Hills Bus Co Pty Ltd v Grewal - [2024] NSWPICPD 75

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Hills Bus Co Pty Ltd v Grewal [2024] NSWPICPD 75
APPELLANT:	Hills Bus Co Pty Ltd
RESPONDENT:	Sukhwinder Grewal
INSURER:	ComfortDelGro Corporation Australia Pty Ltd
FILE NUMBER:	A1-W7977/23
PRESIDENTIAL MEMBER:	President Judge Phillips
DATE OF APPEAL DECISION:	25 November 2024
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 8 January 2024 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – Dawson t/as The Real Cane Syndicate v Dawson [2008] NSWWCCPD 35 considered and applied
HEARING:	On the papers

REPRESENTATION:	Appellant:
Mr G Guest, solicitor
Sparke Helmore Lawyers
Respondent:
Mr G Horan, counsel
Turner Freeman Lawyers
DECISION UNDER APPEAL:	Grewal v Hills Bus Co Pty Ltd [2024] NSWPIC 8
MEMBER:	Mr J Isaksen
DATE OF MEMBER’S DECISION:	8 January 2024

INTRODUCTION

The respondent commenced employment with the appellant, Hills Bus Co Pty Ltd, in October 2016 as a bus driver. The respondent states that he sustained hearing loss in the course of his employment with the appellant after being exposed to loud noise including a combination of laughing, shouting and talking school children, the bus engine, passengers talking to each other, surrounding traffic and screeching brakes.[1]
[1] Respondent’s statement dated 28 August 2022, Application to Resolve a Dispute (ARD), pp 1-3.
On 2 July 2021 the respondent made a claim for the cost of the supply and fitting of hearing aids pursuant to section 60 of the Workers Compensation Act 1987 (1987 Act) in the amount of $6,037.30.[2]
[2] ARD, p 6.
The appellant subsequently issued a section 78 notice disputing liability of the injury on the basis that the injury did not arise out of the employment with the appellant and the appellant was not the last noisy employer, as required by section 17 of the 1987 Act.[3]
[3] ARD, pp 8–9.
The dispute proceeded to the Personal Injury Commission (Commission) for resolution and was heard by Member Isaksen on 20 December 2023, after a conciliation failed to bring the parties to a settlement. The Member found in favour of the respondent in a decision dated 8 January 2024, finding that the respondent sustained loss of hearing in the course of his employment with the appellant and that the appellant was the last noisy employer of the respondent. The appellant was ordered to pay for the supply and fitting of binaural hearing aids. The appellant appeals from this decision.

ON THE PAPERS

Section 52(3) of the Personal Injury Commission Act 2020 provides:
“(3) 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 and enabling legislation without holding any conference or formal hearing.”
Having regard to Procedural Directions PIC2 and WC3; 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 and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 Act (1998 Act) have been met.

THE MEMBER’S REASONS

The only issues for determination before the Member were:
(a) whether the respondent sustained a loss of hearing injury in the course of his employment with the appellant pursuant to section 4 of the 1987 Act, and
(b) whether the appellant was the respondent’s last noisy employer as required by section 17 of the 1987 Act.
The respondent referred to the decision of Dawson t/as The Real Cane Syndicate v Dawson[4] and submitted that the correct test to be applied is whether the employment in which the worker worked has the tendencies, incidents or characteristics such as to give rise to a real risk of industrial deafness.[5] The respondent submitted that it is not necessary for a worker to call acoustic engineering evidence, however it was necessary for the worker to provide detailed evidence as to the nature, volume and duration of the alleged noise exposure[6] which was sufficiently detailed in his statement dated 28 August 2022.[7]
[4] [2008] NSWWCCPD 35 (Dawson).
[5] Transcript of proceedings dated 20 December 2023 (T), T 3.23-33.
[6] T 4.20–30.
[7] ARD, pp 1–3.
The respondent states that he was initially exposed to loud noise when he commenced employment as a casual process worker with Tubemakers of Australia Limited, in September 1985. During this time, he was exposed to heavy industrial metalwork machinery and metal impact noise. The respondent subsequently commenced working for BHP Steel in February 1986 as a relief galvaniser for a period of approximately 9 months, during which time he was again exposed to loud noise from industrial machinery. He was not provided with hearing protection from either employer.
Between December 1986 to 1990 the respondent states that he was employed by Tooheys Brewery as a process worker, where he again was exposed to loud noise.
The respondent then worked as a taxi driver until 2016, before gaining employment with the appellant as a bus driver. The respondent states that his employment with the appellant required him to work five to six days per week. During his eight-hour shifts, he was required to complete school runs which involved taking 35 to 50 children from school for a duration of 40 to 45 minutes. During the school runs, the children would be “laughing, shouting and talking”[8] and the noise was so substantial that it required the respondent to raise his voice or shout in order to talk to someone one metre away.
[8] ARD, p 2.
The respondent states that when he was not carrying out school runs, he was completing local and city runs where he was impacted by loud noise due to the bus engine, passengers talking to each other, surrounding traffic and screeching brakes and other general noises in or out of the bus.[9]
[9] ARD, p 2.
The respondent qualified Dr Scoppa, Ear, Nose and Throat (ENT) Specialist, who provided reports dated 31 March 2021[10] and 27 November 2022.[11] Dr Scoppa considered that the description provided by the respondent in relation to his noise exposure as a bus driver, particularly while conducting school runs, was consistent with the noise level being well above 90dBA and was of the opinion “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” and the noise exposure was a substantial contributing factor to the developed industrial deafness injury.[12] Dr Scoppa noted “[f]rom 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.”[13]
[10] ARD, p 19.
[11] ARD, p 26.
[12] ARD, p 22.
[13] ARD, p 28.
Finally, the respondent relied on evidence of the 2022 SafeWork NSW Code of Practice which records that short periods of noise exposure can cause deafness once noise exceeds 85dBA.[14]
[14] Application to Admit Late Documents (AALD), p 1.
The appellant relied on a report from Mobile Screening Pty Ltd (Mobile Screening) dated 27 August 2021[15] which carried out a noise assessment of nine different buses, across two depots, driven between two and almost five hours. The report concluded there was a low noise risk to drivers across all bus models with dose results being well below 85dBA. The respondent submitted that the noise report was not probative as it was not conducted during a school run.[16]
[15] Reply to Application to Resolve a Dispute (Reply), p 1.
[16] T 8.19–25.
The appellant submitted that there have been seven cases before the Compensation Court, including Wright v State Transit Authority NSW[17] and Callaby v State Transit Authority (NSW)[18] where it was decided the employment of driving buses was considered not noisy employment and, while not binding on the Member, they should be considered.[19] The appellant submitted that there are evidentiary difficulties as it cannot be determined how long the respondent experienced noise exposure from screaming children and what level of noise that exposure created.[20] The appellant referred to Dawson and submitted that while noise testing is not essential in every case, it will assist in cases where the level of noise is in dispute.[21]
[17] Unreported, 7 February 1996, No 31343 of 1993, (Wright).
[18] [2000] NSWCC 30; 21 NSWCCR 216 (Callaby).
[19] T 11.19–28.
[20] T 12.24–28.
[21] T 13.5–10.
The appellant submitted that it is impossible to provide exact records as to what noise the respondent was exposed to, however the report of Mobile Screening provides comfort that the noise exposure does not reach the necessary 85dBA over eight hours.[22]
[22] T 13.26–14.2.
The appellant submitted that Dr Scoppa’s opinion is unreliable as it is based on a mistaken belief that the noise assessment only contained testing at the depots.[23]
[23] T 16.13–21.
ENT, Dr Raj, was qualified by the appellant and provided a report dated 10 November 2021. Dr Raj was of the opinion that the only noise exposure capable of producing hearing loss was the respondent’s prior employments with BHP, Tubemakers and Tooheys.[24]
[24] Reply, p 6.
The Member ultimately found that the respondent suffered loss of hearing during the course of his employment with the appellant and that the appellant was the last noisy employer. In coming to his decision, the Member found that the noise assessment from Mobile Screening lacked probative value on the basis that the report was ambiguous as to how and when the noise was measured, how many people were on the bus, the time of day when the surveys were conducted or the routes that were taken.[25] The Member found a crucial element missing from the noise assessment was the noise measurement on a bus on an afternoon school run with 35 to 50 children for a period of 40 to 45 minutes.[26]
[25] Grewal v Hills Bus Co Pty Ltd [2024] NSWPIC 8 (reasons), [41]–[43].
[26] Reasons, [44]–[45].
The Member noted it was undisputed that the respondent had to raise his voice to communicate to a person who was only one metre away from him and that this was a consideration of Dr Scoppa in forming his opinion. The Member accepted Dr Scoppa’s opinion and noted:
“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”.[27]
[27] Reasons, [46]–[47].
The Member ultimately preferred the opinion of Dr Scoppa over Dr Raj and said that Dr Raj failed to explain how he concludes that the noise from the children was never continuous or what he meant by such statement as such statement was inconsistent with the uncontested evidence, being that the noise from children was loud enough for the respondent to raise his voice to speak to someone one metre away, and it was continuous for 40 to 45 minutes.[28]
[28] Reasons, [50].
The Member was satisfied that the respondent had met the test set out in Dawson that the tendencies, incidents and characteristics of his employment are such as to give a real risk of industrial deafness. Lastly, the Member dismissed the appellant’s submissions that it had been well settled in the Compensation Court that bus driving, including school runs, did not induce industrial deafness. The Member did not consider that there was any judicial comity between this dispute and the decisions of Wright and Callaby because disputes of that nature must be determined on their own facts.[29]
[29] Reasons, [51].
The Certificate of Determination issued on 8 January 2024 records:
“1.     The [respondent] sustained loss of hearing in the course of his employment with the [appellant].
2.     The [appellant] is the last noisy employer of the [respondent].
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 [respondent] to the [appellant].
4.     Binaural hearing aids to be supplied and fitted for the [respondent] are reasonably necessary as a result of the injury sustained by the [respondent] in the course of his employment with the [appellant].
The Commission orders:
5. Pursuant to s 60(5) and s 61(4A) of the Workers Compensation Act 1987, the [appellant] is to pay for the cost of the supply and fitting of binaural hearing aids.”

GROUNDS OF APPEAL

In the Appeal Application, the appellant has advanced two grounds of appeal. However, in a supplementary submission dated 6 February 2024, the appellant makes a number of additional submissions after having reviewed the transcript. This supplementary submission appears to raise a further ground, although it has not been couched in those terms. In its Notice of Opposition dated 4 March 2024, the respondent to the appeal has responded to all three grounds, that is the two grounds in the Appeal Application and the new ground raised in the supplementary submission. The appellant has not filed a reply submission so I will proceed on the basis that there are three grounds of appeal which are as follows:
(a)    Ground One - The Member denied the appellant procedural fairness in not addressing the appellant’s primary submission in the matter (denial of procedural fairness).
(b)    Ground Two - The Member erred in finding that the respondent had satisfied the onus of proof in this matter given that there was insufficient evidence to support his finding that the employment with the appellant was noisy (no evidence error).
(c)    Ground Three - “The Appellant submits that there has been a denial of procedural fairness given that the Member disregarded the opinion of Dr Raj due to his use of the expression ‘not continuous’, indicating that he was unclear of what Dr Raj meant by that statement.”[30] Further the appellant states: “The Member determined the matter on grounds not put to him and the Appellant was not given the opportunity to address on that issue”[31].[32]
[30] Appellant’s supplementary submission 6 February 2024, [1].
[31] Appellant’s supplementary submission 6 February 2024, [4].
[32] This argument in the supplementary submission has not been drafted or framed as a Ground of Appeal would usually be. Doing the best I can, the two extracts from the submission reflect the essence of the complaint.

LEGISLATION

Section 4(b) of the 1987 Act provides that the definition of ‘injury’:
“includes a disease injury, which means—
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, …”
Section 17 of the 1987 Act sets out the provisions in respect of loss of hearing relevantly as follows:
“(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) …
(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,
(d) an employer (not being an employer referred to in paragraph (c) (i) or (ii)) by whom the worker was employed in an employment to the nature of which the injury was due during the relevant period (as defined in paragraph (e)) shall be liable to make to an employer referred to in paragraph (c) (i) or (ii) a contribution which bears to the amount of compensation payable the same proportion as the period of that employment during the relevant period bears to the total period of employment of that worker in an employment to the nature of which the injury was due during the relevant period,
(e) in paragraph (d), the relevant period means—
(i) where the worker has not had a prior injury (being a loss of hearing or a further loss of hearing)—in relation to an injury, the period of 5 years immediately preceding the date when a notice is given in respect of the injury,
(ii) where the worker has had one or more prior injuries (being losses of hearing or further losses of hearing) which or all of which, as the case may be, are deemed under this Act to have happened at a time more than 5 years before the date when a notice is given in respect of a further injury—in relation to the further injury, the period of 5 years immediately preceding the date when that notice was given, and
(iii) where the worker has had not more than one, or more than one, prior injury (being a loss of hearing or a further loss of hearing) which or the last of which, as the case may be, is deemed under this Act to have happened at a time during the 5 years immediately preceding the date when a notice is given in respect of a further injury—in relation to the further injury, the period between the time when that prior injury is deemed to have happened and the date when that notice was given,
...”

DISCUSSION

As to Ground One

The appellant asserts that the Member misunderstood or misinterpreted its submission about the application of decided authority from the former Compensation Court of NSW. These authorities had found that employment as a bus driver was not noisy employment. The appellant says that it did not submit that the Member was bound by these decisions, rather the appellant states that, given these earlier decisions, expert acoustic evidence was required, consistent with the reasoning in Dawson. The appellant states that once noise was placed in issue, reliance on medical evidence not based on noise surveys was insufficient for the respondent to discharge his onus. By failing to address this argument, the appellant submits that it was denied procedural fairness.
Secondly, the appellant asserts that the Member dismissed Dr Raj’s opinion by not accepting the doctor’s statement that noise from school children is “never continuous”. The appellant says that if the doctor’s opinion was going to be dismissed on this basis, the Member should have sought submissions from the appellant.
Thirdly, the appellant asserts the following:
“25. In reaching his conclusion that the employment with the Appellant was noisy the Member at paragraph [52] of the decision indicated that:
‘The [respondent] 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 [appellant] has not provided any evidence to contest this.’
26.    The Appellant notes that contrary to the finding of the Member, it did adduce evidence contrary to that of the [respondent], being expert evidence from Dr Raj who at paragraphs 5 and 8 of his report confirmed that the noise exposure experienced by the worker was not sufficient to cause industrial deafness (at pages 6 and 7 of the Reply). In addition, the Appellant relied upon noise surveys undertaken during the operation of the buses.
27.    The Appellant submits that the Member clearly erred in proceeding on the basis that there was no evidence contesting the level of noise experienced by the worker when in fact the expert medical evidence served by the Appellant clearly put this issue in dispute with Dr Raj indicating his view (along with noise surveys) that the noise exposure was not sufficient to cause industrial deafness.
28.    This failure to have proper regard to the Appellant’s evidence represents a denial of procedural fairness.”

In reply, the respondent states that the Member directly addressed the principles arising from Dawson at reasons [38], before reaching his conclusion at reasons [52]–[54] that Dawson had been satisfied by the respondent. The respondent says that the Member’s reference to “uncontested evidence” and “[the appellant] has not provided any evidence to contest this”[33] is “… clearly a reference to the evidence of the worker as to the nature/volume and extent/duration of the noise exposure. The appellant employer … called no evidence from other witnesses of the noise to which the [respondent] was exposed, such as evidence from a school child on the trip or other bus drivers who did these afternoon school trips.”[34] The respondent submits that the Member was correct in finding that the appellant did not adduce any probative evidence as to the nature, volume, extent or duration of noise on the bus during the school run.[35] The respondent says that the interplay of the lay evidence and Dr Scoppa’s expert evidence constituted the correct application of the test in Dawson.[36]
[33] Reasons, [52]–[53].
[34] Respondent’s submissions, [17].
[35] Respondent’s submissions, [19(a)].
[36] Respondent’s submissions, [18].

Consideration

The appellant directed the Member to a number of Compensation Court decisions which were to the effect that driving a bus was not “noisy employment”. Quite properly, the appellant also stated that “ … those decisions are not strictly binding on you.”[37] The appellant stated the following to the Member:
“So, Member, in a nutshell, the [appellant] submits there’s been a long line of authority that confirms that this type of work, i.e., bus driving including driving buses with school children is not noisy employment. That in order to convince you that it was, the [respondent] requires much more technical evidence to establish exactly the periods of time.”[38]
This latter submission is effectively based upon what was said by Deputy President Roche in Dawson at [44].[39]
[37] T 11.22–23.
[38] T 15.27–33.
[39] Dawson, [44] appears in the Member’s reasons, [38].
I do not accept that the Member failed to apply Dawson correctly. Deputy President Roche in Dawson said that it was insufficient for the worker to merely assert that the employment was noisy. The Deputy President said that whilst acoustic evidence is not required in every case, there must be “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.”[40]
[40] Dawson, [44].
This is precisely what happened in this case. The respondent worker gave “detailed evidence” as per Dawson about his exposure. This lay evidence was not contradicted by lay evidence called by the appellant. Indeed a fair reading of Dr Raj’s report of 10 November 2021[41] reveals that Dr Raj accepted the history related by the respondent, he was just of the opinion that the history did not cause the claimed hearing loss. This does not mean, as submitted by the appellant, that the respondent’s evidence was contested. It was not contested. Consequently, I accept the respondent’s submission on this issue that the lay evidence was not contested. I accept that where the Member refers to “uncontested evidence”, he was referring to the lay evidence and as much is evident from a fair reading of the decision as a whole. The respondent’s statement was of the detail referenced in Dawson and was placed before his expert, Dr Scoppa, who posited an opinion based upon that evidence. There was no error in the Member approaching this aspect of his task in that manner. Indeed, this approach is consistent with Dawson at [44].
[41] Reply, p 4.
I should also say that Dawson does not stand for the proposition that acoustic evidence is always required. The appellant’s submission effectively states that the respondent was required to base his expert opinion on “actual noise surveys”.[42] This proposition is incorrect. The Member was not required to accede to this submission, being contrary to the authority of Dawson. No error has been proven.
[42] Appellant’s submissions, [20].
The appellant further complains that the evidence of Dr Raj was “dismissed” on the basis that the Member did not accept the doctor’s view that noise from children is “never continuous”. The appellant complains that it was not given an opportunity to address this point, which was decided, so the argument goes, without it having an opportunity to argue this point.
The passage from Dr Raj’s opinion of 10 November 2021 appears at Reply p 7, paragraph [8(b)] and reads as follows, “Children’s noise is never continuous”. Paragraph [8] of Dr Raj’s report sets the reasons as to why Dr Raj disagrees with Dr Scoppa’s opinion.
Firstly, I do not accept that the appellant did not make submissions on this issue. The appellant at T 14.13–32 addressed the issue pertaining to the noise of school children. The issue was addressed. I would also remark that the issue having been argued, the Member is not required to provide a running commentary on his thought processes.[43] The appellant had and took the opportunity to address on this issue.
[43] CSR Ltd v Busbridge [2015] NSWSC 1268, generally from [48] but specifically at [57]–[58].
Secondly, even if the issue had not been addressed, the statement made by Dr Raj is unsupported by any reasons. It is, with respect, a mere ipse dixit.[44] Even if I accept that the Member did not afford the appellant procedural fairness on this point, such an error could not have affected the outcome given the fact that the offending phrase is unreasoned.[45]
[44] South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16, [130]–[131] per McColl JA.
[45] Toll Pty Ltd v Morrissey [2008] NSWCA 197, [10].
This error has not been established.
Finally, the appellant complains that the Member was in error in finding that the respondent’s evidence was “uncontested”. For the reasons that I have outlined at [35] above, I reject this submission. The Member was not in error in making this finding.
The appellant has not made out any of the errors asserted in Ground One. Ground One is dismissed.

As to Ground Two

This ground is a derivation of the argument pursued by the appellant in Ground One. In short, the appellant says that there was insufficient evidence for the Member to find noisy employment, especially absent any acoustic evidence being led by the respondent. The appellant points to Dawson and says that once it had served its acoustic evidence, “it was necessary for the worker to adduce evidence from an acoustic engineer.”[46] The appellant asserts: “To comment on the actual volume of noise requires expert acoustic evidence as otherwise it is entirely subjective.”[47] As a result, the appellant asserts that there was insufficient evidence for the Member to make a finding that the respondent’s employment was noisy.[48]
[46] Appellant’s submissions, [30].
[47] Appellant’s submissions, [33].
[48] Appellant’s submissions, [34]–[35].
The respondent responds by submitting that the appellant’s argument is contrary to law, citing Deputy President Roche’s comments in Dawson that an acoustic engineer is not required in every case. The respondent says that the Member accepted the combination of the lay and expert evidence (Dr Scoppa) led by the respondent.

Consideration

Under s 352(5) of the 1998 Act, intervention on appeal is dependent upon the establishment of error.[49]
[49] See Raulston v Toll Pty Ltd [2011] NSWWCCPD 25, [17]–[31].
The appellant points to a singular error in this ground, the lack of acoustic evidence being led by the respondent. For the reasons I have described in Ground One above, Dawson does not stand for the proposition that such evidence is universally required. In this case, the appellant says that it was necessary for the respondent to counter the acoustic evidence that it led. The Member though was not persuaded by that acoustic evidence,[50] finding that it lacked probative value. There is no challenge to this finding on appeal. This therefore leaves the contest between the lay evidence of the respondent and the competing expert opinions from Drs Scoppa and Raj. The Member was then engaged in an evaluative exercise whose resolution was one of “fact and degree”.[51] Langford says that it is insufficient for an appellate court to have a different view, the appellant must show error on the part of the decision-maker. This the appellant has not done. I do not accept the appellant’s submission as to what Dawson required. I do not accept that the respondent in order to discharge his onus was required to lead evidence from an acoustics expert. The respondent was not required to counter the appellant’s acoustic evidence with acoustic evidence of his own. This is especially relevant given that the appellant’s acoustic evidence was afforded little weight.
[50] Reasons, [41]–[45].
[51] Australian Air Express Pty Limited v Langford [2005] NSWCA 96 (Langford), [15].
The Member’s finding of noisy employment had support in the respondent’s lay evidence as commented upon by Dr Scoppa. Clearly this induced in the Member the actual persuasion of the existence of that fact.[52] The appellant has not shown why the Member was wrong. In truth, this ground is an impermissible attempt to cavil with a factual finding without proving error.
[52] Nguyen v Cosmopolitan Homes [2008] NSWCA 246, [55].
Ground Two is dismissed.

As to Ground Three

This Ground asserts that there was a denial of procedural fairness in that there was no submission made about the phrase used by Dr Raj, “not continuous” as being unclear. The appellant asserts that this aspect of the matter was decided on grounds not put or argued.
The respondent deals with this ground at paragraph [19(c)] of his submission dated 4 March 2024, which I have considered but do not repeat for the purposes of this decision.

Consideration

This ground is a derivation of the argument about this matter which was part of Ground One (above). There is nothing in this argument in Ground Three which advances that argument beyond what was submitted in Ground One.
For the same reasons that I have dismissed this argument in Ground One, this ground must also fail. The phrase employed by Dr Raj is a mere ipse dixit and rightly was given little or no weight. Even if there was a want of procedural fairness, which for the reasons outlined above I do not accept, such a failure does not affect the result.
Ground Three is dismissed.

DECISION

The Certificate of Determination dated 8 January 2024 is confirmed.

Judge Phillips
PRESIDENT

25 November 2024