Grewal v Hills Bus Co Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Grewal v Hills Bus Co Pty Ltd [2024] NSWPIC 8
APPLICANT:	Sukhwinder Grewal
RESPONDENT:	Hills Bus Co Pty Ltd
MEMBER:	John Isaksen
DATE OF DECISION:	8 January 2024
CATCHWORDS:	WORKERS COMPENSATION - Claim for cost of supply and fitting of binaural hearing aids; worker employed as a bus driver and claims exposure to excessive noise from children on school runs each afternoon; respondent disputes that the worker sustained loss of hearing in the course of his employment and that it was the last noisy employer of the worker; employer relies upon noise survey report; reference to Dawson t/as The Real Cane Syndicate v Dawson; Held – report relied upon by the respondent lacks probative value; the tendencies, incidents and characteristics of the applicant’s employment are such as to give rise to a real risk of industrial deafness; order that the respondent pay for the cost of supply and fitting of binaural hearing aids.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant sustained loss of hearing in the course of his employment with the respondent. 2. The respondent is the last noisy employer of the applicant. 3. The deemed date of injury as provided for by s 17 of the Workers Compensation Act 1987 is 22 July 2021, being the date when notice of injury was given by the applicant to the respondent. 4. Binaural hearing aids to be supplied and fitted for the applicant are reasonably necessary as a result of the injury sustained by the applicant in the course of his employment with the respondent. The Commission orders: 5. Pursuant to s 60 (5) and s 61 (4A) of the Workers Compensation Act 1987, the respondent is to pay for the cost of the supply and fitting of binaural hearing aids.

STATEMENT OF REASONS

BACKGROUND

The applicant in these proceedings, Sukhwinder Grewal, seeks an order pursuant to s 60 (5) of the Workers Compensation Act 1987 (1987 Act) that the respondent, Hills Bus Co Pty Ltd, pay for the cost of the supply and fitting of binaural hearing aids as a result of loss of hearing that he has sustained in the course of his employment with the respondent, Hills Bus Co Pty Ltd.
Dispute notices were issued by QBE on behalf of the respondent on 11 November 2021 and 25 January 2023 wherein it was disputed that the applicant sustained injury arising out of his employment with the respondent and that the respondent was the last noisy employer of the applicant as required by s 17 of the 1987 Act.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the applicant sustained the injury of loss of hearing in the course of his employment with the respondent (s 4 of the 1987 Act), and
(b) whether the respondent was the last noisy employer of the applicant (s 17 of the 1987 Act).

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (Commission)

The parties attended a conference and hearing on 20 December 2023. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
Mr Horan appeared for the applicant, instructed by Ms Batiste. Mr Guest appeared for the respondent.
The hearing was conducted by video link and was recorded.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    the Application to Resolve a Dispute (ARD) and attached documents;
(b)    Reply and attached documents, and
(c)    Application to Admit Late Documents filed by the applicant on 20 December 2023.

Oral evidence

There was no application to adduce oral evidence or cross-examine the applicant.

The applicant’s evidence

The applicant states that he was exposed to very loud noise during 1986 when he was employed as a galvaniser with BHP Steel, and also between 1987 and 1990 when he was employed as a process worker with Tooheys Brewery. He states that he then drove a taxi and hire car until 2016 and this work did not expose him to loud noise.
The applicant states that in or around October 2016 he commenced employment with the respondent as a bus driver and continues to be employed in that position by the respondent.
The applicant states that up until 2019 he was doing short school runs in the afternoon, which lasted 15 to 20 minutes. He states that he then switched to a longer school run which lasts 40 to 45 minutes.
The applicant states that the bus usually holds between 35 and 50 children and that he is exposed to very loud noise for the entire trip due to the shouting, laughing and talking by the children on the bus. He states that there is always a noise level which forces him to raise his voice in order to be heard by someone who is only one metre away from him.
The applicant states that he is also exposed to noise from the bus engine, passengers talking to each other, surrounding traffic and the screeching of brakes. He states that it is often very hard to communicate with a passenger without raising his voice due to the general noises which are present on the bus.
The applicant states that he will have his window open for the first 30 to 45 minutes of a shift during summer while the air-conditioning cools down the bus, and that he is then exposed to very loud noise from the gushing wind and passing traffic.
The applicant states that he has difficulty watching television and talking on the telephone, and he has difficulty in conversing in group situations due to his limited hearing.

The evidence from Mobile Screening Pty Ltd

There is a report in evidence from Toby Webb of Mobile Screening Pty Ltd (Mobile Screening) dated 27 August 2021.
The report states that noise dose measurements were taken “from production” to determine exposure levels over a normal working day on 25 and 26 August 2021. The report lists noise dose results from five different buses from the Dural depot and four different buses from the Thornton depot. It is stated that individual spot readings indicated that tested equipment and areas varied throughout production areas. It is stated that noise levels were taken for opening doors, closing doors, applying air brakes, when the engines were both idling and operating, and using the horn.
Mr Webb concludes that the dose results taken from all the drivers were well below 85dBA. He states that the only exception was when the horn was activated, but he opines: “this level even though above 85dBA is considered acceptable from a safety perspective and only engaged in an emergency”.
Following the provision of that report, the respondent asked Mobile Screening if the noise results in that report included periods when the buses were being driven. Mr Wearne, general manager of Mobile Screening, replied in an email on 26 September 2023 that the noise results were taken whilst driving and set out the amount of time for collection of noise results from the nine buses. Those times range from a little over two hours to a little over five hours. Mr Wearne concludes that the results are then extrapolated to present an eight hour equivalent dose to allow comparison to the noise exposure standard.

Dr Scoppa, ear nose and throat specialist

Dr Scoppa, ear nose and throat specialist, has provided reports at the request of the applicant’s lawyers dated 31 March 2021 and 27 November 2022.
In his report dated 31 March 2021, Dr Scoppa records details of the applicant’s exposure to noise as a bus driver with the respondent which is consistent with the evidence provided by the applicant in this dispute, although Dr Scoppa records the applicant doing school runs every morning and afternoon (rather than only every afternoon) with “screaming schoolchildren”. Dr Scoppa writes that the history provided by the applicant is consistent with noise level being well above 90dBA.
Dr Scoppa finds significant hearing loss in the right ear, but he makes adjustments to assess the applicant as having 11.8% binaural hearing loss due to exposure to industrial noise, which equates to 6% whole person impairment.
Dr Scoppa concludes:
“After considering the history of occupational noise exposure, including the nature of the noise and the number of years of exposure, it is my opinion that the tendencies, incidents, and/or characteristics of Mr Grewal’s employment with Hills Bus Service would give rise to a real risk of boilermakers’ deafness, or deafness of a similar origin”.
Dr Scoppa considers that the applicant’s hearing loss can be helped by the use of hearing aids and that such aids are reasonably necessary for the rehabilitation of the noise induced hearing loss.
The report from Dr Scoppa dated 27 November 2022 is produced after Dr Scoppa is provided with the report from Mobile Screening dated 27 August 2021 and a report from Dr Raj, ear nose and throat specialist, dated 10 November 2021.
Dr Scoppa appears to proceed on an assumption that the noise survey was carried out at the depots in Dural and Thornton, and the report is not representational of the applicant’s noise exposure “during active employment on the road”.
Dr Scoppa concedes that it is impossible to reproduce a past work environment but concludes:
“From a clinical perspective it is well-established however that if a worker has to raise his or her voice to be heard by someone standing about one metre away, there is a prima facie case of an excessively noisy environment. My understanding is that such a description is consistent with a sound level of above 85dBA probably being present at the time, and therefore capable of causing industrial deafness over an 8 hour period, or its equivalent.”
Dr Scoppa refers to NSW and ACT Workcover publications to support this opinion.

Dr Raj, ear nose and throat specialist

Dr Raj, ear nose and throat specialist, has provided a report at the request of the respondent dated 10 November 2021.
Dr Raj records that the main noise that the applicant has been exposed to appears to be from children during the school runs, and that the engine of the bus is at the rear and is not noisy.
Dr Raj opines that the only noise which was capable of producing any hearing loss was when the applicant worked with BHP and Tooheys. He opines that the applicant’s hearing loss cannot be solely or totally attributable to his employment with the respondent because modern buses with rear engines are very quiet, children’s noise is never continuous, and there is not enough evidence that traffic noise alone would cause industrial deafness at local traffic speeds.
Dr Raj makes an assessment of 3.2% binaural hearing loss due to exposure to industrial noise. However, he considers that hearing aids are necessary for the applicant.

A summary of submissions by the parties to the dispute

Mr Horan for the applicant submits that the report from Mobile Screening lacks probative value because there is no confirmation that the noise surveys were taken while there were children on the bus during a school run.
Mr Horan refers to the document “Managing noise and preventing noise loss at work” from SafeWork NSW which has been filed as a late document to submit that it is enough for there only to be short periods of exposure to noise to cause deafness once noise exceeds 85dBA. He submits that when this material is considered along with the opinion of Dr Scoppa that the noise level which the applicant was exposed to was “well above 90dBA”, then this is sufficient for a finding to be made that the applicant’s exposure to noise created a real risk of the applicant sustaining deafness in the course of his employment with the respondent.
Mr Guest for the respondent refers to the decision of Neilson J in Callaby v State Transit Authority (NSW) [2000] NSWCC 30; 21 NSWCCR 216 (Callaby). Mr Guest refers to the conclusion reached in Callaby after a detailed consideration of the evidence, which included noise surveys, that the noise levels when bus driving did not have the tendencies and characteristics to carry a real risk of inducing industrial deafness. The decision in Callaby also included reference to the same conclusion reached by Geraghty J some four years earlier in seven cases which are referred to as Wright v State Transit Authority NSW (7 February 1996, no.31343 of 1993) (Wright).
Mr Guest also points out that noise generated by children in the bus was referred to in Callaby, but this made no difference to the findings made by the Court.
Mr Guest submits that the opinion of Dr Scoppa cannot be relied upon because that opinion proceeds on an assumption that the noise surveys were performed at two depots and not “during active employment on the road”, when the supplementary material provided by Mobile Screening confirms that the tests were undertaken when buses were being driven.

Determination

Both parties referred in their submissions to the decision of Dawson t/as The Real Cane Syndicate v Dawson [2008] NSWWCCPD 35 (Dawson), and in particular what was said by DP Roche at [44]:
“Whilst it is not necessary for a worker to call an acoustics engineer in every case of boilermaker’s deafness, it is not sufficient for a worker to merely say ‘my employment was noisy and I have boilermaker’s deafness’. It is always essential that he or she present detailed evidence (if no acoustics expert is to be relied on) of the nature (volume) and extent (duration) of the noise exposure and for that evidence to be given to an expert for his or her opinion as to whether the ‘tendency, incidents or characteristics’ of that employment are such as to give rise to a real risk of boilermaker’s deafness. That is exactly what Mr Dawson did in the present matter. His evidence as to the noise to which he was exposed was unchallenged and that evidence, combined with the evidence from Drs Fernandes and Macarthur, clearly discharged the onus of proof he carried.”
A significant difference between Dawson and this dispute is that in Dawson there was no expert evidence from any noise surveys and there was no dispute that the worker was exposed to excessive noise. The issue in Dawson was whether there was sufficient evidence to support the worker’s claim that his employment had the “tendency, incidents or characteristics” such as to give rise to a real risk of boilermaker’s deafness. The arbitrator found in favour of the worker and this was endorsed an appeal.
In this dispute the applicant faces the hurdle of noise surveys conducted at the request of the respondent and which, contrary to the assumption made by Dr Scoppa, were conducted while nine different buses were driven in periods of between two and almost five hours.
However, I agree with the submission made by Mr Horan that the material provided by Mobile Screening lacks probative value for the determination of this dispute.
Firstly, the report itself is ambiguous in the details set out therein as to how and when the noise was measured. It is understandable from a reading of that report in isolation that Dr Scoppa assumed that the tests were performed in the depots of Dural and Thornton and not “during active employment on the road”.
Even when additional information is provided in an email from Mr Wearne, who is not the author of the report, there is no information provided as to how many people were on these buses, the actual times of the day when the surveys were conducted or the routes which were taken.
Secondly, and more importantly, there is no indication in that material as to whether there was noise measured on a bus on an afternoon school run. This is crucial because the respondent has not provided any evidence to dispute the claim made by the applicant that he has been exposed to very loud noise for 40 to 45 minutes each school afternoon since 2019 from the shouting, laughing and talking of between 35 and 50 children on the bus, and that he has to raise his voice in order to be heard by someone who is only one metre away from him.
In the absence of any evidence from the respondent as to level of noise in a bus with 35 to 50 children for a period of 40 to 45 minutes each school afternoon, and no details in the report from Mobile Screening of any tests undertaken on an afternoon school run, I accept the evidence of the applicant and I prefer the expert evidence provided by Dr Scoppa.
Dr Scoppa records that there is noise from “screaming schoolchildren”, whereas the applicant’s description is more benign in referring to the children shouting, laughing and talking. However, the evidence from the applicant, which is not disputed by the respondent and which is relied to form an opinion by Dr Scoppa, is that the applicant has to raise his voice to communicate to a person who is only a metre from him.
Dr Scoppa has extensive experience in disputes involving industrial deafness and he opines from his clinical experience that if a worker has to raise his or her voice to be heard by someone standing about one metre away, then there is a prima facie case of an excessively noisy environment. He also refers to a NSW WorkCover publication which states that to raise one’s voice to communicate with someone one metre away is a guide to noise being likely to be hazardous to hearing.
Dr Scoppa opines in his first report that the history provided to him by the applicant is consistent with noise level being well above 90dBA and he does not alter that opinion in his second report.
I do not consider that Dr Scoppa’s opinion should be dismissed or discounted due to his assumption in his second report that the noise tests were not performed “during active employment on the road”. This is because I have already provided my reasons as to why I do not consider the material from Mobile Screening assists me in the determination of this dispute.
I prefer the opinion provided by Dr Scoppa over the opinion provided by Dr Raj. Dr Raj records that the main noise that the applicant is exposed to appears to be from children during school runs, but he does not explain how he concludes that children’s noise is never continuous or what he means by this. The uncontested evidence is that the noise from the children, which is loud enough that the applicant has to raise his voice to speak to a person one metre away, is continuous for 40 to 45 minutes each day when the applicant drives a school run.
Mr Guest submits that the issue of whether bus driving, including driving on school runs, can carry a real risk of inducing industrial deafness has been settled in favour of the employer for some time now following the decisions of Wright and Callaby. However, I do not consider that there is any judicial comity between this dispute and the decisions of Wright and Callaby because disputes of this nature must be determined on their own facts. I rely upon what was said by DP Wood in Secretary, Department of Education v Dawking [2023] NSWPICPD 23 (Dawking) who referred at [112] to what was said by Chen J in Comino v Kremetis [2023] NSWSC 63 (Comino):
“As Chen J observed in Comino, judicial comity is limited to questions or law and statutory interpretation and has no application to factual determinations.”
In terms of the facts in this dispute, I am satisfied that the applicant has met the test set out in Dawson that the tendencies, incidents and characteristics of his employment are such as to give rise to a real risk of industrial deafness. The applicant has provided evidence of the volume and nature of his exposure to noise, especially in regard to the school runs which he has done every school day afternoon since 2019. The respondent has not provided any evidence to contest this.
Dr Scoppa has provided his reasons based upon that uncontested evidence as why the tendencies, incidents and characteristics of the applicant’s employment are such as to give rise to a real risk of industrial deafness. The expert report relied upon by the respondent from Mobile Screening does not contain sufficient detail to challenge the evidence from the applicant.

I am therefore satisfied that the tendencies, incidents and characteristics of the applicant’s employment are such as to give rise to a real risk of industrial deafness and that the respondent is the last noisy employer of the applicant as provided for by s 17 of the 1987 Act.
There will be an order that the respondent is to pay for the cost of the supply and fitting of binaural hearing aids.

[2024] NSWPIC 8

8 January 2024