Jones v Qantas Airways Ltd - [2017] NSWWCCPD 11

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Jones v Qantas Airways Ltd [2017] NSWWCCPD 11
APPELLANT:	John Jones
RESPONDENT:	Qantas Airways Ltd
INSURER:	Self-insurer
FILE NUMBER:	A1-3540/16
ARBITRATOR:	Ms C McDonald
DATE OF ARBITRATOR’S DECISION:	17 October 2016
DATE OF APPEAL DECISION:	4 April 2017
SUBJECT MATTER OF DECISION:	Section 261(4) of the Workplace Injury Management and Workers Compensation Act 1998; whether delay in bringing claim based on a mistaken view that hearing aids would further diminish hearing loss constituted “other reasonable cause”
PRESIDENTIAL MEMBER:	President Judge Keating
HEARING:	On the papers
REPRESENTATION:	Appellant:	Leigh File & Associates
Respondent:	Sparke Helmore Lawyers
ORDERS MADE ON APPEAL:	1. The Senior Arbitrator’s determination of 17 October 2016 is confirmed.

INTRODUCTION

This appeal concerns the notice of claim provision in s 261 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) in the context of a claim for compensation for industrial deafness pursuant to s 17 of the Workers Compensation Act 1987 (the 1987 Act).
In particular, it concerns a Senior Arbitrator’s finding that the worker is precluded from maintaining the claim pursuant to s 261 as she was not satisfied that the delay in bringing the claim, due to an erroneous belief about the benefits of hearing aids, constituted “reasonable cause” (s 261(4)). It also concerns the correctness of a finding that the worker was seriously and permanently disabled (s 261(4)(b)).
For the reasons that follow, the appellant worker is unsuccessful on appeal.

BACKGROUND

The appellant worker, John Jones, was employed by the respondent, Qantas Airways Ltd (Qantas) for approximately 30 years as a flight attendant. Following his retirement on 18 May 1991, Mr Jones completed a Bachelor of Law and practised as a barrister.
On 4 April 2016, Mr Jones made a claim against Qantas for loss of hearing and the provision of hearing aids. It is not disputed that Mr Jones failed to bring his claim within six months after the injury was suffered (s 261).
It is agreed that Mr Jones’ employment with Qantas was employment to the nature of which his hearing loss was due. It is also agreed that the deemed date of injury is 18 May 1991. That date was determined pursuant to s 17(1)(a)(ii) of the 1987 Act, being the last day on which the worker was employed in noisy employment with Qantas.
On 15 June 2016, Qantas issued a s 74 notice pursuant to the 1998 Act declining Mr Jones’ claim for hearing loss pursuant to ss 254 and 261 of the 1998 Act. Accordingly, it declined the claim for hearing aids.
On 8 July 2016, Mr Jones filed an Application to Resolve a Dispute (the Application) claiming medical expenses for the provision of hearing aids.
On 11 August 2016, attached to an Application to Admit Late Documents, Qantas filed a Reply to the Application denying liability in accordance with the s 74 notice.
On 4 October 2016, the matter proceeded to conciliation/arbitration proceedings before Senior Arbitrator McDonald, at which time she heard oral evidence from Mr Jones. The Senior Arbitrator then reserved her decision.
On 17 October 2016, Senior Arbitrator McDonald issued a Certificate of Determination finding that Mr Jones was precluded from maintaining the claim pursuant to s 261. The Certificate of Determination is in the following terms:
“The Commission determines:
1. Award for the Respondent.”
Mr Jones appeals the Senior Arbitrator’s determination.

PRELIMINARY MATTERS

There is no issue that the threshold requirements of s 352(3) of the 1998 Act as to the quantum of compensation in issue on appeal have been satisfied.
The appeal was lodged within 28 days of the Senior Arbitrator’s decision in compliance with s 352(4) 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.”
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 and that this is the appropriate course in the circumstances.

EVIDENCE

Mr Jones

There were two written statements made by Mr Jones, dated 24 January 2016 and 5 September 2016, in evidence before the Senior Arbitrator. Mr Jones also gave oral evidence. The Senior Arbitrator granted Qantas’ counsel, Ms Wood, leave to cross-examine Mr Jones on matters limited to the “issue of knowledge and the date on which Mr Jones became aware of the matters relevant to the proceedings” (T1.37). There was no re-examination.
In his written statements, Mr Jones states that he was aware that many of his “colleagues have suffered chronic hearing loss as a result of their employment as aircrew” with Qantas. He also states that “[a]lthough I was aware that I may have suffered some hearing loss, I was not aware of the medical extent of that loss until recently.”
He further states that until he received advice around October or November 2015 he “believed that the manner by which hearing aids provided relief to the hard of hearing was by simply amplifying sound” and “would in fact further damage” his “hearing in the long term.” He did not think the short term benefit of amplified sound was sensible if there was a “risk of going profoundly deaf as a result of using hearing aids.” Mr Jones confirmed this view during his oral evidence.
Mr Jones adds that his “understanding was (and remains) that my hearing loss was a result of being in a noisy environment working on, in and around Qantas aircraft and I believe that noise caused my current problems.” During cross-examination (at T8.13) the following exchange took place:
“[Ms Wood:] Q. My question is when you say ‘my understanding was’ what timeframe are we talking about that you had that understanding?
[Mr Jones:] A. Before I left Qantas.”
In response to Ms Wood’s question whether he was aware of his colleagues at Qantas having suffered chronic hearing loss, Mr Jones said (T6.22):
“Well, I was aware that they made compensationary claims and they received payments to the tune of $30,000 and stuff like that but that didn't affect me because I wasn't interested in that at that time.”
In response to Ms Wood’s question (at T8.29) “…you knew you had a noise-induced hearing loss?”; Mr Jones states “I was aware that I may have had it and I did notice slight difficulties at that time…”. The transcript further records (at T9.5):
“Q. So you were aware before you left Qantas, were you not, that you had a noise-induced hearing loss?
A. May have.
Q. Thank you. And the only thing that prevented you from putting in a claim was you didn't want to, is that correct?
A. It wasn't the only thing. I didn't want to put in a claim. Qantas was very good to me over the years, it made me the man I am today so I'm very pro-Qantas and I don't believe in just grabbing money left, right and centre.”
Mr Jones stated that there were two reasons why he did not make a claim for compensation. Firstly because he did not want to bring a claim against Qantas and secondly because he thought hearing aids would be detrimental to him (T9.24).
Mr Jones later states that he “really realised” that he had hearing difficulty “about three years ago” (T11.15). He adds that he was not aware of the requirement to notify his employer of the injury “as soon as practicable and before” he left the employ of that employer and that there was a “six month time period for making a claim for compensation”. However, during cross-examination in response to Ms Wood’s question (at T13.20) “[a]nd being aware that your co-workers were putting in claims for compensation were you also aware that you could’ve put in a claim at that time?”, Mr Jones said “[w]ell, it would go without saying that I would’ve been aware that I could’ve put in a claim at that time.”
In his written statements, Mr Jones states that as a result of the worsening of his hearing problems he has had to significantly wind back his practice as a barrister. He states that as a result of this he does not accept briefs and his practice is largely limited to mediation and migration matters.

Medical Evidence

On 22 March 2016, Dr Henley Harrison, ear, nose and throat specialist, issued a report to Mr Jones’ legal representatives. Dr Harrison took a history that Mr Jones had been “hard of hearing for perhaps 15 years and that the ears appeared to be about equally affected.”
Dr Harrison recorded that the audiogram taken on 22 March 2016 “showed a bilateral, almost equal sensori-neural deafness.” He found 12.9 per cent binaural hearing impairment before correction for presbyacusis, and 5.1 per cent after correction. He found that exposure to loud noise at work was the cause of almost all of Mr Jones’ deafness.

LEGISLATION

Section 261 of the 1998 Act provides:
“261 Time within which claim for compensation must be made
(1)     Compensation cannot be recovered unless a claim for the compensation has been made within 6 months after the injury or accident happened or, in the case of death, within 6 months after the date of death.
(2)     If a claim for compensation was made by an injured worker within the period required by this section, this section does not apply to a claim for compensation in respect of the death of the worker resulting from the injury to which the worker’s claim related.
(3)     For the purposes of this section, a person is considered to have made a claim for compensation when the person makes any claim for compensation in respect of the injury or death concerned, even if the person’s claim did not relate to the particular compensation in question.
(4)     The failure to make a claim within the period required by this section is not a bar to the recovery of compensation if it is found that the failure was occasioned by ignorance, mistake, absence from the State or other reasonable cause, and either:
(a) the claim is made within 3 years after the injury or accident happened or, in the case of death, within 3 years after the date of death, or
(b) the claim is not made within that 3 years but the claim is in respect of an injury resulting in the death or serious and permanent disablement of a worker.
(5)     The failure to make a claim within the period required by this section is not a bar to the recovery of compensation if the insurer concerned determines to accept the claim outside that period. An insurer cannot determine to accept a claim made more than 3 years after the injury or accident happened or after the date of death (as appropriate) except with the approval of the Authority.
(6)     If an injured worker first becomes aware that he or she has received an injury after the injury was received, the injury is for the purposes of this section taken to have been received when the worker first became so aware.
(7)     If death results from an injury and a person who is entitled to claim compensation in respect of the death first becomes aware after the death that the death resulted or is likely to have resulted from the injury, the date of death is, for the purposes of the application of this section to a claim by that person, taken to be the date that the person became so aware.
(8)     In a case where 2 or more persons are liable or partly liable in respect of compensation (whether or not that liability arises from the same or from different injuries), a claim is for the purposes of this section taken to have been made when a claim is made on any one of those persons.
(9)     When particulars of any injury received by a worker are entered in a register of injuries kept by the employer under this Act, the making of that entry suffices for the purposes of this section as the making of a claim for compensation in respect of the injury.”

THE SENIOR ARBITRATOR’S REASONS

The Senior Arbitrator considered the requirements to be satisfied before a failure to make a claim within the time provided for in s 261(1) could be excused under s 261(4) of the 1998 Act.
The Senior Arbitrator held that the opening words of s 261(4) require the Commission to determine the reasons for the failure to make a claim within time by using the words “the failure was occasioned by” (at [27]). This requirement, so the Senior Arbitrator held, applies to claims made within three years from the date of the injury and those made beyond that date. If a claim is made more than three years after the date of injury, compensation may be payable in cases of serious and permanent disablement but only if one of the factors in the opening paragraph of s 261(4) is satisfied.
The Senior Arbitrator held (at [28]) that Mr Jones’ counsel, Mr Robison, “relied faintly” on the ground of ignorance. However, the Senior Arbitrator held that there was no evidence that Mr Jones was ignorant of his rights and obligations.
The tenor of Mr Jones’ evidence is that he was aware that he had suffered noise induced hearing loss before he left his employment with Qantas and that colleagues at Qantas had made successful claims. The Senior Arbitrator concluded (at [29]) that Mr Jones elected not to make a claim because Qantas “had been good to him” and because he did not wish to obtain hearing aids at that time based on his then understanding that it may make his hearing loss worse.
The primary contention before the Senior Arbitrator under s 261(4) was that Mr Jones had “other reasonable cause” for not making a claim within time.
After referring to relevant authorities, the Senior Arbitrator concluded that Mr Jones knew that he had suffered a hearing loss. He told Dr Harrison that he had been “hard of hearing” for 15 years. She held that Mr Jones delayed making the claim for compensation because he understood that the function of hearing aids was merely to amplify sound and that by using them he would further damage his hearing. Mr Jones did not disclose the source of that understanding and he did not see a doctor about his hearing loss until 2015. Once he obtained advice, he became aware that his understanding concerning the use of hearing aids was incorrect.
The Senior Arbitrator concluded (at [36]) that the reason Mr Jones delayed making a claim was based on his subjective belief about the way hearing aids worked. Mr Jones was working as a lawyer for the whole of the relevant period. The Senior Arbitrator held (at [36]):
“…he is therefore presumed to understand the need to seek professional advice to answer technical questions. It was not reasonable, in all of the circumstances for him to delay making a claim based on an erroneous belief without taking steps to seek professional advice.”
Having concluded that Mr Jones could not satisfy the Commission that his failure to make a claim within time was occasioned by ignorance, mistake, absence from the state or other reasonable cause, it was unnecessary to consider whether he suffered a serious and permanent disablement. However, again after referring to relevant authorities, the Senior Arbitrator concluded (at [38]) that the 12 per cent binaural hearing impairment assessed by Dr Harrison constituted a disability that is both serious and permanent. Mr Jones was forced to change the nature of his legal practice in the three years preceding the arbitration and had stopped appearing in criminal trials preferring instead to work in mediation because it involved less exposure to ambient noise.
The Senior Arbitrator ultimately concluded (at [39]):
“I consider that he is seriously and permanently disabled. However, because of the finding I made with respect to the reasonableness of the cause for delay in making a claim, I make an award in favour of the Respondent.”

GROUND OF APPEAL

Mr Jones relies on only one ground of appeal, namely that the Senior Arbitrator misconstrued and misapplied s 261 of the 1998 Act.

SUBMISSIONS

Mr Jones’ submissions

Mr Jones believed that hearing aids merely amplified sound and thus aggravated the extent of hearing loss. Mr Jones submitted it was only in recent times that he came to learn that the technology concerning hearing aids was more sophisticated. He did not consider it sensible to obtain what he believed would be a short term benefit of amplified sound, in circumstances where he was able to cope with the amount of hearing loss he had, if ultimately there was a risk of becoming profoundly deaf as a result of using hearing aids.
In circumstances where the worker suffers serious and permanent and disablement, as the Senior Arbitrator found, failure to make a claim within six months may be excused where, among other things, the failure to make a claim was occasioned by “reasonable cause”.
Mr Jones submits “a proper construction of s 261 would have been to hold that there was a reasonable cause in not making a claim where the onset of hearing [loss] came many years after the cessation of employment and where Mr Jones was labouring under misapprehension that hearing aids would be harmful.”
Mr Jones relied on a recent decision of Arbitrator Perrignon in Gray v Qantas Airways Ltd [2016] NSWWCC 232 (Gray), involving similar facts. Mr Jones submitted that, in that matter the Arbitrator, relying on the observations of Deputy President Roche in Inghams Enterprises Pty Ltd v Jones [2012] NSWWCCPD 17 (Jones), said (at [34]):
“The issue for determination is when Mr Grey first became aware that he had received an injury, in terms of s 231(6).” (emphasis added)
Mr Jones’ counsel, Mr Robison, submitted:
“By analogy, the issue in this case is when Mr Jones first became aware that the proposed medical treatment, hearing aids, was appropriate.”
Mr Jones beliefs are not the only relevant consideration but are a factor to be taken into account. It is submitted the question the Senior Arbitrator should have answered was, whether looking objectively at Mr Jones’ mindset, was the delay reasonable?
The Senior Arbitrator made reference to the decision of Garratt v Tooheys Ltd (1949) WCR 80 (Garratt). In that case, the worker’s decision to delay making a claim to avoid prejudicing his retirement benefits was held not to be reasonable. This case is distinguishable from the facts in Garratt because, in the present matter, the delay was based on a belief, rightly or wrongly, that making a claim for hearing aids may have been harmful to Mr Jones’ hearing.
Mr Jones submits that the Senior Arbitrator erred by critiquing the basis for the views that Mr Jones had about hearing aids. The issue was not whether he acted reasonably in forming those views, the issue was, having formed those views, whether he acted reasonably.
The Senior Arbitrator held (at [35]) that Mr Jones delayed making a claim for compensation because of his understanding that hearing aids would merely amplify sound and damage his hearing. However, the Senior Arbitrator held that following medical advice obtained in late 2015 Mr Jones became aware that his understanding was incorrect. The Senior Arbitrator erroneously concluded that Mr Jones did not satisfy the reasonable test in circumstances where she had found that the delay was caused by a mistaken belief. Once the mistaken belief was rectified, Mr Jones prosecuted his claim in a timely fashion.
The submission in the preceding paragraph should be considered in the light of the remedial or beneficial nature of the workers compensation legislation. A worker who is mistaken about the suitability of medical treatment, and thus does not seek that treatment, who then becomes aware that the treatment is actually beneficial, should not be denied access to compensation because of the erroneous belief.

Addendum to submissions

Without being granted leave to do so, Mr Jones lodged an “addendum” to his submissions on 22 November 2016. He submitted:
“The appellant seeks leave to refer to authority not referred to in the submissions dated 11 November 2016 namely Unilever Australia Ltd v Saab [2013] NSWCA 374 which was heard in conjunction with the hearing of Unilever Australia Ltd v Petrevska [2013] NSWCA 373 [(Petrevska)]. These cases stand for the proposition that a worker’s understanding of causation of hearing loss is of little, if any, significance until receipt of medical advice. Accordingly, the learned arbitrator erred in placing excessive weigh on the knowledge Mr Jones may have had prior to being examined by Dr Harrison on 22 March 2016.”

Qantas’ submissions

Leave to raise a notice of contention

Qantas seeks leave to raise by way of contention an appeal against the determination of the Senior Arbitrator that Mr Jones suffered a serious and permanent disablement.
Although the Senior Arbitrator found that Mr Jones failed to satisfy the notice provisions in s 261, she also found that he suffered a serious and permanent impairment as a result of his hearing loss. However, as a finding had been made in favour of Qantas it was not aggrieved by that decision.
Mr Jones lodged an appeal on 17 November 2016, the last day for an appeal. The appeal caused the need for Qantas to agitate the contention that the finding that Mr Jones was seriously and permanently impaired was erroneous. Given that notification of the appeal was not received within the appeal period described by s 352(4) it was unnecessary and impossible for Qantas to raise such a contention within the time prescribed.
Mr Jones does not oppose the grant of leave to raise the contention regarding the question of serious and permanent disablement.
In the circumstances, it is appropriate that leave be granted and I so order.

Qantas’ submissions in opposition to the appeal

Mr Jones does not seek to rely on “ignorance”, “mistake” or “absence from the state” as causes for the failure to make a claim. He does not contend that he was unaware of his injury and the potential to be compensated for that injury until after the expiration of the notice period.
Mr Jones asserts that there was a reasonable cause for not making the claim within the six month period, that is, that he erroneously believed that hearing aids would be detrimental to his hearing. Such a belief does not satisfy the test of reasonableness for failing to make any claim for compensation within the prescribed time.
Qantas relies on Mr Jones’ evidence on the issue of “reasonable cause”. In particular his evidence (at p 13 of the Application) where he stated that he was aware that many of his colleagues had suffered chronic hearing loss as a result of their employment as air crew with Qantas. Further reliance was placed on Mr Jones’ statement of 13 September 2016 wherein he stated that his hearing loss was as a result of a noisy environment in and around Qantas aircraft. Qantas also rely on Mr Jones’ evidence that for many years he believed that the use of hearing aids only amplified sound and would further damage his hearing.
Mr Jones accepted in oral evidence (T6) that he was aware before he left Qantas that his co-workers had been making successful claims for compensation for hearing loss arising from their employment with Qantas. He also said that he did not pursue a claim within the time prescribed by s 261 because he “wasn’t interested in making a claim at that time”.
Even if the Commission accepts Mr Jones’ erroneous belief that hearing aids would further damage his hearing, such belief does not constitute a “reasonable cause” for the purposes of s 261.
Mr Jones conceded at T13.20 that he was well aware that he could have submitted a claim for compensation while he was still working for Qantas. His explanation for not doing so was that he “didn’t believe in grabbing money left, right and centre” (T9.15).
Mr Jones’ submission that the issue to be determined in this case is when Mr Jones first became aware that the proposed treatment (hearing aids) was appropriate, is wrong at law. The notion of “awareness” relates solely to the question of when the worker became “aware” of his injury.
Awareness in s 261(6) requires the worker to be aware or have knowledge of the fact that he or she has received an injury and that the injury arose in the course of employment. There are therefore two matters of which the worker must have actual knowledge – the injury and its relationship to employment (Petrevska).
In any event, Mr Jones did not (and, so it is submitted, in the circumstances of this case could not) seek to rely on s 261(6).
Contrary to Mr Jones’ submissions, Qantas submits that the reasonableness of Mr Jones’ conduct is not measured by reason of an objective view of Mr Jones’ mindset but rather measured objectively in the light of every circumstance in the case relevant to showing why the failure occurred (Garratt at 86–7).
On the facts of this case Mr Jones not only held an erroneous belief as to the effects of the hearing aids but:
(a)     knew he had a hearing loss;
(b)     believed it was a consequence of his noisy employment;
(c)     was aware that others had successfully claimed compensation;
(d)     elected not to pursue compensation because he was thankful to his employer and he did not believe in claiming “left, right and centre”;
(e)     was qualified and practised in law so would have been aware of time limitations generally, and
(f)      could have acted on that knowledge without undue delay.
Cumulatively, Mr Jones cannot satisfy that there was a reasonable cause for the delay.

The contention that Mr Jones has a serious and permanent disablement

Applying the test in Gregson v L & M R Dimasi Pty Ltd [2000] NSWCC 47; 20 NSWCCR 520 (Gregson), the Senior Arbitrator considered that the assessment of 12 per cent binaural hearing loss was a “serious” disability and that Mr Jones had been required to change the nature of his legal practice.
Qantas submits that the question of serious disablement must be considered in the context of the type of claim, the degree of pathology causing the disablement, the worker’s age and its impact on the likelihood of his remaining in full time employment, all compared to the severity of impairment of other types of injuries and impairments.
Qantas submits that in the context of this case, Mr Jones’ disablement cannot be considered as “serious” when compared to more serious disabling injuries, particularly when the provision of hearing aids would remove the employment disability.

Relief sought

Qantas seek an order that the decision of the Senior Arbitrator is affirmed in respect of the s 261 issue.
In the event that the decision is not affirmed, Qantas seeks a determination that Mr Jones does not suffer from a serious and permanent impairment and seeks an award for Qantas.

Mr Jones’ submissions in reply

Mr Jones’ claim under s 60 for medical expenses is not barred as a result of not making a claim for other forms of compensation, such as a claim for lump sum compensation under s 66.
Mr Jones accepted that, in accordance with s 17(1)(ii), the injury was deemed to have occurred on the last day of his employment with Qantas. He did not allege that he was not aware of his injury until some later point in time. Consequently, he did not argue that s 261(6) had application by deeming the injury to have occurred at a point in time which would have placed the claim within the time prescribed by s 261(1) or s 261(4).
Although the correct test for determining the reasonableness of the delay incorporates a consideration of all relevant matters (and thus includes objective matters) it is not devoid of a subjective element (Garratt at 86).

Serious and permanent disability

Mr Jones’ ability to function as a barrister was reduced, to a major degree, by virtue of his deafness. Whether the symptoms may have been diminished with the benefit of hearing aids is immaterial because Mr Jones did not have the benefit of such hearing aids and accordingly has been disabled. The permanency of that condition does not appear to be the subject of any challenge.
The Senior Arbitrator correctly found (at [38]) that Mr Jones’ legal practice was affected for the last three years of his work in that he stopped appearing in criminal trials. This, Mr Jones submits, “impinged adversely on his capacity to work” (Gregson).

DECISION

I do not accept Mr Jones’ submissions.
It is important to understand at the outset that this case was presented and decided on a very narrow basis. Mr Jones argued that the failure to make a claim within the time prescribed by s 261(1) could be excused under s 261(4) on the basis that the reasons given by Mr Jones for the delay in bringing his claim, namely his mistaken view as to the use of hearing aids, constituted “other reasonable cause”. Mr Jones relied only upon s 261(4)(b) arguing that the delay in bringing his claim within three years could be excused on the basis that his injury resulted in serious and permanent disablement. Mr Jones eschewed reliance upon mistake or absence from the state.
Importantly, Mr Jones placed no reliance on s 261(6) of the 1998 Act. That is, he did not argue that he first became aware of his injury at a point in time after he left Qantas’ employ. He expressly stated in his written statements and his oral evidence that he was aware that he was suffering industrial deafness, due to his employment with Qantas. Mr Jones readily agreed that that was his state of knowledge at the time he left Qantas.
The Senior Arbitrator found that Mr Robison, only “faintly” relied on the ground of ignorance. She held that there was no evidence that Mr Jones was ignorant of his rights and obligations and gave reasons for that conclusion. Those findings and reasons have not been challenged on appeal and were undoubtedly correct.
The focus on this appeal concerns the Senior Arbitrator’s findings in relation to “other reasonable cause”. The only reasonable cause argued was that Mr Jones was labouring under a misapprehension that wearing hearing aids would be detrimental to his long term hearing.
I do not accept Mr Jones’ submissions concerning the considerations relevant to a determination of questions of reasonable cause. Contrary to Mr Jones’ submissions, the question of reasonableness of Mr Jones’ conduct is not measured by an objective view of Mr Jones’ mindset but rather it is measured objectively in light of every circumstance in the case relevant to showing why the failure occurred (Garratt at 86–87).
Mr Jones’ submissions confuse his failure to make a claim, any claim, within the required period, with an assessment of the reasonableness of making the particular claim in respect of hearing aids.
Mr Jones’ reliance on Gray is misplaced for a number of reasons. Firstly, Gray is not authority for the proposition advanced. The issue in Gray focused on the application of s 261(6) and awareness of injury. Mr Gray argued that whilst he knew he suffered from a hearing impairment, he was not aware of the causal link with his employment until he sought medical advice. Mr Jones, however, does not place reliance on s 261(6). He accepted that he knew his deafness was due to his employment with Qantas. The case presented by Mr Jones rises or falls on the application of s 261(4)(b), that is, whether he can establish that he had “reasonable cause” for the delay in prosecuting his claim.
The analogy submitted by Mr Robison (at [43] above) is not valid. Mr Robison’s submission confused the authorities dealing with when a worker first became aware of an injury with the issue of when a worker first became aware of an effective treatment for an injury.
Gray was decided on its own facts and does not identify any statement of principle that would assist in the resolution of the issues before me.
Further, I do not accept Mr Jones’ submission that the decision in Garratt (cited with approval in Albury Real Estate Pty Ltd v Rouse [2006] NSWWCCPD 139; 6 DDCR 283 (Rouse)) is distinguishable. Mr Garratt failed in his application for compensation because he made a conscious decision to elect not to make a claim for compensation out of concern that by doing so he may have prejudiced a potential retrenchment payment. Relevantly, this case proceeds on a similar footing. That is, Mr Jones made a conscious decision (for the reasons that have been set out at [22]-[23] above) not pursue a claim for compensation within the time prescribed by s 261, even thought he was aware that he was entitled to do so.
Similarly the decision in Rouse does not advance Mr Jones’ position on appeal. Rouse involved a claim for lump sum compensation arising from the death of the claimant’s husband. Deputy President Roche concluded that there were sound reasons for finding that Mrs Rouse had reasonable cause for not pursuing a claim within six months of the date of her husband’s death. Those factors were:
(a) she was not psychologically or emotionally in a position to consider or pursue a claim, and
(b) she thought that if she submitted a claim she would not be entitled to any compensation in any event.
Those were powerful factors supporting a conclusion that the delay was as a result of other reasonable cause. Such factors are absent in the present case. Indeed the evidence strongly supports the opposite conclusion.
On the facts of this case, as Qantas submit and as the Senior Arbitrator found, not only did Mr Jones have an erroneous belief as to the effects of the hearing aids, but he:
(a)     knew he had a hearing loss;
(b)     believed it was a consequence of his noisy employment;
(c)     was aware that others had successfully claimed compensation;
(d)     elected not to pursue compensation because he was thankful to his employer and he did not believe in claiming “left, right and centre”;
(e)     was qualified and practised in law so would have been aware of time limitations generally, and
(f)      could have acted on that knowledge without undue delay.
Those findings were clearly open to the Senior Arbitrator and do not involve any error.
As I indicated at the outset, it was not argued before the Senior Arbitrator that Mr Jones was not fully aware that he suffered from industrial deafness and that the deafness was contributed to by his employment at Qantas within the time prescribed by s 261. In the course of cross-examination, Mr Jones readily conceded those matters (see [24] above).
In the hearing before the Senior Arbitrator, Mr Robison made no reference to any reliance on s 261(6) and placed no reliance on the decision in Petrevska. On this appeal the s 261(6) point was not raised, save as an “addendum” to his submissions which were filed without being granted leave to do so. In any event, no submissions were made as to how Mr Jones could seek to take advantage of s 261(6) in light of his evidence as to his state of knowledge whilst he was still within time to make a claim.
It is trite law that parties are normally bound by the conduct of their case at first instance (Metwally v University of Wollongong [1985] HCA 28; 60 ALR 68 at [7]). In the circumstances, it is not open to Mr Jones to argue on appeal that Mr Jones should not be barred from claiming compensation on the basis that he did not became aware of the injury until many years after leaving Qantas. For that reason, I reject the submission based on s 261(6) and the reliance upon Petrevska.
I also reject the submission that the Senior Arbitrator erred by not construing s 261 beneficially in light of the fact that Mr Jones acted promptly after his mistaken belief in relation to the benefits to be derived from the use of the hearing aids was corrected upon receipt of medical advice.
In Sarac v Itxcel Pty Ltd [2015] NSWWCCPD 32, Deputy President Roche made the following observations concerning beneficial construction of workers compensation legislation, which I respectfully adopt. He said (at [59]-[61]):
“First, it is generally accepted that there is a rule of construction that beneficial and remedial legislation is to be given a ‘fair, large and liberal’ interpretation (IW v City of Perth[1997] HCA 30; (1997) 191 CLR 1 at 12 per Brennan CJ and McHugh J, 39 per Gummow J; quoted and applied in AB v Western Australia[2011] HCA 42 at [24]).
Second, the principle that beneficial legislation should be given a construction that advances its purposes and that, where two constructions are possible, that which is favourable to the worker should be preferred (Wilson v Wilson’s Tile Works Pty Ltd[1960] HCA 63; (1960) 104 CLR 328 per Fullagar J at 335), usually, but not always, refers to the interpretation of the legislation where an ambiguity exists.
Neither of these points is relevant in the present matter. They do not mean that every provision or amendment to a provision in beneficial legislation has a beneficial purpose, or is to be construed beneficially (ADCO Constructions Pty Ltd v Goudappel[2014] HCA 18 at [29]). More importantly, a beneficial interpretation of legislation cannot be used to fill gaps in the evidence or allow an extension of sympathy to a case that falls outside the legislation as interpreted (Kowalski v Repatriation Commission[2011] FCAFC 43 at [36]).”
There is no question of beneficial construction arising on the facts of this case. The submission that Mr Jones should have the case determined in his favour because he acted expeditiously after becoming aware of the benefits of hearing aids is without merit and I reject it.

The contention that Mr Jones has a serious and permanent disablement

The Senior Arbitrator referred to the test in Gregson where his Honour Judge Burke said (at [78]):
“In this matter the question becomes whether Mr Gregson suffers a serious and permanent disablement. Does he have a disability, is it serious, is it permanent, does it impinge adversely upon his capacity to work? If all questions were answered in the affirmative then he would satisfy that requirement. The basic question then presenting is the degree of the applicant's incapacity and losses before a considered answer to those previous questions is available.”
Qantas has not argued that the Senior Arbitrator applied the incorrect test to determine whether or not Mr Jones suffered from a serious and permanent disablement. As I read Qantas’ submissions, no error is discernible other than a disagreement with the Senior Arbitrator’s ultimate conclusion.
The Senior Arbitrator gave adequate reasons for the conclusion that she reached, namely that Dr Harrison had assessed a 12 per cent binaural hearing loss before deduction for presbyacusis. This, the Senior Arbitrator held, constituted a disability that is both serious and permanent. It had caused Mr Jones to change the nature of his legal practice in the last three years and had prevented him from appearing in criminal trials. It had also caused him to refocus his career away from trial work to mediation work. On the basis of the test in Gregson it was open to the Senior Arbitrator to reach a conclusion in favour of Mr Jones on the question of serious and permanent disablement.
However, as the Senior Arbitrator reasoned, that finding did not assist in the resolution of the dispute in Mr Jones’ favour because he had not been able to establish that the delay in prosecuting his claim was due to other reasonable cause.
For these reasons the Senior Arbitrator’s determination of 17 October 2016 is confirmed.

ORDERS

The Senior Arbitrator’s determination of 17 October 2016 is confirmed.

Judge Keating
President

4 April 2017