2. The worker had been employed as a boiler attendant by the respondent for about sixteen years. On 10 August 1994 he lodged a claim for compensation in accordance with Form 1 under the Act.

3. In answer to question 9, "Date and time the injury or condition was first noticed or identified", he recorded "4.8.94 1400 HRS". To question 10, "Type of injury or disease, and part of body affected" he replied "Ringing in ears". To question 11, "Is your condition solely due to this occurrence" he responded "No". To question 12, "Are there other causes of your condition" he responded "No". To question 19, "What happened" he said "Caused through hearing loss and noise". To question 23, "Date and time notified" he replied "10.8.94 1400". Finally, to question 26, "Have you made any claims before" he replied "Yes Strained back."

4. It may be said therefore that the worker was representing to his employer that six days before lodging his claim he had experienced ringing in the ears. There had been no previous claims in respect of this condition. A description of the mechanism of the injury or onset of the disease which one would expect to be contained in the answer to question 19 was at best ambiguous. It could be claiming that noise had induced a hearing loss or it could be saying that a combination of pre-existing hearing loss and noise had produced ringing in the ears. There may be other interpretations to the answer given.

5. A medical certificate provided by the worker in support of his claim (omitting unnecessary parts) said:

"I examined David Costello on 10/8/94 who presented with

tinnitus. The worker stated the condition to be caused by a

disease, the symptoms of which became evident on 10/8/94.

The injury or disease was stated to be caused by noise at

work. The condition is consistent with the stated cause.

The worker is unfit for any work from 10.8.94 to 14.8.94

inclusive, is fit for pre-injury work on 15.8.94 and has

been referred for other services (re) Mr Ghali ENT

(illegible)."

6. The certificate was dated 10 August 1994 and was signed by Dr D Dry. It will be noted that nowhere in the claim or the medical certificate is "industrial deafness" mentioned, nor indeed, is any form of deafness. Tinnitus, as counsel for the appellant submitted, is not a disease, although it may be a symptom of a disease. The certificate tends to suggest that the worker's hearing disturbance was transitory only as it certified him unfit for work for four days only.

7. The employer disputed the claim and, on 18 August 1994, referred it to the Commissioner pursuant to the Act, s81A. The required notice stated (inter alia):

"My reasons for disputing liability to pay compensation are

as follows:-

- There is insufficient evidence to substantiate that your

condition arose out of and in the course of your employment.

- Notice of injury was not given to us as soon as

practicable after the occurrence of injury."

8. The Commissioner appointed a hearing to determine the reference which took place on 23 September 1994. Counsel for the employer and licensed insurer appeared by leave and submitted that there were in fact three bases for disputing the claim. First, notice had not been given as soon as practicable pursuant to s32(1) because an unexplained gap existed between the date of the onset of the disease and the date of the claim. Secondly, there was no suggestion that the condition, assuming it to be industrial deafness, had been productive of any incapacity for work and finally, the employer was unable to say whether or not the deafness arose out of or in the course of the worker's employment, as it had not been able to arrange an independent assessment. The employer had received a copy of a medical report addressed to Jennings Elliott solicitors for the worker, from Mr Ghali, the ENT specialist referred to in Dr Dry's medical certificate, and this was tendered by counsel for the employer as "background". At no stage did counsel indicate that the contents of the report were accepted or relied on by the employer as correctly diagnosing either the condition or its cause; in fact he made it quite clear in my opinion that the report was not tendered for that purpose.

"9th September, 1994.

Your Ref: BMc:PR

Jennings Elliott,

Barristers and Solicitors,

GPO Box 720 G,

HOBART. 7001.

Dear Sirs,

Re: David COSTELLO DOB 25/9/37

11 Allambi Crescent, Ulverstone

Thank you for your letter dated 19th August, 1994. I first

saw this patient on the 22nd July, 1994 having been referred

by his General Practitioner on advice from Ms Stephanie

Lleonart, Audiologist because of his unequal hearing.

He is a pleasant 56 year old gentleman who has been a non

-smoker for the last three months with a history of

deafness. He has been exposed constantly to noise in his

work as a boiler attendant. He denied any history of

exposure to noise other than that of his work. He was not

involved in noisy hobbies, ie shooting or loud disco music.

He denied any history of head injuries. He was also blind

in his left eye.

His examination appeared normal apart from his severe to

profound hearing loss. There was no evidence of any space

-occupying lesion from the clinical examination. However, I

repeated his audiometric assessment which confirmed a severe

to profound hearing loss particularly in the high

frequencies, consistent with exposure to noise. Due to the

unequal hearing and the very poor hearing in the left ear

further investigations were required. A CT Scan to the

cerebellopontine angle and brain was performed.

I am pleased to report that this did not reveal any evidence

of space-occupying lesion consistent with his clinical

examination.

In summary, this gentleman has worked in noisy surroundings

all his working life. Even with ear muffs he has been

constantly exposed to noise during and prior to being

supplied with ear muffs. The type of his hearing loss is

consistent with the history of noise-induced hearing loss

due to constant exposure to noise.

Having considered his audiogram and according to the

National Acoustic Laboratory tables, his percentage of

hearing loss in both ears is 62.30%. This figure is in

accordance with the most up to date tables supplied by the

National Acoustic Laboratory.

I have no doubt that this gentleman has suffered industrial

hearing loss, ie due to exposure to noise. His assessment

was accurate. My figures are consistent with Stephanie

Lleonart's audiometric assessment and the figures given are

accurate and in accordance with the National Acoustic

Laboratory tables.

This is a permanent hearing loss and he will certainly be at

a great disadvantage as far as his normal day to day life

and activity is concerned, as well as socially.

He will be at a major disadvantage without a hearing aid.

Should you require any further information regarding this

report, please don't hesitate in writing back.

Yours faithfully,

M H Ghali,

ENT CONSULTANT SURGEON"

10. It will be noted that this report was prepared after the dispute had been referred to the Commissioner by the employer and that it suggests that Mr Costello had first consulted Mr Ghali in July 1994. It says nothing about "ringing in the ears" or "tinnitus". For the first time mention is made of "industrial hearing loss". The report also states that the worker "has worked in noisy surroundings all his working life", a proposition which is strangely at variance with one of the factors which the learned Commissioner appears to have relied on to conclude that there was not a genuine dispute. At 2 of his reasons the learned Commissioner said:

"I heard from the worker, and although his evidence was

unsworn, it tended to establish that:

a) ...

b) ...

c) Prior to commencing employment with the employer sixteen

years ago, the worker had been employed in a number of

various occupations, including farm labouring, working as a

labourer for a local municipal council, working for a

service station, and as a boilermaker for an employer not

dissimilar to that of the employer. IN NONE OF THOSE

OCCUPATIONS HAD THE WORKER BEEN EXPOSED TO EXCESSIVE NOISE

LEVELS; AND

d) ...". (My emphasis)

11. The learned Commissioner then went on to refer to Mr Ghali's report which he plainly approached as uncontested evidence establishing that the worker's hearing loss resulted from "a characteristic of the industry in which he worked, which was working as a boilermaker (sic) with boilers which emitted excessive levels of noise. ... In my opinion the report did not leave open, as a possible basis for rational construction, that the condition suffered by the worker had been caused other than as a result of his employment as a boilermaker (sic) with the employer".

12. These conclusions reveal a number of errors of fact and law.

13. Mr Costello was employed as a boiler attendant, not a boilermaker. Boilermaking is an almost notorious source of industrial deafness whereas boiler attendant jobs may vary greatly in noise intensity depending upon ambient noise levels in the work place and many other factors. More importantly, however, the learned Commissioner appears to have accepted without question from the worker that his employment before taking up that with Edgell Birds-Eye involved no element of excessive noise whereas Mr Costello's oral evidence confirmed that he had in fact once worked as a boilermaker, and (although the transcript is not entirely clear as to this) that his work for the Boyer Council had involved working with machinery and jack hammers (another notorious source of industrial deafness). Although not relied on by counsel for the appellant it appears to me that the employer would have been perfectly entitled to entertain some doubt about this claim even after hearing all the evidence given before the learned Commissioner on 23 September 1994.

14. It is also plain that the learned Commissioner failed to understand or at best failed to clarify with counsel for the employer the basis upon which Mr Ghali's report had been tendered. This is apparent from an exchange between the learned Commissioner and counsel recorded at page 11 of the transcript.

15. Counsel for the appellant submitted that the time for testing the genuineness of any relevant dispute is at the time the matter is referred to the Commissioner under s81A. Further, she submitted, the question whether or not the claim is a genuine claim is a subjective one to be determined by reference to the state of mind of the employer at the relevant time. These submissions require some examination.

16. At the date the matter was referred to the learned Commissioner the employer was in possession of Form 1 incorporating the worker's report and Dr Dry's certificate. It may also be assumed that the employer was aware the worker had been employed by the company for sixteen years. The worker's report itself raised problems of causation as I have illustrated earlier in this judgment. The question of notice which was a matter raised by the employer in its notice referring the matter under s81A was also a legitimate issue at that time having regard to the nature of material then available but it was quite properly abandoned during the hearing before the Commissioner once counsel for the employer had appreciated that the claim being made was based on industrial deafness and that s32(2) dispensed with the usual notice requirement in respect of such a condition.

17. Counsel for the employer explained to the learned Commissioner that the employer would like an opportunity to examine the worker's claim to enable an "assessment" (I infer a medical assessment) to be made on behalf of the employer. At first the learned Commissioner appeared sympathetic to counsel's application for an adjournment for this purpose but subsequently he refused the application.

18. Cox J in South Australia v Wall (1980) SASR 189 at 198 made an observation which is very relevant to this state of affairs. He said:

"An employer may genuinely dispute a claim even though his

attitude is tentative, in the sense that he may be willing

to change it as a result of investigations that he has not

yet had time to make. In such a case the Court may properly

use its power to adjourn the employer's application and so

postpone its determination."

19. While these remarks tend to support the submission by counsel for the respondent that the time for testing whether a genuine dispute "exists" is the time when the Commissioner comes to make a determination (see s81A(3)(c) and (d)), they also make it plain that a reasonable opportunity to make due inquiry must be afforded to the employer before that determination is made. This is an attitude which is completely consonant with the views expressed by Underwood J in FAI General Insurance Co Ltd and St Johns Hospital v De Saye Serial No A23/1992 where he said at 7:

"The appropriate questions under s81(3)(b) are does the

employer in fact disputes liability, has the employer

complied with the requirements of s81(2) and is that dispute

a genuine one, in the sense that it is not frivolous and

arises after appropriate consideration and inquiry?"

20. His Honour also concluded in that case that the test for whether or not a genuine dispute existed was not an objective one. In my view Underwood J completely endorsed the views expressed by Cox J in Wall's case and in my respectful opinion he was correct in doing so.

21. Cox J in Wall's case made several other observations which are pertinent to the present appeal. He accepted that the onus of persuasion that a genuine dispute exists is upon the employer but he observed that in the case before him it would have been open to the court to find, on no more material than the worker's own papers and the employer's application, that a genuine dispute existed. At 196 he said:

"... the evidence or information to which the employer will

have to refer in order to persuade the Court that he

genuinely disputes the claim, may in some cases, go no

further than a serious assertion that it appears to the

employer, on the information available to him (including the

materials provided by the worker under subs(1) of 53), that

the worker may not be able to make out his claim."

22. It is not obligatory for an employer to support its genuine dispute by calling independent evidence (per Legoe J, with whom Bollen J agreed, in Schilter v South Australian Institute of Technology (1982) 31 SASR 316).

23. In my opinion the time at which the learned Commissioner must be satisfied that a genuine dispute exists is at the time he makes his determination and he should facilitate this process by granting an adjournment, if necessary, to enable the employer to make further enquiries. He should be careful that such a course is not used by a dishonest employer as a ploy to avoid payment of a worker's just entitlements, but he should also be alive to the fact that once an employer commences payments under the Act they are virtually irretrievable. I am also of opinion that the question whether or not a genuine dispute exists involves a subjective assessment of the employer's bona fide appreciation of issues requiring elucidation or contradiction. An obviously fallacious view of the law would scarcely qualify as a genuine dispute but an arguable case whether of fact or law would meet the statutory criterion. If a Commissioner were to refuse an employer's reasonable application for time to make further enquiries he would need to be on very firm ground before finding that a genuine dispute did not exist.

24. In my opinion the matters to which I have referred clearly indicate that the learned Commissioner both misconceived the nature of his enquiry and misused the material before him. He relied on the evidence of the worker and the report by Mr Ghali to, in effect, determine that the employer would be unsuccessful on the merits. This he was not entitled to do (see Precise Timbers Pty Ltd v Burgess Serial No A70/1991 per Zeeman J at 10 and 12, and my own judgment in APPM Forest Products v Sutcliffe Serial No B80/1990 at 5). Both at the time the application was made and the time he made his determination I am of opinion that he should have found that there was a genuine dispute and that he would have done so had he not misunderstood the nature of the question he was obliged to consider.

25. Counsel for the respondent submitted the learned Commissioner's error was not an error of law. I reject this submission. The appeal was a competent appeal within the Act, s63.

26. The appeal will be allowed and the employer's application remitted for rehearing and determination by another Commissioner.