Grewal v Hills Bus Co Pty Ltd - [2024] NSWPIC 8

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…

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: [2024] NSWPIC 8
Decision Date: 8 January 2024

CaseChat Overview and Summary

Grewal v Hills Bus Co Pty Ltd involved a claim for compensation by the applicant, who was employed as a bus driver, for the cost of binaural hearing aids. The applicant contended that his employment exposed him to excessive noise from children on school runs each afternoon, resulting in hearing loss. The respondent employer disputed the applicant’s claims of hearing loss and contended that it was not the last noisy employer of the applicant. The matter was heard in the Queensland Civil and Administrative Tribunal. The primary legal issue before the tribunal was whether the applicant’s hearing loss arose from his employment with the respondent, and if so, whether the respondent was liable for the cost of the hearing aids. The tribunal considered the evidence provided by the applicant and the noise survey report relied upon by the respondent. The tribunal found that the noise survey report lacked probative value and was insufficient to establish that the applicant’s hearing loss did not arise from his employment with the respondent. The tribunal noted that the characteristics of the applicant’s employment as a bus driver gave rise to a real risk of industrial deafness. The tribunal ultimately held that the applicant’s hearing loss arose from his employment with the respondent and ordered the respondent to pay for the cost of the hearing aids. The tribunal relied on the case of Dawson t/as The Real Cane Syndicate v Dawson in reaching its decision. The tribunal found that the evidence established a real possibility that the applicant’s hearing loss arose from his employment with the respondent, and that the respondent was liable for the cost of the hearing aids. The tribunal’s decision provides guidance on the standard of proof required in workers compensation claims for hearing loss and the importance of considering the characteristics of the employment in determining liability.

Orders