Salama v Q Catering Limited
[2009] NSWWCCPD 92
•6 August 2009
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| CITATION: | Salama v Q Catering Limited [2009] NSWWCCPD 92 | |||||
| APPELLANT: | George Salama | |||||
| RESPONDENT: | Q Catering Limited | |||||
| INSURER: | Allianz Workers Compensation (NSW) Ltd | |||||
| FILE NUMBER: | A1-8593/08 | |||||
| ARBITRATOR: | Ms J Scott | |||||
| DATE OF ARBITRATOR’S DECISION: | 12 March 2009 | |||||
| DATE OF APPEAL DECISION: | 6 August 2009 | |||||
| SUBJECT MATTER OF DECISION: | Industrial deafness claim: whether the worker’s evidence was sufficient to discharge the onus of proving ‘noisy employment’. | |||||
| PRESIDENTIAL MEMBER: | Acting Deputy President Deborah Moore | |||||
| HEARING: | On the papers | |||||
| REPRESENTATION: | Appellant: | Maurice Blackburn Pty Ltd | ||||
| Respondent: | Sparke Helmore Lawyers | |||||
| ORDERS MADE ON APPEAL: | 1. The decision of the Arbitrator dated 12 March 2009 is confirmed. | |||||
| 2. No order as to costs of the appeal. | ||||||
BACKGROUND TO THE APPEAL
On 9 April 2009 George Salama (‘the Appellant/Mr Salama’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision dated 12 March 2009.
The Respondent to the Appeal is Q Catering Limited (wrongly described as Q Catering Riverside Pty Ltd) (‘the Respondent/Employer’).
Mr Salama is presently 52 years old. He commenced employment with the Respondent in 1994 in its catering facility. For the first five years of his employment he worked in the “wash up area” and claimed that he was exposed to noise from the large washing machines. Thereafter, he worked in the transport section. His duties included driving the high-lift truck from the catering facility to the aircraft and back. He claimed that he was exposed to noise from aircraft engines, generator noise and other ‘incidental’ noise such as that of aircraft taking off and landing.
He claimed that, as a consequence of his employment, he suffers from industrial deafness within the meaning of section 17 of the Workers Compensation Act 1987 (‘the 1987 Act’). Notice of his claim was given to the Respondent on 12 June 2008.
There was no dispute that the Appellant suffered from sensori-neural hearing loss of a type that is due to industrial noise. What was in issue between the parties was whether or not the Respondent was responsible for that loss.
On 27 October 2008 the Appellant filed an ‘Application to Resolve a Dispute’ (‘the Application’) in the Commission seeking lump sum compensation and medical expenses pursuant to the provisions of the 1987 Act. The parties attended a conciliation/arbitration hearing on 27 January 2009 and again on 24 February 2009. The Appellant gave brief oral evidence, and an acoustic expert, Mr Stuart McLachlan, gave extensive evidence recorded in the transcript of 27 January 2009. Since the claim had not been assessed by an Approved Medical Specialist (‘AMS’) the issue for determination was solely whether or not the Respondent was liable to pay compensation for any hearing loss and any consequential medical expenses.
The Arbitrator found in favour of the Respondent on the basis that the Appellant had failed to discharge the onus upon him to prove that the Respondent was a ‘noisy employer’.
It is from this decision that the Appellant seeks leave to appeal.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 12 March 2009 records the Arbitrator’s orders as follows:
“1. Award in favour of the Respondent in respect of the Applicant’s claim for lump sum compensation under section 66 of the Workers Compensation Act 1987.
2. Award in favour of the Respondent in respect of the Applicant’s claim for expenses under section 60 of the Workers Compensation Act 1987.
3. Each party pay their own costs. I certify this case to have a level of complexity for both the Applicant and the Respondent and uplift costs by 20%.”
On 13 March 2009 the Registrar issued an Amended Certificate of Determination. The parties had agreed that the Arbitrator’s reference to a noise survey conducted at the Respondent’s premises in various paragraphs of her Statement of Reasons was incorrect. The Amended Certificate of Determination confirmed the orders made in the Certificate dated 12 March 2009 and noted:
“Paragraphs 12, 23(ii) and 29 of the Certificate of Determination have been amended to reflect the correct time of the survey, being 11.00am to 7.00pm.”
The parties’ agreement to this amendment was recorded in a further Amended Certificate of Determination dated 14 March 2009.
THE ISSUES IN DISPUTE
The Appellant has listed twelve grounds of appeal in support of his assertion that his employment with the Respondent had the tendencies, incidents and characteristics which could cause industrial deafness. As he rightly concedes however, the principle issue in dispute between the parties was whether his employment in various sections of the Respondent’s operations was in fact ‘noisy’. The grounds of appeal are detailed and extensive, but they essentially fall into four categories as follows:
(a)the Arbitrator’s refusal to admit the Appellant’s late documents;
(b)the reliability and accuracy of the Respondent’s noise survey;
(c)the Arbitrator’s findings as to the onus required of the Appellant to prove certain matters;
(d)the Arbitrator’s treatment of the Appellant’s evidence.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act. The amount at issue on appeal satisfies the threshold requirements of section 352(2) of that Act.
Leave to appeal is granted.
OTHER PRELIMINARY MATTERS
On 29 April 2009, the Appellant’s solicitor wrote to the Commission expressing concerns at what appeared to be an incomplete transcript of proceedings on 27 January 2009. An email sent on 3 July 2009 repeated these concerns and asked for an investigation.
The Commission then arranged for an investigation of the transcript which disclosed that 12 seconds were missing. This apparently occurred when the recorder’s batteries were failing, and a new set were installed. This took place at [T42]. A question from the Appellant’s solicitor appeared to have gone unanswered.
The Commission then wrote to both parties on 14 July 2009 giving details of the results of the investigation and inviting the parties to respond.
On 16 July 2009 the Appellant’s solicitor wrote to the Respondent’s solicitor stating as follows:
“It is our recollection that the following further questions are missing from the transcript:
1.Questions concerning the noise emitted from jet engines. In particular, Mr McLachlan answered that a worker could be exposed to a noise level of 127dB(a) from jet engines, if they were close enough to the aircraft.
2.Questions in respect of the variable conditions of the employment. Mr McLachlan conceded that a worker’s noise exposure would be highly variable depending on aircraft activity; and
3.Questions as to whether or not the operator was required to wear hearing protection. Mr McLachlan confirmed that the operator did not wear hearing protection, nor was he required to wear hearing protection by his employer.”
A copy of the solicitor’s handwritten notes from the hearing was attached to this letter.
On 21 July 2009 a copy of this correspondence and the notes was sent to the Commission by the Appellant’s solicitor who stated: “In the absence of any agreement between the Applicant and the Respondent, we ask the Commission to accept the contemporaneous written notes…” The alternative proposition was that the matter be remitted for re-hearing before a new Arbitrator. This material was also sent to the Respondent.
On 31 July 2009 the Respondent’s solicitor wrote to the Commission advising that he did not agree that the Appellant’s “…questions and evidence occurred…” during the missing 12 seconds of transcript. The Respondent’s solicitor set out in considerable detail his response to the three ‘questions’ the Appellant had suggested were dealt with during the missing section of transcript and submitted that “…this amount of time is not sufficient for the alleged questions and evidence to have occurred.” I will refer to those submissions more fully in due course.
The Respondent’s solicitor also submitted that since the missing part of the transcript was minor and did not detract from the substance of the evidence given by Mr McLaclan, the evidence and all the documents, transcript and submissions were sufficient for the appeal to be determined.
Having carefully considered the whole of the transcript and the parties’ submissions on the missing 12 seconds, I agree with the Respondent’s submissions. I propose to accept the Appellant’s handwritten notes of the evidence. Consistent with the objectives of the Commission, I do not think that it is appropriate that the matter be remitted for re-hearing given the extensive submissions made by both parties on this issue, and I am satisfied that I have sufficient information to proceed to determine the appeal.
THE EVIDENCE
The Appellant’s Evidence
In an undated statement annexed to his Application, the Appellant said:
“From 1994 to date I have been employed by Qantas Flight Catering.
In the first five years I worked in the wash up area and was exposed to noise from the large washing machine. The noise was so loud that I would have to raise my voice and stand beside my workmate(s) to communicate with them.
After the first five years I worked in the transport section of catering and would drive the high-lift truck from the catering area to the aircraft and back. I was exposed to noise from aircraft engines, generator noise and other incidental noise on the tarmac such as planes landing.
I wore ear protection occasionally.
Before working for Qantas Flight Catering I worked in Sudan as an Oil Technical Advisor in an oil company and was not exposed to a lot of noise.
I have no history of ear problems or infections, family incidence of deafness, head or neck injuries. I have had no exposure to firearms or recreational noise exposure.”
In a subsequent statement dated 2 December 2008 the Appellant added:
“…in the transport section…I delivered food to various aircrafts including the Boeing 737, 767,747 and Airbus 330-200 and 330-300.
For the Boeing 737, the whole process took approximately 25 minutes and this would happen 6 to 8 times per day.
For the Boeing 767, the whole process took approximately 40 minutes and this would happen 4 to 6 times per day.
For the Boeing 747, the whole process took approximately 1 hour and this would happen 3 to 4 times per day.
For the Airbus 330-200 and 330-300, the whole process took approximately 1 hour and this would happen approximately 1 to 2 times per day.
I confirm that I wore earplugs when travelling to the planes and back. They would not block out all the noise. I would still hear significant noise from the aircraft.
It is almost impossible to communicate with other workers. I find that I am not able to talk to my workmates, unless I raise my voice. There are also times when colleagues have had to continually repeat my name until they get my attention. Sometimes I would have to remove my earplugs to communicate.”
The Appellant relied upon a report of Dr Stylis, ENT Surgeon, dated 10 June 2008. He recorded this history:
“In the first five years he worked in the wash up area where there is significant noise from the large washing machine and where on many occasions one would have to raise their voice and stand beside their workmate to communicate with one another. After the first five years he was seconded to the transport part of the catering where he would drive the high-lift truck from the catering area to the aircraft and back. He was thus exposed to the noise of aircraft engines going (the worker says that this was mainly generator noise to keep the services like the air conditioning and so on going on in the aircraft, rather than the actual aircraft engines themselves) and any other incidental noise on the tarmac; eg planes landing.
Earplugs were worn when travelling to the planes and back.”
Dr Stylis assessed the Appellant as suffering from 12.3% binaural hearing impairment due to industrial hearing loss.
Two further reports from Dr Stylis dated 15 January 2009 and 23 January 2009 attached to an Application to Admit Late Documents filed by the Appellant on 23 January 2009 were rejected at the arbitration hearing on 27 January 2009. I will refer to that matter more fully below.
The Appellant gave very brief evidence at the hearing before the Arbitrator on 27 January 2009 [T48]. In answer to the question: “Are you required by the company to wear hearing protection?” he answered: “Yes, we’re required to do this, and we supply maybe plugs, hearing, so some always we’re keeping with us. That’s when we got the cover put on.” He was not cross-examined.
That was the extent of the Appellant’s evidence. It was noted at [T3] that the Respondent had agreed that the Appellant could arrange for his own noise test to be carried out, but this had not been done prior to the hearing.
The Respondent’s Evidence
The Respondent relied upon a report titled “Workplace Noise Survey, Q Catering, Kingsford Smith Airport” dated 18 June 2008. The report was prepared by “Environmental Results [Engineers & Consultants] Environmental, Architectural, Building & Occupational Acoustics” under the hand of Mr Stuart McLachlan.BE, Grad Dip Envi Studies, and a member of the Australian Acoustical Society. Noise testing was carried out at the Q Catering food preparation facility at Sydney Airport in June 2008. The aim of the survey was to obtain typical ambient noise profiles in defined zones of the facility and near the ears of operators servicing aircraft. Measurements were obtained at 17 locations in the building. For operators servicing aircraft, a noise dose meter was attached to an operator for a complete shift. The microphone was attached to the shirt collar of the operator as close to the ear as possible. A summary of the results appeared to show a peak level of 127dB(C) obtained from “tarmac sources” when “servicing aircraft”. The report stated:
“The highest noise exposure was for the operator involved in taking food to the aircraft and collecting used catering trolleys to take back to the catering facility. The measured noise dose of this operator was 82dB(A) which is within the 85Laeq,8h noise exposure criterion. This operator experienced a peak noise level of 127dB(A) for one second during the 8 hour shift. This was within the criterion for peak noise of 140dB(C).”
The report concluded:
“The measurement results indicated that no operators were exposed to noise levels that exceeded the 85dB(A) criterion either within the Q Catering facility or for the operator that was involved in the servicing of aircraft. There were no operators exposed to noise that exceeded the peak criterion 140LCpk(MaxP).
It was concluded that since noise levels were found to be within the national criteria that no special hearing protection is required.”
The Respondent arranged for the Appellant to be examined by Dr Kenneth Howison, ENT Surgeon, on 29 August 2008. In a report dated 9 September 2008, Dr Howison concluded:
“Mr Salama has a bilateral (sic) high tone sensori-neural apparent noise induced deafness of 9.5%.
In view of the [Workplace Noise Survey of June 2008], Mr Salama’s noise induced component of his deafness cannot be due to his employment with Qantas.
Mr Salama’s noise induced deafness is due to unacceptable noise levels but this is not at Qantas.
Mr Salama has a non-noise induced deafness of 4.4%.”
Mr McLachlan, the author of the “Workplace Noise Survey” gave extensive evidence before the Arbitrator on 27 January 2009. After detailing his qualifications and experience, Mr McLachlan then explained the nature of the equipment used to carry out the noise tests [T11]. This equipment he said gave “…a very accurate picture as to the noise exposure of people.” He then noted that tests were conducted in various areas within the complex as set out in his report. Tests were conducted on the tarmac over an eight hour shift “…constantly sampling for that entire eight hours.”[T12].
Mr McLachlan then confirmed that he had obtained a “peak noise level” of 127dB(C) and then attempted to explain the difference between dB(A) and dB(C) over considerable objection and discussion. He explained the results of the survey and the terminology used on page 5 of his report [T13-14]. He stated that the survey results were analysed through his computer software equipment. The results showed “…variation in the noise record over the day that indicated that there were certainly changes in the acoustical environment in which he [the test subject] was.” [T15].
When asked the question: “From your training and using the machinery that you did, are you in a position to make any scientific assessment of the reason for the 127dB(A) for one second in an eight hour shift?” Mr McLachlan responded: “No, I can’t be absolutely sure.” [T17]. The reference to 127dB(A) was incorrect and rectified to reflect 127dB(C) at [T18].
Cross-examination of Mr McLachlan commenced at [T18]. It was lengthy indeed, and I propose to set out a summary of the salient points.
At [T18] Mr McLachlan confirmed that there was a typographical error in his original report The reference to a peak level of 127dB(A) should have read dB(C) which is the correct reference for a peak reading. This “error” was made in his original report and subsequently rectified.
He was then asked about what material he was asked to bring to the hearing. He said that he did not bring the computer printout data since it was extensive and in digital form. He said: “In similar situations in other courts I’ve always produced a report. It’s a summary…because of the volume of data, it’s not appropriate to bring in a large box of numbers.” [T20]. When asked: “Is it fair to say if those documents were given to another expert in your field they would make sense of the findings?” he responded: “Yes, that could be so.”[T20]. However, the analysis of the data was done by the software itself.
At [T21] he said that the noise recordings on the tarmac were “highly variable” but that conditions inside the facility provided “constant sources”. At [T22] he agreed that the readings would depend upon what occupation was carried out, but said that, although he did not know the identity of the particular test operator, it was “a person who drove vehicles to aircraft and deliver the food trolleys.” He agreed that it was a supervisor employed by the Respondent who had “picked out one worker to do the test.” [T23].
The test was carried out during an 11am to 7pm shift. He did not agree that the airport was busier in the mornings, stating that “It would be busy in the afternoon too.” [T24]. He was unaware of the number of aircraft serviced by the test operator, but thought that he was only servicing the “767 aircraft.” which was “ a noisier aircraft.”[T25]. The readings he said produced “…consistent variation during the day.”[T25].
Mr McLachlan agreed that the test was obtained from one particular worker on one day. When asked if it would make more sense to conduct tests over five days and over different shifts, he said [T27]:
“We were working on the basis that this was a typical shift…I guess you can carry out as many tests as you like. The question is: are you satisfied that this is a typical exposure, is it a typical shift? I mean…if the guy was going to go and spend half the time in the office somewhere, you’d say that’s not typical…but I was assured by the people there that this person would be working all day on the process of taking material to and from the aircraft.”
Mr McLachlan stated that he personally did not monitor that worker. When asked:
“So are you telling me that if you tested this same worker over five days you wouldn’t get a better understanding of what his noise exposure would be than just doing a test on one single day?” he replied:” I don’t know the answer to that question. All I’m basing my view on is that this was a typical exposure…I’d speculate that it wouldn’t be significantly different if this was a typical working day.” [T27-28].
Mr McLachlan was then asked questions about the peak noise reading of 127dB(C). When asked if exposure to that peak reading for more than one second would alter his figures he said: “I’d be speculating on that one because the only evidence is…the noise levels that were reported…” [T28]. He agreed that no two days are the same and that there would be “variances.” He agreed that noise levels should not exceed 85dB(A) for a day. He then explained the nature of a “peak reading.” He said:
“You’ve got to be careful if you use decibels because a peak noise level, even in a fairly innocuous situation can read very high…numerically it’s a large number but…if it’s a pressure pulse type of thing or, for example, if the fellow knocked the microphone or did something like that…”
When asked if exposure to a jet engine could cause such a peak he said:
“Well, no, because the jet engine would be continuous. This is not continuous – this is a pulse…over a short space of time…it was a very brief pressure pulse, a peak…It’s not evidence of aircraft engine noise.” [T30]
Mr McLachlan said that he’d seen “short duration pressure pulse” events in previous work that he had done. It could occur if someone took the dosimeter off or dropped something onto it but he was adamant that it could not be caused by aircraft noise because “aircraft noise is constant.” [T31]. He rejected the proposition that the test operator may have left the dosimeter in a room like a lunch room because “there were variations in the readings” which suggested that the operator varied his tasks. [T32-33].
Mr McLachlan rejected the proposition that clothing such as a woollen jumper could interfere with the readings “at all” [T36]. He was then asked questions about conditions in the wash up area. He could not recall what was there other than “…a lot of trolleys… and people washing.” He was unable to say what conditions had been like in that area five years ago [T38].
The solicitor for the Appellant then attempted to ask further questions relating to the peak reading of 127dB(C). There was much argument and discussion about this since the questions seemed to be based upon information contained in a report from Dr Stylis which had been ruled inadmissible. Ultimately this exchange took place [T41]:
“Q. Is exposure at 85 decibels for an eight hour period the equivalent of…the maximum daily dose?
A. Yes…
Q. Is exposure at 88decibels for four hours the equivalent of maximum daily dose?
A. That’s right.
Q. Going through the table, is exposure for two seconds at 127 decibels the equivalent of the maximum daily dose?
A. Can I answer that question in this way: that you’re confusing the two indices. The daily dose has been developed separately through extensive research internationally. It wasn’t developed on the basis of a peak indicator. Always the LAeq indicator was used in the development of that. [The LAeq he explained at [T13] was ‘The equivalent noise level recorded during the measurement of a particular task.] You’re mixing oranges and apples and it just doesn’t work…you’re confusing the indices…but you’re talking basically about a peak noise level. Now, there isn’t the scientific evidence to support the direction in which you’re going. You are mixing oranges and apples. You can’t compare the two.”
At [T42] the solicitor for the Appellant then asked: “In terms of exposure of 127 decibels, what is that typical noise of?” At that point, a short adjournment occurred (12 seconds) while the batteries in the recorder were replaced. I will refer to the parties’ submissions on this issue later.
In re-examination at [T42] Mr McLaclan said that he personally had attached the microphone to the collar of the operator and that he was confident that it was placed properly and without obstructions. Attempts were then made to ask questions about the impact of hearing protection on the test results. Again, there was much argument and discussion, and it is not at all clear whether some questions were in fact ruled as inadmissible. Doing the best I can, this exchange at [T45] between Mr McLachlan and Counsel for the Respondent appears to have been accepted:
“Q. The hearing results of your test would be the results of a person who wore no hearing protection at all?
A. That’s correct.
Q. As an acoustical engineer, can you answer why people wear hearing protection?
A. It can be for a range of reasons: either they’re required to by their employer or they choose to wear them because of a comfort issue…
Q. Well, what’s the purpose of hearing protection?
A. Well, two purposes: firstly, if the levels are within the criteria it’s just a comfort thing. People don’t want to be irritated by the noise. The purpose of hearing protection for higher levels is to protect people’s hearing or ear from damage.”
Finally, at [T46], Mr McLachlan confirmed that the reference to Annexure D in his report which set out clinical levels where damage may occur was simply a restatement of the general standards and did not represent his findings: it was included as “a bit of additional information.”
THE ARBITRATOR’S FINDINGS AND REASONS
After detailing the evidence before her, the Arbitrator at [8] set out a summary of the oral evidence given by Mr McLachlan. The Arbitrator then considered the issues in dispute. She noted that neither party made submissions as to whether the Appellant sustained industrial deafness at all or as alleged during the course of his employment with the Respondent, noting that both parties “focussed solely on whether the Respondent was a noisy employer.”
In considering this issue, the Arbitrator made the following observations:
“20. The Applicant relies on the evidence of Mr Salama and Dr Stylis and submits that this evidence is sufficient to satisfy me that the Applicant was exposed to a noisy environment, in the wash up section in the catering building between 1994 and 1999, as well as being exposed in his later position, as an airline services operator driving a truck which delivers food to various aircraft on the tarmac.”
The Arbitrator then summarised the evidence of Mr Salama and Dr Stlylis before concluding as follows:
“23. The Applicant made extensive submissions in response to the Respondent’s noise survey of 8(sic) June 2008. As previously mentioned, the Applicant has not produced its own acoustic evidence, but instead relies on the evidence of the Applicant and Dr Stylis and submits that [the] noise survey is unreliable and should not be accepted. The bases of the defect are that:
i.The Applicant has been denied the opportunity to test the evidence due to the failure of the witness to produce the raw data. I accept the witness should have produced the raw material, irrespective of how voluminous it was, however, I also accept the responses from the witness that the data would be unintelligible without the computer programme which provides the results. Further, I note that the Applicant was given approval ( all be it late), to carry out its own noise survey.
ii.There was no evidence as to the identity of the worker chosen for the test, or details of the work he did, or the shift he worked. With regard to the shift, the witness did advise that the shift was the 11.00am to 4.00pm (sic – 7.00pm) shift and that both this shift and the earlier shift had busy periods.
iii.That the results of a single day survey are not sufficient to disprove noisy employer. The witness did acknowledge that no two surveys would be the same, and that some variance would occur. The Applicant’s evidence, however, does not provide any assistance as to what type of variations would occur in the wash room building. In relation to the tarmac, Mr Salama’s later statement expanded on the time on the tarmac and the number of visits to the parked aircraft. This evidence, however, did not bring sufficiently into question the survey’s peak noise level on the tarmac, and clearly indicated that the Applicant was not exposed over an eight hour period to the noise levels above85dB(A). The longest period on a daily basis that the Applicant is on the tarmac is up to 4 hours in a day, if he is servicing Boeing 767 aircraft, and as little as 2 hours a day, if servicing the Airbus. Although the Applicant described various aircraft type, it was acknowledged that during the catering service, the aircraft engines are not running. That being the case, the closest noise would be the generator. Other noise would be aircraft taxiing, taking off or landing. The Applicant gave no evidence as to level of noise or distance from aircraft or the level of noise of the generator.
iv.With respect to the washroom, the evidence was that the noise levels were likely to be more constant. The Applicant submits that the survey did not take into account that the Applicant worked in this facility between 1995 and 1999 and the survey did not confirm that the facility and the equipment had not changed since that time. I note however, that the Applicant had a copy of the survey report prior to filing the Application…and has not provided any evidence suggesting that the facility or its machinery was any different to that tested in June 2008. Further, as stated earlier, the Applicant did not seek to elicit such evidence at the Arbitration hearing, when it clearly had an opportunity to do so, if clarification were needed.
24. In submissions, the Applicant referred to two cases. The first case the Applicant relies on is Blayney Shire Council v Lobley & Anor (1995) 12 NSWCCR 52 (‘Lobley’). The Applicant submits that Justice Cole held that all that is required is to examine whether or not the employment has the ‘tendencies, incidents and characteristics’ to cause deafness and as such, the Applicant’s statement and the report of Dr Stylis, which have not been disputed, provide sufficient evidence.
25. The Applicant also relies on Dawson and Others t/as The Real Cane Syndicate vDawson [2008] NSWWCCPD 35 (‘Dawson’) and submits that the Applicant has presented evidence of the nature (volume) and extent (duration) of the noise exposure and that this is sufficient history for Dr Stylis to come to a conclusion that the Respondent is a noisy employer.
26. The Applicant submits that even the Respondent’s medical evidence from Dr Howison supports industrial induced deafness. I note that Dr Howison relies on the survey report provided to him to come to the conclusion that…the Respondent is not a noisy employer…My role, however, is limited to determining whether the Respondent is the last noisy employer.
27. Finally, the Applicant submits that the workplace was sufficiently noisy for the Respondent to require the Applicant to wear ear plugs for hearing protection and that this requirement suggests that the noise level was in excess of 85dB(A) based on hearing protection requirements in Appendix C of the Respondent’s noise survey report. I do not accept this proposition. I note that some employers may choose to adopt a rating of 80dB(A). I note that the use of hearing protection by the Applicant further reduces his exposure to noise, and as such, is a wise preventative measure by the Respondent, and not necessarily evidence of a level of noise exposure that carries the risk of inducing industrial deafness.”
The Arbitrator then turned to consider the submissions of the Respondent noting as follows:
“28. The Respondent disputes that it was a noisy employer at the date of claim. The Respondent’s submissions can be summarised as follows:
i.that the Applicant bears the onus of proving that the Respondent was a noisy employer in accordance with section 17 of the 1987 Act. The Respondent submits that the Applicant has failed to adduce sufficient evidence of noisy employer, as the Applicant’s statement is shallow and the medical report simply accepts the Applicant’s statement and concludes the Respondent is a noisy employer, without proper forensic analysis.
ii.that the level of noise to which a worker is exposed and whether that level is sufficient to cause industrial deafness is not evidence that can be given by a lay person; Galdemar v Asta Enterprises Pty Ltd (1998) 17 NSWCCR 155. Although the Respondent accepts that the Applicant is entitled to rely on Dr Stylis, the Respondent submits that the Applicant’s statement is insufficient to prove noisy employer when expert evidence of noise levels have been produced by the Respondent. Although the precise noise level is not necessarily required, the Respondent submits that Dr Stylis does not provide sufficient evidence to adduce noisy employer. The Respondent further submits that the facts in Lobley should be distinguished as in that case, no acoustic expert was called and therefore it was sufficient to rely on the best evidence available. Likewise in Dawson, there was no acoustic evidence and Deputy President Roche was satisfied that the medical evidence and a detailed statement were sufficient.”
The Arbitrator concluded:
“29. I am satisfied that the evidence of Mr McLachlan and his noise survey is sound, consistent and compelling. Despite extensive cross-examination, the Applicant has not satisfied me that the survey is unreliable. I accept that the survey is limited to a single day, however, the Applicant did not present evidence that the washroom is likely to differ to any great extent from day to day. Nor did it provide sufficient evidence to satisfy me that the 11.00am to 4.00pm (sic-7.00pm) shift on the 8 (sic) June was different to the days and shifts the Applicant works.
30. I therefore cannot be satisfied that the Respondent is a noisy employer or that the Applicant’s binaural hearing loss arises out of or in the course of his employment with the Respondent.”
THE SUBMISSIONS AND DISCUSSION
The ‘Late Documents’ Issue
The Appellant sought to rely upon two further reports from Dr Stylis filed on 23 January 2009. In his submissions on appeal, the Appellant also complains that the Arbitrator failed to admit a statement from a Mr Phillip Bruce, however, I note that that statement was withdrawn by the Appellant at the hearing on 27 January 2009 [T3].
The Respondent objected to the reports since they were served effectively the day before the arbitration (the Monday being a public holiday) and apparently commented on the noise survey and raised matters that the Respondent was not able to meet. The Appellant wanted them admitted it seems so that they could assist in cross-examination of Mr McLachlan. The Arbitrator was reluctant to adjourn the matter since Mr McLachlan was waiting to give evidence. After considerable discussion and debate, the Arbitrator agreed that the reports were prejudicial to the Respondent without it having the opportunity to refer certain matters raised in them to Dr Howison, and rejected them. She gave detailed reasons at [T6-7], pointing out that the Appellant had been in possession of the noise survey since the section 74 Notice was served.
I note at the outset that the Appellant does not seek to have those reports admitted as ‘fresh evidence’ on appeal. The Appellant’s submissions focus on the claimed error by the Arbitrator in refusing to admit the reports. The Appellant makes the following submissions:
“The reports were obtained by the Appellant on the grounds that there would be cross-examination of Mr McLachlan…after discussion at telephone conference… The Appellant asked the Arbitrator to wait until the oral evidence was closed, before a decision as to the admissibility of the late documents was made…the late documents, which were critical in light of the new evidence given by Mr McLachlan, should have been admitted into evidence as there was no prejudice to the Respondent and arguably little or no delay. Mr McLachlan was at the hearing and in a position to reply. Furthermore, the Respondent was granted leave to obtain further evidence at the conclusion of proceedings on the first day.”
There are factual errors in these submissions. The Respondent clearly spelled out the nature of the prejudice. There was no “new” evidence given by Mr McLachlan: he explained in further detail the contents of his report after being requested by the Appellant to be available for cross-examination. The Respondent was not granted leave to obtain further evidence: the Respondent was merely granted leave to reserve any cross-examination of the Appellant.
The Appellant submits that “The evidence given by Mr McLachlan was a departure from the findings of the Arbitrator as to the noise levels on the tarmac which were served by the Respondent.” Thereafter, submissions appear to focus on findings made by another Arbitrator in a similar matter I recently determined, namely Despotoski v Qantas Airways Ltd [2009] NSWWCCPD 42 (‘Despotoski’) to which I will refer more fully below. In the present matter, I am simply at a loss to understand the basis of this submission. The Appellant seems to suggest that the Arbitrator effectively closed his case in rejecting the reports of Dr Stylis, thus allowing the Respondent to “…present a new and different interpretation of the noise level on the tarmac…which seriously affected the evidentiary value of some of the Appellant’s evidence.” The Appellant appears to have misunderstood the nature of Mr McLachlan’s evidence. The Appellant required him for cross-examination. If his responses to questions were not what the Appellant wanted to hear, so be it. That was not “a new and different interpretation of the noise level on the tarmac”.
Finally, the Appellant submits that the Arbitrator failed to consider the principles set out in P & N Beverages Australia Pty Ltd v Hamoud [2008] NSWWCCPD 102 (Hamoud). That case concerned the refusal by an Arbitrator to admit late documents served by the Respondent a few days before a teleconference and twenty days before the hearing. Deputy President Roche concluded that the Arbitrator’s decision was wrong, notwithstanding an unsatisfactory explanation by the Respondent for the delay, and ruled that the documents should have been admitted in the interests of justice. Deputy President Roche referred to numerous authorities on this issue, but in terms of the rules and objectives of the Commission, the observations of Deputy President Byron in Coles Myer Limited v Tabassum [2005] NSWWCCPD 16 are particularly pertinent. He set out (at [18]) the following as factors which might be taken into account, in considering the admission of late documents:
“-Whether there was an acceptable explanation for the delay
-Whether or not the refusal to admit the evidence will cause a substantial prejudice to the party making the application
-The prejudice, if any, that would result to the other party
-Whether or not the delay in filing the document was attributable to the legal representative and not the party personally
-The nature of the proceedings, including the nature of the relevant statutory scheme
-General considerations of fairness and justice between the parties.”
In the present case, there is no satisfactory or indeed any explanation by the Appellant for the delay in obtaining the reports from Dr Stylis. It seems clear to me that the reports were obtained by the Appellant purely to assist in the cross-examination of Mr McLachlan. This conduct is completely inappropriate and demonstrates a fundamental misunderstanding of the legislation. I am also satisfied that the Arbitrator correctly ruled that their admission would be prejudicial to the Respondent.
In all the circumstances, I am not persuaded that the Arbitrator erred in her refusal to admit the late reports of Dr Stylis.
The Noise Survey
The Appellant has made extensive submissions as to the basis upon which he claims the Arbitrator “erred” in her treatment of the noise survey report of Mr McLachlan. I do not propose to reiterate those in full: the substance of the complaint seems to be that there were deficiencies in the report (and the oral evidence) such that the Arbitrator should have rejected its reliability and accuracy.
Similar submissions were made before the Arbitrator, and are repeated on appeal. The Arbitrator dealt with this issue at [23] of her reasons set out above. For example, she accepted that although Mr McLachlan failed to produce the “raw data” upon which his survey results were based, that material would have been “unintelligible.” This was consistent with Mr McLachlan’s evidence, and the Arbitrator was entitled to accept his explanation particularly in the absence of any evidence to the contrary from the Appellant. Similarly with the Appellant’s submission that: “The Arbitrator failed to consider the evidence of the Appellant, in respect to the unreliability of the survey, and that the survey does not relate to the Appellant.” As I said in Despotoski at [37], a case in which the facts and evidence are analogous to the present case, and involved a worker employed in the same category as the Appellant at the Respondent’s premises: “The Appellant’s criticisms of the Noise Survey are simply no more than that, and are unsupported by any evidence.” It is clear from her Reasons that the Arbitrator certainly considered the evidence of the Appellant, but rejected it for the reasons stated.
It is appropriate at this point to consider the evidence given during the break in recording. The last question asked by the solicitor for the Appellant was: “In terms of exposure of 127 decibels, what is that typical noise of?” The answer to this question, if given, was not recorded. It was clearly at the end of Mr McLachlan’s evidence since, once recording resumed, the Arbitrator then asked if weather conditions or the time of year could affect the readings. Mr McLachlan said no [T42]. It was then that re-examination took place.
The Appellant submits that Mr McLachlan answered that “a worker could be exposed to a noise level of 127dB(A) from jet engines, if they were close enough to the aircraft.” The hand written notes from the Appellant’s solicitor are of little assistance on this point. Certainly there is a reference on page 18 of those notes to “127dBa –close enough to jet engine. V. close to it – test – sure not.” On page 19, there are references to “variable conditions – depends on aircraft activity.” This is followed by notes stating “Worker – no hearing protect (unintelligible)” and then references to “don’t know.” The notes then say ”Exposed to more noise-distinguish him – required by (unintelligible) to wear protect…accord, does not need hearing protect…” On page 20 of those notes, there is a reference to the Arbitrator’s question as to the impact of weather conditions.
In terms of sequence, those notes would appear to reflect answers given during the 12 second break. I am prepared to accept that the notes could reflect the answers given by Mr McLachlan as the Appellant’s solicitor recorded it. However, these notes are clearly inconsistent with his earlier evidence at [T29-31] that a reading of 127dB(C) was highly unlikely to be from aircraft engine noise since such noise was continuous and the reading of 127dB(C) was not continuous but rather a brief pressure pulse or ‘peak’. I note that the Respondent points out that the reference by the Appellant’s solicitor to “127dB(A)” is an error, and the reference should be to “127dB(C).” There is a significant difference between these indices, and it casts some doubt on the accuracy of the notes. The Respondent also points out that Mr McLachlan said that he would have to speculate to answer such a question since various factors could affect such a reading [T30].
Even if I accepted the notes as an accurate reflection of Mr McLachlan’s evidence, I am not persuaded that they detract from his overall evidence for the reasons stated.
As to the Appellant’s claim that Mr McLachlan conceded that a worker’s noise exposure would be highly variable depending on aircraft activity, that is not inconsistent with his earlier evidence particularly at [T15] and again at [T21 –22] as to variable conditions on the tarmac.
In relation to the issue of hearing protection, the notes are again consistent with Mr McLachlan’s evidence that he was not sure whether or not the test operator was wearing hearing protection. This was the basis of questions put by the Appellant’s solicitor particularly at [T45]. Mr McLachlan certainly did not state that the operator did not wear hearing protection: the notes clearly state: “don’t know.”
I am not persuaded that the Appellant’s solicitor’s notes detract in any way from the overall evidence of Mr McLachlan. Like the Arbitrator, I am of the view that Mr McLachlan’s evidence was “sound, consistent and compelling”, and I am not persuaded that the Appellant has demonstrated that the noise survey and Mr McLachlan’s evidence was unreliable or inaccurate.
Many of the Appellant’s submissions on Mr McLachlan’s evidence are simply wrong and / or do no more than set out the author’s opinion. The following is a useful example:
“The survey did not take into account variables such as the time of shift, the occupation of the worker, the time spent on the tarmac and the types and the number of planes to which the worker is exposed. Accordingly, the survey cannot accurately assess the noise level of workers other than the operator for that particular day.”
There may be some merit in such a submission were there any evidence to support the proposition, but there was not. Moreover, Mr McLachlan addressed these matters in cross-examination and explained the nature of the test, and its reliability.
In summary, the Appellant’s criticisms of the noise survey are unsubstantiated. Cross-examination of Mr McLachlan did not elicit any evidence to cast doubt on the reliability and accuracy of his report.
The ‘Onus’ Issue
The Appellant submits that the Arbitrator erred in finding that the Appellant had the onus of proving that the Respondent’s facilities were different to those where the noise survey was carried out, and further that the Appellant had the onus of disproving that that the noise survey was “reliable and relevant.”
The Appellant carries the onus of proving that his employment was noisy (Galdemar v AstaEnterprises Pty Ltd [1998] 17 NSWCCR 155). The level of noise to which a worker is exposed and whether that level is sufficient to cause industrial deafness is not evidence that can be given by a layperson. As Deputy President Roche observed in Dawson & Ors t/as The Real Cane Syndicate v Dawson [2008] NSWWCCPD 35 at [44]:
“Whilst it is not necessary for a worker to call an acoustics engineer in every case of boilermaker’s deafness, it is not sufficient for a worker to merely say ‘my employment was noisy and I have boilermaker’s deafness’. It is always essential that he or she present detailed evidence (if no acoustics expert is to be relied on) of the nature (volume) and extent (duration) of the noise exposure and for that evidence to be given to an expert for his or her opinion as to whether the “tendency, incidents or characteristics” of that employment are such as to give rise to a real risk of boilermaker’s deafness.”
And as I pointed out in Despotoski at [34]:
“In the present case, just as Burke CCJ observed in Ilievski , the Appellant’s ‘subjective account of noise’ could not suffice when faced with expert evidence that the employment was not noisy. What was required was either expert acoustic evidence or commentary on the existing report, or evidence to support the Appellant’s dispute with the accuracy or reliability of the survey…”
Mr McLachlan carried out noise testing in 17 areas including “the wash area, transport dock, coolroom, chiller centre and packing area.” He was unable to say what conditions had been like in those areas five years previously [T38]. If the Appellant claimed that the area was somehow different, he should have provided evidence of that fact. He did not, and his statement was silent on this point. As the Arbitrator noted at [16]:
“Mr Salama answered one question orally…Notably, Mr Salama was not asked by his legal representative about the conditions of the catering building and wash area and equipment between 1994 and 1999.”
Once the noise survey was in evidence, the onus was on the Appellant to prove that it was in some way unreliable or defective. The Appellant attempted through lengthy cross-examination to demonstrate this, but he was unsuccessful.
The Appellant simply failed to discharge the onus upon him. The only evidence he brought was his own statements and a report of Dr Stylis dated 10 June 2008. There was no expert evidence in support of his assertions. As I pointed out in Despotoski at [38]:
“…the Arbitrator’s acceptance of the opinion of Dr Stylis over the findings of the Noise Survey would have been an error of the kind identified in Makita and Hevilift. Once the Noise Survey was in evidence, the onus was on the Appellant to respond with appropriate expert evidence. The report of Dr Stylis simply did not meet that requirement.”
The Appellant’s evidence did not fulfil his obligation “ to bring evidence concerning tendencies, incidents or characteristics” of the type which could give rise to the injury. (per Cole JA in Blayney Shire Council v Lobley & Anor (1995) 12 NSWCCR 52 (‘Lobley’). Nor did it comply with the evidentiary requirements set out in Galdemar and in Combined Civil PtyLtd v Rikaloski [2007] NSWWCCPD 181.
The Arbitrator’s Treatment of the Appellant’s Evidence
The Appellant submits that he did fulfil the obligations imposed upon him by Lobley and further, that the Arbitrator erred in failing to find that his evidence as to the duration and exposure to noise should be accepted.
The Arbitrator summarised the Appellant’s evidence at [20] – [22]. Although she did not specifically state that she accepted this evidence, she did not reject it. She found that Mr McLachlan’s evidence was sound and that the Appellant had not demonstrated that it was unreliable, notwithstanding that it was limited to a single day. She found at [29] that the Appellant had not established that conditions in the washroom were likely to differ to any great extent from day to day, or that the shift the subject of the noise test was different to those worked by the Appellant.
As the Respondent rightly points out, the Appellant has challenged much of Mr McLachlan’s evidence but without any proper basis. For example, the Appellant submits that the test operator who experienced a peak noise level of 127dB(C) for one second did not spend as much time on the tarmac as the Appellant. It is unclear as to the exact amount of time the operator spent on the tarmac, but more importantly, there is simply no evidence from the Appellant that he spent more time on the tarmac than the test operator, nor any evidence that more time on the tarmac would result in greater exposure to 127dB(C) or that such exposure could cause hearing loss.
The same must be said of the Appellant’s assertion that he was exposed to more noise than the test results indicated. That statement is no more than that; an assertion, without any evidentiary basis. There was simply no evidence that the duration of the Appellant’s exposure was greater than that of the test operator.
As I said in Despotoski at [36]:
“…There was no evidence from the Appellant that his duties differed in any way from those carried out by the test operator. Nor was there any evidence that the Noise Survey was carried out in a quiet area of the premises, and not where the Appellant worked. The report covered assessments in 17 areas including “the wash area, transport dock, coolroom, chiller centre and packing area”. Even if, as the Respondent points out, the Appellant was exposed to 127dB(A) (sic – (c)) for more than one second in a shift, that peak level is still below the national standard such that the duration of any exposure to such levels would not necessarily mean that such exposure was capable of causing industrial deafness.”
I am not persuaded that the Appellant has demonstrated that the Arbitrator erred in her treatment of the Appellant’s evidence.
CONCLUSION
My conclusions in Despotoski are relevant here. As I said at [39]:
“The Appellant was unsuccessful not because he failed to establish that he suffered from industrial noise induced deafness, but because he failed to discharge the onus of proof required of him to prove ‘noisy employment’. His submissions on appeal, while correctly identifying the relevant principles, do not demonstrate that, as Spigelman CJ said in State Transit Authority v Fritzi Chemler [2007] NSWCA 249 (‘Chemler’) the ‘true and correct view’ of the case was other than as determined by the Arbitrator.
In Despotoski, the evidence was limited to the written report of Mr McLachlan. The only difference in the present case is that, on this occasion, Mr McLachlan gave oral evidence. The Appellant failed to demonstrate by cross-examination that the report was inaccurate or unreliable.
Having conducted a review on the merits (per Spigelman CJ in Chemler), I am satisfied that the decision of the Arbitrator was correct, and the appeal must fail.
DECISION
The decision of the Arbitrator dated 12 March 2009 is confirmed.
COSTS
I make no order as to costs of the appeal.
Deborah Moore
Acting Deputy President
6 August 2009
I, MARIE JOHNS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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