Roche Bros Pty Ltd v Brown
[1989] TASSC 26
•16 May 1989
Serial No 20/1989
List "A"
CITATION: Roche Bros Pty Ltd v Brown [1989] TASSC 26; (1989) Tas R 42; A20/1989
PARTIES: ROCHE BROS PTY LTD
v
BROWN, Arthur William
TITLE OF COURT: SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION: APPELLATE
FILE NO/S: FCA 58/1988
DELIVERED ON: 16 May 1989
DELIVERED AT: Hobart
JUDGMENT OF: Neasey, Underwood and Crawford JJ
Judgment Number: A20/1989
Number of paragraphs: 64
Serial No 20/1989
List "A"
File No FCA 58/1988
ROCHE BROS PTY LTD v ARTHUR WILLIAM BROWN
REASONS FOR JUDGMENT FULL COURT
NEASEY J
UNDERWOOD J
CRAWFORD J
16 May 1989
Order of the Court:
Appeal dismissed.
Serial No 20/1989
List "A"
File No FCA 58/1988
ROCHE BROS PTY LTD v ARTHUR WILLIAM BROWN
REASONS FOR JUDGMENT FULL COURT:
NEASEY J
16 May 1989
I agree with the judgment of Crawford J.
File No FCA 58/1988
ROCHE BROS PTY LTD v ARTHUR WILLIAM BROWN
REASONS FOR JUDGMENT FULL COURT
UNDERWOOD J
16 May 1989
The facts are fully set out in the judgment of Crawford J I agree with his Honour's reasons with respect to grounds 1, 2 and 4 and the order that he proposes should be made but make some observations of my own with respect to ground 3 which alleges error in the finding that the date of disablement was the 17 May 1984.
By virtue of the Workers' Compensation Act 1927, s5(1), disablement as a result of a disease, as defined by the Act, imposes liability to pay compensation in accordance with the provisions of Sch. 1. Upon the occurrence of such disablement liability is fixed. That proposition applies equally to cases where liability is incurred by reason of the occurrence of personal injury by accident which arose out of and in the course of employment. See Fenton v Hutton Neasey J 3472. Accepting that the condition known as industrial deafness was one of gradual onset, the appellant contends that there is no evidence to support the finding that disablement occurred on the 17 May 1984 or, for the reasons explained by Crawford J at any time after the 1 January 1984.
I agree with the reasoning of Chambers J in Boucher v Motors Pty Ltd [1976] Tas SR 130 at pp136–138 and his conclusion that disablement in s5(1) means incapacity, either wholly or partially, for work. In his judgment, the Chief Justice, at p135 (ibid) said that disablement meant "loss or reduction of the ability to work." The same meaning of the word disablement when used in Workers Compensation legislation was adopted in Peters Ice Cream Pty Ltd v Feeney [1970] 3 NSWR 125 and Wati v The Attorney–General [1963] NZLR 139. Petrov v A B Moore Pty Ltd Cosgrove 881 was a case in which an unemployed plaintiff claimed entitlement to compensation for industrial deafness. His Honour referred to Boucher's case and noted that in that case, during the whole of the relevant period, the plaintiff had been employed. His Honour said, "[Boucher's] capacity therefore to earn his normal wages had not been shown to be impaired. It may have been open for the plaintiff to show that his capacity to obtain work had been impaired but that was not part of the case which the Full Court was then considering". With respect to the plaintiff's claim Cosgrove J said at p5:
"I am satisfied that [the plaintiff] was disabled in the sense that the Chief Justice had in mind in Boucher's case because his ability to perform his trade was reduced, and remains reduced, and his capacity to earn income is therefore reduced. Upon being dismissed, his prospects of obtaining employment were and remain less than they would otherwise have been for a number of reasons arising from his ear condition. In that sense he was, and is in my view, disabled and therefore is entitled to compensation in the sum agreed by counsel."
It is well established that incapacity in the context of Workers' Compensation legislation is a physical condition which produces a certain state of affairs namely, an inability or reduced ability to work. See Thompson v Armstrong and Royse Pty Ltd (1950) 81 CLR 585; Cardiff Corporation v Hall [1911] 1 KB 1009; Harwood v Wyken Colliery Co [1913] 2 KB 158; Birch Bros Ltd v Brown [1931] AC 605. Receipt of wages, although cogent evidence is not conclusive on the issue of disablement. See Heywood v The Stanhope Collieries CJ 94/62.
The respondent remained in the employ of the appellant earning full wages until March 1984 when he underwent an ear operation designed to improve his conductive deafness but not the sensori neural deafness. On the 17 May 1984 he consulted another medical practitioner who reported the existence of sensori neural deafness and advised the respondent against returning to work. This advice was reinforced in the later report dated 21 June 1984 and the contract of employment with the appellant was subsequently terminated. There is no attack on the finding of the learned trial judge that since the termination of employment the respondent has lost the capacity to work in the construction industry and, having regard to his circumstances, in any other occupation reasonably open to him by reason of industrial deafness.
No doubt the level of industrial deafness was about the same for some considerable time prior to March 1984 when the respondent first became aware of his condition. But, that physical condition did not result in disablement or incapacity for work until its existence became known. Liability under s5(1) to pay compensation does not arise on the contraction of a disease as defined in the Act but upon such disease causing disablement or incapacity to earn wages from work. I understand that to be the effect of the following passage from the judgment of Chambers J in Boucher's case at p141:
"My judgment is to be taken as authority only for the proposition that a worker suffering from the condition known as industrial deafness caused by his employment but who has not been prevented thereby at any time from earning his full wages in that employment prior to his retirement on other grounds, is not entitled to compensation under the Workers' Compensation Act 1927."
Although the undoubted inference from the medical evidence is that, prior to the 1 January 1984, the respondent suffered from the disease known as industrial deafness there is no evidence that such physical condition resulted in an impaired capacity to earn wages from work until, at the earliest, March 1984. Consequently, on the evidence, disablement as a result of a disease arising out of and in the course of employment and resultant liability to pay compensation did not occur until March 1984. Between the 1 January 1984 and the 31 December 1984 the basic rate was $210.10 and therefore it is immaterial whether disablement occurred in March of May of that year.
I find it unnecessary to express any opinion upon the meaning of s5(4) of the Act. I would dismiss the appeal.
File No FCA 58/1988
ROCHE BROS PTY LTD v ARTHUR WILLIAM BROWN
REASONS FOR JUDGMENT FULL COURT
CRAWFORD J
16 May 1989
This is an appeal by an employer against a judgment on a claim for workers compensation for the disease of industrial deafness. The judgment was expressed in the following terms:–
".....and having this day ordered that there be judgment for the plaintiff in the sum of $58,181.38 and that there be a declaration that the plaintiff is entitled to compensation pursuant to Rule 7 of the First Schedule of the Workers' Compensation Act 1927 and that their (sic) liberty to apply be reserved to both parties as to the amount of that compensation and that the defendant pay the plaintiff's costs it is this day adjudged that the plaintiff recover from the defendant the sum of $58,181.38 and costs to be taxed."
The trial judge, Nettlefold J did not determine the amount of compensation pursuant to rule 7 but left it to the parties to agree on the sum, reserving liberty to apply as to the appropriate amount if agreement could not be reached. The amount has not yet been agreed or determined.
The judgment sum of $58,181.38 was made up by weekly compensation of $57,311.20 and medical expenses of $870.18.
The findings of fact by Nettlefold J have not been attacked by the appellant. The respondent commenced his employment by the appellant in 1963 in Tasmania. He remained in that employment until 29 June 1984 apart from a period of about 14 months in 19671968 when he worked for a different employer. From 1963 to 1967 he worked for the appellant at two places in Tasmania. When he returned to employment by the appellant in 1968 he worked at other places in Tasmania until 1972 when he was transferred to Melbourne for about six months and then to New South Wales for some time. He returned to Tasmania and worked at Waratah and in North East Tasmania. He also worked at other places in Tasmania and in the Dandenongs in Victoria. In about 1982 he was transferred in his employment to Queensland where he worked firstly at Kingaroy and then at Hamilton Island until he became aware of hearing problems in early 1984.
In general terms the respondent's work with the appellant was that of driller, powder–monkey and pipe layer. It was work which involved working in noisy conditions, drilling holes for blasting and blasting and working with noisy, heavy equipment. Early in 1984, when at Hamilton Island, he became aware of a problem with an ear. There was a lump in it. He consulted a general practitioner who referred him to a specialist surgeon Mr Tiong who saw him on 15 March 1984. Mr Tiong performed an operation to improve as much as possible conductive deafness in his left ear. It was not done to improve sensori neural deafness which it was discovered was also being suffered by the respondent.
The respondent then returned to Tasmania. He consulted Dr G A. Goldfinch who on 17 May 1984 certified in writing:–
"Mr Arthur Brown has hearing that demonstrates a very definite sensori neural loss bilaterally so that his hearing is below 50 per cent of normal. In consequence I do not think it is wise for him to work as a powder monkey as he may well miss some warning shout which may place his life in jeopardy."
On 21 June 1984 Dr Goldfinch reported:–
"This patient has severe sensori neural deafness probably related to his work. In my opinion it is dangerous for him to continue working with his impaired hearing. I do not consider he is fit to work in industry."
The appellant accepted Dr Goldfinch's advice and terminated the contract of service on 29 June 1984. The respondent was paid off when in Hobart not having returned to Queensland. He was 54 years old. He then successfully applied for the invalid pension which he was still receiving at the time of trial. There is no dispute that certainly since termination of his employment, he has been incapacitated for work because of his deafness.
A specialist otolaryngologist, Dr Philip Moore, gave evidence on behalf of the respondent. He said he had examined the respondent on 6 December 1984 and was given a history of exposure to noise at work for approximately 20 years. He found a total hearing loss in the order of 58.9 per cent which he described as moderate to severe hearing loss, mainly related to a sensori neural component. He felt that the cause of the vast majority of the hearing loss was noise exposure. However his evidence was that sensori neural component of the hearing loss was 31.3 per cent and that could be attributed to industrial deafness. How 31.3 out of 58.9 can be described as the "vast majority" was not investigated by counsel or explained by Dr Moore. He also felt that the respondent's employment background was in work around noisy things and in a background of noise. The respondent was unsuitable for that work because it would be difficult to warn him of imminent danger around machinery and the like and he must protect the hearing he has left from further noise exposure. Dr Moore accepted that, assuming no further noise exposure from the end of 1983 until his examination of the respondent in December 1984, the element of hearing loss due to noise exposure would have remained much the same. His opinion was that, if the respondent had the same hearing loss at the end of 1983 as he had in December 1984, he was unfit for work at that time "in the trade he had been working in". On 3 March 1988, after delivery of his Honour's reasons for judgment, counsel informed him that the parties had agreed that the respondent's industrial deafness had resulted in a 31.3 per cent diminution of hearing.
There was also affidavit evidence from a Dr Hamilton.
Nettlefold J found that in his employment the respondent was subjected to an external exciting cause, ie noise, which progressively over time, produced a morbid condition of his body, namely industrial deafness which the Act prescribes to be a "disease". Thus the respondent suffered "personal injury" arising out of and in the course of his employment. His Honour referred to s5(4) of the Act which reads:– "The disablement or death of a worker by disease shall be treated as the happening of an accident." Having found that the respondent was disabled by the disease of industrial deafness while in the employ of the appellant, his Honour held that there was an entitlement to compensation on two basis. Firstly, there was disablement as the result of disease thus qualifying the respondent under s5(1). Secondly, applying the effect of s5(4) to s5(1), there was personal injury by accident.
His Honour held that the termination of the contract of service on 29 June 1984 was not the disablement of the respondent but a consequence of that disablement. The respondent, no doubt, received wages on 29 June 1984 and the immediately preceding days. But he did not earn any wages on any of those days because he was disabled by industrial deafness during that time. The receipt of wages in respect of those days was referable to the terms of his contract of employment and the fruits of work done before he was put off work because of the problem found in his ears. My understanding is that he had not in fact worked since he last worked in Queensland in about March 1984.
In his reasons for judgment published on 29 February 1988, His Honour held that the respondent was entitled to a weekly payment under rule 3 in Schedule 1 of the Act. Those reasons having been delivered, counsel for the respondent submitted that the amount of weekly compensation should be quantified in the sum of $57,311.20. Nettlefold J agreed and the judgment sum included it, the balance being made up of $870.18 for medical expenses pursuant to Section 8A. The figure of $57,311.20 represented the limit of weekly compensation which would have been payable in respect of an accident or a disablement caused by disease occurring on or after 1 January 1984 and before 1 January 1985. Rule 3(6) provides that the total liability of an employer in respect of compensation under rule 3 shall not exceed a sum calculated in accordance with the formula B x 284, where "B" represents the amount for the time being of the "basic rate". By the Workers' Compensation (Basic Rate) Order 1983 (S.R. 262 of 1983) the basic rate was fixed at $201.80 from 1 January 1984. Accordingly, $201.80 x 284 equals $57,311.20. The respondent was not paid by the appellant after 29 June 1984 and the evidence showed that appropriate weekly compensation after that date would have built to the limit of $57,311.20 before the date of the trial. I will deal further with the question of entitlement to weekly compensation later.
Ground 1
Ground 1 of the Notice of Appeal is in the following terms:–
"The learned Trial Judge erred in fact and in law in finding that the Respondent suffered personal injury by accident arising out of and in the course of his employment with the Appellant."
Counsel for the appellant conceded that nothing flows from this question so far as the respondent's entitlement to compensation is concerned. It being indicated to him by this Court that it would not be prepared to determine the matter in such circumstances, he did not address submissions relating to this ground and I do not intend to deal with it.
Ground 2
This ground is:–
"The learned Trial Judge erred in law in finding that the Respondent was entitled to recover weekly payments pursuant to the Workers' Compensation Act 1927."
Prior to the Workers' Compensation Act 1947 entitlement to compensation depended on the worker suffering personal injury by accident. The 1947 Act introduced an entitlement to compensation for disablement or death as the result of certain diseases which were specified in Schedule II. The condition known as industrial deafness was not one of those diseases then but it was added to Schedule II by the Workers' Compensation Act 1970.
The 1947 amendments gave s5(1) its present form, which is:–
"5(1) If in any employment a worker suffers personal injury by accident, or is disabled or dies as the result of a disease, arising out of and in the course of the employment, his employer shall, subject to this Act, be liable to pay compensation in accordance with the provisions of Schedule I:
Provided that no such compensation shall be payable in respect of any disease arising before the commencement of this subsection out of and in the course of any employment in which the worker was employed."
Schedule I did not expressly provide for compensation in cases of disease. It was not amended by the 1947 Act but instead retained its provisions for compensation in the event of death or incapacity resulting from an "injury". The Schedule has since been amended but at that time r1 provided for lump sum compensation "where death results from the injury sustained by the worker". Rule 2(1) was in the following terms:–
"2(1) The compensation payable under this Act, except as provided in rule 4 in respect of the specified injuries therein referred to, where total or partial incapacity for work results from an injury sustained by the worker, shall be a weekly payment during the incapacity of an amount calculated in accordance with sub–rule (2) of this rule."
Rule 4(1) provided:–
"4(1) In respect of any injury specified in the first column of the table set forth hereunder, the compensation payable under this Act, where total or partial incapacity results from the injury, shall, subject to sub–rule (2) of this rule, be the amount respectively specified opposite that injury in the second column of the table ...".
There then followed in the first column a number of specified injuries (such as "loss of a hand and a foot", "total loss of a forefinger" and "total loss of hearing") opposite which in a second column appeared sums of money under the heading "Amount of Compensation payable".
It must have been the intention of parliament in 1947 that the provisions in Schedule I for compensation for an "injury" would extend to disablement and death caused by disease. Otherwise the provision in s5(1) that the employer would be liable to pay compensation in accordance with Schedule I would have been meaningless in the case of diseases. Counsel for the appellant conceded that compensation is payable under Schedule 1 for a disease and since 1947 the Court has plainly accepted this. (And see the comments of Chambers J in Boucher v Motors Pty Ltd [1976] Tas SR130 at 138).
Originally r2 and r4 provided alternative and mutually exclusive methods of awarding compensation and where the "injury" was one of the injuries specified in r4(1) the compensation was to be assessed under r4 and, subject to special provisions in r4 and r5, not under r2: Brugnoni v Hydro Electric Commission (1957) 97 CLR 548; Collis v Huddart Parker Limited [1962] Tas SR 243. However, parliament progressively removed this alternativeness and by the time a new first schedule came to be inserted into the principal Act by the Workers' Compensation Act 1963, weekly compensation pursuant to a new r3 (which had replaced the old r2) became payable in addition to any lump sum compensation payable under a new r5 and r6 (which had replaced the old r4 and r5). The new r3(1), as inserted by Act No 96 of 1963, read:–
"3(1) Subject to this rule, where total or partial incapacity for work results from an injury sustained by the worker the compensation payable under this Act is, in addition to any lump sum that may be payable under rule 5 or rule 6 in respect of that injury, a weekly payment during the incapacity calculated in accordance with this rule."
Therefore by 1963 weekly compensation was payable to a worker for personal injury by accident and for disablement by a scheduled disease, pursuant to r3, and in addition the worker was entitled to a lump sum calculated in accordance with r5 and r6, if he had sustained one of the injuries specified in the table in r5. Included among the specified injuries were:–
Item 16 – Total loss of hearing.
Item 17 – Total loss of the hearing of one ear.
Item 36 – partial loss of the hearing of both ears.
Item 37 – partial loss of the hearing of one ear.
In 1972 sub–rule 3(1) was replaced with its present form. The alteration is not relevant, but the sub–rule now reads:–
"3–(1) Subject to this rule, where total or partial incapacity for work results from an injury sustained by the worker, the compensation payable under this Act is, in addition to any lump sum that may be payable under rule 5 or rule 6 in respect of that injury, a weekly payment at the relevant compensation rate reduced, in the case of a period of partial incapacity, by the weekly amounts that the worker is earning or able to earn in some suitable employment or business during that period.
The Workers' Compensation Act 1970 introduced in to the principal Act industrial deafness as a scheduled disease by adding to the list of diseases in the Second Schedule (now Schedule II):– "The condition known as industrial deafness". At the same time a new rule was inserted:–
"7(1) No compensation is payable under rule 5 in respect of the condition known as industrial deafness, but the compensation payable under this Act in respect of that condition shall be an amount equivalent to –
(a) if both ears are affected, the appropriate percentage of the amount payable under item 16 in that table contained in sub–rule (1) of rule 5; or
(b) if only one ear is affected, the appropriate percentage of the amount payable under item 17 in the table.
(2) For the purposes of sub–rule (1) of this rule, 'the appropriate percentage' is ...".
Because of the opening words in r7(1) it is clear that the lump sum which became payable under r7 for the condition known as industrial deafness was to be payable instead of the lump sum which might otherwise have been payable under r5 for total or partial loss of hearing. Counsel for the appellant argued that it also flows from r7(1) that no weekly compensation is payable under r3 for incapacity resulting from industrial deafness, relying on the words "but the compensation payable under this Act in respect of that condition shall be an amount equivalent to....". The basis for such an argument is apparent but the argument itself must fail.
By the 1970 Act parliament introduced industrial deafness and hydatids to an existing list of twenty four scheduled diseases. If it had been intended that no weekly compensation would be payable for one of twenty six diseases, and that disease alone, it would have been more clearly expressed. All that was needed to achieve the interpretation submitted on behalf of the appellant, was for the opening words of r7(1) to provide that no compensation "is payable under rule 3 and rule 5." By enacting simply that no compensation "is payable under rule 5" the intention to only exclude r5 compensation is clear.
The purpose of enacting r7 was to provide formulae for calculating lump sum compensation payable for industrial deafness, which were different than the formulae used to calculate lump sum compensation payable for loss of hearing caused by specific accident. Examples are sufficient to explain this. If a worker suffered personal injury by accident arising out of and in the course of his employment, as a result of which he sustained a loss of say, 70 per cent of the hearing of both ears, r5 provided an entitlement to 70 per cent of the lump sum payable, also under r5, for total loss of hearing (that is, 70 per cent of the "basic rate" multiplied by 113). If instead a worker commenced his employment after 1974 (as to this see r7(2)(a)) and subsequently became disabled as the result of the disease of industrial deafness, arising out of and in the course of that employment, and the percentage loss of hearing in both ears was also 70 per cent, r7 provided that his entitlement would, in a simple case, be reduced numerically by 15 per cent, that is from 70 to 55 per cent of the lump sum payable under r5 for total loss of hearing (see r7(2)(a)). possibly parliament was persuaded that although loss of hearing from industrial deafness can easily be demonstrated, in many cases some part of the demonstrated loss of hearing will have been caused by noises not occurring in the work place, or by advancing age or by some other cause and that in the interests of fairness a reduced lump sum should be payable for such demonstrated loss of hearing, compared to the amount payable under r5 for a precise hearing loss proven to have been caused by a specific accident.
When providing the different formulae in r7 it was therefore necessary to clearly state that no compensation was to be payable under r5 for industrial deafness.
Counsel for the appellant also relied on r3(1) which states that the weekly compensation for which it provides is "in addition to any lump sum that may be payable under rule 5 or rule 6". He argued that by implication compensation is not to be payable under both r3 and r7. But the point must be made that r3 does not state that. Rule 3 was not amended in any relevant respect by the 1970 Act. Here again parliament could have clearly specified in r3 by amendment its intention that weekly compensation would not be payable for incapacity caused by industrial deafness, but it did not do so.
Counsel for the appellant relied on the statement by Green CJ in Boucher v Motors Pty Ltd [1976] Tas SR 130 at 134, that r3 was clearly inapplicable to the claim of the plaintiff in that case for compensation for industrial deafness. But that was so because the plaintiff was incapacitated from earning income because of injuries received in a motor vehicle accident which did not relate to his employment by the defendant. His industrial deafness was not the cause of incapacity to earn his normal income and for that reason alone, there was no entitlement to weekly compensation under r3.
Reliance was also placed by the appellant's counsel on the first paragraph in the judgment of Cosgrove J in Petrov v A B Moore Pty Ltd, 8/1981 in which his Honour said that the entitlement to compensation in respect of the condition of industrial deafness "arises from s5 of the Workers' Compensation Act 1927, and the method of assessment is set out in r7 of the First Schedule". But nothing appears from the judgment to indicate that the question whether weekly compensation was payable under r3 was argued or even raised. perhaps weekly compensation was not even claimed, but in any event the judgment is no authority in support of the appellant.
In Wilson v Wilson'sTile Works Pty Ltd (1960) 104 CLR 328 at 335 Fullagar J referred, in his dissenting judgment, to "the established principle that, where two constructions of a Workers' Compensation Act are possible that which is favourable to the worker should be preferred". See also Dodd v Executive Air Services [1975] VR 668 per Newton J at 679 and Norris J at 682; and the numerous cases cited in Macdonalds' Workers Compensation in New Zealand, Third Edition, at pp22 and 23. This so–called principle appears to have developed on the basis that workers compensation legislation is remedial in nature and should therefore be given a broad and liberal, not a narrow and restrictive, interpretation. Care must however be taken before applying it to a particular Act for the over–riding rule of statutory interpretation is to construe the words used in the statute and to determine the apparent intent of parliament from those words.
The principle was expressed by Isaacs J in his dissenting judgment in Bull v Attorney General for New South Wales (1913) 17 CLR 370 at p384 in the following terms:–
"In the first place, this is a remedial Act, and therefore, if any ambiguity existed, like all such Acts should be construed beneficially ... This means, of course, not that the true signification of these provisions should be strained or exceeded, but that it should be construed so as to give the fullest relief which the fair meaning of its language will allow."
However, I have no need for recourse to such a principle. The conclusion I have come to is that if parliament had intended to enact that industrial deafness alone, out of twenty six scheduled diseases, would not carry with it an entitlement to weekly compensation under r3, it would not have provided in r7 that no compensation "is payable under rule 5 in respect of the condition known as industrial deafness". Instead it would have made it plain that its intention was to also exclude compensation under r3.
Ground 2 in the Notice of Appeal therefore fails.
Ground 3
This ground of appeal is:–
"The learned Trial Judge erred in fact and in law in finding that the date of disablement of the Respondent was on or about the 17th day of May 1984."
The calculation of the appellant's total liability for weekly compensation is to be made in accordance with the formula B x 284 where "B" is a "basic rate" which has over the years been altered by statutory rule. So for example SR 262 of 1983 fixed the basic rate at $201.80 for the period 1 January 1984 to 31 December 1984. prior to 1 January 1984 the basic rate varied from time to time so that it gradually increased. But it was always less than $201.80 prior to that date. For the period 1 January 1982 to 31 December 1983 the basic rate was $157.50 by virtue of SR 314 of 1982. The calculation of the lump sum payable to the respondent under r7 also depends on the appropriate amount of the basic rate.
Rule 1(1) states that "B represents the amount for the time being of the basic rate". In the case of incapacity caused by personal injury by accident it was established by Fenton v J C Hutton Pty Ltd, 34/1972, that B is the basic rate applying at the date of the sustaining of the injury.
Entitlement to compensation for a scheduled disease such as industrial deafness, depends at first on s5 of the Workers' Compensation Act 1927. It provides;–
"5(1) If in any employment a worker suffers personal injury by accident or is disabled or dies as the result of a disease, arising out of and in the course of the employment his employer shall subject to this Act, be liable to pay compensation in accordance with the provisions of Schedule I …".
The respondent must therefore establish that the disease of industrial deafness has disabled him. Subsection (4) is in the following terms:–
"5(4) The disablement or death of a worker by disease shall be treated as the happening of an accident."
A person who sustains industrial deafness suffers an injury but when developed slowly and gradually as the result of exposure to noise over many years it cannot "be described as "personal injury by accident" within the meaning which has been authoritatively applied to that expression in workers' compensation legislation or within its ordinary meaning": Gibbs J in Public Trustee for the State of Western Australia v State Energy Commission (1979) 142 CLR 211 at 225. But subsection (4) appears to complete the connection in the Workers' Compensation Act 1927. It follows from it that the applicable basic rate is that applying as at the date of the disablement which is deemed to be the happening of an accident. It is the disablement by disease which establishes the right to compensation and the date of becoming disabled seems the only logical date to select for the purpose of ascertaining the basic rate. As Chambers J said in Boucher v Motors Pty Ltd (supra) at p138 :–
"In other words, if a worker becomes so incapacitated or dies, s5(4) puts him in the same position for the purpose of assessing the quantum of compensation as if he had suffered a personal injury by accident in the course of his employment. It seems to me significant that it is not the contraction of a disease that is to be treated as the happening of an accident but the disablement of the worker by a disease."
In the case of disease of slow progression over many years, leading eventually to disablement, no other date could have been contemplated by parliament. Counsel for the appellant and the respondent, both appear to accept that such is the case. Support for this is to be found in Nash v Sunshine Porcelain Potteries Ltd (1958) 101 CLR 345 and (on appeal to the privy Council) in Sunshine Porcelain Potteries Ltd v Nash (1961) 104 CLR 639.
In this case the establishment of the date of the disablement has caused problems. In his reasons for judgment delivered on 29 February 1988 Nettlefold J said that the termination of the contract of employment was not the disablement of the respondent but a consequence of the disablement, but apart from that he did not say when the disablement occurred. He invited submissions as to the appropriate amount of compensation which was payable and on 3 March 1988 he heard counsel. Bearing in mind that the respondent had worked up until March 1984, his Honour said that the date of disablement could not be before March and he said that he thought the date he preferred was 17 May 1984, which was the date of the certificate of Dr Goldfinch. As a result of his Honour saying this the weekly compensation limit of $57,311.20 was established being based on the basic rate applicable from 1 January 1984 multiplied by 284.
The appellant's case is that Nettlefold J was in error in fact and in law in finding that the date of disablement was on or about 17 May 1984 or indeed any other date on or after 1 January 1984. Its counsel in substance relied on the following facts:–
1The respondent had been employed by the appellant almost continuously from 1963 until 1984 and throughout much of that time had been subjected to loud noises in his employment.
2The appellant and the respondent were unaware of any hearing problem until about late 1983 or early 1984.
3The respondent's industrial deafness was probably the same at about the end of 1983 or almost the same and if so he was unfit in December 1983 for his work for the appellant.
4The industrial deafness had gradually developed over a number of years.
The gist of counsel's argument was that it followed that the date of disablement was prior to 1 January 1984 and the termination of the employment only came about as a result of the appellant learning of it. The respondent had in fact failed to establish the date on which he first came to be so disabled and had therefore failed to establish an essential fact for the quantification of his entitlement.
On the other hand the respondent's counsel submitted that "disablement" can be equated with "incapacity" and that the respondent was not incapable of working at his employment and earning his usual income until knowledge of his hearing loss reached his employer. The employer, that is the appellant, did not gain that knowledge until shortly after 17 May 1984 and as a result of that knowledge the respondent became incapable of working, that is to say his disablement commenced.
Counsel referred to Boucher v Motors Pty Ltd (supra) and Petrov v A B Moore Pty Ltd (supra). In Boucher v Motors Pty Ltd the plaintiff suffered from industrial deafness caused by his work as a panel beater but was not thereby prevented from keeping on with his employment until a car accident which had nothing to do with his employment. As a result of the injuries it caused he did not return to work. The plaintiff failed in his claim for workers compensation because s5(1) requires there to be disablement by the disease and the Full Court on the hearing of a case reserved to it, held that there was no such disablement in a case where the plaintiff was not prevented by the industrial deafness from earning his full wages in his employment prior to his retirement on other grounds. The major judgment was that of Chambers J with whom Green CJ and Rex. AJ agreed. He said (at p137) that the acceptance of the argument "that disablement simply means any physical interference with bodily integrity would be to give the word "disabled" a different meaning from that which it had borne in the same legislation" prior to 1947, but acceptance of the argument that a person cannot be said to be disabled unless there is proved some actual loss of, or diminution in, his capacity to earn wages "would be to continue to give it the same meaning as it had previously borne in the sense of linking it to capacity to earn wages or full wages". Chambers J went on :–
"Reference to standard English dictionaries shows that 'disablement' is a synonym for 'incapacity' and, so far as I am aware, in workers' compensation legislation (unless the contrary is specifically enacted), incapacity which is compensable is physical incapacity for actually doing work – see the judgment of Gibson ACJ in Maney v Cornwall Coal Company N.L., unreported (24 April 1964). In that context his Honour referred to the judgment of Latham CJ in Thompson v Armstrong and Royse Pty Ltd (1950) 81 CLR 585 at p595. It is true that in that case (at p596) his Honour said that a worker may have a continuing right to compensation but may not be entitled at a particular time to payment of it. However, his Honour followed that statement by saying immediately afterwards, 'Thus the right to payment of compensation will remain dormant until the incapacity prevents or diminishes the earnings of wages. (the emphasis is mine)."
The argument for the appellant is, of course, that at some unestablished time prior to 1 January 1984 the respondent did suffer from a loss or reduction of the ability to work, that is of his working capacity, but because both he and the appellant did not know of it, he continued to work and earn full wages.
Petrov v A B Moore Pty Ltd (supra) involved a claim for compensation for industrial deafness caused by the use of a Ramset gun in the course of the plaintiff's employment by the defendant. The plaintiff however worked for the defendant with the condition until his employment was terminated by the defendant for a reason not proven to be related to the industrial deafness. Thereafter he was unemployed and Cosgrove J said, at page 5:–
"In this case it is plain to me that the plaintiff, although he was earning full wages was less useful as an employee from the time that he refused to operate the Ramset gun and that upon his dismissal, his capacity to obtain employment was reduced....I am satisfied that he was disabled in the sense that the Chief Justice had in mind in Boucher's case because his ability to perform his trade was reduced, and remains reduced.... and his capacity to earn income is therefore reduced. Upon being dismissed, his prospects of obtaining employment were and remain less than they would otherwise have been for a number of reasons arising from his ear condition. In that sense he was, and is in my view disabled and therefore is entitled to compensation in the sum agreed by counsel."
The Shorter Oxford English Dictionary (1975) defines "disabled" as "to render unable or incapable; to deprive of ability, physical or mental, to incapacitate". "Incapable" is defined as "not capable; the opposition of capable; unable to take in, contain, hold or keep".
In Boucher v Motors Pty Ltd, Petrov v A B Moore Pty Ltd and in this case none of the plaintiffs, while they continued in their normal employment earning full wages, could be said to be unable or incapable of continuing in full employment. In industry a worker is not unable to earn income or to work if in fact he can and is earning income and working notwithstanding that his ability to do so would not exist if the employer or worker knew of a particular medical complaint suffered by the worker, be it industrial deafness, a seriously defective heart or some other condition.
The respondent's ability to continue to work and earn his normal income, was not taken away from him by the industrial deafness until the appellant learned of it and terminated the employment. Boucher v Motors Pty Ltd (supra), a decision of this Court, clearly supports the respondent's case. Its authority was expressed at p141 by Chambers J in the following terms:–
"My judgment is to be taken as authority only for the proposition that a worker suffering from the condition known as industrial deafness caused by his employment but who has not been prevented thereby at any time from earning his full wages in that employment prior to his retirement on other grounds, is not entitled to compensation under the Workers' Compensation Act 1927."
The respondent was not prevented from earning his full wages by his industrial deafness until after 1 January 1984. His disablement commenced after then. For the purposes of this case it does not matter whether the date of the commencement of the disablement was 17 May 1984 or any other precise date. It is sufficient to say that it occurred after 1 January 1984 (when the basic rate "B" was last increased prior to his employment being terminated) and no later than 29 June 1984 when the contract of employment was terminated by the appellant.
So far as it is necessary for this Court to decide, the appellant therefore fails on ground 3 of the appeal.
Ground 4
"The learned Trial Judge erred in fact and in law in finding that for the purposes of Rule 7 of the First Schedule to the Workers' Compensation Act 1927, no percentage of the defectiveness of the hearing of the Respondent has been shown to have been contracted outside this State".
Rule 7 provides for calculation of lump sum compensation payable to a worker disabled by industrial deafness. It is in these terms:–
"7–(1) No compensation is payable under rule 5 in respect of the condition known as industrial deafness, but the compensation payable under this Act in respect of that condition shall be an amount equivalent to –
(a)if both ears are affected, the appropriate percentage of the amount payable under item 16 in the table contained in sub–rule (1) of rule 5; or
(b)if only one ear is affected, the appropriate percentage of the amount payable under item 17 in that table.
(2) For the purposes of sub–rule (1), 'the appropriate percentage' is the amount by which the percentage diminution of hearing of the worker in the ear, or ears, affected is greater than –
(a)in a case where the claim for the compensation is made after 31st December 1974 in relation to employment that was continuing at that date or commencing thereafter a percentage of 15 or, where sub–rule (4) applies, that percentage reduced by the percentage referred to in that sub–rule; and
(b)in any other case, a percentage of 20, or, where sub–rule (4) applies, that percentage reduced by the percentage referred to in that sub–rule.
(3) For the purposes of sub–rule (2), the diminution of the hearing of a worker shall be regarded as the extent to which his hearing is defective as compared with the normal hearing, excluding such percentage of the defectiveness as is to be disregarded under sub–rule (4).
(4) There is to be disregarded for the purposes of sub–rule (3) such percentage of the defectiveness of the hearing of the worker as is shown–
(a)to have arisen otherwise than from the condition known as industrial deafness; or
(b)to have been contracted outside this State; or
(c)to be a condition in respect of which compensation has been awarded or paid under this Act or under a law of another State or of a Territory of the Commonwealth (being a law relating to the payment of compensation to workers in respect of injuries suffered or diseases contracted in the course of their employment).
(5) Paragraph (ba) of sub–rule (2) of rule 5 applies to the condition known as industrial deafness as if it were an injury, and sub–rules (5) and (6) of that rule apply for the purposes of this rule as they apply for the purposes of sub–rule (1) of that rule.
(6) The regulations may prescribe the manner in which any determination or assessment required under this rule to be made in relation to the hearing of a worker is to be so made, and that manner may be so prescribed wholly or partly by reference to any scale, recommendation, or other matter laid down or formulated by any authority or body exercising functions in the Commonwealth in relation to the measurement of hearing."
In calculating the lump sum payable there is by virtue of r7(4)(b), to be disregarded "such percentage of the defectiveness of the hearing of the worker as is shown ... to have been contracted outside this State." Nettlefold J said in his reasons for judgment:–
"There is an entitlement under rule 7 which must be calculated by ignoring rule 7(4)(b) because no percentage of the defectiveness of hearing of the worker has been shown to have been contracted outside this State. But there must be a deduction by applying rule 7(4)(a)".
The subsequent judgment contains a declaration that the respondent is entitled to compensation under r7 but his Honour did not quantify the amount. He reserved liberty to apply as to it if the parties could not agree. Ground 4 of the appeal does not relate to any judgment, decision, order or determination of Nettlefold J but is directed to something said by his Honour in his reasons for judgment. An appeal does not lie from reasons for judgment. Accordingly, the matter raised by ground 4 is not properly before this Court which does not have to determine it.
I would dismiss the appeal.
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