Westlake v Sydney Symphony Orchestra Subscribers Committee
[2009] NSWWCCPD 12
•4 February 2009
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| CITATION: | Westlake v Sydney Symphony Orchestra Subscribers Committee [2009] NSWWCCPD 12 | |||||
| APPELLANT: | Donald Westlake | |||||
| RESPONDENT: | Sydney Symphony Orchestra Subcribers Committee | |||||
| INSURER: | GIO General Limited | |||||
| FILE NUMBER: | A1-5013/08 | |||||
| DATE OF ARBITRATOR’S DECISION: | 13 October 2008 | |||||
| DATE OF APPEAL DECISION: | 4 February 2009 | |||||
| SUBJECT MATTER OF DECISION: | Notice of injury; notice of claim. | |||||
| PRESIDENTIAL MEMBER: | Acting Deputy President Kevin O’Grady | |||||
| HEARING: | On the papers. | |||||
| REPRESENTATION: | Appellant: | Gillis Delaney Lawyers | ||||
| Respondent: | Moray & Agnew | |||||
| ORDERS MADE ON APPEAL: | ||||||
| 1. | The decisions of the Arbitrator dated 13 October 2008 are confirmed, but for the reasons stated herein. | |||||
| 2. | No order as to the costs of the appeal. | |||||
BACKGROUND TO THE APPEAL
On 10 November 2008 Donald Westlake (‘the Appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 13 October 2008.
The Respondent to the Appeal is Sydney Symphony Orchestra Subscribers Committee (‘the Respondent’).
The Appellant, who is 77 years of age, was employed by the Respondent during the periods 29 June 1954 to 2 December 1954 and between 4 April 1960 and 17 March 1978. His duties were those of a Musician performing with the Sydney Symphony Orchestra, he being the Orchestra’s Principal Clarinettist.
In July 2007 a claim was made on behalf of the Appellant by his former Solicitors against the Respondent claiming workers compensation benefits with respect to alleged industrial deafness. Liability in respect of that claim was declined by the Respondent’s Insurer in August 2007.
On 2 July 2008 an Application to Resolve a Dispute (‘ARD’) was registered with the Commission on behalf of the Appellant by his present Solicitors. The benefits claimed in the ARD were stated (at paragraph 5.3) to be medical expenses of $7,600 being in respect of “treatment, care or related expenses incurred or needed. Binaural hearing aids – digital.” Also claimed (at paragraph 5.7) was the sum of $3,848 in respect of 7.4% binaural hearing loss.
A Reply to Application to Resolve a Dispute (‘Reply’) was filed on behalf of the Respondent with the Commission on 22 July 2008. That Reply enumerated in Part 3 those matters in dispute as follows:
“The respondent seeks to rely upon the issues raised in the insurer’s correspondence to the applicant’s solicitors dated 24 June 2008, 27 March 2008 and 10 August 2007 annexed hereto and seeks to raise the following issues:
1. Whether the applicant can recover compensation: ss254 and 261 Workplace Injury Management & Workers Compensation Act 1998.
2. Whether the applicant’s claim has been duly made: ss260 and 282 of the WIM Act 1998.
3. The ‘deemed’ date of injury for the purposes of s17 of the Workers Compensation Act, 1987.
4. Whether the applicant has suffered the hearing loss alleged.
5. Whether the hearing loss suffered by the applicant is a consequence of exposure to noise exposure arising out of or in the course of his employment with the respondent.
6. Whether the respondent is the applicant’s last noisy employer within the meaning of s.17 of the WCA 1987.
7. Whether the treatment expenses sought by the applicant are reasonable and necessary and as a consequence of an injury within the meaning of s60 of the WCA 1987.
8. To the extent that any of the above matters are un-notified, the respondent seeks that those matters be determined by the Commission in accordance with s289A(4) of the WIM Act 1988.”
It was the Appellant’s allegation that his employment with the Respondent was employment to the nature of which the alleged injury of industrial deafness was due. It was further alleged that the Respondent was his last such employer.
The Appellant’s Application came before an Arbitrator for conciliation/arbitration on 7 October 2008 and a Certificate of Determination issued on 13 October 2008.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 13 October 2008 records the Arbitrator’s orders as follows:
“The Commission determines:
1. That there is an award for the Respondent.
2. That there is no order as to costs.
A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”
As noted in the Certificate, a Statement of Reasons (‘Reasons’) for the Arbitrator’s determination accompanied the issue of the Certificate.
ISSUES IN DISPUTE
The issues in dispute in the appeal are:
(i)Whether the Arbitrator erred in determining that, by reason of the Appellant’s failure to comply with the legislative requirements concerning time limitations as to the giving of notice of injury and notice of claim, he was debarred from recovery of compensation benefits.
(ii)Whether the Arbitrator erred with respect to the manner in which relevant provisions of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) applied to the facts as proven.
(iii)Whether the Arbitrator erred with respect to her factual findings.
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 of compensation at issue on the appeal is said to be the aggregate of the lump sum claimed and the sum claimed in respect of medical expenses that being $11,448. It may be seen that the subject matter of the appeal meets the threshold requirements of section 352(2) of the 1998 Act which must be met before a grant of leave to appeal may be made by the Commission.
The requirements of Section 352(2) and (4) having been satisfied and having regard to the subject matter of the appeal and the arguments raised I order that leave be granted to the Appellant to appeal to the Commission.
EVIDENCE AND SUBMISSIONS
The documentary evidence which was before the Arbitrator is noted at paragraph 7 of her Reasons where it is recorded:
“7. The following documents were in evidence before the Commission and taken into account in making this determination:
(1)Application to Resolve a Dispute and attached documents;
(2)Reply and attached documents.
(3)Application to Admit Late Documents dated 18.9.08.
(4)Application to Admit Late Documents dated 23.9.08.”
There is available before the Commission a transcript of proceedings which took place before the Arbitrator on 7 October 2008 (‘transcript’). It is recorded between pages 12 and 15 of the transcript that a number of questions were put by the Arbitrator directly to the Applicant and his responses were, it seems, treated as unsworn evidence before the Commission. No doubt this approach was adopted by the Arbitrator in the course of hearing having regard to the provisions of section 354 of the 1998 Act.
There were two factual matters of significance on this appeal which were the subject of agreement between the parties and they were:
(i)Date of the alleged injury was deemed to have occurred on 17 March 1978 being the last day of the Appellant’s employment with the Respondent.
(ii)That the Appellant, as stated by the Arbitrator at [3] of Reasons, “in about July 07 he lodged a claim against the SSO alleging the injury of industrial deafness”.
What is of importance is that nowhere in the evidence is there to be found detail of that claim made by the Appellant’s previous Solicitors. It is apparent that the parties and the Arbitrator have assumed that, whatever the form of that notice, it constituted both notice of injury and notice of claim. This matter is addressed further below.
There is before the Commission a copy of Statement made by the Appellant dated November 2007 which contains little, if any, direct evidence as to noise levels experienced by him in the course of his work with the Orchestra. Notwithstanding the omission of such evidence the content of that Statement permits inferences to be drawn as to the likely noisy conditions experienced by the Appellant in the course of his work. The Statement included reference to the number of personnel required for performance of the work of particular Composers as having grown to “120 plus, with double wind, brass and percussion closing ranks and fanning out in an arch around the rear of the orchestra …”. The Appellant noted that, with the growth of the numbers of personnel, the seating became “more compressed”.
The Appellant further states that personnel performing in a number of Australian orchestras “are now protected by transparent sound-screening devices, particularly in front of the brass and percussions sections, in order to protect the woodwind players like myself …”. The Appellant’s Statement also contains material, which was not the subject of objection, that may be characterised as an expression of expert opinion.
The Appellant relied upon the opinion of Dr Kenneth Howison as expressed in his report of 12 June 2008. Dr Howison recorded a history of the Appellant’s performance as a Clarinettist with the Sydney Symphony Orchestra “in front of the brass section” and that he was “exposed to considerable noise”. Dr Howison noted that the Appellant was “unable to wear any ear protection”.
Dr Howison expressed the opinion that the Appellant suffered noise induced deafness and that such was “due to his long period of work as a Clarinettist …”. That witness expressed the view that, following testing, a binaural hearing loss of 7.4% was demonstrated.
The Appellant relied upon a report from Mr Ralph Bennett, Consultant Audiologist. That witness, in his report of 24 March 2006, expressed the view following examination of the Appellant that “binaural hearing aids is indicated”. A document signed by Mr Bennett dated 24 March 2007 appears to be a “quotation” with respect to provision of appropriate hearing aids being in the sum of $7,600. I note that there is no evidence before the Commission that those hearing aids have been purchased nor that any expense has been incurred with respect to provision of hearing aids.
The Appellant relied upon a report from Charlen Lavoie, Audiologist which was apparently dated June 2007. That witness recorded a history of daily exposure to significant noise whilst the Appellant was working as a Professional Musician over a period of many years in an orchestra. The report noted that the Appellant’s position in the orchestra exposed him directly to the sound of the brass instruments. It was further noted that “no noise barriers were used to protect Musicians’ hearing”. That witness expressed the opinion that “use of binaural amplification is indicated …”.
The Appellant further relied upon numerous items of correspondence relating to his claim. The earliest correspondence forwarded by the Respondent’s Insurer to the Appellant’s former Solicitors dated 10 August 2007 includes the statement:
“I advise we decline liability on your client’s claim, upon review it seems our insured was not the last noisy employer.”
The Respondent relied, at the hearing before the Arbitrator, upon numerous documents which included a Statutory Declaration which appears to be undated, sworn by the Appellant. That Statutory Declaration enumerates the duties performed by the Appellant during his employment with the Canberra School of Music, his employer subsequent to his retirement from the Sydney Symphony Orchestra.
The Respondent also relied upon numerous items of correspondence relating to the Appellant’s claim which included a letter also dated 10 August 2007 from the Respondent’s Insurer to the Respondent. The Respondent’s reply dated 27 August 2007 was also before the Commission. The content of that correspondence is addressed below.
The Respondent relied upon the content of the Appellant’s personnel file concerning his employment with the Canberra School of Music between February 1978 and a date late in 1984. That file comprises a great many documents and it must be said that the vast majority of the Appellant’s employment records have little if any relevance to the claim brought on behalf of the Appellant.
Submissions
The transcript (at page 3) records a statement by the Respondent’s representative as to the grounds upon which the Appellant’s claim was disputed in the following terms:
“There’s two grounds on which we’re disputing the claim, Arbitrator: firstly, Mr Westlake’s failure to comply with the time provisions as set out in sections 254 and 261 of the Workplace Injury Management and Workers Compensation Act 1998, section 254 going to time required to give notice of injury and 261 going to the time in which to make a claim. As my friend points out, there are provisions within those sections allowing for time to be extended or for the failure to comply with those time frames being excused in certain circumstances, which I’ll be saying shortly aren’t that in this case, and also we’re talking [sic] issue with the applicant’s contention that we are the last noisy employer, as determined by section 17 and the case law interpreting that section as to what that phrase “last noisy employer” actually means.”
The submissions put on behalf of the Appellant followed the statement as to the relevant issues as recorded in [32] above. The Appellant’s Solicitor dealt firstly with the question of whether the Respondent was proven to be the last “noisy employer”. Reference was made to the Appellant’s evidence as to his observations concerning the introduction of sound screening and the use of earplugs by Musicians performing in orchestras. It was argued that the evidence concerning the Appellant’s employment with his subsequent employer the Canberra School of Music failed to establish that such employment was “noisy” in any relevant sense.
The Appellant’s representative proceeded to argue that, upon the facts as proven, the provisions of section 254 and section 261 of the 1998 Act were relevant. With respect to the time requirements contained in section 254 concerning the giving of notice of injury it was argued that the Appellant was entitled to be excused for his non-compliance by reason of ignorance of the occurrence of injury or as to the existence of rights flowing from the occurrence of such injury. Reliance was placed upon the provisions of section 254(3) of that Act (transcript page 4).
The Appellant’s representative proceeded to argue that the Appellant’s failure to comply with the time requirements stipulated by section 261 of the 1998 Act should be excused again upon the basis of the Appellant’s ignorance as argued with respect to the earlier section. Reference was made to section 261(4) of the 1998 Act. It was argued that the evidence established that the Appellant first became aware of the fact of injury in January of 2006 at which time the Appellant consulted Mr Bennett for audiological assessment.
The Respondent also made reference to sections 254 and 261 of the 1998 Act in the course of submissions before the Arbitrator. It was put, given the very substantial passage of time since the Appellant last worked with the Respondent, the non availability of records and the Respondent’s inability to determine noise levels, that it had been prejudiced by the delay in bringing notice of the injury and of the claim.
The Respondent proceeded to argue with respect to the question of “ignorance”, which appears in both of the sub-sections relied upon by the Appellant, that the evidence established that the Appellant:
“… has been aware of hearing loss for a considerable period prior to him bringing this claim, and, therefore, in my respectful submission, the provisions of sections 254 and 261 of the WIM Act 1998 operate as a defence for the Respondent in these proceedings.” (at pages 6 and 7 of transcript)
The Respondent’s representative proceeded to argue that, having regard to the Appellant’s duties with the Canberra School of Music as established in the documentation produced, the Respondent would not be found to be the last “noisy employer”.
The transcript records that the Appellant’s representative, in reply to the Respondent’s arguments, made reference to the terms of section 252 of the 1998 Act. It was argued that, having regard to the last mentioned section, the provisions of section 254 and section 261 of that Act were “not relevant”. No clear submission was made at that time as to the proper construction and application of relevant provisions, however during discussion as recorded reference was made by the Respondent’s representative to the provisions of sections 65 and 66 of the 1998 Act.
Submissions on this Appeal
Written Submissions in support of the appeal accompany the Appellant’s Application. It is to be noted that those submissions do not contain any clear statement of the grounds upon which the appeal is brought. It is however clear that the Appellant submits that the Arbitrator had committed error having regard to her conclusions as to the relevance of section 254 and section 261 of the 1998 Act to the facts of the matter.
The Appellant submits that the provisions relevant to the requirements concerning notice of injury and notice of claim are sections 61 to 66 inclusive of the 1998 Act. It was argued that the Appellant should be excused from compliance with such requirements. Particular reference is made by the Appellant to the provisions of section 61(2)(b) which provides there be no bar if it is found:
“(b) that the absence of, or defect or inaccuracy in, the notice was occasioned by ignorance, mistake, absence from the State or other reasonable cause; ….”
It is to be noted that section 61 is relevant only to the requirements concerning notice of “injury”.
The Appellant’s submissions proceed to argue that the Arbitrator erred in her approach and conclusions with respect to the time requirements stipulated by the 1998 Act and with respect to her conclusion that the Appellant was entitled to be excused from compliance with those provisions.
It is further submitted (at 4.26 of Submissions) that:
“4.26The respondent has had ample opportunity to investigate the matter, obtain statements from their client and investigate the appellant’s duties with the Canberra School of Music.”
The last mentioned submission appears to be made in support of an argument that the Respondent’s assertion that it had been prejudiced by reason of the delay in giving notice of injury and claim should fail. No attention is given to the matter of onus of proof.
The Respondent has provided Written Submissions in support of its opposition to this appeal. It is argued that the Arbitrator was correct in her determination of the dispute, in particular the determination as to the relevance of section 254 and section 261 of the 1998 Act.
It is submitted, in the alternative, that if section 254 of the 1998 Act was applied in error that the provisions of section 61(b) are “substantially the same” as section 254(3)(b). Upon that basis it is argued that “reliance on the incorrect section would not have led the Arbitrator into error”.
The Respondent proceeds to argue in support of the correctness of the Arbitrator’s factual conclusions which are the subject of challenge by the Appellant.
DISCUSSION AND FINDINGS
This appeal is brought pursuant to the provisions of section 352 of the 1998 Act. Subsection (5) of that section provides:
“(5) An appeal under this section is to be by way of review of the decision appealed against.”
The nature of the “review” stated in the aforementioned subsection was considered by the NSW Court of Appeal in Aluminium Louvres & Ceiling Pty Limited v Zheng [2006] NSWCA 34; 4 DDCR 358 (‘Zheng’) where the Court was there considering an appeal from a Deputy President of this Commission who had heard an appeal from an Arbitrator which involved arguments concerning suggested denial of procedural fairness. In his leading judgment Bryson JA (with whom Handley JA and Bell J agreed) said at [38]:
“38. A review is a different process to an appeal and the matters which may be considered and the manner in which they may be considered are somewhat wider. See Boston Clothing Co Pty Ltd v Margaronis (1992) 27 NSWLR 580 at 584 (Kirby P). An attack, on review or otherwise, on an Arbitrator’s discretionary decision in controlling procedure may be based on the test stated in House v R (1936) 55 CLR 499 at 504 ‑ 505; but that is not the only basis on which the Presidential member may act. The powers of a Presidential member on review are somewhat wider and extend to power to reopen consideration of a matter of which an Arbitrator has disposed; the manner in which the powers of the Presidential member are to be exercised is itself the subject of discretion of the Presidential member. ….”
The concept of “review” as it appears in the aforementioned subsection was again considered by the NSW Court of Appeal in State Transit Authority of NSW v Fritzi Chemler [2007] NSWCA 249 where, it was observed by Spigelman CJ (with whom Basten JA and Bryson AJA agreed) at [30]:
“30. A Presidential member exercising a power to review a decision must decide whether the original decision is wrong or, as it is often put in the context of administrative appeals on merits, must decide what is the true and correct view. If s/he does so decide then s/he should substitute his or her own views, unless it is an appropriate case to remit …”
The Appellant failed in his claim before the Arbitrator given the determination made that he had failed to comply with the statutory requirements concerning the giving of notice of injury and the making of a claim. The Appellant’s argument before the Arbitrator that he was entitled to be excused from compliance with those provisions upon the basis of his “ignorance” of relevant matters was rejected. In the circumstances it is necessary at the outset to determine the correctness or otherwise of the Arbitrator’s conclusions as to which provisions of the 1998 Act were apposite to the facts as agreed or proven.
It was not disputed that the alleged injury was deemed to have occurred on 17 March 1978. It is clear that the parties in the course of argument before the Arbitrator had treated the agreed date of notice of claim as having been made in the month of July of 2007. The Arbitrator (at [24] of Reasons) made the following findings of fact and determinations with respect to the application of the provisions of the 1998 Act:
“24. I am satisfied that a matter with the deemed date of injury in 1978 and the date of claim in July 2007 is provided for within the two sections nominated by the parties, ie s261 and s254 WIM & WCA 1998. Any claim made on or after 1 January 02, irrespective of the date of injury is governed by ss260 and 261 (Toll Pty. Limited v Bartimote (2007) NSWWCCPD 153 and Nassim Attileh v State Rail Authority of NSW (2005) NSWCA6)”
The 1998 Act contains two distinct sets of provisions which regulate the matters of notice of injury and making of claims for compensation. The first appears in Division 1 of Part 2 of Chapter 4 of that Act and sections 61 to section 66 inclusive are of particular significance in the present context. The second portion of the Act which is of relevance is to be found at Division 1 and Division 2 of Part 2 of Chapter 7 of that Act. Sections 252 to section 261 inclusive are of particular relevance to the present facts.
Argument raised both before the Arbitrator and on this appeal concerning the legislative scheme lacks precision and, it must be said, has given rise to a deal of confusion. It is necessary to decide, as observed above, which of those sections regulating notice of injury and making of claim are of relevance in determining the parties' rights and obligations having regard to the agreed facts as to date of injury and the giving of notice of claim.
The Commission was confronted with a similar question in the matter of Toll Pty Limited v Bartimote (2007) NSWWCCPD 153. In that matter, which was referred to by the Arbitrator in the course of her Reasons, Snell ADP was dealing with an employer’s challenge to a worker’s compliance with regard to requirements as to both notice of injury and claim for compensation. In that matter the relevant injury had occurred on 18 November 1998 and there was evidence before the Commission that a claim for compensation had been made on 19 November 1998. A concise and helpful analysis of the relevant provisions is to be found between [33] and [36] of that determination where it was stated:
“33. The Appellant Employer’s submissions are based on an alleged failure on the part of the Respondent Worker to comply with his statutory obligations, as regards both notice of injury and claim for compensation, in respect of the neck injury allegedly received on 18 November 1998. The submissions rely upon either sections 61 or 65, or 254 and 260, of the 1998 Act, in the alternative.
34. Sections 254 and 260 are contained in Chapter 7 of the 1998 Act, and govern “New Claims Procedure’. The relevant sections commenced on 1 January 2002. Chapter 7 Part 2 (dealing with ‘notice of injury’), which includes section 254, applies only to injuries received after 1 January 2002 (section 252), and would have no application to the Respondent Worker’s injury of 18 November 1998.
35. Section 60A of the 1998 Act (which commenced on 1 January 2002) provides:
“(1) Sections 61-64 apply only in respect of an injury received before the commencement of this section (as inserted by the Workers Compensation Legislation Amendment Act 2001).
(2) Sections 65 and 66 apply only in respect of the making of a claim before the commencement of this section (as inserted by the Workers Compensation Legislation Amendment Act 2001).
Note. Chapter 7 (New claims procedures) provides for notice of injury and making of claims in all other cases.”
36. Thus sections 61 and 64 apply to the Respondent Worker’s obligation to give notice of his injury of 18 November 1998. Sections 65 and 66 apply to the making of the claim, if it was made prior to 1 January 2002. If not, then Chapter 7 Part 2 (including sections 260 and 261) governs the making of the claim.”
I respectfully agree with the analysis and reasons as expressed by Snell ADP as above quoted, in particular the conclusion there reached and expressed at [36].
I am of the opinion that, having regard to the dates of injury and making of claim in the present matter, the provisions of sections 61 to 64 inclusive of the 1998 Act apply to the Appellant’s obligation to give notice of injury deemed to have occurred on 17 March 1978 and that sections 260 and 261 regulate requirements as to the making of a claim which is stated as being made in July of 2007.
It may be seen that I am of the view that the Arbitrator erred in determining that section 254 of the 1998 Act was the relevant provision to be applied with respect to the requirements of the giving of notice of injury.
Notwithstanding the error noted above, I am of the view that the Arbitrator’s ultimate conclusions concerning the Appellant’s failure to comply with the notice provisions and her determination that such non-compliance should not, on the facts, be excused were correct. I have reached this conclusion for the reasons stated hereunder and having regard to the fact that section 61 and section 254 of the 1998 Act are in substantially similar terms.
It was stated by Burke J in Gregson v L and Mr Dimasi Pty Ltd 20 NSWCCR 520 (‘Gregson’) at 61:
“61. The ignorance referred to is ignorance of the rights deriving from the Act and the obligations imposed by it. Effectively the court is required to be satisfied that the applicant was unaware of those rights and obligations and thus failed to make the requisite claim …”
The Arbitrator has correctly cited the decision of Gregson in support of her conclusion that there is an onus upon the Appellant to establish the matters raised by the relevant provisions.
The evidence before the Commission concerning the Appellant’s state of knowledge of matters relevant to a determination of the existence of ignorance or otherwise of his rights and obligations imposed by the Act is scant. The Arbitrator in the course of her Reasons places significant reliance upon the contents of the Appellant’s Statement which was in evidence before her. The Arbitrator appears to have drawn an inference from the Statement:
“…That during the time he was with the orchestra he was conscious of problems experienced by other musicians with work related hearing problems…” (at Reasons [26]).
In my opinion the manner in which the Appellant’s Statement is expressed, in particular the absence of any precision with respect to dates, does not permit the drawing of the inference as above noted.
The Arbitrator (at [27] of Reasons) appears to have placed reliance upon her conclusion that histories given to Dr Howison and Ms Lavoie in 2008 and 2007 establish:
“… that he had been wearing hearing aids for “8 years” or “many years” prior to these examinations. This means that at least in 2000 Mr Westlake was wearing aids and one can presume that he had experienced hearing problems prior to that time, leading him to seek the support of aids.”
It is my opinion that the Arbitrator’s findings with respect to the Appellant’s knowledge of his hearing difficulties over a period of time do not directly address the question as to “ignorance” of the matters enunciated by Burke J in Gregson.
There is no evidence of any weight before the Commission which addresses the question as to the Appellant’s state of knowledge concerning his rights and obligations under the relevant compensation law at various times since 1978. The onus is upon the Appellant, and such evidence is essential to enable a determination as to his entitlement to be relieved, by reason of ignorance, from the obligation of compliance with the notice provisions. The Appellant has failed to establish such entitlement and, in those circumstances, I respectfully agree with the Arbitrator’s conclusion that the Appellant is debarred from recovery of compensation by reason of his non-compliance with the relevant provisions concerning notice of injury and making of claim.
In the circumstances, it is not necessary to address the question as to whether delay in giving notice and making claim has occasioned prejudice to the Respondent. However I consider it appropriate to deal briefly with that question.
The question of prejudice is relevant in the present matter having regard to the provisions of section 61(2) of the 1998 Act. That section provides relevantly:
“(2) Notwithstanding subsection (1), the absence of, or any defect or inaccuracy in, any such notice is not a bar to the recovery of compensation if it is found in proceedings to recover that compensation:
(a) that the person against whom the proceedings are taken has not been prejudiced in respect of the proceedings, or
(b) that the absence of, or defect or inaccuracy in, the notice was occasioned by ignorance, mistake, absence from the State or other reasonable cause, or
(c) that the person against whom the proceedings are taken had knowledge of the injury from any source at or about the time when the injury happened, or …”
There is little direct evidence on the issue of prejudice. Correspondence between the Respondent and its Insurer which is before the Commission does not, in my view, address the question of the existence or otherwise of actual prejudice occasioned by delay in the giving of notice of injury and making a claim. Notwithstanding that fact, it is clear that the mere effluxion of time, and the Commission is here dealing with a period exceeding three decades since the date of injury, forms a reasonable basis upon which a presumption of prejudice may be made (see discussion by McHugh J in Brisbane South Regional Health Authority v Taylor (1996 186 CLR 541). In the circumstances, I conclude that the likelihood is that the Respondent has been prejudiced by such delay and that the Appellant has not established entitlement to the benefit of the application of section 61(2)(a) of the 1998 Act. No relief is available to the Appellant concerning the giving of notice of claim pursuant to section 261(4) for the same reason as stated in [66] above. The Appellant is thus barred from recovery of compensation as claimed.
It may be seen that, notwithstanding my conclusion that the Arbitrator has erred in her determinations as to the application of relevant provisions of the 1998 Act and with regard to certain of her factual findings, I have, on review, reached a similar conclusion to that of the Arbitrator being that there should be an award for the Respondent. In the circumstances, I am of the view that it is desirable, and in conformity with the legislature’s intent, that the errors identified in this appeal are corrected without the need to remit the matter for further consideration.
For the reasons expressed above, I conclude that the Arbitrator’s award in favour of the Respondent should be confirmed. The appeal is unsuccessful.
DECISION
The decisions of the Arbitrator contained in Certificate of Determination dated 13 October 2008 are confirmed, but for the reasons stated in this decision.
COSTS
No order as to costs of this appeal.
KEVIN O’GRADY
Acting Deputy President
4 February 2009
I, TUYET WALLIS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O’GRADY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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