriate to refer to s73. At the outset it should be noted that s73 only comes into operation "where compensation is payable to a worker under s71" so it confers no independent right to receive compensation. It is confined to the manner in which the amount of compensation payable under either item 23 or item 24 of s71 is assessed. It provides that the amount is to be calculated with reference to the prescribed percentage as defined by subs(2).
Conclusion
1 The respondent has not suffered an injury, not being a disease.
2 The respondent has not suffered an injury being a disease.
3 The appellant has incurred no liability to pay the respondent compensation.
The appeal will be allowed. I will hear counsel with respect to any consequential orders that should be made.
0
9
0