Fornito v Graham Andrews Builders Pty Ltd
[2025] VMC 1
•14 February 2025
IN THE MAGISTRATES’ COURT OF VICTORIA
AT MELBOURNE
WORKCOVER DIVISION OF COURT
Case No. MAG-CI-230242813
| Tommy FORNITO | Plaintiff |
| v | |
| GRAHAM ANDREWS BUILDERS PTY LTD (ACN 006 105 755) | Defendant |
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MAGISTRATE: | Magistrate M A Hoare |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 05 February 2025 |
DATE OF DECISION: | 14 February 2025 |
CASE MAY BE CITED AS: | Fornito v Graham Andrews Builders Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2025] VMC 1 |
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WORKERS COMPENSATION – Hearing Loss - Whether ‘exposed to conditions by reason of which the injury was due to the nature of the worker’s employment or arose out of or in the course of the worker's employment…’ – Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s.60.
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APPEARANCES: | COUNSEL | SOLICITORS |
| For the Plaintiff | Mr Velos | Velos Lawyers |
| For the Defendant | Mr C Miles | TG Legal +Technology |
HER HONOUR:
Introduction
On 5 April 2023, Mr Fornito lodged WorkCover claims for hearing loss injuries for impairment benefits and medical and like expenses on a former employer, Graham Andrews Builders Pty Ltd (GAB).
GAB denied liability for the claims (x2) which were rejected by notices (x2) dated 26 April 2023. The stated grounds were that the plaintiff had not sustained an injury arising out of or in the course of his employment with GAB.
In essence, at hearing, GAB contended that it was not the last employer with which Mr Fornito was exposed to industrial noise. In other words, it was said that Mr Fornito’s claim against GAB must fail because he worked for an employer currently where he was exposed to industrial noise.
The only witness to give oral evidence was Mr Fornito and documents including medical reports were tendered into evidence.
Matters not in dispute
It is useful to set out matters agreed or not disputed before setting out contentious matters:
(a) Mr Fornito, aged 64 years, is currently employed (the current employment) as a valet driver with Equity Valet Parking Pty Ltd (EVP). EVP provides valet services for customers of Qantas at Melbourne Airport.
(b) By way of prior work history, Mr Fornito was employed as follows:
· From 1978 to 1989, as a baggage handler at Melbourne Airport with TAA;
· From 1989 to 1995, with Telecom on pipe & pit construction;
· From 1995 to 2003, self-employment as a truck driver including about three years supervising other drivers.
(c) Then, from about 2003 to about 2 February 2020, he was employed as a builder by GAB which was a period of about 17 years (the GAB employment).
(d) It was not disputed by GAB that he was exposed to industrial noise in the course of that employment.
(e) In March or April 2023, he commenced the current employment, his only employment since ceasing with GAB.
(f) On 26 July 2016, he had seen his GP complaining of hearing loss and tinnitus and of having worked in a noisy environment for 16 years. His GP referred him to an audiologist and subsequent testing confirmed noise-induced hearing loss.
(g) The current employment was part-time and Mr Fornito worked 4 days a week, generally 4-5 hours a day.
Mr Fornito’s evidence
I turn now to Mr Fornito’s evidence on disputed matters.
A typical day as a valet driver in the current employment was to drive customers to and from the EVP reception counter and the short-term and long-term multi-storey car parks. The cars he generally drove for EVP were not noisy as they were luxury or high-end vehicles such as Mercedes-Benzs or Teslas and were frequently electric or hybrid. He drove the cars with the windows rolled up and at low speed.. EVP had an office outside the airport perimeter. He reported for work at the short-term car park in the valet parking area.
Ear-muffs were not required in the current employment and he did not wear them. Some areas of the airport had signs regarding wearing of ear-muffs; but that was not the case in areas where he worked. Under cross-examination, he denied he relied on signs. Rather, he knew noisy environments when he was in them and would wear ear-muffs if he was so exposed. For example, the TAA employment was on or adjacent to the runways.
Under cross-examination, Mr Fornito denied the airport environment was noisy, saying it was not noisy ‘to any great degree’. Aeroplanes could be heard taking off and landing on the runways which were about a kilometre away from the carparks; but he could also hear aeroplanes from a distance as far away as his home in Bulla. At a later point in cross-examination, he said the runways were between two and four kilometres away from the short-term car park. At another point, when pressed as to whether working at airport with aeroplanes coming and going in the background was noisy, he said Flinders Street in central Melbourne was noisy because of background traffic, but he did not consider that was a noisy environment.
As for the ‘worker questionnaire hearing services’ dated 27 March 2023 bearing his signature and submitted upon lodging the claims, he noted various errors in his answers. He agreed he did always wear hearing protection with GAB and he did have to shout to be heard. His answer that he had 4-6 hours a day of noise exposure with EVS was incorrect, rather he mis-read the question and that referred simply to his actual working hours.
As for the GAB employment, he was always using power-tools including jack-hammers and nail-guns.
As for noisy activities outside work, until two months ago he lived on an acre and used a ride-on mower regularly, however he always wore-ear-muffs.
As he found his constant tinnitus to be distressing, he was routinely very conscious of noise and always wore ear protection when around noise.
Medical evidence
Mr Malcom Baxter, ENT surgeon, assessed Mr Fornito on 19 August 2024 at the request of GAB’s lawyers. A history of employment was obtained including of noisy work environments with: TAA at the airport; with Telecom; his truck-driving work; and with GAB. As for the current employment which was at the Qantas Domestic Terminal at Melbourne Airport, that was not a noisy job. Based on the audiology reports, Dr Baxter confirmed there was occupational noise-induced hearing loss and tinnitus with some degenerative factor and unexplained asymmetry. As for causation, Dr Baxter opined the hearing loss was partly attributable to his employment with GAB and GAB must be considered the last noisy employer. He further opined that the current employment as a valet driver did not seem to be noisy.
Consideration
Mr Fornito’s claims were governed by s. 60 of the Workplace Injury Rehabilitation and Compensation Act 2013 (the WIRCA).
The burden of proof rested with the plaintiff to establish, on the balance of probabilities, that he sustained his industrial hearing loss with GAB, being the last employer with which he was performing duties in noisy conditions. In other words, should the Court find that the current employment constituted work which exposed him to noise capable of causing hearing loss, then Mr Fornito’s claim against GAB must fail.
In Sullivan v Toll Holdings Ltd[1], his Honour Magistrate Garnett was tasked with deciding whether the defendant in that case was the last employer with which the plaintiff worked where he was exposed to industrial noise. In Sullivan, in dismissing the worker’s case based on an evaluation of the factual evidence, Magistrate Garnet had regard to the observations of his Honour Judge Bowman in Simiele v Redmond Repetition Engineering Pty Ltd & Ors[2].
[1] [2012] VMC 11
[2] [2008] VCC 1463
Both cases were decided under the predecessor provisions of the Accident Compensation Act 1985[3] which are mirrored by the WIRCA provisions.
[3] Section 88
In Simiele, Judge Bowman put it this way:
“It seems to me that any exposure in an employment to noise capable of causing industrial deafness, however brief that exposure might be, is sufficient to attract the operation of the Act and to implicate such employment. If it is the last such employment in time, the employer becomes the party against which the claim is made.”[4]
[4] Ibid at [26]
Later, Judge Bowman also said this: “… arguably, there may be even no need for exposure as such, provided that the particular worker suffers from industrial deafness and the employment in which he is engaged is of a nature or type that has the characteristic of producing or being associated with industrial noise.”[5]
[5] Ibid at [35]
Counsel for GAB submitted that the nature of Mr Fortino’s current employment at Melbourne Airport was of such a nature or type. Accordingly, and pursuant to a long-established legislative regime, Mr Fornito had failed to discharge the burden of proof and any hearing loss claim ought to have been brought against EVP as the current and therefore last employer.
It was conceded by Counsel for GAB that while Dr Baxter gave support to the plaintiff’s case against GAB, his opinion had to be viewed in the light of being based entirely on Mr Fornito’s own history which was self-serving.
On the other hand, Counsel for Mr Fornito submitted the Court was entitled to accept and adopt Dr Baxter’s opinion. Moreover, considering the entirety of Mr Fornito’s evidence about the nature of the working conditions with EVP, the weight of the evidence pointed overwhelmingly to a conclusion that GAB was the last employer for the purposes of s.60.
I formed the impression that Mr Fornito was an honest witness who gave a largely credible account of the circumstances of the current employment. It is true that, under pressure of cross-examination, he gave at times contradictory evidence such as estimating the distance of the runways from the short-term car park. I also found his evidence somewhat confusing as to his workplace (the EVP office) being located outside the airport perimeter, yet it was clear that he worked predominantly from the valet area at the short-term car-park.
On the other hand, Mr Fornito made concessions against interest such as that he always wore hearing protection with GAB and agreed that aeroplanes were heard landing and taking off in the current employment. It seemed to me that his evidence had a ring of truth regarding his distressing tinnitus symptoms. I found it plausible and likely that this caused him to be vigilant about avoiding exposure to noise and, if he was, to wear hearing protection. I also found persuasive his contrasting account of his prior noisy work on the runways at the airport (with TAA) and his awareness of when ear-muffs might be required and so on.
Another matter I take into account was Mr Fornito’s unchallenged evidence as to the nature of the employment which was generally being inside luxury or high-end cars (frequently electric and thus quiet) with the windows rolled up.
Next, I also accept and adopt as highly persuasive the expert opinion of Dr Baxter that the current employment did not seem to be noisy. Whilst it is true that he had relied upon Mr Fornito’s history, in referring to the current employment, Dr Baxter made reference specifically to that fact that the duties were performed ‘at the Qantas Domestic Terminal at Tullamarine Airport’. To my mind, it is implicit that Dr Baxter has, as the expert, had cognisance of the conditions in the context of where the duties were performed, in arriving at his conclusion that the current employment was not noisy.
I am not persuaded on the whole of the evidence, particularly Mr Fornito’s evidence about how and whereabouts he worked at the Airport as well as Dr Baxter’s expert opinion, that such conditions, objectively considered, are such as to attract the operation of s.60(2) of the Act with respect to EVT.
Accordingly, for these reasons, I conclude that Mr Fornito, on the balance of probabilities, sustained industrial hearing loss in the course of his employment with GAB with a deemed date of injury of the last day of employment with GAB. I find, therefore, that he is entitled to compensation in accordance with the WIRCA and as claimed in his prayer for relief including reasonable medical and like expenses and to have liability accepted by GAB for his impairment benefits claim.
I will hear from parties as to proposed final orders.
MAGISTRATE M A HOARE
14 February 2025
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