Hay v Commonwealth Steel Company Pty Ltd - [2018] NSWWCCPD 31

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Hay v Commonwealth Steel Company Pty Ltd [2018] NSWWCCPD 31
APPELLANT:	Richard Hay
RESPONDENT:	Commonwealth Steel Company Pty Ltd
INSURER:	Self-Insured
FILE NUMBER:	A1-5980/17
ARBITRATOR:	Ms J Peacock
DATE OF ARBITRATOR’S DECISION:	26 March 2018
DATE OF APPEAL DECISION:	31 July 2018
SUBJECT MATTER OF DECISION:	Section 17(1)(a)(ii) of the Workers Compensation Act1987 – whether worker “employed in an employment to the nature of which the injury is due”; application of CIC Workers’ Compensation (NSW) Ltd v Alcan Australia Ltd (1994) 35 NSWLR 169; relevance of s 151AB of the Workers Compensation Act 1987 in a claim for workers’ compensation benefits; consideration of StateCover Mutual Ltd v Cameron[2014] NSWWCCPD 49
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
HEARING:	On the papers
REPRESENTATION:	Appellant:	Turner Freeman Lawyers
Respondent:	Sparke Helmore Lawyers
ORDERS MADE ON APPEAL:	1. The Arbitrator’s Certificate of Determination dated 26 March 2018 is confirmed.

INTRODUCTION

Mr Richard Hay claimed lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987(the 1987 Act) in respect of 8.4% further binaural hearing loss. He also claimed s 60 expenses in the sum of $6,306.80 for proposed provision of hearing aids. The deemed date of injury was said to be 12 March 1993, which was the last day Mr Hay was employed by Commonwealth Steel Company Pty Ltd (Commonwealth Steel).
The issues to be determined before the Arbitrator were:
(a) whether Commonwealth Steel was the “last noisy employer” for the purposes of s 17(1) of the 1987 Act, and
(b) whether Mr Hay was precluded from compensation because he made his claim outside of the time prescribed by s 261 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).

BACKGROUND

Mr Hay undertook work for various employers before commencing employment with Commonwealth Steel in 1988 as a furnace assistant and later as a machine operator. He ceased employment with Commonwealth Steel on 12 March 1993.
From approximately 1989, Mr Hay also volunteered as a Bush Fire Fighter with the NSW Rural Fire Service. In about early 1992, he no longer performed an active fire-fighting role because of physical injuries received in employment with Commonwealth Steel. Mr Hay thereafter performed the role of a voluntary communication operator until the end of 1997.
It was common ground that as a volunteer fire fighter, Mr Hay was deemed to be a worker pursuant to cl 13 of Sch 1 to the 1998 Act. Mr Hay conceded that while fighting fires, he was exposed to excessive noise.
At arbitration, Mr Hay maintained that his noise exposure while fighting fires ceased prior to the cessation of his noisy employment with Commonwealth Steel, making Commonwealth Steel the last noisy employer. He maintained that the change in his voluntary roles with the Rural Fire Service amounted to two separate engagements.
The Arbitrator found Commonwealth Steel was not the last noisy employer and entered an award in its favour. In the circumstances, the Arbitrator declined to determine the issue in respect of s 261 of the 1998 Act.

ON THE PAPERS

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.”
Both parties are content to have the appeal determined on the papers.
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. This is the appropriate course in the circumstances.

THRESHOLD MATTERS

The appeal was lodged within the time prescribed by s 352(4) of the 1998 Act and there is no issue that the amount of compensation claimed meets the necessary threshold pursuant to s 352(3). The decision of the Arbitrator was final and not an interlocutory decision (s 352(3A) of the 1998 Act).

THE EVIDENCE

Mr Hay relied on the opinion of Dr Joseph Scoppa, Ear, Nose and Throat physician, who provided a report (with annexures) dated 9 June 2017.[1] Dr Scoppa took a history of progressive hearing loss with mild tinnitus. He noted the period of noisy employment with Commonwealth Steel and a history that Mr Hay was not exposed to loud noise when he was a fire fighter with the Rural Fire Service.
[1] Application to Resolve a Dispute (ARD), pp 9–14.
Dr Scoppa assessed Mr Hay’s binaural hearing loss at 8.5%. He deducted 0.1% from that loss, on the basis that Mr Hay had received compensation for that loss in proceedings against Commonwealth Steel in 1991. Dr Scoppa also expressed his opinion that bilateral digital hearing aids were reasonably necessary.
Dr Scoppa’s opinion that Mr Hay suffered from binaural hearing loss was supported by Mr Paul Dayton, Audiologist, in a report dated 18 March 2016, with attached audiogram results.[2]
[2] ARD, pp 15–18.
A bundle of documents relating to prior claims for compensation made by Mr Hay were also annexed to the ARD. Those documents confirmed that Mr Hay had:
(a) settled his prior hearing loss claim for 0.1%;
(b) settled a claim pursuant to ss 66 and 67 of the 1987 Act in 1993 for physical injuries sustained in the course of employment with Commonwealth Steel, and
(c) brought a claim for weekly payments against Commonwealth Steel in 1993.
Mr Hay provided a statement dated 10 October 2017.[3] He set out a detailed history of his employment, including one prior noisy employment between 1981 and 1983. He confirmed he had been employed by Commonwealth Steel, firstly as a furnace assistant and later as a machine operator. He described the duties as a furnace operator as “a very noisy process”. As a machine operator, he was required to direct hot steel bars into the forging machine. He said the forging machine was called “the old clanger” because it was very loud. Mr Hay said the steel bars were then dropped into bins, which made a loud clanging noise. He said the conveyer belts were also noisy as they made a hissing sound as they ran through water. Mr Hay said there was noise from a machine called a “quencher”, from passing forklifts and from the grinding and welding being done by the fitters.
[3] Statement dated 10 October 2017, ARD, pp 96–106.
Mr Hay described the physical injuries he suffered in that employment. In 1990, he injured his right hand and arm and further injured his right wrist in 1991. Subsequently, in September 1991, he suffered injuries to his left shoulder, arm and wrist. He ceased work because of those injuries in 1993 and received weekly compensation until 1994.
Mr Hay said that he commenced as a volunteer with the Rural Fire Service in about 1989. He said fighting fires was noisy, but that he only did so on an occasional basis, about one day per month or less. He said that after his physical injuries with Commonwealth Steel, he ceased fighting fires and became a Communication Operator. This was in the control room and was not noisy. He continued the volunteer work until 1997.
Mr Hay gave details of his employment thereafter, none of which was noisy. In May 2012, he ceased work as he sustained a psychological injury in his employment with the NSW Ambulance Service. He received weekly payments of compensation in respect of that injury thereafter.
Mr Hay described his hearing difficulties. He provided an extensive chronology of the steps he and his legal representatives took to progress his claim for hearing aids and for the lump sum compensation pursuant to s 66 of the 1987 Act. He stated that his solicitor was eventually in a position to make the claim on his behalf and did so on 12 July 2017. As the issue in respect of s 261 of the 1998 Act is not in issue on the appeal, I will not transcribe the steps taken to enable the claim to be made.
Mr Hay also made a supplementary statement dated 10 January 2018.[4] He confirmed the injuries suffered and the noisy aspect of his employment duties with Commonwealth Steel. He further confirmed that as a volunteer fire fighter, he would attend fires on average of one day per month, but the frequency varied. In the fire season, at times he would attend fires on two or three days or more a month. He said the fire itself was quite noisy and there were sirens, generators and pumps that were also noisy.
[4] Application to Admit Late documents (ALD) dated 15 January 2018.
Mr Hay said that he stopped fighting fires in about 1991 or early 1992. He said he recalled having a conversation with a colleague in which he indicated he was having physical difficulties fighting fires, so the colleague offered for him to go into the control tower, which he accepted. Thereafter he worked in a non-noisy environment. He said he did not fight a fire after he ceased work with Commonwealth Steel.
At the arbitration, Mr Hay also gave short oral evidence under cross-examination. Mr Hay said he could not exactly remember when it was that he ceased fighting fires. He said it was after his injury to his wrist.
Commonwealth Steel relied only on the evidence already adduced, save for a letter annexed to an ALD received by the Commission on 31 January 2018. The undated letter was from the Rural Fire Service and directed to the Registrar, Workers Compensation Commission in response to a direction to produce documents issued by the Commission. The Rural Fire Service advised that no documents had been found that were within the scope of the Direction. That evidence, it seems, was intended to negate any inference that may arise that there was material from that organisation that did not assist Commonwealth Steel’s case.

THE ARBITRATOR’S REASONS

The Arbitrator identified the issues in dispute, describing the issue about whether Commonwealth Steel was the last noisy employer as the “principle” issue. She noted that it was common ground that:
(a)    Commonwealth Steel was a noisy employer;
(b)    Mr Hay was employed by Commonwealth Steel up until 12 March 1993;
(c)    Mr Hay was a volunteer with the Rural Fire Service from 1989 to 1997;
(d)    Mr Hay was a deemed worker pursuant to cl 13 of Sch 1 to the 1998 Act, and that deemed employment continued until 1997, and
(e)    his deemed employment as a fire fighter was noisy employment.
The Arbitrator accurately summarised the submissions of both parties. She set out the text of s 17 of the 1987 Act and identified that Mr Hay gave notice of injury on 12 July 2017. As Mr Hay was not, at that time, in employment to which the nature of the hearing loss was due, the Arbitrator said his deemed date of injury was the last day in which he was employed in an employment to the nature of which the injury was due, in accordance with s 17(1)(a)(ii) of the 1987 Act.
The Arbitrator recounted Mr Hay’s evidence. She noted the submission by counsel for Mr Hay that the evidence could be construed as two separate periods of engagement with Rural Fire Services. The Arbitrator referred to CIC Workers Compensation (NSW) Ltd v Alcan Australia Ltd,[5] which case Mr Hay’s counsel submitted was authority for the proposition that consideration of the nature of the work performed in the employment was required, in order to determine the deemed date of injury and hence the liable employer.
[5] (1994) 35 NSWLR 169 (CIC).
The Arbitrator discussed CIC. She observed that CIC concerned the interpretation of s 151AB of the 1987 Act. The purpose of the provision was to fix the liability of insurers where a disease was contracted gradually by workers. The Arbitrator quoted from the majority judgment delivered by Gleeson CJ that the purpose of the section was “to identify, from amongst a number of insurers under policies of insurance obtained by a single employer for different periods, one insurer which is to indemnify the employer for the full amount of the employer’s liability to a worker who has contracted an occupational disease”[6] by gradual process. The Court held that the relevant insurer was the insurer on risk at the time the worker was last employed to do the work which exposed the worker to the risk of contracting a disease of gradual process. For the purposes of s 151AB, “employment” refers to the nature of the work performed under the contract, not to the employment contract.
[6] CIC, 171 [A].
The Arbitrator recorded Mr Hay’s submission that, applying CIC, the Arbitrator’s task was to look at the nature of the work performed, which was the noisy environment fighting fires, compared to the work in the control room, which was not noisy.
The Arbitrator said that s 151AB was concerned with damages, not statutory compensation. She referred to and discussed in great detail the reasoning and decision of Deputy President Roche in StateCover Mutual Ltd v Cameron,[7] in which the Deputy President considered CIC in the context of ss 15 and 18 of the 1987 Act. The Arbitrator distilled from Cameron that the approach put forward by Mr Hay’s counsel was seeking to assign liability according to the notion of “true causation”. The Deputy President said that approach was not consistent with the authorities as to how ss 15 and 18 work. The Deputy President found StateCover was liable.
[7] [2014] NSWWCCPD 49 (Cameron).
The Arbitrator recognised that Cameron dealt with ss 15 and 18 and not s 17. She said, however, that the words of s 17 are in similar terms. She said:
“Sections 15 and 18 and indeed section 17 are providing paths to compensation, in the context of a statutory scheme of compensation, which avoid, in cases involving diseases of gradual onset including hearing loss under section 17, the need to assign liability on the basis of proof of actual or true causation. Section 15 and 17 are artificial deeming provisions, that is, they operate to deem a date of injury where it might otherwise not exist. In doing so they provide an easy path to compensation in circumstances where it might be otherwise too hard to prove actual causation on a particular date in circumstances where the disease is contracted by gradual process.”[8]
[8] Hay v Commonwealth Steel Company Pty Ltd [2018] NSWWCC 82 (Reasons), [50].

The Arbitrator noted Deputy President Roche’s observation that the argument put forward in Cameron that CIC applied, had been rejected by the Court of Appeal in GIO Workers Compensation (NSW) Ltd v GIO General Ltd,[9] decided 10 months after CIC.
[9] (1995) 12 NSWCCR 187 (GIO v GIO).
The Arbitrator quoted extensively from the reasons of the Deputy President in Cameron. She reproduced the following passages:
“In considering the meaning of the phrase ‘immediately before the worker ceased to be employed by the employer’ Campbell J held in Lanham v North Shore Gas Co Ltd [1976] WCR 132 that the purpose of the phrase (which then appeared in s 18(6A) of the Workers Compensation Act 1926 (the 1926 Act)) was ‘to make the date of the injury fall within the period of employment, and for this purpose it mattered not what sort of employment’. The employment to which the subsection referred was not limited to employment which was causally related to the injury (Smith v Mann (1932) 47 CLR 426), nor to employment of a nature to which the disease is due.
Even if the Commission were not bound by clear authority on the point, namely, GIO v GIO, the basic principles of statutory interpretation lead to the same result reached by the Arbitrator. As explained by the plurality in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41 at [47]; 239 CLR 27:
‘the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.’
As the plurality in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 observed at [78] (footnote omitted):
‘the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.’
As noted above, s 151AB applies where an employer is liable ‘independently of [the 1987 Act] for damages for an occupational disease’ (emphasis added). It does not apply to claims for workers compensation benefits. This point alone is sufficient to dispose of the appeal.
Moreover, contrary to [counsel for StateCover’s] submission, ss 18 and 151AB are expressed in completely different terms. Under s 151AB, if an employer is liable independently of the 1987 Act for damages for an occupational disease contracted by a worker then, ‘for the purposes of any policy of insurance obtained by the employer’, ‘the liability is taken to have arisen when the worker was last employed by the employer in employment to the nature of which the disease was due’. The words quoted by [counsel for StateCover] at [80] above do not appear in s 151AB, as it applies in this case.
Under s 18, if an employer has become liable under s 15(1)(b) or s 16(1)(b) to pay ‘compensation’ to a worker ‘in respect of an injury and the time at which the injury is deemed to have happened is after the worker ceased to be employed by the employer’, the ‘liability of the employer is … taken to have arisen immediately before the worker ceased to be employed by the employer’, but only for the purpose of determining whether any insurer or which of two or more insurers is liable under a policy of insurance in respect of the compensation.
There is simply no valid comparison between the wording of the two provisions and no valid reason to apply the reasoning in CIC to s 18.
[Counsel for StateCover’s] interpretation of s 18(1), namely, that it fixes liability of the insurer by reference to the insurer on risk at the time of the ceasing of the work that was a substantial contributing factor to the worker’s injury, involves reading words into the section that are not there. The task required is the construction of the words the legislature has enacted (Taylor v The Owners – Strata Plan No 11564 [2014] HCA 9, per French CJ, Brennan and Bell JJ at [39]). Section 18(1) makes it clear that, in the circumstances of the present case, the liability of ‘the employer’ is taken to have arisen immediately before the worker ceased to be employed by the employer. It says nothing about the insurer on risk at the time of the ceasing of the work that was a substantial contributing factor to the injury.
To the extent that one needs to consider the purpose or intention of s 18, that purpose does not support [counsel for StateCover’s] approach. As explained by Burke CCJ in Di Giovanni v Smorgon ARC Pty Ltd (1992) 8 NSWCCR 582 (Di Giovanni), s 18 is the lineal descendent of s 18(6A) of the 1926 Act, which was enacted to overcome the effects of State Mines Control Authority v GIO (NSW) (1964) 65 SR (NSW) 258. In that case, the worker became incapacitated by a relevant disease after leaving the employ of the Authority. The 1926 Act, like the 1987 Act, deemed the injury to have occurred at the time of the incapacity.
The insurer who indemnified the employer during the period the worker was employed was no longer on risk at the time of the incapacity and therefore not liable to indemnify the employer in respect of an ‘injury’ occurring outside its period of cover. The insurer on risk at the time the injury was deemed to have occurred was liable only in respect of injuries to ‘workers’, that is, people employed by the Authority during the currency of the policy. The worker was not such an employee because his injury was deemed to have occurred after he ceased to be employed by the Authority.
As a result, the employer had no indemnity. To meet this situation, the 1926 Act was amended to add s 18(6A) to provide a notional date of injury as the last day of employment. Burke CCJ observed in Di Giovanni, and I agree, that the purpose of the amendment was to provide an indemnity to the employer in a situation where none existed under the then legislation.
That the purpose or intention of a legislative provision must be based on the words used in the provision concerned is not disputed (per French CJ and Hayne J in Certain Lloyd’s Underwriters v Cross [2012] HCA 56; 87 ALJR 131 at [40]). The relevant words indicating the purpose or intention of s 18(1) are in the provision itself. The subsection ‘operates only for the purpose of determining whether any insurer or which of 2 or more insurers is liable under a policy of insurance in respect of that compensation’.
That purpose is achieved by the interpretation dictated by the plain words in the provision, which interpretation is consistent with the binding authorities of GIO v GIO and Grate Lace. It is not for a court to determine a ‘desirable outcome and give a construction to achieve that outcome’ (Australian Building & Construction Commissioner v McConnell Dowell Constructors (Aust) Pty Ltd [2012] FCAFC 93; 203 FCR 345 at [50]).
There is nothing in the context of the legislation that alters the clear grammatical meaning of the words used. In these circumstances, as explained by Gibbs CJ in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; 147 CLR 297, at 305:

‘if the language of a statutory provision is clear and unambiguous, and is consistent and harmonious with the other provisions of the enactment, and can be intelligibly applied to the subject matter with which it deals, it must be given its ordinary and grammatical meaning, even if it leads to a result that may seem inconvenient or unjust.’
As the words in s 18(1) are clear and unambiguous, and can be intelligibly applied to the subject matter, the provision must be given its ordinary and grammatical meaning.
I do not accept the submission that CIC directs attention to the construction of the phrase ‘employment to the nature of which the disease was due’ in the context of the Act as a whole. CIC concerned the liability of an insurer in a claim for common law damages and focused exclusively on the construction of s 151AB, which, as I have explained above, is in completely different terms to s 18.”[10]
[10] Cameron, [100]–[115].

The Arbitrator adopted those reasons, adding:
(a)    CIC did not apply;
(b)    section 17 was analogous to ss 15 and 18 of the 1987 Act in that they are all deeming provisions that fix liability for compensation in a statutory scheme where workers have contracted a disease of gradual onset;
(c)    her task was not to look behind the employment with the Rural Fire Service to consider the nature of the work actually performed in different periods;
(d)    she was not satisfied that the change of duties constituted a termination of one contract and the formation of a different contract. On a common-sense evaluation of the evidence, that construction was simply not available. It was more analogous to moving departments within employment, and
(e)    clause 13 of Sch 1 to the 1998 Act does not distinguish between volunteers who fight fires from those who work in the control room.
The Arbitrator found that whole period of Mr Hay’s volunteer work with the Rural Fire Service was deemed employment and that the last date of noisy employment was 1997. In accordance with s 17(1)(c)(ii) of the 1987 Act, compensation was payable by the last employer by whom Mr Hay was employed in employment to the nature of which the injury was due, before he gave notice of injury. She was not satisfied Commonwealth Steel was the last noisy employer.
The Certificate of Determination issued on 26 March 2018 records:
“1. Award for the Respondent.”

GROUNDS OF APPEAL

Mr Hay alleges the Arbitrator erred in her construction of s 17 of the 1987 Act, by:
(a)    failing to interpret s 17 according to its ordinary meaning;
(b)    “conflating” the concept of “employment” with “employer”;
(c)    failing to properly consider and apply the reasoning in CIC, which dealt at length with the phrase “employment to the nature of which the disease was due”, and
(d)    applying Cameron, in which s 18 of the 1987 Act was considered, not s 17, and s 18 does not contain the phrase “employment to the nature of which the injury (or disease) is due”.

LEGISLATION

Section 17 of the 1987 Act 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,
(b) the provisions of section 61 of the 1998 Act shall apply to or in respect of the injury as if the words ‘as soon as practicable after the injury happened and before the worker has voluntarily left the employment in which the worker was at the time of the injury’ were omitted therefrom,
(c) compensation is payable by:
(i) where the worker was employed by an employer in an employment to the nature of which the injury was due at the time he or she gave notice of the injury—that employer, or
(ii) where the worker was not so employed—the last employer by whom the worker was employed in an employment to the nature of which the injury was due before he or she gave the notice,
…
(2)     Without limiting the generality of subsection (1), the condition known as ‘boilermaker’s deafness’ and any deafness of a similar origin shall, for the purposes of that subsection, be deemed to be losses of hearing which are of such a nature as to be caused by a gradual process.
(3)     Compensation is payable by an employer as referred to in subsection (1) (c) in respect of the injury to which the notice given to the employer relates even if the worker, before claiming or receiving that compensation, commences employment (to the nature of which that kind of injury can be due) with another employer.”
The relevant parts of s 15 of the 1987 Act provide as follows:
“15 Diseases of gradual process—employer liable, date of injury etc
(cf former ss 7 (4), (4C), (5), 16 (1A))
(1)     If an injury is a disease which is of such a nature as to be contracted by a gradual process:
(a) the injury shall, for the purposes of this Act, be deemed to have happened:
(i) at the time of the worker’s death or incapacity, or
(ii) if death or incapacity has not resulted from the injury—at the time the worker makes a claim for compensation with respect to the injury, and
(b) compensation is payable by the employer who last employed the worker in employment to the nature of which the disease was due.
(2)     Any employers who, during the 12 months preceding a worker’s death or incapacity or the date of the claim (as the case requires), employed the worker in any employment to the nature of which the disease was due shall be liable to make to the employer by whom compensation is payable such contributions as, in default of agreement, may be determined by the Commission.
…
(4)     In this section, a reference to an injury includes a reference to a permanent impairment for which compensation is payable under Division 4 of Part 3.
(4A) In this section, a reference to employment to the nature of which a disease was due includes a reference to employment the nature of which was a contributing factor to the disease.
(5)     This section does not apply to an injury to which section 17 applies.”
Section 18 of the 1987 Act provides:
“18 Special insurance provisions relating to occupational diseases
(cf former s 18 (6A)–(6C))
(1)     If an employer has become liable under section 15 (1) (b) or 16 (1) (b) to pay compensation to a worker in respect of an injury and the time at which the injury is deemed to have happened is after the worker ceased to be employed by the employer, the liability of the employer is, despite sections 15 and 16, taken to have arisen immediately before the worker ceased to be employed by the employer. This subsection operates only for the purpose of determining whether any insurer or which of 2 or more insurers is liable under a policy of insurance in respect of that compensation.
(2)     Where:
(a) an employer (in this subsection referred to as the contributor) has become liable under this Act to make a contribution to another employer towards compensation payable by that other employer in respect of an injury to a worker (being an injury referred to in section 15, 16 or 17), and
(b) on the last day of the period in respect of which the contributor was liable to make the contribution, the contributor was maintaining in force a policy of insurance,
the insurer under that policy is:
(c) directly liable, with the contributor, to pay the contribution to the employer who is liable to pay the compensation, and
(d) liable to indemnify the contributor to the extent that the contributor pays the contribution.
(3)     In a case to which section 15, 16 or 17 applies, if each of the employers who is liable to pay the compensation or to make a contribution under the section concerned is insured in respect of that liability by an insurer who is an insurer within the meaning of Division 4 of Part 7 and the entitlement of the worker (or other claimant) to receive compensation is not disputed:
(a) a contribution that would otherwise be payable by an employer under section 15, 16 or 17 in respect of the claim is not payable, and
(b) for the purposes of calculating an insurance premium payable by any of those employers, their claims histories are to be determined on the assumption that any contribution that would have been payable but for paragraph (a) was payable.”
Clause 13 of Sch 1 to the 1998 Act provides:
“13 Fire fighters in fire districts
(cf former Sch 1 cl 13)
(1)     A person who (without remuneration or reward):
(a) voluntarily and without obligation engages in fighting a bush fire in any fire district constituted under the Fire Brigades Act 1989 with the consent of or under the authority and supervision of or in co-operation with:
(i) any volunteer fire brigade within the meaning of that Act, or
(ii) the Director-General or any officer of New South Wales Fire Brigades or any member of a permanent fire brigade, or
(b) is undergoing training for the purposes of fighting bush fires in those circumstances,
is, for the purposes of this Act, taken to be a worker employed by the Director-General of New South Wales Fire Brigades.
(2)     …
(3)     In this clause:
bush fire means a fire burning in grass, bush, scrub or timber and any fire arising from such a fire.
fighting, in relation to a bush fire, includes any reasonable act or operation performed by the person concerned at or about the scene of or in connection with a bush fire, which is necessary for, directed towards or incidental to the control or suppression of the fire or the prevention of the spread of the fire, or in any other way necessarily associated with the fire.”

SUBMISSIONS

Mr Hay’s submissions

In a preamble to his submissions, Mr Hay refers to the argument put by him at the arbitration that his employment with the Rural Fire Service was two “different employments”, the first as a fire fighter concluding in 1991, and the second in the control room. Mr Hay does not raise a ground of appeal or make substantive submissions in respect of the finding of the Arbitrator that she was not satisfied that there were two separate contracts of employment with the Rural Fire Service.

The ordinary meaning of s 17

Mr Hay submits that the Arbitrator erred by failing to interpret s 17 according to its ordinary meaning. He relies on Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue[11] in which French CJ said:
“The starting point in consideration of the first question is the ordinary and grammatical sense of the statutory words to be interpreted having regard to their context and the legislative purpose.”
[11] [2009] HCA 41; 239 CLR 27 (Alcan NT), [4].
Mr Hay says that on a plain, ordinary reading of s 17(1)(a)(ii), the provision deems the injury to have occurred on the last day a worker worked in noisy conditions.
Mr Hay further submits that the Arbitrator failed to engage in any analysis of the text of s 17(1)(a)(ii). He says the Arbitrator simply applied the reasoning in Cameron without considering the actual construction of the phrase “employment to the nature of which the injury is due”.

Conflation of the concept of “employment” with “employer”

Mr Hay submits that s 17 requires identification of the employment, not just the employer. It directs the enquiry to whether the worker was “employed in an employment”, the nature of which caused the injury.

Failure to apply CIC in consideration of the phrase “employment to the nature of which the disease was due”

Mr Hay submits that this phrase has been the subject of interpretation in many cases. He contends that the Arbitrator erred in law by following Cameron, a case relating to the interpretation of s 18 and not s 17 and which did not involve a consideration of the relevant phrase. Mr Hay maintains that despite being concerned with damages, rather than statutory compensation, CIC is appropriate authority for the meaning of the phrase, which is expressed in substantially similar terms in s 151AB. Mr Hay maintains that CIC is factually similar to his case in that both involve a period of employment which was, at an earlier period in time, employment to the nature of which the disease is due. He relies on the passage from Gleeson CJ in CIC where his Honour said the “employment referred to is not a contractual relationship” but the “engagement in a form of activity which exposed [the worker] to a risk of disease of such a nature as to be contracted by a gradual process.”[12]
[12] CIC, [177].
Mr Hay further quotes from the judgment of Gleeson CJ as follows:
“Here, legislation on the same topic and, so far as the critical words are concerned, expressed in identical language, has been authoritatively interpreted by ultimate appellate courts. No arguments have been advanced which demonstrate that it ought to be concluded that the final words of s 151AB have a meaning that is different, for example, from the meaning the same words had in s 7(4) of the Workers’ Compensation Act 1926. On the contrary, there is every reason to conclude that they have the same meaning. The context is the same. The problem being addressed is that of a disease contracted by a gradual process. The idea of a disease being due to employment of a certain nature directs attention, not to the contract of employment, but to the work being performed and the exposure to the risk in that work”.[13]
[13] CIC, [176].
Mr Hay refers to the passage in the House of Lords decision in Blatchford v Staddon & Founds,[14] where Lord Blanesburgh said that the word “employment” “very clearly refers to the work or process in which the workman had been engaged and not to his contract of employment.” Mr Hay submits that Blatchford was applied in the High Court decision of Smith v Mann[15] in consideration of s 7(4) of the Workers Compensation Act 1926 (the 1926 Act). Mr Hay says that s 7(4) of the 1926 Act is expressed in similar terms to s 17 of the 1987 Act.
[14] [1927] AC 470 (Blatchford), 482.
[15] [1932] HCA 30; 47 CLR 426 (Smith v Mann).
Mr Hay submits that the reasoning in CIC should be followed. He contends that the interpretation of the phrase “employment to the nature of which” should be consistent with the way it has been interpreted over the years.

Applicability of Cameron

Mr Hay contends that while it is correct to say that s 17 is analogous to ss 15 and 18, the Arbitrator failed to engage in the process of statutory construction. He submits that Cameron was confined to the interpretation of s 18, not s 17, and that the Arbitrator ought to have considered the text of s 17.
Mr Hay says that Cameron was a dispute about which insurer was liable to pay compensation in respect of the death of a worker where the deemed date of injury was the date of death. Mr Hay asserts that there was no dispute in relation to s 15.
Mr Hay submits that the wording and purpose of s 18 is substantially different to that of s 17. He submits that s 17(1)(a)(ii) deems the date of employment, and s 18 assigns liability to an insurer where the date of injury is already known. The purpose of s 18 is to determine which insurer is liable where the date of injury is after the worker ceased employment with the employer. Such a provision is not needed in hearing loss cases because the date of injury could never fall outside the period of employment.
Mr Hay referred to Deputy President Roche’s reasons in Cameron and says that the Deputy President acknowledged that ss 151AB and 18 are expressed in completely different terms and the two provisions could not be validly compared. He submits that, for the same reason s 17, which uses almost identical language to s 151AB, cannot be compared to s 18.
Mr Hay raises the point that Cameron was the subject of an appeal to the Court of Appeal and that Basten JA noted the following:
“Section 17(1), which deals with loss of hearing, uses the language of a worker being ‘employed in an employment to the nature of which the injury was due’. Section 151AB(1) of the Act, dealing with the identification of the policy of insurance which responds to a claim for damages for an ‘occupational disease’, uses similar language to that found in s 17. Indeed, s 15(1)(b) also uses the language of the employer who last employed the worker in employment to the nature of which the disease was due.
The fact that s 18 does not use the extended language of the other provisions gives rise to the question why, when the legislature has expressly used that language in some provisions but not others, it should be assumed to have intended the language to operate in other provisions from which it was omitted, so as to achieve a different effect from the unambiguous language in fact used. One answer proffered by the appellant was that not to read the statute with the additional words inserted might give rise to anomalous results with respect to the liability of insurers. However, that argument has little if any weight with respect to the proper construction of a deeming provision, which identifies a relevant point in time for particular consequences of an injury which did not in fact ‘happen’ at any particular point in time, but over a period.”[16]
“The case in question was CIC Workers’ Compensation (NSW) Ltd v Alcan Australia Ltd. That case was, however, of no assistance. It dealt with s 151AB of the Act, not s 18. The language of s 151AB, critical to the outcome in that case, involved a reference to liability taken to have arisen ‘when the worker was last employed by that employer in an employment to the nature of which the disease was due.’ The submission depended, in effect, on acceptance of the first submission, namely that s 18 should be read as if that language had been included in the section.”[17]
[16] StateCover Mutual Ltd v Cameron [2015] NSWCA 127 (Cameron No 2), [9]–[10].
[17] Cameron No 2, [14].
Mr Hay submits that the difference in language and the omission of the phrase “employment to the nature of which the disease is due” indicates that s 18 was intended to operate differently and achieve a “different effect” to s 17.
He further submits that it is clear that Basten JA’s consideration leads to an acceptance by the Court of Appeal that CIC is “good law”.
Mr Hay concludes that Cameron is limited to the construction of s 18 of the 1987 Act and it is obvious that it does not lend itself to the construction of other sections of the Act. He submits that the Arbitrator’s reliance on and application of Cameron to Mr Hay’s case is erroneous. He says the Arbitrator failed to engage with the proper construction of s 17 of the 1987 Act and accordingly erred in law.

Commonwealth Steel’s submissions

Commonwealth Steel summarises Mr Hay’s appeal as an allegation that the Arbitrator erred in law by failing to apply the reasoning in CIC. That is, in her interpretation of s 17, she ought to have given regard to the nature of the work performed at the relevant time of the noise exposure.
It submits that the Arbitrator was correct in not following CIC because CIC dealt with common law rights that arise separately from the 1987 Act and not statutory compensation. The distinction was observed by Deputy President Roche who found that CIC did not apply. Commonwealth Steel contends that on the basis of that distinction, CIC is not relevant to a determination pursuant to s 17 of the 1987 Act.
Commonwealth Steel submits that the purposes of the disease provisions are to reduce litigation and assist workers to establish liability under the Act. It refers to the passage in the judgment of Kirby P (as his Honour then was) in Grate Lace Pty Ltd t/as Grate Lace Bricklaying Co v Theiss Watkins White (Constructions) Pty Ltd[18] that the objects of the provision were to:
(a)    avoid unnecessary litigation;
(b)    simplify the assignment of liability;
(c)    remove the debate about “true” causation, and
(d)    fix the primary liability to the last relevant employer.
[18] (1995) 12 NSWCCR 365 (Grate Lace), 368[E]–[G].
Grate Lace involved a determination of the employer liable for an occupational disease pursuant to s 15 of the 1987 Act. Commonwealth Steel contends that because the expressions used in s 17 to determine liability are in almost identical terms to s 15, the same objectives apply.
Commonwealth Steel notes the relevant phrase to determine liability found in s 15(1)(b) is expressed as “the employer who last employed the worker in employment to the nature of which the disease is due”, and the equivalent phrase in s 17 is “on the last day on which the worker was employed in an employment to the nature of which the injury is due”. It submits that the Arbitrator considered the similarity in [49] of her decision and that was the basis upon which she determined the two provisions were analogous.

Commonwealth Steel further submits that the approach suggested by Mr Hay offends the objectives of avoiding litigation. An enquiry into the duties to establish when Mr Hay ceased working in a noisy environment with the same employer is an enquiry in to “true causation”.
Commonwealth Steel relies on the following passage from the judgment of Beazley JA in A and G Engineering Pty Ltd v Civitarese:
“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”.[19]
[19] (1996) 41 NSWLR 41, 43; 14 NSWCCR 158, 160.
Commonwealth Steel says that Mr Hay’s evidence was that his employment with the Rural Fire Service was noisy, which was conceded, and his employment with the Rural Fire Service continued until 1997. It submits that the Arbitrator turned her mind to which of the two noisy employers was the last employer who employed Mr Hay, which she identified correctly to be the Rural Fire Service.
Commonwealth Steel further relies on Rico Pty Ltd v Road Traffic Authority,[20] where Sheller JA observed that:
“Section 17 deems the injury here suffered to have happened at a particular time for the purposes of the Act. The time the injury actually happened is irrelevant.”
[20] (1992) 28 NSWLR 679, 690; 8 NSWCCR 515, 529 (Rico).
Commonwealth Steel concludes by submitting that the approach taken by Mr Hay requires an analysis of the evidence to determine when Mr Hay was last exposed to noise, which is an analysis as to “true causation” in circumstances where the authorities have consistently found such an enquiry is not required. It particularly refers to Rico, which was a case that specifically dealt with s 17 of the 1987 Act.

Mr Hay’s submissions in reply

Mr Hay says that Commonwealth Steel has not previously relied on Grate Lace or Rico.
Mr Hay maintains his submissions made in his earlier appeal submissions in respect of the difference between ss 15 and 17 of the 1987 Act. He also maintains that the appeal is concerned with the phrase “employment to the nature of which the injury is due”.
He submits that “true causation” in the sense used in Grate Lace and in Rico is irrelevant to the issue on appeal.
Mr Hay further submits that s 17 requires him to prove, in the circumstances of this case, the last day of actual exposure, but that is not an enquiry as to true causation because it does not concern whether the employment brought about or contributed to the disease.

DISCUSSION

The ordinary meaning of s 17

Mr Hay submits that the Arbitrator erred by failing to interpret s 17 according to its ordinary meaning and failed to analyse the text of the provision. Mr Hay submits that employment to the “nature of which the injury is due” in s 17(1)(a)(ii) deems the injury to have occurred when the worker last worked in noisy conditions.
Section 17 of the 1987 Act is a specific provision confined to deeming a date of injury and to identifying the employer liable for a loss or further loss of hearing that is of such a nature as to be caused by a gradual process, often referred to as “boilermaker’s deafness” or “industrial deafness”. Subsection (1)(c) provides that in circumstances where the worker was no longer employed in noisy employment, the compensation is payable by the last employer who employed the worker “in an employment to the nature of which the injury was due.”
Section 15 of the 1987 Act also provides for the fixing of a deemed date of injury and identification of the employer liable, but in cases of diseases of gradual onset. The section expressly excludes injuries to which s 17 applies.[21] In circumstances where the worker is no longer employed in employment to the nature of which the disease is due, s 15(1)(b) similarly provides that compensation is payable by the last employer who employed the worker “in an employment to the nature of which the disease was due”.
[21] Subsection 5 of s 15 of the 1987 Act.
Section 18 is described as “Special insurance provisions relating to occupational diseases” and its purpose is to determine which insurer is liable to pay compensation for such injuries. The application of s 18 is a step to be taken after a deemed date of injury and the employer liable for the injury has been determined, either in accordance with ss 15, 16 or 17 of the 1987 Act. Section 18(1) provides that despite ss 15 and 16, in circumstances where the deemed date of injury established under ss 15 or 16 is after the worker ceased employment with the employer found to be liable pursuant to ss 15 or 16, the injury is taken to have arisen immediately before the worker ceased work with that employer.
All three sections share the same objective – that is, to avoid unnecessary litigation, simplify the assignment of liability and remove the debate about “true causation”. The Arbitrator discussed the common purpose of the three provisions (quoted at [31] above). She recognised that Cameron dealt with ss 15 and 18 and not s 17, but noted that the sections were in similar terms.
It is clear from the Arbitrator’s decision that she gave consideration to the text of s 17. The Arbitrator reproduced s 17 in the decision and, noting it was common ground that Mr Hay was not employed in employment when he gave notice of injury, applied s 17(1)(a)(ii). She said the section applied to deem the date of injury on the last day upon which the worker was employed “in an employment to the nature of which the injury was due” before he gave notice. She observed the section provides that “compensation is payable by the last employer by whom the worker was employed in an employment to the nature of which the injury is due.”[22]
[22] Reasons, [30]–[31].
The Arbitrator reviewed the evidence and Mr Hay’s submissions. She referred to Deputy President Roche’s decision in Cameron and his consideration of StateCover’s argument in that case, which was the same argument Mr Hay makes in this case, that is that liability should fall on the date of last exposure. She noted the Deputy President observed that the approach mistakenly sought to assign liability according to a notion of true causation, which was fundamentally wrong.
The Arbitrator quoted Deputy President Roche, who said that the authorities made it crystal clear the assertion made by StateCover was not the way ss 15 and 18 worked. The Arbitrator acknowledged that Cameron did not deal with s 17, but the words of the section were in similar terms to those of ss 15 and 18.[23] She then proceeded to discuss the common purpose of the three sections, recorded above at [31]. Adopting the same approach as in Cameron, the Arbitrator said she was not to look behind the deemed employment with Rural Fire Service from 1989 to 1997 to the nature of the work that was being performed in different periods within the Rural Fire Service.
[23] Reasons, [49].
The Arbitrator’s reasons disclose that she clearly turned her mind to the text of s 17(1)(a)(ii) and what was required in order to determine the issue of “last noisy employer”.

Conflation of the concept of “employment” with “employer”

Mr Hay submits that the ordinary meaning of the section is that the injury is deemed to have occurred on the last day the worker worked in noisy employment. Such an approach imposes words into the statute that are simply not there, contrary to the principles of statutory interpretation. The Arbitrator considered the context and purpose of the provision, which is consistent with a proper consideration of the statutory meaning of the text.[24] She relied on Cameron as authority that the contention by Mr Hay as to how the text ought to be construed was, to use the words of Deputy President Roche, “fundamentally wrong”.
[24] Alcan NT, [47].
The Arbitrator’s approach is consistent with a long list of authorities relating to the phrase “in employment to the nature of which the [injury or] disease is due” as it appears in s 17(1)(a)(ii) and s15(1)(b) of the 1987 Act.
In Smith v Mann[25] the High Court considered the concept of a disease arising from the nature of the employment for the purpose of the equivalent provision in the 1926 Act.
[25] [1932] HCA 30; 47 CLR 426.
In that case, Justice Starke took the view that:
“It must arise, no doubt, from the nature of the employment. But it is not necessary that it should arise ‘out of the particular service of the particular employer sued’: it is enough if the disease is ‘incidental to that class of employment so that it can be attributed to service therein’.”
Dixon J (as his Honour then was) considered that:
“[The] interpretation gives too narrow an operation to sub-sec. 4 of sec. 7, the effect of which is to enable a worker, if in the course of his occupation he receives injury by contracting a disease by a gradual process through the nature of his occupation, to obtain compensation from the employer in whose employment in that occupation the worker is at the time of his incapacity, or, who last before his incapacity so employed him, leaving that employer to recover contribution from any other employer …
It seems proper to understand the provision in the first paragraph as confined to employers who do employ or have employed the worker in an employment to the nature of which the disease is due, but any further restriction upon the class of employment or any further requirement as to causation seems unwarranted.”
In Commonwealth v Bourne,[26] the High Court further considered the meaning of the phrase in s 10(1)(b) of the 1926 Act “due to the nature of the employment in which the employee was engaged”. Adopting what was said by Lord Sumner in Blatchford, the Court concluded that the phrase referred to is not concerned with the particular activity with a particular employer, but rather the results which are incidental to the class of employment by virtue of its tendencies, incidents or characteristics. It is not concerned directly with something arising out of the particular service of the particular employee.
[26] [1960] HCA 26; 104 CLR 32 (Bourne).
Dixon CJ said that the phrase “due to the nature of the work” was used:
“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 of whether working for that particular employer contributed at all to his condition … 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 …
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 by virtue of its tendencies, incidents or characteristics.”[27]
[27] Bourne, [7].
The Court of Appeal in Blaney Shire Council v Lobley[28] held that in determining whether, at a time when notice of injury was given, the worker 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.
[28] (1995) 12 NSWCCR 52.
Mr Hay’s employer when he ceased noisy work remained his employer beyond the period when Mr Hay worked with Commonwealth Steel. The Arbitrator rejected the notion that there were two distinct “employments” with the Rural Fire Service and that finding has not been challenged. The Rural Fire Service was clearly an employer who employed the worker “in an employment to the nature of which the injury was due” and he remained in the employ of the Rural Fire Service beyond his employment with Commonwealth Steel. In line with the above authorities and for the purposes of s 17, it is not necessary or correct to identify a precise time when the injury occurred or to isolate certain duties performed during the whole period of employment with a noisy employer.
The Arbitrator observed that the deemed employment of a volunteer within cl 13 of Sch 1 to the 1998 Act did not distinguish between someone who volunteered to fight fires and a volunteer in the control room. This is indicative of a continuing employment relationship rather than two separate employments.
Mr Hay submits that because s 18 provides for a liable insurer in circumstances where the worker is no longer employed, the section is not needed in a s 17 case. This is said to be because the date of the injury could never fall after the worker ceased employment. Section 18 applies to s 17 claims where an employer becomes liable to contribute to the compensation (s 18(2)(a)) and also in accordance with s 18(3).
Mr Hay made his claim after cessation of employment with both the Rural Fire Service and Commonwealth Steel. Following the admission by the parties that the Rural Fire Service was “noisy employment”, the Arbitrator was correct in applying s 17(1)(a)(ii) and identifying the last noisy employer as the Rural Fire Service.

Failure to apply CIC

Mr Hay asserts that because the phrase “employment to the nature of which the disease [or injury] was due” is in identical terms in both s 151AB and s 17(1)(a)(ii), the Arbitrator erred by not applying CIC.
Mr Hay’s reliance on CIC is misplaced. It is useful to consider what Deputy President Roche said in Cameron about the application of CIC to that case.
“The Arbitrator rejected the argument that CIC requires a finding that, for the purposes of s 18, ‘the employer’ is ‘the [Council] in the interests of GIO old Act’ ([89]) and that the deceased ceased to be employed by the ‘employer’ when he ceased working as a yardman/storeman (and ceased exposure to sunlight) in 1986. This is substantially the same argument presented on appeal, save that, on appeal the argument is that ‘employment’ means the employment that exposed the deceased to sunlight up to 1986.
The Arbitrator rejected reliance on CIC because:
(a) section 151AB applies to the liability of an employer independently of the 1987 Act for damages for an occupational disease contracted by a worker;
(b) to import into s 18 the meaning of ‘employer’ (employment) found in CIC is not correct, as s 151AB was enacted to introduce special insurance provisions relating to occupational diseases for common law claims (for damages) by workers against employers independently of the 1987 Act;
(c) to import into s 18 the meaning of ‘employer’ (employment) found in CIC would be inconsistent with Grate Lace where Sheller JA (Gleeson CJ agreeing) held that, for the purpose of s 15(1)(b), compensation is payable by the employer in whose employment the worker was last employed, subject only to the condition read into that provision by Dixon J in Smith v Mann [1932] HCA 30; (1932) 47 CLR 426, that it be employment to the nature of which the disease was due, and
(d) as explained by Kirby P (as his Honour then was) in Grate Lace, the object of s 15 is to, among other things, remove the highly disputatious debate about ‘true’ causation and fix the last relevant employer with primary liability (subject to limited contribution rights in s 15(2)).
I agree with this analysis …”[29]
[29] Cameron, [90]–[91].
The dichotomy between damages on the one hand and statutory compensation on the other is relevant. Although the starting point of statutory construction is to look at the words themselves, in line with Alcan NT, consideration of the context and general purpose of a provision is a consideration consistent with the principles of statutory construction.
Section 151AB was introduced for the purpose of identifying an insurer to meet payment of damages in respect of a claim independent of the 1987 Act. Sections 15 and 17 were introduced to create an easy pathway to enable workers to access statutory entitlements in cases where proof of an employer’s liability was difficult.
In Dokoza v Stadkite Pty Ltd, Beazley JA (as her Honour then was) observed that:
“the structure of the [1987 Act] generally, and Pt 5 in particular, is such that the [1987 Act] maintains a distinction between compensation payable – that is the statutory compensation payable under the [1987 Act] which has no common law source and a person’s common law entitlement to damages. Notwithstanding that as between a worker and the worker’s employer, those damages are now regulated, they do not thereby become ‘compensation’ under the Act.”[30]
[30] (1997) 42 NSWLR 544, 547C.
Tobias JA (Campbell and Bell JJA agreeing) in J C Equipment Hire Pty Ltd v The Registrar of the Workers Compensation Commission of NSW said that:
“Section 149 of the 1987 Act emphasises the dichotomy between damages on the one hand and statutory compensation on the other. The fact that statutory compensation may be retained by a worker injured by his or her employer’s negligence is unsurprising given that work injury damages are now confined to present and future economic loss. The scheme of the legislation is, simply, that non-economic loss is determined in accordance with the provisions of ss 66 and 67 of the 1987 Act, whereas economic loss (where fault on the part of the employer causing the relevant injury is established) is recoverable as damages. The confining of such damages to economic loss does not, in my view, blur the dichotomy between a claim for lump sum compensation (as defined in s 4 of the WIM Act) on the one hand and work injury damages (as defined by s 250 of that Act) on the other.”[31]
[31] [2008] NSWCA 43; 70 NSWLR 704, [60].
It is relevant that in respect of a claim for statutory entitlements, s 18 (not s 151AB) provides for identification of the relevant insurer for the purposes of ss 15 and 17. Section 151AB(1) is limited as to its application, expressed as having “effect for the purposes of any policy of insurance obtained by the employer.”
The current claim is a claim for statutory compensation. Adopting the views of Deputy President Roche, it follows that CIC, a case relevant to nominating an insurer to meet a claim for damages for a negligent act, does not apply in respect of what is required to satisfy ss 15 and 17 the 1987 Act for the purposes of determining the liability of an employer in a “no fault” statutory system.
In CIC, no argument was put forward that there was a distinction between what ought to be required for the purpose of establishing the liability of an insurer for damages and that which was required for fixing the liability of an employer in a statutory scheme. Nor was it put that it was relevant to look at the different purpose for which s 151AB was enacted.
It is also relevant that the argument put forward in this case is the same argument raised in CIC, which was rejected by the Court of Appeal in GIO v GIO. As the Deputy President said in Cameron, GIO v GIO is clear authority on the point, which binds the Commission.
The further difficulty Mr Hay has in relying on CIC is that the Arbitrator did not simply determine the matter on the basis of the contractual relationship. Mr Hay conceded that the employment with the Rural Fire Service was of a character to be classed as “noisy employment” and the Arbitrator was entitled to rely on that concession.
Mr Hay quotes from the judgment of Lord Blanesburgh in Blatchford (reproduced at [49] above) and submits that the High Court relied on Blatchford in Smith v Mann. The consideration of Blatchford in Smith vMann was expressed by Starke J as reproduced at [85] above. Mr Hay’s submission is at odds with the ratio in Smith v Mann.
Mr Hay, in arguing that the later particular duties should result in a finding of no liability, is in effect seeking to extend the phrase to include a requirement that the exposure to noise must have persisted while he was in employment with the Rural Fire Service beyond the time of ceasing work for Commonwealth Steel. Such an assertion is contrary to law. As Sheller JA said in Rico, “Section 17 deems the injury here suffered to have happened at a particular time for the purposes of the Act. The time the injury actually happened is irrelevant.”[32]
[32] Rico, 529 [G].

Applicability of Cameron

Mr Hay contends that the decision in Cameron is confined to the interpretation of s 18 and not s 17. He submits that there was no issue as to the deemed date of injury (which was the death of the worker) and there was no dispute arising under s 15. Mr Hay says the purpose of s 18 is substantially different to s 17(1)(a)(ii). He further asserts that in determining the appeal in Cameron No 2, the Court of Appeal accepted that CIC is “good law”.
The premise upon which the Arbitrator looked to the presidential decision in Cameron was on the basis that while Cameron dealt with ss 15 and 18, the case before her was analogous because the sections were deeming sections for the provision of a fixed date of injury and for fixing liability in a statutory scheme for workers who had contracted a disease of gradual process. As in Cameron, the Arbitrator determined that CIC did not apply as s 151AB is not relevant to the deeming provisions in a scheme of statutory entitlements.
The Arbitrator said that in Mr Hay’s case, s 17 deemed the date of injury to be the last day on which he was employed in an employment to the nature of which the injury was due, before he gave notice of his injury. Again, consistent with Cameron and other authorities referred to above, the Arbitrator concluded she was not to look behind the “employment” with the Rural Fire Service from 1989 to 1997 to investigate the nature of the work performed in different periods with the Rural Fire Service.
In Cameron No 2, Basten JA observed (Beazley P agreeing):
“The factual underpinning to the appeal was the finding by the Commission that the deceased was last exposed to sunlight (which exposure contributed to his melanoma) in the course of his employment with the Council in 1986. Thereafter he ceased to work outside. The second respondent, AAI Ltd, was the workers’ compensation insurer of the Council in 1986.”[33]
[33] Cameron No 2, [8].
Although Cameron related to which insurer was on risk, as opposed to which employer was liable, the case turned on what consideration should be given to the change in employment duties as it did this case. In that context also, the Deputy President’s reasons were relevant.
In Cameron No 2, Basten JA referred to the appellant’s reliance on CIC, and said that CIC was of no assistance because it dealt with s 151AB of the Act, not s 18.[34] I do not accept the submission that the Court of Appeal accepted that CIC was “good law”. Even if it did, that does not mean that it has relevance to this case.
[34] Cameron No 2, [14].

Conclusion

While the Deputy President observed in Cameron that the text of s 18 is different to that of s 151AB, and that was one reason for rejecting the application of CIC, it was not his only reason. The Arbitrator drew assistance from the Deputy President’s reasons because:
(a)    of the similarity in the argument put in Cameron;
(b)    there was a factual consistency between Cameron and this case;
(c)    they shared the same statutory purpose, and
(d)    there was the same dichotomy between provisions concerned with damages and those relating to a statutory entitlement and damages.
Mr Hay has not established error on the part of the Arbitrator and the appeal fails. Even if I am wrong in that respect, the Arbitrator’s determination is consistent with the long line of authorities discussed above that deal with the phrase “to the nature of which the injury is due” and the appeal fails in any event.

DECISION

The Arbitrator’s Certificate of Determination dated 26 March 2018 is confirmed.

Elizabeth Wood

Deputy President

31 July 2018