Weeks v Griffith City Council

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Weeks v Griffith City Council & Anor [2024] NSWPIC 351
APPLICANT:	Trevor Weeks
FIRST RESPONDENT:	Griffith City Council
SECOND RESPONDENT:	B&C Plumbing Pty Ltd
MEMBER:	Parnel McAdam
DATE OF DECISION:	1 July 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; last noisy employer; no dispute that applicant suffered hearing loss; no dispute that first respondent was a noisy employer; first respondent asserted that second respondent was the last noisy employer pursuant to section 17; worker observed working on a job site with the second respondent; applicant and second respondent consistent in position that second respondent was not a noisy employer; Held – first respondent was last noisy employer; matter referred for assessment of whole person impairment and order for hearing aids made.
DETERMINATIONS MADE:	The Commission determines: 1. The first respondent employed the worker in an employment to the nature of which the injury of industrial deafness was due. 2. Award for the second respondent. 3. The matter is remitted to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows: a. Date of injury: 4 March 2020 b. Body systems/parts: hearing loss c. Method of assessment: whole person impairment. 4. The documents to be referred to the Medical Assessor are: a. the Application to Resolve a Dispute and attached documents; b. the first respondent’s Reply and attached documents; c. the second respondent’s Reply and attached documents, and d. the Application to Admit Late Documents filed by the first respondent and attached documents. 5. The first respondent is to pay for the medical expenses associated with the provision of hearing aids for the applicant pursuant to s 60 of the Workers Compensation Act 1987 in accordance with the relevant fee schedule.

STATEMENT OF REASONS

BACKGROUND

The dispute in this matter goes solely to the identification of who was the last noisy employer of Mr Weeks (the applicant). There is no dispute that Mr Weeks suffers from industrial deafness, or that he is entitled to have his permanent impairment assessed by a Medical Assessor. The applicant also claims medical expenses in the form of hearing aids. Again, the respondents do not dispute that Mr Weeks is entitled to that cost and I will make an order in that regard.
Mr Weeks has been employed in noisy industries for most of his working life, starting in about 1974. There were periods of no or minimal noise exposure, but the most recent noise exposure occurred when Mr Weeks was working as a plant operator/labourer, for one of the two respondents named in this dispute. The crux of this dispute is between those two employers, being B&C Plumbing Pty Ltd (the second respondent) and Griffith City Council (the first respondent). Each submits that the other is the “last noisy employer” pursuant to s 17 of the Workers Compensation Act 1987 (the 1987 Act).
The applicant previously commenced proceedings against the first respondent, alleging that they were the last noisy employer. Further investigations occurred and a claim was made on the second respondent. The applicant has always maintained that Griffith City Council was the last noisy employer, and B&C Plumbing (unsurprisingly) agree with that assertion.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) who, for the purposes of s 17 of the 1987 Act, is the last noisy employer of Mr Weeks, or in the words of the Act, who employed Mr Weeks “in an employment to the nature of which the injury was due”.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute (Application) and attached documents;
(b)    Reply and attached documents (first respondent);
(c)    Reply and attached documents (second respondent), and
(d)    Application to Admit Late Documents dated 13 June 2024 filed by the first respondent.
The parties took me to the critical evidence in the course of the proceedings. I will briefly summarise the relevant material below, and refer to that material during the course of my reasons.

The applicant’s statements

Mr Weeks provides two statements around one year apart.
His first statement is dated 23 August 2022. He describes his employment with B&C Plumbing whereby he was a plant operator and labourer, where he was exposed to minimal noise from a closed cabin backhoe and an open cabin mini excavator. He used the mini excavator only where required. He describes it as being only slightly louder than an average car. Mr Weeks states the main duty he had with B&C Plumbing being to operate the backhoe, which was closed and airconditioned. It was very quiet in the cabin. When he was not in the backhoe or operating the mini excavator, he would assist the labourers, which did not require hearing protection.
Mr Weeks goes on to describe his employment with Griffith City Council (the first respondent). It is not disputed that this employment was noisy and the history given reflects this. Other aspects of the statement are not relevant to the issue in dispute.
Mr Weeks provides a second statement dated 28 August 2022. In this statement he clarifies some of the issues in his first statement, particularly in relation to the period of employment with B&C Plumbing and subsequently.

The medico-legal opinions

Each of the parties to this dispute rely on independent medical experts. Mr Weeks relies on Dr Fagan who provides two reports, the first dated 21 December 2020 (prior to his employment with B&C Plumbing), and the second dated 14 August 2023. The first report confirms that the first respondent was a noisy employer and provides an assessment of impairment of 25% whole person impairment.
The second report is dated 14 August 2023 and concerns the period of employment with B&C Plumbing and subsequent work as a truck driver. Dr Fagan also considered the statutory declaration of Mr Pengelly and the report of Dr Howison. Dr Fagan concludes that the last noisy employer was Griffith City Council.
Dr Howison provides reports for the first respondent. The first is dated 11 April 2021. In this report, the doctor concludes that the last noisy employer was Griffith City Council.
Dr Howison provides a further report dated 7 October 2021. He comments that Mr Weeks did not inform him that he had been working with B&C Plumbing. He notes the reference to minimal noise exposure in the notice of claim and the statutory declaration of Daryl Pengelly. He states that there is conflict between Mr Weeks’ statement and Mr Pengelly’s statement. If one accepts Mr Weeks’ statement, then he would not consider the second respondent to be a noisy employer, but if Mr Pengelly’s statement is correct and Mr Weeks was exposed to an open cab excavator for considerable periods of time then B&C Plumbing is likely to be a noisy employer.
It was recommended that Mr Weeks be re-examined in a face to face setting to obtain an accurate history of employment.
Dr Howison provides a third report dated 11 June 2024. That report includes consideration of the noise conduction study performed by Day Design and the opinion of Dr Frank Anning who accepted that Mr Weeks’ employment with the second respondent did not expose him to loud noise. Dr Howison concludes:
“There is so much conflicting evidence as to whether B&C Plumbing was a noisy employer or not a noisy employer. The only way I can usefully answer this question is to re-examine the patient and take a detailed history.”
Dr Anning provides a report for the second respondent. He takes an up-to-date history of employment, including with the two respondents and as a truck driver, following Mr Weeks’ cessation of employment with B&C Plumbing. He states he spoke “at length to the worker about the conditions of his employment”. His conclusion is:
“Mr Weeks was adamant that the noise that he was exposed to with B & C Plumbing Pty Ltd was not noisy. He said his excavator was very quiet, it was possible to stand beside it while it was running and carry on conversation. This would indicate that the noise level was well within acceptable levels.
On speaking to Mr Weeks at length and examining the documents supplied to me, I would consider that B & C Plumbing Pty Ltd was not the last noisy employer. The last noisy employer would have been Griffith City Council.”
Dr Anning goes on to provide an assessment of impairment which is markedly higher than Dr Fagan’s, but concludes that the major change is not due to noise exposure, but due to degeneration of some other kind.
The second respondent also obtained a noise conduction study from Day Design, dated 20 December 2023. The study was to measure and assess the occupational noise exposure of Mr Weeks whilst working with B&C Plumbing. The measured occupational noise levels of tasks undertaken by Mr Weeks are recorded, being operating the backhoe, operating the mini excavator and walking around the construction site. The calculated average daily noise exposure for the backhoe (six hours use) and mini excavator (two hours use) are both below the relevant threshold of 85dBA. The conclusion reached in that report is that in his year of employment with the second respondent, he was not subject to noise that could have caused a hearing disability.

The lay evidence

I have also been provided with limited but critical (for the first respondent’s case) lay evidence in this matter.
Mr Daryl Pengelly provides a brief statutory declaration dated 12 April 2021. He states that he has seen Mr Weeks working at the Zambil Street project throughout late 2020 and early 2021. He has sighted the applicant operating small equipment, including an open cab excavator.
Craig Barrington, Director of B&C Plumbing, provides two relevant documents. The first is a letter dated 4 July 2023 in which he provides Mr Week’s job description as a general labourer and machine operator.
The second is an email dated 22 November 2023 which poses a series of questions answered by Mr Barrington. Theses questions and answers expand upon the duties performed by Mr Weeks, the nature of his work, and whether it was noisy.

SUBMISSIONS

Due to the nature of issues in dispute in this matter, being, in assertion by the first respondent that they were not the last noisy employer and the consistent contravening position taken by the applicant and first respondent, the proceedings were conducted by the first respondent providing submissions, followed by the applicant, the second respondent, and then finally the first respondent providing brief submissions in response.

The first respondent

The first respondent submits that I should proceed cautiously in relation to the evidence that is before me. The first respondent suggests that there is evidence before me that would cast doubt on the statements provided by the applicant.
The first respondent referred to the statutory declaration of Mr Pengelly and submits that the work identified at B&C Plumbing was the same work that he had been doing at Griffith City Council.
In respect of the evidence provided by Mr Barrington, it was submitted that the job duties as described show work outside of the cabin of the machinery, and that he would only operate the backhoe when the normal operator was not available. In respect of the email of Mr Barrington, the first respondent submits that it is inconsistent with the previous evidence given as that it had previously been asserted that Mr Weeks only worked as a plant operator when the main operator was not present.
The first respondent submits that I could not give weight to the Day Design occupational noise exposure report as it was provided two years and nine months after Mr Weeks last worked for B&C Plumbing.
The first respondent also suggested that the site worked on with B&C Plumbing was the same as Mr Weeks worked on with Griffith City Council.
The first respondent submits that I would proceed with great caution as to what I accept as truthful evidence, and that Mr Barrington’s evidence cannot be considered to be reliable and is internally inconsistent in a material way. The evidence of Mr Pengelly casts doubt on that evidence, and Mr Weeks’ statement is inconsistent with Mr Barrington’s evidence that he was always in the backhoe. Accordingly, I would not be satisfied that the first respondent was the last noisy employer.

The applicant

The applicant first confirmed that it was clear that he must succeed against one of the respondents. The applicant has consistently maintained that the second respondent was not a noisy employer and there is no dispute that the first respondent was noisy.
The applicant took me to parts of Mr Weeks’ statement which contrast the noise he was exposed to with Griffith City Council and B&C Plumbing.
The applicant submits that there is no evidence that the Zambil Street Project was the same site that Mr Weeks worked on with Griffith City Council, and that just because you have the same job title does not mean you have the same exposure to noise.
The applicant relies on the noise conduction study which was tested on the same equipment Mr Weeks worked on, albeit two years later. It was the same model, and likely the same machines tested.
In respect of the evidence of Mr Pengelly, the applicant submits that he does not say that it was noisy, and there is no evidence as to who Mr Pengelly is, nor that he was scrutinising every aspect of Mr Weeks’ day. The first respondent is asking us to infer something that simply isn’t there.

The second respondent

The second respondent confirms that there is uniformity between the applicant and second respondent and that they agree with the applicant’s submissions. The second respondent submits that if I were to find that they were the last noisy employer it would go against the preponderance of evidence.
What the applicant has to tell us is very important as he is at the coalface. He spent 36 years with Griffith City Council, and states that the second respondent was not noisy but the first respondent was. It would be a big leap to reject that evidence.
In respect of the evidence of Mr Pengelly, it was submitted that what he doesn’t tell you is what else the applicant was doing. He doesn’t say whether Mr Weeks was working as a labourer and doesn’t tell you anything about the time he spent working or the division of labour. Dr Fagan picks up on that in dealing with the statement of Mr Pengelly, noting that the noise of the backhoe was slightly louder than the noise of a car. Dr Fagan states that you cannot rely on the statutory declaration of Mr Pengelly.
Dr Anning supports the noisy employer assertions made by the applicant.
For the first respondent, Dr Howison first accepted that council was a noisy employer, but then provides a later report with a series of caveats. Ultimately Dr Howison cannot give an answer. On the evidence of Dr Howison, the first respondent cannot show that the second respondent was a noisy employer.
It was submitted that the Day Design report was uncontested, and if there were occasional impact noises of a higher dBA, they would have been minimal and not impacted on the applicant.
In dealing with the evidence of Mr Barrington, the second respondent submits that in the first letter it is unclear what questions have been asked of him, which minimises the first respondent’s attack on his evidence. It is important to reflect on how the questions are answered in the email exchange. He was asked specifically about machinery and equipment and the sources of loud noise. On a proper analysis of the two responses, they are consistent and consistent with what the applicant says.
The second respondent submits that I am being asked to overhaul the evidence provided on the basis of the statutory declaration of Mr Pengelly, but it is not a thorough explanation of anything, and it does not even say the site was noisy. No further statement has been provided from Mr Pengelly to further explain what he observed and the statutory declaration can be ignored, as could the criticism of the statements of Mr Barrington.

First respondent in response

In response, the first respondent submits that there are so many inconsistencies in this case. Reference was made to the two notice of claim/injury forms attached to the Application which were said to be inconsistent, and the evidence being given is what was convenient at the time.
In respect of the first letter of Mr Barrington, the questions are obvious from the answers, which are very specific. You do not need the questions to understand what is being conveyed. It was also noted that the letter was provided before B&C Plumbing were joined to the proceedings. Once B&C Plumbing joined, Mr Barrington gives different answers.
The external noise of the excavator was recorded at 102dBA, and it is not safe if there is consistent exposure to that amount of noise. The first respondent suggested that the reports of Dr Anning are based on histories that have been cast into doubt and on the evidence I would not be satisfied on the balance of probabilities that the first respondent was the last noisy employer.

FINDINGS AND REASONS

I will refer to the issue in dispute in this matter by the commonly understood term of “last noisy employer”. That is pursuant to s 17 of the 1987 Act, to identify the employer who employed Mr Weeks in employment to the nature of which the injury of industrial deafness was due. There is not dispute that Mr Weeks has been exposed to noise in the course of his career and the extent of his hearing loss is significant. There are two possibly noisy employers – Griffith City Council, the first respondent, and B&C Plumbing, the second respondent.
Mr Weeks was employed by the first respondent for an extended period of time, over 35 years. In that time, he was exposed to the noise of machinery, trucks, pumps, jackhammers, and general construction noise. He was a plant operator and labourer.
Mr Weeks left employment with Griffith City Council in March 2020 and commenced employment with B&C Plumbing. The evidence he provides in his statement is that this employment was not noisy. He mainly operated a closed-cabin backhoe which was sealed and not noisy, and an open-cabin mini excavator, which he states was a “bit louder than the average car”. He also assisted in some labouring duties, but this did not require hearing protection as it did not involve machinery. As the second respondent submits, the history given in the applicant’s statement is important as he was at the coalface, and it would be a big leap to reject that evidence.
The first respondent relies on and addressed submissions to a statutory declaration provided by Mr Pengelly. It appears that this is the index of the second respondent being joined to the proceedings. That statutory declaration provides an observation of Mr Weeks working at the Zambil Street Project with B&C Plumbing.
I have great difficulty accepting that this evidence is at all probative or is relevant to the issue in dispute – that is, who is the last noisy employer – for the following reasons:
(a)    it is not explained who Mr Pengelly is, his qualifications, or how he is connected to the claim made and the issues in dispute;
(b)    there is no record of the level of noise experienced at the site by Mr Pengelly or, more relevantly, Mr Weeks, when the observations were made (for example, as a hypothetical it could be that Mr Pengelly observed Mr Weeks from across a large worksite and had no actual idea of the noise experienced by Mr Weeks), and
(c)    critically, the observations made by Mr Pengelly of the tasks undertaken by Mr Weeks are consistent with his own statement evidence. Mr Pengelly states that he observed that Mr Weeks “would normally operate an open cab excavator to dig ground surface for asset installation”. Mr Weeks describes working on an open cab excavator in his own statement.

This is not some “gotcha” piece of evidence that complete undoes the applicant’s case or places liability on a different employer. It confirms and is consistent with other evidence given, and without further explanation of the periods of observation (was it hours, minutes, days at a time?), and the amount of noise experienced, it cannot be given much weight.
Dr Howison places great weight to the conflicts he suggests exists in the evidence. He notes the statutory declaration of Mr Pengelly and states “There is obvious conflict between Mr Weeks’ statement and Mr Pengelly’s statement and I have no way of knowing which statement is correct”. He postulates two possibilities depending on which statement “is correct”:
“If Mr Weeks’ statement is taken as correct then one would not consider B&C Plumbing to be a noisy employer.
If Mr Pengelly’s statement is correct and Mr Weeks is exposed for considerable periods of time operating an open cab excavator then B&C Plumbing, in my opinion, is likely to be a noisy employer.”
One must read this opinion closely to determine what it is that Dr Howison is saying, as it is not abundantly clear on the face. I would first observe that I do not believe that this is a situation with conflicting evidence where only one statement can be said to be “correct”. As I have set out above, the history given by Mr Weeks is not inconsistent with the evidence of Mr Pengelly. At no point does Mr Weeks deny that the work he did with B&C Plumbing is as set out by Mr Pengelly. He denies that it was noisy, which is an important distinction that tempers the weight that I can give to Dr Howison’s opinion.
Secondly, Dr Howison’s opinion on accepting the statement of Mr Pengelly as correct is accompanied by a caveat, that requires Mr Weeks to be “exposed for considerable periods of time operating an open cab excavator”. Based on the other evidence provided, including the statement of Mr Weeks and the email of Mr Barrington, that was for short periods of time and a maximum of two days. Dr Howison appears to have not properly considered the actual content of the statements about the work performed and the exposure to noise, and accordingly his opinion has been clouded by what he sees as an irreconcilable conflict that in my view does not exist.
This opinion is further promulgated in Dr Howison’s report dated 11 June 2024, where he was provided with the email and letter of Mr Barrington as well as the noise report from Day Design which specifically measured the noise Mr Weeks would have been exposed to. In spite of this further evidence, Dr Howison concludes:
“There is so much conflicting evidence as to whether B&C Plumbing was a noisy employer or not a noisy employer. The only way I can usefully answer this question is to re-examine the patient and take a detailed history.”
No further examination took place to allow Dr Howison to take a detailed history, and I am left with an opinion based on the material provided that does not, in my view, properly grasp with the evidence. I do not find the reports of Dr Howison persuasive.
Dr Fagan, on the other hand, has considered the relevant question when providing his updated opinion of 14 August 2023; that is the noise to which Mr Weeks was exposed in his employment with the second respondent. In considering the statement of Mr Pengelly, he states:
“I have read the statutory declaration of Mr Daryl Pengelly dated 12 April 2021. It is clear from this statement that Mr Pengelly was not present at Mr Weeks' place of work through an entire shift on any occasion, or indeed how often he visited the site. Therefore it is my opinion that Mr Pengelly is not in a position to state that Mr Weeks was exposed to intense noise over any period.
Further, I would disagree respectfully with the opinion of my colleague Dr Kenneth Howison that the two statements are contradictory in that Mr Weeks' statement is well documented and that of Mr Pengelly has no documentation at all.”
This is a similar conclusion to that I have reached regarding the evidence of Mr Pengelly and the weight that it can be given in determining this dispute. Ultimately Dr Fagan goes on to confirm his opinion that the last noisy employer was Griffith City Council.
Likewise, Dr Anning takes a full history of noise exposure and considered that history to conclude that B&C Plumbing was not the last noisy employer.
The first respondent’s submissions sought to cast doubt over the veracity of the evidence in the proceedings. Submissions were addressed to the letter and email of Mr Barrington, which were said to be inconsistent. I do not accept that the two documents are so inconsistent as to reduce their weight. I interpret the first letter of 4 July 2023 to be a very high level overview of the tasks performed by Mr Weeks. It explains the responsibilities of a general labourer and a machine operator, but does not posit how much time was spent on each role. The email of 22 November 2023, meanwhile, goes into more detail. This is understandable as there are a series of complicated questions posed requiring detail of employment, duties, and critically, exposure to noise. Mr Barrington’s email supports the claim that the first respondent was the last noisy employer. The fact that it was prepared after B&C Plumbing were subject of a claim does not diminish its weight. Mr Barrington was not the subject of cross examination and his credit has not been impugned.
The first respondent also suggested that the Day Design report was unreliable as it had been prepared a significant period of time after Mr Weeks left employment with B&C Plumbing. I do not accept this submission. The report is thorough and tests the specific equipment Mr Weeks used during his employment. The evidence is not contradicted by any other expert and there is no suggestion that the work undertaken by B&C Plumbing has changed drastically since Mr Weeks left employment. In the absence of contradictory evidence in that regard, I am satisfied that I can give weight to that evidence and it provides further support for a finding that B&C Plumbing was not a noisy employer.
I do not accept that Mr Weeks has given evidence of “what is convenient at the time” as submitted by the first respondent. Mr Weeks has always maintained that his employment with the first respondent was noisy and the second respondent was not. He was obliged to bring a claim against the second respondent in order to protect his interests based on the opinion of Dr Howison. The fact that the claims are inconsistent (in that the claim made on Griffith City Council suggests that B&C Plumbing was not noisy employment, whilst the claim made on B&C Plumbing suggests that it was) simply reflects the requirements of litigation. It would be inappropriate to suggest that the existence of two claims undermines the applicant’s evidence, when he was, in essence, required to make a claim on the second respondent because of the decision of the first respondent.
I accept that Mr Weeks may have been exposed to noise of up to 103dbA from the outside of the backhoe from time to time, as set out in the specifications for the equipment provided by the second respondent. There is no evidence that this was for extended periods, and Mr Barrington explains that when leaving the cabin, the machine would be idling or turn off or disengaged. The noise of up to 103dBA would only be present when the machine is being operated, when Mr Weeks would have been inside the cabin.

SUMMARY

I do not accept the first respondent’s submissions that B&C Plumbing were a noisy employer within the meaning of s 17 of the 1987 Act.
There is no dispute that the first respondent was a noisy employer, and accordingly I will make the appropriate orders referring the matter for medical assessment and an order for the payment of hearing aids.

[2024] NSWPIC 351

1 July 2024