The respondent shall pay the applicant's reasonable legal costs of the application in accordance with the Tribunal's Practice Direction dated 21 August 1996.

COMPENSATION - hearing loss - whether voluntarily and unreasonably submitted to an abnormal risk of injury - airline baggage ramp services officer - failure to wear ear muffs

Safety, Rehabilitation and Compensation Act 1988

Compensation (Commonwealth Government Employees) Act 1971

Biscardo and The Commission for the Safety, Rehabilitation and Compensation Commonwealth Employees AAT 7256, unreported, 23 August 1991

Comcare v Bozicevic, FC VG 375/96, unreported, 23 April 1997

1. This is an application for review of a decision of the respondent of 11 April 1996 to disallow a claim in respect of loss of hearing and tinnitus. This decision set aside a determination of 20 December 1995, which, subject to the applicant's acceptance, would have provided a lump sum for permanent impairment suffered prior to 1 December 1988. The reviewable decision set aside that determination primarily on the grounds that compensation was not payable having regard to the exclusionary provisions of subsection 6(3) of the Safety, Rehabilitation and Compensation Act 1988 ("the Act").
2. At the hearing the applicant was represented by Mr A Lupton of counsel and the respondent by Mr M McInnis of counsel. Evidence was given by the applicant, Mr B Bilton.
3. At the commencement of the hearing, the parties advised the Tribunal that the proceeding would be limited to the question of the interpretation of subsection 6(3) of the Act and whether its provisions applied to this application. Section 6 provides:

"6. (1) Without limiting the circumstances in which an injury to an employee may be treated as having arisen out of, or in the course of, his or her employment, an injury shall, for the purposes of this Act, be treated as having so arisen if it was sustained:

(a) as a result of an act of violence that would not have occurred but for the employee's employment or the performance by the employee of the duties or functions of his or her employment; or

(b) while the employee:

• (i) was at his or her place of work, for the purposes of that employment, or was temporarily absent from that place during an ordinary recess in that employment;

• (ii) was travelling between his or her place of residence and place of work, other than during an ordinary recess in that employment;

• (iii) ...

...

(2) ...

(3) Subsection (1) does not apply where an employee sustains an injury:

(a) while at a place referred to in that subsection; or

(b) during an ordinary recess in his or her employment;

if the employee sustained the injury because he or she voluntarily and unreasonably submitted to an abnormal risk of injury.

..."

Subparagraphs (iii) to (viii) of subsection (1) and subsection (2) refer to travelling between designated places and attending designated places such as a place of education or receiving medical treatment.

1. It had been contended by the respondent that the exclusion contained in subsection 6(3) applied to the facts of this case. However, it was submitted by Mr Lupton, that subsection 6(3) applies only where subsection 6(1) applies and that subsection 6(1) does not apply to an injury which occurs at the work place. It was argued that the subsection only applies to injuries which occur during travel, recesses etc. It was said that it was unnecessary to have a section which referred to a place of work and that the section was there solely to cover absences from the work place. Mr Lupton requested that the Tribunal determine the question as a preliminary point prior to the consideration of any evidence. Whilst Mr McInnis did not oppose the request for such a determination, he was of the view that the words of the section were clear and applied to injuries sustained at the place of work.
2. After a brief adjournment, the Tribunal determined that section 6 of the Act did apply to an injury sustained in the work place and that it was relevant to consider the application of subsection 6(3) to the facts of this matter. For the submission of Mr Lupton to be accepted the Tribunal would be required to ignore the plain words of subparagraph 6(1)(b)(i). The section is not solely a deeming provision but an omnibus section setting out the places and circumstances in which a compensable injury can arise. Although it may be correct to say that it was unnecessary to include the words "at his or her place of work", there is no ambiguity. Additionally, if the words were not there, an anomaly would arise in that an injury sustained in circumstances to which subsection 6(3) applies would be compensable if sustained at a work place but not in the other places or circumstances set out in subsection 6(1).
3. At the date of the hearing Mr Bilton was 58 years of age. He is employed by Qantas Airways as a baggage ramp services officer at Melbourne airport. He has been continuously employed in that capacity since 1964 by the airline and its predecessors. Mr Bilton gave evidence that the work involved regular exposure to aircraft engine noise. He said that he was first issued with ear muffs some 15 years after he commenced employment. Initially he had used plastic ear plugs provided by himself but he found them ineffective and discontinued their use. Mr Bilton said that he first noticed a change in hearing after some eight years. At the same time he commenced to have ringing in the ears at night time which was diagnosed as tinnitus. He said that he now suffers the noise constantly. He maintained that, when ear muffs were first issued, there was no pressure on employees for some years to wear the muffs all the time. Subsequently, there was pressure for all employees to wear them. He said that for some eighteen months to two years he had difficulty with the muffs and took them off regularly. He believed that they caused headaches and discomfort with the air pressure on his ear drums. He maintained that for the past three to four years he has worn the ear muffs consistently. He acknowledged that in more recent years the safety coordinator had regularly reminded him to wear the ear muffs. Mr Bilton recalled having at least two hearing tests but could not remember the dates. When asked about a memo from the Acting Airport Manager in December 1975, he could not remember receiving it but did not dispute that he may well have done so. This memo stated:

"I wish to bring your attention to the hearing test which was conducted recently by the Industrial Safety Officer, Mr. W. S. Hughes.

As was explained to you by Mr. Hughes, your test revealed that you have some loss of hearing. In the course of the discussion with Mr. Hughes it was made clear to you this loss will become progressively more significant unless you wear the ear muffs provided for these purposes by TAA. Our Chief Medical Officer has confirmed that if you wear the ear muffs your hearing will not deteriorate any further.

You are therefore advised that you are required by TAA to wear the ear muffs provided as a condition of your employment with this organization and that it is intended to carry out a further audiogram in 9-12 months time."

Mr Bilton could not give any reason for not following the advice. He accepted that he had been one of the more difficult ones working in the baggage handling area in accepting instruction to wear the ear muffs.

1. A statement was provided by Mr Morris who had been Training and Safety Coordinator with Qantas since 1991. In view of the frank admissions of Mr Bilton in his evidence, Mr Morris was not called to give oral evidence. In his statement he said that he had known Mr Bilton since 1980. After becoming the Safety Coordinator Mr Morris had been trying to persuade, educate and/or coerce people to wear ear muffs and protective footwear and Mr Bilton had been one of the harder cases to get to wear ear muffs. He said that since he had commenced working in the loading and unloading ramp area, the company had made ear muffs available to employees. Although their use was encouraged, there was no supervision or enforcement of such use.
2. It was submitted for the applicant that this is not a case where subsection 6(3) disqualifies an entitlement to compensation. It was argued that Mr Bilton did not voluntarily and unreasonably submit himself to an abnormal risk. It was said that the exposure to risk was done unconsciously and without thought, not as a result of a wilful, conscious decision. The risk to hearing was said to be normal in the circumstances under which he was employed and not an abnormal risk. For a large part of Mr Bilton's employment and, particularly, in the earlier years, the risk was said not to have been recognized and protection not routinely available nor policed. Mr Lupton submitted that Mr Bilton had suffered a permanent impairment prior to the commencement of the Act on 1 December 1988 and was entitled to compensation under section 39 of the Compensation (Commonwealth Government Employees) Act 1971 ("the 1971 Act") which was not excluded under subsection 8(6) of the 1971 Act. Again he maintained that this exclusion, in similar terms to subsection 6(3) of the Act, applied only to injury sustained in the additional places included by section 8 of the 1971 Act, not including the work place.
3. It was submitted for the respondent that this was a clear case to which subsection 6(3) of the Act and subsection 8(6) of the 1971 Act applied. It was said that these exclusions did not require wilful submission to risk but voluntary and unreasonable submission. The respondent relied on the memo from the Acting Airport Manager of December 1975 to show that Mr Bilton was made aware of the risk and that his hearing loss would become more significant if he did not wear ear muffs which the memo directed him to do. It was said that Mr Bilton's refusal to wear the ear muffs was voluntary and unreasonable. The increase in the level of hearing loss was said to be a consequence of not following instructions. Mr McInnis referred to a decision of the Tribunal in Biscardo and The Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees (unreported, 23 August 1991). In that case the applicant, who complained of a back injury, had moved residence to Dromana which involved three hours of car travel each day instead of a previous journey of ten minutes each way. The Tribunal held that he had voluntarily and unreasonably submitted to the risk of recurrence of back pain.
4. It is appropriate to deal firstly with Mr Lupton's submission on the application of subsection 8(6) of the 1971 Act. Subsection 8(3) states:

"(3) For the purposes of this Act other than section 32, the employment of an employee by the Commonwealth includes the attendance of the employee at his place of employment or, if his living accommodation is accommodation to which sub-section (1), (2) or (3) of section 34 applies, at that accommodation (other than a part of that place, or of that accommodation, constituting separate living accommodation of the employee or another employee) at any time during a period when he is not required to engage in his employment, where the attendance is reasonably incidental to his employment."

Section 32 is not relevant to this matter. Again the words are quite clear. It includes "the attendance of the employee at his place of employment". The section is not restricted to additional places outside the work place. Subsection 8(6) is in similar terms to subsection 8(3) of the Act and states:

"(6) This section does not operate to render the Commonwealth liable to pay compensation in respect of an injury to an employee sustained during an attendance to which this section applies if the injury was sustained by reason that he voluntarily and unreasonably subjected himself to an abnormal risk of injury."

There is no uncertainty or ambiguity. The same exclusion applies to an injury sustained at the place of employment.

1. This leaves the question of whether Mr Bilton voluntarily and unreasonably subjected himself to an abnormal risk of injury by way of hearing loss and tinnitus. The exclusion is in two parts. Whether the risk of injury was abnormal and whether the submission to such risk was voluntary and unreasonable. The latter part requires the submission to be both voluntary and unreasonable. It is difficult to categorise the risk to hearing in the area in which Mr Bilton was employed as abnormal. There was a clear and regular exposure to high noise levels. Whilst the memo from the Acting Airport Manager may have directed Mr Bilton to wear ear muffs, it also recognized that further hearing loss would be suffered without them. It is clear that the risk was present and recognized as normal, at least in 1975. It is appropriate, therefore, to ask whether an exclusion from compensation arises where an employee voluntarily and unreasonably submits to a normal risk of injury. The words of the section would seem to indicate that, in such a case, the exclusion cannot apply.
2. Nevertheless, it is relevant to consider whether Mr Bilton's lack of consistent wearing of ear muffs was voluntary and unreasonable. It is not difficult to decide that it was voluntary, at least after 1975. The evidence appears to indicate that ear muffs were not necessarily provided prior to that date. Mr Bilton thought they were issued about 1979 and Mr Morris stated that they were available in the early 1980s. However, I accept the evidence of Mr Bilton and the statement of Mr Morris that there was little formal supervision or enforcement of their use prior to the appointment of Mr Morris as Safety Coordinator in 1991. Given that history, I am not satisfied that the failure of Mr Bilton to consistently wear ear muffs prior to some three to four years ago, was unreasonable. Clearly Mr Bilton had commenced to suffer a loss of hearing by 1975. What percentage loss of hearing he had then is not clear. In the course of the hearing both parties agreed that, subject to the application of subsection 6(3) of the Act, Mr Bilton had an entitlement to compensation under section 39 of the 1971 Act. That is a partial loss of hearing suffered prior to 1 December 1988. As stated, there appeared to be little supervision or enforcement of a requirement to wear ear muffs prior to that date. Notwithstanding the memo of December 1975 which drew Mr Bilton's attention to the risk, it is clear that he and many other workers continued to ignore the regular use of ear muffs. In those circumstances and in relation to that period, I do not find that his failure to consistently use ear muffs could be described as unreasonable. I find, therefore, that compensation is not excluded in this case by either subsection 6(3) of the Act or subsection 8(6) of the 1971 Act.
3. As indicated, the parties have agreed that, with this finding, Mr Bilton is entitled to lump sum compensation pursuant to section 39 of the 1971 Act. As confirmed by the Full Court of the Federal Court in Comcare v Bozicevic FC VG375/96 unreported, 23 April 1997, this entitlement is by force of section 24 of the Act with the result that Mr Bilton is also entitled to compensation under section 27 of the Act for non-economic loss.

I certify that this and the seven preceding pages are a true copy of the decision and reasons for decision herein of

Signed: .....................................................................................