HIS HONOUR: The plaintiff, Mr Barry Raymond Meyers, is a former sergeant of police. He was attested as a probationary constable of police on 10 March 1975. He thereupon became a contributor to the Police Superannuation Fund established by the Police Regulation (Superannuation) Act 1906 ("the Act"). The plaintiff last physically worked as a sergeant of police in May 2011. He made an application for medical discharge from the NSW Police. On 23 April 2013, the Police Superannuation Advisory Committee (PSAC) certified that the plaintiff was incapable of discharging the duties of his office on account of the following list of infirmities:
"Post traumatic stress disorder; partial tear of the left shoulder subscapularis tendon, calcification of the subscapularis tendon together with subacromial bursitis; degenerative disc disease at the L5-S1 level with gross narrowing of the L5-S1 disc space and development of osteophytes; and mild high-frequency hearing loss and tinnitus".
On 6 May 2013, the Commissioner of Police determined that the suffering by the plaintiff of all but the last of those infirmities was caused by the plaintiff's having been hurt on duty during the course of his service as a member of the NSW Police. The plaintiff was medically discharged from the NSW Police on 5 July 2013. On 12 August 2013, the defendant, by his delegate, determined that the suffering by the plaintiff of "mild high frequency hearing loss and tinnitus" was not caused by his having been hurt on duty. Aggrieved by that decision of the defendant, the plaintiff brings an application to this Court seeking to have that determination set aside and replaced with a decision that the suffering by the plaintiff of "mild high frequency hearing loss and tinnitus" was caused by the plaintiff's having been hurt on duty.
The plaintiff told me, in essence, that he stopped working because of the symptoms of post-traumatic stress disorder (PTSD) and because of his left shoulder and low back conditions. In essence, they were the cause of the plaintiff's inability to carry out the duties of his office. Nevertheless, PSAC included on its certificate "mild high frequency hearing loss and tinnitus". Why it did so, I do not know. The plaintiff has been in receipt of a hurt on duty (HOD) pension because of the infirmities which were certified by PSAC and accepted by the defendant has having been caused by the plaintiff's having been hurt on duty.
In a case of this nature, I often ask myself the question: cui bono? For whose good have the proceedings been brought? If the plaintiff have the condition generally known as "boilermakers deafness" then the extent of the hearing loss is such that the plaintiff is not entitled to any lump sum gratuity pursuant to s 12D of the Act equivalent to his putative entitlement under s 66 of the Workers Compensation Act 1987. There is no evidence that the plaintiff has sought any treatment for his hearing loss or tinnitus. However, I do know that on the day he made his claim for hurt on duty benefits referable to his hearing loss, he consulted his general practitioner, Dr Singh, at Maitland and complained to him about his increasing hearing loss. I do not know whether that was the sole reason that the plaintiff attended upon Dr Singh on that day. The plaintiff was eventually sent to see Dr Finlay-Jones, an otorhinolaryngologist, at the request of the defendant. Dr Finlay-Jones suggested that the plaintiff should be assessed for a "tinnitus masker" to improve the quality of his life. The plaintiff's solicitors have qualified Dr Brian Williams, also an otorhinolaryngologist, who when asked the medico legal question as to whether the plaintiff would benefit from the provision of hearing aids expressed the opinion that the plaintiff would benefit from hearing aids. Accordingly, there might be some entitlement to a gratuity under s 12D for future treatment of the plaintiff's hearing loss, a gratuity equal to a benefit under s 60 of the Workers Compensation Act 1987. Furthermore, it appears to me likely that the plaintiff will rely in part on his hearing loss and tinnitus, if it be proven to be HOD, to support an application for an increase in his pension pursuant to s 10(1)(a) of the Act.
The plaintiff was born on 15 January 1956 in Maitland. He is currently 59 years old. His age is important because of the development of presbycusis, the deterioration of hearing due to age, after 50 years. The plaintiff grew up in Maitland. His first job and his only job other than that he held in the NSW Police was as a delivery driver/shop assistant/storeman for a firm in Maitland that was eventually taken over by Repco and, therefore, I infer sold and delivered motor vehicle parts. At the age of 18, the plaintiff applied to join the NSW Police. In a medical history declaration, he advised that his hearing was unaffected. The plaintiff was examined by a medical practitioner in order to be appointed a probationary constable of police. That examination was completed on 31 October 1974, and the plaintiff's hearing was found to be normal. Such is the only inference to be drawn from the mark 10 over 10 in respect of each ear recorded on exhibit E.
As I have earlier mentioned, the plaintiff was attested as a probationary constable of police on 10 March 1975. He was initially stationed at Newtown, but in August 1975 he was transferred to Kogarah. At both Newtown and Kogarah Police Stations, the plaintiff performed general duties. He underwent a further medical examination for appointment as a constable of police on 8 March 1976, and again the plaintiff was found to have normal hearing. He was confirmed as a constable of police on 10 March 1976. He continued working at Kogarah. The history suggests that the plaintiff's work at Kogarah involved his driving motorcycles, and he was often placed in charge of Tom Ugly's Bridge which, at that time, had only three lanes, two of which were used by Sydney bound traffic in the morning and two of which were used by traffic returning from Sydney in the afternoon, taking residents of the Sutherland Shire and the Illawarra back to their homes after completing their work in the city.
In May of 1976, the plaintiff was appointed to the North Sydney police station and became a member of the Highway Patrol. The plaintiff's work in the Highway Patrol was, essentially, as a motorcyclist. In a report dated 31 October 2012, the plaintiff said this of his work in the Highway Patrol at North Sydney:
"In May 1976, I was transferred as a solo cyclist to North Sydney Highway Patrol which was located under the train line at North Sydney. My duties included solo cyclist patrols, static radar operation and motor vehicle patrols. Part of my duties as a solo cyclist was to escort Main Roads personnel during manual lane changes of the Sydney Harbour Bridge during peak hour traffic. This required a very slow and stop/start ride in noisy traffic across the bridge. I was also a police trail bike rider pursuing unregistered motorcycles in bushland in Sydney and outlying suburbs and the South Coast regions."
In his oral evidence, the plaintiff told me that in addition to those duties, he was often assigned as a motorcycle escort for the Governor-General when he was resident at Admiralty House and to escort other dignitaries who may have been visiting the Governor-General at Admiralty House and perhaps the Prime Minister at Kirribilli House. The plaintiff's work included not only North Sydney, the Harbour Bridge and Kirribilli but the lower North Shore. During such work, he was exposed to traffic noise and noise of a siren installed on his cycle. He told me that he would activate his siren between ten and 15 times each day when he had to pull vehicles over to give the driver of the vehicle a traffic infringement notice, or the like. Sometimes, there were pursuits of vehicles for longer periods of ten to 15 minutes, and sometimes a need to travel to an accident scene or crime scene over a period of time which could, again, be ten to 15 minutes long. Such pursuits, he told me, "happened a few times".
From the histories recorded by doctors and, in particular, from the history recorded by Dr Brian Williams, I know that the plaintiff rode police motorcycles for between eight and ten years. While the plaintiff was in the Highway Patrol, he told Dr Williams that he rode his motorcycle 70% of the time and a motorcar 30% of the time, although in the plaintiff's evidence, he thought the ratio was more like 80% and 20%. The plaintiff initially rode a Kawasaki 900; later, a Honda 74; and then a BMW 1000. Dr Williams recorded a history of traffic noise and wind noise and exposure to the horns of vehicles being sounded including the horn of his own motorcycle and siren noise, to which I have already adverted, together with the daily testing of the siren on his own motorcycle for a short time. During the period that the plaintiff was in the Highway Patrol, from 1979 onwards, he always wore a full face helmet which attenuated the noise somewhat. Dr Williams also obtained a history of the plaintiff's riding police trail motorcycles for five years, they being identified as a Honda 500, and a Yamaha 450. Whilst riding those motorcycles, the plaintiff was exposed to unmuffled noise from the motorcycle engine. When riding those motorcycles and, indeed, others, the plaintiff had to raise his voice to have a conversation. No hearing protection was worn by the plaintiff when riding motorcycles other than the motorcycle helmet. Unfortunately, no one has put before me any manufacturers' specifications or testing as to the noise emitted by the identified types of motorcycle.
As a member of the Highway Patrol, the plaintiff did both radar duty and RBT duty. Random breath testing was introduced in 1982. When it was initially introduced, the plaintiff would spend six hours per days, two days per week administering breath tests which the plaintiff agreed was to introduce the motoring public to the prospect of being randomly breath tested in order to put into them not the fear of God but of the law.
In May 1978, the plaintiff transferred to the Highway Patrol at Newcastle, coming closer to his native city, Maitland. In the Highway Patrol at Newcastle, the plaintiff's duties included being a solo cyclist, a trail bike cyclist, and patrolling in motor cars and performing both radar operations and random breath testing after its introduction in 1982. In September 1984, the plaintiff was transferred to his native city, Maitland, again as a member of the Highway Patrol.
In 1986, he left the Highway Patrol to work in general duties and in part time licensing work. That "part time" licensing work was extremely demanding, and eventually the plaintiff was promoted to licensing sergeant and given another police officer to assist him. He took up his role as licensing sergeant in 2002 and remained the licensing sergeant until stopping work in May 2011. The plaintiff described his work in licensing in the report of 31 October 2012 in these terms:
"Since 1986, I have worked in general duties and part time licensing. I was a fulltime Licensing Sergeant at Central Hunter LAC since 2002. These duties include visiting hotels, nightclubs, registered clubs and other types of licensed premises. I would be required to inspect premises for breach of the licensing laws. A large number of these premises conducted entertainment with music far in excess of normal sound levels. I was subjected to this excessive noise, at times, on a weekly or fortnightly basis during my visits as the premises that played this loud music were our trouble spots within the LAC. I have conducted numerous undercover operations within other LACs at trouble spots with excessive noise aimed at entertaining younger patrons. Observations would last for hours within these venues to detect intoxication offences. There were numerous times I would finish work with a headache and ringing in my ears due to this noise, but this would subside over the following day.
During these visits to noisy, licensed premises, I found it increasingly difficult to hear conversation when speaking to licensees, managers or offenders to the point I would just nod and pick up parts of the conversation and piece it altogether.
Licensing within this LAC included organising user pay policing at various venues within the Pokolbin region for 'Day on the Green', 'Hope Estate', 'Jazz in the Vines', venues that would attract 10,000 to 15,000 patrons being entertained by international events. Whenever these venues had an event, I would visit to either organise user pay police or as a Licensing Officer to detect any breaches of the Liquor Act. Large speakers were used at these outdoor concerts, and during the event patrols were made near these speakers, and the noise and vibration were so loud you could feel your chest thumping. These types of events were a regular occurrence during the summer period for the past eight years. Similarly, I would leave these venues with a headache and my ears ringing, which would last for a few days."
The plaintiff has, in addition throughout his police career, been exposed to noise from gunshots, initially the Smith & Wesson revolver used by police and, more recently, the Glock pistol. There is an annual practice shoot which each member of the police force must perform to maintain his or her efficiency. The plaintiff told me that at times in his work as a highway patrol officer, he would have to discharge his firearm to euthanize animals, both ferae naturae and mansuetae naturae, which were injured in accidents. The plaintiff's exposure to gunfire was increased when he became a licensing officer because his licensing duties included inspections of firearms' ranges within his LAC, and those ranges included pistol ranges, and small bore rifle range and large bore rifle range, and clay target ranges. The plaintiff said, both in the report from which I have quoted and in his oral evidence, that when he inspected such venues they were fully operational and he inspected them without any ear protection. In addition, whilst normally revolver or pistol training in the police force is done with the benefit of hearing protection, there were numerous weapons' practices where the plaintiff was not immediately involved in the shooting but was exposed to the discharge by others of their weapons without any warning and whilst he was not wearing any hearing protection. When he heard shots fired without any hearing protection, he would be left with a ringing sensation in his ears that would last for a number of hours.
The medical evidence, in particular that contained in the report of Dr Brian Williams of 23 April 2014 and in the report of Associate Professor Croxson of 10 November 2014, provides me with raw information/data/statistics as to the likely noise levels perceived by the plaintiff's ears when he was exposed to the noise of modern music bands, rock bands, jazz bands, heavy metal bands, and to gunfire, and provides me with information as to the attenuation rate of the noise being 6 dB per metre from the source and provides me with data about the effect of wearing hearing protection when exposed to gunshots, albeit there is a dispute as to whether hearing protection reduces the experience of noise by 20 dB or 30 dB. One can go through the mathematics and easily ascertain that the plaintiff was exposed intermittently to noise levels sufficient to provide a daily noise dose of 1 which is sufficient to present a real risk to the hearer of developing sensorineural deafness, one form of which, of course, is boilermakers deafness.
I have no hesitation in accepting that the plaintiff's employment carried a real risk of his developing boilermakers deafness or deafness of the like origin. Just to develop that a little further, it is now well accepted by case law, that is, judge-made law, by legislation and by those providing occupational health and safety that a daily noise dose of 1 is sufficient to cause boilermakers deafness or deafness of the like origin. The level is generally said to be an exposure to 85 dB for eight hours a day. However, a daily exposure to a gunshot noise in close proximity to the ear without hearing protection carries an even greater risk than a constant exposure for eight hours to 85 dB. In other words, to develop the condition known as boilermakers deafness, a worker must be exposed to 85 dB each and every part of an eight hour day, or he might be exposed merely to one gunshot noise per day near his ear which would have the equivalent effect on the hearing as exposure to 85 dB for eight hours per day. Eventually, the defendant conceded that the plaintiff's service in the New South Wales Police carried a real risk of his developing boilermakers deafness or deafness of a similar nature.
Unfortunately, cases of this nature are becoming more common in this List. The first case to which I can refer is Brown v COP [2013] NSWDC 273; the next case to which I can refer is Bannon v COP [2015] NSWDC 60. The results in those two cases were different, but they were different cases. The present case raises yet another factual situation which differs from the other two and, quite frankly, one which in my experience never arose in litigation in the Compensation Court of New South Wales. That the current issue never arose in litigation in the Compensation Court is explained by the fact that if there were any case in which the quantum of hearing loss was in dispute, it was by compulsion of law sent to a medical board or, later, a medical panel and, under current legislation, to approved medical specialist for determination, and the board/panel/AMS, who would state the level of deafness and what part, if not all, of the deafness was due to the condition known as boilermakers deafness or deafness of the like nature. Such a medical certificate was binding upon the parties and, therefore, the issue of the extent of deafness, if there were a "mixed deafness", was never litigated because of binding certificate from a board/panel/AMS. This is a possible case of "mixed deafness", as the plaintiff concedes, and there is no binding medical certification. It has been left for me to determine.
There are three different opinions before me and three different audiograms. In essence, they are all medico legal assessments because the only assessment performed other than in the course of the current litigation was the assessment made by Dr Charles Finlay-Jones who was qualified by the defendant when the plaintiff first made a claim for HOD benefits for his alleged hearing loss. Audiograms generally cover the frequency range of between .5 kHz and 8 kHz. Dr Finlay-Jones's audiogram was performed on 2 October 2012. The audiogram was not made by the doctor himself but by an audiologist retained by him, Ms Christine McGovern. That shows an attenuation of the plaintiff's hearing commencing at .5 kHz, lowering in the left ear at 1 kHz, improving in both ears at 1.5 kHz, but being almost identical at 2 kHz. Associate Professor Croxson's audiogram was not made by him but by an audiologist, Ms Jade Sorbello, and bears the date 17 June 2013. There is something slightly inexplicable about that date. Associate Professor Croxson was supposed to examine the plaintiff on 21 February 2013. That can be seen from the letter qualifying him under the hand of Mr Wayne Layt of the Police Department of 18 February 2013. Associate Professor Croxson's report bears the date 21 June 2013 but refers to the date of the initial consultation as being 21 February 2013. As I mentioned, Associate Professor Croxson's audiogram bears the date 17 June 2013. I hazard the observation that the examination may have been on 21 June 2013, which is the date of the report, and the February month date is incorrect, and that better explains the audiogram of 17 June 2013 which may be a mistake for 21 June 2013. Nothing much turns on that. The audiogram made by Ms Sorbello is similar to that made on behalf of Dr Finlay-Jones in that it is slightly dome shaped, commencing with a hearing loss at .25 kHz, increasing to 1 kHz, then rising to 1.5 kHz, and rising further to 2 kHz, but then dropping in each ear from 2 kHz to 8 kHz, the right ear falling relatively in a constant pattern, but the left ear stabilising between 6 kHz and 8 kHz. Dr Williams saw the plaintiff on 27 February 2014 and his audiogram bears that date. Again, it shows the commencement of hearing loss at .25 kHz, then improving to 3 kHz, then dropping in each ear from 3 kHz to 8 kHz. There is no notching in either the audiogram done for Associate Professor Croxson or the audiogram performed by Dr Williams. The only exception is that of Associate Professor Croxson shows a plateau in the left ear between 6 kHz and 8 kHz, but that is not consistent with the notching for the right ear shown in Dr Finlay-Jones's audiogram.
Both Dr Williams and Associate Professor Croxson gave oral evidence. Each was adamant about the position he maintained. It was interesting expert evidence, the evidence of Professor Williams being tinged, in my view, with some advocacy of his case, unsurprising for a medical practitioner who has a law degree. Equally, the evidence of Associate Professor Croxson was noted for its insistence, indeed adamance of scientific rigour, as one would expect of a medical academic.
Some guidance, in my view, can be gleaned from the brief opinion expressed by Dr Charles Finlay-Jones. In his report of 18 January 2013, Dr Finlay-Jones said this:
"As the audiogram is more diminished in frequencies .5 kHz and 1 kHz, only frequencies 1.5 kHz to 4 kHz have been used to calculate the noise induced hearing loss..."
In other words, Dr Finlay-Jones said that hearing losses less than 1.5 kHz were not due to "noise induced hearing loss" and the inference to be drawn is that he would not accept that hearing losses above 4 kHz were also noise induced. He repeated that remark in his second report of 13 March 2013 which was addressed not to the defendant but to the administrator of the Police Superannuation Fund. Earlier in the second report, the doctor said this:
"His audiogram is consistent with a noise induced hearing loss in the high tones only. Tinnitus assessment level was 8 kHz at 40 dB on the right side, and 6 kHz at 45 dB on the left side."
Mr Ower urged upon me the opinion expressed in that quotation that noise induced hearing loss is in all of the high tones, but that is quite inconsistent with his excluding hearing losses above 4 kHz from his calculation of the noise induced hearing loss.
Like Dr Finlay-Jones, Dr Brian Williams in his first report said that there was a "pre-existing non work related injury or condition" representing 7.7% of his total binaural hearing impairment of 11.5%. That large part of the total binaural hearing impairment was due to "hearing losses below 2 kHz [being] not related to his occupational noise exposure". In his lengthy discussion of Associate Professor Croxson's opinion, Dr Williams said on p 8 this:
"Associate Professor Croxson acknowledges 6 kHz and 8 kHz can be affected by boilermakers deafness or deafness of like origin. I do not agree that boilermakers deafness does not affect the low tones of 250 hertz, .5 kHz and 1 kHz. It depends on the facts in each case. These frequencies are not in dispute in this matter".
When I pointed out to the doctor that that appeared to be somewhat inconsistent with what he had said in his first report, Dr Williams said that in the current case the losses below 1.5 kHz were not in the present case due to exposure to industrial noise. However, the fact remains that Dr Williams theoretically accepts that the whole range of hearing between .5 kHz and 8 kHz can be affected by boilermakers deafness or deafness of a like origin. That is something that Associate Professor Croxson would not accept.
It appears to be common ground that presbycusis that is, hearing loss due to the onset of age, generally assigned to those 50 years and over affects the very high ranges first, in particular 8 kHz. It would appear that both Associate Professor Croxson and Dr Finlay-Jones would not accept that losses above 4 kHz were due to exposure to occupational noise, although Dr Williams maintained they can be, and were in this case, because of the plaintiff's exposure to firearm noise. In his evidence, Associate Professor Croxson pointed to the elephant in the room. I generally take that as a reference to myself. However, in this case, that to which the Associate Professor was referring was the fact that Dr Finlay-Jones and Dr Williams, as well as himself, both accept that there is some pathological condition causing hearing loss in the range below 1.5 kHz. That can be given one of three names: it can be referred to as a mixed hearing loss; a hearing loss of unknown aetiology; or "hereditodegenerative deafness", the latter being the associate professor's diagnostic moniker. The Associate Professor conceded that it was a moniker, a term used by him and in literature to which he referred to describe a "grab bag" of unknown aetiologies at which medical science was "chipping away" slowly, to discover their cause. If I accept the opinions of Dr Finlay-Jones and Associate Professor Croxson, then I have a rather curious condition, a condition of unknown aetiology which causes deafness in the range below 1.5 kHz and deafness in the range above 4 kHz but spares, perhaps miraculously, the range between 1.5 kHz and 4 kHz. This miracle has occurred without the invocation of the prayer of St Francis de Sales, the patron saint of the deaf.
I find it impossible to accept that there can be an alternative condition which, whilst affecting the hearing below 1.5 kHz and affecting the hearing above 4 kHz, spares the hearing in between those two frequencies. This, I believe, is what was commonly done or is commonly done by medical boards/medical panels/approved medical specialists. They may, given the history of exposure to occupational noise, extract that loss of hearing within the range and ascribe it to occupational noise exposure and ignore the other hearing losses below 1.5 kHz and above 4 kHz. That is the elephant in the room.
Having listened closely to Dr Williams and Associate Professor Croxson, I prefer the evidence of the Associate Professor because of both his standing in his profession, his academic rigour and the fact that, in essence, Dr Finlay-Jones agrees with him, that losses below 1.5 kHz and above 4 kHz are unrelated to occupational noise exposure. Associate Professor Croxson annexed to his second report some epidemiological evidence. One is fig 7.2 from the work of R A Dobie, Medico-Legal Evaluation of Hearing Loss, published in 2001, a well-accepted and acknowledged medical text. Figure 7.2 shows the median noise induced permanent threshold shift in decibels for jute weavers with different durations of exposure as a function of frequency. That figure is, in fact, taken from an earlier source. That table shows five categories of workers with different years of exposure: the first group is of those who were exposed to occupational noise for one to two years; the second category is of those who were exposed to occupational noise for between five and nine years; the third category is of workers exposed to occupational noise between 15 and 19 years; the fourth category is of workers exposed to occupational noise between 25 and 29 years; the final category is of workers exposed to occupational noise between 35 and 39 years. In each category, there is a notching at 4 kHz and the graph then rises between 4 kHz and 8 kHz for each group. The study is, obviously, from the United States of America.
I would have thought, and I accept, that someone who is exposed to noise for between 35 and 39 years would have joined the workforce at the earliest at the age of 15. Therefore, the fifth category represents workers aged between 50 and 54 years at the youngest. If they joined the workforce at the age of 20, it represents exposure when the worker was aged between 55 and 59 years. The recovery of hearing above 4 kHz is the classic test for determining sensorineural deafness due to occupational noise. That was the thrust of Associate Professor Croxson's evidence on this issue. It was clearly accepted by Dr Charles Finlay Jones.
Each of the audiograms performed for the current plaintiff do not show that notch. Dr Williams believed that there was a relevant notch, but that notch has been effaced with the onset of presbycusis. However, the notch to which Dr Williams was referring was a notch not at 4 kHz but at 6 kHz. That is not the accepted way of determining occupationally induced hearing loss. Furthermore, the audiograms show variation, and it is impossible to see on any of the audiograms any notching at 4 kHz. Furthermore, Associate Professor Croxson was adamant that the notching at 4 kHz would not be effaced by presbycusis, and diagram 7.2 from Dobie's work, clearly does not show such effacement.
That the plaintiff has a hearing loss affecting the whole range of his hearing between .5 kHz and 8000 kHz is clear. There is no classic audiogram such that one would expect if the plaintiff's hearing loss were due to occupational noise exposure. Undoubtedly, there is some as yet undiagnosed condition, the condition of unknown aetiology, causing losses below 1.5 kHz and above 4 kHz. I find it impossible to accept that it would not also affect the range between 1.5 kHz and 4 kHz.
I accept that the plaintiff was exposed to noise sufficient to induce boilermakers deafness or deafness of a like origin, that occupationally induced hearing loss is a possibility. What I cannot accept is that it has been proved on the balance of probabilities. Dr Williams, himself, did not give me any evidence which could persuade me that the hearing loss between 1.5 kHz and 4 kHz could be explained in part by the condition of unknown aetiology and the condition known as boilermakers deafness. The condition of unknown aetiology could explain the whole of the plaintiff's deafness. The condition of boilermakers deafness could explain part only of part of the deafness.
The plaintiff, through his counsel, relied heavily on the presence of a temporary noise induced threshold shift which, with the passage of time, became longer before it went away. For example, merely relying upon what is contained in the plaintiff's report of 31 October 2012, the plaintiff said that initially as a licensing sergeant his headache and ringing in the ears due to noise would subside over the following day, but later, after he had been working for a longer period of time as the licensing sergeant, in particular in the eight years preceding October 2012 that is, from 2004 onwards it would take "a few days" for his headache and ringing in the ears to subside. The plaintiff confirmed that in his evidence and, indeed, it was given more graphically. However, that does not, in my view, assist, because if one postulates an ongoing condition of unknown aetiology being progressive and then it rather than the exposure to the noise could be prolonging the temporary threshold shift. Furthermore, the plaintiff indicated that he did recover from these temporary threshold shifts: that is, that his hearing returned to normal as far as he knew it, and that indicates that the threshold shift was only temporary and not permanent as far as the occupational noise was concerned.
Mr Ower for the plaintiff laid stress on the diagnosis certified by PSAC of "mild high frequency hearing loss and tinnitus" rather than just a mild hearing loss and tinnitus. But it is clear that that diagnosis was taken from the reports of Dr Finlay Jones prepared for both the defendant and the administrator of the Police Superannuation Fund, the latter of which was clearly made available to PSAC. That was the diagnosis offered by Dr Finlay Jones. I accept that I am bound by the certificate of PSAC. However, that does not prevent me from accepting the undoubted reality in this case that the plaintiff's hearing loss includes low frequency hearing loss, and such hearing loss is accepted by each of the three experts. Nothing, in my view, turns on the certification of PSAC in this case. Frequently, I have come across cases where the former member of the NSW Police never could be seen to have had a certified infirmity or, indeed, to be incapacitated by it. However, I am bound to accept such certification. However, certification does not mean that a plaintiff does not have other related conditions which might not be caused by his having been hurt on duty. At the end of the day, the plaintiff bears the onus of proving that the certified infirmity was caused by the plaintiff's having been hurt on duty. I cannot find on the evidence before me that that onus has been discharged.
Less the matter go further, and to make myself abundantly clear, I should say a number of other things. Firstly, I have no doubt of the reliability, accuracy and honesty of the evidence of the plaintiff. I accept entirely everything he told me. His evidence was given candidly, without any suggestion of exaggeration, and the plaintiff freely made admissions contrary to his interest and made no attempt to exaggerate in any way the extent of his exposure to noise. I note that using the terminology one may have done in the 1970s, that the medical examiner of the plaintiff on 31 October 1974 said this: "This is a good type and should do fairly well." I wholly accept that the plaintiff served the State, its people and its institutions to the best of his ability over his 36 years of service in the NSW Police. The assessment made by the medical practitioner on 31 October 1974 is, in my view, quite accurate.
The plaintiff was cross examined about his hobby of restoring motor cars. There were only two: each was a Mini Moke. I accept that the plaintiff's exposure to noise in that hobby was of no moment in the aetiology of his hearing loss. Contrary to what Associate Professor Croxson said, I accept that to suffer from occupationally induced hearing loss, one does not need to be constantly exposed to a high level of noise, eight hours a day five days a week for some 34 years. I accept that intermittent exposure can lead to occupationally induced hearing loss. Such was my finding in Bannon.
Indeed, when Associate Professor Croxson asked learned counsel for the plaintiff to produce some epidemiological evidence to support the proposition that intermittent exposure can lead to acquired sensorineural deafness, I sent for Dr Ballantyne's work of 1970 which I have caused to quote in earlier judgments which shows on p 210 an audiogram made of one of Britain's leading authorities on poliomyelitis, a medical practitioner, who for many years had been a "keen small-arms shot", his hobby. That showed a typical noise induced hearing loss, a notch at 4000 kHz, more marked in the left ear for a man who mounts the firearm on his right shoulder. Again, that gentleman was only exposed to noise in his hobby, not in his profession. That is good evidence that intermittent exposure can cause a noise induced hearing loss.
Furthermore, there is in this case one of the problems which arose in Brown. The plaintiff gave a history of increasing and only relatively recently noted hearing loss when he saw his general practitioner, Dr Singh, on 30 August 2014, some 15 months after the plaintiff had stopped working, and told Dr Singh that his condition was "slowly getting worse now". Dr Williams had a history of "a four year history of a bilateral gradually progressive hearing loss". However, the plaintiff also gave Dr Williams a history of "tinnitus since 2007". If the four year hearing loss were correct, that would mean the plaintiff only noticed a progressive hearing loss since 2010, although that is inconsistent with a complaint of tinnitus since 2007. I accept the general histories taken by Dr Finlay Jones and Associate Professor Croxson that the plaintiff noticed his hearing loss over a number of years, but the fact remains that it was progressively getting worse after the plaintiff stopped working, again pointing to a condition of "unknown aetiology" or perhaps merely to presbycusis.
The plaintiff relied upon the live authority stemming from Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538, more recently described in COP v Rea [2008] NSWCA 199, but, unfortunately, that principle does not help in this case because no direct evidence can be gleaned from the plaintiff's evidence as to the cause of his hearing loss, to differentiate between a hearing loss due to noise exposure at work and a hearing loss due to a condition of unknown aetiology. They can both behave in exactly the same way.
I have inquired of counsel for the plaintiff and the solicitor for the defendant whether any further reasons for judgment are required. I am told that none is so required. For those reasons, I confirm the decision of the Commissioner of Police made on 12 August 2013.
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Decision last updated: 21 July 2015