Elias Fadlallah v Canterbury City Council
[2004] NSWWCCPD 6
•19 August 2003
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Elias Fadlallah v Canterbury City Council [2004] NSW WCC PD 6
APPELLANT: Elias Fadlallah
RESPONDENT: Canterbury City Council
INSURER:GIO Workers Compensation
FILE NUMBER: WCC7401-2003
DATE OF ARBITRATOR’S DECISION: 19 August, 2003
DATE OF APPEAL DECISION: 2 February, 2004
SUBJECT MATTER OF DECISION: Whether the Respondent Employer was the last noisy employer for the purposes of payment of compensation, pursuant to section 17(1) of the Workers Compensation Act, 1987.
PRESIDENTIAL MEMBER: Deputy President Gary Byron
HEARING:Determined ‘on the papers’
REPRESENTATION: Appellant: Villari & Co Lawyers
Respondent: GIO General Limited
ORDERS MADE ON APPEAL: Leave to Appeal the decision of the Arbitrator is granted.
The decision of the Arbitrator is revoked and the following decision is made in its place:
The Respondent Employer is liable for payment of the Appellant Worker’s claim for compensation under section 60 and 66 of the Workers Compensation Act 1987.
The matter is returned to the Registrar for referral to an Approved Medical Specialist for purposes of assessment, and the determination of outstanding issues.
BACKGROUND TO THE APPEAL
On 16 September, 2003 Elias Fadlallah (‘the Appellant Worker’) lodged an ‘Application - Appeal Against Decision of Arbitrator’ (‘the Application’) in the Workers Compensation Commission (‘the Commission’), against a decision of an Arbitrator, dated 19 August, 2003. The Application was registered by the Commission on 13 October, 2003.
The Respondent to the Appeal is Canterbury City Council (‘the Respondent Employer’), and the Insurer is GIO Workers Compensation (‘the Insurer’).
Following receipt of the file, I issued directions to the parties on 5 December, 2003. Final submissions were lodged in the Commission on 15 January, 2004.
The basis of the Appellant Worker’s claim for compensation is that he sustained an injury that arose out of and in the course of his employment as a labourer, with the Respondent Employer. The Appellant Worker claims to have suffered an injury to his hearing for which compensation for non-economic loss is payable. The injury is deemed to have occurred on 7 September, 1984 when he ceased employment with the Respondent Employer due to an accident at work in which he injured his back. The Appellant Worker notified the Respondent Employer of the injury on 19 November, 2001. On 19 November, 2001 the Appellant Worker lodged a claim with the Insurer for non-economic loss compensation, in the sum of $10,285.60, and for medical expenses (hearing aids) to the value of $3,100. The Insurer disputed liability for the claim.
The issues in dispute before the Arbitrator were the question of liability and relevant medical issues. The Arbitrator observed that the matter before her “…is a medical dispute within the meaning of the Act. If there is a judgment in favour of the Applicant in relation to liability, then this matter must therefore be referred to an AMS for medical assessment of any one or more of the following issues, for determination:…” The Arbitrator found that the Respondent Employer was not the last noisy employer for the purposes of assessment of compensation, pursuant to section 17(1) of the Workers Compensation Act 1987 (‘the 1987 Act’) and determined that the Respondent Employer was not liable for the payment of the Appellant Worker’s claim under section 60 and section 66 of that Act. The Appellant Worker has appealed the Arbitrator’s decision.
JURISDICTION TO HEAR THE APPEAL
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’), which provides:
352Appeal against decision of Commission constituted by Arbitrator
(1)A party to a dispute in connection with a claim for compensation may, with leave of the Commission constituted by a Presidential member, appeal to the Commission as so constituted against a decision in respect of the dispute by the Commission constituted by an Arbitrator.
(2)The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both:
(a)at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b) at least 20% of the amount awarded in the decision appealed against.
(3)If the Commission refuses to grant leave to appeal, the Commission must state reasons for the refusal in writing to the parties.
(4)An appeal can only be made within 28 days after the making of the decision appealed against.
(5)An appeal under this section is to be by way of review of the decision appealed against.
(6)Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.
(7)On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
(8)In this section, decision includes an award, interim award, order, determination, ruling and direction.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
Leave to appeal was granted by me on 5 December, 2003. The Appellant Worker submitted that the threshold requirements of section 352(2) of the 1998 Act are satisfied and that leave should be granted. The Respondent Employer submitted that leave should not be granted and referred to the fact that the Arbitrator had stated that this was a medical dispute and if liability was established, the matter would need to be referred to an Approved Medical Specialist for the determination of the issues specified by her. The issue of liability is fundamental to the determination of the dispute between the parties and I agree with the Appellant Worker that the amount of compensation at issue on appeal is more than $5,000. Given that the amount awarded was nil, 100 per cent of the compensation sought remains in issue, and section 352(2)(b) has no application. “…the amount of compensation at issue on the appeal” is determined by reference to the amount of compensation at issue in the proceedings before the Arbitrator, at first instance: (cf. Mawson v Fletchers International Exports Pty Limited [2002] NSW WCC PD 5; Grimson v Integral Energy [2003] NSW WCC PD 29). In the instant case, that amount exceeds $13,000. The requirements of section 352(2) of the 1998 Act are satisfied.
ON THE PAPERS REVIEW
Section 354(6) of the 1998 Act provides:
(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.
In lodging his appeal, the Appellant Worker submitted that it might be preferable for the application for leave to appeal not to be decided on the papers. It was further submitted that as the appeal is based on the interpretation of previous Court of Appeal decisions, it would be preferable for Counsel to be available to assist the Commission and that in the circumstances, the appeal should not be decided on the papers. Blayney Shire Council v Lobley & Anor (1995) 12 NSWCCR 52 and Ambulance Service of New South Wales v Daniel & Anor (2000) 19 NSWCCR 697 were cited, and copies of both cases were submitted.
The Respondent saw no reason why the appeal should not be dealt with ‘on the papers’. The Respondent submitted:
“In this regard we submit that there are detailed written submissions by counsel in support of the appeal against the Arbitrator’s decision and there are detailed written reasons for the decision by the Arbitrator …. In these circumstances we submit that this appeal should be determined on [sic] papers.”
On 5 December 2003 I issued directions to the Appellant Worker requiring the lodgment in writing of the further, foreshadowed submissions on the interpretation of the previous Court of Appeal decisions, and to the Respondent Employer requiring the lodgment of any response to those further submissions. The Appellant Worker lodged a further copy of the same written submissions that had been lodged initially and, in these circumstances, the Respondent Employer stated that it had no further response to make.
Having regard to Practice Directions Numbers 1 and 6, and the documents that are before me, including the initial and further submissions by the parties, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances. I reaffirm my decision of 5 December 2003, to do so.
EVIDENCE
The following documents were in evidence before the Arbitrator and are in evidence before me in this appeal:
For the Appellant Worker
·Statement of Elias Fadlallah dated 26 March, 2003
·Medical Report of Dr Prabhat Sinha, the Appellant Worker’s treating Doctor, dated 15 November, 2001
· Report of Gloria Armstrong, the Appellant Worker’s Audiometrist, dated 15 November, 2001
For the Respondent Employer
·Statement of Norman Weeks, dated 18 July, 1985
·Statement of Robert Staines, dated 19 July, 1985
The written submissions of the parties that were before the Arbitrator and those that have been lodged in this appeal are also before me.
A brief outline of the injury and the nature of the claim are set out at page 5 of the Arbitrator’s Statement of Reasons for Decision, as follows:
“13. The Applicant is a 52 year old man. He commenced employment with the Respondent on 21 May 1984. He ceased his employment with the Respondent on 7 September, 1984 following an injury to his back for which compensation was paid by the Respondent.
14.As the Applicant ceased employment on 7 September 1984, under s.17(1)(a)(ii) of the Workers Compensation Act 1987 this date is deemed to be the date of injury if the Respondent was the Applicant’s last noisy employer. He notified the Respondent of the injury on 19 November 2001 and on that date made a claim for lump sum compensation for $10,285.60.
15. As a result of the injury the Applicant claims to have suffered a permanent impairment of 19.78%. However, as this judgment relates to the legal issue as to whether or not the Respondent is the last noisy employer I will not refer to the medical evidence. The Respondent has requested that this matter be referred to an Approved Medical Assessor if liability is found in relation to s.17(1)(a)(ii) and in these circumstances it is not necessary to refer to the medical evidence submitted by either party.”
SUBMISSIONS
For the Appellant Worker
The Appellant Worker submits that he relied upon three pieces of evidence in the proceedings before the Arbitrator. The first is his statutory declaration of 26 March, 2003, in which he declared:
“3. During the course of my last employment with Canterbury City Council, I worked approximately four (4) weeks until my accident and then went on to Workers’ Compensation until I was dismissed on 7 September 1984.
4. During the course of my employment, I was exposed to noise on almost a daily basis. On 3-4 occasions, I spent half a day working in the Canterbury City Council workshop located in Belmore. The reason I was at the workshop was to sharpen tools such as axes and chainsaws which I used on the other days I was working. Whilst in the workshops, I was exposed to noise of other tradesmen and I also used grinders, tool sharpeners and other tools which generated excessive noise. To the best of my recollection, hearing protection was provided at the workshops.
5. In the last 2-3 weeks of my employment, I was assigned to a gang which operated at several parks in the Canterbury District. The jobs I was required to do was [sic] essentially to cut full length telegraph poles into sizes of approximately 3 metres. To do this, I was required to use a chainsaw which was approximately two foot[sic] in length. I was not provided with any hearing protection whilst doing this work. I believe I would’ve cut at least 50 telegraph poles during the time I was working with Canterbury City Council. In fact, the day I hurt my back on 15 June 1984, I was carrying a piece of timber which I had recently cut. I lost my balance and suffered an injury.”
The Appellant Worker also referred to previous employments at Uncle Toby’s, Peek Freans and a Melbourne factory.
The second piece of evidence was the report of Ms Gloria Armstrong, Audiologist, dated 15 November, 2001. The Appellant Worker submits that this recorded his employment history and concluded that he suffered from 19.78 per cent binaural deafness after correction for presbycusis. On the basis of the history provided to her by the Appellant Worker, Ms Armstrong opined that the Respondent Employer was the last noisy employer.
The third piece of evidence was the report of Dr Sinha, General Practitioner, dated 15 November, 2001. The Appellant Worker submits that Dr Sinha stated that he had examined the Appellant Worker on that day and opined “…the results of Audiometric testing are consistent with a history of sustained exposure to high levels of industrial noise in the client’s workplace over a period of time. It is reasonable to attribute…hearing loss to acoustic trauma from exposure to industrial noise sustained in the course of his/her noisy work history, the last noisy employer being Pioneer Smash Repairs of Campsie.”
The Appellant Worker further submits that the Respondent Employer also relied upon three pieces of evidence:
“Firstly, and not surprisingly, the Respondent relied upon the report of Dr Sinha of 15.11.01.
Secondly, the Respondent relied upon a statement of Mr Norm Weeks, acting ganger, of 15.7.85.
Thirdly, the Respondent relied upon a statement of Mr Robert Staines, acting overseer, dated 19.7.85.
The Respondent submitted on 30.7.03 at Paragraph 14(g) that ‘the statements of both Mr Weeks and Mr Staines must be relied upon as both these statements provide a clear description of what activities were carried out and what duties were performed by the Applicant’
That submission was both misleading and wrong.
The statements of both Mr Weeks and Mr Staines address the circumstances of the Appellant’s injury on 15.6.84. They do not address in any way the Appellant’s claim that the Respondent was a ‘noisy employer’.
These statements limit their observations to what took place leading to the Appellant’s injury on 15.6.84 and do not make any comment on exposure to noise in the workshops or the use of noise equipment by the Appellant and others.”
The balance of the Appellant Worker’s submission are substantially as follows:
·The Arbitrator fell into error in finding that hearing protection was provided in the workshop; that the Appellant Worker was not required to spend large periods of time at the workshop, and that there was not enough evidence to prove that chainsaws were part of the requirements for him, for the work that he did in the park.
·In relation to the use of chainsaws for the work in the park, the Respondent Employer’s wrong and misleading submission regarding the statements made, led the Arbitrator to find that the statements provided more reliable evidence than the Appellant Worker’s recollection, and to draw an inference that chainsaws were not part of the requirements of work for him, when no such inference was available to be drawn from the statements. The Appellant Worker’s evidence was that he was assigned to a gang that operated at several parks, but the statements of Mr Weeks and Mr Staines refer to work done at only one park, McDonald Street, Lakemba, on 15 June, 1984. There was no evidentiary basis upon which the Arbitrator could find that chainsaws were not a part of the requirements for work for the Appellant Worker.
·The Arbitrator misunderstood and misapplied Blayney Shire Council v Lobley & Anor and Ambulance Service of New South Wales v Daniel & Anor (supra).
·In Lobley the worker had been employed by the Council from 1974 to 1988 during which period he was exposed to extreme noise conditions without any hearing protection, which caused binaural hearing loss. Subsequent to this employment, he had been employed by Timber Industries where he worked in close proximity to noise machinery but was provided with ear muffs to protect his hearing. The Compensation Court held that the provision of ear muffs by Timber Industries had prevented a finding that the worker’s employment by that organisation was an employment to which injury of industrial deafness was due, and found that the Council was the last noisy employer. The decision was reversed on appeal. The Court of Appeal held that in determining whether an employment was 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 “tendencies, incidents or characteristics” of that employment were of a type which could give rise to the injury that was in fact, suffered. The Appellant Worker submits:
“The Court of Appeal held that it was sufficient for a claimant worker ‘to establish that the employment in which he was engaged occurred in an environment which were he unprotected, could cause injury of the type suffered by him. If evidence establishes that circumstance, the worker satisfies the onus of establishing that at the time of giving notice he was employed in an employment to the nature of which the injury was due.’
Cole JA, with whom Rolfe A-JA concurred, preferred not to express a view as to whether, if an employer were able to exclude the possibility of injury because of protective measures taken, would be able to avoid liability.
Kirby A-CJ held that ‘if an employer contends that notwithstanding the nature of its employment, that it did not in fact cause any hearing loss (and thus that the injury was not due to the nature of the employment) then the forensic onus for exculpating itself falls upon the employer.’
·In Ambulance Service of New South Wales v Daniel & Anor (supra) a different issue was addressed by the Court of Appeal, but in the course of so doing, Hodgson CJ in Equity, with whom Shellar JA and Beazley JA agreed at 707.37 stated:
“…but in any event, I would interpret ‘could’ as used in Lobley not as meaning ‘could as a matter of the barest possibility’, but rather as meaning ‘could as a matter of real risk’. The case of Lobley itself did not concern the degree of risk contemplated by the word ‘could’, but rather the relevance of the provision of protection to the worker, which was sometimes but not always availed of.”
·Having regard to the evidence of the Appellant Worker as to the level of noise exposure and the fact that the Respondent Employer supplied ear muffs in its workshops, there is ample evidence that the Respondent Employer was a noisy employer and that the Appellant Worker’s employment with the Respondent Employer was employment to the nature of which industrial deafness is due. On the evidence, that employment carried with it a real risk of injury. The fact that ear muffs were issued for use in the workshops does not absolve the Respondent Employer from liability. According to Lobley, in order to avoid liability, an onus may well be placed upon the Respondent Employer to provide evidence excluding the possibility of injury because of protective measures taken. No such evidence was provided by the Respondent Employer.
·The proper question to ask was whether the tendencies, incidents or characteristics of the employment are of a type, which could give rise to a real risk of injury in the nature of industrial deafness. The Arbitrator failed to ask this question and to answer it. Instead, the Arbitrator considered that because the Respondent Employer had supplied ear muffs and because the Appellant’s length of exposure to noise was relatively short, the employment did not carry with it a real risk of injury. The Arbitrator misapplied Lobley and fell into error.
For the Respondent Employer
The substantive reply from the Respondent Employer is as follows:
“We are of the view that there are no issues raised in the applicant’s submission for the appeal that were not determined by Arbitrator … in the findings and reasons in the Statement of Reasons for Decision. We submit that Arbitrator … made no error of fact or law, which is appealable and leave to appeal should not be granted. We rely on the Statement of Reasons for Decision by Arbitrator … which have already been submitted to the Commission attached to the application for this appeal.”
DISCUSSION AND FINDINGS
According to his statement of 26 March, 2003, the Appellant Worker has not worked following an incident that occurred on 15 June, 1984, while he was employed by the Respondent Employer. This incident is unrelated to the claim, the subject of these proceedings. According to a letter dated 25 October, 2001 addressed to his Solicitors by the Acting Employee Services Manager of the Respondent Employer, “Council has no records of a previous industrial deafness claim”. A copy of this letter was attached and referred to in the Appellant Worker’s statement of 26 March, 2003, that was in evidence before the Arbitrator.
The statements of Norman Weeks and Robert Staines relate to the incident that occurred in a park in McDonald Street, Lakemba on 15 June, 1984. This is the incident that is unrelated to the claim, the subject of these proceedings, referred to above. Both statements were made in July, 1985 and made no reference to noisy employment. The claim concerning noisy employment was not made until 19 November, 2001, and from a reading of their statements, was not an issue to which either Mr Weeks or Mr Staines, had turned, or was required to turn, his mind, in June, 1984. As indicated above, there was no record of any industrial deafness claim having been made prior to this one. No subsequent statement from either Mr Weeks or Mr Staines was submitted in evidence to clarify or expand upon their initial statements, to include any reference to the issue of noisy employment.
Both Mr Weeks and Mr Staines gave a brief description of the work that was being carried out by them and the Appellant Worker in the park in McDonald Street, Lakemba, in June, 1984. Mr Weeks said: “Our job at the park was to place Koppars Logs around a small hill, to stop soil erosion.” Mr Staines said: “The job entailed repair to the play-ground equipment plus replacement of timber to stop soil erosion on a mound in the centre of the Reserve. The biggest piece of timber that was replaced was a Koppars Log 150mm in diameter by 3 metres long and would weigh approximately 20 kgs.”
In his statement, the Appellant Worker said that he “was assigned to a gang which operated at several parks in the Canterbury District.” He claimed that no hearing protection was afforded at these locations. This evidence has not been refuted but it is noted that the Respondent Employer’s submission to the Arbitrator, dated 30 July, 2003, contains the statement “It is also in evidence that the respondent had a system of providing hearing protection to its employees.” There is in fact, no evidence, apart from the evidence of the Appellant Worker, about the provision of hearing protection to him. Messrs Weeks and Staines were apparently members of this particular gang. There is no reference to this in their statements, or to anything else for that matter, outside of the specific work that was being carried out at the particular time and place of the incident that gave rise to that unrelated claim. What the members of the gang did elsewhere, and the conditions under which they did it, was unrelated to that specific incident and consequently, it bore no relevance to the limited subject matter of their statements. Moreover, the statements of Messrs Weeks and Staines are not necessarily contradictory of the statement made by the Appellant Worker, nor do they give any indication that chainsaws, nor indeed any other implements, were or were not used by the Appellant Worker and others, in carrying out other work, either at that time and place or “at several parks in the Canterbury District.” The Arbitrator indicated that Messrs Weeks and Staines made no mention of noise factors, but found that their evidence was more reliable than the Appellant Worker’s version of events “some 19 years later”, notwithstanding that Messrs Weeks and Staines only outlined the work that was being undertaken by the Appellant Worker at the particular time and place of the unrelated incident. They made no mention of the nature of the work that was carried out or the way in which it was carried out, at other locations and at other times. Simply, their statements related to an entirely different and quite specific issue. I agree with the Appellant Worker that in the absence of any other evidence, there was no evidentiary basis upon which the Arbitrator could find that chainsaws were not a part of the requirements for work for, and were not used by the Appellant Worker in the course of, his employment with the Respondent Employer.
The Arbitrator accepted the evidence of the Appellant Worker that he was required to attend a workshop on three or four occasions to sharpen tools, such as axes and chainsaws, and accepted his evidence that the Respondent Employer provided hearing protection on those occasions. However, he claims that no hearing protection was provided to him, otherwise. It is noted that the Respondent Employer has stated that it is unable to provide expert evidence in relation to noise when the conditions largely complained of were substantially outside conditions, and that it was some nineteen years ago.
In his report dated 15 November, 2001, Dr Sinha expressed the opinion: “It is reasonable to attribute Mr Fadlallah [sic] hearing loss to acoustic trauma from exposure to industrial noise sustained in the course of his/her [sic] noisy work history, the last noisy employer being Pioneer Smash Repairs of Campsie.” However, Ms Gloria Armstrong, Audiologist, opined: “Based on the history given to me, I believe Mr Fadlallah’s last noisy employer to be Canterbury Council.” Both opinions were based on information that was put forward by the Appellant Worker. There is no independent evidence to indicate what exactly the Appellant Worker did say to either Dr Sinha or Ms Armstrong, in providing that information. However, the report by Ms Armstrong, dated 15 November, 2001 sets out in chronological order, the details of his employment history, noting that his employment with Pioneer Smash Repairs was from 1977-1980, other employment from 1980 to 1984, and with Canterbury City Council from 15 June, 1984 to 7 August, 1984. These dates do not exactly coincide with the employment dates that were given in evidence and that were not disputed, but are sufficiently indicative of the relevant period of employment with the Respondent Employer. The Arbitrator made no particular comment or finding in relation to the conflict in opinions expressed by Dr Sinha and Ms Armstrong, preferring to simply list their opinions as part of the totality of the evidence for and against the Appellant Worker. It was open to the Arbitrator to make a finding that the view expressed by Ms Armstrong was at least consistent with the evidence given by the Appellant Worker and therefore, lent some degree of weight to his evidence. Moreover, it is clear that Ms Armstrong was familiar with the chronological details of the Appellant Worker’s work history as set out in her report. By contrast, this is not as clear in Dr Sinha’s case, and is not evident on the face of his report.
In summary, the Arbitrator erred in giving undue weight to the marginally relevant statements of Messrs Weeks and Staines, and was not entitled to totally discount the evidence of the Appellant Worker by reference to those statements, for the reasons given. Moreover, the Arbitrator did not, but could have made a finding in relation to the relative weight to be attached to the statements made by Dr Sinha and Ms Armstrong. The evidence of the Appellant Worker that he was required to use a chainsaw in the course of his employment, and that no hearing protection was provided, is challenged in submissions, but is not refuted by evidence to the contrary. His evidence, regarding noisy employment, is supported by the statement of Ms Armstrong, the Audiologist. It was open to the Arbitrator to note that evidence, give due weight to it, and make her findings, accordingly. There is no dispute that the Appellant Worker was required to undertake some duties in a workshop, a number of times, and that he was provided with hearing protection on these occasions.
The critical issue is the Arbitrator’s finding that the Respondent Employer was not a noisy employer against whom the Appellant Worker may make a claim, pursuant to section 17 of the 1987 Act. Section 17 (1) provides, in part:
“17 Loss of hearing –special provisions
(1) If an injury is a loss, or further loss, of hearing which is of such a nature as to be caused by a gradual process, the following provisions have effect:
(a) for the purposes of this Act, the injury shall be deemed to have happened:
(i) where the worker was, at the time when he or she gave notice of the injury, employed in an employment to the nature of which the injury was due – at the time when the notice was given, or
(ii)where the worker was not so employed at the time when he or she gave notice of the injury – on the last day on which the worker was employed in an employment to the nature of which the injury was due before he or she gave the notice.”
The Appellant Worker bears the onus of proving that the Respondent Employer was a noisy employer, as required by section 17(1) of the 1987 Act: Galdemar v Astar Enterprises Pty Ltd (1998) NSWCC 47; Blayney Shire Council v Lobley & Another (1995) 12 NSWCCR 52 at 55. He is required to prove on the balance of probabilities, that his employment with the Respondent Employer was “…an employment to the nature of which the injury was due…”. If the Appellant Worker is able to satisfy this test, the evidentiary onus shifts to the Respondent Employer, to seek to establish that protective measures that were in fact in place, excluded the possibility of any such injury: Blayney Shire Council v Lobley & Another (supra) at 65. Kirby J observed, at 55:
“There is an element of artificiality in s17(1) of the Act. The injury, which is the result of a gradual process, is deemed to have happened at an arbitrary time, viz when the notice of injury is given. It is assigned to the employer at that time. But it is only assigned if that employer employed the worker in employment ‘to the nature of which’ the injury was due.”
He went on to say, at 56:
“If that nature was of a kind which could cause hearing loss, the burden of carrying all past hearing loss falls upon that employer. If that employer contends, notwithstanding the ‘nature’ of its employment, that it did not in fact cause any hearing loss (and thus that ‘the injury was not due’ to the nature of the employment properly understood) the forensic onus of exculpating itself falls upon it…it is enough for the worker to succeed against that employer to show that the ‘nature’ of the employment was such as to give rise to a hearing loss.”
The Court of Appeal in Blayney Shire Council v Lobley & Another (supra) reviewed the relevant authorities as to the interpretation of section 17(1) of the 1987 Act. It said per Cole JA, at 64:
“…it follows from these authorities that in determining whether, at the time when notice of injury was given, 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 in fact suffered.”
The Court went on to say, per Cole JA, at 65:
“…it is sufficient for a claimant worker to establish that the employment in which he was engaged occurred in an environment which, were he unprotected, could cause injury of the type suffered by him. If evidence establishes that circumstance, the worker satisfies the onus of establishing that at the time of giving notice he was employed in an employment to the nature of which the injury was due.”
Establishing that the “tendencies, incidents or characteristics” of employment were of a type to give rise to hearing loss is a forensic task relying upon the weight of some or all of a range of matters that may include a worker’s evidence, the proof of relevant facts about the specific employment, the applicability of various industry standards, and expert scientific and acoustic testing and reports. It will be for the decision-maker to weigh all of the available evidence and if satisfied on a real, as opposed to a theoretical basis, that “…there were a sufficient number of incidents, characteristics and tendencies in the workplace to translate into a permanent hearing impairment, then the employment could be characterized as ‘noisy’”: Gordon v General Cargo Forwarders Pty Ltd [2000] 20 NSWCCR 577 at 590; Ambulance Service of NSW v Daniel (2000) (supra). In the latter case, Hodgson CJ in Eq said, at 707: “In my opinion, the relevant authorities support the view that more than a theoretical risk, or a bare possibility, is required.” His Honour went on to say that in Smith v Mann (1932) 47 CLR 426 at 443, Starke J considered that the test involved a question of whether the type of injury was “incidental to that class of employment” . He said that the passage containing that statement was quoted by Cole JA in Blayney Shire Council v Lobley & Another (supra), without any suggestion that the test stated there was to be departed from. Further, he said, at 708:
“In my opinion, this is to say much the same as to say that the type of injury is incidental to that class of employment, or that the nature of the employment is apt to produce the relevant injury.”
As in Ambulance Service of NSW v Daniel (supra), the question arises in the instant case, whether the evidence of the Appellant Worker is sufficient to establish that the Respondent Employer was a noisy employer within the meaning of the section. Insofar as this matter is concerned, “…the question is not whether there is any evidence at all on the point, but rather whether the evidence on the point is sufficient, in the sense that it is evidence, which if fully accepted could properly base the finding of fact.” The Court considered whether the evidence of Mr Daniel alone was sufficient to conclude as a matter of fact, that his employment was “noisy”. The Court found that without the assistance of expert evidence as to the noise levels, and expert opinion on the link between these noise levels and the likelihood of hearing loss, the worker was not able to satisfy the onus of proving that the Ambulance Service of NSW was a noisy employer. However, this view was expressed in the context of the particular circumstances and facts of that case. Hodgeson CJ in Eq (with whom Sheller JA and Beazley JA agreed), said:
“He described the siren noise as very loud but not uncomfortable, and his evidence was to the effect that even in the worst situation, he would not experience difficulties having a normal conversation with another person in the vehicle. Certainly in my opinion, a court which is not a specialist tribunal could not draw the required conclusion from this, without the assistance of some expert opinion evidence.”
In the instant case the Appellant Worker’s evidence is that he was required to operate a chainsaw and that he did not have the benefit of hearing protection. In its original submissions to the Arbitrator, the Respondent Employer submitted, but did not produce evidence, that “It is also in evidence that the respondent had a system of providing hearing protection to its employees.” That is not disputed only to the extent of the work carried out in the workshop. Notwithstanding the absence of expert evidence, the difficulties that confronted the Court in Ambulance Service of NSW v Daniel (supra), that led the Court to the conclusion that the worker had not discharged his onus, do not exist in the instant case. The issue is much clearer, as the Appellant Worker, according to his unrefuted evidence, was using a chainsaw and was directly and closely exposed to the noise, without hearing protection. He was also sharpening tools in a workshop in which the Respondent Employer provided hearing protection because of the noisy environment. It is reasonable to conclude therefore, that the type of injury is incidental to the class of employment offered by the Respondent Employer, in which the Appellant Worker was involved, and that the nature of that employment is apt to produce such an injury.
The Respondent Employer cited Kelly v Glenroc Pastoral Co Pty Ltd & Another (1994) 10 NSWCCR 178 and submitted:
“…although not an industrial deafness matter but a matter pursuant to section 15: Powel [sic] JA at 190 indicated that if the applicant worker seeks to found a claim for compensation upon section 15, the claim will fail unless the worker can establish that the relevant employment contributed to the worker contracting the disease.”
Having read and considered this case, I can find nothing that does not stand with the authorities already considered, insofar as they are applicable to the facts and circumstances of the instant case.
I find, on a proper consideration of the evidence that was before the Arbitrator and that is now before me, and on the balance of probabilities, that the Appellant Worker has discharged the onus upon him and that the Respondent Employer has not discharged the “forensic onus of exculpating itself.” I find that the Arbitrator erred in giving undue weight to the statements of Messrs Weeks and Staines to the exclusion of the Appellant Worker’s evidence, and in not properly weighing up the relevant aspects of the reports of Dr Sinha and Ms Armstrong. Finally, I find, on the evidence and the weight of the evidence, that the Respondent Employer was the last noisy employer for the purposes of Section 17 of the 1987 Act.
DECISION
The appeal is successful. The decision of the Arbitrator dated 19 October, 2003, that:
“The Respondent is not liable for the payment of the Applicant’s claim under s60 and s66 of the Workers Compensation Act 1987”
is revoked, and I make the following decision in its place, pursuant to section 352(7) of the 1998 Act:
The Respondent Employer is the last noisy employer of the Appellant Worker and is liable for payment of the Appellant Worker’s claim for compensation under section 60 and section 66 of the 1987 Act. The matter is returned to the Registrar for referral to an Approved Medical Specialist for purposes of assessment, and the determination of outstanding issues.
COSTS
The Respondent Employer is to pay the costs of the Appellant Worker, as agreed or assessed.
Gary Byron
Deputy President
2 February, 2004
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF GARY BYRON, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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