Tsoumbris and Pacific National Services Pty Ltd (Compensation) - [2022] AATA 3249

Tsoumbris and Pacific National Services Pty Ltd (Compensation) [2022] AATA 3249 (10 October 2022)
Division:GENERAL DIVISION
File Number(s): 2021/6629
Re:William Tsoumbris
APPLICANT

AndPacific National Services Pty Ltd
RESPONDENT

Decision
Tribunal:Member A Ward
Date:10 October 2022
Place:Adelaide

Pursuant to s 43 of the Administrative Appeals Tribunal 1975 (Cth), the reviewable decision is set aside and substituted with the following decision:
(a)The Applicant suffers an impairment as a result of an injury that arose out of and in the course of his employment; and
(b)The impairment is permanent; and
(c)All reasonable rehabilitation treatment has been undertaken; and
(d)The degree of impairment attributable to his binaural hearing loss equates 12% of the whole person as per the Guide to Assessment of the Degree of Permanent Impairment Edition 2.1 and a 5% tinnitus loading;
(e)The Applicant is entitled to his costs of these proceedings to be determined by the Tribunal if not agreed.

....................[SGND]....................................................
Member A Ward
Catchwords
WORKERS COMPENSATION – Safety, Rehabilitation and Compensation Act 1988 (Cth) hearing loss claim accepted – Section 24 – hearing loss impairment – impairment compensation not payable if binaural hearing loss suffered by employee is less than 5% - employer became licenced under the Safety, Rehabilitation and Compensation Act 1988 (Cth) – difficulty of factual finding regarding causation as to incapacity – employer did not arrange hearing tests before or during employment.
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Safety, Rehabilitation and Compensation Other Legislation Amendment Act 2001 (Cth)
Cases
Comcare v Kemp [2020] FCA 865
Re Grixti v Linfox Australia Limited [2009] AATA 566
Re Lobb and the Commonwealth (1983) 5 ALD 307
Re Nield & The Military Rehabilitation and Compensation Commission [2006] AATA 702
Re Chard & Telstra Corporation [2008] AATA 899
Re O’Kane & Comcare [2013] AATA 722
SGIC v Laube (1984) 37 SASR 31
Re Minister for Immigration and Multicultural Affairs: Ex parte Durairajasingham [2000] HCA 1
REASONS FOR DECISION
Member A Ward
10 October 2022
INTRODUCTION

The Applicant, Mr William Tsoumbris, was born on 25 December 1950 and at the time of the hearing of this matter, was 71 years of age. He worked for all of his working life in various roles in the Railways, which was described to be a noisy environment.
On 1 July 2001, the Respondent became a licensed corporation, as defined under the Safety, Rehabilitation and Compensation Act 1988 (“the SRC Act”). The licence was gazetted and on various terms in accordance with the SRC Act, Part VIII.[1]
[1]The Respondent is a licenced corporation and so with regard to the provisions of the SRC Act where the term “Comcare” is used, unless contrary to the intention of the specific sections, that is a reference to the licenced corporation and this decision should be read on that basis.
This is a claim for compensation for hearing injuries resulting in permanent impairment, as set out in s 24 of the SRC Act.
In most impairment cases, for compensation to be payable, the permanent impairment must be 10 percent or higher.[2] For a hearing loss impairment, the impairment must be 5%, and this applies to injuries suffered after 1 October 2001.[3] The relevant section here is s 24(7A):
(7A) Subject to section 25, if:
the employee has a permanent impairment that is a hearing loss; and
Comcare determines that the binaural hearing loss suffered by the employee is less than 5 percent;
[2] SRC Act, s 24(7)(b)
[3] Safety, Rehabilitation and Compensation Other Legislation Amendment Act 2001 (Cth).
[4] SRC Act, s 25 is not applicable to this case.
an amount of compensation is not payable to the employee under this section.[4]
It is noted that the Respondent accepts that once noise-induced hearing loss occurs, it is permanent. Thus, in this case, the finding of the Tribunal is that the injury that has occurred over time due to noise has resulted in impairment as defined in s 4 of the SRC Act and is permanent.
The scope of the Respondent’s Licence included an acceptance of liability for all injuries, loss and damage suffered by any employees of the licensee which occurred during the period for which the licence was in force, which in this case was from 1 July 2001.
A time point was raised in the preliminary dealings on this matter but was not pursued at the hearing.
The Applicant commenced working in the railways in 1966 when he was 16 years of age. He was employed by a number of entities over the course of his career and became an employee of Pacific National on 7 November 1994. His jobs varied over that time as will be discussed below. In all of his employment with the railways, in various jobs, he was exposed to loud noises.
The Applicant’s hearing deteriorated over the course of his employment, although he was not mindful of this being an injury that he suffered as a consequence of employment. He sought no treatment for his hearing loss. He put down any reduction of quality of hearing to aging. He also developed serious tinnitus and actually suffered from age-related hearing loss in addition to that caused from his employment.
There is no doubt that the Applicant’s exposure to noise over the course of his employment caused damage to his ears with resultant impact on hearing (with the exception of some age-related loss). There is doubt as to when the damage commenced due to a lack of testing over the duration of his employment.
The Applicant had a hearing test on 3 December 2020 which was accepted by the Respondent as the day which he first obtained medical treatment for his hearing problem. This is well after he ceased working for the Respondent, having retired on 8 March 2014.
On 28 April 2021, the Applicant made a claim for industrial deafness which was supported with a medical report dated 15 January 2021 from Dr Paul Fagan.[5] The Applicant also put in a request for a hearing aid.
[5] Exhibit 1, page 22.
This claim was accepted by the Respondent by notice dated 24 June 2021. That decision is not in dispute.
The Applicant brought a claim for lump sum impairment under s 24 and 27 of the SRC Act. For reasons which will be enlarged upon below, that claim was rejected on the basis that effectively the hearing loss did not equate to a permanent impairment of greater than 5 percent. The decision-maker used a mathematical calculation to arrive at this conclusion.
This decision also dated 24 June 2021 (the “decision under dispute”) was subject to a review, the outcome of which was handed down on 30 July 2021 (“the reviewable decision”). The review confirmed the earlier decision.
The hearing in this matter took place on 7 and 8 September 2022. The Applicant gave evidence, as did Dr Paul Fagan, a suitably qualified expert on matters pertaining to ENT issues, and also Dr Malcolm Baxter who is similarly qualified. Dr Fagan provided three reports and Dr Baxter provided one report. There was other information before the Tribunal.
For reasons that will be set out below, the Tribunal sets aside the reviewable decision. The Applicant has suffered an injury that has resulted in permanent damage which has adversely impacted upon him.
RELEVANCE OF LICENCE
The scope of the licence under which the Respondent has been operating from 1 July 2001 is set out in clause 7 of the Gazetted Notice:
7.The Licensee is authorised to accept liability to pay compensation and other amounts under the SRC Act in respect of all injuries, loss or damage suffered by, or in respect of the death of, any of the employees of the licensee where such injuries, loss and damage or death:
(a)occurred within the period of this licence; or
(b)occurred during the period for which the previous SRC licence was enforced.
Therefore, the licence does not extend to injuries that had been suffered by the employee prior to the commencement of the licence on 1 July 2001. As the Tribunal understands it, the interpretation that the Respondent seeks is that the Applicant has suffered a cumulative injury and for a cumulative injury, the Respondent is only responsible for what it caused in the period following the commencement of the licence in 2001.
This is the reading of s 103 of the SRC Act which is the Commissioner’s power to grant licences to entities in the position of the Respondent. There has to be a determination – and the Gazetted Notice is the proof that the scope of the licence - as to the degree to which and the circumstances in which the licensee may accept liability.[6]
[6] SRC Act, s 103(2)(a). Further references are in s 108 and s 108A.
The situation of the liability of a licensee was subject to consideration by the Tribunal in the matter of Re Grixti v Linfox Australia Limited.[7] In that case, it was noted that the SRC Commission in granting a licence may also determine that a licensee may accept liability arising from injury before the licence came into force. That had not occurred in the facts of the Grixti case and has not occurred here.
[7] [2009] AATA 566.
The power to provide for liability for events occurring before the licence came into force is found in SRC Act, s 108(3).
THE APPLICANT
The Applicant was a very impressive witness. His account was honest and forthright as to his career and the circumstances in which he was exposed to high levels of noise almost every day of his working life. There was no attack on his credibility nor the account he gave either for the purposes of the Tribunal process or for briefing medical personnel who assessed him.
The Tribunal accepts him as an honest and reliable witness in general. In some parts of his evidence, he was unsure of when some events occurred, which is natural given the fact that this a cumulative injury and, on his own admission, he did not realise he was suffering hearing loss as a consequence of the level of noise in which he was working. He thought the problems with his hearing, when he became mindful of them, were age-related rather than an injury caused by his employment. There is no suggestion that there was any other factor (other than the ageing process) that has affected the Applicant’s hearing over time.
HISTORY OF EMPLOYMENT
The Applicant commenced employment as a ticket collector for the railways. For convenience, the Respondent has noted a commencement date of 1 January 1966. Nothing much turns on the commencement date. The Applicant was not sure of it himself, but it was sometime in 1966.
As a ticket collector, he was exposed to noise from the train, the motors and noises from the outside including the screech of metal breaks, steel wheels on steel tracks, banging, scraping and rattling and the noise produced by vibrations. He did not have any hearing protection and if he had to talk to people over a metres distance, he would have to do so with a raised voice.
He described in his evidence that during this period of employment when he was assigned to the iconic[8] Red Hen train, it travelled along with its doors open for people getting on and off at the stops and for people who were smoking. He also worked on what he called “the green rattlers” which had wooden carriages which he remembered made a lot of noise. The Applicant’s evidence was that during this period of his employment between 1966 and 1969 when he was employed by South Australian Railways, he was not mindful of the ringing in his ears nor that he had difficulty hearing outside of the work environment.
[8] To South Australians.
He then worked for Australian National Railways from 1970 to 1974 as a shunter. He would operate a locomotive engine to shunt carriages together. He described this as making extremely loud metal impact noises as the carriages would crash together, a noise probably louder than a rifle shot. He did this work for 50 percent of the time during this period and for the other 50 percent he was a guard working on a run between Alice Springs and Port Augusta.
His evidence was that the trains upon in which he was a guard were very noisy. They were old trains, and the trips would take 7-10 days. During that period, he would be on the train and be exposed to the noise the whole time. There would be a break at Alice Springs for 12 or 24 hours and then the train would return to Port Augusta. He described this in evidence as “really noisy”. He would again have to speak with a raised voice. He said he was not aware of ringing in his ears at that time, nor of difficulty in hearing outside of the work environment.
While still employed by Australian National, he worked as a guard from 1974 to 1985. His shifts were 7 hours on and 7 hours off. He said he was exposed to noise from the train engine, which was the background noise, the metal brakes, the rattling, banging and scraping noises of the carriages and the metal wheels on metal tracks. He described it as “just a general noisy environment”. His trips for this period were in regional South Australia and to Alice Springs.
These trips would take 6-12 days and although he worked 7 hours on and 7 hours off, as he spent the whole time on the train exposed to noise, he again noted that communication over a metres distance had to be with a raised voice.
In all the employment up to this time, there was no hearing protection provided despite the fact it was patently a loud environment.
The Applicant commenced working as a train driver in January 1985. He said that all of his work as a driver was noisy. That was due to his proximity to the engine. Another factor was that on most, if not all, of the trains he drove during this period, the toilets for the drivers were located forward of the cabin and in the engine area. He noted that he worked an average of 40 hours per week driving trains the whole time and that these were older locomotives which were all very noisy. There was no hearing protection.
The Applicant’s evidence was that during this period, he was not mindful of tinnitus or ringing in his ears, but it is over this period that he started becoming aware of hearing loss, not so much for himself, but from what other people said to him. For example, they would ask him why he had the radio on at a high volume in the engine room. He thought he had it at that volume so he could hear it - but to them it was very loud. He put this down to advancing age. He also often had to ask people to repeat themselves when they spoke to him.
The Applicant gave evidence that when he had to go up to the toilet in the engine area and the train was going uphill, the noise was very, very loud. His evidence was that over this period it was “a really noisy environment” and that he was having difficulty communicating with his colleagues.
The Applicant commenced with Pacific National on 1 November 1994. He said the work there was also noisy in the beginning because Pacific National had older trains, similar to those he was driving with Australian National.
In addition to the noise from the engine, he gave evidence of other noises such as the steel wheels on the steel tracks, the various bells and whistles, the 2-way radio and passing trains. He was also required to inspect the engine room where communication was impossible even if a co-worker was standing right next to him.
He noted that after being in the engine room, it would take a while for his hearing to improve when he came out.
However, over time, Pacific National improved its fleet so that from 2000 to 2009, the older trains were being replaced with new trains. However, the Applicant was still driving their older engines because the upgrading of the fleet commenced on the eastern seaboard and took a greater time to move across to the South Australian operations.
The newer engines were fully insulated and the toilet for the drivers was away from the engine.
The Applicant found that later into his employment, by about 2008 or 2009, Pacific National had completed their upgrade and from that time until he retired in 2014, he drove the newer locomotives. On occasions, he would drive older noisier ones during this period of employment.
In giving evidence, he said he was mindful of ringing in the ears in 2011.
Thus, it can be seen that there was no let-up in the Applicant’s exposure to noise over his work with the railways. The nature of the noise might have changed from the days of the rackety Red Hen to the need to be effectively next to the engine when going uphill when using the toilet, but the Tribunal finds the dangerous exposure was constant over his work history. The lack of care in terms of providing hearing protection or regular medical checks of his hearing (if nothing else) is obvious. However, he did not notice hearing loss in the first ten years. That became noticeable when he was a driver, but it was a loud environment anyway, so how much the loud radio or requests to repeat comments was due to damage in the ears at that time or simply a reaction to the loud ambient noise in the driving compartment with its proximity to the engine is not known.
The lack of regular medical assessments causes difficulty in this case when trying to measure when the actual damage to the Applicant’s hearing was done because it turns out that the timing of that is important to the Respondent in the circumstances of the Applicant’s particular employment with the Respondent and the granting of the licence. There was a period of about 6 years when the Applicant was employed by Pacific National before they obtained the licence.
The Applicant had other health issues which impacted on his ability to work but they are not relevant to this case. Those health problems had nothing to do with his hearing loss nor the level of impairment arising out of his employment.
MECHANISM OF HEARING LOSS
The Tribunal was significantly assisted by information provided in documentary form and the oral evidence of the two specialists as to the workings of the ear.
Briefly, there are three parts to the ear. The outer ear is the visible part on each side of the head (called the pinna) and the external ear canal that goes into the head, ending at the ear drum.
The middle ear is the inside of the ear drum with the three small bones, the malleus, the incus and the stapes (the hammer, anvil and stirrup respectively) which are held in an air-filled space in the head.
The stapes pushes on the cochlea, which is the inner ear, and vibrates the cochlea. The cochlea is a fluid-filled spiral structure. When it is vibrated by the stapes, the vibrations are turned into electric signals by specialised hair cells. The Tribunal was informed that one of the functions of the hair cells is to amplify quiet sounds. They also try to moderate the signal generated by loud sounds. If sounds are very loud, these hair cells can be overwhelmed and may end up permanently damaged. This could be caused by a single loud sound or by repeated exposure to loud sound.
The hearing loss we are dealing with in this case is due to the repeated exposure to loud sound.
However, there was a view generally accepted by the experts that damage would have been in the first ten years of exposure to constant loud noise, but ongoing exposure thereafter would also be damaging. As noted above, he was not mindful of hearing loss outside of the work environment for well over ten years in this particular case.
Generalities can be difficult. The Applicant said that in his early employment before he joined Pacific National, he would have to talk in a raised voice due to the work environment. But his evidence, which is accepted, is that he was not mindful of hearing loss at that time. The hearing loss seemed to have occurred later when he was a train driver, and he realised this upon reflection on his interactions with other people at that time. He later thought those interactions indicated he was suffering a gradual onset of hearing loss. Because of the gradual onset, at the time it was likely to have been occurring, he did not attribute it to his work.

The damage occurs to the hair cells and the result of that damage is the deterioration of the quality of hearing and this can be measured by poor performance over various ranges by an audiogram. If regular audiograms were performed over the course of the Applicant’s employment, one could plot a graph which would illustrate when the actual significant damage was occurring. That is not the case here and both experts recognised the difficulties.
Dr Fagan thought it was virtually impossible to go back and pinpoint when the damage occurred and that is an honest account of the problem facing any assessor, including the Tribunal. In the initial rejection of the application, an artificial mathematical equation was used to try and explain what damage was caused by the post 2001 employment and what was not. Dr Baxter used a similar equation to work out how to apportion the effect of the Applicant’s work at Pacific National from 1 July 2001 to the Applicant’s actual reduced level of hearing which was not measured until 2018-2021. Both processes are not factual, rather just a measure of convenience in the absence of contemporaneous evidence.
Looking at the history as has been set out above, it is clear that there is a significant period during which the Applicant was a driver prior to 1 July 2001 and was exposed to high noise levels, almost constantly. But there was no medical assessment of what that loss was.
In this regard, the Respondent could have fixed this by having a pre-employment medical including hearing test when he commenced working with them in 1994. Otherwise, or in addition it could have performed a due diligence test prior to or on becoming a licenced employer under the SRC Act, especially given it intended to not cover any pre-existing injuries under the new regime – which included a period when they were nevertheless the Applicant’s employer. That is legally correct. Presumably, had they tested his hearing at either of those times and if the test confirmed hearing loss, he would have had a claim pursuant to the State based compensation systems. In addition, there would be a reference point for any increasing hearing loss over the period of the licence. This does not affect the ultimate decision in this matter. It is an observation. The hard fact is that there is no medical assessment of his hearing quality until after his employment ceased.
EXTENT OF INJURY
There is no dispute that as a consequence of the loud noises during the course of his employment, there was damage to his ears over time.
The extent of Applicant’s hearing loss has been measured by audiograms performed on 13 August 2019, 29 September 2020, 2 November 2020, 3 December 2020 and 8 November 2021.
Dr Fagan in his report made an adjustment to his findings of occupational hearing impairment which meant that the total of impairment across frequencies from 500 Hz up to 4,000 Hz was 28.4 binaural hearing loss. From this, he made a correction to the figure by removing 4.4 percent to take into account age-related hearing loss (presbycusis) to get to a total figure of 24. As a measure of the whole person impairment (WPI) pursuant to Chapter 7.1 of the Comcare Guidelines, it is 12 percent. Looking at the WPI, he added 5 percent on account of the tinnitus as it was diagnosed.
Dr Baxter viewed an audiogram dated 13 August 2019. This gave rise to lower figures than those of Dr Fagan. Dr Baxter selected this date as it was nearer to the last time of exposure to the noise which was when the Applicant finished driving trains and took leave for other reasons. His total percentage loss, after calculations in evidence, was 12.2 binaural hearing loss which he subjected to a lower age-related hearing deduction of 3.8 to achieve a total compensable binaural hearing loss of 8.4. He then took another step of looking at making an adjustment for the purpose of employment pertaining to the period from 1 July 2001 to reach an eventual WPI of 4.2 percent which is lower than the 5 percent necessary.
The Tribunal is also faced with the observation that there are different results from the audiograms as they were taken at different times.
Insofar as Dr Fagan’s audiogram was some time after the last period of work, he made a higher percentage adjustment for age-related hearing which the Tribunal regards as a method of correcting a criticism that might be raised as to why he chose that later date. However, there is no evidence that there was any deficiency in the audiogram upon which Dr Fagan relied. The doctors did not undertake that procedure themselves but relied on others.
No compelling suggestion was made, nor evidence called by any party that would throw the audiograms into disrepute. There is no suggestion that the Applicant exaggerated his responses in some way to make the audiogram results worse when undertaken by Dr Fagan. There is no suggestion that there is challenge to the fact that there was severe, significant exposure over many, many years. It follows as a matter of common sense that this has had a significant impact upon him, and that is the effect of his statement and his claims as to the impact the hearing loss has had upon his enjoyment of life, his relationships, and the like. In this regard, the Tribunal accepts the audiogram relied upon by Dr Fagan as an accurate representation of hearing loss as it fits comfortably with the undisputed history of the impact of the injury upon the Applicant.
ISSUES TO DETERMINE
The issue is to determine how those facts are to be applied in the circumstances of the case.
The Applicant directed the Court to the decision of Comcare v Kemp[9] of Her Honour Justice Perry in the Federal Court. This was an impairment case arising from binaural hearing loss. It dealt with the period of change when the permanent impairment for hearing loss went from 10% to 5% with the addition of s 24(7A) to the SRC Act. The issue in that case was when the injury arose. There was a similar issue as in the current case of damage to the hair cells and the subsequent impairment to hearing that arose over time.
[9] [2020] FCA 865.
Her Honour noted the purpose of s 24(7A) of the SRC Act and that the policy underlying the provision was that in the case of industrial deafness, disease may develop incrementally without the person being aware of its development. It may prove difficult, if not impossible, later to determine the day on which the disease was first sustained.
In the circumstances of that case, Her Honour considered that s 7(4) of the SRC Act was intended to address that difficulty. One such alternative was deeming that an injury would have been sustained “on the day” when the first of the two events happened under s 7(4), even if in reality, the day so selected bore little or no relationship to the unknown date on which the injury was in fact sustained.
In the Decision in this matter made 24 June 2021 to accept hearing loss and tinnitus as an injury/illness, the terms of the Decision were as follows:
“On the basis of the evidence currently available to me I am satisfied that you sustained an injury/illness namely “hearing loss and tinnitus” which were significantly contributed to by your employment. Further in accordance with section7(4) of the [SRC] Act, the date of your injury is deemed to be 3 December 2020, that is, the date on which you first obtained medical treatment for your injury (or the first date on which you were incapacitated due to your injury or impairment).
Therefore, in accordance with s 14(1) of the Act, I determine that Pacific National is liable to pay compensation for that injury/illness.”
The Applicant argues that being the case, there should be no reduction of WPI. The last employer, the Respondent, was liable for the entire impairment.
In the decision of Re O’Kane & Comcare[10], the Tribunal concluded that “loud continuous noise” which damaged the sensitive hair cells of the inner ears, perpetuated and worsened by driving noisy buses, would be an ‘injury’, being, “an injury (other than a disease)” for the purpose of applying the SRC Act.
[10] [2013] AATA 722.
With further consideration of Re O’Kane, in that case, the Applicant had hearing issues caused during his employment of driving a bus. There was also the issue of an assault to be taken into account but for relevant purposes, the first instance decision, that loud and continuous noise from driving buses damaged sensitive hair cells of the inner ears and was perpetually worsened by the continuous driving, found it was an ‘injury’ for the purpose of the SRC Act. This was upheld by the Federal Court which noted in paragraph 86 that, “the clear finding of fact of the Tribunal in the present case was that a number of events each constituted an injury and, over the years, had a cumulative impact”.
In this matter, the Tribunal considers a similar approach applies on the facts. We have the injurious presence of the loud noise, the intensity of which became worse when he became a driver. There is no distracting assault or other possible cause here as was the case in Re O’Kane but the underlying nature of injury from the continuous noise exposure is the same.
We have the Applicant becoming aware, not at the outset but well into his employment, of the hearing loss. This awareness came on reflection, such as remembering when he talked to others about the music being loud or him having to ask them to repeat themselves.
In its considerations, this Tribunal has had reference to matters referred to it in the case of Re Lobb and the Commonwealth[11], Re Nield & The Military Rehabilitation and Compensation Commission[12] and in Re Chard & Telstra Corporation.[13]These all provide assistance with regards to the position faced by the Tribunal in having to make a decision in the absence of clear evidence. In this case, that evidence would have been regular audiograms over the course of employment pinpointing when the injuries commenced and the extent of the loss over time.
[11] (1983) 5 ALD 307.
[12] [2006] AATA 702.
[13] [2008] AATA 899.
If we look at a notional commencement date of 1 July 1966 up to the commencement of the Respondent’s licence on 1 July 2001, that is a period of 35 years. (The Applicant started with the Pacific National entity in 1994.)
From the 1^st July 2001, the Applicant worked another period of 13 years to his retirement on 8 March 2014. During that period (but not for the entirety of that period) the new trains with better ergonomic features for the drivers, namely noise reduction and more appropriate placement of toilet and other facilities, came into use, mitigating the relentless nature of the noise levels to a degree. There was no evidence of concordant safety measures, such as hearing tests.
In addition, in the later years the Applicant took periods off work because of other unrelated injuries. However, there is no doubt he was exposed to dangerous noise levels during his employment with Pacific National after the granting of the licence in 2001, which is confirmed by their acceptance of the hearing loss from the time of the tests. They did not accept liability for the impairment, which is the dispute in this matter.
ANALYSIS
In the Decision of 24 June 2021 accepting liability in respect of hearing loss and tinnitus, the Respondent accepted that that condition was significantly contributed to by his employment. It was noted “further in accordance with section 7(4) of the Act the date of your injury is deemed to be 3 December 2020, that is the day on which you first obtained medical treatment for your injury”. This is the date when the Applicant had a test for his hearing.
In the case presented, the Respondent’s position is that whilst the Applicant suffered impairment as a result of the accepted injury and it was permanent, and that all reasonable treatment had been taken with regards to it, it did not accept that the degree of the impairment contributing to his binaural hearing loss equated to 5% of the whole person.
As the Tribunal understands the Respondent, this calculation was made on the basis that an assessment would have to be made over the whole period of the Applicant’s adult working life which has been described above. He was exposed to noise over that whole period.
A similar process was advanced by Dr Baxter. Dr Fagan thought it was difficult to assess when the impairment would have arisen.
This conundrum is not uncommon with hearing loss cases. In particular, two cases to which the Tribunal has been directed are Comcare v Kemp (‘Kemp’) and Grixti v Linfox.
In the Kemp case, Justice Perry noted with regards to section 7(4)(b) as follows:
“The policy underlying the provision is clear: as in the case of industrial deafness, a disease may develop incrementally without the person being aware of its development and it may prove difficult, if not impossible, later to determine a day on which the disease was first ‘sustained’. Section 7(4) is intended to address that difficulty by positing a number of possible alternative events by reference to which an employee “shall be taken to have sustained an injury, being a disease, or aggravation of a disease” for the purposes of the Act.”
The clear facts in this case are work that involved exposure to noise, essentially for all of the Applicant’s working life.
The Applicant did not consider he was suffering hearing loss from his work. His evidence was that he was not aware of hearing loss in the early years of his employment.
It was only on subsequent consideration of events that took place contemporaneously – namely having the radio up loud or asking people to repeat themselves – that he thought they were signs of hearing loss. These were not thoughts he had at the time. This would be especially so when his hearing would recover after exposure to noise stopped.
The fact he did not seek treatment confirms the view that he did not think there was anything medically or industrially wrong. He did not think he was being injured. However, the evidence of the specialist demonstrates clearly that he was, although nobody can fix a time for when that first occurred.
The Applicant is to provide a date of injury in such circumstances pursuant to section 7 of the SRC Act. That is the nature of the decision reached by Justice Perry in Kemp and is consistent with how the Respondent has acted in accepting the hearing loss claim (not that the acceptance is found to be binding for the purpose of this hearing on the assessment of the impairment).
The Applicant was not involved in the Respondent changing its insurance arrangements in 2001. There is no evidence that the employees under the new regime of insurance were subject to medical tests.
The granting of the licence on the terms that there was no liability for any pre-existing problems meant that if they existed, they could be attributed to the prior employer and presumably covered if proven under the state system of Workers’ Compensation. There was no previous claim by Mr Tsoumbris at all. If, for example, he received a medical shortly prior to or shortly after alteration of the workers’ compensation scheme, he could have pursued one if the evidence confirmed an injury.
The exposure to loud damaging noise continued after the change in the insurance regime.
This then brings us to the issue of the licence. In the matter of Grixti, a similar situation occurred when Mr Grixti became an employee of Linfox Australia in October 1993. Before that, he worked with the New South Wales Public Transport Commission and had also been self-employed. When working in the NSW job, the Applicant suffered a substantial degree of industrial deafness and he had claimed for that in the appropriate state system of workers’ compensation.
He then commenced working for Linfox and claimed he suffered further industrial deafness which was subject to testing on 11 April 2006.
As in this case, the employer Linfox was operating under a licence under Part VIII of the SRC Act.
Mr Grixti claimed under the SRC Act for industrial deafness in January 2007. The claim was denied on grounds including that “any claim under the Act would only relate to any increase in industrial deafness that occurred after the Respondent had become a self-insurer under the Act”. It was found in that case that it was essentially ‘nil’.
The important difference in the case of Grixti and the case at bar is that on the evidence in Grixti, “there had been little if any increase in the Applicant’s level of industrial deafness since the Respondent became a self-insurer on 3^rd April 2006”. That, as a matter of fact, can be dealt with on the basis that there was empirical evidence of previous loss (such as from the earlier claim). That is not the case here.
The date of the injury is important for this assessment and the procedure for assessing the date is set out in section 7(4) as detailed above.
The specific time when damage was caused is unable to be assessed by clear evidence. Reference has to be made to generalities and what would happen in the usual course of events. There is a danger of reliance on such generalities because really what is necessary is what happened in this case.
Generalised literature and studies on what might usually happen is not evidence of what did happen in the specific matter. This type of approach is criticised by Chief Justice King in the case of SGIC vLaube[14] which related to a drink-driving matter where the expert gave evidence as to how average people with a blood alcohol reading of .15 react in situations. Chief Justice King essentially found that was not evidence upon which the Court could rely. The evidence had to be how the particular person had been affected by the alcohol. These observations are used in this matter as a guide.
[14] (1984) 37 SASR 31.
Thus, whilst the 10-year period referred to by the experts is noted, it is not evidence applicable directly to Mr Tsoumbris’ situation. Testing was not undertaken. There were opportunities where it could have been. Thus, we are left to rely on the clear provisions of the SRC Act so as to affix a date for injury, and the consequences follow.
Here, because of the difficulty in just such a case, there is no measuring point at all in terms of medical assessment until the Applicant had retired.
Therefore, the situation facing the Tribunal in Grixti does not apply here because the operation of section 7(4) applies, and the date of the deemed injury is 3 December 2020. The Grixti case involved a much more scientific approach to be made to the actual hearing loss as a consequence of the earlier claim for it, which information is unavailable here. The Tribunal is forced to use the remedy provided by the statute. The Tribunal has noted and analysed the detailed written and oral submissions of the Respondent on these points, but on the facts of this matter does not agree. Not every issue raised has been addressed in these reasons - some of the issues have become otiose given the findings - but there is enough detail to understand the decision reached.[15]
[15] And note Re Minister for Immigration and Multicultural Affairs: Ex parte Durairajasingham [2000] HCA1 [65]-[67] per McHugh J.
The lack of clear evidence on this matter which would have been hearing tests at relevant times of pre-employment and rearranging of the insurance regime may well have led to a different result – but this now is speculation.
On the facts of this matter, the Tribunal sees no basis in the legislation to undertake the apportionment course adopted by the Respondent in its Determination of 24 June 2021 nor in the exercise undertaken by Dr Baxter. Such a course is inconsistent with the clear words of section 7(4) as is applicable on the facts of this matter. Therefore, the Applicant is entitled to the full extent of the assessed impairment with no reduction.
For the reasons expressed above, the Tribunal sees no reason to disagree with the impairment assessment by Dr Fagan as was provided during the course of the oral evidence. This required some modifications to his original report and these are set out in Exhibit 4 which is an amending report. This modification does not reflect poorly on the accuracy or validity of his opinions. He assesses a WPI of 12% and a tinnitus loading as per chapter 7.2 of the Comcare Guidelines of 5%.
DECISION

In accordance with the provisions of the SRC Act, the correct and preferable decision of the Tribunal is that the reviewable decision is set aside and substituted with the following decision:
(a)The Applicant suffers an impairment as a result of an injury that arose out of and in the course of his employment; and
(b)The impairment is permanent; and
(c)All reasonable rehabilitation treatment has been undertaken; and
(d)The degree of impairment attributable to his binaural hearing loss equates 12% of the whole person as per the Guide to Assessment of the Degree of Permanent Impairment Edition 2.1 and a 5% tinnitus loading;
(e)The Applicant is entitled to his costs of these proceedings to be determined by the Tribunal if not agreed.

I certify that the preceding one hundred and six (106) paragraphs are a true copy of the reasons for the decision herein of Member A Ward.

.....................[SGND]............................................
Associate

Dated: 10 October 2022

Date of hearing: 7 and 8 September 2022

Advocate for the Applicant:
Ross Stanton, Sir James Martin Chambers

Advocate for the Respondent: Peter Woulfe, Blackburn Chambers

Date of hearing:	7 and 8 September 2022
Advocate for the Applicant:	Ross Stanton, Sir James Martin Chambers
Advocate for the Respondent:	Peter Woulfe, Blackburn Chambers