Nolan v Department of Education & Training

[2012] NSWWCCPD 74

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Nolan v Department of Education & Training [2012] NSWWCCPD 74
APPELLANT:		Gerard Anthony Nolan
RESPONDENT:		Department of Education & Training
INSURER:		Allianz Australia Insurance Ltd
FILE NUMBER:		A1-3305/12
ARBITRATOR:	Mr W Dalley
DATE OF ARBITRATOR’S DECISION:		18 September 2012
DATE OF APPEAL DECISION:		6 December 2012
SUBJECT MATTER OF DECISION:		Boilermaker’s deafness; whether employment was employment to the nature of which boilermaker’s deafness was due; evidence required; s 17 of the Workers Compensation Act 1987; Pt 15 r 15.2 of the Workers Compensation Commission Rules 2011; application of principles in Dawson t/as The Real Cane Syndicate v Dawson [2008] NSWWCCPD 35; non-compliance with Practice Direction No 6
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	Whitelaw McDonald
Respondent:	Sparke Helmore Lawyers
ORDERS MADE ON APPEAL:		The Arbitrator’s determination of 18 September 2012 is confirmed. Each party is to pay his or its own costs of the appeal.

BACKGROUND

1. Gerard Nolan is a 61-year-old retired schoolteacher. He worked for the Department of Education and Training (the respondent) from 1984 until he retired on 29 June 2009. He has claimed compensation for medical expenses and lump sum compensation for a 13 per cent whole person impairment due to a loss of hearing of such a nature as to be caused by a gradual process (boilermaker’s deafness).

2. Mr Nolan alleged that his hearing loss was caused by exposure to excessive noise in the workplace while working as a teacher for the respondent. The respondent disputed his claim on the ground that his employment was not noisy, that is, it was not employment to the nature of which the injury was due.

3. In a reserved decision delivered on 18 September 2012, the Arbitrator preferred the expert evidence called by the respondent from Dr Howison, ear, nose and throat specialist, and concluded that the levels and periods of noise to which Mr Nolan had been exposed with the respondent were insufficient to support the conclusion by Dr MacArthur, Mr Nolan’s ear, nose and throat specialist, that Mr Nolan’s employment with the respondent was employment to the nature of which the injury of boilermaker’s deafness was due.

4. Mr Nolan has appealed the Arbitrator’s determination.

ON THE PAPERS

1. Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (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.”

2. 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.

ISSUES IN DISPUTE

1. The submissions prepared by Mr Nolan’s solicitor, Mr Bechelli, have stated that the appellant has appealed “on the grounds of error of law”. This is not a ground of appeal and does not comply with Practice Direction No 6.

2. The Arbitrator said (at [43]) that Mr Nolan’s counsel, Mr Davies, submitted that Dr MacArthur’s evidence was supported by the fact that there was no dispute that Mr Nolan suffers from noise-induced hearing loss and there was no other explanation for that loss other than Dr Howison’s suggestion of earlier employment, which Mr Nolan denied.

3. The Arbitrator rejected this submission because it was unsupported by authority and would be impossible for the respondent to meet. The issues on appeal are:

   (a)     whether the Arbitrator erred in rejecting the submission by Mr Davies on those grounds, and

   (b)     whether “noisy employment may be proved by any means which satisfy the provisions of rule 15.2”.

SUBMISSIONS

1. Before setting out the submissions, it is appropriate to set out that part of the Arbitrator’s decision that Mr Bechelli has challenged. The Arbitrator said at [43] and [44]:

   “Mr Nolan’s counsel submitted that I should accept the report of Dr MacArthur as it was supported by the fact that nobody disputed that Mr Nolan suffered noise induced hearing loss and no other explanation was put forward in evidence other than the suggestion by Dr Howison of the involvement of earlier employment which was negatived by the evidence of Mr Nolan.

That argument is unsupported by authority and would be impossible for the respondent to meet. In my view the approach of Roche DP in Dawson requires that the applicant prove that the ‘tendency, incidents or characteristics’ of his employment are such as to give rise to a real risk of boilermakers deafness by way of accepted evidence of the nature and extent of exposure supported by an expert opinion based on that evidence which is accepted by the tribunal of fact.”

1. The Arbitrator’s reference to Dawson was a reference to Dawson t/as The Real Cane Syndicate v Dawson [2008] NSWWCCPD 35, where it was held at [44]:

   “Whilst it is not necessary for a worker to call an acoustics engineer in every case of boilermaker’s deafness, it is not sufficient for a worker to merely say ‘my employment was noisy and I have boilermaker’s deafness’. It is always essential that he or she present 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. That is exactly what Mr Dawson did in the present matter. His evidence as to the noise to which he was exposed was unchallenged and that evidence, combined with the evidence from Drs Fernandes and Macarthur, clearly discharged the onus of proof he carried. The Arbitrator’s acceptance of that evidence discloses no error.”

1. Mr Bechelli referred to the above passages and to Pt 15 r 15.2 of the Workers Compensation Commission Rules 2011 (the Rules), which provides:

   “Principles of procedure

   When informing itself on any matter, the Commission is to bear in mind the following principles:

   (1)   evidence should be logical and probative,

   (2)   evidence should be relevant to the facts in issue and the issues in dispute,

   (3)   evidence based on speculation or unsubstantiated assumptions is unacceptable,

   (4)   unqualified opinions are unacceptable.”

2. Mr Bechelli submitted that the Arbitrator’s reasoning in rejecting the submission by Mr Davies was:

   “infected with error in that matters pertaining to the proof of issues in dispute are to be dealt with according to the rules of evidence and not principles of substantive law. As such the only considerations that the arbitrator should have taken into account in so far as [Mr Nolan’s] submissions were concerned were the matters referred to in rule 15.2.”

3. In relation to the Arbitrator’s statement that it would be impossible for the respondent to meet the worker’s submission, Mr Bechelli submitted that there was no rule of evidence or substantive law to support such a proposition.

4. Mr Bechelli submitted that the passage quoted from Dawson “does not have the force of statute and should not be interpreted as prescribing the only means by which noisy employment can be proved”. Noisy employment may be proved by any means that satisfy the provisions of Pt 15 r 15.2.

5. He added that both Dr MacArthur and Dr Howison were of the view that Mr Nolan’s hearing loss curve was indicative of noise exposure. This satisfied the provisions in Pt 15 r 15.2 and this evidence, taken together with the fact that there was no evidence of any other exposure to noise, were matters that “should have been taken into account, together with the other evidence in determining whether the respondent was a noisy employer”. The rejection of “such evidence constituted an error of law”.

DISCUSSION AND FINDINGS

1. It is necessary to consider first the submissions made at the arbitration and the nature of the claim.

2. At the arbitration, the Arbitrator referred Mr Davies to a submission by the respondent’s counsel that, because Dr MacArthur did not deal with the “extent of the exposure” (T22.30) or how it could be said that “this goes on for eight hours in a six hour teaching day” (T22.34), his opinion was a bare ipse dixit.

3. In response, Mr Davies submitted, starting at T22.37:

   “MR DAVIES:  Well why – my submission is that it doesn’t need to go on for eight hours in a teaching day. It needs to be – the employment as described and as confirmed by the experts. So we have expert corroboration for what the – it’s not just the Applicant saying, I’ve heard this noise and now I’m deaf. It’s not just that. We’ve got the expert backing for what we need to say.

   This particular employment or the employment that the Applicant was involved in was of that nature to which boilermakers [sic] deafness is due. The whole picture is there. You can’t find a chink in it, with respect, it’s just there. If it’s not – and going back the other way. If it’s not this, then what was it? I mean as a check in a way, it’s not what we’re supposed to do.

   ARBITRATOR:  Well that’s reversing the onus of proof though.

   MR DAVIES:  Yeah.

   ARBITRATOR:  The cases make – Dawson makes it clear that it is for the Applicant to prove it’s a noisy employment.

   MR DAVIES:  Yeah.

   ARBITRATOR:  And to adopt a Sherlock Holmes approach of saying whatever remains must be the answer, isn’t a permissible approach for a tribunal of fact.

   MR DAVIES:  Right.”

   (The Arbitrator’s reference to Sherlock Holmes was not a flippant aside, but was a reference to the House of Lords decision in Rhesa Shipping Co SA v Edmunds (The ‘Popi M’) [1985] 1 WLR 948 at 955-6 where Lord Brandon (with whom the other members of the House of Lords agreed) explained why it is inappropriate to apply the “well-known but unjudicial dictum” of Sherlock Holmes that “when you have eliminated the impossible, whatever remains, however improbable, must be the truth”. The reasoning in this decision has been cited with approval in Jackson v Lithgow City Council [2008] NSWCA 312 at [12] and Guest v The Nominal Defendant [2006] NSWCA 77 at [108]–[109].)

4. This exchange provided the background for the Arbitrator’s statement at [43] (reproduced at [10] above). As can be seen from the exchange between the Arbitrator and Mr Davies, Mr Davies agreed that his submission reversed the onus of proof and that it was “not what we’re supposed to do”. It is also clear that he offered no authority or argument that that was permissible in the circumstances of this case. Mr Bechelli has offered none on appeal, but has simply referred to Pt 15 r 15.2. In these circumstances, the suggestion that the Arbitrator erred in rejecting the submission by Mr Davies is without foundation. Mr Nolan carried the onus of establishing his case. Once the Arbitrator rejected Dr MacArthur’s evidence and accepted Dr Howison’s evidence, it was open to him to conclude, as he did, that Mr Nolan had failed to discharge the onus of proof.

5. Though there may be many cases where the evidentiary onus shifts in the course of a hearing (Purkess v Crittenden [1965] HCA 34 (Purkess); 114 CLR 164; Watts v Rake [1960] HCA 58; 108 CLR 158 (Watts v Rake)), Mr Davies did not rely on the principles in those cases. It is difficult to see how he could have. Watts v Rake proceeded on the basis that, where a plaintiff has made out a prima facie case that incapacity had resulted from the defendant’s negligence, the onus of adducing evidence that the incapacity is wholly or partly the result of some pre-existing condition rests on the defendant (Purkess at [4]). For the reasons explained by the Arbitrator, which are discussed further below, Mr Nolan had not made out a prima facie case that his employment with the respondent was employment to the nature of which boilermaker’s deafness was due.

6. After setting out a detailed summary of the evidence and the parties’ submissions, the Arbitrator quoted the above passage from Dawson and correctly observed (at [37]) that Mr Nolan (through his counsel) “adopted this approach [the Dawson approach] in seeking to prove his case”. He referred to Mr Nolan’s evidence, which he accepted, of the noise to which he had been exposed in his employment with the respondent.

7. That noise included noise from scraping of chairs, banging of desktops, construction and renovation work, alarm bells, industrial blower/vacuums, industrial lawnmowers, loud music, megaphones and playground noise. Mr Nolan’s evidence was that he had been exposed to these noises for various periods over the course of his employment. The exposure varied from three hours per day, for the scraping of chairs and banging of desktops, to 10 seconds 17 times a day for the alarm bells.

8. The Arbitrator did not accept that the evidence established “continuous periods of exposure in relation to classroom noise” ([39]), noting that Mr Nolan’s evidence appeared to “establish that three hours was his estimate of the daily total exposure”. These findings were open and have not been challenged.

9. The Arbitrator did not accept the submission by Mr Davies that Mr Nolan may have been exposed to noise from several sources at the same time and that, therefore, the noise to which he was exposed would have been “proportionately louder” ([40]). This finding was open and has not been challenged.

10. After referring to the evidence from Dr MacArthur and Dr Howison, the Arbitrator then set out the contentious paragraphs reproduced at [10] above. That was not, however, the end of his analysis. He added:

    “45.  Balancing the reports of Dr MacArthur and Dr Howison, I prefer the opinion expressed in the reports of Dr Howison. My reason for preferring that opinion is that Dr Howison’s view appears to be supported by the Code of Practice which relates noise levels to length of exposure in order to arrive at an eight-hour equivalent noise exposure.

46.    Dr MacArthur does not attempt to explain how he arrives at the conclusion that the noise levels experienced were sufficient to give rise to noise induced deafness following exposure for the periods stated. The opinion of Dr Howison is that the noise levels and length of exposure stated would not, even after making the necessary adjustment for levels above 85 dB, explain Mr Nolan’s hearing loss due to noise.

47.    I am satisfied that the levels and periods of exposure attested to by Mr Nolan are insufficient to support the conclusions drawn by Dr MacArthur and tend to support the conclusion drawn by Dr Howison when read in the light of the Code of Practice.”

1. Under “Summary” at [48], the Arbitrator said that he was not satisfied on the whole of the evidence that Mr Nolan had discharged the onus of proof on the balance of probabilities that his exposure to noise in the course of his employment with the respondent was causally related to his hearing loss. While this statement involves an incorrect statement of the issue, which is discussed below, it has not been challenged and, in any event, makes no difference to the outcome.

2. The first point to note about the Arbitrator’s conclusion is that it did not depend on the rejection of the submission by Mr Davies recorded at [43]. He considered all the evidence and submissions and concluded that Mr Nolan had not discharged the onus of proof. He reached that conclusion because, for reasons stated, which have not been challenged, he preferred Dr Howison’s evidence and did not accept Dr MacArthur’s evidence. His preference for Dr Howison’s evidence was open to him and discloses no error.

3. The submission that “matters pertaining to the proof of issues in dispute are to be dealt with according to the rules of evidence and not principles of substantive law” is incorrect. The Commission is not bound by the rules of evidence (s 354(2) of the 1998 Act). Provisions such as s 354 do not, however, exonerate the Commission from the application of substantive rules of law (South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; 4 DDCR 42 at [90]).

4. It follows that I do not accept Mr Bechelli’s submission that the “only considerations” the Arbitrator should have taken into account were the matters in Pt 15 r 15.2. Applying substantive rules of law as to the standard of proof in civil matters, the Arbitrator had to feel actual persuasion that Mr Nolan had established his case on the balance of probabilities (Nguyen v Cosmopolitan Homes [2008] NSWCA 246). To be so satisfied, the Arbitrator had to assess the whole of the evidence and apply the correct legal principles to the facts found and the issues in dispute.

5. In any event, the application of Pt 15 r 15.2 does not support Mr Bechelli’s submission. One of the reasons the Arbitrator gave for not accepting Dr MacArthur’s evidence was that he had not explained how he arrived at his conclusion that the noise levels were sufficient to give rise to noise-induced deafness following exposure for the periods stated. To that extent, Dr MacArthur’s opinion was “unsubstantiated” and his evidence did not satisfy the principles in Pt 15 r 15.2. It was open to the Arbitrator to reject Dr MacArthur’s evidence.

6. The Arbitrator’s statement that it would be impossible for the respondent to meet the submission by Mr Davies (as summarised at [43] of his decision) involved no error and must be read in the context of the fact that Mr Nolan carried the onus of proof. After considering the evidence in light of the relevant authorities, the Arbitrator concluded that Mr Nolan had not discharged the onus of proof. That conclusion was open and discloses no error.

7. The submission that the passage relied on from Dawson “does not have the force of statute and should not be interpreted as prescribing the only means by which noisy employment can be proved” was misguided. Mr Davies expressly referred the Arbitrator to Dawson (T23.19) and urged him to apply the principles discussed in it (T23.30) instead of the principles in Callaby v State Transit Authority (NSW) [2000] NSWCC 30, which the respondent’s counsel had urged on him. A party is bound by the conduct of his counsel (Smits v Roach [2006] HCA 36; 227 CLR 423 at [46]) and Mr Bechelli has advanced no reason why that should not be so in this case.

8. The Arbitrator’s statement that, in a claim for boilermaker’s deafness, a worker must prove, by way of accepted evidence of the nature and extent of exposure to noise, that the “tendency, incidents or characteristics” of his or her employment were such as to give rise to a real risk of boilermaker’s deafness was correct. Not only was the Arbitrator’s decision consistent with Dawson, it was, more importantly, consistent with the longstanding appellate authorities of Blayney Shire Council vLobley (1995) 12 NSWCCR 52 and Costello v Citra Constructions Ltd [1990] FCA 9; 22 FCR 247) on which Dawson was based.

9. The submission that noisy employment may be proved by any means that satisfy Pt 15 r 15.2 is a misleading statement that misses the point. For evidence to satisfy Pt 15 r 15.2, it must be relevant to the facts in issue and the issues in dispute. Evidence based on speculation or unsubstantiated assumptions is unacceptable. One of the critical issues in the present case was whether Mr Nolan’s employment with the respondent was employment to the nature of which boilermaker’s deafness was due. To determine that issue, it was necessary for the evidence to address the nature and duration of the noise to which Mr Nolan was exposed in the course of his employment with the respondent.

1. Dr MacArthur’s evidence did not satisfy Pt 15 r 15.2 because, as noted above, he did not explain how it was that, given the short periods during which Mr Nolan was exposed to noise, the noise levels were sufficient to give rise to a real risk of boilermaker’s deafness. His evidence involved an unsubstantiated or unexplained assumption, which, when considered with the other evidence in the case, was not sufficient to discharge the onus Mr Nolan carried.

2. Even if Dr MacArthur’s evidence had satisfied Pt 15 r 15.2, it would not have meant that Mr Nolan had to succeed. That evidence had to be weighed against the other evidence in the case to determine if Mr Nolan had proved his case on the balance of probabilities. In undertaking that exercise, there may be many reasons why one side’s evidence will be preferred over the opposition’s evidence. Given the way Mr Bechelli has presented the appeal, it is sufficient to note that the Arbitrator gave reasons for preferring Dr Howison’s evidence over Dr MacArthur’s evidence and those reasons were open and disclose no error.

3. What Mr Bechelli’s submissions have overlooked is that, for reasons that the Arbitrator fully explained, the Arbitrator did not accept Dr MacArthur’s evidence. In circumstances where Mr Davies made no mention of Pt 15 r 15.2, the Arbitrator did not have to go on to say that Dr MacArthur’s evidence did not satisfy Pt 15 r 15.2. Dr MacArthur’s failure to explain his conclusion meant that his opinion was “unsubstantiated”, and that was one of the Arbitrator’s reasons for not accepting his evidence. That conclusion was open and discloses no error. This does not involve reading Dawson as having the force of statute. It is simply a matter of Mr Nolan having not proved his case.

4. Finally, the submission that the fact that Mr Nolan’s hearing loss is consistent with hearing loss caused by exposure to loud noise, and that that evidence, together with the absence of evidence of any other exposure to noise, were matters that should have been taken into account, together with other evidence, in determining whether the respondent was a noisy employer, is flawed because, as Mr Davies agreed at the arbitration, it reverses the onus of proof. It is not for the respondent to prove that its employment did not cause Mr Nolan’s hearing loss. It is for Mr Nolan to prove that the “tendency, incidents or characteristics” of his employment were such as to give rise to a real risk of boilermaker’s deafness. He did not discharge that onus.

OTHER MATTERS

1. While I am not satisfied that the Arbitrator erred in the manner alleged by Mr Bechelli, one matter, which was not the subject of challenge by Mr Bechelli, requires comment. The Arbitrator concluded (at [48]) that he was not satisfied that Mr Nolan had discharged the onus of proof on the balance of probabilities that his exposure to noise in the course of his employment with the respondent “was causally related to his hearing loss”. As noted above, whether Mr Nolan’s hearing loss was causally related to his employment with the respondent is not the test.

2. However, given the Arbitrator’s analysis of the evidence and the authorities, and, in particular, his statement at [47] that he was satisfied that the levels and periods of exposure (to noise) attested to by Mr Nolan were “insufficient to support the conclusions drawn by Dr MacArthur and tend[ed] to support the conclusions drawn by Dr Howison”, I do not believe the error at [48] has affected the outcome.

3. The second matter that requires comment is the practice of briefing counsel at the arbitration and for solicitors to prepare the submissions on appeal. The practice of briefing counsel at arbitrations is extremely helpful to the Commission because it facilitates the resolution of claims and, if claims cannot be resolved, usually ensures that arguments are presented efficiently and competently.

4. However, the now common practice of briefing counsel at the arbitration, as happened in this case, and having solicitors prepare the submissions on appeal, as also happened in this case, is counterproductive and unhelpful. It often results in:

   (a)     new arguments being presented on appeal without regard to the fact that parties are generally bound by the conduct of their case at the arbitration (University of Wollongong v Metwally (No 2) (1985) 60 ALR 68 at 71);

   (b)     unsubstantiated arguments being presented without regard to binding authority;

   (c)     fundamental errors and misunderstandings about basic legal concepts, as occurred in this case, with regard to the onus of proof and the fact that the Commission is bound to apply substantive rules of law;

   (d)     misunderstandings about elementary principles, such as the rule in Jones v Dunkel [1959] HCA 8; 101 CLR 298 (as demonstrated in Oracle Corporation Australia Pty Ltd v Ozcelik [2012] NSWWCCPD 58), and

   (e)     appeals generally being presented without properly identifying the grounds of appeal and directing submissions to those grounds, as required by Practice Direction No 6.

5. The current practice is unsatisfactory. It does not promote the efficient resolution of appeals and, more importantly, does not advance the interests of the parties involved. Moreover, the repeated failure to comply with Practice Direction No 6 is unacceptable and often leads to delays while the parties are directed to take the basic steps that are clearly set out in the Practice Direction.

CONCLUSION

1. The Arbitrator’s decision involves no relevant error that has affected the outcome. The submission that issues of proof are dealt with according to rules of evidence and not principles of law was fundamentally wrong. Moreover, Mr Bechelli’s submissions ignored the fact that Mr Nolan carried the onus of proof and that, for valid reasons explained by the Arbitrator, he failed to discharge that onus.

DECISION

1. The Arbitrator’s determination of 18 September 2012 is confirmed.

COSTS

1. Each party is to pay his or its own costs of the appeal.

Bill Roche

Deputy President  

6 December 2012

I, MARGOT UNDERCLIFFE, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE