Penrith Rugby League Club Ltd v Van Poppel - [2018] NSWWCCPD 55

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Penrith Rugby League Club Ltd v Van Poppel [2018] NSWWCCPD 55
APPELLANT:	Penrith Rugby League Club Ltd (in the interests of AAI Ltd trading as GIO)
FIRST RESPONDENT:	Margaret Mary Van Poppel
SECOND RESPONDENT:	Penrith Rugby League Club Ltd (in the interests of Club Employers Mutual)
INSURERS:	AAI Ltd trading as GIO (Appellant) Club Employers Mutual (Second Respondent)
FILE NUMBER:	A1-2173/18
ARBITRATOR:	Mr J Isaksen
DATE OF ARBITRATOR’S DECISION:	27 June 2018
DATE OF APPEAL DECISION:	21 December 2018
SUBJECT MATTER OF DECISION:	Section 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998 – leave to appeal an interlocutory decision, s 17(1)(a) of the Workers Compensation Act 1987 – deemed date of injury involving loss of hearing caused by a gradual process
PRESIDENTIAL MEMBER:	Acting President Michael Snell
HEARING:	On the papers
REPRESENTATION:	Appellant:	Thompson Cooper Lawyers
First Respondent:	Turner Freeman Lawyers
Second Respondent:	McCabe Curwood
ORDERS MADE ON APPEAL:	1. The time for making an appeal is extended pursuant to r 16.2(12) of the Workers Compensation Commission Rules 2011, to 20 August 2018. 2. Leave is granted pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998 to bring the appeal against an interlocutory decision. 3. The decision of the Arbitrator dated 26 June 2018 is revoked. 4. There is a finding, on the factual circumstances accepted by the parties, that the deemed date of injury pursuant to s 17(1)(a)(i) of the 1987 Act is 9 December 2016. 5. The matter is remitted to the same Arbitrator, for determination of the remaining issues, consistent with these reasons.

INTRODUCTION

This appeal involves the determination of a deemed date of injury, pursuant to s 17(1)(a) of the Workers Compensation Act 1987 (the 1987 Act), where the ‘injury’ is a loss of hearing of such a nature as to be caused by a gradual process.

BACKGROUND

The facts are uncontroversial. Margaret Mary Van Poppel (the worker) was employed by Penrith Rugby League Club Ltd (the Club) from 1977, and she remains in such employment. From 1977 to 1982 she was a bar attendant, working three nine hour shifts per week, exposed to “loud disco music that was played consistently throughout the night”. Thereafter her duties with the Club were in a clerical capacity, where she was not “exposed to any loud noise”.[1] Dr Scoppa, an ear, nose and throat specialist, assessed the worker and reported on 22 June 2016. The doctor concluded that she suffered from 13.7% binaural hearing loss (equating to 7% whole person impairment) due to industrial deafness. He described the Club as the last noisy employer.[2] The doctor adhered to these views in a supplementary report dated 28 October 2017.[3]
[1] Worker’s statement dated 12 October 2017, [5]–[8], Application to Resolve a Dispute (ARD) p 38.
[2] ARD, p 1.
[3] ARD, p 7.
The worker, through a letter from her solicitors dated 9 December 2016, gave notice of injury and made a claim on the Club for lump sum compensation, in respect of 13.7% binaural loss of hearing, and the cost of hearing aids.[4] The Club’s relevant insurer as at 1982 (when on the evidence her employment was last noisy) was AAI Ltd trading as GIO (GIO). The Club’s relevant insurer as at the date of notice in 2016 was Club Employers Mutual Ltd (CEM). Both insurers issued s 74 notices raising, as an issue, what the deemed date of injury should be. Each denied it was the relevant insurer.
[4] ARD, p 19.
CEM additionally raised issues going to whether the worker had given notice of injury in compliance with s 61 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), and whether a claim for compensation was made in accordance with s 261 of the 1998 Act.[5] The GIO additionally raised as an issue that the worker had failed to make a claim in compliance with s 261 of the 1998 Act, and that it was prejudiced. It challenged whether Dr Scoppa’s report (on which the claim was based) was sufficient for the report to be accepted. It raised issues going to quantum (pursuant to s 66) and whether hearing aids were reasonably necessary (s 60 of the 1987 Act).
[5] ARD, p 32.

THE ARBITRAL PROCEEDINGS AND DECISION

The proceedings were commenced by way of an ARD registered on 27 April 2018. The ARD pleaded the date of injury as 1 January 1982, and the date of notice as 9 December 2016. Both insurers continued to raise the above issues in the Replies they lodged. The arbitral proceedings were listed for telephone conference on 4 June 2018. The Arbitrator issued a Direction dated 5 June 2018, directing each insurer to make submissions by 18 June 2018, dealing with the question of what the deemed date of injury should be. The Arbitrator noted that the worker did not seek to address this issue. The Arbitrator noted that he would issue a decision after 18 June 2018, and that further Directions were likely to be made, following his decision dealing with the deemed date. GIO lodged submissions on 13 June 2018, and CEM on 18 June 2018.
The Arbitrator issued a Certificate of Determination dated 27 June 2018, accompanied by eight pages of reasons.[6] The reasons outlined the insurers’ positions. The GIO asserted that the deemed date of injury was 9 December 2016, the date when notice was given and the relevant claim was made on the Club. The GIO was not the insurer at that time. CEM asserted that, although it was the insurer on risk at the date of notice and claim, by that time the employment was no longer noisy, it was not employment to the nature of which the injury was due (s 17(1)(a) of the 1987 Act). The Arbitrator noted that if the deemed date of injury was 9 December 2016, the worker’s claim pursuant to s 66 of the 1987 Act would be unavailable, due to s 66(1) of the 1987 Act, as her whole person impairment was not greater than 10 per cent. In short, if the worker succeeded, GIO was liable if the deemed date of injury was in 1982, and CEM was liable if the date was 9 December 2016. The Arbitrator described determination of the deemed date of injury as “an initial issue”.[7] He later described it as “[t]his interim dispute”.[8]
[6] Van Poppel v Penrith Rugby League Club Limited [2018] NSWWCC 165 (reasons).
[7] Reasons, [5]–[10].
[8] Reasons, [14].
The Arbitrator summarised the submissions. GIO relied on a passage from Blayney Shire Council v Lobley,[9] Parliament assigned “liability to the employer, at the time of the notice of injury, to the nature of whose employment the injury was due”. It submitted this was consistent with GIO Workers Compensation (NSW) Ltd v GIO General Ltd,[10] and StateCover Mutual Ltd v Cameron.[11]
[9] (1995) 12 NSWCCR 52 (Lobley), 55B–C.
[10] (1995) 12 NSWCCR 187 (GIO v GIO).
[11] [2015] NSWCA 127; 13 DDCR 272 (Cameron No 2).
CEM submitted s 17(1)(a) directed attention “not to the contract of employment but to the kind of work being done by the worker at various times in that employment”. It referred to CIC Workers Compensation (NSW) Ltd v Alcan Australia Ltd,[12] and QBE Insurance (Australia) Ltd v Dust Diseases Tribunal of NSW.[13]
[12] (1994) 35 NSWLR 169; 10 NSWCCR 642 (CIC).
[13] [2011] NSWCA 421 (QBE Insurance).
The Arbitrator said that Lobley directs focus onto “the nature of the employment at the time of the notice of injury”. Was it “of a kind which could cause hearing loss”?[14] In the current matter, the worker was working in the accounts department at the time of notice; there was no evidence to suggest that such work was “of a nature as to cause hearing loss”.[15]
[14] Lobley, 59E.
[15] Reasons, [29]–[30].
The Arbitrator referred to CIC Workers Compensation (NSW) Ltd v Alcan Australia Ltd,[16] and to the analysis by Gleeson CJ of authorities dealing with the phrase “employment to which the nature was due”. He referred particularly to the discussion by Gleeson CJ, dealing with Blatchford v Staddon and Founds.[17] The Arbitrator said:
“I consider that the reasoning in Blatchford, and the cases that have followed it, applies with ‘equal force’ to section 17. Consistent with what was said by Gleeson CJ in CIC, I consider that in this dispute section 17 (1)(a)(ii) applies in that the applicant was not so employed in an employment the nature of which the injury of hearing loss was due at the time notice of injury was given on 9 December 2016. The mere fact that the applicant was still employed under a contract of employment with the respondent on 9 December 2016 does not make that date the deemed date of injury because the applicant was not employed in that part of the respondent’s premises where the nature of her employment could give rise to the risk of hearing loss. The last day that the applicant was employed in an employment to the nature of which the injury of hearing loss was due was a day in 1982 when the applicant worked as a bar attendant and was exposed to loud noise …”[18]
[16] CIC.
[17] [1927] AC 470 (Blatchford).
[18] Reasons, [35].
The Arbitrator distinguished StateCover Mutual Ltd v Cameron,[19] a case that involved ss 15 and 18 of the 1987 Act, rather than s 17.[20] He concluded that the appropriate deemed date of injury was 1 January 1982. He remitted the matter to the Registrar, for referral to an Approved Medical Specialist (AMS), to assess binaural hearing loss with a deemed date of injury of 1 January 1982, and to provide an opinion on whether hearing aids were reasonably necessary.[21]
[19] [2015] NSWCA 127; 13 DDCR 272 (Cameron No 2).
[20] Reasons, [36]–[37].
[21] Reasons, [40]–[41].
Dr Williams, an AMS, furnished a Medical Assessment Certificate (MAC) dated 24 July 2018. He certified that the worker suffered from binaural hearing loss of 16.1%, which after necessary deductions yielded a loss by way of industrial deafness of 10%. He said that hearing aids were “reasonably necessary for her occupational noise induced hearing loss if retrocochlear pathology is excluded by her treating Doctors”.
This appeal is brought by GIO, the Club’s insurer as at 1 January 1982. It challenges the finding that the appropriate deemed date of injury is 1 January 1982, rather than 9 December 2016, the date of notice and claim.

ON THE PAPERS

On 16 November 2018, the Commission issued a Direction to the parties in the following terms:
“1. It is noted that issues of ‘notice’ and ‘claim’ were raised in the s 74 notices issued by the two insurers, and adopted in the Replies filed by each of them. A copy of the Arbitrator’s ‘Telephone Conference and Outcome and Appearances’ sheet, relating to the telephone conference held on 4 June 2018, is attached for the information of the parties.
2. The parties, by the close of business on 23 November 2018, are to provide written submissions addressing the following:
(a) Did any ‘liability’ issues, within the meaning of s 321(4)(a) of the Workplace Injury Management and Workers Compensation Act 1998, remain in issue between the parties, at the time the orders in the Certificate of Determination dated 27 June 2018 were made? In particular:
(i)had the issues going to ‘notice’ and ‘claim’ been conceded by one or both of the insurers, and
(ii)had both insurers conceded the issue of ‘injury’, subject to determination by the Arbitrator of the deemed date?
(b) If any ‘liability’ issues remained outstanding as at 27 June 2018:
(i)what were they;
(ii)what is the status of the orders in the Certificate of Determination dated 27 June 2018, and
(iii)what is the status of the Medical Assessment Certificate of Dr Williams dated 24 July 2018?”
Each of the parties responded to the Direction on 23 November 2018. GIO submitted that issues of ‘notice’ and ‘claim’ remained outstanding, and were not conceded by it. CEM submitted that at all times it disputed the issue of ‘notice and claim’, the identity of the relevant insurer on risk and the deemed date of injury. The worker submitted that no issue was “ventilated by the respondents in relation to matters pertaining to ‘notice’ and/or ‘claim’”, and it was on this basis that orders were made for submissions going to the date of injury.
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 submission by all 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

Time

The Certificate of Determination was dated 27 June 2018. The Application to Appeal Against Decision of Arbitrator (the appeal) was registered on 20 August 2018, a little more than three weeks out of time: s 352(4) of the 1998 Act. Rule 16.2(12) of the Workers Compensation Commission Rules 2011 provides:
“The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.”

Submissions on threshold matters

The GIO refers to the issue of the MAC on 24 July 2018. It submits that it was only when the MAC was issued that it could assert the monetary threshold in s 352(3) of the 1998 Act was satisfied. CEM and the worker make no submissions relevant to the extension of time.

Consideration

There was no compensation awarded in the decision. The decision had the real capacity to put in issue an amount of compensation sufficient to satisfy the monetary threshold in s 352(3).[22] The respondents to the appeal have not challenged the adequacy of the GIO’s explanation of delay, nor whether exceptional circumstances are present. It is appropriate to extend the time for bringing the appeal to 20 August 2018. I note that, if time was not extended, the GIO could bring the appeal within time in any event, following the final decision in the proceedings: Gerlach v Clifton Bricks Pty Ltd.[23]
[22] Sheridan v Coles Supermarkets Australia Pty Limited [2003] NSWWCCPD 3, Fletchers International Exports Pty Limited v Regan [2004] NSWWCCPD 7, [27].
[23] [2002] HCA 22; 209 CLR 478; 76 ALJR 828 (Gerlach), [4]–[7].

LEAVE TO APPEAL AN INTERLOCUTORY DECISION

Section 352(3A) of the 1998 Act provides:
“There is no appeal under this section against an interlocutory decision except with the leave of the Commission. The Commission is not to grant leave unless of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute.”
The test of whether a decision is interlocutory was described in Licul v Corney[24] as “[d]oes the judgment or order, as made, finally dispose of the rights of the parties?” The GIO correctly accepts that the decision appealed is of an interlocutory nature. The decision clearly does not finally dispose of the rights of the parties. The GIO submits that determining the appeal is necessary or desirable for the proper and effective determination of the dispute. It correctly submits that it could appeal, on the issue of the final Certificate of Determination, in any event. It submits granting leave “would prevent further delay”. CEM and the worker make no submissions going to whether leave should be granted pursuant to s 352(3A) of the 1998 Act.
[24] [1976] HCA 6; 180 CLR 213, 225.

Consideration

The date of injury is relevant not only to which insurer meets the claim, but also to whether the worker is entitled to lump sum compensation (see [6] above). There is a difficulty with the referral to an AMS to assess binaural hearing loss. The worker submits that the issues going to ‘notice’ and ‘claim’ (ss 254, 260 and 261 of the 1998 Act) were “not raised”. The Arbitrator’s direction for written submissions dated 4 June 2018 was for “submissions on the issue of the deemed date of injury”. It would be unsurprising if other issues were not specifically raised in those circumstances. The internal document recording the teleconference outcomes (a copy of which has been made available to the parties) does not indicate that issues such as ‘notice’ and ‘claim’ were resolved or conceded at the telephone conference. The submissions of the insurers state that neither of them conceded these issues.
Issues of ‘notice’ and ‘claim’ are disentitling provisions, which potentially provide an employer with a defence, where a worker has not complied with these statutory requirements. They are appropriately regarded as ‘liability’ issues, which require determination before referral of a matter to an AMS for assessment. The referral to an AMS in the current matter was made in circumstances where these ‘liability’ issues had not been determined by the Commission. The referral was made in circumstances where it could not be made validly, as the preconditions for a referral pursuant to ss 293 and 321(4) had not been met.[25] It has been held that a determination is invalid, where it is based on a MAC that is invalid or defective.[26]
[25] See Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2014] NSWCA 264; 13 DDCR 156, [111], Favetti Bricklaying Pty Limited v Benedek [2017] NSWSC 417, [78].
[26] Al-Nouri v Al-Nouri Pty Ltd [2010] NSWWCCPD 85, [60], McGowan v Secretary, Department of Education and Communities [2014] NSWWCCPD 51, [81].
The Arbitrator’s note of the ‘Teleconference Outcomes and Appearances’ for 4 June 2018 is consistent with acceptance by the parties that the availability of a claim for lump sum compensation hinged on the date of injury. If the correct deemed date is 9 December 2016 such a claim would be unavailable, as the claim for WPI is not greater than 10 per cent (s 66(1) of the 1987 Act).
The situation is further complicated by the Workers Compensation Legislation Amendment Act 2018 (the 2018 Amending Act). Amendments contained in Sch 2 of that Act repeal ss 293(3)(a) and 321(4) of the 1998 Act (which otherwise prevent referral to an AMS before ‘liability’ issues are determined). The 2018 Amending Act inserts s 321A into the 1998 Act, which provides for regulations with respect to the circumstances in which a medical dispute concerning permanent impairment of an injured worker is authorised, required or not permitted to be referred for assessment. Regulations have not, at this point, been made. Schedule 2 is to commence from 1 January 2019.
It is desirable that the appeal of the interlocutory decision be dealt with, so that the parties can know whether a claim for lump sum compensation is available, and whether it is desirable that a further referral to an AMS be sought, once ‘liability’ matters are dealt with. If the issue of the deemed date is not dealt with in this appeal, it could in any event be raised on appeal after the final decision in the matter.[27] I have formed the view that determining the appeal is desirable for the proper and effective determination of the dispute. I grant leave to bring the appeal against an interlocutory decision.
[27] Gerlach, [4]–[7].

GROUNDS OF APPEAL

There is effectively a single ground of appeal, although it is expressed as two grounds:
(a) The Arbitrator erred in finding 1 January 2002 as the deemed date of injury.
(b) The Arbitrator erred in not finding 9 December 2016 the deemed date of injury being the date of claim.

LEGISLATION

Section 17 of the 1987 Act provides:
“17   Loss of hearing—special provisions (cf former s 7 (4B), (4BB))
(1)     If an injury is a loss, or further loss, of hearing which is of such a nature as to be caused by a gradual process, the following provisions have effect:
(a)     for the purposes of this Act, the injury shall be deemed to have happened:
(i)where the worker was, at the time when he or she gave notice of the injury, employed in an employment to the nature of which the injury was due—at the time when the notice was given, or
(ii)where the worker was not so employed at the time when he or she gave notice of the injury—on the last day on which the worker was employed in an employment to the nature of which the injury was due before he or she gave the notice,
(b)the provisions of section 61 of the 1998 Act shall apply to or in respect of the injury as if the words ‘as soon as practicable after the injury happened and before the worker has voluntarily left the employment in which the worker was at the time of the injury’ were omitted therefrom,
(c) compensation is payable by:
(i)where the worker was employed by an employer in an employment to the nature of which the injury was due at the time he or she gave notice of the injury—that employer, or
(ii)where the worker was not so employed—the last employer by whom the worker was employed in an employment to the nature of which the injury was due before he or she gave the notice,
(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,
(f)where the Commission is satisfied that a contribution required to be made under paragraph (d) cannot be recovered by an employer referred to in paragraph (c), the Commission may direct the Nominal Insurer to pay to that employer out of the Insurance Fund such amount, not exceeding the amount of the contribution, as the Commission considers appropriate and the Nominal Insurer is to pay out that amount accordingly as if it were a payment made in respect of a claim under Division 6 of Part 4,
(g)where there is a dispute as to the amount of a contribution required to be made under paragraph (d), that dispute shall be deemed to be a matter or question arising under this Act.
(2)     Without limiting the generality of subsection (1), the condition known as ‘boilermaker’s deafness’ and any deafness of a similar origin shall, for the purposes of that subsection, be deemed to be losses of hearing which are of such a nature as to be caused by a gradual process.
(3)     Compensation is payable by an employer as referred to in subsection (1) (c) in respect of the injury to which the notice given to the employer relates even if the worker, before claiming or receiving that compensation, commences employment (to the nature of which that kind of injury can be due) with another employer.”

Section 18 of the 1987 Act provides:
“18    Special insurance provisions relating to occupational diseases (cf former s 18 (6A)–(6C))
(1)     If an employer has become liable under section 15 (1) (b) or 16 (1) (b) to pay compensation to a worker in respect of an injury and the time at which the injury is deemed to have happened is after the worker ceased to be employed by the employer, the liability of the employer is, despite sections 15 and 16, taken to have arisen immediately before the worker ceased to be employed by the employer. This subsection operates only for the purpose of determining whether any insurer or which of 2 or more insurers is liable under a policy of insurance in respect of that compensation.
(2)     Where:
(a)an employer (in this subsection referred to as the contributor) has become liable under this Act to make a contribution to another employer towards compensation payable by that other employer in respect of an injury to a worker (being an injury referred to in section 15, 16 or 17), and
(b)on the last day of the period in respect of which the contributor was liable to make the contribution, the contributor was maintaining in force a policy of insurance,
the insurer under that policy is:
(c)directly liable, with the contributor, to pay the contribution to the employer who is liable to pay the compensation, and
(d)liable to indemnify the contributor to the extent that the contributor pays the contribution.
(3)     In a case to which section 15, 16 or 17 applies, if each of the employers who is liable to pay the compensation or to make a contribution under the section concerned is insured in respect of that liability by an insurer who is an insurer within the meaning of Division 4 of Part 7 and the entitlement of the worker (or other claimant) to receive compensation is not disputed:
(a)a contribution that would otherwise be payable by an employer under section 15, 16 or 17 in respect of the claim is not payable, and
(b) for the purposes of calculating an insurance premium payable by any of those employers, their claims histories are to be determined on the assumption that any contribution that would have been payable but for paragraph (a) was payable.”
Section 151AB of the 1987 Act provides:
“151AB Special insurance provisions relating to occupational diseases
(1)     If an employer is liable independently of this Act for damages for an occupational disease contracted by a worker, the following provisions have effect for the purposes of any policy of insurance obtained by the employer:
(a)the liability is taken to have arisen when the worker was last employed by the employer in employment to the nature of which the disease was due, subject to paragraph (b),
(b)if the worker was employed by the employer in employment to the nature of which the disease was due both before and after the relevant commencement, the liability is taken to have arisen both when the worker was last employed by the employer in employment to the nature of which the disease was due before the relevant commencement and when the worker was last employed by the employer in employment to the nature of which the disease was due after the relevant commencement.
(2)     In a case in which subsection (1) (b) applies, 2 insurers will be liable under policies of insurance to indemnify the employer (or pay damages to the worker) and the following provisions apply with respect to those insurers (referred to in this subsection as the responsible insurers):
(a)Of the responsible insurers, the one that is the insurer in respect of the employer’s liability that arose after the relevant commencement is to be the insurer primarily responsible for the claim.
(b)The responsible insurers can however agree as to which of them is to be primarily responsible for the claim or the court can order that one of them is to be the insurer primarily responsible, and any such agreement or order overrides paragraph (a).
(c)The insurer who is primarily responsible for the claim is to act for both the responsible insurers in respect of any claim for the damages and has sole liability for the claim (that is, it is to indemnify the employer for the full amount of the damages or is to pay the full amount of damages to the worker, without any right to a contribution from any other insurer, except as provided by paragraph (d)).
(d)The insurer who is primarily responsible is entitled to recover from the other responsible insurer half of the amount paid as damages to the worker, half of the amount paid in respect of the worker’s legal costs and half of such reasonable amount as the insurer primarily responsible may have incurred in respect of its own legal expenses in the matter.
(3)     If 2 or more employers are jointly or severally liable for damages referred to in this section, the provisions of this section apply separately to each employer.
(4)     This section does not affect the amount of damages recoverable by a worker.
(5)     This section applies to any liability arising before or after the commencement of this Act and to any policy of insurance issued before or after that commencement.
(6)     In sections 151AB and 151AC:
occupational disease means a disease of such a nature as to be contracted by a gradual process, and includes:
(a)a dust disease as defined by the Workers’ Compensation (Dust Diseases) Act 1942, and
(b)total or partial loss of sight which is of gradual onset, and
(c)the condition known as ‘boilermaker’s deafness’ or any deafness of similar origin.
relevant commencement means:
(a)except as provided by paragraph (b)—4 pm on 30 June 1987, or
(b)in the case of an employer who was insured under a policy of insurance that was assigned as referred to in clause 10 of Part 15 of Schedule 6 to this Act—the commencement of the period of insurance of the policy so assigned.”

GIO’S SUBMISSIONS

The GIO, the appellant, refers to s 17(1)(a)(i) of the 1987 Act. It submits the worker suffered noise induced deafness in the Club’s employ, she remained in the Club’s employment thereafter until notice was given on 9 December 2016, s 17(1)(a)(i) deems the injury to have happened when notice was given. The GIO submits this is consistent with Lobley, Cameron and GIO v GIO.
The GIO, in its submissions in reply, refers to the decision in Hay v Commonwealth Steel Company Pty Ltd,[28] which it submits is on point.
[28] [2018] NSWWCCPD 31 (Hay).

CEM’S SUBMISSIONS

CEM submits that, since 1982, the worker “was no longer employed in employment to the nature of which the injury was due”. It submits the GIO has no evidence that the worker’s hearing loss deteriorated from 1982 onwards, when she was working as a clerk. CEM refers to Blatchford, CIC and QBE Insurance. It submits attention should be directed “not to the contract of employment, but to the kind of work being done by the worker at various times”. Section 17(1)(a) “does not focus on the ‘employer’ but on ‘an employment’, to be characterised according to the injury”. Employment, in context, means the work the worker is required to do.[29]
[29] CEM’s submissions, [4.1]–[4.10].
CEM submits the work in “an accounting role did not consist of an aggravation, acceleration, exacerbation or deterioration of a disease”. It submits work as a bar attendant (up to 1982), on the probabilities, was a substantial contributing factor to the injury of industrial deafness.[30] CEM argues the Arbitrator’s decision should be confirmed.
[30] CEM’s submissions, [4.14]–[4.17].

THE WORKER’S SUBMISSIONS

The worker supports the Arbitrator’s decision. Her submissions refer to her taking maternity leave on two occasions, the first in December 1982. It is submitted on her behalf that following the first period of such leave, she returned in “different employment”, in which “noise exposure ceased”. The worker submits that, following a second period of maternity leave, she “took up an accounts position”. She submits that “on both occasions she went to different employment after her period off work [which] would suggest that there was in fact a break in employment on each occasion”. The worker’s submissions state “the fundamental nature of the Respondent worker’s employment changed”.[31]
[31] Worker’s submissions, [3]–[4].
The worker submits the appeal depends on the meaning of the words “employment to the nature of which the injury [was] due”. The worker refers to Lobley and Dow v Commissioner for Railways,[32] that ‘employment’ in context refers to “the actual nature of the occupation of the particular worker and not the nature of the employer’s business”. The worker submits the authorities direct attention to “the question of precisely what duties the worker is performing”. The worker argues that her interpretation is consistent with the reasoning in CIC and Cameron. She refers to two arbitral decisions consistent with her position.[33] The worker acknowledges that the construction for which she argues is inconsistent with a recent Presidential decision of Hay, which she submits was wrongly decided.

THE MAIN AUTHORITIES RELIED ON

[32] [1952] 26 WCR 73.

[33] Tzifas v Caterair Airport Services (Sydney) Pty Ltd (No 6224/08, unreported), McClean v Qantas Airways Ltd [2014] NSWWCC 421.

Lobley

All parties have sought to draw assistance from Lobley. GIO refers to the following passage from the judgment of Kirby ACJ:
“It would have been easy for Parliament to have assigned responsibility for hearing loss to the last employer whose employment had actually caused some hearing loss. Instead, Parliament chose a different criterion, namely by assigning liability to the employer, at the time of the notice of injury, to the nature of whose employment the injury was due.
There is an element of artificiality in s17(1) of the Act. The injury, which is the result of a gradual process, is deemed to have happened at an arbitrary time, viz when the notice of injury is given. It is assigned to the employer at that time. But it is only assigned if that employer employed the worker in employment ‘to the nature of which’ the injury was due.”[34]
[34] Lobley, 55B–C.
The worker (whose submissions support those of CEM on this issue) refers to another passage from the judgment of Kirby ACJ in support of her position:
“Instead, it [parliament] chose another arbitrary criterion, viz employment to the nature of which the injury was due at or most closely before, the date of the notice of injury. To give effect to that criterion it is essential that the Compensation Court should focus its attention upon the ‘nature’ of the employment at the time of the notice of injury. If that nature was of a kind which could cause hearing loss, the burden of carrying all past hearing loss falls upon that employer.”[35]
[35] Lobley, 56E–F.
After reviewing the authorities, Cole JA (Kirby ACJ and Rolfe AJA agreeing) concluded:
“In my view, it is sufficient for a claimant worker to establish that the employment in which he was engaged occurred in an environment which, were he unprotected, could cause injury of the type suffered by him. If evidence establishes that circumstance, the worker satisfies the onus of establishing that at the time of giving notice he was employed in an employment to the nature of which the injury was due.”[36]
[36] Lobley, 65D.
The Acting Chief Justice, in Lobley, referred to the “element of artificiality in section 17(1) of the Act”. His Honour’s remarks are of assistance in construing s 17(1). His Honour said:
“What are the purposes of introducing such arbitrary elements? They include:
1. To relieve the worker of the burden, which would otherwise ordinarily be assumed, to prove that actual trauma in the employment of a particular employer or employers had caused the loss of hearing.
2. To relieve the worker, and ultimately the Compensation Court, of apportioning the extent of loss attributable to particular trauma in the employment of particular employer(s) which had caused particular proportions of the total hearing loss found.
3. To assign the burden of compensation in a particular case to one employer, acknowledging that the worker may have changed employment many times in his or her working life and, as here, have been in the employment of the last employer for only a short time. Presumably, the certainty of responsibility thus secured was thought, in the long run and over the mass of such cases, to justify the arbitrary assignment upon the basis that, over time, the inequities of the assignment in a particular case would be evened out amongst employers (and their insurers) generally.
4. By assigning liability to the last employment as defined, the costs and delays of litigation, which are so substantial and disproportionate, could be avoided or minimised to the general saving of costs of the provision of workers' compensation benefits and the reduction of the administrative costs, of which legal expenses are a not inconsiderable part.
So understood, the purposes of s17(1)(a) of the Act were to make the task of the worker easier (in both ascertaining the employer to be sued and in proving the claim) and the assignment of the responsible employer clearer.”[37]
[37] Lobley, 55D–56B.

CIC

The submissions of the worker and CEM refer to CIC. That decision involved s 151AB of the 1987 Act, which is reproduced at [31] above. The section deals with occupational diseases, which include ‘boilermaker’s deafness’, in respect of “liability independently of this Act for damages”. The purpose of the section “is to identify (from among a number of insurers under policies of insurance obtained by a single employer for different periods) one insurer which is to indemnify the employer for the full amount of the damages”. It provides “the liability is to be taken (for the purpose of this section only) to have arisen when the worker was last employed by that employer in an employment to the nature of which the disease was due”.
The plaintiff in CIC worked for the defendant until November 1987. He was last exposed to asbestos in that employment on 4 October 1985. He died from mesothelioma as a consequence of exposure to asbestos, for which Alcan was held liable for damages, on a date shortly after April 1993. The primary judge concluded that CIC, which was the relevant insurer for about the last six weeks of the plaintiff’s employment (when there was no asbestos exposure) was liable, applying s 151AB. The primary judge accepted an argument that the word ‘employment’ in the section meant “the employment of a worker by an employer, and not particular employment duties at different times”.
On appeal, Gleeson CJ noted that the construction preferred by the primary judge had the merit of simplicity. The Chief Justice said that the “principal problem confronting that approach, however, is that its acceptance requires departure from almost seventy years of consistent authority”.[38] His Honour referred to the following passage from the speech of Lord Blanesburgh in Blatchford, dealing with the phrase “in the employment to the nature of which the disease was due”:
“The word ‘employment’ is not, as I think, in this phrase used immediately to describe the relation between employer and workman, a sense in which it is so frequently utilized throughout the Act … In this phrase, as it seems to me, the word very clearly refers to the work or process in which the workman had been engaged and not to his contract with an employer to engage in it.”[39]
[38] CIC, 173E–F.
[39] Blatchford, 482.
The Chief Justice referred to[40] Smith v Mann,[41] and quoted a passage from Tame v Commonwealth Collieries Pty Ltd,[42] which included the following:
“I think that ‘employment to the nature of which the disease was due’ means employment of such a kind as to involve a risk to the employee contracting the gradual process disease which is disabling him. In the present case, what is complained of is a disease contracted by a gradual process of the inhalation of silica dust. For the worker to succeed, it was necessary for him to satisfy the Commission that his employment with his last employer was of such a kind as to expose him to the risk of inhaling silica dust…I agree that if it had been established that, although his last employment was such as ordinarily involved a risk of inhaling silica dust, nevertheless work with his last employer was carried on under special conditions which made inhalation of silica dust impossible, the worker would have failed …”[43]
[40] CIC, 175B–D.
[41] [1932] HCA 30; 47 CLR 426.
[42] (1947) 47 SR (NSW)269; 64 WN (NSW) 56 (Tame).
[43] Tame, per Jordan CJ, 272; 56.
Gleeson CJ described this passage from Tame as “a clear exposition of the principle that had been established in Blatchford, and that has been applied ever since”. His Honour continued, saying of the words “employment to the nature of which the disease was due” in s 151AB:
“… there is every reason to conclude that they have the same meaning. The context is the same. The problem being addressed is that of a disease contracted by a gradual process. The idea of a disease being due to employment of a certain nature directs attention, not to the contract of employment, but to the work being performed and the exposure to risk involved in that work. The reasoning in Blatchford, and the cases that have followed it, applies with equal force to s 151AB.”

Grate Lace Pty Ltd v Thiess Watkins White Constructions Pty Ltd

Grate Lace Pty Ltd v Thiess Watkins White Constructions Pty Ltd[44] involved a bricklayer with a dermatological condition due to exposure to cement, with a succession of employers. It was a ‘disease’ within the meaning of s 15 of the 1987 Act. Kirby P referred to the phrase “to the nature of which the disease was due” in s 15. He said this was “simply designed to excuse a completely irrelevant employment, e.g. a bricklayer temporarily working in a florist shop”. His Honour described the objects of s 15:
“•      to avoid unnecessary litigation;
•       to simplify the assignment of liability;
•       to remove the highly disputatious debate about true causation, and
•       to fix the last relevant employer with the primary liability (subject to the limited contribution right provided in section 15(2)).
Manser CCJ’s basic mistake was, with respect, in endeavouring to return to the assignment of liability according to a notion of true causation.”
[44] (1995) 12 NSWCCR 365 (Grate Lace).

Cameron

The Arbitrator’s reasons and the parties’ submissions refer to Cameron No 2 (a decision of the Court of Appeal). The Arbitrator distinguished Cameron No 2 on the basis that it involved ss 15 and 18 of the 1987 Act, a different statutory context to s 17. He said s 17 “provides its own criteria for identifying the deemed date”. The decision in Hay (further referred to below) also referred to and discussed the Presidential decision (Cameron No 1)[45] from which the appeal in Cameron No 2 was brought. It is necessary to also refer to Cameron No 1.
[45] StateCover Mutual Ltd v Cameron [2014] NSWWCCPD 49 (Cameron No 1).
The facts in Cameron were straightforward. The deceased worker died from a metastatic melanoma which was contributed to by his employment with the employer, a local Council. The deceased was last exposed to sunlight in the course of his employment in 1986. He ceased to be employed by the Council on 24 February 2011. He died on 19 July 2011, which was the deemed date of injury pursuant to s 15(1)(a)(i) of the 1987 Act. Thus, the deemed date of injury was “after the worker ceased to be employed by the employer”. Section 18 (reproduced at [30] above) had the effect that liability fell on StateCover Mutual Limited (Statecover), which became the relevant insurer after exposure to sunlight had ceased in 1986.[46]
[46] Cameron No 2, [6]–[7].
StateCover, arguing to the contrary, submitted that the word ‘employed’ in s 18 should be taken to refer to “employment of a kind which was a substantial contributing factor to the injury”. The Court of Appeal rejected this submission. The legislature had not used such words in s 18, although it had done so in other provisions such as ss 15(1)(b), 17 and 151AB(1).[47] Statecover also sought to rely on CIC, which the Court of Appeal said was of no assistance. CIC dealt with s 151AB, the language of which was different to s 18.[48] Basten JA (Beazley P and Ward JA agreeing) also observed:
“As recognised by Lord Blanesburgh in Blatchford, the term ‘employment’ can (and does) have different meanings in different parts of the Act.”
[47] Cameron No 2, [9]–[10].
[48] Cameron No 2, [14].

In Cameron No 1, StateCover mounted a similar argument to that it ran on appeal. It “submitted that s 18 fixes liability of the insurer by reference to the insurer on risk at the time of the work that was a substantial contributing factor to the worker’s injury”, relying on CIC as authority for this proposition.[49] Deputy President Roche rejected that argument, describing the language of s 18 as “unambiguous”. He said of StateCover’s argument that:
“… it seeks to return to the assignment of liability according to a notion of true causation. That is not how ss 15 and 18 work and the authorities make that crystal clear.”[50]
[49] Cameron No 1, [76].
[50] Cameron No 1, [92].
The Deputy President also quoted the following passage from GIO v GIO:
“… the injury, being a disease of such a nature as to be contracted by a gradual process, is deemed to have happened at the time of incapacity. I have no doubt that is a reference to the incapacity for which compensation is claimed. Section 15(1)(b) provides that ‘compensation is payable by the employer in whose employment the worker is or who last employed the worker’. That means the employer in whose employment the worker is at the time the injury is deemed to have happened, or who last employed the worker before the injury is deemed to have happened; Fisher v Hebburn [1961] HCA 16; (1961) 105 CLR 177 at 196 and 199.”[51]
[51] GIO v GIO, 196B (emphasis in the quotation in Cameron No 1).

Hay

Hay raised, in a different fashion, an issue very similar to that in the current appeal. The worker was employed by Commonwealth Steel from 1988 to 12 March 1993, in employment that was ‘noisy’ throughout. He was also in deemed employment with the NSW Rural Fire Service as a volunteer firefighter from 1989 to late 1997. This deemed employment was ‘noisy’ up to early 1992, but not thereafter. It followed that both employments were noisy, at least at times. The last such employment was with the NSW Rural Fire Service, which ceased in 1997. The last exposure to ‘noisy’ employment was with Commonwealth Steel on 12 March 1993.[52] The issue was which was the last employment to the nature of which the injury was due, for the purposes of s 17(1) of the 1987 Act.
[52] Hay, [3]–[5].
It was argued by the worker that the injury was deemed to have occurred on the last day he worked in ‘noisy’ employment, that being with Commonwealth Steel. He relied on CIC in support of this proposition.[53]
[53] Hay, [47]–[50].
Deputy President Wood quoted from the judgment of Dixon J in Smith v Mann,[54] and from Lobley.[55] She noted that the Arbitrator in Hay rejected the notion that there were two distinct employments with the Rural Fire Service, and this was not challenged on appeal. The Deputy President continued:
“The Rural Fire Service was clearly an employer who employed the worker ‘in an employment to the nature of which the injury was due’ and he remained in the employ of the Rural Fire Services beyond his employment with Commonwealth Steel. In line with the above authorities and for the purposes of s 17, it is not necessary or correct to identify a precise time when the injury occurred or to isolate certain duties performed during the whole period of employment with a noisy employer.”[56]
[54] [1932] HCA 30; 47 CLR 426 (Smith v Mann).
[55] Hay, [84]–[89].
[56] Hay, [90].
The Deputy President concluded that the Arbitrator in Hay was correct to conclude that the Rural Fire Service was the last ‘noisy’ employer for the purposes of s 17(1)(a)(ii).[57] The Deputy President concluded that CIC did not have application to a case under ss 15 or 17, consistent with Cameron No 1.[58] She described the worker’s position in Hay as “at odds with the ratio in Smith v Mann”.[59]
[57] Hay, [93].
[58] Hay [101].
[59] Hay, [105].

DISCUSSION

The Certificate of Determination in this matter was dated 27 June 2018. The Presidential decision in Hay was issued on 31 July 2018. The GIO relies on Hay, the worker submits that it was wrongly decided.
The s 74 notice issued by the GIO did not dispute that the worker’s employment as a bar attendant up to 1982 was “employment to the nature of which the injury was due” (that is, what is frequently described for convenience as ‘noisy employment’). However, it asserted that the deemed date of injury was the date of claim, 9 December 2016, by which point GIO had ceased to be the relevant insurer. The s 74 notice issued by CEM asserted that the “deemed date of injury is sometime in or around 1982”, that is, before CEM became the relevant insurer. The matter proceeded on the basis it was common ground that the employment was ‘noisy’ up to 1982, but not thereafter, and that notice was given to the Club on 9 December 2016. I will approach the appeal on the same basis.
The Club was the ‘noisy’ employer to which the worker gave notice of injury on 9 December 2016. At that date she remained in the employment of the Club. If this is sufficient to satisfy the requirements of s 17(1)(a)(i) of the 1987 Act, then 9 December 2016 is the deemed date of injury. On the alternative argument, satisfaction of s 17(1)(a)(i) required the additional element that work with the Club be ‘noisy’ at the time notice of injury was given. If this further element is not satisfied, then one moves to s 17(1)(a)(ii) to identify the last day of ‘noisy’ employment before the date notice was given. That last date then becomes the deemed date of injury.
The worker’s submissions refer to the history of breaks in the worker’s employment when she took time off work for the births of her two children. It is submitted on the worker’s behalf that the history suggests “there was in fact a break in employment on each occasion”.[60] To the extent to which this submission suggests it should be inferred there was a break in the employment relationship when the worker went off work on maternity leave, so that fresh contracts of employment were entered into on the occasions of her resumption, this is not born out by the evidence from the worker. Any such suggestion can be put to one side. The worker’s statements dated 4 April 2017 and 12 October 2017 relevantly say:
“4. In December 1982 I went on maternity leave. It was at this time the noise exposure ceased. I returned to work between the auditorium and restaurants in approximately June 1983.
5. I then went on maternity leave for the second time in early November 1984; returning to work in around June 1985. This time my duties involved Reception/door duties. I now work in the Panthers office.”[61]
And:
“In 1982 I continued to work at Penrith Panthers Leagues Club but began a new role in the Accounts Payable department. I am still employed by the Club but have not been exposed to any loud noise in my employment since commencing my accounting role in 1982.”[62]
[60] Worker’s submissions, [3].
[61] Worker’s statement dated 4 April 2017, [4]–[5], at ARD p 37.
[62] Worker’s statement dated 12 October 2017, [8], at ARD p 38.
The submission by CEM, that the GIO had no evidence that the worker’s hearing loss deteriorated, from 1982 onwards, similarly can be put to one side. It is clear from Lobley, and the authorities discussed in Lobley, that liability under s 17(1) does not depend on whether work with a “particular employer contributed at all to his condition or aggravated it or accelerated its development”.[63] CEM also submits that the worker’s accounting role “did not consist of an aggravation, acceleration, exacerbation or deterioration of a disease”.[64] This is the language of s 16 of the 1987 Act. It is not of any direct relevance to establishing injury pursuant to s 17 of the 1987 Act.
[63] Lobley, 65D–E.
[64] CEM’s submissions, [4.14].
CEM submits that the worker’s duties as a bar attendant were of a type “that on the balance of probabilities has been a substantial contributing factor to her having developed the injury of industrial deafness”. Injury pursuant to s 17 is a ‘disease’ injury, which is not caught by s 9A: s 9A(1). On any ‘injury’ issue this submission is inconsistent with what was said (although it predated the commencement of s 9A) by Beazley JA (as her Honour then was) in A & G Engineering Pty Ltd v Civitarese:[65]
“Section 17, as the appellant’s case recognised, provides an easy path to compensation for a worker suffering from hearing loss of gradual onset. All that is necessary under the section is for the worker to prove that the last employment (in respect of which that employer is sued) is one to which the nature of the disease is due. It is not necessary to prove that the employment brought about or contributed to the disease.”[66] (excluding citations)
[65] (1996) 41 NSWLR 41 (Civitarese).
[66] Civitarese, 43G.
Civitarese was applied in Lennon v TNT Australia Pty Ltd.[67]
[67] [2013] NSWCA 77; 11 DDCR 521.
The argument run by GIO is essentially simple, the construction of s 17(1)(a) is based on the natural and ordinary meaning of the words. The worker was employed by the Club, in ‘noisy’ employment, up to 1982. Her employment with the Club continued, it was a single employment. She was still employed by the Club when she gave notice of injury on 9 December 2016. The injury was deemed to have happened “at the time when the notice was given”, applying the natural and ordinary meaning of the words in s 17(1)(a)(i). This is consistent with the well-known passage in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue[68] where the plurality said:
“This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.”[69] (excluding footnotes)
[68] [2009] HCA 41, 239 CLR 27 (Alcan).
[69] Alcan, [47].
In Wilson v State Rail Authority of New South Wales[70] Allsop P (as his Honour then was) said:
“I am mindful that any initial engagement with enactment history and context might be misunderstood as part of any enquiry as to the subjective intent of legislators or policy advisers so that such divined intent can be transferred to the words used by Parliament. Such an enquiry would be misdirected. It is the language of Parliament that must be interpreted and construed. However, as is now beyond dispute, in construing an Act, a court is permitted to have regard to the words used by Parliament in their legal and historical context. Context is to be considered in the first instance, not merely when some ambiguity is discerned. Context is to be understood in its widest sense to include such things as the existing state of the law and the mischief or object to which the statute was directed. These are legitimate means of understanding the purpose of the Act and of the relevant provisions, against which the terms and structure of the provisions and the Act, and a whole, are to be understood. Fundamental to the task, of course, is the giving of close attention to the text and structure of the Act, as the words used by Parliament to effect its legislative purpose.”[71] (excluding references)
[70] [2010] NSWCA 198; 78 NSWLR 704 (Wilson).
[71] Wilson, [12] (excluding citations).
The Acting Chief Justice in Lobley identified the purposes of the “arbitrary elements” in s 17(1) of the 1987 Act, for fixing liability on employers in claims for loss of hearing (see [41] above). His Honour made similar observations in Great Lace, in the context of disease injuries within the meaning of s 15 of the 1987 Act (see [47] above). In Rico Pty Ltd v Road Traffic Authority[72] Sheller JA (Priestley JA agreeing) said:
“Section 17 deems the injury here suffered to have happened at a particular time for the purposes of the Act. The time the injury actually happened is irrelevant.”[73]
[72] (1992) 28 NSWLR 679; 8 NSWCCR 515 (Rico).
[73] Rico, 690D–E.
Section 7(4) of the Workers Compensation Act 1926 (the 1926 Act) was the forerunner of s 15 of the 1987 Act. That sub-section relevantly provided:
“Where the injury is a disease which is of such a nature as to be contracted by a gradual process compensation shall be payable by the employer in whose employment the worker is or who last employed the worker.
Any employers who, during the twelve months preceding a worker’s incapacity, employed him in any employment to the nature of which the disease was due, shall be liable to make to the employer by whom compensation is payable such contributions as, in default of agreement, may be determined by the Commission.”
In Smith v Mann Dixon J, dealing with s 7(4) of the 1926 Act, said:
“Sub-sec. 4 of sec. 7 deals with the special cases of diseases contracted by a gradual process, and this also operates by way of extension. The nature of a disease contracted by a gradual process is such as to make it difficult, and sometimes impossible, to say how far a particular period of employment contributed. The purpose of the sub-section is to pitch upon the latest employer for the purpose of immediate liability to the worker, leaving him to recover over from others by way of contribution. The description of the disease implied in the expression in the second paragraph ‘employment to the nature of which the disease was due’ may properly be carried back into the first paragraph for the purpose of understanding its meaning. In other words, the diseases dealt with are those which are contracted by a gradual process and are due to the nature of an employment. The expression in the first paragraph ‘in whose employment the worker is or who last employed the worker’ implies a reference to a point of time or event, and it is apparent that the occurrence of incapacity is the event or time intended. The employer at the time of, or last before, the incapacity is made primarily liable. It seems proper to understand the provision in the first paragraph as confined to employers who do employ or have employed the worker in an employment to the nature of which the disease is due, but any further restriction upon the class of employment or any further requirement as to causation seems unwarranted.”[74] (emphasis added)
[74] Smith v Mann, 449.
In Lobley Cole JA, referring to Smith v Mann, said “[t]he proper approach to the construction of such a provision was addressed by Dixon J”.[75] The “point of time” referenced in Smith v Mann, construing s 7(4) of the 1926 Act, was the occurrence of incapacity. The point of time referenced in s 17(1)(a) of the 1987 Act is “the time when [the worker gave notice of the injury”. This is subject to the proviso described by Kirby ACJ in Lobley:
“The injury, which is the result of a gradual process, is deemed to have happened at an arbitrary time, viz, when the notice of injury is given. It is assigned to the employer at that time. But it is only assigned if that employer employed the worker in employment ‘to the nature of which’ the injury was due.”[76] (emphasis added)
[75] Lobley, 61B.
[76] Lobley, 55C.
In the current matter, it is common ground that the Club employed the worker in ‘noisy’ employment, to the nature of which the injury was due. No party argues to the contrary. No party submits that the worker’s claim should have failed. It follows that the proviso identified by Kirby ACJ in Lobley was satisfied. The Club was “that employer”, as the term was used by Kirby ACJ. In the terms employed in the passage of Smith v Mann quoted at [68] above, the Club, to which she gave notice of injury on 9 December 2016 whilst she remained in its employ, was an employer who employed or had employed the worker in ‘noisy’ employment. This was sufficient to engage the application of s 17(1)(a)(i). It follows that the deemed date of injury was the date when notice of injury was given, 9 December 2016. The clear words of s 17(1)(a)(i) are satisfied.
This approach is consistent with that taken by Wood DP in Hay, in which the Deputy President said:
“Mr Hay’s employer when he ceased noisy work remained his employer beyond the period when Mr Hay worked with Commonwealth Steel. The Arbitrator rejected the notion that there were two distinct ‘employments’ with the Rural Fire Service and that finding has not been challenged. The Rural Fire Service was clearly an employer who employed the worker ‘in an employment to the nature of which the injury was due’ and he remained in the employ of the Rural Fire Service beyond his employment with Commonwealth Steel. In line with the above authorities and for the purposes of s 17, it is not necessary or correct to identify a precise time when the injury occurred or to isolate certain duties performed during the whole period of employment with a noisy employer.”[77]
[77] Hay, [90].
The alternative proposition, consistent with the argument of CEM, would be to conclude that the worker, at the time she gave notice, was not “employed in an employment to the nature of which the injury was due”, because her duties had changed, although she continued throughout in the Club’s employ. If this proposition were correct, s 17(1)(a)(ii) would then apply to deem the date of injury, which CEM would argue to be 1982 when the employment was last ‘noisy’. This, in my view, involves adding a further requirement for the operation of s 17(1)(a)(i) which goes beyond the language of the text.
Support for the approach I have taken may be drawn from the observations of Kirby ACJ in Lobley and Great Lace (see [41] and [47] above). The matters identified by his Honour represent part of the context of s 17(1), the “mischief or object to which the statute was directed” (see [65] above). It is common, for workers involved in ‘noisy’ employment, who give notice to their current employer, to have been in such employment over a period, during which the duties (and noise levels) will have changed from time to time. The construction which I have reached has the advantage of simplicity. Notice is given to the employer, and this identifies the deemed date of injury, which also identifies the insurer. If the alternative construction were adopted, it would be necessary to have regard to when it could be established the employment was last ‘noisy’. This would be of practical interest to insurance interests. It tends to move the dispute more to one about true causation, contrary to the observations by Kirby P in Grate Lace, as adopted by Roche DP in Cameron No 1.[78] It has the capacity to encourage litigation and to increase legal costs. The current matter is an example of this potential. The amount at issue is small, and the facts are (in the current matter) uncontentious. The matter has already been to an arbitral determination, followed by the current appeal, because of disputation about fixing the deemed date of injury (and the associated insurance consequences).
[78] Cameron No 1, [90]–[91].
CEM and the worker place reliance on the decision in CIC. CIC involved a different statutory context, s 151AB of the 1987 Act (see [31] above). It is a provision that fixes one insurer with liability to indemnify an employer for the full amount of damages awarded, in proceedings independent of the workers compensation legislation, involving an occupational disease. Roche DP gave extensive reasons in Cameron No 1, for rejecting an argument that CIC had application in a dispute involving s 18 of the 1987 Act (quoted at [30] above).[79]
[79] Cameron No 1, [89]–[115].
The worker in Hay argued that CIC should be followed, in a claim involving s 17(1)(a) of the 1987 Act. The Deputy President rejected this argument. Deputy President Wood referred to the reasons given by Roche DP in Cameron No 1 on this topic. Deputy President Wood referred to the fact that s 151AB was a provision that dealt with indemnity in claims for damages, rather than statutory compensation. The Deputy President said this was a part of the “context and general purpose” of s 151AB, referring to Alcan. She concluded that CIC “does not apply in respect of what is required to satisfy ss 15 and 17 of the 1987 Act for the purposes of determining the liability of an employer in a ‘no fault’ statutory system”.[80]
[80] Hay, [94]–[103].

The worker, after referring to passages from Lobley, submits “the considerations pointed out by the Court of Appeal are all directed to the question of precisely what duties the worker is performing and whether those work duties give rise to the necessary risk of injury”.[81] The decision in Lobley is clearly of relevance to the issue before me. It should be borne in mind, however, that the issue in Lobley went to the primary liability of two employers, in particular whether the duties with the second in time had the “tendencies, incidents or characteristics” to give rise to the injury of deafness. In the current appeal it is common ground that the Club was ‘noisy’, and is liable to the worker. It is the only relevant employer. The issue is a different one, when was the deemed date of injury, applying s 17(1)(a) of the 1987 Act. The focus is different to that in Lobley.
[81] Worker’s submissions, [10].
The worker’s submissions also deal at some length with Cameron No 2.[82] I cannot see that Cameron No 2 assists the worker’s argument. Section 18, the subject of Cameron No 2, is quite unlike s 17(1)(a). The wording of s 18 is, as Beazley P observed, “unambiguous”. Basten JA said that s 18 “is not concerned with a determination of liability, nor with identification of the employer”.[83] Basten JA referred to CIC, on which StateCover relied in Cameron No 2, and said that it was “of no assistance”, as it dealt with s 151AB, and the language of that section was “critical to the outcome in that case”.[84]
[82] Worker’s submissions, [12]–[17].
[83] Cameron No 2, [18].
[84] Cameron No 2, [14].
The worker in this appeal submits that the Arbitrator, referring to the reasons of the Chief Justice in CIC, correctly identified the inquiry as one going to “the nature of the employment and not to the contract or fact of employment”.[85] Section 17(1)(a) directs attention to both the employment relationship and the nature of the employment duties. The inquiry is not limited to “the nature of the employment”, nor is it divorced from a consideration of “the contract or fact of employment”. The question posed by s 17(1)(a)(i) is whether, at the time notice was given, the worker was “employed in an employment to the nature of which the injury was due” (emphasis added). The provision focuses on both whether the employment was of the nature to which the injury was due, and whether the worker was employed in that employment at the time notice was given. This is quite different to the inquiry required by s 151AB. As noted above, Basten JA in Cameron No 2 described the language of s 151AB as “critical to the outcome in that case”.
[85] Worker’s submissions, [11].
The worker’s submissions are critical of Hay on two bases. Firstly, the worker submits that the Deputy President in that case “failed to consider that section 17 does 2 things”. It is submitted s 17 “determines when the injury occurred which is when the worker was last employed in employment to the nature of which”, which is determined by the actual duties. It is submitted s 17 “separately determines who is to pay the compensation, which “only looks at the fact of employment”.[86] It is apparent from the text of s 17 that it determines when the injury is deemed to have happened, in s 17(1)(a), and by which employer compensation is payable, in s 17(1)(c). The basis of the submission that the Deputy President failed to consider these things is not explained, nor is there any developed submission dealing with what flowed from the alleged failure to consider these things.
[86] Worker’s submissions, [19].
The second criticism is a submission that the “Deputy President also took the incorrect view that the position adopted by the Appellant in that case required words to be added to section 17”. The worker submits this “is plainly incorrect”.[87] The worker’s submissions do not identify the passage of the Deputy President’s decision where she is said to have done this. It may be a reference to her reasons at [106], where she said:
“Mr Hay, in arguing that the later particular duties should result in a finding of no liability, is in effect seeking to extend the phrase to include a requirement that the exposure to noise must have persisted while he was in employment with the Rural Fire Service beyond the time of ceasing work for Commonwealth Steel. Such an assertion is contrary to law. As Sheller JA said in Rico, ‘Section 17 deems the injury here suffered to have happened at a particular time for the purposes of the Act. The time the injury actually happened is irrelevant’.”
[87] Worker’s submissions, [19].
The worker submits that her position “does not require the addition of words it merely requires the words of the section to be given their ordinary meaning”. This submission rather begs the question of what the ordinary meaning is. I have sought to identify the competing versions of the “ordinary meaning” at [59] above. The view I have adopted is consistent with that adopted by Wood DP in Hay (see [70] above). On that construction, there is no requirement in s 17(1)(a)(i) that the relevant employment have continued to be noisy, as at the date when notice of injury is given. It is apparent why the Deputy President expressed herself as she did, on the basis that requiring ongoing ‘noisy’ employment, up to the date of notice, involved reading words into the provision. I do not see that there is error in the reasons of Wood DP quoted at [80] above.

CONCLUSION

For the reasons above, I have concluded that the Arbitrator erred in the construction which he accepted, of s 17(1)(a) of the 1987 Act. In my view, the accepted factual circumstances were such that s 17(1)(a)(i) was engaged, and the deemed date of injury was the date of notice, being 9 December 2016.
In the circumstances, the claim for lump sum compensation pursuant to s 66 of the 1987 Act is not available, as the assessment of permanent impairment from Dr Scoppa, on which the worker relies, is not greater than 10 per cent, and the threshold in s 66(1) of the 1987 Act is not met. The claim in respect of hearing aids remains available. There is no impediment to the non-binding opinion of the AMS being considered as evidence on the topic: s 326(2) of the 1998 Act.
For reasons given above, the pleaded issues going to ‘notice’ and ‘claim’ remain unresolved, and have not been the subject of any submissions or determination. It is difficult to see a basis on which those defences can be made out, in circumstances where the deemed date of injury is 9 December 2016, the same date as when notice was given and a claim made. However, it is appropriate that the parties have an opportunity to address on these issues should they wish. It will be necessary that the issue of the worker’s claim for the cost of hearing aids pursuant to s 60 of the 1987 Act be dealt with. The parties have not addressed that issue. It is necessary that the matter be remitted for these purposes.

DECISION

The decision of the Arbitrator dated 26 June 2018 is revoked.
There is a finding, on the factual circumstances accepted by the parties, that the deemed date of injury pursuant to s 17(1)(a) of the 1987 Act is 9 December 2016.
The matter is remitted to the same Arbitrator, for determination of the remaining issues, consistent with these reasons.

Michael Snell

Acting President

21 December 2018