Fairfield City Council v Deguara - [2019] NSWWCCPD 1

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Fairfield City Council v Deguara [2019] NSWWCCPD 1
APPELLANT:	Fairfield City Council
RESPONDENT:	Peter Deguara
INSURER:	Self-insured
FILE NUMBER:	A1-2216/18
ARBITRATOR:	Mr N Read
DATE OF ARBITRATOR’S DECISION:	31 July 2018
DATE OF APPEAL HEARING:	4 December 2018
DATE OF APPEAL DECISION:	18 January 2019
SUBJECT MATTER OF DECISION:	Whether the requirement to establish employment was the main contributing factor pursuant to s 4(b)(ii) of the Workers Compensation Act 1987 (the 1987 Act) applies to a hearing loss claim made pursuant to s 17 of the 1987 Act; s 261(6) of the Workplace Injury Management and Workers Compensation Act 1998 – date upon which the worker became aware of his injury; application of Heatcraft Australia Pty Ltd v Lapa [2007] NSWWCCPD 27, Ingham’s Enterprises Pty Ltd v Jones [2012] NSWWCCPD 17, Unilever Australia Ltd v Petrevska [2013] NSWCA 373; 13 DDCR 260; loss of hearing and further loss of hearing – separate injuries; Sukkar v Adonis Electrics Pty Ltd [2014] NSWCA 459 applied; procedural fairness – discretion to refuse an application to cross-examine
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
HEARING:	Oral
REPRESENTATION:	Appellant:	Mr D Saul, instructed by Leigh Virtue & Associates
Respondent:	Mr S Grant, instructed by Carroll & O’Dea Lawyers
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 31 July 2018 is confirmed.

INTRODUCTION

Mr Peter Deguara was employed by Fairfield City Council (Fairfield) in the road construction crew from approximately 1984 until August 2013. He also worked in the maintenance crews from time to time.
On 7 September 1992, Mr Deguara made a claim against Fairfield for lump sum compensation in respect of noise induced hearing loss. The matter resolved by way of agreement between the parties that Mr Deguara suffered from 1.7% binaural hearing loss.
Mr Deguara made a second claim for lump sum compensation on 21 April 2017 in respect of a further 12% whole person impairment (WPI) pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act), based on the opinion of Dr Joseph Scoppa, ear, nose and throat specialist. Mr Deguara also claimed the cost of hearing aids pursuant to s 60 of the 1987 Act.
Fairfield disputed Mr Deguara’s claim.

BACKGROUND

Mr Deguara’s binaural hearing loss had also been assessed on 14 July 2008 by Quality Occupational Health at the request of Fairfield. The report recorded that Mr Deguara suffered from 39.7% binaural hearing loss.[1] The test was undertaken “for the purpose of preplacement only” and Mr Deguara did not pursue a claim for compensation in respect of that assessment.
[1] Application to Resolve a Dispute (ARD), pp 8–9.
Following Mr Deguara’s second claim for compensation made on 21 April 2017, Fairfield arranged for Mr Deguara to attend Dr John Seymour, ear, nose and throat specialist, for assessment. Dr Seymour assessed Mr Deguara as suffering from 7% WPI resulting from noise exposure.
By letter dated 3 July 2017, Fairfield disputed…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2019] NSWWCCPD 1
Decision Date: 18 January 2019

CaseChat Overview and Summary

The case of Fairfield City Council v Deguara involved a dispute between the respondent, who was an employee of the appellant, and the appellant, Fairfield City Council. The respondent had lodged a claim for workers' compensation under section 17 of the Workers Compensation Act 1987, relating to a hearing loss. The hearing loss was argued to be a result of the respondent's employment with the appellant. The dispute came before the Supreme Court of New South Wales, specifically the Workers Compensation Commission, for resolution.

The central legal issues addressed by the court were the interpretation and application of section 4(b)(ii) of the 1987 Act, which pertains to the requirement of establishing employment as the main contributing factor for the injury. The court also had to consider whether the date of awareness of the injury, as provided for in section 261(6) of the Workplace Injury Management and Workers Compensation Act 1998, was applicable to the respondent's claim. Furthermore, the court was required to determine whether the hearing loss and any subsequent loss of hearing constituted separate injuries under the applicable legislative framework. Relevant case law, including Heatcraft Australia Pty Ltd v Lapa, Ingham’s Enterprises Pty Ltd v Jones, Unilever Australia Ltd v Petrevska, and Sukkar v Adonis Electrics Pty Ltd, were cited and applied to aid in the decision-making process.

The court determined that the requirement to establish employment as the main contributing factor did not apply to the respondent's claim under section 4(b)(ii) of the 1987 Act. The court also held that the date of awareness of the injury was relevant under section 261(6) of the 1998 Act, and that the hearing loss and subsequent loss of hearing were distinct injuries. The court considered the respondent's procedural fairness and exercised its discretion to refuse the application to cross-examine certain witnesses. Ultimately, the court confirmed the Certificate of Determination dated 31 July 2018, upholding the original decision.

Orders

Orders of the court

1. The Certificate of Determination dated 31 July 2018 is confirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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