Heggblum v Return to Work Corporation of South Australia [2024] SAET 73

(2) Subject to this section, where a claim is made under this Act in respect of noise induced hearing loss by a worker (not being a person who has retired from employment on account of age or ill‑health), the whole of the loss will be taken to have occurred immediately before notice of the injury was given and, subject to any proof to the contrary, to have arisen out of employment in which the worker was last exposed to noise capable of causing noise induced hearing loss.

(3) If a claim is made under this Act in respect of noise induced hearing loss by a person who has retired from employment on account of age or ill-health, the whole of the loss will be taken to have occurred immediately before the person retired and, subject to any proof to the contrary, to have arisen out of employment in which the person was last exposed to noise capable of causing noise induced hearing loss.

(a) the applicant has not established that he was not exposed to noise capable of causing noise induced hearing loss in his employment subsequent to Holden;

(b) In any event, the evidence establishes that the applicant's noise induced hearing loss did not arise from his employment with Holden.

1. The applicant relies upon his oral evidence and affidavit, together with the expert evidence of Dr Hunter, ENT specialist.
2. Although I do not consider the applicant was attempting to deceive me, I do have reservations in relation to his evidence.
3. In his affidavit as affirmed, the applicant declared that:
   1. I am currently using hearing aids which were supplied to me by Audika through the government scheme in early 2024. I have been using these hearing aids for approximately 18 months.
   2. I have noticed these hearing aids have deteriorated and do not allow me to accurately hear things from a medium to long distance away. This means that I am often found repeating myself or struggling to understand conversations which are not face to face.
   3. I struggle to communicate in social conversations, this includes face to face conversation, particularly when there are other people around.
   4. This also specifically affects my ability to enjoy leisurely activities such as family gatherings, group outings and going out to restaurants with friends.

1. I understand Audika have provided a quote for an upgraded pair of hearing aids which I understand will be more suitable and help improve my difficulty hearing including over longer distance and also help me to hear the TV and Zoom/Microsoft Teams calls.
2. This will be particularly helpful with my current employment which requires me to have regular meetings via Microsoft Teams. I would benefit greatly from having my hearing aids connect to my devices to enable me to clearly understand speech.
3. At the commencement of the trial, the applicant accepted that there were a number of errors in those statements.
4. Firstly, the purchase of the hearing aids in question was self-funded.
5. Secondly, the hearing aids are suitable. He was not seeking approval for them to be replaced, but rather for reimbursement for their cost. He has not spoken to Audika about the possibility of replacements at all.
6. I am willing to accept that the errors arose from some miscommunication between the applicant and his solicitors, rather than from any conscious effort to mislead. However, the fact that despite the obvious errors, the applicant was prepared to, and did, affirm the contents of the affidavit were true, means that I do not feel confident in accepting the applicant's evidence without reservation.
7. This is particularly significant in relation to the issues of noise exposure in employment subsequent to Holden, and the extent of any tinnitus symptoms the applicant may suffer.
8. In relation to employment subsequent to Holden, the applicant's affidavit does disclose exposure to noise. He deposes that he may visit a "noisy" site once per day, 4 days per week, with the fifth day in the office "where I am not exposed to any significant noise." A site visit can vary in duration from 45 minutes to an entire 8-hour day. He affirms to wearing "hearing protection as required by site visit mandates." There is no attempt to explain what that last statement entails.
9. The applicant deposed to noticing hearing loss "about 6 to 8 years ago.". Under cross-examination, he narrowed that down to approximately March 2018, following moving into a larger house.
10. In relation to his tinnitus symptoms, the applicant in his affidavit states the onset of ringing in his ears "6 to 8 years ago." Later in his affidavit he describes the tinnitus as sounding like "loud crickets." He describes how the tinnitus impacts his ability to fall asleep, requiring him to adopt a particular sleeping position. He finds the noise agitating and bothersome, impacting his enjoyment of social activities.
11. Dr Hunter examined the applicant for medico-legal purposes on one occasion. He provided 3 reports and gave oral evidence. His evidence can be summarised as follows.

(a) Dr Hunter obtained a history from the applicant that his employment post Holden was "not noisy";

(b) Dr Hunter obtained a history of significant tinnitus affecting the applicant's ability to get to sleep with him using masking issues with a radio and fan;

(c) Whilst in his first report he expressed the opinion that employment at Holden did not contribute significantly to his hearing loss, in a subsequent report he expressed the opinion that with the additional tinnitus loading, the employment with Holden "has been capable of contributing to his hearing loss and tinnitus";

(d) Dr Hunter understood that the tinnitus started whilst the applicant was employed at Holden;[1]

(e) The hearing loss recorded (and the tinnitus[2]) may have been equally likely due to the aging process;

(f) Tinnitus affecting sleep which is alleviated by positional change may well not be noise related;

(g) If the tinnitus was not noise related, then he remains of the opinion that employment at Holden did not significantly contribute to the applicant's hearing loss;[3]

(h) Hearing loss due to noise exposure ceases to worsen once the noise exposure ceases;[4]

(i) The best reliable audiogram reflects the true hearing loss;[5]

(j) No opinion was sought from him in relation to noise exposure in employment subsequent to Holden.

1. In closing submissions, the applicant suggested "no significant contribution" was not the same as no contribution at all. However, the answer was in response to a question as to whether the employment with Holden had been a "contributing cause" to his hearing loss condition.[6] The answer given must be considered a cautious answer in the negative -similar to his cautious answer in the positive in his subsequent report.
2. The agreed trial book also included a series of audiograms undertaken in 1990, 1993, 1996, 1998, 2001 at Holden; 2024 and 2025 by Audika, and 2024 with Dr Diamantis.
3. Those taken at Holden revealed minimal hearing loss which may be attributable to noise exposure, which did not progress. No tinnitus was recorded. Nor on the applicant's evidence was it then experienced by him.
4. The Audika audiograms did disclose hearing loss consistent with noise exposure, with both audiograms virtually identical.
5. The audiogram undertaken with Dr Diamantis indicated a lower level of hearing loss than the Audika audiograms, but more than those undertaken at Holden many years earlier. I accept the audiogram undertaken with Dr Diamantis is reliable.

1. The respondent relied upon the expert opinion of Dr Diamantis, ENT specialist, set out in 3 reports following a single examination of the applicant, and his oral evidence before me.
2. Dr Diamantis' evidence can be summarised as follows:

(a) The audiograms revealed no evidence that the applicant's noise induced hearing loss (NIHL) was contributed to by his employment at Holden or his subsequent employment;[7]

(b) In expressing the opinion that there is no evidence that the applicant developed a noise induced hearing loss as a result of any such employment, he inferred that whilst the applicant's hearing thresholds deteriorated due to noise exposure between commencing employment with Holden and the more recent audiograms, his assessable NIHL under the IAG did not;[8]

(c) The impression he got from the history was that work with the subsequent employer was unlikely to cause NIHL;[9]

(d) There is a noise induced component to the changes on audiometry;[10]

(e) To the extent any hearing loss may be noise induced, other pathology also contributed;

(f) Dr Diamantis recorded being told by the applicant that tinnitus was "annoying only" during the day and sleep onset was fine;

(g) Whilst he accepted the background tinnitus was likely to be noise related, the aggravated tinnitus which affected sleep, and which was alleviated by positional variation, was not;[11]

(h) Hearing aids would be beneficial for the noise induced component of his hearing loss.

1. I have had occasion to consider the legislative regime created by s 9, Schedule 2 and s 188 in Saler v RTWSA[12] where I stated:

There are a number of observations to be made regarding the meaning of these sections and the interplay between them.

Firstly, they differently describe the nature of the employment to which they relate. Schedule 2 refers to "any work involving exposure to noise" whereas s 188 refers to employment which exposes a person to "noise capable of causing noise induced hearing loss." Parliament must be taken to have used the different descriptions advisedly.

At its most literal, the Schedule 2 term could be said to apply to any employment - no-one works in an effective "cone of silence". Common sense suggests that the provision is intended to refer to what might be described by a lay person as "noisy employment", without the need to prove that the noise was at a sufficient level to be capable of causing NIHL: noisy employment is presumed to have caused a worker's NIHL.

Exposure to noise capable of causing NIHL does not necessarily mean that NIHL resulted. On the other hand, if NIHL did result (or is presumed to have resulted) from employment, then that employment must logically have been capable (or is presumed to have been capable) of causing NIHL.

Thus, if an applicant is entitled to the benefit of the Schedule 2 presumption because he suffers NIHL and the claim is made within 2 years of retirement from noisy employment, the relevant employment also must be presumed to have been employment involving exposure to noise capable of causing NIHL for the purposes of s 188.[13]

...the presumption can only be rebutted by showing the last employment, although "capable of causing" hearing loss, in fact made no contribution to the deterioration of the worker's condition. Alternatively, it would allow proof that some of the loss was caused subsequently.[14]

1. There appears to be no dispute between the experts, that part of the applicant's hearing loss is noise induced. Equally, it appears non contentious that the applicant's employment with Holden involved exposure to noise, and that that noise was capable of causing hearing loss. What is unusual is that such employment ended 17 years before the claim was made, a decade before symptoms were first noted with subsequent employment for the duration of the intervening period.
2. I am of the view that based upon the applicant's own affidavit, that subsequent employment was noisy - or at least sufficiently noisy to invoke the s 9(2) presumption. That presumption works against the claim as made by the applicant, suggesting an onus on the applicant to rebut it.
3. However, both parties approached the onus issue not quite from that perspective. In light of the method in which the parties chose to present their arguments, I will consider the onus question as argued by the parties.
4. What is in issue is what is the presumption in relation to the claim against Holden and whether it has been rebutted by evidence establishing the employment with Holden did not contribute to the hearing loss, or that alternatively some of the hearing loss was caused subsequently.
5. For the presumption contained in s188(2) to apply, it is necessary that:

(a) Holden was the last employer where the applicant was exposed to noise capable of causing hearing loss;

(b) It has not been established that such employment did not in fact cause hearing loss;

(c) It has not been established that some of the hearing loss was caused subsequently.

1. It is clear from the language of s 188 that the respondent bears the onus of rebutting the presumption of the causal link to the Holden employment. The respondent seeks to do so with the evidence of both Dr Diamantis and Dr Hunter.
2. Dr Diamantis considers the question of hearing loss to be whether there is an assessable loss under the Impairment Assessment Guidelines (IAG), rather than by reference to any audiometric departures from the limits of normal.
3. I do not consider that to be the correct approach. Injury and impairment are not the same. Nevertheless, for the reasons that follow, I do not consider that approach undermines his fundamental opinion.
4. I am satisfied that the employment with Holden did not contribute to the applicant's hearing loss. The only expert evidence that supports this presumption is that of Dr Baxter in his subsequent report, which in turn is dependent upon there being noise-related tinnitus related to that employment. Absent the tinnitus, the evidence of Drs Diamantis and Hunter is in agreement that there was no deterioration between the audiograms of the 1990's and those of the 2020's. For reasons that appear below, I am not convinced of the presence of tinnitus as assumed by Dr Hunter, or in any event, of any connection to the employment at Holden.
5. The applicant's evidence as to his tinnitus symptoms varied in the telling. Whilst I accept the applicant does suffer from some tinnitus symptoms, I am not confident to make findings as to their extent.
6. Further, the onset of such tinnitus symptoms (and his awareness of hearing loss) arose a decade after the conclusion of his employment with Holden, and during his present employment.
7. The linking by Dr Hunter of the tinnitus issues with the applicant's employment with Holden was based upon a factual error. He assumed a history of the onset of tinnitus symptoms during Holden employment. That is not the evidence of the applicant.
8. The respondent also submits the onus is on the applicant to rule out subsequent employment as exposing the applicant to noise capable of causing hearing loss. The applicant accepts that but submits that the onus upon him is a very low bar, sufficient to be cleared from the lay evidence of the applicant. Having done so, the onus then shifts to the respondent to rebut that evidence. In effect what is submitted is that the applicant has an evidential onus, with the respondent then having the probative onus.
9. Jennings P in Transfield Services (Australia) Pty Ltd v Sellars[15] said of the precursor to the present provision:

I think it is incumbent upon a worker, who selects an employer at an earlier point in time than the last employer to be the employer whose employment last exposed the worker to noise capable of causing noise induced hearing loss, to establish that later employment was not so capable. To use the words of Mullighan J in Perre that position accords with fairness and commonsense as the worker will be in the best position to know whether or not he or she was exposed to noise capable of causing noise induced hearing loss at a subsequent place of employment.

It does not follow that that is a particularly difficult onus to bear. In Purkess v Crittenden Barwick CJ and Kitto and Taylor JJ said:

"The expression 'burden' or 'onus' of proof, 'As applied to judicial proceedings ... has two distinct and frequently confused meanings: (1) the burden of proof as a matter of law and pleading - the burden, as it has been called, of establishing a case, whether by preponderance of evidence, or beyond a reasonable doubt; and (2) the burden of proof in the sense of introducing evidence' (Phipson on Evidence, 10th ed. (1963) par 92). This is a proposition which has been frequently acknowledged (See eg Fitzpatrick v Walter E Cooper Pty Ltd [1935] HCA 82; (1935) 54 CLR 200 at p 218 and Mummery v. Irvings Pty Ltd [1956] HCA 45; (1956) 96 CLR 99 at p 118 et seq). The position is, we think, correctly stated by the learned author of the work to which we have referred when he says: 'the burden of proof in the first sense is always stable, the burden of proof in the second sense may shift constantly, according as one scale of evidence or the other preponderates' (ibid par 95)".

It follows that if a worker introduces evidence about subsequent employment that suggests that he or she was not exposed to noise capable of causing noise induced hearing loss, an evidentiary burden will shift to the relevant compensating authority if it contends that that is not so.[16]

Given that the worker was in a better position than Transfield to know what noise he was exposed to in his later employment, in my view he carried the initial burden of introducing evidence on the matter. He did this. The learned Deputy President accepted his evidence and this was the basis for her finding in paragraph 33 of her reasons "that the work at D & A Sellars involved very occasional low background noise and that he was exposed to even less noise at Cove Tavern".

In the absence of evidence suggesting that the worker's later exposure to noise was more than this, that might well have been enough. As it was Transfield's contention that the worker's later employment exposed him to noise capable of causing noise induced hearing loss, an evidentiary burden of adducing evidence of that shifted to Transfield.[17]

1. To the extent that the onset of appreciable symptoms post-dated the Holden employment may suggest there has been a measurable deterioration in the applicant's hearing levels between 1990 and 2024, I do not consider the applicant has discharged the evidentiary onus on him to produce evidence to exclude employment subsequent to Holden as being capable of causing or contributing to that loss. As previously quoted, the applicant's affidavit describes significant noise levels away from the office to which he was exposed for varying periods 4 days per week. I find the references to mandated hearing protection as being too vague to counteract that.
2. Moreover, there is no evidence from Dr Hunter to support the applicant on this topic. The applicant submits that is a necessary inference from Dr Hunter's statement, "his work history, as given to me, indicates exposure to noise at GMH." By implication, it is submitted, that excludes the other employers. However, the history the applicant gave to Dr Hunter was that the subsequent employment was "not noisy". That is at odds with the applicant's affidavit.
3. While it may be suggested that the evidence of Dr Diamantis supports no likely connection between the subsequent employment and the NIHL, the answer given by Dr Diamantis must be understood to have been given in the context of his opinion that no NIHL had in fact resulted from that employment or the employment with Holden. It is easy to say employment is unlikely to cause hearing loss against a background of a finding that it in fact didn't. Additionally, the history he was given of the noise exposure from that employment was a little more benign than that set out in the applicant's affidavit:

He reports that there is factory noise, warehouse noise and other workplace noise on an intermittent basis but up to four days a week. Around 20% of his time is in an office environment. The noise in this role can vary from insignificant to substantial. Ear protection is worn as dictated by site visit mandates.[18]

1. Accordingly, I find that the presumption does not apply. The employment with Holden made no contribution to the applicant's hearing loss. Moreover, there is no acceptable evidence that the applicant's subsequent employment did not contribute to any deterioration in the applicant's hearing.
2. The applicant's claim is dismissed. I will hear the parties as to the terms of final orders.

[8] Tr 101.3-.7; 102.10-.15; 105.38-107.1.

[12] [2022] SAET 61.

[14] RTWSA v Renfrey (2019) 133 SASR 31 at [42].

[15] [2012] SAWCT 41.