Commonwealth of Australia v. Henderson, J.H. [1985] FCA 209

COMMONWEALTH OF AUSTRALIA v. JOHN HILLIER HENDERSON No. WA G115 of 1984

IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION

Respondent MINUTE OF ORDER JUDGES MAKING ORDER : Woodward, Toohey & Pincus JJ. DATE OF ORDER : 30 May 1985 WHERE MADE 3 Perth

Note: Settlement and entry of orders is deait with in Order 36 of the Federal Court Rules

IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION

This is an appeal from a decision of the Administrative Appeals Tribunal given on 30 November 1984. The Tribunal set aside a determination made by a delegate of the Commissioner for Employees' Compensation relating to the respondent John Hillier

Henderson. By its decision, the Tribunal remitted the matter to the Commissioner for reconsideration in accordance with directions

It is advisable to set out the determination of the

the said John Hillier Henderson sustained personal injury, namely bilateral sensori- neural hearing loss arising out of or in the course of his employment within the meaning of section 9 of the Commonwealth Employees' Compensation Act 1930-1971;

for the purposes of section 12 and the Third Schedule to the Commonwealth Employees' Compensation Act 1930-1971, and in force immediately prior to 20 November 1964, the personal injury sustained by the said John Hillier Henderson resulted in 13.6 percent loss of hearing.

2. NOW THEREFORE, in pursuance of the provisions of

Employees) Act 1971, including sub-sections 4(2) and 104(1) of that Act, I hereby determine:

the said John Hillier Henderson sustained personal injury, namely bilateral sensori-neural hearing loss under circumstances under which the Department of Defence would have been liable to pay

compensation under the Commonwealth Employees' Compensation Act 1930-1971;

the Department of Defence is therefore liable to pay compensation in respect of the said

disease in accordance with the provisions of the Compensation (Commonwealth Government Employees) Act 1971.

the personal injury suffered by the said John Hillier Henderson resulted in 13.6 percent loss of hearing in respect of which the

Department of Defence would under section 12 of the Third Schedule to the Commonwealth

force immediately prior to 20 November 1964, have been liable to pay compensation in the

in accordance with section 39 and sub-section 104(4) of the Compensation (Commonwealth Government Employees) Act 1971, compensation in the sum of $571.20 is payable to the said John Hiller Henderson."

The Tribunal remitted the matter to the Commissioner for

reconsideration in accordance with directions that:

"(1) as the result of an injury sustained by accident arising out of or in the course

of the applicant's employment by the Commonwealth he suffered a loss of hearing of 22 per cent onl January

(2) the Commissioner is to inform the applicant of the amount of compensation which would be payable to him under section 39 of the Compensation

(Commonwealth Government Employees) Act 1971 in respect of the said loss of

the payment of such compensation and is to ascertain from the applicant whether

(3) the Commissioner is to make a determination that compensation in respect of the said loss of hearing is payable to the applicant under section

39 of the said Act only if the applicant wishes him to do so."

The circumstances giving rise to the application to the Veibunal may be summed up im Lhe tollowing way. For the most part we have drawn our recital of the facts from the Tribunal's reasons

The respondent is a senior lecturer employed by the Education Department of Western Australia. He teaches architectural draftsmanship at a technical college. At the time of the hearing before the Tribunal he was 47 years of age. In 1957 he served 3 months national service in the Army and thereafter underwent training in the Citizen Military Forces over

a period of two years. During rifle practice he experienced loss

of hearing and ringing in his ears. In August 1982 he submitted a claim for compensation under the provisions of the Compensation (Commonwealth Government Employees) Act 1971 ("the Act"), stating the nature of his injury as loss of hearing and tinnitus. Onl August 1983 a delegate of the Commissioner made the determination set out earlier in these reasons. In effect there was a determination that the respondent had suffered personal injury viz. bilateral sensori-neural hearing loss of 13.6% and that the applicant, the Commonwealth of Australia, was liable under the Act

Before the Tribunal the respondent argued that compensation should not have been calculated in accordance with the rate payable immediately prior to 20 November 1964. He further argued that in the calculation of his loss of hearing, no account had been taken of the tinnitus caused by the same events as the sensori-neural loss of hearing and that the tinnitus

At the hearing before the Tribunal some concessions were made by counsel for the present applicant. The applicant accepted, in the light of audio metric tests administered in January 1980, that the percentage of sensori-neural hearing loss which the respondent had suffered as a result of the noise trauma sustained during rifle practice was 17%. Counsel also conceded that the respondent suffered from severe tinnitus and had done so

The Tribunal made certain findings of fact which are relevant to this appeal. One was that the respondent "sustained by accident an injury, namely damage to his auditory sensory organs ... and that as a result of that injury he suffered a

sensori-neural loss of 17 per cent". As mentioned earlier, that

The Tribunal also found that as a result of the injury the respondent now suffers tinnitus with a degree of noise intensity of not less than 110 Db (which is of the same degree as the noise of a motor mower being operated close to the ear) and that the tinnitus increased the respondent's loss of hearing beyond that constituted by the sensori~-neural hearing loss by 5%,

In this respect it should be said that there was evidence by Dr. R. Wilde and Dr. R. Hicks, both audiologists, that the pure tone test was the accepted basis for assessment of percentage of sensori-neural hearing loss. The Tribunal dealt

"Its deficiency is that it does not take account of mixed sounds. However, it appears that audiologists have not been able to devise a reliable test to measure hearing loss in terms of mixed sounds and, in the absence of such a test, there is no alternative but to rely solely on the pure tone test for the assessment of sensori-neural hearing loss."

"12. Accordingly I find as a fact that the percentage of the applicant's sensori-neural

hearing loss is 17 per cent. Clearly there is an additional hearing loss in respect of sounds at the frequency of the tinnitus. The Tribunal has received no evidence of how that should be quantified in terms of percentage of hearing loss. However, as there are two frequencies, one in respect of each ear, I think it reasonable to allow a further 5% of hearing loss additional to the purely sensori-neural hearing loss, making a total of 22 per cent".

The applicant contends that the Tribunal erred in law and infact in finding that the respondent suffered a loss of hearing additional to the sensori-neural hearing loss as measured by the pure tone test in respect of sounds of the frequency of his tinnitus; in finding that the tinnitus increased the loss of hearing beyond that constituted by the sensori-neural hearing loss; and that the tinnitus increased the amount of the

Section 39 of the Compensation (Commonwealth Government Employees) Act 1971 contains a table of losses and percentages

The Act does not define what is meant by "loss of hearing". Sub-section 39(12) defines loss of a specified part of the body to include total loss of efficient use. By reason of sub-s.104(4) of the 1971 legislation, the amount of compensation

the respondent was entitled to receive under s.39 of that Act was

limited to that recoverable under the Commonwealth Employees'

Comepnsation Act 1930 as amended to the date of injury. At that

date the relevant expression was "loss of efficient use of a part of the body"; see 5.8 of Act No. 8 of 1944. The applicant did not

dispute that the respondent was entitled to compensation fora

The view taken by the Tribunal was that hearing is not limited to perception of speech, that there is a wide range of sounds which can normally be heard by a human being and that, for the purpose of determining whether or not there has been loss of hearing, "the whole of that range of auditory perception has to be taken into account". The Tribunal was of the view that, in considering whether an injury to a person's auditory sensory organs has caused incapacity for work, loss of perception of speech may be of more significance than loss of perception of other sounds. But, in the absence of express provision to the contrary, regard may be had, for the purposes of s.39, to the whole range of sounds which the employee was able to perceive before the injury. In that case, the Tribunal said:

»..- the percentage of hearing loss must be ascertained by taking into account how much has been Lost, and how much remains, across the whole spectrum of those sounds".

It was in that context that the Tribunal made the remarks referred to earlier about the usefulness of the pure tone test and the additional hearing loss of sounds at the frequency of the tinnitus. These findings were essentially findings of fact. Although the notice of appeal contends that the Tribunal erred in

law and in fact in finding that the respondent suffered a loss of

hearing, additional to the sensori-neural hearing loss as assessed

by the pure tone test, in respect of sounds at the frequency of his tinnitus, counsel for the applicant conceded that there was evidence upon which the Tribunal might make that finding. It is apparent that the Tribunal found that the tinnitus did more than cause discomfort to the respondent; it involved an additional loss of hearing because it impaired the respondent's perception of

The applicant also argued that there was no basis for the finding by the Tribunal that, by reason of the tinnitus, there was anadditional hearing loss of 5%. It is true that the evidence was that audiologists have not been able to devise a reliable test to measure hearing loss in terms of mixed sound and that they are therefore driven to rely solely on the pure tone test for the assessment of sensori-neural loss. But in making an assessment of additional hearing loss of 5% by reason of the tinnitus, the Tribunal was doing no more than courts and tribunals are called upon to do every day - to do the best they can with the material before them. The amount of 5% was a finding of fact and,

in our view, no appeal lies to this Court from that finding under

sub-s.44(1) of the Administrative Appeals Tribunal Act 1975.

Sub-section 46(5) of the Act precludes an employee from receiving further weekly payments after a lump sum has' been granted to him under 5.39, even though there may be a continuing partial incapacity. In Heath v. Commonwealth (1982) 43 ALR 673 the High Court held that a lump sum payment under s.39 should not

be made if it ousts an entitlement to weekly payments during

partial incapacity, olherwitc than at the request of the employee.

The applicant does not challenge that part of the Tribunal's

decision requiring the Commissioner to ascertain from the

respondent whether he wishes a determination to be made under

5.39. That will be a matter for consideration by the respondent

preceding pages are a true copy of the Reasons for Judgment herein of