Charters Towers Regional Council v Workers' Compensation Regulator [2019] QIRC 27

Blackwood (Workers' Compensation Regulator) [2015] ICQ 031.

Carpentaria Gold Pty Ltd and Others v WorkCover Queensland [2002] QIC 34; 170 QGIG 243

CFMEU v Blackwood and Vaccaneo [2015] QIRC 050

Davidson v Blackwood [2014] ICQ 008

Dubbin v Workers' Compensation Regulator [2017] QIRC 67

Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84

R v Pilgrim (1870) LR 6 QB 89

State of Queensland (Queensland Health) v Q-COMP and Beverley Coyne [2003] QIC 118; 172 QGIG 1447

Ms R. Nichols of counsel, instructed by Jensen McConaghy Lawyers for the appellant.

Mr S. McLeod of counsel, directly instructed by the respondent.

[1] On 7 April 2017, Mr Jonathan Smith lodged an application for compensation with Local Government Workcare (LGW). The nature of the injury was stated as being "deafness" in both ears which had occurred over a period of time. At the time of lodging the application, Mr Smith was 67 years of age having been born on 5 May 1949.

[2] On 16 June 2017, LGW rejected Mr Smith's application in accordance with s 125 of the Workers' Compensation and Rehabilitation Act 2003. LGW determined that Mr Smith's employment with the appellant had not been at a location or locations where the noise level was a significant contributing factor to his industrial deafness.

[3] A review of the LGW decision was sought and on 18 September 2017 the Workers' Compensation Regulator set aside the decision to reject Mr Smith's application for compensation and substituted a new decision to accept the application in accordance with section 125 of the Act.[1] It is against this decision of the regulator that the appellant now appeals to this Commission.[2]

[4] Prior to working with appellant, Mr Smith was employed as a serviceman and plant operator at the Goonyella Coal Mine between 1971 and 1994. In mid-1980 he was diagnosed with industrial deafness, assessed at 1.3% hearing loss, for which he made an accepted application for workers compensation. In 1991 a further application for workers' compensation was made for hearing loss assessed at 2.5%. In 1994 Mr Smith injured his back and thereafter ceased work at the mine.

[5] In 2000, Mr Smith purchased and moved into the Balfes Creek Motel/Hotel situated on the Flinders Highway approximately 42km from Charters Towers.

[6] Adjacent the Balfes Creek Motel/Hotel is a community hall and public toilets situated on Council property.

[7] At the time that Mr Smith moved to Balfes Creek, the Council property was owned by the Dalrymple Shire Council. Following Council amalgamations in 2008, the Charters Towers Regional Council became the owner of that property.

[8] The appellant contends that Mr Smith was engaged by the appellant in November 2008 to clean the public toilets (2-3 times per week); clean the hall when required (1-2 times per year); mow and generally maintain the grounds around the hall and public toilets (at an allowance of 2 hours per fortnight) as necessary.

[9] Mr Smith would mow the strip of grass between the road and the railway fence, between the two 80km signs, an area about 6-10m wide and about 800m on both sides of the road. Mr Smith would mow this area using a ride on mower purchased by himself.

[10] It is the appellant's contention that Mr Smith was not engaged by it to mow the Highway strip. If he did mow the highway strip he did so as a volunteer.

[11] The appellant concedes that Mr Smith was a 'worker' under the Act with respect to Council work as set out in paragraph [8] above. However, Mr Smith was not, on the appellant's case, a 'worker' under the Act in respect to the mowing of the Highway strip.

[12] "Injury" is defined in s 32(1) of the Act as:

(1) personal injury arising out of, or in course of, employment if -

(a) For an injury other than a psychiatric or psychological disorder - the employment is a significant contributing factor to the injury:

[13] The definition of "injury" is extended by s 32(3)(c) to include:

Loss of hearing resulting in industrial deafness if the employment is a significant contributing factor to causing the loss of hearing.

[14] A worker who suffers an injury by way of loss of hearing resulting in industrial deafness is not entitled to compensation under the general provisions of the Act.

[15] The Act contains specific provisions which cover industrial deafness:

(1) The worker is entitled to compensation for the industrial deafness under part 10 and sections 211(1)(a) and 219(1) and not under any other provision.

(2) The application for compensation for industrial deafness must be made-

(a) while the claimant is a worker under this Act; or

(b) if the claimant would ordinarily be a worker under this Act but is temporarily unemployed; or

(c) within 12 months after the claimant's formal retirement from employment.

(3) The worker is entitled to compensation for industrial deafness that is attributable to the worker's employment in the State as a worker if the worker -

(a) has been employed in an industry in the State for a period of, or for periods totalling, at least 5 years; and

(b) the employment was at a location, or at locations, where the noise level was a significant contributing factor to the industrial deafness.

(4) The worker is not entitled to lump sum compensation for the first 5% of the worker's diminution of hearing.

(5) The insurer must ask that the worker's degree of permanent impairment resulting from the diminution of hearing be assessed under section 179.

[16] For completeness, s 30(3) of the Act provides:

(3) To remove any doubt, a reference to an employer of a worker who sustains an injury is a reference to the employer out of whose employment, or in the course of whose employment, the injury arose.

[17] An appeal of this type is, as Hall P observed in State of Queensland (Queensland Health) v Q-COMP and Beverley Coyne,[3] to be treated as a hearing de novo.

[18] The nature of a hearing de novo was discussed by Martin J in Church v Simon Blackwood (Workers' Compensation Regulator).[4] In that case, his Honour referred to the reasoning of Dawson J in Harris v Caladine where he said:

An order made by a Registrar is reviewable by way of a hearing de novo. That means that the court reviewing the order begins afresh and exercises for itself any discretion exercised below by the Registrar. The parties commence the application again, subject to any restrictions in the rules upon the calling of evidence or provisions relating to the use before the court of evidence called before the Registrar. A hearing de novo involves the exercise of the original jurisdiction and 'the informant or complainant starts again and has to make out his case and call his witnesses': Builders Licensing Board v. Sperway Constructions (Syd.) Pty. Ltd.; see also Reg. v. Pilgrim; Campbell, 'Judicial Review and Appeals as Alternative Remedies', Monash University Law Review.

A hearing de novo may be contrasted with an appeal stricto sensu and an appeal by way of rehearing. In an appeal stricto sensu the question is whether, upon the material before the tribunal below, the conclusion which was reached was correct. An appeal by way of rehearing involves the rehearing of the matter as at the date of the appeal, but upon the evidence called before the tribunal below, subject to a power to receive further evidence. On an appeal by way of rehearing the rights of the parties must be determined by reference to the circumstances, including the law, as they exist at the time of the rehearing. But an appeal by way of rehearing does not call for a fresh hearing as does a hearing de novo; the appeal court does not hear the witnesses again: see Builders Licensing Board v. Sperway Constructions (Syd.) Pty. Ltd.; Quilter v. Mapleson; and Victorian Stevedoring and General Contracting Co. Pty. Ltd. and Meakes v. Dignan ." (citations omitted, emphasis added)[5]

[19] Dawson J said in Harris v Caladine in relation to a hearing de novo that the "complainant starts again and has to make out his case and call his witnesses". The question for the Commission to determine is what it is that the parties are starting again. What is the "case" to be made out? If, as Lush J put it: "the issue is the same", what is the "issue"?[6]

[20] The question to be determined in this case is the decision of the regulator to set aside the decision of LGW and to substitute a new decision to accept the Mr Smith's application for compensation in accordance with s 125 of the Act.

[21] The onus therefore rests with the appellant to establish, on the requisite standard, that Mr Smith's application for compensation under s 125 of the Act was not one for acceptance.

The issues for determination can be identified as follows:

(a) Was Mr Smith a 'worker' for the purposes of s 11 of the Act?;

(b) Did Mr Smith's injury arise out of or in the course of his employment?;

(c) Was his employment with the appellant a significant contributing factor to his injury?;

(d) Does Mr Smith satisfy the provisions of s 125 of the Act?

[22] In my view, and for the reasons which follow, the appellant has failed to discharge the onus and accordingly the appeal must fail.

[23] The appellant called Robert Read, Facilities Manager, Charters Towers Regional Council. Mr Read commenced employment with the appellant in March 2008 as Property Manager. The role involved supervising the maintenance of council facilities and any improvements. As the property manager for Charters Towers Council he had responsibility for the Balfes Creek Community Hall and public toilets.

[24] Mr Read recalled meeting Mr Smith in 2008 shortly after the amalgamation between the Dalrymple Shire Council and the Charters Towers Regional Council. At the time of the meeting, Mr Read was aware of a longstanding arrangement which involved Mr Smith. Mr Read agreed that he had inherited the Balfes Creek arrangement with the amalgamation.[7]

[25] Mr Read did not make any inquiries about the arrangement between the appellant and Mr Smith. He said:

it was basically business as usual and that was a - an - an accepted fact, that John Smith looked after the toilets and - and - and the - and the community hall and that just - life went on after amalgamation.[8]

[26] The Commission was told by Mr Read that he had spoken with staff previously with the Dalrymple Shire Council about what arrangements were in place at Balfe's Creek. Mr Read said that the workers would travel out to Balfes Creek as part of their job or responsibilities as and when required. However, Mr Read said that when he spoke to Mr Smith about this he said that this had not happened.

[27] Mr Read recalled Mr Smith mentioning the maintaining of the verge on the Flinders Highway. He said he told Mr Smith:

that's not something I can give you authority to do. You'd need to talk to the Engineering Services Directorate who looked after the - all roadworks, and also the maintenance of the Main Roads highways and verges.[9]

[28] It was an admitted fact that the "highway strip" was a strip of grass between the road and the railway fence, between the two 80km an hour signs, an area of about 6-10m wide and about 800m on both sides of the road.[10]

[29] In relation to what entity had responsibility for maintaining the highway verge along the Flinders Highway, Mr Read was asked in cross-examination:

Mr McLeod: Who, then, was responsible for mowing, effectively, out the front of Balfes Creek and across the hotel/motel complex and across the road along Flinders Highway?

Mr McLeod: Would the council ever know (sic mow) that area?

Mr Read: I don't know. I - that's not - was not an area of my responsibility or of interest, at that stage.

Mr McLeod: Well, whose area of responsibility is it? Because I understand you were employed as manager of facilities. Who's responsible for mowing the other footpaths on the hotel/motel site? Because there's a couple of private properties there?

Mr Read: At the time, the director - it was the director of engineering services, which I had mentioned before, looked after townships, main roads and mowing of the streets, roadways, verges. And that was - that's another area outside of my responsibility. And they would either do it themselves or they would get contractors, which is the case in some of our smaller townships.[11]

Mr McLeod: Who was responsible - I think you said Main Roads might then contact the council to undertake those works to mow. Is that correct?

Mr Read: Of the - yes, they may do. I can't - I can't answer that. That was - that was an arrangement between the engineering services and Main Roads.

Mr McLeod: So if there was an arrangement - and I'm saying if there was an arrangement between Main Roads and the council to indicate who would be responsible for mowing that area, there would be council records to that effect. Is that right?

Mr McLeod: Right. Okay. Have you ever seen any such record?

Mr McLeod: Right. So you don't know whether there was an arrangement or not?

[30] On 6 November 2008, and after some delay, Mr Read "formalised the arrangement" by sending Mr Smith a facsimile setting out the process, including the relevant pay codes, by which Mr Smith would be paid for both the hire of his equipment and for his labour.[13] Mr Read said that he had hoped to pay Mr Smith for his supply of equipment by way of an allowance. However, payroll advised that this was not an appropriate way to pay having regard to the industrial award system. Ultimately, it was arranged for Mr Smith to submit a tax invoice to the appellant. The invoice was in the name of Mr Smith and his labour was otherwise paid through the appellant's payroll system.

[31] Mr Smith was paid $25 (plus GST) an hour hire charge for the use of the mower and an hourly rate to mow the grass and to undertake the other duties.

[32] In 2000, Mr Smith and his wife purchased and moved into the Balfes Creek Hotel/Motel situated some 42 kilometres from Charters Towers.

[33] It was Mr Smith's evidence that he was engaged by the Dalrymple Shire Council to look after the grounds and toilets and the Community Hall. He said:

Well, there was - nothing was itemised on what I had to do. Cleaning and maintaining the toilets and the grounds is cleaning and maintaining the toilets and the grounds. Whether it's mowing, whether it's hosing, whether it's whipper snipping or whether it's changing toilet rolls. It comes under the same blanket cover, does it not?[14]

[34] Mr Smith told the Commission that he maintained the whole of the Balfes Creek township.[15] This included mowing the verge of the Flinders Highway. Mr Smith's evidence was that the verge was approximately 800 metres on both sides of the highway.[16] Depending on the season, Mr Smith would mow the verge as and when required. The mowing of the verge would normally take approximately five to six hours which would be spread over a three-day period.[17]

[35] In cross-examination, Mr Smith confirmed that he was paid by the Dalrymple Shire Council for the work that he did. He was not specifically paid to mow the lawn. Mr Smith was asked:

Ms Nichols: But did somebody at Dalrymple tell you prior to 2008, did they say to you, "We want you to do certain things around the grounds." Or what did they tell you?

Mr Smith: Not really. No. Not until the toilet block was built.

Ms Nichols: Yes. And then what did they tell you after that happened?

Mr Smith: They asked me if I was prepared to clean the toilet blocks after it was built and do the yard maintenance and so forth, what was ever necessary.

Ms Nichols: Okay. And what did you understand the yard maintenance to include?

Mr Smith: Well, just whipper snipping, mowing, a bit around up here and there, pick up the rubbish that blew around the place. Clean the toilets, everything that was necessary that you do.

Mr Smith: I would like to point out, if I'm allowed, the whole town was a pigsty when I went there. The community hall was falling down, it was in disrepair. The - there was no amenity block there. There was long grass across the other side of the road that everybody used for a toilet and rubbish bin. So when I moved into the town, I cleaned the whole town up.

Mr Smith: That was in 2000, 26 June 2000.[18]

[36] Mr Read came out to Balfes Creek to see Mr Smith in 2008 about the work that he had been doing and if he was happy to continue. Following this meeting, an arrangement was reached to pay Mr Smith a hire charge for the use of his mower and a hourly rate to mow the grass.[19]

...the agreement was I would do whatever I had been doing in the past if I was happy with it, Mr Read was happy with it, and I would be paid for what work I did.[20]

[38] When asked if two hours was sufficient for all the mowing, Mr Smith replied: "I didn't really care if it was or not, your Honour, because the job needed doing."[21]

[39] In cross-examination, Mr Smith was asked about mowing the highway verge:

Ms Nichols: The strip between the two 80 kilometre signs. I'm going to refer to that as the highway strip. Now, you had a conversation with Mr Read in 2008 where you told him you had also been mowing and maintaining, for years, the highway strip, didn't you?

Ms Nichols: Right. And Mr Read said to you, "That is not my area. You need to take that up with another department."?

Mr Smith: Not at all. Mr Read did not, at any time, say to you, "I would like you to mow that highway strip." He did not say that to you, did he? When I had the conversation with Mr Read, he said to, "Carry on doing whatever you've been doing. If you're happy doing that, I'm happy with that." And that was the agreement. There's nothing in writing. You can talk all you like but there is no written agreement. It was verbal and we did whatever we wanted to. I would not see a supervisor for up to two years. But my pay went in whatever I booked in. If I booked in two hours to mow the other side of the road, I was paid for it. I was an employee of the council and I did the job.

There was no boundaries in the verbal agreement. He said, "Just carry on doing whatever you've been doing. If you're happy with that, I'm happy with that.[22]

[40] The arrangement with Mr Smith and the appellant was that he would lodge a timesheet for two hours of labour to undertake yard and grounds maintenance, and a separate invoice for an allocation equalling one hour for the hire of the mower and fuel.[23]

Was Mr Smith a 'worker' for the purposes of s 11 of the Act?

[41] The appellant accepts that Mr Smith was engaged by it from November 2008 to 30 June 2016. Mr Smith was engaged to clean the public toilets associated with the community hall, clean the hall when required; and mow and generally maintain the grounds around the hall and the public toilets at an allowance of two hours per fortnight. It was also agreed between the appellant and Mr Smith to pay him $25 (plus GST) an hour as a hire charge for each time he used his mower to perform his mowing.

[42] However, the appellant disputes that Mr Smith was engaged to undertake mowing of the highway strip. They submit that whilst Mr Smith was a worker under the Act for the purposes of mowing or maintaining the council property, he was not a worker for the purposes of mowing the highway strip. If he did undertake that work, then he did so as a volunteer and not part of a legally binding contract with the appellant.

[43] I accept that there was a longstanding arrangement between Mr Smith, the Dalrymple Shire Council which was subsequently inherited by the Charters Towers Regional Council following the amalgamation. The exact nature and extent of the work undertaken by Mr Smith was not known by Mr Read when he entered into the arrangement to pay Mr Smith in 2008.

[44] I do not accept that the email of 6 November 2008[24] can be properly characterised as confirming the scope of the arrangement between the appellant and Mr Smith. The document confirms the arrangements in terms of payment. It provided Mr Smith with job numbers and some explanation on completing the timesheets. Mr Read specifically states in the memorandum:

I must apologise for not sending you a letter or memo confirming the arrangement, but trust that having the extra six hours on your last pay at least confirms that everything is in accordance with our discussions. I am still waiting on the outcome of the "allowance" description etc., so that it can be included in that memo.[25]

[45] In relation to mowing, Mr Read had only an expectation of what work Mr Smith might undertake. He said in evidence:

This is the yard of the community hall and by - by definition of that, I would've expected him to mow the footpath or the - the nature strip or the verge of - immediately beside that - that property.[26]

[46] I accept that Mr Read had an expectation of the extent of mowing that Mr Smith might undertake but I am of the view that expectation or those expectations were never conveyed by Mr Read to Mr Smith. Mr Read was content to allow the Mr Smith to carry-on as before. As Mr Smith said in evidence:

He come and introduced himself to me and wanted me to carry on with the way I'd been going in the time past. That was my agreement with Mr Read. He said, "If you're happy with two hours, the same as you've been getting, yeah, I'm happy".[27]

[47] In relation to the mowing of the highway strip, Mr Read acknowledged that he did not know who had responsibility for the mowing of the highway strip. It was not his area of responsibility.[28] He did not know if an arrangement had been entered into between Main Roads and the appellant's Engineering Services Directorate. To mow the highway strip[29] He was not aware if Mr Smith had spoken with the Engineering Services Directorate.[30]

Ms Nichols: Right. So you agree with me that the Council could not at any time demand you to mow the highway strip?

Mr Smith: I don't agree with you at all. The Council never asked me to, they never stopped me. Mr Read would drive passed while I was mowing what we'll call your highway strip and he would toot the horn and give me a wave. If he didn't want me to mow it, he would have stopped me and said, "Hey, John, get back on the other side of the road, mate. You're not supposed to be mowing over here, but it's okay; if nobody sees you, we're still going to pay you". So where are you at, mate?

I'm sorry ?Let's be a bit sensible. We're in a little country town. We're not in a city, and there was no supervision, as I said. I did whatever I thought was necessary, and I put in a timesheet for payment for a fair and reasonable amount of money for what I did.[31]

[49] I accept the evidence of Mr Smith that the agreement between the appellant and Mr Smith included him mowing areas other than the areas surrounding the community hall and toilet block the highway strip. It follows therefore, that Mr Smith was a worker for the purposes of s 11 of the Act and was not a volunteer when he mowed the highway strip.

Does Mr Smith satisfy the provisions of s125 of the Act?

[50] Section 125(3) of the Act creates a liability to pay compensation arising out of employment at a location or locations within the State of Queensland where the noise level was a significant contributing factor to the industrial deafness. An application for compensation must be made under s 125(2)(c) within 12 months after the claimant's formal retirement from employment.

[51] The appellant contends that Mr Smith did not make an application for compensation within a 12-month period after he ceased employment in accordance with s 125(2)(a).

[52] The appellant refers to the decision of Dubbin v Workers' Compensation Regulator[32] as support for the submission that Mr Smith did not make his application within 12 months after his formal retirement from employment pursuant to s 125(2)(c).

[53] However, Dubbin has no relevance to the matters before this Commission. In that case, Mr Dubbin made an application for workers' compensation at a time when he was in paid employment in Murwillumbah, New South Wales. As such, neither sections 125 (2)(b) or (c) had any application. Deputy President Bloomfield was not called upon in Dubbin to consider the meaning or application of s 125(2)(c).

[54] The evidence of Mr Smith was that he retired from employment on 30 June 2016.

[55] The appellant does not accept that proposition, rather, they submit, in the alternative, that Mr Smith formally retired from employment in:

(a) 1994 when he suffered a back injury and was "put out of the workforce"; or

(b) 2011 when he started claiming the 'invalid' pension as his primary source of income because he was "an invalid" and "couldn't work"; or

(c) 2014 when he started claiming the age pension as his primary source of income; or

(d) August 2016 when he moved from Balfes Creek to Townsville.

[56] The evidence given by Mr Smith as to the date upon which he retired was not challenged by the appellant in cross-examination.

[57] The respondent submits that the legislative requirements have been satisfied and accordingly Mr Smith's application for compensation is valid as it was lodged within the twelve-month time after he formally ceased employment. I agree.

[58] I reject the appellant's submission as set out in paragraph [55] above. The submission ignores the fact that Mr Smith was employed by the appellant. Further, it ignores that the appellant has already admitted that in respect of the "council work", Mr Smith was a "worker" for the purposes of s 11 of the Act, namely, that he was "a person working under a contract".

[59] I accept the respondent's submission that Mr Smith formally retired for the purposes of s 125(2)(c) on 30 June 2016. He finished his employment with the appellant on 30 June 2016;[33] was on the age pension;[34] he closed the Motel/Hotel that he owned with his wife;[35] and moved from Balfes Creek to Townsville on 8 August 2017.[36]

Did Mr Smith's injury arise out of or in the course of his employment?

[60] The appellant submits that there is no medical opinion attributing the cause of Mr Smith's injury to his employment with the appellant.

[61] For the purposes of the present appeal, it is not for the respondent to prove that Mr Smith's industrial deafness arose out of, or in the course of his employment with the appellant. The appellant called no medical evidence to establish that Mr Smith's industrial deafness did not arise out of, or in the course of his employment with the appellant.

[62] Mr Smith has an accepted entitlement to compensation for industrial deafness in accordance with s 125 of the Act. I accept the submission of the respondent that it is incumbent on the appellant to disprove that fact. It has not done so.

Was Mr Smith's employment a significant contributing factor to his injury?

[63] The appellant asserts that Mr Smith's employment with the appellant was not a significant contributing factor to the injury, namely, the industrial deafness.

[64] Reliance is said to be placed upon the medical evidence of Dr Edel Garcia, a general practitioner who issued a workers' compensation medical certificate which apparently states that Mr Smith's industrial deafness as at 1 December 2016 related to his employment with UTAH Development Company/BHP Coal.[37]

[65] It is submitted that the appellant is not required to adduce further medical evidence corroborating the uncontested opinion of Dr Garcia.

[66] The workers' compensation medical certificate issued by Dr Garcia on 1 December 2016 was not tendered into evidence nor did the Commission have the benefit of hearing from Dr Garcia. The appellant relies on the admission by the respondent at paragraph 5 of its Statement of Facts and Contentions. However, what is set out at paragraph 28 of the appellant's Statement of Facts and Contentions does not necessarily have the import that the appellant suggests. What has been admitted by the respondent is that a workers' compensation certificate issued by Dr Garcia on 1 December 2016 related to a diagnosis of industrial deafness concerning Mr Smith's employment with UTAH Development Company/BHP Coal for the period 1971 to 1994. It does not deal with the period of employment after 1994.

[67] The appellant contends that Mr Smith had asserted that the mowing of the highway strip and not the council property was where the excessive noise occurred. This assertion, together with the medical certificate of Dr Garcia was, it was argued, sufficient to conclude that Mr Smith's employment with the appellant was not a significant contributing factor to his industrial deafness. The argument of the appellant is based upon an assumption that the mowing of the appellant's property (as opposed to the mowing of the highway strip) was not a significant contributing factor to his industrial deafness. Absent expert evidence to support that contention, the appellant's submission must fail.

[68] It is argued by the appellant that their submissions dealing with whether Mr Smith's employment with the appellant was a significant contributing factor to his injury were based on an application of fact, mathematics and common sense. I do not propose to rehearse the appellant's submissions again, it is sufficient to say that they are based on conjecture and assumption and not supported by expect evidence.

[69] As Martin J observed in Davidson v Blackwood:

It is inevitable in cases such as this that expert witnesses will play important, if not determinative, roles for both parties to a dispute... In the present case, it was not for the expert witnesses called on behalf of either party to say whether or not the 2010 fall suffered during the appellant's employment, was a "substantial contributing factor" to the injuries disclosed in the wake of the 2011 incident. As the Deputy President pointed out on a number of occasions, this was a matter for the tribunal of fact. It was for the tribunal of fact to determine, on the basis of the evidence put before the Commission, whether or not the appellant's fall was a substantial contributing factor to his subsequent personal injury. It was for the expert witnesses to illuminate, to the extent of their knowledge and expertise, the cause (or causes) of the appellant's back condition. [38]

[70] In Carpentaria Gold Pty Ltd and Others v WorkCover Queensland, Hall P wrote:

One may put aside the case in which an employee making a claim in respect of a loss of hearing which is industrial deafness has had only one employer. One may put aside also the case in which, although the claimant has had a number of employers, it may be affirmatively established that the loss of hearing which is industrial deafness is attributable solely to the engagement with a particular employer**. In the common case, where there is serial employment or "at a location or at locations where the noise level was a significant contributing factor to the industrial deafness", the liability to pay compensation will fasten upon the last employer in the chain. The whole liability will attach to that employer notwithstanding that is** the scheme of s. 152(iii) that liability arises out of employment at noisy locations within the State of Queensland and notwithstanding that the contribution to the diminution of hearing made by the employment last in the chain may be minimal.

Section 32(2) which provides, "A reference to an employer of a worker who sustains an injury is a reference to the employer out of whose employment, or in the course of whose employment, the injury arose", is not effective to confine liability to employers in whose employment or in the course of whose employment, the injury solely arose.[39]

[71] Carpentaria Gold is authority for the proposition that (with respect to industrial deafness) liability to pay compensation will fasten upon the last employer in the chain. It is the entirety of Mr Smith's employment which is the significant contributing factor to his industrial deafness and not solely his employment with the appellant.

[72] The appellant relies on CFMEU v Blackwood and Vaccaneo_[40]_ where Neate IC wrote_:_

...the question of whether or not a worker has sustained an injury arising out of, or in the course of, employment and whether employment is a significant contributing factor to an injury, is a question of mixed law and fact to be determined by the court or Commission. In reaching that determination, ordinarily emphasis is placed on the opinions of medical practitioners. (citations omitted)

[73] I respectfully agree with the reasoning of Neate IC. However, notwithstanding reliance on that authority, the appellant has failed to put before the Commission "opinions of medical practitioners" to establish that Mr Smith's employment with the appellant was not a significant contributing factor to the injury, namely, the industrial deafness.

[74] Mr Smith has an entitlement for compensation for industrial deafness in accordance with s 125 of the Act. The onus was on the appellant to establish, on the requisite standard that Mr Smith's application for compensation was not one for acceptance. It had the ability to call expert evidence to establish that Mr Smith's industrial deafness did not arise out of or in the course of his employment, or that his employment was not the significant contributing factor to his industrial deafness. It did not do so.

1. The appeal is dismissed.
2. The decision of the respondent dated 18 September 2017 is affirmed.
3. The appellant is to pay the respondent's costs of an incidental to appeal to be agreed or failing agreement to be the subject of an application to the Commission.

[1] Workers Compensation and Rehabilitation Act 2003 s 125.

[2] Ibid s 550(4).

[3] [2003] QIC 118; 172 QGIG 1447.

[4] [2015] ICQ 031.

[5] [1991] HCA 9; (1991) 172 CLR 84, Op cit at 124-125.

[6] Church v Simon Blackwood (Workers' Compensation Regulator) [2003] QIC 118; 172 QGIG 1447, [30] citing R v Pilgrim (1870) LR 6 QB 89.

[10] Submissions of the appellant, [10] (a).

[32] [2017] QIRC 67 at [12].

[37] Appellant's Submission at para 10(a).

[38] [2014] ICQ 008.

[39] [2002] QIC 34; 170 QGIG 243.

[40] [2015] QIRC 050, [53].