Robertson v WorkCover Authority of New South Wales
[2011] NSWDC 28
•28 February 2011
District Court
New South Wales
- Amendment notes
Medium Neutral Citation: Robertson v WorkCover Authority of New South Wales [2011] NSWDC 28 Hearing dates: 28 February 2011 Decision date: 28 February 2011 Before: Neilson DCJ Decision: 1)I make an award for the Plaintiff for $11,250 for nine per cent whole person impairment pursuant to s 10D of the Workers Compensation (Bushfire, Emergency and Rescue Services) Act 1987 .
2)I order the Defendant to pay the Plaintiff's costs.
Catchwords: RESIDUAL JURISDICTION - statutory compensation - volunteer bushfire fighter - claim for hearing loss - whether working as a volunteer bushfire fighter exposed the claimant to noise sufficient to induce boilermaker's deafness or deafness of the like origin - whether at the time he made his claim for boilermaker's deafness, the claimant's "last noisy employer" was the Rural Fire Service of NSW - issues as to quantification of the hearing loss Legislation Cited: Workers Compensation (Bushfire, Emergency and Rescue Services) Act 1987, ss 10D, 16(4)
Workplace Injury Management and Workers Compensation Act 1998
Workers Compensation Act 1987, ss 17, 17(1)Cases Cited: Callaby v State Transit Authority (NSW) (2000) 21 NSWCCR 216
Caldemar v Asta Enterprises Pty Limited (1998) 17 NSWCCR 155
Stewart v New South Wales Police Service (1998) 17 NSWCCR 202Category: Principal judgment Parties: Daniel Keith Brian (Plaintiff)
Burders Lane Enterprises Proprietary Limited (Defendant)Representation: Ms E. Wood (Plaintiff)
Mr T. Rowles (Defendant)
MRM Lawyers (Plaintiff)
Sparke Helmore Lawyers (Defendant)
File Number(s): RJ371/10
Judgment
The plaintiff, Wayne Lachlan George Robertson, is a life member of the Mannering Park Bushfire Brigade. He joined that brigade in September 1987. In either 1995 or 1996 he was elected captain of that brigade and duly appointed as such. He served with the Mannering Park Brigade as captain until resigning on 20 August 2002. The resignation was only as captain of the brigade and not the resignation of his position as a life member. On 9 November 2002 he joined the Wyee Point Bushfire Brigade , which brigade was in fact closer to his home in Mannering Park than the brigade at Mannering Park was.
The plaintiff last fought a fire for the Wyee Point Brigade on 26 and 27 November 2002. Subsequent to fighting that fire the plaintiff has performed fund raising work in 2003, but effectively because of contact dermatitis has not been able to carry out active duties as a member of any bushfire brigade since 2003.
On 26 September 2009 the plaintiff , through his solicitors Messrs Moroney Rutter & Mantach , made a claim for lump sum compensation for industrial deafness against the Rural Fire Service of New South Wales. Eventually , that claim reached the WorkCover Authority on 15 October 2009. The claim could only be processed under the Workers Compensation (Bushfire, Emergency and Rescue Services) Act 1987 . That Act requires the claim to be made on the WorkCover Authority rather than upon any "employer", meaning, in the case of a bushfire fighter, the Rural Fire Service. The WorkCover Authority declined the plaintiff's claim and hence he brings an application before this C ourt pursuant to s 16(4) of the Workers Compensation (Bushfire, Emergency and Rescue Services) Act 1987 . The issues tendered for my determination are ; firstly, the extent of the plaintiff's industrial deafness ; secondly, whether the work which the plaintiff did for the Rural Fire Service was such that it carried the risk of inducing boilermaker's deafness or deafness of the like origin and, if so, whether that employment was the last relevant employment that the plaintiff had prior to making the claim for compensation that was received by the WorkCover Authority on 15 October 2009. I note, with sincere thanks, that Mr Rowles, for the WorkCover Authority, has abandoned reliance upon a defence that the plaintiff did not give the required notice of injury and make the required claim for compensation in accordance with the relevant provisions of the Workplace Injury Management and Workers Compensation Act 1998 .
The plaintiff was born on 16 April 1953. He is currently fifty - seven years old. He left school at the age of sixteen. He was unable to recall the identity of his first employer. However he gave a written account of his employment history to Dr Andrew Salmon , who was qualified by the WorkCover Authority. According to that history the plaintiff worked for Union Carbide at Rhodes between 1971 and 1973. He then worked for BHP at Newcastle from 1974 to 1976. He then worked for Western Mining at Kalgoorlie between 1977 and 1979. He then worked for BHP, again, but this time at Whyalla in South Australia between 1980 and 1981. He then worked for John Wiley and Sons at North Ryde from 1982 to 1984. Between 1985 and 1987 the plaintiff was self employed. The plaintiff told me that he worked as a sapphire miner in Queensland. Commencing in 1987 he started work at Benchmark Building Supplies at Erina. The plaintiff thought that in 1992 that employer was taken over by BBC Hardware and in a letter to Dr Salmon he said that he thought that BBC Hardware was in fact taken over by Bunnings Hardware "in about 2003".
It appears to be accepted by both the plaintiff and the WorkCover Authority that all employers of the plaintiff prior to Bunnings becoming his employer were "noisy employers", as the shorthand expression is, referring to employment sufficient to induce boilermaker's deafness or deafness of the like origin. A dispute has arisen, however, as to when the plaintiff's contract of service with BBC Hardware was novated to Bunnings. The plaintiff told Dr Salmon that he had been exposed to "excessive noise" in many of his employments. At Union Carbide the plaintiff had worked in plastic extrusion. No hearing protection was provided. He worked for BHP in both Newcastle and Whyalla and was exposed to "excessive noise" from blast furnaces and metal foundry noises. Again, he was not provided with any hearing protection. The plaintiff told Dr Salmon that he worked for Western Mining in Western Australia, involved in crushing rocks and again that generated excessive noise. He told the doctor about working in mining in Queensland and admitted using jackhammers which exposed him to excessive noise. The plaintiff also told Dr Salmon that working at Benchmark Building Supplies exposed him to timber saws.
According to the plaintiff's evidence, working with Benchmark Building Supplies involved working, essentially, in a sawmill. He was involved in the use of drop saws and planing saws and he said that noise was "pretty loud". He told me that he worked with Benchmark Building Supplies until 1997 when he started working for BBC Hardware. With BBC, his work was as a sales assistant and he also cut timber using a drop saw. Sometimes he could use a drop saw four or five times per day; sometimes he would not use it at all. When he did use it however, there was no hearing protection. When Bunnings took over he was immediately provided with hearing protection. He agreed that there was a refurbishment, and during the refurbishment BBC had the drop saws, which were used in the plumbing section, moved out into the sawmill section.
With the move to Bunnings the plaintiff moved into the plumbing section and there was still some cutting of PVC piping for a short period until the refurbishment was completed. The plaintiff developed contact dermatitis in October 2003, requiring him to go off work for approximately six months. The plaintiff remains employed by Bunnings, but in the hardware section, in particular dealing with things such as nails and screws and what Mr Robertson referred to as "door furniture", by which I assume he means hinges and locks and door knobs and the like.
The problem with the issue about the changeover to Bunnings is that Bunnings sent a facsimile transmission to the WorkCover Authority on 19 November 2009. It forms part of exhibit A. It points out that the plaintiff commenced working for BBC Hardwa re on 23 December 1987 and that "Bunnings acquired BBC Hardware on 18 February 2002". The problem with that is that the plaintiff had a minor back injury working in the hardware warehouse. On 27 November 2001 he put in a claim for compensation, nominating as his employer "Bunnings Warehouse". That was received by an officer of his employer and signed on 1 December 2001. On the same date the employer compiled an employer's report of injury form, and that document appears to be signed by the same person who acknowledged receipt of the plaintiff's claim for compensation. The only problem is that the employer did not set out any employer details, as required to complete the form. Perhaps there was confusion then in the mind of the employer. The plaintiff said that he thought that Bunnings took over in September 2001 and that, as far as he could recall, the refurbishment was within six months of the takeover.
However, what is clear is that, even for the short period after Bunnings became the employer, in which the plaintiff did still operate a drop saw to cut PVC piping, he was provided with and used hearing protection. Even accepting that Bunnings became the employer on 18 February 2002, I could not be persuaded that it was a "noisy employer" , because of provision of hearing protection. Accordingly, Bunnings Warehouse cannot be a relevant "noisy employer", to use the shorthand expression one often uses in cases of this nature.
Under s 17 of the Workers Compensation Act 1987 , if an injury is a loss of hearing which is of such a nature as to be caused by a gradual process, the injury is deemed to have happened 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 notice of the injury. Here the notice of injury can only be the claim for compensation received by the WorkCover Authority on 15 October 2009. I must then determine when was the last time at which the plaintiff was employed in an employment to the nature of which the injury was due. The question then arises: is that when he was fighting his last fire for the Wyee Park Bushfire Brigade , or , when he was, for example, working for BBC Hardware, as I have excluded Bunnings as being a relevant noisy employer?
It is common ground that the plaintiff last worked in fighting a fire at Killingworth on the western side of Lake Macquarie on 26 and 27 November 2002. Employment , when used in s 17 , does not refer to the fact of being an employee, that is, one's status, but to the type of work that one does. I pointed that out in relation to s 9A, or it may have been s 11A before the enactment of s 9A, in Stewart v New South Wales Police Service (1998) 17 NSWCCR 202. There is no suggestion that the fund raising work performed by the plaintiff after the Killingworth fire was "noisy employment" ; that is, that it carried the risk of inducing boilermaker's deafness or deafness of the like origin.
According to exhibit B, the plaintiff's brigade was advised about the Killingworth fire at 4.24pm on 26 November 2002. At that time they left the station and arrived at the fire scene at 4.40pm. They did not return to the bushfire brigade station, as it is referred to in the exhibit, until 11.35am on the following day, 27 November 2002. The plaintiff told me that that was a fairly large fire attended by a large number of bushfire brigades and also by the New South Wales Fire Service units. The plaintiff was in appliance numbered Wyee 4 and was one of a team of eight workers on the fire appliance. The plaintiff clearly worked some nineteen hours on this fire, although his evidence also refers to returning to a base at Toronto, which was a large New South Wales Fire Service station, where meals were taken and breaks.
The plaintiff had lengthy experience of fighting bushfires. As I have already mentioned, he had joined in 1987, about the same time that he started working at Benchmark Building Supplies. The Rural Fire Service only started keeping records of actual fires in computerised form in October 2001, and only such computerised records were available to Mr Rowles to cross - examine the plaintiff. The plaintiff accepted that between October 2001 and 20 August 2002 he may have attended twenty - five fires for the Mannering Park brigade and that the fire at Killingworth was the only one that he attended for Wyee Point brigade.
The plaintiff told me that fires themselves create noise and sometimes that noise can be extreme. He told me that, for example, in the fire at Killingworth there was the noise of exploding gas bottles which had been dumped in the bush. He told me that noise was generated by the engines of the fire appliances, which must be kept running, and by the engines of pumps, which are separate to the engines of the vehicles, and are used to pump water out of the tankers into hoses that are used to douse the fire, and also used to pump water into the tanker from other sources such as dams, creeks and rivers. The plaintiff also told me that he was exposed to sirens from time to time in fighting fires, but agreed that the noise level could vary from fire to fire.
In Callaby v State Transit Authority (NSW) (2000) 21 NSWCCR 216, I said at [32]:
"The law is that the employment must carry a real risk of the applicant's suffering boilermaker's deafness. The real risk is the test adopted by Geraghty J in Wright v State Transit Authority . It has also been adopted by the Court of Appeal in the Ambulance Service of NSW v Daniel (2000) 19 NSWCCR 692 at 708 [45]. Hodgson CJ in Equity said:
'Having regard to that line of authority, in my opinion it would not be an error to proceed on the basis that what the worker has to prove is, in substance, that the nature of his employment with the employer involved a real, as opposed to a theoretical, risk of hearing loss. In my opinion, this is to say much the same as to say that the type of injury is incidental to that class of employment, or that the nature of that employment is apt to produce the relevant injury'."
Of course some bushfires may generate more noise than other bushfires, and sometimes bushfire fighting operations may themselves generate various levels of noise. However, in my view it would be an otiose exercise, and not one called for by the law, to distinguish between individual bushfires. The question for my determination is whether fighting a bushfire as a member of the Rural Fire Service of New South Wales is apt to produce industrial deafness, or whether it carries a real risk of inducing industrial deafness.
There is no hard evidence before me that would allow me to determine the level of noise to which the plaintiff was exposed. For example, there was no noise level measurement as can be seen in Galdemar v Asta Enterprises Pty Limited (1998) 17 NSWCCR 155. However, it is common ground, as I have already mentioned, that in his early working life the plaintiff was exposed to loud noises. In particular, no one who has ever practised in the Compensation Court of New South Wales would ever seek to try to persuade a judge that a blast furnace at either Newcastle or Port Kembla was not apt to emit such noise as would cause industrial deafness.
When I asked the plaintiff what was the loudest noise to which he had ever been exposed in any of his employments, he said it was the noise of the amplifier on the back of the fire truck which was broadcasting radio messages coming over the Rural Fire Service radio system, which gave instructions to the brigade members and, in particular, the brigade captain , as to what was going on in the fire. The plaintiff referred to this broadcasting of the radio network as each team's "lifeline". One can understand that a group of bushfire fighters out fighting a bushfire would need to listen for any broadcasts of, for example, a change of fire front or the need to urgently evacuate some particular piece of bush because of some new hazard threatening the team. After I made that inquiry of the plaintiff, I invited Mr Rowles to cross - examine him further, if he wished to, and Mr Rowles did not.
The plaintiff himself clearly was exposed, and the doctors accept that he was exposed, in earlier employments, to loud noises sufficient to induce boilermaker's deafness or deafness of the like origin. I accept what the plaintiff told me as to the extent of the noise to which he was exposed with the Rural Fire Services, and on that piece of evidence I can find, in my view , fairly, that the employment as a member of the bushfire brigade in active operations fighting a fire is employment which is apt to produce industrial deafness, or involves a real, as opposed to a theoretical, risk of a noise sufficient to induce industrial deafness. Therefore, I have no hesitation in finding that the plaintiff's last "noisy employer" prior to 15 October 2009 was the Rural Fire Service of New South Wales on 27 November 2002.
The question then becomes : what is the extent of the deafness? However, before I turn to that I should just comment on observations about the medical evidence relied upon by the WorkCover Authority. As I have mentioned, the WorkCover Authority qualified Dr Andrew Salmon. The penultimate paragraph of Dr Salmon's report commences thus:
"Because his last excessive noise exposure occurred in 2003 with the Rural Fire Service, I use the 'improved procedure for determining percentage loss of hearing' in a report number 118, January 1988, to determine percentage loss of hearing."
The doctor goes on then to make his assessment of the plaintiff's hearing loss. The last paragraph of the doctor's report commences with the prognosis and then expresses an opinion. The last paragraph is this:
"Mr Robertson's hearing will continue to deteriorate with the effects of age and at some stage he would find the use of 'hearing aids' to be of value. In summary, Mr Robertson has had a lifetime of excessive noise exposure and the majority of this occurred early in his adult life with minor ongoing effects occurring in the latter part of his employment history. I do not believe that the noise exposure incurred with the Rural Fire Service would have significantly [had] any further effect on his underlying hearing problem."
On one view of it, what Dr Salmon said at the commencement of the penultimate paragraph, which I have quoted, could be seen as a concession that the plaintiff was exposed to excessive noise when working in the Rural Fire Service. However, C ounsel for the WorkCover Authority, Mr Rowles, points out what is contained in the last sentence of the last report as being a exculpatory provision. To understand the exculpatory conclusion of Dr Salmon, one needs to refer to an earlier part in his report. It is this:
"I refer to your request to make a comment regarding the proportional hearing loss if any from each noisy employer. I find that request an impossible one to fulfil, except to say that throughout Mr Robertson's life he has worked in excessively noisy jobs from a very early age and will have undoubtedly suffered some noise damage which will have occurred primarily in the early parts of his employment history i.e. before 1990."
I must point out that before 1990 the plaintiff was working for the Rural Fire Service. However, it is clear to me, when looking at all the statements in Dr Salmon's report, that what he was saying is that the quantum of industrial deafness should be visited against those who employed him in the early years, that is, before 1990, when there was not much attention paid to providing hearing protection for workers in noisy employment, and when the regulatory structures were such that there was no encouragement to employers to ensure that hearing was preserved. I do not read the doctor's conclusion as saying that he did not accept that working in the Rural Fire Service did not expose the plaintiff to excessive noise, but rather that the doctor seems to me to be saying that it would not "have added much" to any deafness the plaintiff did suffer. Such may be medically unarguable, but is certainly legally erroneous.
The question then becomes : what is the quantum of the plaintiff's industrial deafness? Dr Salmon said this:
"I used only hearing loss levels at 3,000 and 4,000 hertz to determine binaural hearing loss. I deducted a presbycusis correction factor of 0.1 per cent for his age of 56 years. I determined that before the correction there was a 3.7 per cent compensable hearing loss. After the presbycusis correction factor there was a 3.6 per cent compensable hearing loss. I determined that a 2 per cent addition should be given for his mild tinnitus, giving a total of 5. 6 per cent compensable damage to his ears related to excessive noise exposure."
The doctor then referred to the WorkCover guidelines and determined that there was a nil whole person impairment. That seems to be the inevitable result of s 17(1) of the Workers Compensation Act 1987 .
Dr Finlay - Jones, who examined the plaintiff at the request of his solicitors, may have reached a very different conclusion. Dr Finlay - Jones provides me with an assessment which I am more used to reading than that provided by Dr Salmon, in that the doctor uses the percentage loss of hearing. Dr Finlay - Jones determined that on the monaural basis the plaintiff had a 22.9 per cent loss of hearing on the left side and a 13.6 per cent loss of hearing on the right side. That gave a binaural hearing loss of 6.5 per cent. The doctor would not allow anything for tinnitus and says that 16.5 per cent gives a whole person impairment of 9 per cent.
If one uses percentage loss of hearing terms, the allowance for presbycusis used to be one half of one per cent. At the age the plaintiff was when examined by Dr Salmon, the age of fifty - six, there should be a three per cent deduction for boilermaker's deafness from either each of the monaural figures or from the binaural figure. That would indicate that Mr Robertson's total hearing impairment was approximately 13.5 per cent binaurally at the current time, or nearly twenty per cent loss of hearing. However, the allowance made by Dr Salmon shows me only an actual hearing loss of 3.7 per cent, which is so low as to be almost undetectable. That which the plaintiff told Dr Salmon and Dr Finlay - Jones about his hearing is not consistent with such a small hearing loss. Furthermore, it is totally inconsistent with what the plaintiff told me about his hearing loss, and his evidence I have no hesitation in accepting.
Furthermore, Dr Salmon said that any hearing loss below 3,000 kilohertz was not caused by noise damage but was a form of "early inherited sensori - neural hearing loss". When I look at the audiograms I see nothing in the audiogram of Dr Finlay - Jones which mimics the line drawn by Dr Salmon at the bottom of his audiogram, nor anything which appears to be anywhere near a hearing loss, bone conduction unmasked, at around the 1,000 and 1,500 level in frequency. The plaintiff told me that he knew of no history of hereditary deafness in either side of his family and certainly I have never heard of "inherited sensori - neural hearing loss" in the past. Of course boilermaker's deafness, or deafness of like origin, is a form of sensori - neural deafness. I am not persuaded that the plaintiff has any inherited sensori - neural hearing loss and it appears to me that, accepting the plaintiff as I do, I should more readily accept the opinion of Dr Finlay - Jones as to the extent of his industrial deafness.
Accordingly , I find that the plaintiff has a binaural hearing loss of 16.5 per cent and I will hear c ounsel in case there is any disagreement as to whether that represents a nine per cent whole person impairment. Is that accepted?
ROWLES: I think it was 16?
HIS HONOUR: 16.5.
ROWLES: Yes your Honour, that's conceded.
HIS HONOUR: It is agreed by c ounsel that 16.5 per cent binaural loss of hearing equates to nine per cent whole person impairment.
SUBMISSIONS RE MONETARY AMOUNT AND FORM OF ORDERS
HIS HONOUR: I make an award for the plaintiff for $11,250 for nine per cent whole person impairment pursuant to s 10D of the Workers Compensation (Bushfire, Emergency and Rescue Services) Act 1987 . I order the defendant to pay the plaintiff's costs.
DISCUSSION RE COSTS
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Amendments
21 November 2012 - Amended title - surname of plaintiff only
Decision last updated: 21 November 2012
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