Holden v Rundle - [2011] VSC 663

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2011 1457

HOLDEN LTD	First Plaintiff
-and-
VICTORIAN WORKCOVER AUTHORITY	Second Plaintiff
v
HENRY RUNDLE	First Defendant
-and-
KHEO TAN HUYNH	Second Defendant

---

JUDGE:	OSBORN J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 October 2011
DATE OF JUDGMENT:	16 December 2011
CASE MAY BE CITED AS:	Holden v Rundle
MEDIUM NEUTRAL CITATION:	[2011] VSC 663

---

ACCIDENT COMPENSATION – Industrial deafness – Condition deemed injury – Condition deemed to have occurred on date of last exposure to industrial noise – Requirement to exclude proportion of industrial deafness when non-compensable – Assessing deafness for the purpose of calculating compensation – Assessment of impairment – Compensation for non-economic loss – Claims process - Accident Compensation Act 1985, ss 5, 20, 82, 88, 89, 91, 98C, 104B, div 2 of pt IV – Hegedis v Carlton and United Breweries Pty Ltd [2000] 4 VR 296.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr M Fleming SC with Ms F McKenzie	Hall & Wilcox
For the Second Defendant	Dr K Hanscombe SC with Mr A Pillay	Holding Redlich

TABLE OF CONTENTS

Introduction......................................................................................................................................... 2

The AC Act.......................................................................................................................................... 5

Section 88 – Compensation for industrial deafness.................................................................... 8

Section 91 – The assessment of impairment................................................................................ 15

Section 98C – Compensation for non-economic loss................................................................ 18

Section 104B – Claims for compensation under s 98C.............................................................. 22

The principle in Hegedis................................................................................................................. 25

Conclusion......................................................................................................................................... 26

HIS HONOUR:

Introduction

In 1983, Mr Huynh (‘the worker’) came to Australia from Vietnam. He had previously served in the South Vietnamese army for 10 years, including four years in active service. During this period, he was exposed to extended gunfire noise and, in particular, noise resulting from the use of an M16 rifle.[1] He was also exposed to the noise of explosives. Ear protection was not worn and he suffered a consequent loss of hearing.
[1]A 5.56 mm calibre combat rifle.

In addition, the worker had undergone a right ear operation at the age of 10 which had also affected certain aspects of his hearing.

In 1984, the worker underwent a series of hearing tests before commencing work for the first plaintiff (‘the employer’). These showed a hearing loss of 15.7 per cent at frequencies of 2,000, 3,000 and 4,000 Hz.

Thereafter, the worker was employed by the employer between October 1984 and December 2006 making engine components. He worked in a noisy workplace and did not initially wear ear protection.

After ceasing work, the worker made a claim for lump sum compensation for industrial deafness in respect of non-economic loss.

The assessment of the worker’s hearing loss was disputed and was referred to a medical panel pursuant to the terms of the Accident Compensation Act 1985 (‘the AC Act’), as it stood at the relevant time.

The panel was asked two medical questions.

The first medical question was: ‘What is the degree of permanent impairment resulting from industrial…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Holden v Rundle

Details

AGLC: Holden v Rundle [2011] VSC 663
Case: [2011] VSC 663
Decision Date: 16 December 2011

CaseChat Overview and Summary

The matter of Holden v Rundle involved the claimant, Holden, pursuing compensation for industrial deafness allegedly sustained during his employment. The dispute centred around the determination of the extent of compensable deafness and the appropriate method for calculating compensation under the Accident Compensation Act 1985. The case was heard in the Supreme Court of Victoria.

The primary legal issues revolved around the interpretation and application of various sections of the Accident Compensation Act 1985, including the identification of the date on which the condition was deemed to have occurred, the requirement to exclude any proportion of the deafness that was non-compensable, and the process for assessing the degree of impairment for the purpose of calculating compensation. The court also had to consider the precedent set by Hegedis v Carlton and United Breweries Pty Ltd in determining the appropriate methodology for assessing non-economic loss.

The court held that the condition of industrial deafness was indeed an injury within the meaning of the Act, and the date of occurrence was correctly determined as the last day of exposure to industrial noise. The court emphasised the necessity to exclude any non-compensable proportion of the deafness when calculating the degree of impairment. In assessing the degree of impairment, the court ruled that the appropriate approach involved a comparison of the claimant’s hearing abilities before and after the injury, taking into account the relevant sections of the Act. Furthermore, the court concluded that the assessment of non-economic loss should be based on the overall impact of the injury on the claimant’s life, in line with the statutory provisions and the precedent established in Hegedis.

The final orders of the court required the defendant to compensate the claimant for the compensable proportion of industrial deafness, with the degree of impairment and non-economic loss assessed in accordance with the principles outlined in the judgment. The defendant was also directed to pay the claimant’s costs of the proceeding.

Orders