Ambulance Service of New South Wales v. Daniel & Anor. [2000] NSWCA 116

Court of Appeal (NSW)|2000-05-09|Before: Sheller JA, Beazley JA, Mahoney JA

CITATION : Ambulance Service of New South Wales v. Daniel & Anor. [2000] NSWCA 116 revised - 13/07/2000 FILE NUMBER(S) : CA 40524/98 HEARING DATE(S) : 12/11/99 JUDGMENT DATE : 9 May 2000

Ambulance Service of New South Wales - Appellant PARTIES : Paul Daniel - 1st Respondent Powercoal Pty. Ltd t/as Endeavour Colliery (formerly New Vale No.2 Colliery) - 2nd Respondent JUDGMENT OF : Sheller JA at 1; Beazley JA at 2; Hodgson CJinEq at 18

LOWER COURT JURISDICTION : Compensation Court LOWER COURT CC117700/95 FILE NUMBER(S) : LOWER COURT Judge Walker JUDICIAL OFFICER :

H. Shore for Appellant COUNSEL : J.D. Hislop QC with N. Polin for 2nd Respondent Submitting Appearance for 1st Respondent Hunt & Hunt, Newcastle for Appellant SOLICITORS : Sparke Helmore, Newcastle for 2nd Respondent Baron & Associates, Sydney for 1st Respondent CATCHWORDS : WORKERS' COMPENSATION - "Employment to the nature of which [an] injury is due" - Correct test - Workers Compensation Act 1926 s.17. - APPEAL AND NEW TRIAL - When appeal lies - Question of law - What constitutes - Whether finding of fact open - Application of correct law to facts. - JUDGMENTS AND ORDERS - Reasons for - On finding of facts - Suficiency. LEGISLATION CITED : Workers Compensation Act 1926 s.17 Compensation Courts Act 1984 s.32 Azzopardi v. Tasman UEB Industries Ltd. (1985) 4 NSWLR 139 Soulemezis v. Dudley (Holdings) Pty. Ltd. (1987) 10 NSWLR 247. Price v. New South Wales Fire Brigade (Judge Geraghty, unreported, 27/2/95) Blayney Shire Council v. Lobley (1995) 12 NSWCCR 52 at 56, 64, 65. Smith v. Mann (1932) 47 CLR 426 at 443. The Commonwealth v. Bourne (1960) 104 CLR 32. CASES CITED: Coal & Allied Operations Pty. Ltd. v. Collins (1989) 5 NSWCCR 218 at 220. Hope v. Bathurst City Council (1980) 144 CLR 1 Harris v. McKenzie (1987) 9 NSWLR 139. NSW Associated Blue Metal Quarries Ltd. v. Federal Commissioner of Taxation (1955) 94 CLR 504 at 511-2 McPhee v. Bennett Limited (1934) WN(NSW) 8 at 9 Mafoula Pty. Ltd. v. Mather, NSW Court of Appeal, 13/12/88 McIlvane v. Gunnedah Shire Council, NSW Court of Appeal, 2/10/98 DECISION : See par.84 of judgment

Tuesday 9th May 2000 AMBULANCE SERVICE OF NEW SOUTH WALES V. DANIEL & ANOR. JUDGMENT

1 SHELLER, JA: I agree with the judgment of Hodgson, CJ in Eq. 2 BEAZLEY JA: I have had the advantage of reading in draft the reasons for judgment of Hodgson AJA. I agree with his Honour's reasons in respect of all grounds of appeal except the last, that is, whether there was a failure to give reasons. 3 The obligation of a judicial officer to give reasons for decision is well established: Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385-386 (Tatmar); Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (Soulemezis). The rationale behind the obligation to give reasons was identified by the Court in Pettitt v Dunkley [1971] 1 NSWLR 376 at 388: "[A]n obligation, concerning the giving of reasons, lies upon any court, including the intermediate court of appeal, so far as it is necessary to enable the case properly and sufficiently to be laid before the higher appellate court." 4 There are also authoritative judicial statements as to the extent of the obligation. However, as this case demonstrates, judicial minds can differ as to whether a particular judgment satisfies the requirement to give reasons. 5 The extent of the obligation to give reasons was identified by Mahoney JA in Tatmar at 386: "… the basis of the decision of a trial judge or of an intermediate court of appeal should be made apparent. This does not mean that the reasons given need be elaborate: an elaborate argument may not require an elaborate answer. Reasons need be given only so far as is necessary to indicate to the parties why the decision was made and to allow them to exercise such rights as may be available to them in respect of it." 6 Mahoney JA returned to the question of what will constitute adequate reasons in Soulemezis. He stated at 273: "There is, I think, no formula the application of which to the instant case will indicate what, in that case, the judge must do. Where, in the decision of an ordinary dispute, reasons are necessary, they are necessary because of the expectation that, being a judicial decision, a sufficient explanation will be given of why the order was made. And, in my opinion, it will ordinarily be sufficient if - to adapt the formula used in a different part of the law: see R v Associated Northern Collieries (1910) 11 CLR 738 at 740 - by his reasons the judge appraises the parties of the broad outline and constituent facts of the reasoning on which he has acted." 7 McHugh JA added at 280: "If an obligation to give reasons for a decision exists its discharge does not require lengthy or elaborate reasons: Ex parte Powter; Re Powter (1945) 46 SR(NSW) 1 at 5; 63 WN 34 at 36. But it is necessary that the essential ground or grounds upon which the decision rests should be articulated. In many cases the reasons for preferring one conclusion to another also need to be given: Wright v Australian Broadcasting Commission (at 701, 713). In Iveagh (Earl) v Minister for Housing and Local Government [1964] 1 QB 395, Lord Denning MR, speaking of a Minister's duty under the Tribunals and Inquiries Act 1958 (UK) to furnish 'reasons for the decision', declared (at 410) that: '… The whole purpose of the enactment is to enable the parties and the courts to see what matters he has taken into consideration and what view he has reached on the points of fact and law which arise.'" 8 However, the courts have been astute to point out, (per Mahoney JA in Soulemezis at 271) that: "…the law does not require that a judge make an express finding in respect of every fact leading to, or relevant to, his final conclusion of fact; nor is it necessary that he reason, and be seen to reason, from one fact to the next along the chain of reasoning to that conclusion." 9 At the commencement of the judgment in this case, the trial judge clearly identified the claim made and the issues involved, in particular, whether Mr Daniel's employment with the Ambulance Service was employment "to the nature of which the injury was due" (the central issue), so as to determine the last noisy employer. 10 He next identified the three matters which he considered required determination in the case. The first question was the central issue, the second was an evidentiary question relating to the Medical Panel certificate and the third was the amount, if any, of the worker's s 66 entitlement. 11 His Honour next recounted the worker's evidence (including his evidence in cross-examination), the audiological evidence, the evidence of the occupational hygienist and that of an occupational health and safety expert, documentary evidence from the Ambulance Service and the medical evidence. 12 His Honour then analysed the law in a way which this Court has concluded revealed no error of law. In analysing the decided cases to determine the correct test to be applied, his Honour paid particular regard to the decision of Geraghty J in Price v New South Wales Fire Brigade (unreported, 27 February 1995), stating at 9 of his judgment: "[Judge Geraghty] believed the test of noisy employment should be approached from a practical viewpoint … the risk had to be real as opposed to merely theoretical. His approach as judge of the facts was to weigh all the evidence on a case by case basis and if there were sufficient number of incidents, characteristics and tendencies to translate into a hearing impairment or disability then that employment could be characterised as 'noisy'." 13 His Honour stated that he proposed "to apply the principles in Price v New South Wales Fire Brigade to the facts of this case". 14 His Honour then referred again to the evidence of the worker as to the noise he had been exposed to in the Ambulance Service and the period of time over which he had been exposed to that noise. He referred to the episodic nature of the exposure and the decibel reading of the sirens used in the latter part of Mr Daniel's employment with the Ambulance Service. On this evidence his Honour determined that: "… on the balance of probabilities the noise to which Mr Daniel's was subjected during his employment with the Ambulance Service constituted a sufficient number of incidents, characteristics and tendencies to translate into a hearing impairment or disability and that his employment should be characterised as noisy." 15 Hodgson CJ in Eq, with whom I have agreed on this point, has concluded that the facts upon which his Honour relied were insufficient to constitute evidence that Mr Daniel's employment with the Ambulance Service was employment "to the nature of which the injury was due", but that when the evidence of Dr Stylis was taken into account there "could [be evidence] supporting the relevant finding". The trial judge did not refer to this evidence. Nor did he refer to the knowledge which a specialist tribunal acquires in the course of its functions. Rather, his Honour relied upon the matters considered to be relevant to determining whether there was a noisy employment by reference to another decision of the court. 16 In my opinion, the trial judge's reasoning process is clear. His Honour's omission to deal with the evidence of Dr Stylis, or to refer to the expert knowledge of the court in support of his conclusion, does not convert his reasons into judicially inadequate ones. Rather, the failure to refer to these matters potentially exposed an error in his Honour's reasoning process, namely whether there was evidence to support his Honour's conclusion. As it has turned out, that error has not been established. However, the fact that it could be so clearly expounded by the appellant demonstrates that the reasons for judgment satisfied the essential purposes of giving reasons, that is, "to enable the case properly and sufficiently to be laid before the higher appellate court": Pettitt v Dunkley per Moffitt JA at 388. 17 In my opinion the appeal should be dismissed with costs. 18 HODGSON, CJ in Eq. From 1968 to 1977, Paul Daniel was employed by the second respondent Powercoal at its Newvale Colliery; and from 1977 onwards, he has been employed as an ambulance driver by the appellant Ambulance Service. 19 Mr. Daniel has suffered injury by way of hearing loss. It is plain that his employment by Powercoal was "employment to the nature of which his injury was due" within s.17 of the Workers Compensation Act. However, Mr. Daniel did not give notice of the injury until after he commenced employment with the Ambulance Service; and accordingly, any compensation for hearing loss would be payable by the Ambulance Service if Mr. Daniel's employment by the Ambulance Service was also "employment to the nature of which his injury was due". 20 In proceedings brought in the Compensation Court by Mr. Daniel, the trial judge held that Mr. Daniel's employment by the Ambulance Service was "employment to the nature of which his injury was due"; and accordingly he ordered that the Ambulance Service pay Mr. Daniel lump sum compensation. The Ambulance Service applied for leave to appeal from that decision. Leave to appeal was granted on 22nd March 1999, and the appeal was heard on 12th November 1999.

GROUNDS OF APPEAL 21 Under s.32 of the Compensation Court Act, an appeal lies relevantly only in respect of an error of law. The appellant alleged the following errors of law: 1. That there was no evidence on which the relevant finding could be made. 2. The trial judge went beyond the evidentiary material: I take this to mean that the trial judge made findings of fact on the basis of material which was not in evidence before him. 3. The trial judge failed to give reasons. 4. The trial judge applied the wrong test. 5. The trial judge wrongly held that the facts found fell within the relevant statutory enactment.

Evidence 22 I take the following outline of evidence substantially from the judgment of the trial judge. 23 The following matters were given in evidence by Mr. Daniels, who was accepted as a witness of truth by the trial judge. 24 As noted earlier, Mr. Daniels was employed by Powercoal at its Newvale Colliery from 1968 to 1977, in employment to the nature of which his hearing loss was due. He started work for the Ambulance Service on 21st May 1977. 25 In 1991, concerned about his hearing, he was tested by Dr. Parker. He then made a claim against the Ambulance Service, but did not proceed with it. 26 On 28th July 1994, Mr. Daniel proceeded with a claim against Powercoal. He submitted himself to a medical board on 19th June 1995 for assessment; and the board certified a binaural hearing loss of 5.14%. 27 In 1997, the application was amended to include the Ambulance Service as a respondent; and Mr. Daniel went before another medical panel on 30th June 1997. On this occasion, the panel assessed a binaural hearing loss of 2.6%. 28 For most of Mr. Daniel's service with the Ambulance Service, he worked alone as a driver. It was not until 1995 that double crewing came to his station. Mr. Daniel gave evidence that there were three noisy aspects to his work: the first was the noise created by wind buffeting as he drove at speed with the driver's window open: lack of adequate air conditioning required the window to be open in the summer. The second was noise coming from the two-way radio. The third was noise from the ambulance siren. 29 In cross-examination, Mr. Daniel agreed that his working conditions so far as noise was concerned had changed for the better over the years. The first change was better air conditioning that allowed him to keep the driver's window up when driving at speed, so reducing noise from wind-buffeting. The second was that the siren noise had changed in two respects: firstly, the siren was no longer mounted overhead but on the front grill of the vehicle; and secondly, the siren itself had changed to an electronic signal amplified through a speaker, with two modes, a high-pitched "yelping" mode and lower pitched "wail" mode. Mr. Daniel said that the siren was not used frequently, only in emergency situations, and then mostly going to the scene. He estimate that the siren would be used on about three occasions per week, and then only for about fifteen minutes at a time. He also said that he had to keep the radio up loud enough for him to hear: it was set about mid-range, and at that volume he found the noise comfortable. The only other noise of note was when helicopters were involved at the scene, which was not often. 30 There was also in evidence a report by Sydney Hospital Occupational Health & Safety Service to a Joint Consultative Committee on Occupational Health and Safety, NSW Health Department, dated July 1997. That report evaluated the noise from sirens used at that time by the Ambulance Service. The results showed decibel levels ranging from about 72dB(a) to about 87dB(a) for a Ford vehicle with a front-mounted siren, and up to about 92dB(a) for a Toyota vehicle with a top-mounted siren. I will say more about this report later. 31 There was also medical evidence called. For Mr. Daniel, there was a report from Dr. Parker assessing Mr. Daniel's binaural hearing loss at 13.4%, on the basis of audiological tests conducted on 15th November 1991. There was also a report by Dr. Stylis, an ear, nose and throat specialist, who found a binaural hearing loss of 14.28%, on the basis of audiological tests conducted on 28th July 1994. I will say more about Dr. Stylis' evidence later. 32 For the respondent, there was evidence from Dr. Seymour, an ear, nose and throat specialist, who found a binaural hearing loss of 9.2% on the basis of audiological tests on 6th August 1996. Dr. Seymour stated that, in his experience, the noise level sustained during employment with the Ambulance Service would not be sufficient to give rise to any acoustic trauma; but did not say what his experience with noise in the Ambulance Service was.

THE TRIAL JUDGE'S REASONS 33 In considering whether Mr. Daniel's employment with the Ambulance Service was an employment to the nature of which the injury was due, the trial judge first considered the applicable principles. On the basis of that discussion, the trial judge decided that he should apply the principles in Price v. New South Wales Fire Brigade (Judge Geraghty, unreported, 27th February 1995). The trial judge then continued: Mr. Daniel as I remarked did not go out of his way to label the Ambulance Service as a noisy employer. However he did describe in his evidence high levels of noise caused by siren mounted overhead as well as the less noisy but still very loud yelping and wailing sirens attached to the front of the vehicle. His evidence was that the change in the mountings and technology of the sirens was phased in over a long period and he had been in the job 12 or 13 years before the changeover. He agreed that the sirens were only used briefly and not even daily but he did have to endure at least 1½ hours a week of very loud noise. In addition the applicant gave evidence of wind buffet noise that continued for about 17 years until adequate air conditioning was provided. There was also constant noise from the two way radio. The Occupational Health and Safety Service report in July 1991 only monitored the modern yelp and wail sirens which were nowhere near as noisy according to Mr. Daniel. The siren still reached almost 87dB(A) in yelp mode mounted on the front of vehicles and 92dB(A) overhead. This is very loud noise indeed comparable to a jumbo jet overhead. Taking all this evidence into consideration I determine that on the balance of probabilities the noise to which Mr. Daniel's was subjected during his employment with the Ambulance Service constituted a sufficient number of incidents, characteristics and tendencies to translate into a hearing impairment or disability and that his employment should be characterised as noisy.

WAS THE WRONG TEST APPLIED? 34 It is convenient to first consider the question whether the trial judge applied the wrong test. On this matter, as well as other matters, both parties have provided written submissions, which will be left with the papers. 35 In substance, Mr. Shore for the Ambulance Service submitted that the trial judge's conclusion must indicate that he applied a test other than that which he identified and purported to take from the decision of Geraghty, J. in Price. However, Mr. Shore accepted that there would be no error if the trial judge did proceed on the basis of that test, namely that it was sufficient for the worker to prove that the nature of his employment with the employer in question involved a real, as opposed to a theoretical, risk of hearing loss. 36 Mr. Hislop QC for Powercoal submitted that that was in fact too stringent a test: he submitted that it was sufficient if the nature of the employment "could" cause injury of the type suffered; and he referred us to statements to that effect by Kirby, A-CJ and Cole, JA in Blayney Shire Council v. Lobley (1995) 12 NSWCCR 52 at 56, 64 and 65. 37 There may be a question as to whether that submission is open in the absence of a notice of contention; but in any event, I would interpret "could" as used in Lobley not as meaning "could as a matter of the barest possibility", but rather as meaning "could as a matter of real risk". The case of Lobley itself did not concern the degree of risk contemplated by the word "could", but rather the relevance of the provision of protection to the worker, which was sometimes but not always availed of. 38 In my opinion, the relevant authorities support the view that more than a theoretical risk, or a bare possibility, is required. 39 In Smith v. Mann (1932) 47 CLR 426 at 443, Starke, J. considered that the test involved a question of whether the type of injury was "incidental to that class of employment". The passage containing that statement was quoted by Cole, JA in Lobley, without any suggestion that the test stated there was to be departed from. 40 The case of The Commonwealth v. Bourne (1960) 104 CLR 32 concerned an investigating office in the Commonwealth Taxation Department who died from a coronary occlusion which occurred on his annual leave. There was evidence that his heart disease had progressively developed over a number of years; and that, for eight months before his death, he had been engaged on a specific task of investigation which seemed to cause him great worry, anxiety and feelings of frustration. The High Court held that it was not established that there was acceleration of the heart disease due to the nature of the employment. 41 The question was whether the employee's condition was "due to the nature of the employment in which the employee is engaged". Dixon, CJ, at p.39, held that the word "nature" seemed to refer to "a connexion between the disease in the defined sense and the description of employment in virtue of its tendencies, incidents or characteristics". 42 At p.40, Fullagar, J. said this: So far as s.10 is concerned, it seems to me impossible to maintain that the death of Mr. Bourne was "due to the nature of the employment in which he was engaged". It was not shown, nor, I should imagine, could it have been shown, that a characteristic or distinctive feature of employment as a taxation investigation officer was a tendency to cause arterial sclerosis or myocardial degeneration, or to aggravate or accelerate an existing condition of arterial sclerosis or myocardial degeneration. Such a tendency, so far as appears, was no more part of the nature of Mr. Bourne's employment than of the nature of any other responsible employment. That employment was not, so far as I can see, of such a nature as to expose Mr. Bourne to a special risk of contracting any particular disease or of suffering an aggravation or acceleration of any particular disease and s.10 applies, in my opinion, only to cases in which there is such a special risk. 43 At p.44, Menzies, J. said that the provision applied "only when the employment ordinarily involves a risk of the disease so that the disease is 'due to the nature of the employment'". His Honour went on to say that the evidence in that case "falls far short of showing that the occurrence or aggravation of heart disease is in any way typical of the occupation of tax investigating". 44 In Coal & Allied Operations Pty. Limited v. Collins (1989) 5 NSWCCR 218 at 220, Mahoney, JA said that the question was "whether employment of that nature was apt ... to produce the relevant injury". 45 Having regard to that line of authority, in my opinion it would not be an error to proceed on the basis that what the worker has to prove is, in substance, that the nature of his employment with the employer involved a real as opposed to a theoretical risk of hearing loss. In my opinion, this is to say much the same as to say that the type of injury is incidental to that class of employment, or that the nature of the employment is apt to produce the relevant injury. 46 When the trial judge came to make his finding, he did not in terms apply this test. As recorded above, what he found was that "the noise to which Mr. Daniel was subjected during his employment with the Ambulance Service constituted a sufficient number of incidents, characteristics and tendencies to translate into a hearing impairment or disability". However, on the previous page of the judgment, the trial judge had said the following in relation to Geraghty, J.s decision in Price: Judge Geraghty however did not accept that approach to interpreting section 17. Rather he believed the test of noisy employment should be approached from a practical viewpoint and held that the risk had to be real as opposed to merely theoretical.

His approach as judge of the fact was to weigh all the evidence on a case by case basis and if there were sufficient number of incidents, characteristics and tendencies to translate into a hearing impairment or disability then that employment could be characterised as "noisy". In my opinion, those paragraphs make it clear that the trial judge in substance equated "translate into" to "involve a real as opposed to a theoretical risk of". And in my opinion therefore, the appellant has not made out that the trial judge did otherwise than to purport to apply a correct test. The question of whether other material in the case forces the conclusion that the trial judge did not do what he purported to do must in my opinion depend upon other grounds of appeal.

WERE THE FACTS FULLY FOUND NOT WITHIN THE STATUTE? 47 It is convenient next to consider the appellant's submission that whether the facts enabled a finding that Mr. Daniel's employment with the Ambulance Service was employment to the nature of which the injury was due was a question of law. For this submission, the appellant relied Hope v. Bathurst City Council (1980) 144 CLR 1 and Harris v. McKenzie (1987) 9 NSWLR 139. 48 In Hope, the High Court held that the question whether certain activities amounted to a "business" within a certain statutory provision was a mixed question of law and fact, and that an error in deciding that question was an error of law. At p.7, Mason, J. noted that "Many authorities can be found to sustain the proposition that the question whether facts fully found fall within the provisions of a statutory enactment properly construed is a question of law". His Honour later said: However, special considerations apply when we are confronted with a statute which on examination is found to use words according to their common understanding and the question is whether the facts as found fall within these words. Brutus v. Cozens (1973) AC 854 was just such a case. The only question raised was whether the appellant's behaviour was "insulting". As it was not unreasonable to hold that his behaviour was insulting, the question was one of fact. 49 In Harris, the question before the Court was whether certain premises were "occupied" by an "association" or "other organisation" within a certain statute. The New South Wales Court of Appeal held that the question whether the facts of the matter fully found fell within that statutory enactment was a question of law. 50 However, in Azzopardi v. Tasman UEB Industries Limited (1985) 4 NSWLR 139 at 157, Glass, JA said this: An erroneous conclusion that facts properly determined fail to satisfy a statutory test, for example, injury arising out of the cause [sic. course] of employment, substantial interruption to journey, or failure to provide suitable employment will ordinarily be an erroneous conclusion of fact. It is only in marginal cases that the statutory test is satisfied or not satisfied as a matter of law, because no other application is reasonably open: Hope v. Bathurst City Council (at 10); Australian Gas Light Co. v. Valuer-General (at 138; 55). 51 And in Coal & Allied Operations Pty. Limited v. Collins (1989) 5 NSWCCR 218, Meagher, JA at p.225 said that the question whether a worker's employment was employment to the nature of which the injury or disease was due was a "purely factual question". 52 In my opinion, the principle in Hope and Harris is not so narrow as stated by Glass, JA in Azzopardi. If, as in those cases, a statute contains legal concepts like "partnership", then a question whether the facts fall within the statute will generally involve a question of law (see also NSW Associated Blue Metal Quarries Ltd. v. Federal Commissioner of Taxation (1955) 94 CLR 504 at 511-2). However, where, as in this case, a statute uses words according to their common understanding, generally the application of the statute to the facts will itself be a question of fact: in such cases, a question of law will arise only if there is a question as to the correctness of the test stated by the tribunal, or if the tribunal finds primary facts which could not fall within the terms of the statute. Neither of those alternatives is made out in this case.

WAS THERE EVIDENCE ON WHICH THE FINDING COULD BE MADE? 53 Mr. Shore submitted that the question whether there was any evidence upon which the finding could be made was a question of law, and he relied on McPhee v. Bennett Limited (1934) 52 WN(NSW) 8 at 9. 54 Mr. Hislop relied on Azzopardi, and on the following statement by Meagher, JA in Coal & Allied at p.225: But it must be emphasised that the question is a purely factual question, and when his Honour has answered in the affirmative, his Honour was making a finding of fact. That being so, this Court has no jurisdiction to embark on an analysis of its correctness or otherwise, and hence any challenge to it must fail in limine since the Court can only entertain appeals from the Commission on questions of law. 55 Mr. Hislop submitted that it was very difficult to establish that there was no evidence: it did not matter that the evidence was scanty or implausible, or even that the decision was perverse: if there was any evidence at all on the point, there was no error of law. 56 In my opinion, Mr. Hislop's submissions to some extent reflect a misunderstanding of what was decided in Azzopardi. In the main judgment in that case, that of Glass, JA, a clear distinction was drawn between the situation where the finding of fact in question is made in favour of a person bearing the onus of proof, and the situation where the finding of fact is made against the person bearing the onus of proof. In the former situation, the question is not whether there is any evidence at all on the point, but rather whether the evidence on the point is sufficient, in the sense that it is evidence which if fully accepted could properly base the finding of fact. The distinction is made clear in the following passage from the judgment of Glass, JA at p.156: To the legally uninitiated there is a spurious validity in a submission that it was not open to the judge to find that the applicant was not injured since there was no evidence to that effect. If a respondent employer can argue a no evidence point, why cannot the applicant worker? The answer is, of course, that alleged insufficiency of evidence to prove a fact always raises a question of law but alleged sufficiency of evidence to the point of conclusiveness cannot, since it assumes that the evidence has been accepted. The party not bearing the onus puts an argument, which assumes against himself that the evidence has been accepted, but submits that it is not capable of establishing the fact. The party saddled with the onus on the other hand cannot assume in his favour that the evidence is or ought to be accepted since this trenches upon the liberty of the tribunal of fact to accept or reject any evidence. 57 That very sharp distinction has not been stated so clearly in all the cases which followed Azzopardi. 58 In Suolemezis v. Dudley (Holdings) Pty. Limited (1987) 10 NSWLR 247, the trial judge found incapacity in favour of the worker up to a specified date, and thereafter found the worker "fit for all work". An appeal was brought on two grounds: firstly, that there was no evidence on which his Honour could have found as he did; and secondly, that his Honour failed to give any reasons for his conclusion. 59 In relation to the first ground of appeal, Kirby, P. at pp.253-4 referred to Azzopardi, and the view of the majority that "an error of fact-finding would not be elevated to an error or law, if based on evidence open to the trial judge, even if an appeal court were of the view that the decision on the facts was illogical, perverse or completely unreasonable". At p.256, Kirby, P. rejected the argument that there was no evidence at all to sustain the trial judge's finding. 60 It is to be noted that Kirby, P. did not speak in terms of evidence sufficient to base a finding, but whether there was no evidence at all to sustain the finding. If his Honour thereby meant to say that, in circumstances where the onus of proof lay on the respondent, an appellant could not make out a an error of law by showing that, although there was evidence relevant to the question, that evidence could not even if fully accepted properly support the finding, it would seem that what he said may be inconsistent with what Glass, JA said in Azzopardi. 61 In the judgment of Mahoney, JA in Soulemezis, at p.264, his Honour pointed out that the onus was on the worker to prove incapacity at any relevant time. Accordingly, in my opinion, the error that had to be shown by the appellant worker in that case was an error in failing to be satisfied of a matter on which the appellant bore the onus of proof. Approached in that way, no question of sufficiency of evidence could arise, for the reasons discussed by Glass, JA in Azzopardi; and so the statements of Kirby, P. were obiter in their application to cases where the appeal is against a finding in favour of the party bearing the onus of proof. 62 In Mafoulu Pty. Limited v. Mather, NSW Court of Appeal, 13/12/88, a finding had been made that a company director was a worker. An appeal was brought on the basis that there was no evidence to sustain that finding. The Court of Appeal held that there was such evidence. Kirby, P. posed the question as being whether or not "there was no evidence at all to support a finding of fact made". Samuels, JA. held that there was "some evidence upon which the finding could rest". 63 Again, if the question posed by Kirby, P is interpreted as asking whether or not there was any evidence at all relevant to the finding, then that is not consistent with Azzopardi. In my opinion, Kirby, P's question, and the statement of Samuels, JA, should be properly interpreted as indicating that the correct question, in relation to a matter where a finding has been made in favour of a person bearing the onus, is whether or not the finding could properly be made on the evidence, if fully accepted. It must be recalled that Azzopardi itself was a case where the finding challenged was a finding against the person bearing the onus. 64 Similarly, the passage quoted earlier from the judgment of Meagher, JA in Collins, at p.225 could be interpreted as suggesting that no question of sufficiency of evidence, as that term was used by Glass, JA in Azzopardi, arises even where the finding appealed against is a finding in favour of a party bearing the onus of proof. For reasons I have given, I do not think that passage should be interpreted in that way. 65 Accordingly, the question is whether the evidence before the trial judge was sufficient, in the sense used by Glass, JA in Azzopardi, to support the finding that Mr. Daniel's employment with the Ambulance Service involved a real risk of injury. Each set of written submissions contains an analysis of the evidence, and I will not repeat those analyses. Rather, I will set out briefly what seems to me to be the evidence relevant to the question, that may be capable of supporting the decision. 66 The first category of evidence was the evidence from Mr. Daniel himself. So far as that evidence went, the first occasion when Mr. Daniel became concerned about his hearing was 1991, some fourteen years after his employment by Powercoal ceased; which could possibly support an inference that his employment by the Ambulance Service contributed to his actual hearing loss. Then there was Mr. Daniel's evidence about the conditions of his employment, summarised earlier. He described the noise from ambulance sirens as being very loud, and the helicopter work as being noisier than the sirens. He also gave evidence that, with a combination of the siren and trying to converse with someone in a vehicle with the radio going at the same time, it would be very hard to understand what was being said on the radio. 67 Then, there was the report of Mr. Stylis, which contained the following paragraphs: He is currently employed by the N.S.W. Ambulance as an ambulance officer where he has been working for 17 years. Here the main noise he is exposed to is the noise of the two way radio which is up high all the time, and the sirens. He also occasionally is exposed to noise in factories where they are called to attend to patients. Prior to that however he worked as a fitter with the Newvale No.2 Colliery here (sic) he worked underground exposed to usual mining noises including root bolting and the miner itself which he used to drive as well; he also worked in the workshop. He was exposed here to significant noise then. There is no significant abnormality to be seen on the inspection of the nose and throat area. The pharynx is normal, there is no cervical lymphadenopathy, the nasal airway is satisfactory. The tuning fork elicits a Rinne positive response in each ear. The ear canals are normal. The eardrums are normal. The audiogram shows a high frequency sensori neural hearing loss. The pattern of the audiogram is typical of that seen in people exposed to industrial noise. I would accept this as being related to the patient's occupation. The hearing loss is permanent. 68 Next, there was the hospital report, referred to earlier. As well as noting the measurements referred to earlier, this report noted that the noise exposure standard adopted by the NSW Government is 90dB(A) for eight hours. It went on to note that "if higher noise levels are experienced by the employees, the exposure time must be shortened accordingly to compensate for the magnitude of over-exposure", and a table was provided as an indication on the adjustment of noise exposure to work hours. This showed a progressive reduction of exposure time from eight hours in respect of 90dB(A) down to 0.8 hours daily in respect of 100dB(A). The report went on to note that, as a legal standard, in no time should noise exposure be exceeding 115dB(A). In relation to the Toyota support vehicle, the report noted that the predicted exposure of staff for an eight-hour working day is considered to be less than the legal standard of 90dB(A), but went on: "However, the noise level does warrant concern especially when there are suggestions from occupational health professionals to lower the noise exposure standard from 85dB(A) for eight hours for better protection of the employees". The report went on to make the following recommendations: Recommendations to further improve the work environment of the emergency vehicle staff regarding noise exposures are listed as follows:

All top-mounted sirens should gradually be replaced by front-mounted models in vehicles now in service; All new emergency vehicles should be brought into service with a front-mounted siren; Since all emergency vehicles are installed with air conditioners, the drivers should have windows closed while the siren is in operation; Unless restricted by regulations, the feasibility of incorporating volume control for sirens should be considered; Unless absolutely essential, the specification which requires a noise level of 124dB at a distance of 1 metre in front of the siren should be modified to allow the use of sirens with lower sound energy. Specifications on sirens adopted in other states should be consulted to work out a possible modification. It should be emphasised that the noise from the siren does not present an imminent danger to the hearing abilities of the staff concerned. However, it is good occupational health practice to improve, as far as reasonably practicable, the work environment even through (sic) the action is not required by legislation. 69 Mr. Hislop also relied on the circumstance that the Compensation Court, as a specialist tribunal, could draw on its own knowledge of the way in which exposure to noise gave rise to risk of hearing loss: see Producers Meat Supply Co. Pty. Ltd. v. McKinley (1950) WCR 149; Australian Iron & Steel Pty. Ltd. v. Elliott (1966) 67 SR(NSW) 87; Tame v. Commonwealth Collieries Pty. Ltd. (1947) 47 SR(NSW) 269 at 272; Bryer v. Metropolitan Water Sewerage & Drainage Board (1939) 39 SR(NSW) 321 at 330; R. v. City of Westminster Assessment Committee (1941) 1 KB 53 at 69. 70 In this case, I think there is a real question whether the evidence of Mr. Daniel alone could be sufficient for even a specialist tribunal to conclude that the nature of his employment by the Ambulance Service was such as to involve a real risk of hearing loss. He described the siren noise as very loud but not uncomfortable, and his evidence was to the effect that even in the worst situation, he would not experience difficulties having a normal conversation with another person in the vehicle. Certainly in my opinion, a court which is not a specialist tribunal could not draw the required conclusion from this, without the assistance of some expert opinion evidence. 71 The evidence in the hospital report supported a conclusion that with a top-mounted siren noise levels could go as high as about 92d(B)A. This was with an electronic siren in yelp mode, and Mr. Hislop submitted that the earlier sirens were considerably louder: however, in my opinion Mr. Daniel's evidence did not support that view, but merely that top-mounted sirens were noisier than front-mounted sirens, and that in the yelp mode the frequency of the new sirens was probably higher than that of the old siren. In my opinion, the evidence of noise measurements in this report, even coupled with Mr. Daniel's evidence, could not without the assistance of expert evidence be sufficient for the relevant finding, at least unless the expertise of a specialist tribunal is relied upon. 72 The hospital report itself did not directly express an expert opinion that exposure to noise levels even of 92dB(A) for the periods given in evidence by Mr. Daniel, that is up to about a total of about one hour per week, involved any real risk of hearing loss. However, the opinion expressed in the report that "the noise level does warrant concern", coupled with the recommendations for further improvements, could conceivably be argued to be expert evidence supporting a finding that the nature of the employment involved a real risk; although there is the problem that even this very mild expression is not related to the circumstances of Mr. Daniel's employment. 73 As regards the report of Mr. Stylis, there is a question whether "the patient's occupation" is intended to refer to his work at the colliery, or his work as an ambulance officer, or both. There is force in Mr. Hislop's submission that, having regard to the circumstance that Mr. Daniel had been working as an ambulance officer for seventeen years at the time of the report, it probably related to his employment as an ambulance officer either alone or together with his previous employment. There is some force also in Mr. Shore's submission that the report appears to be based on an incorrect history, namely that the two-way radio is up high all the time; but that would probably not deprive the report of all evidentiary force. However, this part of Mr. Stylis' report could possibly be taken as expert evidence supporting the relevant finding. 74 Putting together all the matters to which I have referred, and also having regard to the circumstance that the Compensation Court is a specialist court, I am not satisfied there was not evidence on which the finding made by the trial judge could properly have been made.

Did the trial judge fail to give reasons for his decision? 75 Mr. Shore submitted that a trial judge must provide reasons setting out the essential ground or grounds supporting a decision, and reasons for supporting one conclusion over another: Soulemezis at p.180. It must be possible from the judgment to ascertain the basis for the findings. Mr. Shore referred to the following statement by Sheller, JA in McIlvane v. Gunnedah Shire Council, Court of Appeal, 2/10/98: A superior court, considering the decision of an inferior tribunal, should not be left to speculate from collateral observations as to the basis of a particular finding. 76 Mr. Hislop pointed to quite extensive discussion by the trial judge. He submitted that this ground of appeal amounted to a criticism of the judge's reasoning process, not an absence of reasons; and only the latter was sufficient. 77 While there was substantial reference to evidence in the judgment, the actual reasons given for the crucial finding are confined to the four paragraphs which I quoted earlier. In my opinion, the question of whether reasons have been given has to be related to the issue in question, and the material before the judge relevant to that issue. My discussion on the question of whether there was evidence on which the finding could be made has adverted to the main evidence in the case in support of the finding, and to the necessity of relying on certain expert evidence (and the problems of that evidence) or (perhaps) on the specialist knowledge of the Compensation Court. 78 The judgment of the trial judge made no reference to the material in Dr. Stylis' report which could support the finding, nor did it indicate any reliance on the knowledge of the Compensation Court as a specialist tribunal. It did make reference to the evidence of Mr. Daniel, although it did not in terms rely on the circumstance that there was, so far as the evidence went, no complaint prior to 1991. It referred to the hospital report, but did not refer to the expression of concern in the report or the recommendations for improvements that were made. In relation to Dr. Seymour's report, the trial judge made the comment that Dr. Seymour did not indicate the basis of his experience with noise levels involved in employment with the Ambulance Service. 79 In my opinion, having regard to the absence of any mention in the judgment of the possibly relevant expert evidence to which I have referred, and the absence of mention of the Court's knowledge as a specialist tribunal, the matters actually referred to by the trial judge do not amount to evidence capable of supporting the finding. The trial judge may have taken into account the matters which he did not refer to; but this Court is left to speculate whether or not he did, and if so, how he took them into account. In particular, it is mere speculation whether and if so how the trial judge had regard to the time of Mr. Daniel's first complaint, the relevant part of Mr. Stylis' report, the expression of concern and recommendations in the hospital report, and the Court's knowledge as a specialist tribunal. 80 In my opinion, that means that the requirement for reasons has not been met. For that reason, in my opinion the appeal should be upheld and a new trial ordered. 81 Since writing the above, I have had the advantage of reading in draft the reasons for judgment of Beazley, JA. Whereas I was left uncertain as to whether the trial judge did or did not have regard to the matters which might have supported his decision of fact, her Honour's view is that his reasons showed he did not do so, and thus were adequate, albeit perhaps exposing an error. In my opinion, if a judge's reasons show that he or she made a finding of fact relying exclusively on material that could not as a matter of law support that finding, then although the reasons may be adequate, they will disclose an error of law. However that may be, I remain of the view that the trial judge's reasons in this case do not show this, but rather leave it unclear as to whether or not he did rely on the evidence which might have supported his finding, and for that reason they are inadequate.

DID THE TRIAL JUDGE GO BEYOND THE EVIDENTIARY MATERIAL? 82 In substance, this complaint related to a comparison of a sound level of 92dB(A) to the sound of a jumbo jet overhead; and the use made by the trial judge of the Price case. To put the matter bluntly, perhaps more bluntly than actually submitted, it was suggested that the trial judge had reasoned that the Price decision shows that driving fire engines involves a risk of hearing loss, ambulances are like fire engines, therefore driving ambulances involves a risk of hearing loss. 83 In my opinion, the reference to a jumbo jet, although not supported by evidence, did not play any appreciable role in the trial judge's reasoning. In my opinion also, on a fair reading of the judgment, the trial judge did not impermissibly use material from the Price decision as evidence before him. For those reasons, I would not allow the appeal on this ground.

ORDERS 84 I propose the following orders: 1. Appeal allowed. 2. Award of Judge Walker set aside. 3. Proceedings remitted to the Compensation Court of NSW for re-hearing. 4. First respondent to pay appellant's costs of the appeal, and if qualified to have a certificate under the Suitors Fund Act. **********

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(2000) 19 NSWCCR 697

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Court

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Judgment (18 paragraphs)

Cases Cited (11)