First Plaintiff v First Defendant

1 In 1983, Mr Huynh ('the worker') came to Australia from Vietnam. He had previously served in the South Vietnamese army for 10 years, including four years in active service. During this period, he was exposed to extended gunfire noise and, in particular, noise resulting from the use of an M16 rifle.[1] He was also exposed to the noise of explosives. Ear protection was not worn and he suffered a consequent loss of hearing.

2 In addition, the worker had undergone a right ear operation at the age of 10 which had also affected certain aspects of his hearing.

3 In 1984, the worker underwent a series of hearing tests before commencing work for the first plaintiff ('the employer'). These showed a hearing loss of 15.7 per cent at frequencies of 2,000, 3,000 and 4,000 Hz.

4 Thereafter, the worker was employed by the employer between October 1984 and December 2006 making engine components. He worked in a noisy workplace and did not initially wear ear protection.

5 After ceasing work, the worker made a claim for lump sum compensation for industrial deafness in respect of non-economic loss.

6 The assessment of the worker's hearing loss was disputed and was referred to a medical panel pursuant to the terms of the Accident Compensation Act 1985 ('the AC Act'), as it stood at the relevant time.

8 The first medical question was: 'What is the degree of permanent impairment resulting from industrial deafness assessed in accordance with s 91 of the AC Act?'

9 This form of question falls within the definition found in sub-para (d) of the definition of medical question set out in s 5 of the AC Act:

(d) A question as to the level of impairment of a worker including a question of the degree of impairment of a worker assessed in accordance with section 91 and a question as to whether or not that impairment is permanent.

10 This form of question is to be distinguished from the type of question postulated by sub-para (c) of the definition of medical question:

(c) A question as to the extent to which any physical or mental condition, including any impairment, resulted from or was materially contributed to by the injury.

11 The form of the first medical question also reflects the terms of s 104B(9), to which I shall return below.

12 On 25 January 2011, a medical panel certified that it was of the opinion that the worker's whole person impairment calculated in accordance with s 91 of the AC Act is 13 per cent and that the degree of impairment is permanent.

13 The panel's reasons indicate its critical conclusions were:

In addition, a series of hearing tests done at General Motors Holden in the referral material were noted. The first of these was done in July 1984 before the worker commenced his employment with General Motors. The Panel considered this audiogram and formed the opinion that the hearing loss shown in 1984 of 15.7% at frequencies 2000, 3000 and 4000 Hz represented the hearing loss due to noise exposure while in the Vietnamese army.

The Panel calculated the hearing loss in relation to the current audiogram at the 2000, 3000 and 4000 Hz. These are the frequencies most likely to be affected by chronic noise exposure. The Panel concluded that, although the worker has had a long exposure to noise in the work place, and in the Vietnamese army, it was not appropriate in this case to include hearing losses at other frequencies. There was no evidence of acoustic trauma at these frequencies.

The Panel calculated a 23.6% binaural hearing loss at those frequencies and, after a deduction of 3.3% for presbyacusis as the worker is aged 67 years, there is a 20.3% binaural hearing loss due to noise exposure relevant to the accepted hearing loss injury.

The Panel therefore concluded that the worker has a 13% whole person impairment resulting from the accepted hearing loss (noise induced) injury when assessed in accordance with Section 91(3) of the Act: The degree of impairment is permanent.

The Panel also concluded that there was no total loss or total loss of use injury when assessed in accordance with Section 98E of the Act.

14 The plaintiffs ('the authority') now seek an order quashing the opinion of the medical panel and consequential orders as to further process. Alternatively, the authority seeks an order pursuant to s 8(4) of the Administrative Law Act 1978 that the medical panel provide a further statement of reasons.

15 No sensible basis for the alternative claim was advanced at trial. The panel's reasons disclose the basis on which it formed its opinion and the real issue between the parties is whether it erred in the fundamental basis of that reasoning process.

16 The authority alleges that the medical panel fell into jurisdictional error by taking into account considerations it was bound in law to ignore or, alternatively, by misunderstanding the jurisdiction it was required to exercise in asking itself the wrong questions.[2] This allegation was particularised as follows:

(ii) When determining its opinion upon referred question 1, the Medical Panel's Reasons show that the Medical Panel took into account, erroneously, impairment attributable to hearing loss due to noise exposure while the worker was in the Vietnamese army;

(iii) Impairment attributable to hearing loss due to noise exposure while the worker was in the Vietnamese army 'has occurred in circumstances which do not create any liability to pay compensation under this Act' and was therefore bound to be excluded from the assessment of deafness for the purposes of calculating compensation in accordance with s88 of the Act.

17 The authority further alleges that the medical panel fell into jurisdictional error by failing to take into account considerations it was bound to have regard to.[3] The authority's particulars state:

(i) The Panel, as revealed by its Reasons, failed to have regard to a hearing loss of 15.7% (NAL) existing prior to the worker commencing employment in Victoria and which the Medical Panel stated 'represented the hearing loss due to noise exposure while in the Vietnamese army.' The 15.7% NAL assessment was based on hearing tests done by the employer on 19 July 1984, prior to the commencement of employment.

(ii) The impairment attributable to the 'hearing loss due to noise exposure while in the Vietnamese army' ought to have been deducted from the Medical Panel's assessment of impairment, whether because of s.91(7) of the Act, or in accordance with s.88 of the Act.[4]

18 The fundamental dispute between the parties is whether the medical panel was required to disaggregate from the assessment of impairment attributable to hearing loss resulting from industrial deafness the impairment resulting from exposure to noise while the worker was in the Vietnamese army.

19 The special scheme relating to industrial noise which is found in the AC Act deems the condition of industrial deafness as it is at the last date of relevant employment to constitute an injury. The reasons for the special treatment of industrial deafness relate to the historical need to provide compensation to workers who suffer cumulative deafness from multiple events in the course of occupations such as boiler making.

20 It is not disputed that both the deafness suffered by the worker when in the Vietnamese army and that suffered in his employment with the employer resulted from industrial noise in the relevant sense.

21 The effect of the extended concept of injury relating to industrial deafness is that the condition which the panel was required to assess was the cumulative condition resulting from industrial deafness. Accordingly, it did not err in its approach.

22 In order to explain this conclusion, the fundamental task is the statutory construction of the relevant provisions of the AC Act read as a whole.

23 Section 82 of the AC Act provides the underlying basis of the entitlement to compensation on the part of the worker:

(1) If there is caused to a worker an injury arising out of or in the course of any employment, the worker shall be entitled to compensation in accordance with this Act.

...

(6) Subject to subsections (2B) and (2C), if a worker suffers an injury which occurs by way of a gradual process over time and which is due to the nature of employment in which the worker was employed at any time before notice of the injury was given, the worker or the worker's dependants shall be entitled to compensation under this Act as if the injury were an injury arising out of or in the course of employment.

injury means any physical or mental injury and, without limiting the generality of that definition, includes -

(a) industrial deafness;

(b) a disease contracted by a worker in the course of the worker's employment (whether at, or away from, the place of employment);

(c) a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease;

Note

This definition only applies to injuries that occur on or after the date of commencement of section 3 of the Accident Compensation and Transport Accident Acts (Amendment) Act 2003 - see section 259.

25 Industrial deafness is itself defined by s 5 as follows:

industrial deafness means any condition of deafness caused by -

(a) exposure;

(b) continued exposure; or

(c) periods of continued exposure -

to industrial noise.

26 As such, it is a condition that is to be distinguished from the other categories of injury falling within that extended concept as further defined by s 5. In the present situation, the condition is comprehended by the concept of injury, whereas in other situations (such as those contemplated by para (c) of the definition of medical question), impairment resulting from injury may be a component of a condition.

27 Moreover, whereas industrial deafness resulting from repeated numerous noise events might conceptually be regarded as comprising a series of aggravations, exacerbations or deteriorations of pre-existing injury or disease, it is not so defined for the purposes of the relevant provisions of the AC Act. For reasons which have their origins in the history of workers' compensation law, the worker's ultimate condition is deemed to be an injury.

28 In Accident Compensation Commission v Fletcher,[5] the Court of Appeal had to consider the situation of a worker who suffered deafness caused by continued exposure to industrial noise. The exposure occurred both before and after the 'appointed day' on which the relevant parts of the AC Act came into operation. Marks J said:

An understanding of industrial deafness was also regarded by the parties as important to the issue.

Each accepted the description of 'boilermaker's deafness' by Barwick CJ in Commissioner for Railways v. Bain [1965] HCA 5; (1965) 112 CLR 246, at p.251 as applicable to 'industrial deafness': 'It seems that boilermaker's deafness results from successive impacts of sound on the terminal nerve system connected with hearing and that the effect of these successive traumas is to cause cumulative deterioration in the capacity to hear.'

In Burls v. A.A. Mitchell Pty. Ltd. [1979] VicRp 45; [1979] VR 417 this court appears to have accepted the invitation of counsel for all parties to take judicial notice of the matters of fact referred to in the statement of Barwick CJ: see Starke J., at p.419 and Fullagar J., with whom Young CJ agreed, at p.423.

If the description is correct, as has been here assumed, industrial deafness is not strictly speaking a disease but rather a condition resulting from a large number of traumata. The cumulative effect, when measurable, is capable of constituting an 'injury' compensable under the A.C.A. or the Workers Compensation Act, perhaps both (depending on the time and number of measurements or assessments).

Although industrial deafness is in ordinary language a 'condition', it is by definition an 'injury', as will be seen, under the A.C.A. (s.5(1)), but not under the Workers Compensation Act (s.3(1)). In the latter, s.25B deems industrial deafness, in the circumstances mentioned, a personal injury 'arising out of or in the course of the employment' which are the words of s.5(1) of that statute governing liability to pay compensation.[6]

Section 88 - Compensation for industrial deafness

(1) Industrial deafness or a proportion of industrial deafness which has occurred in circumstances which do not create any liability to pay compensation under this Act shall be excluded from the assessment of deafness for the purposes of calculating compensation under this section.

(2) Compensation for industrial deafness shall be in accordance with this section, section 89 and Division 2.

(3) Unless the Authority, self-insurer, a Conciliation Officer, the Medical Panel or the County Court (as the case requires) determines otherwise industrial deafness shall be deemed to have occurred at a constant rate within the total number of years of exposure to industrial noise in employment.

(4) Notwithstanding subsection (3), the date of injury shall be deemed to be -

(a) the last day of the worker's employment out of which or in the course of which the injury arose; or

(b) the date of the claim if the worker is still employed in that employment at the date of the claim.

30 This case is critically concerned with interpretation of these provisions. The authority contends that the panel should have excluded impairment resulting from the worker's hearing loss when in the Vietnamese army when making its assessment. The worker contends that the injury deemed to have been suffered on the last day of his relevant employment was the condition of industrial deafness from which he suffered at that date.

31 In turn, the worker submits that the proportion of industrial deafness required to be excluded from the assessment of deafness for the purposes calculating compensation by s 88(1) is excluded at the time of calculating compensation and not at the time of the assessment of impairment.

32 Section 20(1) of the AC Act provides that the functions of the authority include to:

(a) administer the WorkCover Authority Fund;

(aa) receive and assess and accept or reject claims for compensation;

(b) pay compensation to persons entitled to compensation under this Act.

33 The worker submits that it is in fulfilling these functions that the exclusion required by s 88(1) is to be made.

34 On its face, 'the assessment of deafness for the purposes of calculating compensation' is not 'the assessment of impairment pursuant to s 91'. I do not accept the authority's submission that the plain words of s 88(1) relate to the assessment of impairment required by s 91. If the words of the subsection are given their ordinary sense and different words within the statute are treated as intended to have different meanings, then the worker's construction of the Act is to be preferred. In VWA v Del Borgo,[7] Eames JA (with whom Winneke P and Ormiston JA agreed) stated:

The question of the powers of the panel, as opposed to the powers and obligations of the authority, is an important one. On the interpretation which I favour for the Act, the panel performs a technical, medical, function of assessing binaural hearing loss and then takes that figure and makes an arithmetical calculation of impairment under s 91(3). What that translates to in terms of a payment of compensation would be the task of the authority and might require consideration of other sections of the Act in determining whether a sum representing the previous award can be deducted. The authority is set the task of assessing claims by s 20(1)(aa), but if it is the task of the panel to conduct the dis-aggregation of past and further injuries in coming to an assessment of "permanent impairment" then its assessment of the degree of such impairment is expressly excluded from appeal to any court or tribunal: see s 104B(12). The issue of what is involved in a medical question as to the degree of permanent impairment is a matter of importance.[8]

35 The submissions made on behalf of the worker squarely reflect this view of the provisions.

36 Nevertheless, in agreeing with the reasons of the other members of the bench of the Court of Appeal in Del Borgo, Ormiston JA commented on 'the convoluted and piecemeal form that the legislation has taken'. As a result of further amendment, that is even more so the case now.

37 In Stojcevski v Nisselle,[9] Smith J, after referring to the decision at first instance in Del Borgo v Niselle,[10] concluded with respect to s 88(1):

The provision requires consideration not of the deemed injury but of the circumstances in which the industrial deafness occurred and asks the question whether those circumstances created any liability under the Act.[11]

The defendant seeks to have the provisions of section 88(1) brought into play during the assessment of impairment under section 91. Section 88(1), however, does not use the terms to be found in section 91 of 'injury' or 'impairment' but rather the term 'deafness'. The drafter was plainly aware of the distinction; for s 88(4) uses the term 'injury' not 'deafness'. If s 88(1) had stated that industrial deafness which had occurred in circumstances that did not create liability under the Act should be excluded from the assessment of 'impairment', there would be no argument. It does not, however, do so.[12]

Nonetheless, despite the inappropriate language, the construction sought by the defendant might be required if that was the only way in which effect could be given to section 88(1). It might also be required if it was clear that section 98C was intended to provide the final compensation figure in all cases.[13]

41 I shall return to s 98C below, but in respect of s 88(1), his Honour further stated:

Section 82 is a general provision conferring the entitlement to compensation. Section 98C deals generally with compensation for non-economic loss. Section 88, however, is a specific provision which deals with industrial deafness and spells out the limits to compensation otherwise recoverable for such an injury. It is the primary provision.[14] It does not require the straining of language to conclude that s 88(1) is intended to result in the deduction from the compensation figure otherwise arrived at under s 98C, compensation attributable to any industrial deafness or a proportion of it which has occurred in circumstances which do not create a liability to compensate under the Act. This can be done by the person or body with the responsibility of awarding compensation in a particular case whether it be the Authority, a self insurer, or the County Court.[15]

43 His Honour went on to express the view that s 88(3) supported the above conclusion because it did not, at that time, include medical panels among those who may make a determination with respect to the rate at which industrial deafness occurs. Section 88(3) has since been amended in this respect.[16] This does not, however, destroy his Honour's primary reasoning with respect to the construction of s 88(1) and I do not accept the authority's submission that it compels a different construction of s 88(1). I shall address the purpose of s 88(3) further below.

44 It is convenient to repeat s 88(2) as it was at the relevant time before addressing it:

Compensation for industrial deafness shall be in accordance with this section, section 89 and Division 2.

45 Section 88(2) sets out expressly the provisions to which the authority must have regard when calculating compensation for industrial deafness. These include s 88 itself, and the limitation on the entitlement to compensation set out in s 88(1).

46 Section 88(2) refers to div 2 of pt IV of the AC Act, which related to the types of benefits arising under the Act, including weekly benefits and compensation for maims, pain and suffering and non-economic loss.

47 Section 88(2) also refers forward to s 89, which relates to a particular class of further diminution in hearing after an initial injury. By s 89, 'further injury' is defined as follows:

further injury means a further loss of hearing in respect of industrial deafness after a worker has on one or more occasions suffered a prior injury.[17]

prior injury means industrial deafness for which the worker has received or become entitled to receive compensation for loss of hearing.[18]

49 These provisions do not bear on the present case, because the industrial deafness suffered when the worker was in the Vietnamese army was not industrial deafness for which the worker has received or become entitled to receive compensation for loss of hearing. It is, however, a necessary consequence of these 'further injury' and other provisions to which I shall refer that the worker's case falls into a limited and exceptional class.

Unless the Authority, self-insurer, a Conciliation Officer, the Medical Panel or the County Court (as the case requires) determines otherwise industrial deafness shall be deemed to have occurred at a constant rate within the total number of years of exposure to industrial noise in employment.

51 A determination under s 88(3) might be made where an explosion or other incident could be shown to have caused deafness at a specific point in the course of employment.

52 In other cases, s 88(3) contains a deeming provision which assists assessment of contribution under div 6A of pt IV of the Act. In Accident Compensation Commission v Fletcher,[19] Marks J stated:

Where the 'injury' is industrial deafness, s.88(3) assists the assessment of contribution by deeming it to have occurred at a constant rate within the total number of years of exposure to industrial noise. Mr. Phillips submitted that s.88(3) was merely another 'deeming' provision to be read with that of s.88(4) as part of the new scheme to assess apportionment between pre and post appointed day industrial deafness. However, despite its position in the A.C.A. I think its purpose is to assist assessment of contribution under s.129.[20]

53 In addition, and more significantly for present purposes, s 88(3) provides a basis for calculation of 'a proportion of industrial deafness'. In turn, that proportion can be excluded from the assessment of deafness for the purposes of calculating compensation in accordance with s 88(1).

54 The medical question asked of the panel was not directed to the rate at which the worker acquired the condition of industrial deafness. As counsel for the worker emphasised, the panel might have been asked a different question from that which was directed to it. The question asked of the panel was simply directed to the degree of permanent impairment 'resulting from industrial deafness'.

55 Section 88(4) is a significant element in the scheme of the Act with respect to industrial deafness. It contains a further deeming provision which materially simplifies the conceptual framework within which industrial deafness is to be understood under the Act:

(4) Notwithstanding subsection (3), the date of injury shall be deemed to be -

(a) the last day of the worker's employment out of which or in the course of which the injury arose; or

(b) the date of the claim if the worker is still employed in that employment at the date of the claim.

56 In Accident Compensation Commission v Fletcher,[21] Marks J said:

The submission of the appellant is, however, that in so far as s.88(4) admittedly creates a notional or fictional industrial deafness occurring on a particular date as though, contrary to the fact, it happened all at once at that time arising out of or in the course of employment at that time (perhaps with the proviso that the employment was relevantly noisy, which is unnecessary here to decide) that is as far as the fiction goes. Thereafter, as the logic of the argument would compel, it is necessary to revert to the fact (as distinct from the fiction) that the industrial deafness of the respondents resulted to some extent from traumata in their employment before the appointed day.

In my opinion, the fiction is not to be set aside in that way, particularly as s.82(6), s.90(3) and perhaps s.129 are indicia that the legislative intent is to the contrary. Regard must also be had to the difficulty of providing compensation for industrial deafness and the history of legislative attempts to deal with it. The problems are obvious. The contributions of particular employment to the onset and development of industrial deafness cannot be quantified or assessed retrospectively, if at all, with any precision. The industrial deafness provisions of the A.C.A. (principally ss.88 to 90) were adapted from Div.3A of the Workers Compensation Act which was introduced in 1981 by Act No. 9613 to deal specially with the difficulties which I have mentioned, The Bill for Act No. 9613 was introduced by Mr. Ramsay, then Minister for Labour and Industry, who, in his second reading speech, 30 October 1981 said: 'The new division will be the sole basis for compensation of industrial deafness. It is not dissimilar to the existing provisions of the Act covering industrial diseases. This division determines when the industrial deafness will be deemed to have occurred, permits the worker to claim against one employer only, and provides that the amount of compensation will be in accordance with the existing provisions of the Act.' (Hansard, p.2435.)

Division 3A represented an attempted solution different from that of New South Wales where workers compensation legislation came to deem boilermaker's deafness an industrial disease. This was not done in Victoria. The New South Wales legislature, however, sought to deal with the difficulties after they had been highlighted there by the well known commission decision of Milne v. International Combustion Australia Ltd. [1953] WCR (NSW) 80. On 1 December 1960, s.16(1A) was introduced into the Workers' Compensation Act 1926-60 (NSW) and provided:

'Where an injury mentioned in the first column of the said table is a disease which is of such a nature as to be contracted by a gradual process and which has not resulted in incapacity, such injury shall, for the purpose of determining a worker's right to the amount indicated in the second column of the said table, be deemed to have happened at the time when such worker makes his claim for compensation.'

The section went on to provide that 'disease' included the condition known as 'boilermaker's deafness'. In Commissioner for Railways v. Bain [1965] HCA 5; (1965) 112 CLR 246 the High Court held that the effect of s.16(1A) was to give a worker suffering from boilermaker's deafness a right to compensation for the full extent of the loss of hearing from which he was in fact suffering at the dates specified by the statute not merely for the loss of hearing suffered between the time when the condition became compensable and that date. Barwick CJ said, at p.257: 'According to the meaning which, in my opinion, should be given to the words of the amending section, the worker is to be entitled upon an application made after the enactment of the amendment to be compensated for his physical condition at the date of that application by a lump sum payment under s.16. No doubt his then condition is a product of past events but by the express words of the statute it is to be treated as having occurred at the date of his application, i.e. at a time subsequent to the making of the amendment. This does give him a right to compensation for the present result of the progressive deterioration of his hearing caused during many prior years of boilermaking.' (Emphasis added.)

It can thus be seen that the solution in New South Wales has been understood to provide compensation on the footing that the whole deafness, no matter over what period it arose and progressed or by what employment at what time it was compounded, occurred at the one time so as to become compensable as if in truth it had done so.

In my opinion, a fiction of the same kind has been adopted to achieve a similar solution in Victoria. Here, however, industrial deafness is not deemed to be a disease nor restricted to boilermaker's deafness. Industrial deafness is treated separately and compensation provided for it.[22]

57 In cases such as the present, s 88(4) deems the injury (constituted by the condition of industrial deafness) to have been suffered by the worker on the last day of the worker's employment out of which or in the course of which the injury arose.[23]

58 Although the result might seem artificial, the consequence of the extended definitions of industrial deafness (as comprising any condition of deafness caused by exposure to industrial noise) and injury (as including industrial deafness) is that the impairment resulting from the worker's condition of industrial deafness at the time he ceased relevant work with Holden was what fell to be assessed by the panel.

59 The scheme of the AC Act deliberately adopts a fiction for the reasons explained by Marks J.

60 This is so despite the fact that in this particular case the contribution of particular employment to the development of industrial deafness can be assessed with some precision. The evidence available does not change the underlying rationale for or nature of the statutory scheme.

61 Compensation in accordance with div 2A of pt IV of the AC Act (as contemplated by s 88(2)) required an assessment of impairment to be made in accordance with s 91. Section 91(1A) required the assessment to be made:

(b) based on the worker's current impairment as at the date of assessment (subject to sub-s 7).

62 Section 91(3) provides for the conversion of an assessment of diminution of binaural hearing into a degree of impairment of the whole person.

63 Section 91(3AAA) now further provides (but did not at the relevant date):

(3AAA) Impairment from industrial deafness or a proportion of such impairment that occurs in circumstances that do not create a liability to pay compensation under this Act must be excluded from the assessment of deafness for the purposes of assessing the degree of impairment under this section.

64 The proper construction of this sub-section does not fall to be decided in this case, but on its face it is directed squarely to cases (inter alia) such as the present.

65 However, this sub-section again reflects the distinction between industrial deafness (to which s 88 relates) and impairment (to which s 91(3AAA) relates). It is this distinction on which the worker relies.

66 Section 91(3AA) and (3A) make provision in respect of 'further injury' as defined by s 89, not being further injury in the sense presently relevant.

67 Section 91(4) provides for the standard by which diminution of hearing is to be assessed:

(4) For the purposes of this section and section 89(3)(a), the percentage of diminution of hearing -

(a) shall be determined -

(i) by a person or class of persons approved; and

(ii) in the manner approved -

by the Minister; and

(b) shall be determined in accordance with the Improved Procedure for Determination of Percentage Loss of Hearing (1988 Edition or a later prescribed edition) published by the National Acoustic Laboratory.

68 Section 91(7) provides that, for the purposes of s 98C:

(a) impairments other than psychiatric impairments resulting from injuries which arose out of the same incident or occurred on the same date are to be assessed together using the combination tables in the A.M.A Guides;

(b) if a worker presents for assessment in relation to injuries which occurred on different dates, the impairments are to be assessed chronologically by date of injury;

(c) impairments from unrelated injuries or causes are to be disregarded in making an assessment.

69 In the alternative to its primary submission concerning s 88(1) of the AC Act, the authority submits that s 91(7)(c) required the medical panel to disregard impairment resulting from industrial deafness caused when the worker was a member of the Vietnamese army.

70 The fundamental difficulty with this submission is that because the condition of industrial deafness is deemed to constitute the worker's injury, it cannot be said that impairment contributing to that condition is from an 'unrelated injury'. The relevant injury is a deemed injury constituted by the condition which is, in turn, deemed to have been sustained by the worker on the last day of his relevant work. As Smith J said in Stojcevski, '...s 88(4) creates only one injury and so s 91(7) can have no application'. [24]

71 Further, the terms of both s 91(7)(b) and (c) reflect a clear distinction between the concept of injury and impairment. Section 91 applies to the assessment of the degree of impairment resulting from an injury.

72 Nor can it be said that the impairment is from an 'unrelated cause'. By definition, industrial deafness is deafness caused by exposure to industrial noise.[25] The effect of the deeming provisions is to create a single injury constituted by a condition and the injury so deemed must result from a common cause, namely exposure to industrial noise.

73 In relation to deafness not caused by exposure to industrial noise, namely the proportion of deafness resulting from presbyacusis and the previous mastoid operation to the worker's right ear, the panel in the present case properly applied the terms of s 91(7)(c) and disregarded the resulting deafness in assessing the worker's impairment resulting from industrial deafness.

74 Del Borgo[26] was a case in which the claimant had suffered a degree of industrial deafness, had claimed and been paid compensation for that industrial deafness under previous legislation and then suffered further industrial deafness. He claimed compensation for the additional industrial deafness. The authority contended, as in this case, that the medical panel was bound by the terms of s 91 to disaggregate the degree of impairment that had resulted from the industrial deafness assessed for the second claim from that previously assessed for the first claim. The Court of Appeal[27] held that this was not the function of the medical panel.

75 Although the effect of s 91(7)(c) was not the subject of a specific finding by the Court of Appeal in Del Borgo, in the course of his judgment Eames JA observed:

In the first place, neither in s 90(3), nor in s 98C, nor in s 91 is it stated that the task of the medical panel, or anyone else, is to dis-aggregate the total binaural loss of hearing recorded for the new injury, by reducing it by the percentage binaural loss of hearing recorded at the time of the previous award. The language of s 91(3) and (4) is entirely consistent with what Dr Hanscombe contends is the role assigned to the medical panel, ie to simply record the percentage diminution of hearing for the new claim and if that exceeds 10% then convert that to the appropriate degree of impairment.[28]

76 The AC Act has been amended since the decision in Del Borgo to avoid liability for double payment of compensation, but not to alter the terms or function of s 91(7)(c).

77 Like Del Borgo, the present case is one concerned with the special provisions of the AC Act concerned with industrial deafness. As such, it is to be distinguished from cases where the compensable injury constitutes an aggravation of a previous injury. The scheme of the AC Act in respect to industrial deafness proceeds on a different basis.[29]

Section 98C - Compensation for non-economic loss

78 Section 98C provides for compensation for non-economic loss, ie compensation of the type here in issue. By s 98D, such compensation is to be paid as a lump sum.

(1) A worker who suffers an injury which entitled the worker to compensation is, in respect of an injury resulting in permanent impairment as assessed in accordance with section 91, entitled to compensation for non-economic loss calculated in accordance with this section.

(2) The amount of the non-economic loss in respect of permanent impairment (other than psychiatric impairment and industrial deafness in respect of a further injury) is to be calculated as at the date of the relevant injury as follows -

(a) if the worker's impairment benefit rating is less than 10% - the amount of the non-economic loss is zero;

(b) subject to section 265, if the worker's impairment benefit rating -

(i) is a modified whole person impairment (within the meaning of subsection (2A)(a)(i)) and is not less than 10% and less than 11% - the amount of the non-economic loss is to be determined in accordance with the formula -

$10 570 + [(D - 10) × $9 010];

(ii) is a modified spinal impairment (within the meaning of subsection (2A)(a)(ii)) and is not less than 10% and less than 11% - the amount of the non-economic loss is to be determined in accordance with the formula -

{$10 570 + [(D - 10) × $9010]} × 1.1;

(c) if the worker's impairment benefit rating -

(i) is not less than 10% and not more than 30% and paragraph (b) does not apply to the worker - the amount of the non-economic loss is to be determined in accordance with the formula -

$17 040 + [(D - 10) × $2560];

(ii) is a spinal impairment (within the meaning of subsection (2A)(a)(ii) or (iii)) and is not less than 10% and less than 30% and paragraph (b) does not apply to the worker - the amount of the non-economic loss is -

(A) the amount determined in accordance with the formula -

{$17 040 + [(D - 10) × $2560]} × 1.1; or

(B) $68 240 -

whichever is the lesser;

(d) if the worker's impairment benefit rating is more than 30% and not more than 70% - the amount of the non-economic loss is to be determined in accordance with the formula -

$68 160 + [(D - 30) × $4250];

(e) if the worker's impairment benefit rating is more than 70% and not more than 80% - the amount of the non-economic loss is -

(i) the amount determined in accordance with the formula -

$237 370 + [(D - 70) × $26 570]; or

(ii) $503 000 -

whichever is the lesser;

(f) if the worker's impairment benefit rating is more than 80% - the amount of the non-economic loss is $503 000 -

where D is the worker's impairment benefit rating expressed as a number.

...

(6) If the compensation payable under this section is for industrial deafness, the amount of compensation is to be calculated -

(a) if the date of injury is deemed under section 88 to be the last day of the worker's employment out of which or in the course of which the injury arose - as at that day; or

(b) if the date of injury is deemed under section 88 to be the date of the claim - as at the day on which the compensation is determined.

80 The terms of s 98C(6) again emphasise the special nature of the scheme provided for compensation in respect of industrial deafness.

81 Section 98C(9) and (9A) make specific provision with respect to cases in which a previous payment of compensation has been made in respect of an injury and compensation is subsequently payable for aggravation of that injury:

(9) Where compensation has been paid under this section for an impairment resulting from an injury or under section 98 or 98A in respect of an injury, that compensation must be deducted from any compensation payable under this section in respect of any impairment resulting from an injury consisting of any recurrence, aggravation, acceleration, exacerbation or deterioration of the injury in respect of which compensation has previously been paid under this section or section 98 or 98A.

(9A) If compensation has been paid for non-economic loss in respect of a prior injury or prior hearing loss, that prior injury or prior hearing loss must be taken into account in accordance with sections 88, 89, 91 and this section in determining the amount of compensation payable under this section.

82 The background to s 98C(9) is explained in the decision of the Court of Appeal in VWA v Del Borgo.[30] In turn, that decision provides the background to s 98C(9A).

83 Four aspects of these provisions should be noted:

(a) they have no application to the present case, because no previous compensation has been paid to the worker in respect of industrial deafness;

(b) although the definition of industrial deafness does not itself operate by reference to the concept of recurrence, aggravation, acceleration, exacerbation or deterioration of a prior injury, the condition of industrial deafness may of course include an impairment which is a recurrence, aggravation, acceleration, exacerbation or deterioration of prior industrial deafness;

(c) s 98C(9) envisages an adjustment of compensation that would otherwise be payable, not an adjustment of the assessment of impairment; and

(d) s 98C(9A) specifically envisages the taking into account of prior hearing loss in accordance with s 88 'in determining the amount of compensation payable'. It is precisely this mechanism which the worker submits enables effect to be given to s 88(1) in the present case.

84 Accordingly, as Smith J concluded in Stojcevski v Nisselle,[31] it cannot be said that s 98C was intended to itself provide the final compensation figure in all cases:

A reading of s 98C, however, confirms that it is not intended to achieve that result. Section 98C(9) provides for the deduction of compensation previously paid in respect of an injury where the claim for which compensation is now payable is an aggravation of that earlier injury. This rather indicates an intention that the compensation calculated under s 98C can include compensation for the whole impairment where it results from the aggravation of an earlier injury.[32]

85 The authority's submission that the scheme of s 98C 'appears clearly to be designed to refer all disputes about the assessment of impairment to Medical Panels for authoritative and final determination, leaving no other function to the Authority but to convert the impairment assessment given by the Panel into an award of compensation by applying the formula in s 98C(2)' must be rejected. First, it is inconsistent with s 98C(9) and (9A). Secondly, it is inconsistent with the reference in s 88(2) to compensation in accordance with s 88, s 89 and div 2. In turn, the worker's construction does not, as the authority submits, require a windfall payment in respect of deafness suffered in the Vietnamese army. The amount of compensation must be adjusted in accordance with s 88(1) and s 88(3) provides a basis for the calculation of such adjustment.

Section 104B - Claims for compensation under s 98C

86 Section 104B provides for the manner in which claims are dealt with. Section 104B(2) provides:

(2) The Authority or self-insurer must within 120 days of receiving a claim made by the worker or in the case of a claim initiated by the Authority or self-insurer, within 120 days of the relevant date -

(a) if the claim is a claim made by the worker, accept or reject liability for each injury included in the claim;

(b) obtain an assessment or assessments in accordance with section 91 as to the degree of permanent impairment (if any) of the worker resulting from the injury or injuries in respect of which liability is accepted;

(c) after taking into account the assessment or assessments obtained under paragraph (b), determine the degree of permanent impairment (if any) of the worker for each of the purposes of -

(i) section 98C;

(ii) section 134AB;

(iii) Subdivision 1 of Division 3A;

(d) determine whether the worker has an injury which is a total loss mentioned in the Table to section 98E(1);

(e) calculate any entitlement to compensation under section 98C or 98E;

(f) advise the worker as to -

(i) if the claim is a claim made by the worker, the decision to accept or reject liability for each injury included in the claim;

(ii) each of the determinations as to the degree of permanent impairment (if any) of the worker and whether the worker has an injury which is a total loss mentioned in the Table to section 98E(1) resulting from the injury or injuries in respect of which liability is accepted;

(iii) the calculation of any entitlement to compensation under section 98C or 98E;

(g) provide to the worker a copy of -

(i) any medical reports, correspondence and other documents provided to; and

(ii) any medical reports, correspondence and other documents obtained from -

any medical practitioner referred to in section 91(1)(b) conducting an independent examination.

87 Section 104B(2)(e) charges the authority with responsibility for calculating any entitlement to compensation under s 98C, after an assessment has been obtained under s 91.[33] This tends to support the view that in the process of calculating the entitlement to compensation, the authority may take into account factors that are separate from those relevant to the determination of impairment under s 104B(2)(c).

(6B) Subject to subsection (6), the worker must within 60 days of being advised under subsection (2) advise the Authority or self-insurer in writing -

(a) whether the worker accepts or disputes the determinations of impairment and total loss;

(b) if the worker accepts the determinations of impairment and total loss, whether the worker accepts or disputes the entitlement to compensation, if any.

(9) The Authority or self-insurer must, within 14 days of being advised by the worker that the worker disputes the determinations of impairment or total loss in respect of the injury or injuries claimed, refer the medical questions as to -

(a) the degree of impairment assessed in accordance with section 91 resulting from the injury or injuries claimed for which liability is accepted or established; and

(b) whether the worker has an injury or injuries claimed for which liability is accepted or established which is a total loss mentioned in the Table to section 98E(1) -

to a Medical Panel for its opinion under section 67.

90 The worker submits that the medical questions contemplated by s 104B(9)(a) relate to the impairment 'resulting from the injury ... claimed'. Once again, that injury is, by reason of the extended definition of 'injury' and 'industrial deafness', constituted by the condition of industrial deafness at the relevant date.

91 In turn, s 104B(12) relates to permanent impairment resulting from injury in this extended sense.

(12) No appeal lies to any court or Tribunal from a determination or opinion -

(a) as to the degree of permanent impairment of a worker resulting from an injury; or

(b) as to whether a worker has an injury which is a total loss mentioned in the Table to section 98E(1).[34]

92 The worker submits that the medical panel has answered the question asked of it with respect to 'industrial deafness'. In turn, that answer is directed to the relevant injury as defined by the AC Act. I accept these submissions.

93 It is a general principle of statutory interpretation of legislation such as the AC Act that where its terms give rise to ambiguity, it should be construed, where possible, consistently with its remedial purpose. As stated by Ashley J[35] in Hegedis v Carlton and United Breweries:[36]

In construction of workers compensation legislation, which has been regarded as being remedial in character, there is a long-established principle that in the event of ambiguity a construction favourable to the worker should be adopted. That approach has continued until modern times. It has continued notwithstanding a tendency across jurisdictions to reduce the ambit of compensability of injury. It is not a vehicle for discovering ambiguity where none exists. It could not be used to set at nought the effect of s 35(a) of the Interpretation of Legislation Act 1984. But unless and until a court of the highest authority decides that the principle is irreconcilable with the modern conception of workers compensation legislation, it appears to me that the principle continues to have a legitimate area of operation.[37]

94 In the current case, the interpretation put forward by the authority would mean that the worker would not be entitled to any compensation. If the medical panel were to disaggregate the industrial deafness suffered during the worker's time in the Vietnamese army, the worker's degree of impairment would be assessed at less than 10 per cent and the amount of the worker's non-economic loss would be zero (s 98C(2)(1)).

95 The interpretation of the AC Act which I favour, for the reasons outlined above, means that the worker crosses the first threshold for obtaining compensation, as the medical panel assessed his degree of permanent whole person impairment as 13 per cent. The authority is then responsible for determining the amount of compensation payable, after having disaggregated the industrial deafness caused by the worker's engagement in the Vietnamese army.

96 For the reasons I have explained, I do not regard the relevant provisions of the AC Act as ambiguous. If, however, ss 88(1) and 91(7) were to be so regarded, the principle stated in Hegedis would favour the interpretation I prefer.

97 In summary, the relevant scheme set out in the AC Act for the calculation of compensation for industrial deafness is as follows:

(a) Under s 82, a worker is entitled to compensation if they suffer an injury arising out of or in the course of employment.

(b) 'Injury' is defined by s 5 to include industrial deafness, which is in turn defined by s 5 to mean any condition of deafness caused by exposure, continued exposure, or periods of continued exposure, to industrial noise. Thus, under this extended definition, the worker's ultimate condition is deemed an injury.

(c) Section 88 provides for compensation for industrial deafness. Under s 88(1), a proportion of industrial deafness which has occurred in circumstances which do not create liability for compensation under the Act shall be excluded from the assessment of deafness for the purpose of calculating compensation under this section. This provision requires consideration of whether the circumstances in which industrial deafness occurred give rise to liability under the Act. This provision is not, however, relevant to the assessment under s 91 of the worker's degree of permanent impairment by the medical panel.

(d) Section 88(2) provides that compensation for industrial deafness shall be in accordance with s 88, s 89 and div 2.

(e) Section 88(3) and (4) are deeming provisions relevant, respectively, to assessing contributions and to the date at which the injury occurred. Section 88(3) enables a proportion of deafness to be calculated and assessed for the purposes, among other things, of the application of s 88(1)

(f) The deeming provision under s 88(4) is particularly relevant to the present case. In combination with the extended definitions of industrial deafness, the result of this provision is that the medical panel was required to assess the worker's condition of industrial deafness as it was at the time he ceased working for the employer.

(g) Section 91 relates to the assessment of impairment. Section 91(7)(c) states that in making an assessment, impairments from unrelated injuries are to be disregarded. Contrary to the authority's submission, it cannot be said that the worker's industrial deafness suffered when he was in the Vietnamese army is an 'unrelated injury'. The injury is deemed to be the condition suffered by the worker as at the last day of his relevant employment. The framework for assessment of impairment therefore does not provide for the disaggregation of prior, non-compensable deafness.

(h) Further, the relevant cause of the injury is simply exposure to industrial noise. In this case, the panel has excluded deafness resulting from other causes.

(i) Section 98C sets out the manner in which compensation for non-economic loss is to be calculated. Whilst there is specific provision with respect to cases in which compensation has previously been paid,[38] these do not apply in this case. However, these provisions demonstrate that s 98C was not intended to provide the final compensation figure in all cases.

(j) Section 104B sets out the requirements for a claim for compensation under s 98C. Under s 104B(2)(b), the authority must obtain an assessment in accordance with s 91 as to the degree of permanent impairment and then, under s 104(2)(e), calculate the entitlement to compensation.

(k) If the worker disputes the assessment of impairment from the relevant injuries, the authority must refer the medical question as to the degree of impairment assessed in accordance with s 91 to a medical panel. The injury was constituted by the condition of industrial deafness and it was not for the medical panel to disaggregate prior industrial deafness in this case when performing the assessment under s 91.

98 It follows that the panel has answered the question put to it in accordance with the provisions of the AC Act and in the manner contemplated by the Court of Appeal in Del Borgo.[39]

[2] Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, 179; Kirk v Industrial Relations Commission (New South Wales) (2010) 239 CLR 531, 572.

[5] [1990] VicRp 10; [1990] VR 102.

[7] [2004] VSCA 108; (2004) 9 VR 470.

[9] [2003] VSC 466 ('Stojcevski').

[10] [2002] VSC 368.

[15] Stojcevski, [50] (emphasis added).

[16] As the authority conceded, the amendment was introduced as part of the package of amendments intended to address issues raised by Del Borgo.

[19] [1990] VicRp 10; [1990] VR 102.

[21] [1990] VicRp 10; [1990] VR 102.

[23] Cf the current words of s 88(4), which provide that the injury is deemed to have occurred on the last day that the worker was performing duties or exposed to conditions by reason of which the injury was caused.

[25] AC Act, s 5; see also Stojcevski, [35], where Smith J concluded that 'as to causes, they too were related being exposure to noise from time to time'.

[26] Del Borgo v Niselle & Ors [2002] VSC 368.

[27] VWA v Del Borgo [2004] VSCA 108; (2004) 9 VR 470.

[29] Cf Alcoa v Lowthian [2011] VSC 245; Vegco v Gibbons [2008] VSC 363.

[30] [2004] VSCA 108; (2004) 9 VR 470.

[31] [2003] VSC 466.

[36] [2000] VSC 380; [2000] 4 VR 296 ('Hegedis').

[39] VWA v Del Borgo [2004] VSCA 108; (2004) 9 VR 470.