Ensign Services (Aust) Pty Ltd v Pine - [2011] NSWWCCPD 42

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Ensign Services (Aust) Pty Ltd v Pine [2011] NSWWCCPD 42
APPELLANT:		Ensign Services (Aust) Pty Ltd
RESPONDENT:		Sa Pine
INSURER:		QBE Insurance (Australia) Ltd
FILE NUMBER:		A1-9214/10
ARBITRATOR:	Ms Jennifer Scott
DATE OF ARBITRATOR’S DECISION:		5 April 2011
DATE OF APPEAL DECISION:		11 August 2011
SUBJECT MATTER OF DECISION:		Sufficiency of reasons for decision; s 17(1)(a)(ii) of the Workers Compensation Act 1987; employment to the nature of which the injury was due
PRESIDENTIAL MEMBER:		Deputy President Kevin O'Grady
HEARING:		On the papers
REPRESENTATION:		Appellant:	Astridge & Murray
Respondent:	Peter Erman Solicitors
ORDERS MADE ON APPEAL:		Paragraph one of the Arbitrator’s decision made in Certificate of Determination dated 5 April 2011 is revoked and the following determination is made in its place: “1. The applicant received injury being loss of hearing which is of such a nature as to be caused by a gradual process, and the applicant’s employment with the respondent was the last employment to the nature of which the injury was due before he gave notice of injury. The deemed date of injury is 8 November 2004, the last day on which the applicant was so employed.” Paragraphs two and three of the determination in Certificate of Determination dated 5 April 2011 are confirmed. The appellant is to pay Mr Pine’s costs of this appeal.

BACKGROUND

Mr Sa Pine was employed by Ensign Services (Aust) Pty Ltd (the appellant) as a labourer/washer between 7 February 2001 and 8 November 2004. The appellant conducted the business of a commercial laundry in Punchbowl, New South Wales. In June 2010, Mr Pine claimed from the appellant lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of alleged hearing loss. It was Mr Pine’s allegation that the appellant was the last employer to employ him in employment to the nature of which the alleged hearing loss was due within the meaning of s 17 of the 1987 Act.
The appellant’s insurer, by letter dated 4 August 2010, gave notice to Mr Pine of its decision to decline liability in respect of his claim. That notice was given pursuant to the provisions of s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). Particulars concerning the reason for rejection of the claim were provided in that notice which included a denial of injury within the meaning of s 4 of the 1987 Act. It was also asserted in that notice that the appellant was “not the last noisy employer with whom [Mr Pine was] employed”. The notice expressly stated that the appellant “is not a noisy employer as required by Section 17 of [the 1987 Act]”. Other grounds for rejection of the claim were particularised, which are not relevant to the matters raised on this appeal.
Mr Pine filed an Application to Resolve a Dispute with the Commission on 11 November 2010. The claim made against the appellant was in respect of an alleged seven per cent whole person impairment by reason of binaural hearing loss, together with medical expenses, being the cost of provision of hearing aids, in the sum of $2,970.
The Application came before Arbitrator Jennifer Scott for conciliation/arbitration on 9 March 2011, at which time each party was represented by counsel. The matter proceeded to hearing, following which the Arbitrator reserved her decision. A Certificate of Determination was issued on 5 April 2011.

THE DECISION UNDER REVIEW

The Certificate of Determination dated 5 April 2011 records the Arbitrator’s orders as follows:
“The Commission determines:
1.The applicant sustained injury, namely boilermaker’s deafness, in the course of his employment with the respondent, and that the applicant’s employment with the respondent was a substantial contributing factor to such injury.
2.The degree of binaural hearing loss is to be referred by the Registrar to an Approved Medical Specialist (AMS) for assessment as a result of the injury on 8 November 2004, in accordance with the WorkCover Guides for Evaluation of Permanent Impairment. The documents to be sent to the AMS are those accepted in the proceedings, being the Application and Reply and all late documents.
3.I certify this case to have a level of complexity for both the applicant and the respondent and uplift costs by 15 per cent.
A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”
An appeal against the Arbitrator’s determination was registered with the Commission on 2 May 2011.

ISSUES IN DISPUTE

The issues in dispute raised by the appellant are whether the Arbitrator erred in the following respects:
(a)     failing to consider and refer to relevant evidence;
(b)     failing to give reasons as to why relevant evidence was not accepted, and
(c)     making a finding in favour of Mr Pine against the evidence.
The summary of the issues in dispute noted above is taken from the appellant’s submissions provided on this appeal.

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.”
Having regard to Practice Directions Nos 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, 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.

THRESHOLD MATTERS

There was no dispute between the parties that the threshold requirements as to quantum and time as found in the provisions of s 352(3) and (4) of the 1998 Act had been met.

THE ARBITRAL PROCEEDINGS

The documentary evidence before the Arbitrator is noted at [5] of her Statement of Reasons (Reasons) which accompanied the Certificate of Determination. No oral evidence was adduced at the arbitration hearing.
The proceedings before the Arbitrator were recorded and a transcript of submissions put on behalf of each party by counsel has been produced (T) and made available to the parties.

Mr Pine’s evidence

Mr Pine’s statements

Mr Pine relied on evidence found in his statement dated 7 October 2010. Mr Pine summarised his employment history since arrival in this country in 1991. He stated that he held a number of positions before commencing with the appellant in 2001. One of those positions, as a pallet repairer with an organisation described as Chep, was said to be “noisy work”, operating a nail gun and grinder. Mr Pine was also exposed to noise generated by the operation of a grinder in that position. His then employer provided him with “ear muffs”, which he wore “from time to time”.
The appellant’s enterprise was described by Mr Pine as being “a large industrial laundry”. The items processed in that laundry included bed linen, towels and uniforms used by hospitals and other large organisations. The section in which he worked during the whole of his employment was that position in the laundry where there were “about 8 large industrial washing machines of varying sizes”. Some of those machines were described as being “as large as a small room”. Those machines were “lined up alongside one another”. It is stated that “most of the time, I was only working about half-a-metre away from the machines which worked 24 hours a day”.
Mr Pine stated that his duties involved unloading and operating the washing machines. His regular shift was a 12-hour shift between 5.00 am and 5.00 pm, and he stated that he often worked 10 hours on Saturday in addition to his weekday shifts.
Mr Pine stated that, in the course of his work, he needed to “scream or read lips” to conduct a conversation. He had been given small ear plugs to wear, but he found that they irritated his ears and he did not wear them much of the time.
Mr Pine described the spin-dry cycle of the washing machines as being the “noisiest part of the job”. He stated that the noise from the spinning action was “intense, like a jet engine”. He also stated that the machines, when operating, could be heard “from the roadway outside the factory”.
Mr Pine stated that “after work I would go home each day from [work] with my ears ringing”.
Mr Pine stated that he has had two positions since leaving the employ of the appellant. Neither of those employments exposed him to noisy conditions.
Mr Pine relied on the contents of an unsigned and undated document which was described as “Supplementary Statement of Sa Pine”. That unsigned statement appears to be in response to the statement made by Mr Frank Ritorto which was tendered by the appellant and which is addressed below. Mr Pine stated that he would “accept that there might in fact have been 10 or 11 machines” in the area in which he did his work, described as “the washroom”.
Mr Pine further stated that there were only three workers in the washroom area and that all of the machines would normally be operating, which required him to move from one machine to another as the machines finished their cycles. The machines required unloading and reloading. He stated, “I spent all my working day doing this and I was not rotated to other positions in the factory”. He again stated that ear plugs were available, but that their use was not “enforced”. He found them uncomfortable and did not wear them.

Dr S C Stylis

Mr Pine relied on the expert evidence of Dr S C Stylis, ear, nose and throat surgeon, found in reports dated 17 June 2010 and 19 October 2010. The first of those reports related to a consultation and assessment conducted on that day and included a detailed history of Mr Pine’s employment since arrival in this country. Dr Stylis stated that the last noisy employer was the appellant. The report includes a description of work conditions with the appellant and it was recorded that Dr Stylis had been informed that, whilst the washing machines were operating, “it was not possible to communicate with anyone unless you screamed”. Dr Stylis recorded that “the only noisy area of the whole business was where he would stand most all day except when he had to bring the trolley to and fro”. The trolley referred to was used by Mr Pine to convey the loads of washing between the machines and an area described as the “back packing area”, some 30 metres away from the area where he spent most of his shift.
Following a physical examination, Dr Stylis conducted an audiogram which was stated to have revealed a binaural hearing impairment of 22 per cent. After adjustment for non-occupational impairment, Dr Stylis expressed the view that Mr Pine’s total impairment due to noise amounted to 13.6 per cent binaural hearing loss. It was further stated that such impairment equates to a whole person impairment of seven per cent. When commenting upon the audiogram, Dr Stylis expressed the view that Mr Pine “has been exposed to significant noise”. He also stated that the work conditions at the appellant’s premises had:
“the tendencies, incidents and characteristics that would, on the balance of probabilities, give rise to a real risk of boilermaker’s deafness or deafness of similar origin. It establishes this industry/job as capable of causing and contributing to noise-induced hearing loss.”
Dr Stylis opined that Mr Pine would benefit from use of a hearing aid in each ear. He recommended a particular hearing aid and a quotation for the provision of those aids was enclosed with the report.
Dr Stylis’s report dated 19 October 2010 noted that correspondence from the insurer declining liability had been perused by him. Dr Stylis stated that he “stood by” his earlier report and asserted that, on the history, the appellant was Mr Pine’s last noisy employer, and that the noise to which he was there exposed was “capable of giving rise to industrial deafness”. He also stated:
“If one has to scream to be heard, the surrounding noise must be in the vicinity of 95 to 100 decibels or more. At this level duration of 15 to 30 minutes is capable of giving rise to permanent damage to the hearing. [Mr Pine] claimed that he spent most of the day standing in the vicinity of this sort of noise. These basic facts were listed in my history. This is sufficient to indicate that this was a noisy employer and that the duration and the intensity of the noise was such to be likely to give rise to industrial deafness.”
Dr Stylis also made reference to the duration of Mr Pine’s shifts whilst employed with the appellant, and made the observation “all of which add to the noise dose”.

The appellant’s evidence

Section 74 notice

The appellant relied on the contents of the s 74 notice, a copy of which was attached to its Reply to Mr Pine’s Application. The matters in dispute concerning the claim were described in that notice as follows:
“• You did not suffer an injury within the meaning of Section 4 of the Workers Compensation Act 1987 (NSW) (as amended) in respect of your employment with Ensign Services (Aust) Pty Ltd;
• Your employment with Ensign Services (Aust) Pty Ltd is/was not a substantial contributing factor to your alleged industrial deafness injury within the meaning of Section 9A of the Workplace Injury Management and Workers Compensation Act 1998 (NSW);
• The notional date of injury in this matter is in dispute;
• Ensign Services (Aust) Pty Ltd is not a noisy employer as required by Section 17 of the Workers Compensation Act 1987 (NSW) (as amended);
• Ensign Services (Aust) Pty Ltd is not the last noisy employer with whom you were employed. Reliance in this regard is placed on Section 17 of the Workers Compensation Act 1987 (NSW) (as amended);
• You have failed to give notice of your injury in accordance with Section 254 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW);
• You have not made your claim for compensation within the time prescribed by Section 261 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW), and this failure has not been found to have been occasioned by ignorance, mistake, absence from the State or other reasonable cause. Furthermore, the employer disputes that you suffer from a serious and permanent disablement as required by Section 261(4)(b) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW);
• You have no entitlement under Section 66 of the Workers Compensation Act 1987 (NSW) (as amended);
• You have no entitlement under Section 60 of the Workers Compensation Act 1987 (NSW) (as amended).”

Acoustic report

The appellant tendered in evidence a report dated 15 December 2005 of Acoustic Logic Consultancy Pty Limited which was signed by Mr Simon Lappas. That report contains the results of a noise survey conducted at the appellant’s Punchbowl premises on that day. That survey was conducted, as stated in the introduction to the report, “to determine if employee noise exposure within [the appellant’s premises] complies with the requirements of AS 1269 and NSW WorkCover”.
The measurements made during the survey concerned noise levels in two locations within the premises; the washroom area and the pack-out area. The results, which concern the noise levels produced by individual identified machines, are recorded in the report. Those results were said to have been calculated “for the typical eight-hour shift”. Also recorded was each C-weighted L peak for each machine. The detail of this report is addressed below. The conclusion stated in the report noted that noise levels at two machines did not comply with the WorkCover Authority’s noise exposure limits of 85 dB(A).

Mr Ritorto’s statement

The appellant also relied on the evidence of Mr Frank Ritorto as found in his statement dated 17 December 2010. Mr Ritorto is the appellant’s production manager and held that position during the period Mr Pine was employed at the Punchbowl premises.
Mr Ritorto stated that Mr Pine “worked in the washroom”. He said, “we have always had a rotation process engaged so [Mr Pine] would never have been standing at the washers the entire time”.
Mr Ritorto stated that the washing machines had been “changed over the years. We had 11 machines at one point whereas we have 10 now”. Hearing protection has been available at the premises since 2003, the year a new OH & S manager “came into the business”.

Dr John Seymour

The appellant relied on the evidence of Dr John Seymour, ear, nose and throat specialist, found in his two reports dated 31 January 2011 and 14 February 2011. Mr Pine was examined by Dr Seymour on 31 January 2011, at which time an audiogram was conducted. Dr Seymour expressed the opinion that Mr Pine had suffered occupational noise-induced bilateral hearing loss of 11.7 per cent, which he stated equated to six per cent whole person impairment.
Dr Seymour recorded a detailed work history as given by Mr Pine. There were, as stated by Dr Seymour, certain inconsistencies concerning the description by Mr Pine of noise exposure experienced by him at two employers prior to working for the appellant and that exposure as described to and recorded by Dr Stylis.
Mr Pine’s description of work with the appellant included detail that he worked “loading and unloading the washing machines from 5.00 am to 5.00 pm”. It was also recorded that Mr Pine “claimed the noise emitted by the washing machines was intense and described it as being like a jet engine”.
Dr Seymour’s second report addressed the contents of the report of the noise survey referred to above. Dr Seymour stated:
“This noise survey confirms that there are two machines in the washroom area which exceed the statutory limit, ie, the Renzacci Machine and the Ducker Engineering Coat Hanger Machine. The permissible duration of exposure to these machines would be approximately five hours. If the applicant’s period of exposure to these machines was five hours or more then theoretically it is possible that he could sustain acoustic trauma resulting in deafness.”

Submissions before the Arbitrator

Submissions put by counsel are recorded in the transcript and, for that reason, it is not proposed to attempt a full summary of those arguments advanced. However, it is noted that the appellant argued that the evidence was not sufficient to establish that Mr Pine’s employment was, in the relevant sense, noisy. It was put that “the real crux of this case … is whether [Mr Pine’s] evidence as to noisy employment is correct and if it is correct whether it is sufficient to satisfy [the Commission] that [Mr Pine’s] employment was noisy”. Counsel proceeded to argue (at T4):
“The onus is on [Mr Pine] to establish his noisy employment to be of the kind of employment would [sic] induce – is likely to induce industrial deafness or has a real possibility of inducing industrial deafness.”
Following a summary of the evidence of Mr Pine and of the expert evidence as to noise levels, counsel made reference to the decisions of the Commission in Dawson t/as The Real Cane Syndicate v Dawson [2008] NSWWCCPD 35 and the Court of Appeal in Blayney Shire Council v Lobley (1995) 12 NSWCCR 52 (Lobley). It was put that a claimant is required “to bring evidence concerning the tendencies, incidents or characteristics of the nature [sic] of the employment”. Counsel argued that there was a deficiency of detail in Mr Pine’s case and that “noisy employment” had not been established.
Counsel appearing for Mr Pine argued that the evidence established that the appellant’s employment was the last relevantly noisy employment. Reliance was placed upon the decision of the Court of Appeal in A & G Engineering Pty Ltd v Civitarese (1996) 14 NSWCCR 158; 41 NSWLR 41, where it was stated by Beazley JA (Handley and Sheller JJA agreeing) (at 43–44):
“Section 17, as the appellant’s case recognised, provides an easy path to compensation for a worker suffering from hearing loss of gradual onset. All that is necessary under the section is for the worker to prove that the last employment (in respect of which that employer is sued) is one to which the nature of the disease is due. It is not necessary to prove that that employment brought about or contributed to the disease: see Smith v Mann (1932) 47 CLR 426 at 440; Russo v World Services and Constructions Pty Ltd [1979] 1 NSWLR 330 at 332. As Sheller JA said in Rico Pty Ltd v Road Traffic Authority (1992) 28 NSWLR 679 at 689–690, s 17 proceeds on a series of fictions or assumptions, upon which a worker’s entitlement to recover an award under s 66 is based.”

The primary argument advanced by counsel is recorded at T33, where it was submitted:
“All that is necessary in this section [sic] is for the worker to prove that last employment is one to which the nature of the disease is due. It’s not necessary to prove that the employment brought about or contributed to the disease.”

The Arbitrator’s decision

The Arbitrator firstly addressed the arguments raised by the appellant concerning alleged failure by Mr Pine to comply with the statutory requirements concerning notice of injury and notice of claim. Those issues were determined in Mr Pine’s favour and the Arbitrator’s rulings on those issues are not challenged on this appeal.
The further question for determination was then posed by the Arbitrator in the following terms:
“Whether [the appellant] was the last employment [sic] which had the tendencies, incidents and characteristics that would, on the balance of probabilities, give rise to a real risk of boilermakers deafness?”
The Arbitrator proceeded to summarise certain evidentiary matters and summarised the submissions advanced by each party.
The Arbitrator, having dealt with those matters, immediately proceeded to state (at [14]:
“SUMMARY
14. The applicant’s roles [sic] is not to prove that the noise in the workplace exceeded 85dB(A), but to satisfy me that this workplace had the tendencies, incidents and characteristics that would, on the balance of probabilities give rise to a real risk of boilermakers deafness. In summary, both medico-legal experts both [sic] agree that the applicant has binaural hearing loss due to boilermakers deafness. The 2005 noise test indicates that two machines in the room where Mr Pine worked from 5.00 am to 5.00 pm, five to six days a week, exceeded 85dB(A). This, together with the history given by Mr Pine, is sufficient to satisfy me that on the balance of probabilities, Ensign Services (Aust) Pty Ltd, a commercial laundry, was a noisy environment which had the tendencies, incidents and characteristics that would, on the balance of probabilities give rise to a real risk of boilermakers deafness.”
Following the “Summary” above quoted, the Arbitrator proceeded to make findings and orders as appear in the Certificate of Determination noted at [4] above.

SUBMISSIONS, DISCUSSION AND FINDINGS

The parties’ rights and liabilities arising from this claim are governed by the special provisions concerning loss of hearing as found in s 17 of the 1987 Act which, relevantly, provides:
“17 Loss of hearing – special provisions
(cf former s 7(4B), (4BB))
(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”.

There is no dispute that Mr Pine suffers noise-induced hearing loss. The question as to the appellant’s liability to pay compensation is to be determined by the proper construction and application of the provisions of s 17(1)(a)(ii).
It is the appellant’s complaint that the Arbitrator has “failed to consider and refer to relevant evidence”. The appellant asserts that there has been error of both fact and law committed by the Arbitrator.
In the course of her Reasons, the Arbitrator has touched on some of the evidence when summarising the parties’ submissions. At [14] of Reasons, quoted above, the Arbitrator has concluded that the appellant’s laundry “was a noisy environment which had the tendencies, incidents and characteristics that would, on the balance of probabilities, give rise to a risk of boilermakers deafness”. That conclusion was reached following reference by her to:
(a)     the medical opinions expressed that Mr Pine “has binaural hearing loss due to boilermakers deafness”;
(b)     the “noise test” which indicates that two machines in the room where Mr Pine worked from 5.00 am to 5.00 pm, five to six days a week, exceeded 85 dB(A), and
(c)     the “history given by Mr Pine”.
Between [3] and [12] of submissions on this appeal, the appellant makes reference to matters stated in evidence by Mr Pine and Mr Ritorto, the expert medical evidence and the findings noted in the noise survey report. It seems that the appellant’s complaint is that the Arbitrator failed to refer to relevant evidence, in particular the suggested conflict between the history taken by Dr Stylis and the “outcome of the noise survey”. It is also submitted that the Arbitrator made no reference in her Reasons to the conflict between Mr Pine’s evidence, presumably related to noise levels, and the noise survey report. Other aspects of the evidence are noted as not having been “referred to” by the Arbitrator. At [15] of submissions, the appellant asserts that “the Arbitrator provided no reasons for her decision”.
The appellant’s argument, which I accept, is that the Arbitrator has failed to give sufficient reasons for her decision. I am of the view that the Arbitrator has erred in her manner of fact-finding by reason of her failure to examine all of the material relevant to particular issues, as was discussed by Hayne J in Waterways Authority v Fitzgibbon [2005] HCA 57; 221 ALR 402; 79 ALJR 1816 (between [129] and [131]). It was made clear by his Honour that such failure is an error of law. In the circumstances, it is necessary to examine the evidence to determine whether the Arbitrator’s decision was or was not affected by that error: s 352(5) of the 1998 Act.
The argument advanced at the hearing was that the evidence did not establish that “[Mr Pine’s] employment was noisy” (T4). That statement by counsel was intended to assert that the evidence did not establish that, whilst employed by the appellant, Mr Pine “was employed in an employment to the nature of which the injury was due” in terms of s 17(1)(a)(ii).
Before examining the evidence to determine the correctness or otherwise of the appellant’s assertion, it is important to note that which, on the authorities, needs to be proven to establish Mr Pine’s right to compensation as against the appellant.
Relevant authority was cited and addressed by counsel appearing at the arbitration. It is clear, given the manner in which the Arbitrator expressed her reasons, that she had considered those authorities. I note, in particular, the terms of the question which was articulated by her noted at [42] above. It was, as noted earlier, agreed that Mr Pine had received injury being loss of hearing caused by a gradual process. The authorities establish that the Commission is not concerned with the question as to whether the subject employment actually caused injury, but whether the last employment was one to which the nature of the disease is due.
At [16] of submissions the appellant asserts that the Arbitrator had made “no reference” to suggested conflict between:
(a)     the history taken by Dr Stylis;
(b)     the outcome of the noise level survey;
(c)     [Mr Pine’s] evidence, and
(d)     Dr Seymour’s evidence concerning the duration (five hours) of exposure relevant to risk of injury.
The noise survey established that two of the machines attended by Mr Pine emitted noise levels that exceeded, what was described as, NSW WorkCover requirements concerning maximum noise exposure being 85 dB(A)Leq (being energy averaged over eight hour day). Those machines, the Renzacci Machine (Renzacci) and the Ducker Engineering Coat Hanger Machine (Ducker), were each found to emit noise levels (LAeq, 8hr dB(A)) of 86 decibels. The report also included readings of the associated C-weighted L peak for each machine, being 101 dB(C) (peak) in the case of the Renzacci and 110 dB(C) (peak) concerning the Ducker. I note in passing that cl 49 of the Occupational Health and Safety Regulation 2001 addresses the subject of industrial noise exposure.
It seems that the “conflict” between Dr Stylis’s evidence and the noise level survey concerns the opinion expressed in his report dated 19 October 2010 (noted at [25] above) that the need to scream indicated surrounding noise “in the vicinity of 95 to 100 decibels or more”. The survey, conducted approximately one year after Mr Pine’s employment with the appellant ceased, plainly demonstrates noise levels lower than were, necessarily, estimated by Dr Stylis. Notwithstanding the difference demonstrated, I do not, for the reasons stated below, consider that such “conflict” in the evidence defeats Mr Pine’s claim against the appellant.
The appellant submitted that, upon acceptance of Dr Seymour’s opinion concerning the need for five hours exposure to the noise levels demonstrated by the survey to cause hearing loss, the evidence of Mr Pine fails to establish such exposure and he has thus failed to discharge the onus upon him to prove that his employment gave rise to “a risk of injury” (submissions at [16]).
The arguments advanced by the appellant fail to address the question which is raised by a proper consideration of s 17(1)(a)(ii). What is required is the proper construction of the words “employment to the nature of which the injury was due”.
In the course of his judgment in Lobley, Cole JA gave careful consideration to those words and relevant authority. His Honour drew attention to the decision of Dixon CJ in Commonwealth v Bourne (1960) 104 CLR 32; ALR 496 (Bourne) where the provisions of s 10(1) of the Commonwealth Employees’ Compensation Act 1930-1946 were considered. Cole JA cited the Chief Justice’s statement concerning the meaning of that subsection where it was said:
“In the third place, I do not think the expression in s 10(1) ‘due to the nature of the employment in which the employee is engaged’ covers an employment which has no particular tendency to give rise to a disease, contribute or conduce to it or accelerate it and no incident, adjunct or quality of which involves those employed therein in any particular liability to the contraction of the disease or to the aggravation or acceleration of its course. The phrase ‘nature of the employment’ is, of course, no novelty in this context in the law of employers' liability: cf s 43(1) of the Workmen's Compensation Act 1925 of the United Kingdom. In the provisions to which the use of the expression is to be traced the purpose of using the words ‘due to the nature of the employment’ and not ‘due to the employment’ was to provide for ready recourse by the employee to the latest employer who employed him in work to the nature of which his complaint was due independently of the question whether working for that particular employer contributed at all to his condition or aggravated it or accelerated its development; that employer could then claim over against a previous employer employing the claimant in work of a like nature and so on down the line. It was accordingly necessary to make the nature of the work the test and not the actual work done or the employment as it actually affected the man. In a not very full form subsections (3) and (4) exhibit the same principle. In Blatchford v Staddon & Founds [1927] AC 461, Lord Sumner said of the phrase: ‘In construing the Act effect must be given to the words “to the nature of”. Their meaning cannot be the same as if the section had simply said “is due to” any employment. I think they are inserted because this part of the section is not concerned directly with something arising out of the particular service of the particular employer sued, but with results which are incidental to the class of employment, in which the workman has served several employers’. So in Eaton v George Wimpey & Co [1938] 1 KB 353, Mackinnon LJ for the Court of Appeal said: ‘It is essential to observe that the words are “due to the nature” of the employment and that they are not “caused by the employment” or “contracted during the employment”’. The word ‘nature’ is a wide as well as a vague word and one must be careful not to narrow its application or attempt to reduce it to too much precision. But it does seem to refer to a connection between the ‘disease’ in the defined sense and the description of employment in virtue of its tendencies, incidents or characteristics.”
Following his consideration of relevant authority, Cole JA concluded (at 64D):
“…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 noise level survey demonstrated that two machines at Mr Pine’s workplace emitted noise exceeding relevant standards. Those noise levels, in the opinion of the appellant’s own expert, Dr Seymour, give rise to risk of relevant injury in the case of five hours or more exposure. Acceptance of that evidence inevitably leads to the conclusion that the nature of the work was such that the “‘tendencies, incidents or characteristics’ of that employment were of a type which could give rise to the injury in fact suffered”.
It is not disputed that Mr Pine worked regular twelve hour shifts as well as, on occasions, ten hours overtime on Saturdays. It is clear, notwithstanding the evidence of Mr Ritorto, that most of his work was conducted in the washroom area. However, the state of the evidence does not permit any finding concerning the duration of Mr Pine’s exposure to noise generated by the Renzacci and Ducker machines. The absence of such evidence is not, in my view, fatal to his claim against the appellant. As was stated by the Chief Justice in Bourne, the test is “the nature of the work and not the actual work done or the employment as it actually affected the man”.
In my opinion the evidence adduced by the appellant, which was accepted by the Arbitrator, establishes those matters which give rise to liability to pay the compensation sought by Mr Pine. The employment, as found by the Arbitrator, was one to the nature of which the injury was due within the meaning of s 17(1)(a)(ii). I conclude that the Arbitrator’s determination as to such liability was not affected by the error earlier identified.
Whilst the appeal must be dismissed it is necessary to correct the terms of the Arbitrator’s determination as recorded in paragraph one of the Certificate of Determination. It had been agreed during a telephone conference conducted by the Arbitrator that, should there be a finding of liability made against the appellant, the “deemed date” of injury was the last day of Mr Pine’s employment, being 8 November 2004 (noted at T4). In the circumstances paragraph one must be revoked and substituted in accordance with the orders made below. I note that, on this appeal, no attention has been drawn to the absence of any finding concerning the claim brought under s 60 of the 1987 Act.

DECISION

Paragraph one of the Arbitrator’s decision made in Certificate of Determination dated 5 April 2011 is revoked and the following determination is made in its place:
“1. The applicant received injury being loss of hearing which is of such a nature as to be caused by a gradual process, and the applicant’s employment with the respondent was the last employment to the nature of which the injury was due before he gave notice of injury. The deemed date of injury is 8 November 2004, the last day on which the applicant was so employed.”
Paragraphs two and three of the determination in Certificate of Determination dated 5 April 2011 are confirmed.

COSTS

The appellant is to pay Mr Pine’s costs of this appeal.

Kevin O'Grady

Deputy President
11 August 2011

I, MARGOT UNDERCLIFFE, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O'GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE