Return to Work Corporation of South Australia v Sweeney - [2025] SASCA 50

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA v SWEENEY
[2025] SASCA 50
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice S Doyle and the Honourable Justice Bleby)
15 May 2025
WORKERS' COMPENSATION - ENTITLEMENT TO COMPENSATION - EMPLOYMENT RELATED INJURY, DISABILITY OR DISEASE
WORKERS' COMPENSATION - PROCEEDINGS TO OBTAIN COMPENSATION - DETERMINATION OF CLAIMS - APPEALS, JUDICIAL REVIEW AND STATED CASES
The Return to Work Corporation of South Australia (the Corporation) has appealed against a decision of the Full Bench of the South Australian Employment Court (the Full Bench) concerning two issues.
The first issue concerned the ruling that the primary judge made an error of law in failing to find that a medical examiner had not adhered to the requirements of s 22 of the Return to Work Act 2014 (SA) (the Act) and Chapter 9 of the Impairment Assessment Guidelines (the Guidelines) when assessing binaural hearing loss. The second issue concerned the ruling that the primary judge failed to correctly construe s 106(7) of the Act when finding that the respondent (the worker) was not entitled to her costs of the proceedings.
The worker had made a claim for compensation for non-economic loss by way of a lump sum under s 58 of the Act for noise-induced hearing loss after working in a noisy workplace for 15 years. Three ENT surgeons agreed that the worker had non-work-related cochlea otosclerosis (or fenestral otosclerosis) which also caused hearing loss at the same frequencies. The medical assessor selected by the worker to assess impairment determined that the worker’s work-related hearing impairment was 4%. The worker failed to exceed the 5% threshold under s 58(2) of the Act and the Corporation determined that she had no entitlement to compensation for non-economic loss. The worker sought a review in a hearing before the Tribunal. By letter dated 22 December 2022 sent before the March 2023 hearing, the Corporation reiterated its determination but offered to compromise costs by paying the worker’s costs to a specified date.
The primary judge held that the ENT surgeon who was asked to assess the worker’s work-related hearing impairment under s 22 of the Act could use what he described as the “risk tables”, being the Australian/New Zealand Standard “Occupational Noise Management, Part 4: Auditory Assessment (AS/NZS 1269.4: 2014) (the Australian/New Zealand Standard). The Full Bench found that this was an error because the Guidelines required that the worker’s hearing loss at each of the relevant frequencies be determined according to the method set out in the NAL report No 118 of January 1988 (the NAL report).
The primary judge also held that the worker was to be denied her costs under s 106(7) of the Act because she failed to improve on the offer made by the Corporation before the hearing in the Tribunal. The Full Bench found that this was an error because s 106(7) required that a positive amount must be offered for compensation before that provision could take effect.
The question of leave to appeal was referred to this Court for argument as on appeal.
Held (the Court) granting leave to appeal, and allowing the appeal on both issues:
1.The Full Bench erred on a question of law in finding that it was not open to the primary judge to permit the Australian/New Zealand Standard to be used by a medical assessor when assessing the extent to which permanent impairment to hearing was and was not caused by work-related noise under s 22(8)(b) of the Act and Chapter 9.2 of the Guidelines. [108]-[109]
2.The Full Bench erred on a question of law in finding that s 106(7) required that a positive amount be offered for compensation by the Corporation before the hearing. It was sufficient that the offer contained some element of compromise and here the compromise concerned the offer to pay the worker’s costs for a specified period. [137]-[138]
3.Observations made about questions of fact which may be agitated at the trial, and the need to identify and articulate questions of law when formulating appeal grounds, whether before the Full Bench of before the Court of Appeal. [76]-[82], [85]-[88], [107]
4.Observations made about the requirements for an offer made under s 106(7), and its inter‑relationship with s 106(3) of the Act, and offers made under Calderbank v Calderbank principles. [118]-[132], [139]-[140]

Return to Work Act 2014 (SA) ss 3, 22, 58, 106; South Australian Employment Tribunal Act 2014 (SA) ss 26I, 68, referred to.
Abraham v Return to Work SA [2016] SAET 76; Alcoa Holdings Ltd v Lowthian [2011] VSC 245; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139; Baker v Willoughby [1970] AC 467; Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1; Brown (A Pseudonym) v The King [2025] SASCA 40; Brown v Department for Education [2023] SASCA 138; Calderbank v Calderbank (1975) 3 All ER 333; Campbell v Employers Mutual Ltd and Others; Yaghoubi v BDS People Pty Ltd and Another (2011) 281 ALR 155; Cook v Flaherty (No 2) [2021] SASC 83; Council of the City of Gold Coast v DVB Projects Pty Ltd [2023] QCA 213; Dodman v Return to Work Corporation of South Australia (Knollview Pty Ltd) [2019] SAET 164; Envirogen Industrial Services (Aust) Pty Ltd v Return to Work Corporation of South Australia [2020] SAET 101; Faulkner v Keffalinos (1970) 45 ALJR 80; Fitzgerald v Return to Work Corporation of South Australia [2023] SAET 60; Frkic v Return to Work Corporation of South Australia [2020] SASCFC 59; Harris v GM Holden Limited [2018] SAET 150; Hazeldene’s Chicken Farm v VWA (No 2) (2005) VSCA 298; HJ Heinz v Kotzman [2009] VSC 311; Hope v Bathurst City Council (1980) 144 CLR 1; Jobling v Associated Dairies [1982] AC 794; Kaye v Return to Work SA [2018] SAET 143; Kimber v Chief Executive, Department of Treasury and Finance, for Chief Executive , Department for Health and Wellbeing (SA) Ambulance Service [2021] SASCA 133; Lingenberg v Gallichio (2013) 40 VR 60; Luxton v Vines (1952) 85 CLR 352; Mitsubishi v Kowalski (2019) 134 SASR 1; Miwa Pty Ltd v Saintan Properties Pte Ltd (No 2) [2011] NSWCA 344; Moloney v Hayward (No 2) [2023] SASC 36; Morris v McEwin and Another (2005) 92 SASR 281; Murphy (A Pseudonym) v The King [2023] SASCA 107; NL v Chief Executive of the Department for Child Protection & Ors [2023] SASCA 20; Paschalis v Return to Work Corporation of South Australia (2021) 140 SASR 77; Perpetual Executors v Federal Commissioner of Taxation (1948) 77 CLR 1; Pirrotta v Citibank Ltd (1998) 72 SASR 259; Pollidorou v Return to Work Corporation of South Australia [2018] SAET 133; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 195 CLR 355; R v District Court of the Metropolitan District Holden at Sydney; Ex parte White (1966) 116 CLR 644; Redman v Return to Work Corporation of South Australia (2021) 139 SASR 131; Return to Work Corporation v Agnew [2020] SASCFC 79; Return to Work Corporation of South Australia v Opie (2022) 140 SASR 304; Return to Work Corporation of South Australia v Papadopoulos [2025] SASCA 48; Return to Work Corporation of South Australia v Wastell [2024] SASCA 98; Ridley v Return to Work Corporation of South Australia [2021] SAET 116; Slater v Ecosol Pty Ltd (No 2) [2024] SASC 29; Spielhagen v Return to Work Corporation of South Australia [2022] SAET 174; Sweeney v Return to Work Corporation of South Australia [2023] SAET 100; Sweeney v Return to Work Corporation of South Australia [2023] SAET 25; Sweeney v Return to Work Corporation of South Australia (No 2) [2023] SAET 47; The Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126; The State of South Australia (in Right of the Department for Education) v Van Hatten (No 2) (2020) 137 SASR 299; Young v Local Government Association (District Council of Peterborough) [2019] SAET 76, considered.

RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA v SWEENEY
[2025] SASCA 50
Court of Appeal – Civil: Livesey P, S Doyle & Bleby JJA
THE COURT:
Introduction

The Return to Work Corporation of South Australia (the Corporation) has appealed against a decision of the Full Bench of the South Australian Employment Court concerning two issues.[1] The first issue concerned the ruling that the primary judge made an error of law in failing to find that a medical examiner had not adhered to the requirements of s 22 of the Return to Work Act 2014 (SA) (the Act) and Chapter 9 of the Impairment Assessment Guidelines (the Guidelines) when assessing binaural hearing loss.[2] The second issue concerned the ruling that the primary judge failed to correctly construe s 106(7) of the Act when finding that the respondent (the worker) was not entitled to her costs of the proceedings.[3]
[1]     Sweeney v Return to Work Corporation of South Australia [2023] SAET 100 (Calligeros, Rossi DPJJ and Eaton DP) (the Full Bench).
[2]     Sweeney v Return to Work Corporation of South Australia [2023] SAET 25 (the primary judge 1).
[3]     Sweeney v Return to Work Corporation of South Australia (No 2) [2023] SAET 47 (the primary judge 2).
The question of leave to appeal was referred to this Court for argument as on appeal.[4]
[4] South Australian Employment Tribunal Act 2014 (SA), s 68(2).
For the following reasons, leave to appeal should be granted and the appeal allowed. The primary judge made no error on a question of law when finding that the medical assessor was required to use his medical judgment in determining the degree of hearing impairment which was, and that which was not, caused by exposure to workplace noise, as required by s 22(8)(b) of the Act and Chapter 9.2 of the Guidelines. Moreover, the primary judge made no error on a question of law when finding that the Corporation had offered an amount to settle the matter before the hearing when it offered to confirm its determination on the basis that the worker would be paid her costs to a specified date.
These reasons are set out as follows:
Relevant background
The ENT evidence
The Corporation’s offer dated 22 December 2022
The hearing and the decisions of the primary judge
The ENT evidence
The reasons of the primary judge – impairment assessment
The reasons of the primary judge – costs
The decision of the Full Bench
The reasons of the Full Bench – impairment assessment
The reasons of the Full Bench – costs
The grounds of appeal
The relevant provisions of the Act
The determination of the appeal
Questions of law
The s 22 scheme for the assessment of permanent impairment
The question of costs under s 106(7) of the Act
Conclusion
Relevant background
The worker was a proprietor of an auto-electrical business between 2001 and 2016. Although her duties were administrative, she worked near a workshop where tradespeople used noisy equipment. The worker described the working environment as noisy.
By the time of her hearing assessments, the worker was in her late 60s and, following retirement, she had commenced to receive a carer’s pension. The worker had no prior history of hearing loss. During the process of undergoing hearing assessments, she commenced using hearing aids.
The ENT evidence
The worker was initially assessed at the request of Employers Mutual on behalf of the Corporation by Dr John Tomich, an accredited ear, nose and throat (ENT) surgeon. In his report dated 10 June 2021, he explained that audiometry demonstrated a pronounced bilateral, moderately severe neurosensory hearing loss with associated bilateral reduced speech discrimination.[5]
[5] Exhibit appeal book (AB), 51.
Dr Tomich recommended further investigation. In his report dated 6 July 2021, Dr Tomich explained that a CT scan of the petrous temporal bones suggested that the worker had a non-work-related cochlea otosclerosis.[6] He was of the opinion that the magnitude of the worker’s hearing loss “would almost certainly contain a component due to her non-work-related otosclerosis”. He suggested that at certain frequencies 50% of the worker’s loss should be allocated to each cause and he assessed her whole person impairment at 7.7%.
[6] AB 55.
Dr Daniel Hains, ENT surgeon, was then selected by the worker and retained as the sole medical examiner to provide a whole person impairment assessment of the worker’s noise induced hearing loss. In the letter of instruction to Dr Hains dated 4 August 2021, he was asked to assess the worker’s pre-existing or unrelated injury resulting in impairment “under the Guidelines and then [deduct] from the impairment”.[7]
[7] AB 57.
In his report dated 18 September 2021, Dr Hains explained that he made an audiogram in standard test conditions using a calibrated inter-acoustics audiometer. He then prepared a table regarding the worker’s hearing loss at each of the relevant frequencies “according to the method of the NAL report No 118 of January 1988” (the NAL report). He said that he had used appendices 3 and 5, and the latter made an adjustment for the worker’s age.[8]
[8] AB 64.
The NAL report is a report by John Macrae, “Improved procedure for determining percentage loss of hearing” prepared for the National Acoustic Laboratories in January 1988. The report presented empirical formulas and computer programs to be used to accurately calculate binaural and monaural percentage loss of hearing. It is this report which is referred to in Chapter 9 of the Guidelines as the “National Acoustic Laboratory (NAL) Guide”.
Dr Hains explained that the worker had a severe high frequency hearing loss that exceeded the maximum known to be caused by noise, indicating additional pathology. He referred to a Benson CT scan which, by an amended report dated 1 July 2021, confirmed otosclerosis at the oval window. Dr Hains explained:[9]
Otosclerosis is a non-work-related condition in which immature bone infiltrates the cochlea causing sensorineural deafness. It commonly involves the stapes, impeding its mobility and resulting in conductive hearing loss. This has not occurred with [the worker].
[9] AB 64.
Importantly, Dr Hains explained that the worker’s hearing loss was due to a combination of noise induced hearing loss and cochlea otosclerosis, where the “contribution to the hearing loss of each cause cannot be discerned from the audiogram”.[10]
[10] AB 65.
Dr Hains referred to the approach taken by Dr Tomich which, if applied to the results obtained by Dr Hains, would suggest an 8.8% compensable hearing loss. As Dr Hains explained in a later report, the method recommended by Dr Tomich was “reasonable but quite arbitrary”.[11]
[11] Dr Hains’ report dated 21 December 2021, AB 74.
Dr Hains thought it appropriate to use an alternative method, which he said was “based upon scientific evidence”. This was to use what he described as the “risk tables”, being the Australian/New Zealand Standard “Occupational Noise Management, Part 4: Auditory Assessment” (AS/NZS 1269.4: 2014) (the Australian/New Zealand Standard).[12] Table F3 of that standard provided the “Estimated Prevalence and Degree of Percentage Loss of Hearing in Noise‑Exposed, Otologically Normal Female Populations”.[13] As Dr Hains explained:[14]
It sets out in Tables F2 and F3 the quantum of expected percentage hearing loss in males and females depending on years of exposure and the average exposure over an 8 hour shift and also the percentage of workers exposed to such noise who will be affected.
The document uses the Average Continuous Noise Level (LAeq8h) over an 8 hour shift. This is an estimate value that gives the best-known indication of risk to the hearing.
[The worker] was exposed to industrial noise for some 15 years … With reference to Table F3 just over 50% of workers exposed to average continuous noise levels of 95dB (A) for an 8 hour shift (LAeq8h) will have some noise-induced hearing loss, the average loss being 4%. I consider it very unlikely that she was exposed to greater LAeq8h than 95dB (A).
[12] AB 102, Ex R3.
[13] AB 106.
[14] Dr Hains’ report dated 18 September 2021, AB 65.
Dr Hains assessed the worker’s hearing loss at 4%. This meant that the worker had no entitlement to compensation for non-economic loss by way of a lump sum having regard to the 5% impairment threshold set by s 58(2) of the Act.
Dr Hains expressed the opinion that the worker needed hearing aids for “both causes of the hearing loss but mainly for the otosclerosis”.[15] Dr Hains expressed the further opinion that the compensable component of the worker’s hearing loss was permanent and stable and that, with hearing aids, she had achieved maximum medical improvement.[16]
[15] AB 66.
[16] AB 66.
In a subsequent report, Dr Hains explained his view that the impairment assessment of 4% was “more scientifically valid … based upon accepted risk tables”.[17]
[17] Dr Hains’ report dated 21 December 2021, AB 74.
In his report dated 19 March 2022, Dr Hains used a slightly different method and a different audiogram, again preparing a table based on the NAL report. Dr Hains explained that on the method recommended by Dr Tomich, this suggested a hearing loss of 5.2% without the need to correct for age or tinnitus, which was “very similar” to the estimate he made using the risk tables.[18] Importantly, Dr Hains explained that cochlea otosclerosis and noise induced hearing loss affected the “same frequencies”.
[18] AB 75.
Subsequently, Dr Hains was asked to comment on the report of another ENT surgeon, Dr Kym Diamantis, dated 8 September 2022. In his report dated 25 October 2022, Dr Hains referred to the assessment made by Dr Diamantis. He observed that Dr Diamantis agreed that “the pattern of the hearing loss … is not entirely consistent with a diagnosis of noise induced hearing loss”.[19] That is to say, the hearing loss at the higher frequencies “exceeds the maximum loss due to noise”.[20] Dr Hains expressed reservations about the history of noise induced hearing loss from the worker:[21]
I have additional reservations about accepting the hearing loss as due to noise since the left thresholds at 1,000cps and at 1,500 and 2,000cps the hearing loss is greater than can be explained by noise alone.
I am also concerned with the work history of noise exposure.
[19] AB 87.
[20] AB 87.
[21] AB 87.
Dr Hains reflected on the debate about whether the worker had otosclerosis. He said it was “probably not vital” that otosclerosis be confirmed, because it was sufficient to say that “there are other causes and factors that are not work‑related”.[22]
[22] AB 88.
Dr Hains had reservations about the approach taken by Dr Diamantis. He was critical of the decision by Dr Diamantis to allow “the entire hearing loss from 2,000-4,000cps inclusive as noise induced”. It will be recalled that this was not the approach of Dr Tomich.
Dr Hains suggested that, rather than debate the preferred method, it may be “more direct” to investigate the noise alleged by the worker and a recommendation was made regarding how this might be done.
In his report dated 8 September 2022, Dr Diamantis, ENT surgeon, expressed the view that the worker’s audiology demonstrated that her hearing loss was “not entirely consistent with a noise induced hearing loss” because the loss “continues to drop at 6000Hz and 8000Hz”.[23] Dr Diamantis concluded for “indication purposes” that the worker’s compensable noise induced hearing loss was 15.7%.[24]
[23] AB 94.
[24] AB 95.
Dr Diamantis did not think that the Australian/New Zealand Standard was applicable to a whole person impairment calculation under the Return to Work Scheme. Though he expressed the opinion that it was “not provable” whether the worker had “fenestral otosclerosis”, that remained “a reasonable likelihood”.[25]
[25] AB 95.

Most importantly, Dr Diamantis said there was no clear method for calculating the worker’s noise induced hearing loss:[26]
… There is no clear-cut method for calculating [the worker’s noise induced hearing loss] component, but I do note however that using the Australian/New Zealand Standard is not in keeping with the instructions of the Guidelines.
[26] AB 95.
Dr Diamantis criticised the approach taken by Dr Tomich, before accepting that the issue of the worker’s hearing loss was “complex”.[27]
[27] AB 95-96.
The Corporation’s offer dated 22 December 2022
Before the primary judge heard the trial in March 2023, on 22 December 2022 the solicitors for the Corporation wrote to the worker’s solicitors. They summarised the effect of the medical evidence, outlined the Corporation’s position, then asserted that Dr Hains had relied on his medical judgment and that this accorded with the Guidelines. It was suggested that there was “no flaw in his assessment to warrant a referral” to an independent medical adviser. The solicitors then concluded:[28]
… the respondent maintains that the decision to continue with the dispute … is unreasonable and we invite you to concede in advance of the Trial proceeding. My client will pay reasonable legal costs and reasonable disbursements to be agreed should the matter resolve on this basis prior to [12 January 2023].
[28] Exhibit SDC1, AB 120.
The Corporation’s solicitors put the worker’s solicitors on notice that this letter would be relied on concerning the question of costs in support of an application that the worker pay costs.[29]
[29] Reference was made to Calderbank v Calderbank (1975) 3 All ER 333 and Hazeldene’s Chicken Farm v VWA (No 2) (2005) VSCA 298.
The worker’s solicitors were interstate and sought an extension of time to consider that proposal, which was granted.[30] There does not appear to have been any formal response made.
[30] Exhibit SDC3.
The hearing and the decisions of the primary judge
At the trial, the worker gave evidence and was cross-examined. There was obviously little she could say about the issues concerning the proper approach to the assessment of whole person impairment. However, the worker did not suggest that she had any pre-existing hearing impairment. She explained the noisy environment in which she had worked before the electrical business ran into financial trouble and closed.[31]
[31] Transcript 22 March 2023, p 52.
The ENT evidence
Dr Diamantis then gave evidence, explaining why he thought his approach resulted in a “reasonable number”.[32] Under cross-examination, Dr Diamantis explained why he only used “3,000 to 4,000 hertz”,[33] before confirming that all of the ENT surgeons had agreed that the “picture is not consistent with noise induced hearing loss, that there is some other factor at play”.[34]
[32] Transcript 22 March 2023, p 57.
[33] Transcript 22 March 2023, p 57.
[34] Transcript 22 March 2023, p 58.
After confirming that it was likely the worker had otosclerosis, Dr Diamantis agreed that this affected the same frequencies as noise induced hearing loss and tended to “start at 2,000 hertz or thereabouts”.[35] Dr Diamantis agreed that the ENT surgeons had selected three different methods, before criticising the method adopted by Dr Tomich as not being a “valid method”.[36]
[35] Transcript 22 March 2023, p 59.
[36] Transcript 22 March 2023, p 60.
As for the use by Dr Hains of the Australian/New Zealand Standard, Dr Diamantis said that he was not particularly familiar with it and did not use it.[37] Dr Diamantis referred to the absence of any reference to that standard in the Guidelines and that the notes in it suggested that it was not applicable to individuals. The numbers which were produced were “substantially lower than those in every other piece of research”.[38]
[37] Transcript 22 March 2023, p 60.
[38] Transcript 22 March 2023, p 61.
In response to the primary judge, Dr Diamantis agreed that noise induced hearing loss could be assessed by reference to “noise dose and duration” and, in re‑examination, he agreed that the response to noise dose and duration varied from individual to individual.[39]
[39] Transcript 22 March 2023, pp 63-64.
Later that day, Dr Hains was called for evidence.
It is significant that the criticisms made by Dr Diamantis regarding the use of the Australian/New Zealand Standard were not put to Dr Hains for his response in cross-examination. Indeed, very little information was extracted from the ENT surgeons about otosclerosis or the Australian/New Zealand Standard, generally.
Under cross-examination, Dr Hains emphasised that he had selected 95 decibels under table F3 of the Australian/New Zealand Standard which was likely to be “far more than a person would have who is doing both secretarial … and noisy work”.[40] Dr Hains was concerned that there was difficulty determining exactly how much noise was involved in the worker’s workplace and, from his experience, a person working in similar circumstances was “rarely exposed to enough noise to cause hearing loss”.[41]
[40] Transcript 22 March 2023, p 68.
[41] Transcript 22 March 2023, pp 68-69.
Dr Hains said the risk tables he used showed the risk to hearing and operated as a guide.[42] Whilst Dr Hains was cross-examined about certain noise exposures and their effect at certain frequencies, no attempt was made to delineate between what one might expect from the consequences of noise as distinct from the consequences of otosclerosis at those frequencies.[43]
[42] Transcript 22 March 2023, p 69.
[43] Transcript 22 March 2023, p 70.
Dr Hains was asked about the approach taken by Dr Tomich, and he described it as “entirely arbitrary”. Dr Hains was not taxed about that conclusion:[44]
DR HAINS: Well, that’s entirely arbitrary.
[COUNSEL]: It’s arbitrary, yes.
[44] Transcript 22 March 2023, p 71.
The same criticism presumably applied to the approach of Dr Diamantis, but Dr Hains was not asked about the approach of Dr Diamantis.
Dr Hains then explained that he was trying to “arrive at a reasonable way to adjust” and that the “absolute numbers” were effectively “rubbish” because they did not assist with determining “a reasonable way to come to a conclusion”.[45] The “absolute numbers” appear to be the overall hearing loss at various frequencies produced by using NAL report. The cross-examination concluded with questioning about Dr Hains’ degree of confidence concerning the existence of otosclerosis.[46]
[45] Transcript 22 March 2023, p 72.
[46] Transcript 22 March 2023, pp 72-73.
The reasons of the primary judge – impairment assessment
In the course of his reasons, the primary judge referred to the criticisms made by the worker concerning the approach taken by Dr Hains, including his failure to “adopt the subtraction method” prescribed by Chapter 1.29 of the Guidelines.
The primary judge held that that chapter did not apply because there was “no pre-existing injury, as distinct from other cause” and that the more appropriate reference was to s 22(8)(b), which provided that “impairments from unrelated injuries or causes are to be disregarded in making an assessment”.[47] The primary judge then referred to Chapter 9.2 of the Guidelines which provided:[48]
The degree of hearing impairment not caused by exposure to noise is assessed and considered when determining the degree of noise induced/work-related hearing impairment. While this requires medical judgement on the part of the examining assessor, any non-work-related impairment should be recorded in the report.
[47] Primary judge 1, [26].
[48] Primary judge 1, [26]-[27]. The primary judge noted that this was now Chapter 9.3 of the second edition of the Guidelines.
The primary judge found that Dr Hains used an approach which looked at the dose and duration of noise, being the volume and the years of exposure, and that this was accepted by Dr Diamantis as an alternative assessment method.[49] The primary judge concluded:[50]
At the end of the day, it is apparent that all three specialists in arriving at the individual assessments exercised and relied upon their clinical judgment and expertise to determine the extent of any deduction. Even Dr Diamantis, who criticised a non-objective evidence‑based approach, adopted a clinical judgment by limiting the [noise induced hearing loss] component to the 3000Hz and 4000Hz levels, as apparently being a compromise approach notwithstanding some of the loss of those levels was not [noise induced hearing loss] and some of the loss at the 2000Hz levels [sic] was.
Where I am simply faced with a difference of clinical judgment, it cannot be said that the assessment made formally pursuant to s 22 should not be given effect to if the “one assessment rule” is to be applied. Dr Hains adopted one of the accepted methods of assessment. He used a risk table not shown by the applicant to be inapplicable.
[49] Primary judge 1, [28].
[50] Primary judge 1, [29]-[30].
The primary judge refused to refer the matter to an independent medical adviser under s 121 of the Act and confirmed the determination made by the Corporation.
The reasons of the primary judge – costs
On the question of costs, the primary judge delivered a second set of reasons concerning the operation of s 106(7) of the Act, which provides:
If the amount of permanent impairment compensation is disputed by a worker and the amount the Tribunal awards is less than, or the same as, or less than 10% above, an amount offered by the relevant compensating authority to settle the matter before the matter proceeds to a hearing before the Tribunal, the worker is not entitled to costs under this section (and evidence of an offer made in the course of a compulsory conference or mediation is admissible (without the consent of all parties) in subsequent proceedings for the purpose of applying this provision).
The parties approached the construction of s 106(7) of the Act on the basis that, if s 106(7) applied, there was no scope for the exercise of any residual discretion.[51] Whether that approach is correct was not argued on this appeal.
[51] Primary judge 2, [2]-[3].
Before the primary judge, the Corporation argued that the worker should be denied her costs “entirely or alternatively in part”.[52] It did not, as foreshadowed in its pre-trial correspondence dated 22 December 2022, seek an order for its own costs. The worker contended that s 106(7) of the Act did not apply because what was in issue was a challenge to the methodology used by Dr Hains rather than the assessment of permanent impairment.
[52] Primary judge 2, [1].
The primary judge rejected the worker’s contentions and accepted those of the Corporation, finding that the application for review sought the review of a reviewable decision within the meaning of s 97 of the Act, being “a decision as to a permanent impairment matter”. The primary judge explained that the permanent impairment assessment made by Dr Hains was “not a decision” and that the only “decision” was that made by the Corporation to determine the applicant’s compensation entitlement based on the assessment made by Dr Hains.[53]
[53] Primary judge 2, [9].
In addition, the primary judge rejected the contention that all that the worker sought was the referral of the matter to an independent medical adviser under s 121 of the Act because that would not have concluded the proceedings.[54]
[54] Primary judge 2, [10]-[11].
In circumstances where the primary judge rejected the application for a referral to an independent medical adviser, the permanent impairment assessment determined by the Corporation remained. The worker failed to improve her position “at all, let alone by 10%”.[55] Whilst the primary judge accepted that the Corporation maintained its determination, this represented an “offer” for the purposes of s 106(7) because that provision did not require that the offer be different from the original determination.[56]
[55] Primary judge 2, [11].
[56] Primary judge 2, [12].
Alternatively, the primary judge accepted that the Corporation made an offer in writing to pay costs to a specified date and that this represented an offer within the meaning of s 106(7) before the matter proceeded to a hearing before the Tribunal.[57]
[57] Primary judge 2, [13], citing Envirogen Industrial Services (Aust) Pty Ltd v Return to Work Corporation of South Australia [2020] SAET 101, [71] (Envirogen).
On the basis that s 106(7) was expressed in mandatory terms, the primary judge ordered that the applicant was not entitled to her costs of the proceedings.[58]
[58] Primary judge 2, [14]-[15].
The decision of the Full Bench
The Full Bench allowed the appeal, finding that the primary judge made errors of law in connection with the issues concerning the proper method of assessing impairment as well as in connection with the proper construction of s 106(7) of the Act.
The reasons of the Full Bench – impairment assessment
Judge Calligeros, with whom Rossi DPJ and Eaton DP agreed, delivered the ruling on the first issue concerning the assessment of permanent impairment. Calligeros DPJ found that Chapter 1.29 of the Guidelines applied because the worker’s otosclerosis concerned a pre-existing impairment.[59] However, and as has been seen, the worker did not give evidence to that effect and the primary judge did not make that finding. There was no appeal available against his factual finding that there was no pre-existing impairment but, rather, an unrelated cause.[60]
[59] Full Bench, [7].
[60] Primary judge 1, [26].
After addressing the submissions of the parties, Calligeros DPJ set out clause 1.2 of the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th Edition (AMA5):
When evaluating an individual, the physician has two options: consider the individual’s healthy preinjury or pre-illness state or the condition of the unaffected side as “normal” for the individual if this is known, or compare that individual to a normal value defined by population averages of healthy people. The Guides uses both approaches. Accepted population values for conditions such as extremity range-of-motion or lung function are listed in the guides; it is recommended that the physician use those values as detailed in the Guides when applicable. In other circumstances, for instance, where population values are not available, the physician should use clinical judgment regarding normal structure and function and estimate what is normal for the individual based on the physician’s knowledge or estimate of the individual’s preinjury or pre-illness condition.
It can be seen that AMA5 suggests the use of the individual’s pre-injury state, if known, or alternatively it suggests comparing the individual to a “normal value defined by population averages of healthy people”.
In this case the assessment could not be made by reference to a “pre-injury state”, and it would seem that Dr Hains considered that the Australian/New Zealand Standard indicated a “normal value”, or guide, based on a form of population average of otologically normal women. Again, whether or not this was in fact the case is not known because Dr Hains was never challenged about these matters in evidence.
Whilst Calligeros DPJ accepted that cl 1.2 of AMA5 could be read to support the use of “general population data”, his Honour accepted the worker’s submission that Chapter 9 of the Guidelines required that the assessment of noise induced hearing loss be based on the worker’s hearing loss.[61] After reviewing various chapters of the Guidelines, particularly the requirement that the Guidelines prevail over AMA5 to the extent of any inconsistency,[62] Calligeros DPJ concluded that it was not open to Dr Hains to use general population data and the tables in the Australia/New Zealand Standard to assess the worker’s binaural hearing impairment:[63]
… While there will be cases where the [Guidelines] and AMA5 are silent about how to assess impairment, and an assessor may then need to exercise judgement about the appropriate method to use, this was not such a case.
[61] Full Bench, [25].
[62] Full Bench, [26], referring to Chapter 1.3 of the Guidelines.
[63] Full Bench, [40].
Judge Calligeros concluded that Dr Hains had failed to assess the worker’s degree of permanent impairment from employment with her employer.[64]
[64] Full Bench, [41].
Whilst Calligeros DPJ did not find it necessary to deal with how an allowance for prior impairment should be made, he referred to the reasons of the majority in Paschalis v Return to Work Corporation of South Australia,[65] before concluding:[66]
In my view, the process of deducting or subtracting prior impairment when assessing hearing loss means making a clinical judgement about whether to remove some or all of the loss at certain frequencies to the extent that loss is not considered to be caused by exposure to noise at work. It follows that I accept Mr Warren’s submission that in addition to assessing hearing impairment in an impermissible way, the assessment failed to comply with [Chapter] 1.29 of [the Guidelines] and ss 22(8)(b) and (g) of the … Act.
[65] Paschalis v Return to Work Corporation of South Australia (2021) 140 SASR 77, [198] (Livesey and Bleby JJ) (Paschalis); Redman v Return to Work Corporation of South Australia (2021) 139 SASR 131, [140]-[145] (Livesey JA, with whom Bleby JA agreed).
[66] Full Bench, [45].
In these circumstances, the determination based on the impairment assessment of Dr Hains was set aside and an order was made that a permanent impairment assessment be undertaken by an independent medical adviser.[67] Presumably it was expected that that adviser would address non-work-related impairment by adopting a method similar to that suggested by the Full Bench.[68]
[67] Full Bench, [46], citing Kaye v Return to Work SA [2018] SAET 143; Ridley v Return to Work Corporation of South Australia [2021] SAET 116; Spielhagen v Return to Work Corporation of South Australia [2022] SAET 174.
[68] See Full Bench, [45].
The reasons of the Full Bench – costs
Judge Rossi, with whom Calligeros DPJ and Eaton DP agreed, delivered the ruling on the second issue concerning the question of costs. His Honour commenced with the relevant statutory regime and the objectives of the Act as found in s 3(1):[69]
[69] Full Bench, [52].
3—Objects of Act
(1)The object of this Act is to establish a scheme that supports workers who suffer injuries at work and that has as its primary objective to provide early intervention in respect of claims so as to ensure that action is taken to support workers—
(a)     in realising the health benefits of work; and
(b)     in recovering from injury; and
(c)     in returning to work (including, if required, after retraining); and
(d)     in being restored to the community when return to work is not possible.
…
Judge Rossi observed that, usually, a worker is entitled to recover an award of costs against a compensating authority in connection with proceedings for the resolution of a reviewable decision made by a compensating authority.[70] However, the entitlement to costs under s 106(1)(b) of the Act is rendered subject to sub‑sections 106(3) and 106(7).
[70] Full Bench, [56].
By s 106(3) of the Act, the Tribunal has a discretion in the event of a finding that a party has acted unreasonably or frivolously or vexatiously. The Tribunal may decline to make an award of costs in favour of a party, make an award of costs against a party or reduce the costs awarded. Rossi DPJ contrasted s 106(7), which appeared to result in a mandatory order that the worker was not entitled to costs. His Honour observed, by way of obiter dictum, that where both ss 106(3) and 106(7) applied, s 106(7) took precedence as the specific provision.[71]
[71] Full Bench, [58], citing Perpetual Executors v Federal Commissioner of Taxation (1948) 77 CLR 1, 29 (Dixon J).
After considering the decision of the primary judge, the ground of appeal and the submissions of the parties, Rossi DPJ considered Fitzgerald v Return to Work Corporation of South Australia, where another judge had construed s 106(7) and declined to follow aspects of the reasoning of the primary judge.[72] It was held that any offer required explicit reference to s 106(7) and, without it, the Corporation could not rely on it.[73]
[72] Fitzgerald v Return to Work Corporation of South Australia [2023] SAET 60, [11]-[18] (Kelly DPJ) (Fitzgerald).
[73] Fitzgerald [2023] SAET 60, [19] (Kelly DPJ).

Judge Rossi then referred to the decision of the Full Court in Return to Work Corporation v Agnew,[74] where the historical approach to workers compensation legislation that required that it be given a beneficial construction was questioned given the express objects now found in s 3(1) of the Act.[75]
[74] Return to Work Corporation v Agnew [2020] SASCFC 79 (Stanley J, with whom Nicholson and Peek JJ agreed).
[75] Return to Work Corporation v Agnew [2020] SASCFC 79, [28] (Peek, Stanley and Nicholson JJ); see also The State of South Australia (in Right of the Department for Education) v Van Hatten (No 2) (2020) 137 SASR 299, [67] (Parker J, with whom Kourakis CJ and Tilmouth AJ agreed).
After referring to prior provisions, the s 22 scheme for the assessment for permanent impairment and why there was no discretion available under s 106(7), Rossi DPJ concluded that it was necessary for the compensating authority to offer a “positive amount to compromise”:[76]
The strict outcome of s 106(7) requires a dispute by a worker of the amount of permanent impairment compensation determined, an offer by the compensating authority of a positive amount to compromise the amount of permanent impairment compensation and a failure by the worker to recover more than 10% of the amount offered by award from the Tribunal.
The submission of the appellant that s 106(7) could not have application because the proceedings concerned the methodology of assessment of permanent impairment adopted by Dr Hains, the determination did not provide an entitlement to lump sum compensation and the remedy sought was a referral for independent medical assessment, should be rejected.
[76] Full Bench, [91]-[92].
Judge Rossi held that the worker’s submission that there was no offer of a positive amount where the 5% whole person impairment threshold had not been reached was not the appropriate focus. Rather, his Honour accepted that the worker was disputing the amount of permanent impairment compensation and, as a result, the focus had to be upon “whether a relevant amount was offered” by the Corporation before the hearing.[77]
[77] Full Bench, [104].
Judge Rossi concluded that the facts did not disclose any offer by the Corporation to compromise the matter before the hearing:[78]
… The offer of the [Corporation] was to have its determination of zero entitlement confirmed and for the [worker’s] representation costs to be paid to that point in time. At most, it was an offer to compromise the costs of the proceedings but not the subject matter of the proceedings.
[78] Full Bench, [107].
Judge Rossi was reinforced in that view by the text of s 106(7) which referred to “an amount offered”, where it was “at least awkward if not illogical” to consider “an amount that is 10% above zero”.[79] His Honour rejected the submission of the Corporation that there was no ability to make an offer of compromise where the entitlement was either nil or a specified lump sum,[80] because it was open to the Corporation to make what amounted to a compromise offer “between the respective positions of the parties”:[81]
… [Section] 177 of the … Act provides that the [Corporation] or an employer of a worker may make a payment to a worker where it does not constitute an admission of liability or estop a subsequent denial of liability. The [Corporation] could have offered, prior to the hearing, a positive lump sum and a specific amount between the respective positions of the parties.
[79] Full Bench, [108].
[80] Full Bench, [109].
[81] Full Bench, [110].
Having found that the Corporation made no offer to settle the matter, Rossi DPJ concluded that s 106(7) did not apply.[82]
[82] Full Bench, [111].
As for the Corporation’s alternative contention that it was entitled to deny the worker her costs by reference to the principles in Calderbank v Calderbank, Rossi DPJ rejected the proposition that the authority on which the primary judge had relied provided a proper basis for concluding that an offer confined to a payment of costs may constitute an amount offered to settle a matter within the ambit of s 106(7) of the Act.[83]
[83] Full Bench, [113], referring to Envirogen [2020] SAET 101, [69] (Rossi DPJ).
Accordingly, the decision of the primary judge as to costs was set aside.
The grounds of appeal
By amended grounds of appeal dated 15 March 2024, the appellant raised seven grounds of appeal:
1.The Full Bench erred in law in concluding that it was not open to Dr Hains, in conducting an assessment of binaural noise induced hearing loss, to utilise~~have regard to~~ general population and/or statistical data and in particular theo tables in the Australia/New Zealand Standard (AS/NZS 1269.4:2014) in the course of exercising his medical judgment as to the extent to which the Respondent’s binaural hearing loss was ~~or was~~ not work related. ~~caused.~~
2. The Full Bench erred in law in concluding that having regard to such data and/or tables was not ~~either intended nor~~ authorised by the Impairment Assessment Guidelines (the Guidelines) and/or the Act for such purpose.
2.3. The Full Bench erred in law in holding that the only method of disregarding an unrelated impairment permitted by the Guidelines and the Act was to remove some or all of the loss at certain frequencies to the extent that the loss ~~is not considered to be~~ at those frequencies is not considered to be work related
3.4. The Full Bench erred in law in concluding that the assessment by Dr Hains failed to comply with cl 1.29 of the Guidelines and/or section 22(8)(b) & (g) of the Act.
4.5. The Full Bench accordingly erred in law in setting aside the decision of DDPJ Crawley confirming the Appellant’s determination.
6. The Full Bench erred in law in concluding that an offer which maintained the Appellant’s determination that the Respondent had a nil entitlement and offered to pay her costs of the proceedings was not an offer to settle the matter within the meaning of section 106 (7) of the Act. ~~the words “an amount offered” within the meaning of section 106(7) of the Act required an amount to be offered for permanent impairment compensation.~~
5.7. The Full Bench erred in law in concluding that DPJ Cawley erred in law by treating the offer to compromise as being an offer within the ambit of section 106(7) of the Act.
6.The Full Bench erred in law in concluding that DPJ Cawley erred in law by treating the offer to compromise as being an offer within the ambit of s 106(7) of the Act. deciding that the offer made by the Appellant to the Respondent was not “an amount offered” within the meaning of section 106(7)
Respectfully, these grounds are a little difficult to follow. This Court has from time to time emphasised the need to articulate questions of law in connection with appeals of this kind.[84] Describing errors in the reasoning of the primary judge or, for that matter, in the reasoning of the Full Bench, does not necessarily identify relevant questions of law for determination by the Court of Appeal.
[84] Kimber v Chief Executive, Department of Treasury and Finance, for Chief Executive , Department for Health and Wellbeing (SA) Ambulance Service [2021] SASCA 133, [18]-[43] (Livesey P, Bleby and David JJA); Brown v Department for Education [2023] SASCA 138, [3] (Livesey P, Bleby JA and Stanley AJA); Return to Work Corporation of South Australia v Wastell [2024] SASCA 98, [5]-[8] (Livesey ACJ, Bleby and David JJA).
As will be seen, it is necessary only to address two propositions.
These can be framed as two questions of law, essentially isolating what it was that the Full Bench found. These concern whether the primary judge made the two errors on questions of law suggested by the Full Bench.
The first is whether it was open to the primary judge to permit the Australian/New Zealand Standard to be used by a medical assessor when assessing permanent impairment to hearing under s 22 of the Act and Chapter 9 of the Guidelines.
The second question of law is whether s 106(7) of the Act, properly construed, requires that the Corporation offer a “positive amount” by way of compensation before it may be said that there was “an amount offered … to settle the matter”.
The articulation of questions of law such as these is essential to the proper conduct of an appeal limited to correcting errors concerning questions of law. They are essential in this Court, and they are essential in the Full Bench. Good practice requires that they be articulated in the appeal notice as the questions of law relevantly arising for decision. Once the relevant questions of law have been identified, the grounds of appeal can then be articulated. In this case that may be done in the following way:
1.The Full Bench erred on a question of law in ruling that it was not open to the primary judge to permit the Australian/New Zealand Standard to be used by a medical assessor when assessing permanent impairment to hearing under s 22 of the Act and Chapter 9 of the Guidelines.
2.The Full Bench erred on a question of law in ruling that the primary judge erred in construing s 106(7) of the Act, by failing to require that the Corporation offer a “positive amount” by way of compensation before it could be said that there was “an amount offered … to settle the matter”.
The relevant provisions of the Act
Before addressing these redrafted grounds, it is first helpful to note the relevant provisions of the Act. First, s 22 of the Act determines the scheme for the assessment of whole person impairment:
22—Assessment of permanent impairment
(1)This section sets out a scheme for assessing the degree of impairment (being whole person impairment) that applies to a work injury that results in permanent impairment.
(2)     An assessment under this section—
(a)     must be made in accordance with the Impairment Assessment Guidelines; and
(b)     must be made by a medical practitioner who holds a current accreditation under this section.
(3)The Minister will publish guidelines (the Impairment Assessment Guidelines) for the purposes of the assessment of permanent impairment (being whole person impairment).
(4)     The guidelines under subsection (3)—
(a)     must be published in the Gazette; and
(b)     may adopt or incorporate the provisions of other publications, whether with or without modification or addition and whether in force at a particular time or from time to time; and
(c)     must incorporate a methodology that arrives at an assessment of the degree of impairment of the whole person (whole person impairment); and
(d)     may specify procedures to be followed in connection with an assessment; and
(f)     may be amended or substituted by the Minister from time to time.
(5)The Minister must, before publishing or amending the Impairment Assessment Guidelines, consult with professional associations representing the class or classes of medical practitioners who hold accreditations under this section.
(6)An amendment or substitution in relation to the Impairment Assessment Guidelines under subsection (4)(f) will take effect from a date specified by the Minister as part of the amendment, or in the substituted guidelines, as the case may be (the commencement date).
(6a)Subject to subsection (6b), if the Impairment Assessment Guidelines are amended or substituted, the amendment or substituted guidelines (as the case may be) will apply in relation to an injury regardless of whether the injury occurred before or on or after the commencement date.
(6b)If the Impairment Assessment Guidelines are amended or substituted, the guidelines in operation immediately before the commencement date of the amendment or substitution will continue to apply in relation to the assessment of permanent impairment of a worker's injury if, before that commencement date—
(a)     the worker's injury satisfies the requirements of subsection (7)(a); and
(b)     the worker attended an appointment with an accredited medical practitioner selected in accordance with the Impairment Assessment Guidelines for the purposes of an assessment of permanent impairment of that injury.
(7)An assessment of the degree of impairment resulting from an injury—
(a)     must not be made—
(i)    until there is evidence that the injury has stabilised; or
(ii)     unless—
(A)the injury is a condition prescribed for the purposes of this subparagraph by a regulation made on the recommendation of the Minister (see subsection (7a)); and
(B)any requirement prescribed by the regulations has been satisfied; or
(iii)    unless the injury is a terminal condition;
(b)     must, subject to subsection (8), be based on the worker's current impairment as at the date of assessment, including any changes in the signs and symptoms following any medical or surgical treatment undergone by the worker in respect of the injury; and
(c)     must be made by an accredited medical practitioner selected in accordance with the Impairment Assessment Guidelines.
Editorial note—
Section 22(7)(a)(ii) had not come into operation at the date of the publication of this version.
(8)An assessment must take into account the following principles:
(a)     if a worker presents for assessment in relation to injuries which occurred on different dates, the impairments are to be assessed chronologically by date of injury;
(b)     impairments from unrelated injuries or causes are to be disregarded in making an assessment;
(c)     impairments from the same injury or cause are to be assessed together or combined to determine the degree of impairment of the worker (using any principle set out in the Impairment Assessment Guidelines);
(d)     impairment resulting from physical injury is to be assessed separately from impairment resulting from psychiatric injury;
(e)     in assessing impairment resulting from physical injury or psychiatric injury, no regard is to be had to impairment that results from consequential mental harm;
(f)     in assessing the degree of permanent impairment resulting from physical injury, no regard is to be had to impairment that results from a psychiatric injury or consequential mental harm;
(g)     any portion of an impairment that is due to a previous injury (whether or not a work injury or whether because of a pre existing condition) that caused the worker to suffer an impairment before the relevant work injury is to be deducted for the purposes of an assessment, subject to any provision to the contrary made by the Impairment Assessment Guidelines;
(h)     assessments are to comply with any other requirements specified by the Impairment Assessment Guidelines.
Note—
The Parliament confirms that this subsection is to be interpreted and applied in accordance with the principles enunciated in the reasons of the Full Court of the Supreme Court in Return to Work Corporation of South Australia v Summerfield [2021] SASCFC 17.
(9)A number determined under the Impairment Assessment Guidelines with respect to a value of a person's degree of whole person impairment may be rounded up or down according to any principle set out in the Impairment Assessment Guidelines.
(9a)For the purposes of this section, an assessment (or parts of an assessment) may be undertaken by more than 1 accredited medical practitioner and their assessments combined so as to create 1 assessment.
(10)Subject to subsections (12) to (15) (inclusive), if—
(a)     a worker has had a whole person impairment assessment under this section; and
(b)     another impairment from the same injury or cause develops or manifests itself after that assessment,
then that other impairment—
(c)     will be assessed separately; and
(d)     —
(i)will not be combined in any respect (whether under this section or sections 56 or 58) with the impairment or impairments that have already been assessed; but
(ii)may be combined with any other impairment from the same injury or cause that has also developed or manifested itself after the earlier assessment.
Example—
A worker suffers impairments arising from injuries A and B which both arise from the same cause. The worker has those impairments assessed under section 22. After the assessment of the impairments arising from injuries A and B, the worker develops further impairments from injuries C and D which arise from the same cause as injuries A and B. The worker is entitled to be assessed for the impairment arising from injuries C and D and to combine the impairments from those injuries. However, the worker cannot combine the impairments arising from injuries C and D with the impairments arising from injuries A and B under this Act.
(12)Subsection (10) does not affect the requirement under subsection (8)(d) for impairment resulting from physical injury to be assessed separately from impairment resulting from psychiatric injury.
(13)Subsection (10) operates subject to any assessment made under Part 8 (and the exercise of any adjudicative function by the Tribunal or a court).
(14)An interim decision under section 21 will not be taken to constitute an assessment for the purposes of subsection (10).
(15)Subsection (10) does not apply in any circumstances prescribed by the regulations.
(16)For the purposes of this section, the Minister must establish an accreditation scheme after consultation with the Advisory Committee.
(17)The accreditation scheme—
(a)     will provide for the accreditation of medical practitioners who are determined, under the scheme, to be suitably qualified to undertake assessments for the purposes of this section; and
(b)     will work on the basis that the Minister will issue the accreditations; and
(c)     may provide for the suspension or cancellation of accreditation by the Minister on specified grounds; and
(d)     may be amended or substituted by the Minister from time to time after consultation with the Advisory Committee.
(18)An accreditation will be issued by the Minister—
(a)     for a period specified by the Minister; and
(b)     on conditions determined by the Minister.
(19)Sections 10 (other than subsection (1)) and 10A of the Legislative Instruments Act 1978 apply to the publication, amendment or substitution of the Impairment Assessment Guidelines under this section (and a reference in section 10 or 10A to a regulation will be taken to be a reference to the Impairment Assessment Guidelines, the amendment or the substitution (as the case requires)).
Second, s 106 of the Act addresses the ways in which the Tribunal may award costs:
106—Costs
(1)A party (other than the relevant compensating authority) is entitled, subject to this Part and to limits prescribed by regulation, to an award against the relevant compensating authority for the party's reasonable costs of—
(a)     any initial reconsideration of a decision under Division 4; and
(b)     any subsequent proceedings for resolution of the matter before the Tribunal.
(2)     Costs may only be awarded to cover—
(a)     the cost of representation by a legal practitioner or an officer or employee of an industrial association; and
(b)     costs of a kind authorised by the regulations that were reasonably incurred.
(3)     If the Tribunal is of the opinion that a party—
(a)     has acted unreasonably—
(i)    in bringing proceedings before the Tribunal; or
(ii)in view of an assessment or recommendation of a member of the Tribunal under section 43(13) of the South Australian Employment Tribunal Act 2014; or
(iii)without limiting subparagraph (ii)—in failing to discontinue or settle any proceedings before the conclusion of the hearing of a matter; or
(iv)in relation to any other aspect of the conduct of proceedings before the Tribunal; or
(b)     has acted frivolously or vexatiously in bringing or in relation to the conduct of proceedings before the Tribunal,
the Tribunal may—
(c)     decline to make an award of costs in favour of the party and may further (if it thinks fit) make an award of costs against the party; or
(d)     reduce the amount of the award of costs to which the party would otherwise have been entitled.
(4)Subject to subsection (5), an award of costs to cover professional advice or assistance may, if the Tribunal considers appropriate, be made in favour of the person who provided the professional advice or assistance.
(5)An award of costs to cover the cost of representation by an officer or employee of an industrial association are payable to the industrial association.
(6)An award of legal costs cannot exceed 85% of the amount that would be allowable under the relevant Supreme Court scale if the proceedings were in the Supreme Court.
(7)If the amount of permanent impairment compensation is disputed by a worker and the amount the Tribunal awards is less than, or the same as, or less than 10% above, an amount offered by the relevant compensating authority to settle the matter before the matter proceeds to a hearing before the Tribunal, the worker is not entitled to costs under this section (and evidence of an offer made in the course of a compulsory conference or mediation is admissible (without the consent of all parties) in subsequent proceedings for the purpose of applying this provision).
(8)Section 57 of the South Australian Employment Tribunal Act 2014 does not apply to proceedings before the Tribunal under this Act.
The determination of the appeal
Questions of law

The question concerning costs raises what is a classical question of law, because it is concerned with the proper interpretation of a provision of the Act.
It may be accepted that there is an understandable attraction in the notion that the Corporation must offer “an amount” to settle a matter before a hearing in order to bring the case within s 106(7).[113] However, it is necessary to look at the operation of s 106(7) in its statutory context, having regard to all of the words used in that provision.
[113] The same approach was taken in Dodman v Return to Work Corporation of South Australia (Knollview Pty Ltd) [2019] SAET 164, [5]-[6] (Hannon DPJ).
The statutory context assumes that there be a whole person impairment assessment by a sole medical assessor which, absent error, will normally be binding. That assessment will then form the centrepiece for the determination of impairment by the compensating authority.
In this case the assessment of impairment at 4% made by Dr Hains meant that the 5% threshold in s 58(2) was not reached, and the Corporation determined that no compensation for non-economic loss by way of a lump sum was available to the worker for noise induced hearing loss.[114]
[114] The Act, s 58(2): “An entitlement does not arise under this section if the worker’s degree of whole person impairment from physical injury is less than 5%”.
It was that decision which was reviewable pursuant to s 97 of the Act, and which could be made the subject of an initial reconsideration, giving rise to a costs award under s 106(1)(a) and, ultimately, to proceedings for the resolution of the matter, and an award of costs under s 106(1)(b) of the Act. In the ordinary case, a worker will obtain an order for costs regardless of the outcome.[115]
[115] That is a point of difference with many interstate schemes.
The ordinary case may, however, yield to the exceptions set out in the balance of s 106, particularly ss 106(3) and 106(7). Sub-section 106(3) comprises cases where the Tribunal is of the opinion that a party has acted unreasonably, frivolously or vexatiously in, for example, bringing or conducting proceedings before the Tribunal. In those events, and in the exercise of its discretion, the Tribunal may decline to award costs in favour of a party, it may award costs against a party, or it may reduce the award of costs made to a party.
Clearly, s 106(7) is intended to operate differently when compared with the ordinary approach taken to an award of costs made under s 106 of the Act. It is intended to encourage the resolution of disputes concerning permanent impairment compensation having regard to the scheme for the assessment of whole person impairment established under s 22 and the Guidelines, and the potential entitlements under the Act to “serious injury” designation under s 21, and awards of compensation under s 56 (for lump sum economic loss) and s 58 (for lump sum non-economic loss).
The presence of s 58(2) shows that the scheme contemplates that, from time to time, an impairment assessment may warrant what amounts to a “nil assessment” or no entitlement to compensation where the 5% threshold is not reached. The same is true of the counter-part provision in s 56(2) of the Act. Indeed, it is that “amount” which may be the subject of a permanent impairment compensation dispute, as occurred in this case. Accordingly, one must read the words of the provision with that potential kind of dispute in mind.
It is within that statutory context that one must consider all of the words used in s 106(7).[116] To recapitulate, s 106(7) of the Act provides:
If the amount of permanent impairment compensation is disputed by a worker and the amount the Tribunal awards is less than, or the same as, or less than 10% above, an amount offered by the relevant compensating authority to settle the matter before the matter proceeds to a hearing before the Tribunal, the worker is not entitled to costs. …
[116] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 195 CLR 355, [69]-[71] (McHugh, Gummow, Kirby and Hayne JJ); NL v Chief Executive of the Department for Child Protection & Ors [2023] SASCA 20, [112]-[115] (Livesey P, Bleby JA and Buss AJA).
It may be seen that s 106(7) requires:
1.A dispute concerning the amount of permanent impairment compensation determined by the compensating authority to be due to a worker.
2.An amount offered by the relevant compensating authority to settle the matter before the matter proceeds to a hearing before the Tribunal.
3.A hearing of that dispute in the Tribunal.
4.An award made by the Tribunal following the hearing of that dispute.
5.The award made by the Tribunal is “less than, or the same as, or less than 10% above”, the amount offered by the compensating authority.
There is a potential issue concerning how to read the reasons of the primary judge. It has been suggested that those reasons should be read in such a way as to suggest that no offer need be made by the Corporation, and that all that was required was the existence of a determination made by the Corporation.[117] That is not the preferable view of the reasons. The reasons should be read as founding on the letter dated 22 December 2022 for both the ruling made about s 106(7), as well as the ruling made on the alternative approach, based on Calderbank v Calderbank.
[117] Fitzgerald [2023] SAET 60, [11] (Kelly DPJ).
In this case, the “amount of permanent impairment compensation” which was “disputed” was, as the Full Bench described it, “zero”.
It may be accepted that in some contexts, the word “amount” conveys the idea of a positive sum or amount and does not include zero. It may also be accepted, as the worker argues, that there is some textual or contextual support for this meaning in that s 106(7) references an “amount of … compensation” and an “amount the Tribunal awards”, and in its use of a formula which operates somewhat awkwardly when the amount includes zero. However, as elaborated upon below, there are other contextual considerations which point to a broader meaning of “amount” in the present context.
In addition, if s 106(7) were to be read as conveying this meaning of “an amount”, then any difference in its operation from that contended for by the Corporation on appeal could be circumvented by the simple expedient of offering a trivial sum – even $1 – by way of compensation. It is most unlikely the legislature intended to encourage that approach to a provision designed to promote settlement by making an entitlement to costs turn on an offer of that kind (as opposed to an offer of “zero”).
Whilst one might not ordinarily consider zero to be “an amount”, that must yield to that which may be the subject of a dispute under the Act, and which may also be the subject of an award made by the Tribunal. As “zero” was the amount of permanent impairment compensation which was in dispute, and that same amount was offered by the compensating authority in its pre-hearing letter, these pre-requisites for the operation of s 106(7) of the Act were satisfied.
The reference to “the matter” is important. The potential breadth of this term is well-known[118] and, in this case, it is limited only by the statutory context and the potential range of issues that may be litigated once permanent impairment compensation has been determined by the compensating authority. Those issues are not confined to disputes about the amount of recoverable compensation, though they may underpin and inform the way in which any amount has been determined by the compensating authority or may be awarded by the Tribunal. Here, for example, the matter which was the subject of the proceedings included but was not confined to issues about the assessment conducted under s 22 and the Guidelines as well as the suggested need for referral to an independent medical adviser under s 121 of the Act.
[118] For example, Wardley Australia Ltd v Western Australia (1992) 175 CLR 514, 562 (Toohey J).
The next issue concerns what was required by way of an offer by the relevant compensating authority to settle the matter before it proceeded to a hearing before the Tribunal.
On this issue an identifiable offer is required. No particular form for that offer is mandated. Whilst it may ordinarily, and wisely, be in writing that is not strictly necessary. The offer must express a proposition capable of acceptance, where the acceptance will result in a settlement of the matter which is the subject of the proceedings. Presumably, the settlement will be capable of being reflected in orders made by the Tribunal or, at the least, a deed of settlement.
In addition, the offer must be made before the matter proceeds to a hearing in the Tribunal.
The letter dated 22 December 2022 was clearly an offer made before the hearing. Whilst it made no explicit reference to s 106(7), it was expressed to be sent “without prejudice save as to costs”. There was no requirement that the offer refer to s 106(7) in order to be effective,[119] though, here again it would be wise to include a reference to s 106(7) of the Act together with the potential consequences.
[119] Cf Fitzgerald [2023] SAET 60, [19] (Kelly DPJ).
It may be accepted that the notion of settlement does not necessarily require that an offer to settle must include an element of compromise. Strictly, a settlement involves only the resolution of a dispute.
The reference made by the Full Bench to an “offer of compromise” was apt to confuse the offer required by s 106(7) with what may be required under Calderbank v Calderbank principles at common law. In this jurisdiction there are no “formal” or “rules” offers, and the cases in other jurisdictions under different rules on these offers which suggest the need for an element of compromise may be put to one side.[120] Having said that, the intended operation of this rule in this particular statutory context is important. As has been explained, if no offer is made, and the matter proceeds to a hearing, the worker will ordinarily be entitled to costs under s 106(1)(a), regardless of the outcome.
[120] Pirrotta v Citibank Ltd (1998) 72 SASR 259; Morris v McEwin and Another (2005) 92 SASR 281, [2] (Debelle J), [34]-[36], [47] (Besanko J, in dissent), [62], [73]-[79] (White J, with whom Debelle J agreed); Cook v Flaherty (No 2) [2021] SASC 83, [9]-[11] (Livesey J); Moloney v Hayward (No 2) [2023] SASC 36 (McMillan AuxJ); Slater v Ecosol Pty Ltd (No 2) [2024] SASC 29, [93]-[117] (Blue J).
The introduction of s 106(7) may be seen as an encouragement to compensating authorities to make realistic offers, as well as an incentive to workers to accept them, if not a disincentive against rejecting them. Because the purpose of the rule is to encourage settlement, and to avoid the ordinary consequences of s 106(1)(a), the reference to “settle” should viewed as carrying with it some notion of compromise. Having said that, it follows from the potential breadth of the issues which may be raised in matters involving disputes about an “amount of permanent impairment compensation”, that the compromise need not necessarily concern the amount of compensation, though many cases may concern a dispute about what compensation has been determined, leading to scope for negotiation about what is offered by way of settlement.
The potential compromise may often concern compensation, but it may also concern other issues or other entitlements. Particularly, the element of compromise may concern a worker’s entitlement to costs, as occurred in this case. In this case, the amount of the offer was coupled with an offer in relation to costs. That is important. Had there been no offer in relation to costs, it may have been open to question whether the offer contained any element of compromise in order to settle the matter.
Accordingly, the requirements for the operation of s 106(7) were satisfied where the Corporation effectively reiterated its determination but offered to settle on the basis that the worker’s additional costs would be covered to a certain date. The Corporation’s position was that the commencement of the proceedings was unreasonable, and the worker was thereby exposed to paying costs under s 106(3). In addition, it may have been arguable that the worker could not recoup all of her costs at that stage, as there was, by that date, no hearing of “any subsequent proceedings for resolution of the matter before the Tribunal”, within the meaning of s 106(1)(b) of the Act.
As a package, by the Corporation’s letter dated 22 December 2022 the worker was offered a compromise settlement even though no amount by way of lump sum compensation was offered.
It was that “amount” against which the range of up to 10% referred to in s 106(7) had to be compared. Accordingly, and in the circumstances of this case, if the worker had succeeded in her attack on the s 22 assessment made by Dr Hains, whether she was entitled to costs would have depended upon the ultimate assessment made by the independent medical adviser. Any recovery at all would have ensured that she exceeded the 10% range.
In the circumstances of this case, the Full Bench was wrong to interpret s 106(7) as requiring that a positive amount had to be offered by way of lump sum compensation for non-economic loss before s 106(7) could operate.[121]
[121] Cf Full Bench, [91], [107]-[109].
Accordingly, the Full Bench erred on a question of law in construing s 106(7) of the Act as requiring that the compensating authority offer what might have amounted to an ex gratia payment, which may have amounted to contracting out of the Act and, in consequence, required the consent of the Corporation.[122]
[122] See Mitsubishi v Kowalski (2019) 134 SASR 1, [5]-[6], [69]-[71] (Kourakis CJ, Peek and Parker JJ); Young v Local Government Association (District Council of Peterborough) [2019] SAET 76, regarding what is now s 191 of the Act.
In these circumstances, and though it is not strictly necessary to address it, the Full Bench also erred in failing to recognise that what was offered amounted to a compromise within the principles described in Calderbank v Calderbank and subsequent cases.[123] There was an element of compromise in what was offered by the Corporation on 22 December 2022, but because of the operation and effect of s 106(7) of the Act there was no occasion for the Tribunal to consider whether it was unreasonable for the worker not to accept it.[124] Section 106(7) contains what amounts to a formula or range against which an offer is assessed, and where the worker fails to secure an award beyond that range, the worker’s failure to accept the offer is effectively regarded as unreasonable, giving rise to a denial of costs to the worker.
[123] Envirogen [2020] SAET 101, [69]-[71] (Rossi DPJ); cf Full Bench, [112]-[114]; Fitzgerald v Return to Work Corporation of South Australia [2023] SAET 60.
[124] Miwa Pty Ltd v Saintan Properties Pte Ltd (No 2) [2011] NSWCA 344, [8]-[12] (Basten JA, with whom McColl and Campbell JJA agreed).
Finally, and perhaps contrary to an observation made by the Full Bench,[125] there is no reason to think that a compensating authority is confined to an argument about denying costs to a worker under s 106(7) if there is scope to contend, for example, that a worker should pay costs under s 106(3). The potential breadth and reach of s 106(3) demonstrate that this is not a case where the general costs provision is necessarily in conflict with the specific costs provision, so that the latter must prevail.[126]
[125] Cf Full Bench, [58].
[126] As occurred with conflicting provisions in the Evidence Act 1929 (SA), addressed in Brown (A Pseudonym) v The King [2025] SASCA 40, [129] (Livesey P).
Conclusion
Leave to appeal should be granted and the appeal allowed.
The orders made by the Full Bench must be set aside and the orders made by the primary judge restored.