Workers Compensation Nominal Insurer v Howard

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Workers Compensation Nominal Insurer v Howard [2011] NSWWCCPD 37
APPELLANT:		Workers Compensation Nominal Insurer
RESPONDENT:		Frank Robert Howard
FILE NUMBER:		A1-8700/10
ARBITRATOR:	Mr J Hertzberg
DATE OF ARBITRATOR’S DECISION: DATE OF APPEAL HEARING:		8 March 2011 13 July 2011
DATE OF APPEAL DECISION:		19 July 2011
SUBJECT MATTER OF DECISION:		Boilermaker’s deafness; whether it is necessary for a deregistered employer to be restored to the company register; proof of non-insurance; ss 140 and 142B of the Workers Compensation Act 1987; proof of noisy employment
PRESIDENTIAL MEMBER:		Acting President Bill Roche
HEARING:		Oral
REPRESENTATION:		Appellant:	Mr T Rowles, instructed by Sparke Helmore Lawyers
Respondent:	Mr Bechelli, solicitor, Whitelaw McDonald
ORDERS MADE ON APPEAL:		The Arbitrator’s determination of 8 March 2011 is confirmed. The appellant is to pay the respondent worker’s costs of the appeal.

BACKGROUND

This matter concerns a claim for compensation for noise-induced binaural hearing loss (boilermaker’s deafness). The respondent worker, Mr Howard, is now 72 years old. He alleges that he was last employed in employment to the nature of which his injury was due in either late 1961 or early 1962, when he was employed as a boilermaker for X L Diamond Grids Pty Ltd (Diamond Grids). He was self-employed, mostly in Queensland, from 1962 until his retirement in 2009.
Diamond Grids was deregistered on 27 February 1992 and an extract from the Australian Securities and Investment Commission dated 2 June 2009 discloses no address for the company. It is agreed that no application has been made for Diamond Grids to be restored to the company register and that the Application to Resolve a Dispute has not been served on it.
As he has been unable to identify an insurer for Diamond Grids, Mr Howard has claimed compensation from the Workers Compensation Nominal Insurer (the Nominal Insurer). The WorkCover Authority of New South Wales (WorkCover) represents the Nominal Insurer.
In proceedings registered in the Commission on 21 October 2010, Mr Howard named “X L Diamonds [sic] Grids Pty Limited” as the first respondent and the Nominal Insurer as the second respondent. He claimed $7,800 for medical expenses, $30,316 in respect of 58.3 per cent binaural hearing loss and an undisclosed amount for pain and suffering. At the hearing of the appeal, the name of the first respondent was amended without objection to “X L Diamond Grids Pty Ltd”.
In a Reply filed on 9 November 2010, WorkCover essentially put all matters in issue: injury, impairment, notice of injury, notice of claim, worker, whether Mr Howard suffered any hearing loss, whether Mr Howard’s employment with Diamond Grids was noisy employment, and whether Diamond Grids was the last noisy employer.
In addition to the above matters, counsel for WorkCover also submitted at the arbitration that the fact that Diamond Grids had not been served with the application and does not exist was a “fatal bar” (T9.12) to the worker succeeding. The Arbitrator directed the parties to file written submissions on this point. He received submissions from Mr Howard’s counsel but none from WorkCover’s counsel.
In a reserved decision delivered on 8 March 2011, the Arbitrator identified the issues in dispute to be whether Mr Howard:
(a) had been employed by Diamond Grids;
(b) sustained an injury under ss 4 and 17 of the Workers Compensation Act 1987 (the 1987 Act);
(c) provided proper notice under s 61 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) and properly made a claim under s 261 of that Act, and
(d) had established on the balance of probabilities that Diamond Grids was uninsured at the relevant time.
The Arbitrator found in Mr Howard’s favour on all issues. The Commission issued a Certificate of Determination on 8 March 2011 in the following terms:
“The Commission determines:
1.    That the claim for lump sum compensation is remitted to the Registrar for referral to an Approved Medical Specialist (AMS) who is to assess permanent impairment with respect to binaural hearing loss arising from injury dated 1962.
2.    The AMS is to be provided with all documents in the Application to Resolve a Dispute and the Reply.
3.    The AMS is to be asked to provide an opinion as to whether the provision of hearing aids as sought by the applicant are reasonable [sic] necessary.
4.    The second respondent is to pay the applicant’s costs as agreed or assessed.”
WorkCover has appealed the above determination. The appeal was filed in time and it is not disputed that the monetary thresholds in s 352(3) of the 1998 Act are satisfied. The appeal is to be determined under the new s 352 introduced by the Workers Compensation Legislation Amendment Act 2010. Section 352(5) now provides:
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”

ISSUES IN DISPUTE

The issues in dispute in the appeal are whether the Arbitrator erred in:
(a) failing to hold that the purported proceedings were a nullity because they failed to comply with the provisions of s 142B(1)(a) of the 1987 Act (s 142B). Related to this issue is the applicability of s 601AG of the Corporations Act 2001 (Cth) (s 601AG);
(b) finding that Mr Howard had “discharged his onus that X L Diamond Grid [sic] Pty Ltd was uninsured at the relevant time” (non-insurance), and
(c) failing to determine there was insufficient evidence to establish that Mr Howard’s employment with Diamond Grids was employment of the type that was capable of causing industrial deafness (noisy employment).
An issue also arises as to whether Mr Howard is permitted to tender fresh evidence on appeal. It is convenient to deal with that issue first.

SUBMISSIONS, DISCUSSION AND FINDINGS

Fresh evidence

The admission of “fresh evidence” or additional evidence on appeal is governed by s 352(6) of the 1998 Act, as amended, which provides as follows:
“(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission. The Commission is not to grant leave unless satisfied that the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned or that failure to grant leave would cause substantial injustice in the case.”
Mr Howard seeks to rely on the following “new evidence” on appeal:
(a) a letter from Whitelaw McDonald to Dr Macarthur, ENT specialist, dated 7 April 2011, and
(b) Dr Macarthur’s report dated 8 April 2011.
The “new evidence” deals with the issue of noisy employment. It is submitted that this evidence was not tendered at the arbitration because “it was not made clear that noisy employment was in issue” because WorkCover failed to comply with the terms of s 74 of the 1998 Act. It was argued that, whilst noisy employment was put in issue in WorkCover’s Reply filed on 9 November 2010, and it was also “raised” at the arbitration, there was only an “oblique reference” to the issue (of noisy employment) in the s 74 notice dated 7 October 2010.
The s 74 notice said, among other things, that reliance was placed on s 17 of the 1987 Act:
“in that [the] WorkCover Authority is unable to establish whether or not the nature of your claimed employment with XL Diamond Grids Pty Ltd was employment to the nature of which the injury was due at the time when the notice was given. [The] WorkCover Authority is prejudiced by the providing of notice out of time, noting that you allege the last date of employment with XL Diamond Grids Pty Ltd was an unidentified date in September 1962. [The] WorkCover Authority is unable to investigate the claim noting the time that has elapsed since cessation of your employment with XL Diamond Grids Pty Ltd.”
Mr Howard has submitted that, while the above paragraph commences with a reference to s 17, the paragraph focuses on the issue of prejudice resulting from the delay in the giving of notice and the consequent inability of the Nominal Insurer to investigate the claim. The only other reference to s 17 is on page 4 of the notice, but the subject matter under that heading is unrelated to s 17 and noisy employment.
It was argued that the s 74 notice is deficient in the following respects:
(a) it failed to comply with s 74(2)(a) in that it failed to state that liability was disputed on the basis that there was insufficient evidence to prove that the worker was employed in noisy employment. It stated that WorkCover was unable to investigate and establish for itself the nature of the employment, because of the lateness of the making of the claim. The notion of WorkCover independently investigating and establishing for itself the issue of noisy employment (which is what is implied by the notice) is an entirely different issue to the notion that the evidence presented by the worker was insufficient to prove the issue (of noisy employment), and
(b) whilst the notice refers to s 17 of the 1987 Act, the matters dealt within it do not relate to that section and the notice is confused.
In these circumstances, it was submitted that the notice did not comply with s 74(2B) in that it was not “expressed in plain language” and WorkCover should not have been permitted to raise the issue of noisy employment at the arbitration. Given that WorkCover was allowed to raise the issue at the arbitration, it was submitted that Mr Howard should be granted leave to rely on the above fresh evidence, which is “necessary in order to address the matters raised by the appellant” in the appeal and to avoid injustice.
WorkCover opposes the introduction of the fresh evidence and has submitted:
(a)     the report from Dr Macarthur seeks to deal with a matter that was always in issue, namely, whether Mr Howard has satisfied the onus of establishing that his employment with Diamond Grids was the last relevant noisy employment he undertook;
(b)     Mr Howard’s counsel took no objection to the s 74 notice at the arbitration;
(c)     Mr Howard was aware that noisy employment was in issue at an early stage of the proceedings. WorkCover wrote to Mr Howard’s solicitors on 3 August 2009 and referred to several deficiencies in the claim and said, among other things;
“6. No evidence is provided to confirm that the alleged injury was a personal injury that arose out of or in the course of employment with X L Diamond Grids Pty Ltd in terms of Section 9 of the Workers Compensation Act 1987 and therefore this employer is not liable to pay you compensation.”
(d)     though Mr Howard’s solicitors disputed this assertion, in a letter from WorkCover to Mr Howard’s solicitors dated 18 January 2010, WorkCover again asserted that no evidence had been provided “to confirm that the alleged injury was a personal injury that arose out of or in the course of employment with XL Diamond Grids Pty Ltd”;
(e)     the s 74 notice stated the WorkCover Authority was “unable to establish whether or not the nature of your claimed employment with X L Diamond Grids Pty Ltd was employment to the nature of which the injury was due at the time when the notice was given”;
(f)      WorkCover had no direct knowledge of Mr Howard’s work conditions with Diamond Grids and could not assert that the employment was noisy. It asserted that it made no admission in that regard and that was a matter to be established, and
(g)     the s 74 notice clearly put in issue the question of whether Mr Howard’s employment with Diamond Grids was noisy employment within the terms of the legislation.
Mr Howard’s application to rely on additional evidence on appeal is refused for the following reasons:
(a)     though the s 74 notice was poorly drafted and should have expressly stated, in plain language, that WorkCover disputed whether Mr Howard’s employment was employment to the nature of which his hearing loss was due, the issue was clearly identified in the Reply;
(b)     I am satisfied that, in the circumstances, Mr Howard was well aware that there was an issue as to whether his employment with Diamond Grids was employment to the nature of which his hearing loss was due;
(c)     counsel for WorkCover made submissions on this issue at the arbitration. Without objecting to those submissions, or raising any issue about the s 74 notice, counsel for Mr Howard also made submissions on the issue of noisy employment. He clearly considered it to be a matter that was properly in dispute. A party is normally bound by the conduct of his or her counsel at the arbitration (Suttor v Gundowda (1950) 81 CLR 418 at 438; Coulton v Holcombe (1986) 162 CLR 1 at 7; Metwally v University of Wollongong (1985) 60 ALR 68 at 71–72) and no valid reason has been advanced as to why Mr Howard should be permitted to dispute on appeal the validity of the s 74 notice on this issue;
(d)     the evidence now sought to be tendered as “new evidence” is not new evidence. It is additional evidence that seeks to expand on and explain Dr Macarthur’s opinion in his first report. The evidence was readily available prior to the arbitration and should have been obtained prior to the filing of the Application to Resolve a Dispute on 21 October 2010. The Commission has repeatedly stated that arbitrations are not a trial run where parties can await the outcome and then prepare their respective cases, and
(e)     given the view I have formed as to the content of Dr Macarthur’s first report, the refusal to admit his second report will not cause any injustice to Mr Howard.

Section 142B

Before dealing with the s 142B matter, a preliminary point arises, namely, that this issue was not raised in either the s 74 notice or in the Reply. Counsel for WorkCover, Mr Rowles, submitted that he had raised the issue with the worker’s counsel prior to the commencement of the arbitration and that no objection was taken to it being argued. He added that, pursuant to a direction by the Arbitrator, both sides provided written submissions on this issue at the conclusion of the arbitration. For reasons that have not been adequately explained, the Arbitrator did not receive Mr Rowles’s written submissions, though they had been prepared and filed in accordance with the timetable he set, and he determined the matter without them.
In his decision, the Arbitrator referred to Mr Rowles’s oral submission that the fact that Diamond Grids no longer existed, and could not be served, was a “fatal bar” (T9.12) to Mr Howard succeeding. However, he did not deal with this submission in the terms in which it was put, but dealt with the issue of notice of injury under s 61 of the 1998 Act, and found that Mr Howard’s failure to provide notice to the employer was overcome by “reasonable cause and ignorance pursuant to s 61(2)(b)” (Statement of Reasons (Reasons) at [56]). WorkCover has not challenged this finding.
At the hearing of the appeal, Mr Bechelli, solicitor, objected to the s 142B issue being argued. While he conceded that the issue had been raised at the arbitration, he submitted that his client was prejudiced because, if the issue had been raised earlier, his client could have discontinued the proceedings and had Diamond Grids restored to the register.
Mr Bechelli’s submission is more than a little surprising. I accept Mr Rowles’s statement that he raised the s 142B issue with Mr Howard’s counsel prior to the commencement of the arbitration. Counsel had every opportunity to obtain instructions and discontinue the proceedings at that stage. Rather than discontinuing the proceedings, he elected to deal with the issue on its merits and made written submissions that the deregistration of Diamond Grids was irrelevant.
Given the above history, I accept that the s 142B issue was raised and argued, without objection, before the Arbitrator. The Arbitrator erred in failing to deal with it. However, as the matter was not raised in the s 74 notice, it is necessary for the Commission to grant leave for the issue to be disputed (s 289A(3) of the 1998 Act).
I believe it is in the interests of justice that leave be granted for WorkCover to dispute Mr Howard’s entitlement to bring these proceedings in circumstances where Diamond Grids has ceased to exist. My reasons are as follows:
(a)     the issue is one that has not previously been determined by the Commission;
(b)     it is of fundamental importance to the outcome of the case;
(c)     the matter is a legal issue that can be met without the need to tender additional evidence, and
(d)     as the matter was raised and fully canvassed without objection at the arbitration, there is no prejudice to Mr Howard.
The relevant legislative provisions are set out in s 140 and s 142B. So far as is relevant, s 140 provides:

“140 Persons eligible to make claims

(1) A claim under this Division may be made against the Nominal Insurer by any person who considers he or she has a claim against an employer for compensation under this Act or work injury damages in respect of an injury to a worker, if:
(a) the employer is uninsured, or
(b) the person claiming the compensation has been unable, after due search and inquiry, to identify the relevant employer.

(2) An employer is considered to be uninsured if the employer:
(a) had not obtained, or was not maintaining in force, a policy of insurance for the full amount of the employer’s liability under this Act in respect of the injured worker at the relevant time, or

(b) having been a self-insurer at the relevant time, has ceased to undertake liability to pay compensation to the employer’s own workers (but only if the claim cannot be paid under section 216 from any money deposited with the Authority or under any arrangement relating to the refund of any such deposit).

(2A)…”

So far as is relevant, s 142B provides:

“142B Proceedings before Commission on claim for compensation

(1) On an application to the Commission for a determination of a claim for compensation under this Division, or on the commencement of proceedings in a court in respect of a claim for work injury damages under this Division:
(a) the applicant must name the employer by whom the applicant alleges compensation is payable and the Nominal Insurer as respondents to, or defendants in, the proceedings, and

(b) the Nominal Insurer may, by service of a notice on any person who, in the opinion of the Nominal Insurer, may be liable to pay to the applicant compensation under this Act (or may have insured that liability), join that person as a party to the proceedings.

(2) The Commission may make orders providing for the reimbursement of the Insurance Fund under section 145.”

WorkCover has submitted that:
(a) the requirement in s 142B – that the worker “must name the employer by whom the applicant alleges compensation is payable” as a respondent in the proceedings – is mandatory and it is “trite law that an identity cannot be a party to legal proceedings if it does not exist”;
(b) the failure to seek leave to have Diamond Grids restored to the company register for the limited purpose of being joined as a respondent in these proceedings is mandatory and non-compliance invalidates the proceedings, and
(c) the right of recovery the insurance fund has against former directors of insured corporations lends support to the proposition that the proper interpretation of s 142B(1)(a) cannot be fulfilled merely by the naming of a non-existent entity as a purported respondent.

Mr Howard submitted:
(a) Section 142B does not require an employer to be joined as a party to the proceedings, but merely that it be “named as a respondent” in the proceedings. There is a distinction between “joining a party” as opposed to “naming a party”. Section 142B(1)(a) refers to the applicant “naming” the employer as a respondent to, or defendant in, the proceedings, but s 142B(1)(b) states that the Nominal Insurer may “join” a person as a party to the proceedings;
(b) reliance is placed on cl 180(c) of the Workers Compensation Regulation 2010 (the 2010 Regulation), which provides:
“in a case where a claim is made to a court or the Commission under section 142B of the 1987 Act and the employer named by the applicant under section 142B is a corporation that has ceased to exist or a deceased person whose estate has been distributed – section 142B(2) is to be read as if it also provided that (in such a case) the application in not, subject to any rules of the court or the Commission, required to serve a copy of the application on that person.”
(c) this clause contemplates the very situation under consideration, namely, where a corporation has ceased to exist. In such a situation, it is not necessary to serve the application on the corporation. The only way a deregistered company could be joined to proceedings was if it were restored to the company register. If that occurred, the company would no longer cease to exist as contemplated by cl 180. To read s 142B(1) as requiring a deregistered employer to be joined as a party, as opposed to being merely named as a party to the proceedings, would lead to an interpretation of cl 180(c) that would result in it serving an unnecessary purpose. The situation it was designed to remedy (the impossibility of having to serve a deregistered entity with process) would never eventuate because, if WorkCover’s argument is correct, the entity would first have to be restored to the register;
(d) clause 180(c) was drafted to overcome the difficulty of serving a corporation named in proceedings under s 142B, but which has ceased to exist, with a copy of the application. Clause 180(c) must be interpreted with that purpose in mind (James Hardie & Co Pty Ltd v Seltsam Pty Ltd [1998] HCA 78; 196 CLR 53), and
(e) to interpret s 142B(1) as requiring an employer to be joined as a party (as contemplated by WorkCover), as opposed to being merely named as a party to proceedings would render cl 180(c) “superfluous”.
In response, WorkCover submitted:
(a) reliance on cl 180(c) is misplaced because it deals with the question of service of proceedings on corporations that have ceased to exist and its argument is directed to the validity of the proceedings themselves;
(b) the reference to the apparent distinction between the use of the words “name” and “join” is not helpful because s 142B(1)(b) exists to give the Nominal Insurer a power to bring other parties into the proceedings if it so desires;
(c) what is important are the terms of s 142B(1)(a) and the use of the words “must name the employer…as respondents to or defendants in the proceedings”;
(d) accepting Mr Howard’s submission would create a unique legal personage, namely an entity that is named in the proceedings as a respondent or defendant, but is no-one. This should be rejected. Mr Howard’s contention could have been achieved by the draftsperson merely omitting the words “respondents or defendants” in s 142B(1)(a), and
(e) clause 180(c) cannot be used to limit the operation of a requirement clearly stated in a section of an Act.
For the following reasons, I do not accept WorkCover’s submissions.
WorkCover’s submissions have been previously put, and rejected, in two decisions of the former Compensation Court of New South Wales. Carter v The Khamis Mushayt Armed Forces Hospital [1994] NSWCC 27; 10 NSWCCR 605 (Carter) concerned two separate applications before Campbell CJ. In the first, the worker sought an order for substituted service of the application for determination on her employers who were based in Saudi Arabia. In the second, WorkCover sought an order that the application for determination be struck out on the grounds of ineffective service.
His Honour held that he had no power to order substituted service and he declined to do so. In respect of WorkCover’s application, counsel for WorkCover submitted that, since the application for determination had not and could not be served on the employer, the application should be struck out upon the terms of s 144(2)(a) of the 1987 Act. At the time, s 144(2) was in substantially the same terms as the current s 142B(1)(a). It stated that, in an application for the determination of a claim against the Uninsured Liability and Indemnity Scheme, the applicant “shall name the employer by whom the applicant alleges compensation is payable and the Authority as respondents to the proceedings” (emphasis added).
His Honour referred to the context of the legislation and the terms of the Uninsured Liability and Indemnity Scheme, which was administered by WorkCover. He noted that it was common ground that the employer was uninsured under the New South Wales workers’ compensation legislation. Counsel for WorkCover submitted that, upon its true construction, s 144(2)(a) required not only that the applicant file an application for determination naming the employer as a respondent, but also that she effectively serve that application for determination. As that had not been done and, in the absence of an order for substituted service, could not be done, the application had to fail and must be struck out.
In rejecting this submission, which is essentially the same submission made by WorkCover before me, his Honour said (at 610B):
“The literal words of the subsection do not require effective, or indeed any, service. In my view once an application for determination has been filed naming the employer (as well as WorkCover) as a respondent the requirements of the subsection have been met.”
His Honour also rejected a submission that the employer had to be served to “avoid an absurd result” and the “intolerable position” (at 610) of applicants proceeding only against WorkCover. His Honour did not agree that the construction of the section should be approached on the basis that applicants would not serve their employer if they reasonably could and he listed the advantages in such service. His Honour added (at 610E):
“The terms of the legislation clearly contemplates that the employer may not appear and it can make little real difference whether that fact follows service or not. No doubt subsection 144(5) could not be utilised, however, subsection 144(2)(b) permits the Authority to join the employer as a party should it so desire.
On a broader basis it is clear that the purpose of the Scheme is to provide compensation to the worker when the employer is uninsured even though the employer cannot be identified and the prospects of recovery by the Scheme are poor or non-existent because of that fact or because of the matters referred to in subsection 145(2). It would seem quite contrary to this purpose to hold that the applicant could not succeed where the application for determination could not be effectively served. Such a conclusion could only follow if required by the clear terms of the legislation. As I have already indicated I do not think that the terms of the legislation do so require.”
Neilson CCJ also rejected WorkCover’s arguments in Hicks v Shane & Gary Burton Pty Ltd [2002] NSWCC 65 (Hicks). In that matter, the uninsured employer had been deregistered and WorkCover’s counsel sought an adjournment so that the worker could apply for the employer to be restored to the company register. In refusing that application, his Honour referred to cl 77(1)(c) of the Workers Compensation (General) Regulation 1995 (the 1995 Regulation), which was in substantially the same terms as cl 180(c) of the 2010 Regulation. It provided:
“In a case where the employer named as a respondent as referred to in s 144(2)(a) of the Act is a corporation which has ceased to exist or a deceased person whose estate has been distributed – s 144(2) is to be read as if it also provided that, in such a case, the application is not, subject to any rules of the Compensation Court, required to serve a copy of the application on that person.”
His Honour held (at [4] and [5]) that cl 77:
“clearly envisages a non-existent company being named as a respondent in the proceedings which is what has occurred in the current matter and not requiring service upon a non-existent company, which, of course, would at any rate be an impossibility.
By implication the regulation validates what has been done in the current proceedings. The regulation appears to permit proceedings to be continued against the WorkCover Authority as if it were the insurer of the de-registered company in much the same [way] as an insurer of a de-registered company can be pursued in a claim pursuant to s 162 of the Workers Compensation Act 1987.”
WorkCover submitted that cl 77 was ultra vires because it was inconsistent with the provisions of the Corporations Code. His Honour rejected that submission because the clause was a specific provision on a narrow area of the law, which had to be seen as overcoming any general provisions to the contrary in the Corporations Code. In response to WorkCover’s submission that cl 77 did not cure the problem that joining a non-existent entity as a party was a legal nullity, which is the same submission that has been made to me, his Honour said:
“the regulation clearly assumes what has been done in the current case to be valid and then dispenses with the requirement of the service upon the non-existent party in many respects validating the ratio decidendi of Carter v Khamis Mushayt Armed Forces Hospital [1994] NSWCC 27; (1994) 10 NSWCCR 605. The regulation implicitly validates the joinder of the non-existent company and can be seen as a regulation to that effect sub silentio. Furthermore, the regulation appears, in my view, to be valid because of the general regulation-making power in s 148(3) and as putting the WorkCover Authority as an administrator of the Uninsured Liability and Indemnity Scheme in much the same position as the insurer of an insured employer.”
The general regulation-making power in s 148(3) is still in the 1987 Act. It provides:
“(3) The regulations may provide for the application (with such modifications as may be prescribed) of other provisions of this Act with respect to any matter arising under this Division.”
If there be any doubt about the validity of the 2010 Regulation, s 142A(2) is also relevant. It provides:
“(2) The regulations may prescribe modifications to the provisions of this Act and the 1998 Act for the purposes of their application under this section to and in respect of a claim under this Division.”

Mr Rowles submitted that Carter can be distinguished because of the different terms of s 142B compared to s 144. That difference is that s 142B(1)(a) refers to the naming of the employer and the Nominal Insurer “as respondents to, or defendants in, the proceedings” whereas s 144 only referred to the naming of the employer and the WorkCover Authority as “respondents to the proceedings”. He said that it would be an odd result if a defendant employer had to be restored to the register but a respondent employer did not. I do not believe that is a valid ground for distinguishing the principles stated in Carter. I agree with those principles and believe they lead to the inevitable conclusion that WorkCover’s submissions must be rejected.
When asked what purpose would be served by requiring that Diamond Grids be restored to the register, Mr Rowles replied that it had to be done because, under s 142B, it is required. I do not accept that submission.
As Campbell CJ pointed out in Carter, it is important to “set the context” of the provision. His Honour’s statement is consistent with subsequent appellate authority on statutory construction. I must apply the principles of statutory construction explained by Allsop P (Giles and Hodgson JJA agreeing) in Wilson v State Rail Authority of New South Wales [2010] NSWCA 198 at [12]. It is convenient to set out his Honour’s statement in point form (excluding citations):
(a)     “[i]t is the language of Parliament that must be interpreted and construed”;
(b)     “in construing an Act, a court is permitted to have regard to the words used by Parliament in their legal and historical context”;
(c)     “[c]ontext is to be considered in the first instance, not merely when some ambiguity is discerned”;
(d)     “[c]ontext is to be understood in its widest sense to include such things as the existing state of the law and the mischief or object to which the statute was directed”;
(e)     “[f]undamental to the task, of course, is the giving of close attention to the text and structure of the Act, as the words used by Parliament to effect its legislative purpose”, and
(f)      “general words, informed by an understanding of the context, and of the mischief to which the Act is directed, may be constrained in their effect”.
I must interpret and construe the words in s 142B having regard to their legal and historical context, giving close attention to the text and structure of the Act. I also have regard to the fact that the workers compensation legislation is “beneficial legislation” and that entitlements under such legislation should not depend on “distinctions which are too nice” (per Mahoney JA in Articulate Restorations & Developments Pty Ltd v Crawford (1994) 10 NSWCCR 751 at 765). At the same time, the principle that beneficial legislation should be given a liberal construction does not entitle a court to give it a construction that is unreasonable or unnatural (per McColl JA in Amaca Pty Ltd v Cremer [2006] NSWCA 164; 4 DDCR 42 citing IW v City of Perth [1997] HCA 30; 191 CLR 1 (at 11–12) per Brennan CJ and McHugh J).
Section 142B appears in Div 6 of the 1987 Act, which deals with “Uninsured Liabilities” and provides for the recovery of compensation by workers from the Nominal Insurer where the worker’s employer is uninsured or where, after due search and inquiry, the worker is unable to identify the relevant employer. Section 140 deals with the persons eligible to make a claim; s 141 deals with the making of claims; s 142 deals with the publication of a notice of claim in such manner as the Nominal Insurer considers appropriate (it is conceded that the Nominal Insurer published no notice of Mr Howard’s claim); s 142A provides that the provisions of the 1987 Act and the 1998 Act apply to the Nominal Insurer as if it were an insurer of the relevant employer under the 1987 Act; s 142B relates to proceedings before the Commission in a claim for compensation; s 145 provides for the reimbursement of the Nominal Insurer by the employer or insurer of compensation paid by it; s 145A provides for the recovery from directors of compensation paid by the Nominal Insurer; s 146 deals with commutation of weekly payments; s 147 deals with miscellaneous provisions; s 148 deals with the application of other provisions of the Act, and s 149 deals with the Nominal Insurer right of subrogation.
Campbell CJ felt it was significant that s 145(2) (as it then was) provided that WorkCover could waive liability of an employer if, among other grounds, the amount was beyond the capacity of the employer to pay, the employer could not reasonably have been expected to regard himself as an employer, or the employer was bankrupt. In its current form, s 145 states that the Nominal Insurer may waive an employer’s liability if, among other grounds, the employer, being a company, has been dissolved.
As was the case with the legislation before Campbell CJ, the legislation clearly contemplates that the employer may not appear (s 147) and it can make little real difference whether that fact follows after the company has been reregistered or not. In the circumstances in Mr Howard’s matter, I can see no relevant purpose in requiring Diamond Grids to be restored to the company register. A literal reading of the words in s 142B(1)(a) does not require that step to be taken, though, as explained by Campbell CJ, there are sound reasons why workers should normally join their uninsured employer to the proceedings.
I also agree with the reasoning of Neilson CCJ in Hicks. Mr Rowles submitted that Hicks was wrongly decided and that I should not follow it because “a regulation cannot be used to limit the operation of a requirement clearly stated in a section of an Act”. I do not agree that the Act clearly requires that a deregistered company be restored to the register before a worker can pursue a claim against the Nominal Insurer under Div 6 of the 1987 Act. It merely requires that the applicant “name” the employer. Mr Howard has done that.
While it is true that, as a general rule, delegated legislation should not be taken into account for the purposes of interpretation of the Act itself (Statutory Interpretation in Australia, 6^th edition, D C Pearce and R S Geddes at 104 (Pearce and Geddes)), there is an exception to this rule if the regulations, together with the Act, form part of a legislative scheme. It can also be helpful to refer to delegated legislation as a direct aid to construction of an ambiguous or obscure statutory provision where a contemporaneously prepared Act and set of regulations establish an interdependent regime (Pearce and Geddes at 105).
I do not believe that s 142B is ambiguous or obscure. On its terms, it does not require a deregistered company to be restored to the company register before a worker can claim against the Nominal Insurer. If, however, it is considered that there is an ambiguity, I believe that the 2010 Regulation is part of a legislative scheme. Clause 180(c) was made under the express power in s 142A(2). The clause puts it beyond doubt that, in the circumstances of the present case, that is, where the employer “named” by the applicant under s 142B is a corporation that has ceased to exist, the section is to be read “as if it also provided that (in such a case) the application is not, subject to any rules of the court or the Commission, required to serve a copy of the application on that person”. There are no rules of the Commission that limit the terms of cl 180(c). It is nonsense to suggest that the clear intent of the legislation, as confirmed in the regulation, should be ignored. No valid reason has been advanced why that should be so.
Clause 180(c) is logical and consistent with the view I have reached as to the meaning of the word “name” in s 142B, giving that word its natural meaning and considering the context in which it appears in beneficial legislation.
I am satisfied that the language used in s 142B means what it says, namely, that the applicant must “name” the employer by whom the applicant alleges that compensation is payable and does not mean what it does not say. This interpretation is consistent with Carter, Hicks and my own independent view of the section. It is also unequivocally confirmed by cl 180(c) of the 2010 Regulation.
The failure to have Diamond Grids restored to the company register creates no prejudice for WorkCover or the Nominal Insurer. It is open to WorkCover to have Diamond Grids restored to the register (WorkCover Authority of New South Wales v Picton Truck & Trailer Repairs Pty Ltd (deregistered) [2004] NSWCA 371; 22 ACLC 1517), which it would have to do if it sought to recover under s 145 the compensation, if any, it is ultimately ordered to pay Mr Howard. However, given the passage of time since Diamond Grids was deregistered, and given that WorkCover has no entitlement to recover from the directors of Diamond Grids (because s 145A does not apply where the failure to obtain insurance occurred before 1 January 1996), there is no reason why WorkCover would seek to restore Diamond Grids to the register.

Last, my conclusion is also consistent with the second reading speech by the Hon Henry Tsang, Parliamentary Secretary, on the introduction of s 142B in the Workers Compensation Amendment (Insurance Reform) Bill 2003. As the parties have not made submissions on the relevance of this speech, I have not based my decision on it, but it is instructive to observe that the Parliamentary Secretary said:
“The intention is to simplify the arrangements governing uninsured liability and place workers whose employers are uninsured on a similar footing to other workers making claims. Workers whose employers are uninsured will have access to benefits and the dispute resolution procedures of the Workers Compensation Commission as soon as their claim is verified….These arrangements will ensure that claims made by injured workers whose employers are uninsured are dealt with in a similar way to other claims, allowing these injured workers to receive benefits more quickly.” (Parliament of New South Wales, Hansard, 19 November 2003 at 5253)

If an insured employer has ceased to exist, any worker of that employer is entitled to seek from the Commission a declaration under s 162(1) of the 1987 Act that the employer had entered into a contract of insurance with an insurer in respect of liability under the Act to the worker and that the employer, being a corporation, has ceased to exist. Where the Commission makes such a declaration, it may make an award of compensation for an injury to the worker and such an award shall be “deemed to be an award against an employer of the worker with whom the insurer referred to in the declaration entered into a contract with respect to any liability under this Act to that worker” (s 162(2)). Thus, it is not necessary for an insured employer that has ceased to exist to be restored to the company register.
The interpretation of s 142B that I favour gives effect to the intention expressed in the second reading speech, namely, that claims by workers of uninsured employers that have ceased to exist should be dealt with “on a similar footing” as claims by workers of insured employers. The end result is consistent with the words in the section and with Parliament’s intention. It does not involve a construction that is unreasonable or unnatural.

Section 601AG

In view of my conclusion on s 142B, it is not necessary to determine this issue. However, in view of the parties’ submissions, I make the following observations.
Section 601AG provides:
“601AG Claims against insurers of deregistered company
A person may recover from the insurer of a company that is deregistered an amount that was payable to the company under the insurance contract if:
(a) the company had a liability to the person; and
(b) the insurance contract covered that liability immediately before deregistration.”
Mr Howard submitted that s 601AG applies to make the Nominal Insurer the insurer of Diamond Grids at the relevant time because s 142A(1) provides that the 1987 and 1998 Acts apply to and in respect of a claim “as if the Nominal Insurer were the insurer under the Act of the relevant employer at the relevant time” and s 154B(1) provides that the Nominal Insurer is taken to be a licensed insurer as if it were the holder of a licence.
I do not accept this submission. It has overlooked two fundamental points. First, s 142A only applies to and in respect of a claim under Div 6 “as if the Nominal Insurer were the insurer under this Act” (emphasis added); it does not make the Nominal Insurer an insurer for all purposes. Second, s 601AG only applies where “the insurance contract” covered the company’s liability immediately before deregistration. The Nominal Insurer’s liability does not arise under an insurance contract, but under the terms of the 1987 Act. Therefore, s 601AG has no application.

Non-insurance

In a document headed “Summary of Respondent’s Supplementary Submissions” filed on 27 July 2011, Mr Bechelli purported to raise, for the first time, an issue as to whether WorkCover had put the question of non-insurance in issue in its s 74 notice.
At the hearing of the appeal, he referred to correspondence between his office and WorkCover. He submitted that his office undertook the inquiries that WorkCover directed it to undertake to identify an insurer, namely, it wrote to all relevant insurers. He then submitted that, in its s 74 notice, WorkCover merely repeated the direction in its earlier correspondence, namely, that the solicitor contact every insurer who provided workers compensation insurance as at the deemed date of injury and inquire of those companies whether they held a policy of insurance for X L Diamond Grids Pty Ltd.
While I agree that the s 74 notice was very poorly drafted, in that it did not succinctly state in plain language the issues in dispute, it is tolerably clear (for most lawyers) from a reading of the whole document that the question of non-insurance was in issue and had to be addressed by Mr Howard. That WorkCover produced such a turgid nine-page document when the Commission has repeatedly held that s 74 notices should clearly and succinctly state the issues in dispute in plain language is surprising and unsatisfactory.
That the parties were under no misapprehension about the fact that non-insurance was in issue is clear from the way the case proceeded at arbitration. Counsel for Mr Howard took no objection to the issue of non-insurance being raised and he made submissions on that issue. It is therefore not now open for Mr Howard to argue on appeal that non-insurance was not an issue in dispute. As I observed at [20(d)] above, parties are generally bound by the conduct of their counsel at the arbitration. Clearly, non-insurance was in issue and the Arbitrator correctly identified it as an issue at [4] of his decision.
The Arbitrator said that proof of non-insurance on the balance of probabilities was required, and that more than merely carrying out “due search and enquiry” was required (Reasons at [59] and [60]). Though he did not expressly say so, it is implicit in his reasons that he accepted that Mr Howard carries the onus of proof. He noted that WorkCover had carried out inquiries and had advised Mr Howard’s solicitors by letter dated 21 May 2009 that “[a] Workers Compensation insurance policy has not been found for the above period”. The period referred to was 1960–1962.
The Arbitrator also referred to the “extensive enquiries” carried out by Mr Howard’s solicitors “with respect to whether insurance was in existence at the relevant time”, which “endeavour was more than due search” (Reasons at [61]). The inquiries covered some 120 companies and there had been no reply that indicated that Diamond Grids was insured. The Arbitrator concluded (at [62]):
“Exhaustive enquiries have not resulted in confirmation of insurance and enquiries made by WorkCover have revealed similar results. I am satisfied on the balance of probabilities that the first respondent did not have a policy of insurance and accordingly was uninsured.”
Mr Rowles submitted that:
(a) in the present case, the identity of the employer is not in issue. To ground a claim, Mr Howard must show that the employer is uninsured. The absence of the words “after due search and inquiry” from sub-s (a) of s 140(1) imposes a more stringent test upon Mr Howard to prove non-insurance as opposed to the requirement for proof of the identity of the relevant employer;
(b)     Mr Howard’s solicitor received replies from only 29 out of a potential 123 insurers (a response described as “meagre”) and that is insufficient to ground a finding of non-insurance;
(c)     there is no evidence that the insurance companies contacted or referred to in the correspondence comprise the whole of the insurers who issued statutory workers compensation policies in New South Wales during the relevant period;
(d)     Apollo Shower Screens Pty Ltd v Building and Construction Industry Long Service Payments Corporation (1985) 1 NSWLR 561 and Rockcote Enterprises Pty Ltd v Fire Service Architects Pty Ltd [2008] NSWCA 39 at [78] (Rockcote) correctly state the law. Mr Howard has the onus of proof that Diamond Grids was not insured and he has not discharged that onus;
(e)     the Commission is dealing with two questions: not just what are the probabilities on the limited material the Commission has, but whether that limited material is an appropriate basis upon which to reach a reasonable decision (Ho v Powell [2001] NSWCA 168; 51 NSWLR 572 (Ho)), and
(f)      whatever criteria is accepted as the appropriate test to be applied in determining whether Mr Howard has established that Diamond Grids was uninsured, the evidence relied on by Mr Howard falls far short of satisfactory and there should be an award for the respondent on this ground of appeal.
Consistent with Mr Rowles’s submissions, I accept, as did the Arbitrator, that Mr Howard has the onus of establishing that Diamond Grids was not insured under the 1987 Act at the time he stopped work and that more is required than merely conducting due search and inquiry: the Commission must be satisfied that Diamond Grids was uninsured. However, given that this is a claim for compensation, not a criminal matter, the standard of proof is on the balance of probabilities.
Mr Rowles referred to the following passage by Hodgson JA (Beazley JA agreeing) in Ho (at [14]):
“14 There is a long-standing controversy whether the civil standard of proof requires a numerical probability in excess of 50 per cent (see Davies v Taylor [1974] AC 207 at 219), or belief amounting to reasonable satisfaction (see Briginshaw v Briginshaw [1990] HCA 20; (1938) 169 CLR 638 at 642-3). My own opinion is that the resolution of the controversy involves recognition that, in deciding facts according to the civil standard of proof, the court is dealing with two questions: not just what are the probabilities on the limited material which the court has, but also whether that limited material is an appropriate basis on which to reach a reasonable decision. I discussed this in some detail in an article published at (1995) 69 ALJ 731.”

Mr Bechelli referred to his Honour’s statement in the next paragraph:
“15 In considering the second question, it is important to have regard to the ability of parties, particularly parties bearing the onus of proof, to lead evidence on a particular matter, and the extent to which they have in fact done so: cf 69 ALJ at 732–3, 736, 740. As stated by Lord Mansfield in Blatch v Archer [1774] EngR 2; (1774) 1 Cowp 63 at 65 [1774] EngR 2; (98 ER 969 at 970):
‘All evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted.’”

While it can often be difficult for a party to prove a negative, the following statement by Campbell JA (McColl JA and Handley AJA agreeing) in Rockcote is instructive:
“78. If a plaintiff has the onus of proving a negative proposition, the fact that the defendant has greater means to produce evidence which contradicts that negative proposition, does not mean that the plaintiff ceases to have the onus of proof of that negative proposition. However, once the plaintiff establishes sufficient evidence from which, if that evidence is accepted, the negative proposition may be inferred, an evidential onus shifts to the defendant to adduce evidence that tends to show that the negative proposition is incorrect. If a defendant adduces such evidence, the plaintiff must then, as part of its overall burden of proof, deal with that evidence either by submission or argument. See generally Apollo Shower Screens Pty Ltd v Building and Construction Industry Long Service Payments Corporation (1985) 1 NSWLR 561; Hampton Court Ltd v Crooks [1957] HCA 28; (1957) 97 CLR 367 at [1]–[2], 371–2; Baiada v Waste Recycling & Processing Service of NSW [1999] NSWCA 139; (1999) 130 LGERA 52 at [55], 64–65.”

It was strenuously argued by Mr Rowles that Mr Howard has not adduced sufficient evidence from which it may be concluded that Diamond Grids was not insured when Mr Howard ceased work in late 1961 or early 1962, and that the Arbitrator erred in finding that non-insurance had been established. I do not agree.
Mr Howard’s solicitors first wrote to WorkCover on 1 April 2009 seeking information in relation to insurance for “XL Diamond Grid” for the period 1960 to 1962. I do not believe the incorrect spelling of the employer’s name is of any consequence. As the Arbitrator noted, WorkCover responded on 21 May 2009 that no workers compensation insurance policy could be found. The letter added that full policy details were not held for periods prior to July 1987 and only details of claims against employers and their insurers were held; therefore only limited information was available. This letter was of limited assistance and, on its own, would not have established non-insurance. However, it was a factor the Arbitrator was entitled to take into account (and did take into account) in determining if Mr Howard had established non-insurance. It was not submitted that he had erred in doing so.
As directed by WorkCover, on 14 September 2009 Mr Howard’s solicitors wrote to QBE Workers Compensation (NSW) Ltd (QBE), CGU Workers Compensation (NSW) Ltd (CGU), Tower Insurance Ltd, Allianz Australia Workers Compensation (NSW) Ltd, Vero Workers Compensation Ltd, American International Assurance Company (Australia) Ltd, GIO General Limited, Zurich Australia Workers Compensation, Employers Mutual NSW Ltd, Ace Insurance Ltd, and Corporate Management Services (Australia) Pty Ltd inquiring whether any of those companies had issued insurance for “X L Diamond Grid [sic] Pty Ltd”. I do not regard it as significant that these letters incorrectly spelt the employer’s name as X L Diamond Grid Pty Ltd rather than X L Diamond Grids Pty Ltd. These letters also incorporated requests that each insurer search its current and archived records for various related companies. For example, the letter to QBE included a request that that company also search its current and archived records for 18 other insurers. The letter to CGU included a request that that company also search its current and archived records for 34 other insurers. In all, the requests covered over 120 past and current insurers.
I accept that the solicitors only received responses covering 29 insurers. Those responses did not reveal an insurer. In response to my question as to what further Mr Howard’s solicitors should have done, Mr Rowles suggested that a second letter should have been forwarded to those companies that had not responded. Whilst that could have been done, there is no requirement for multiple letters to be sent. The test is whether Mr Howard has established, on the balance of probabilities, that Diamond Grids was uninsured at the relevant time.
The Arbitrator was satisfied that Mr Howard had called sufficient evidence (which evidence he accepted) from which the finding of non-insurance could be made. The material available provided an appropriate basis for the Arbitrator to reach that conclusion.
Though Mr Bechelli submitted that I should take into account WorkCover’s failure to call any evidence on this issue, Mr Howard carries the onus of proof and the Arbitrator correctly based his conclusion on the evidence before him rather than an absence of evidence from WorkCover. The inquiries made by Mr Howard’s solicitors were sufficient to discharge the onus of proof in the present case.
It follows that the Arbitrator’s conclusion was open to him on the evidence and I see no error in his approach or conclusion. Based on the inquiries made by Mr Howard’s solicitors and the responses received as a result of those inquiries, I am satisfied that Mr Howard has established, on the balance of probabilities, that Diamond Grids was uninsured under the 1987 Act as at the end of 1961 and beginning of 1962. It is not to the point that further inquiries could have been made.

Noisy employment

Mr Howard’s case is that his employment with Diamond Grids was noisy and was employment to the nature of which his loss of hearing was due. In his statement of 26 February 2010, Mr Howard said that he worked for Diamond Grids from approximately October 1960 to December 1961 or early 1962. He said that in the course of his employment with Diamond Grids he was exposed to noise from “grinding and hammering”. Since leaving Diamond Grids, he had been self-employed in steel fabrication.
Mr Howard expanded on his duties with Diamond Grids in a statement dated 29 December 2010. The job he did as a boilermaker with Diamond Grids involved:
(a)     working five days and sometimes six days per week, a minimum of eight hours per day but sometimes 10 hours per day;
(b)     straightening metal with the use of a sledgehammer. This was extremely noisy and involved striking the metal many times continuously over periods of 10 to 15 minutes and then breaking to perform other tasks;
(c)     cutting metal using an oxy cutter, which was not noisy;
(d)     grinding metal using a 9-inch grinder continuously over periods of 15 to 30 minutes. This was a very noisy procedure;
(e)     assembling metal into the finished unit, which involved using an electric welder (which was not noisy) and hammering, which was noisy;
(f)      performing the noisy parts of his job for approximately three hours each day, and
(g)     exposure to noise from four other workers doing similar work to that performed by Mr Howard. The co-worker closest to Mr Howard was about five metres from him and the worker furthest from him was approximately 40 metres away with the two other workers located between five and 40 metres from him.
Mr Howard added that the noisy work described above was so loud that it was not possible to have a conversation with a co-worker without shouting. He said that he did not wear any ear protection while working for Diamond Grids.
Dr Macarthur reported on 12 July 2010. He took a history that Mr Howard had been an apprentice welder and boilermaker since 1953. He worked for the New South Wales Bus and Tramways Department from December 1953 until February 1954 and then, as a boilermaker, for the New South Wales Department of Railways from February 1954 until August 1959. He worked as a boilermaker for Amico Engineering from September 1959 until September 1960. His last noisy employer was Diamond Grids “where he was a boilermaker from October 1960 until December 1961”. He had been self-employed from 1962 until June 2010. He had not suffered any head injury or trauma, nor taken ototoxic drugs and had never been exposed to the noise of firearms. He had no known family history of deafness. Dr Macarthur added that:
“Throughout his career as a boilermaker [Mr Howard] has been exposed to the noise of riveting inside boilers, beating tubes inside boilers and general banging and hammering in confined spaces.”
Mr Howard’s pattern of hearing loss shown by a pure-tone audiogram was “consistent with a noise-induced cause”. After making a correction for presbycusis, his binaural hearing loss was 58.6 per cent. Dr Macarthur concluded that Mr Howard was suffering from bilateral sensorineural deafness due to exposure to loud noise in his work as a “welder/boilermaker from 1953 until December 1961” and that his last noisy employer was Diamond Grids. In Dr Macarthur’s opinion, Mr Howard’s employment with Diamond Grids “was employment to the nature of which the disease boilermakers deafness is due ie that that employment was of the nature whereby its tendencies, incidents and characteristics gave rise to a material risk of noise induced hearing loss”. He thought that Mr Howard would benefit from binaural hearing aids.
The Arbitrator correctly stated that it was necessary for Mr Howard to establish that his employment was of such a nature as to be capable of causing boilermaker’s deafness. He referred to Dawson t/as The Real Cane Syndicate v Dawson [2008] NSWWCCPD 35 as holding that evidence needs to be sufficiently detailed to establish that the noise to which the worker was exposed was capable of causing (boilermaker’s) deafness. The Arbitrator then quoted Dr Macarthur’s conclusion (see [84] above) and rejected WorkCover’s submission that there was insufficient evidence of Mr Howard’s (work) activities to enable the doctor to form his opinion. He said that the doctor’s history was consistent with Mr Howard’s evidence of the nature of his duties and that Dr Macarthur “provided a clear opinion and has expressed his reasons for it”. He was satisfied that Diamond Grids was the employer who last employed Mr Howard in employment to the nature of which the injury was due.

WorkCover has criticised Dr Macarthur’s evidence on the grounds that he did not take any history of the periods of time over which Mr Howard might have been exposed to noise, nor the frequency of that exposure. Given his failure to obtain an accurate history in respect of these matters, the doctor’s opinion was “defective and cannot be relied upon” to establish the proposition that the worker’s employment with Diamond Grids was employment of the type that was capable of causing industrial deafness. There is no issue that, if Dr Macarthur’s evidence as to Mr Howard’s exposure to noise while working at Diamond Grids is accepted, Diamond Grids was the last employer to employ Mr Howard in employment to the nature of which his injury was due.
Mr Bechelli submitted that Dr Macarthur’s opinion provided evidence to support the finding of noisy employment. He also submitted that the Commission was entitled to accept Dr Macarthur’s evidence because it is an expert tribunal and entitled to draw conclusions from expert evidence that other courts may not (ICI Australia Operations Pty Ltd v WorkCover Authority of New South Wales [2004] NSWCA 55; 60 NSWLR 18).
Though the Commission is an expert tribunal and is entitled to rely on its expertise in understanding the evidence before it and in drawing appropriate inferences from the evidence (J D Heydon Cross on Evidence, 8^th Australian ed, 2010, Sydney Butterworths, at 188), I base my conclusion in the present matter on an assessment of the evidence tendered and a consideration of whether the Arbitrator made some error of fact, law or discretion in his assessment of that evidence.
To succeed in a claim for compensation for industrial deafness, the worker must establish that the nature of his or her employment with the employer in question involved a real, as opposed to a theoretical, risk of hearing loss (Ambulance Service of New South Wales v Daniel (2000) 19 NSWCCR 697).
The history recorded by Dr Macarthur did not accord precisely with the worker’s evidence in his second statement and it would have been preferable if Dr Macarthur had been asked to comment on Mr Howard’s second statement. However, Dr Macarthur’s report recorded the essential circumstances of Mr Howard’s work with Diamond Grids and the noise to which he was exposed as a boilermaker. Based on that history, Dr Macarthur provided uncontradicted evidence that Mr Howard’s employment with Diamond Grids was employment to the nature of which the disease boilermaker’s deafness is due.
Dr Macarthur’s history and findings on examination, coupled with his conclusion that Mr Howard suffers from bilateral sensori-neural deafness (boilermaker’s deafness) and has not suffered a severe head injury or been exposed to other relevant noise as an employee in New South Wales, provided a fair climate for the Arbitrator to accept the doctor’s opinion (Paric v John Holland Constructions Pty Ltd [1985] HCA 58; 59 ALJR 844; [1984] 2 NSWLR 505 at 509–510).
It follows that the Arbitrator’s conclusion that Diamond Grids was the last employer to employ Mr Howard in employment to the nature of which his injury (hearing loss of such a nature as to be caused by a gradual process – boilermaker’s deafness) was due was open on the evidence and discloses no error.

CONCLUSION

The Arbitrator’s decision discloses no error of fact, law or discretion. Neither party has challenged the form of the Arbitrator’s orders and those orders are confirmed. The extent of Mr Howard’s hearing loss and any deduction under s 323 of the 1998 Act will be a matter for an Approved Medical Specialist.

DECISION

The Arbitrator’s determination of 8 March 2011 is confirmed.

COSTS

The appellant is to pay the respondent worker’s costs of the appeal.

Bill Roche

Acting President
19 July 2011

I, PENELOPE FLEMING, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, ACTING PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE

[2011] NSWWCCPD 37

19 July 2011

Key Legal Topics

Areas of Law

Workers Compensation Law

Legal Concepts

Breach of Contract

Compensatory Damages

Jurisdiction