PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (Commission)

1. I am satisfied that the parties to the dispute understand the nature of the Application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
2. The parties attended a hearing on before me on 10 March 2026. At the hearing, the applicant was represented by Mr Williams of counsel instructed by Ms Denford. The respondent was represented by Mr Saul of counsel, instructed by Ms Beattie.

1. The following documents were in evidence before the Commission and considered in making this determination:

(a) Application to Resolve a Dispute (Application), and

(b) Reply and attachments.

1. There was no oral evidence called at the hearing.

Whether the applicant was engaged in noisy employment with the respondent

1. The applicant carries the onus of proving his employment was relevantly noisy. It is accepted that in cases where noisy employment is in issue, attention must be directed not to whether the employment engaged in by the worker actually caused the injury, but whether the "tendencies, incidents or characteristics" of that employment were of a type which could give rise to the injury in fact suffered: see Blayney Shire Council v Lobley Anor (1995) 12 NSWCCR 52 (Lobley).
2. When establishing whether the employment was to the nature of which the injury was due, the Court of Appeal in Lobley noted the relevant test "indicates the requirement of a claimant to bring evidence concerning the tendencies, incidents or characteristics of the nature of the employment engaged in at the time of giving notice.".
3. In Dawson and Others trading as The Real Cane Syndicate v Dawson [2008] NSWWCCPD 35 (Dawson), Deputy President Roche noted it is not necessary for parties to call acoustic evidence as to the levels of noise exposure; however, in certain instances such evidence may be helpful. The authorities make it clear that in certain circumstances, the evidence of the applicant themselves may be sufficient to establish employment as being noisy.
4. In his statement, the applicant described the nature of his duties as follows:

"11. I commenced employment with Campbeltown City Council in 2003.

1. My duties included mainly being out on the street alongside moving traffic.
2. I was exposed to noises throughout my entire employment with Campbeltown City Council, that being approximately 14 years.
3. The exposure to noise included constant traffic, including cars, buses, trucks, and motorbikes moving past in close vicinity and increasing speeds.
4. I would be exposed to loud horns, sirens, and engines at extremely close range.
5. The noises I was exposed to were so loud it would require me to raise my voice to speak with someone standing next to me.
6. The main areas I was required to work was on Queen Street in Campbeltown which is where majority of the loud noises were.
7. The noises were often unbearable, and I was provided with no ear protection.
8. Over time, my hearing continued to decline.
9. I tried hearing aids for a short period of time, but they were not very helpful.
10. I would sometimes work overtime which increased the hours I was exposed to the loud, noisy environment."
11. As Mr Saul noted, it is not enough for a worker to merely assert their employment was noisy, rather the nature, intensity and extent of the noise must be the subject of some evidence.
12. There is no issue the applicant was exposed to some noise in the course of his employment, however, as the respondent noted, the applicant was outdoors when exposed to it and was not working in a confined noisy space.
13. In support of his claim, the applicant relied on the opinion of Dr Tamhane, independent medical examiner (IME). Dr Tamhane provided two reports, dated 15 July 2024 and 27 September 2025 respectively. In his first report, Dr Tamhane took the following relevant history of employment:

"In 1990, Mr Neaves joined the NSW Police Force as a special constable. He was required to attend initial defensive tactics training including firearm training and mandatory competency training each year thereafter. He was involved in parking patrol working in the Sydney CBD. This was followed by employment as a community patrol officer with Leichhardt Council from 2001 until 2003, and then as a Ranger Parking Specialist with Campbelltown City Council until 2017. He reported while working as a special constable, parking officer and Ranger Parking Specialist, he worked mainly out on the street alongside moving traffic. He was exposed to the noise of the constant traffic, including cars, buses, trucks and motorbikes, moving past in close vicinity and to the intermittent noise of loud horns."

1. Having undertaken an examination and considered an audiological assessment, Dr Tamhane provided the following opinion:

"Based on the history that I have obtained from Mr Neaves, the fact that he has worked for approximately 27 years employed in various employments and with different employers where he has been exposed to loud noise of more than 85 decibels, the fact that he has not worn ear protection, the fact that he has been employed on a full-time basis with additional hours and shifts worked in overtime as required, it is my opinion that the tendencies, incidents and/or characteristics of Mr Neaves' employment, on the balance of probabilities gave rise to a real risk of boilermakers deafness or deafness of a similar origin.

Mr Neaves' last noisy employer was Campbeltown City Council."

1. In his second report, Dr Tamhane was specifically asked whether the applicant has suffered hearing loss by reason of exposure to noisy workplace environments. It was common ground in these proceedings that the baseline level for noisy employment is exposure to noise above 85dB on average for eight hours per day. Neither counsel took issue with that baseline measure being a relevant point at which noise levels become potentially damaging. Each of the IMEs noted that level of exposure as a precursor to a finding of noisy employment. As Dr Tamhane himself noted in his second report:

"Loud noise above 85dB can be damaging to the ears over a period of eight hours a day, with every 3dB rise in noise level, the duration is halved. The buses and trucks passing across the traffic lights and/or intersection can expose a person waiting to cross the road to noise levels of 95dB or over. Mr Neaves on the balance of probability, would have been exposed to such noise on an intermittent basis during his working day."

1. The respondent took no issue with the applicant having been exposed intermittently to noise generated by trucks, buses, other heavy vehicles and motorcycles from time to time in the course of his employment. In opposing the claim, the respondent relied on the report of Dr Harrison, IME dated 28 October 2024. In that report, Dr Harrison took the following history of injury and current symptoms:

"He has had trouble hearing for 20 or so years and the ears appear about equally affected. He needs the television turned up at home about which his family complains. He has trouble hearing and understanding people including family, friends and other persons and has to ask them to repeat themselves. The hearing is worse in group conversations and background noise which makes him avoid noisy places if possible. He also has ringing noises in the ears from time to time which irritate him, can interfere with his concentration, and can interfere with the onset of sleep. From the description given, I consider the tinnitus to be severe."

1. Dr Harrison then took the following relevant employment history from the applicant:

"He worked for the respondent from 2003 until 2017 as a parking ranger specialist. He said that the word specialist was added to his job description because occasionally he would have to fill in for other employees and deal with non-parking related duties. This would be for a total of two weeks a year. As a parking ranger, he was exposed to loud noise for about one and a half hours a day in a busy car park. He said that the noise was such that he would have to raise his voice for someone with normal hearing to understand him at a distance of about one metre. For the rest of his seven and a half hours working day, he was exposed to loud noise from traffic passing while he did his duties and that the noise was again such that he would have to raise his voice for someone to understand him at a distance of about one metre. This suggests that over an eight-hour working day the noise had the potential to damage hearing. Much of his noise exposure was on Queen Street, Campbelltown. Hearing protection was not used".

1. After carrying out an examination and considering an audiometric investigation, Dr Harrison provided the following opinion and diagnosis:

"From the history that I obtained it could be concluded that the worker is suffering from at least some noise induced occupational deafness despite the characteristics of the audiogram being quite inconsistent with this diagnosis with the extreme involvement of the frequencies 1500 cps and above with a flat profile in those frequencies.

However, my knowledge of traffic noise as described is that it is not sufficiently noisy to damage hearing. I have measured traffic noise along busy roads, and it usually fluctuates between 70 and 80dBs with the occasional fluctuation above 80dBs but rarely to above 85dBs and this only momentarily. To damage hearing requires exposure to noise of 85dBs or more continually over an eight-hour period and I do not believe that the worker has been subject to this type of noise. His work as a ward worker in hospital has not exposed him to that type of noise and I do not believe that his work as an apprentice chef did so either. Hence, I have reached the conclusion that all of his hearing loss is due to an unknown cause or causes probably at least partially constitutional. Therefore, there is 0% BHI of noise-induced hearing loss. Under these circumstances, no deduction for presbycusis is appropriate and no allowance for severe tinnitus is possible."

1. As previously noted, the quoted passages from each of the IMEs accept the proposition that exposure to noise of 85dB and above for a period of eight hours per day on average is necessary to cause hearing damage.
2. As Mr Saul noted, Dr Harrison had the benefit of the applicant's job description provided by the respondent, which Dr Tamhane appears not to have seen. That job description noted several key duties and responsibilities, and whilst many of those involved parking patrols, not all of them did.
3. For example, the applicant's role also involved preparing correspondence in the form of reports, memos, notices, orders and letters as necessary; investigating the abandonment of motor vehicles and other property left unattended on reserves, roads and other public places under the care, control and management of the respondent; investigating incidents of rubbish dumping in reserves, roads and other public places under the control of the respondent and investigating footpath and roadway obstructions and to take action to cause those obstructions to be removed.
4. The fact the applicant was periodically and intermittently exposed to noise is not in contention. Indeed, the factual matrix within which this matter is contested is largely agreed.
5. It is, as previously stated, the applicant's onus to prove exposure in employment to the nature of which his injury is due. The medical evidence in the matter reveals the baseline for such employment to cause damage to the applicant's hearing is exposure of greater than 85dB for periods of eight hours per day, with the required time of exposure halving for each additional three decibels of noise to which the worker is exposed.
6. Having regard to the totality of the evidence in this matter, I am not satisfied the applicant has discharged his onus of proof. It is common knowledge that the noise generated by traffic will fluctuate depending on the nature of the vehicles passing an observer in the position of the applicant, the speed at which they are travelling, the number of such vehicles and whether they are accelerating or decelerating. The applicant does not contend there was a constant stream of heavy vehicles in the nature of buses, trucks or noisy vehicles such as motorcycles. I have no difficulty accepting the applicant's evidence that the areas which he was forced to trail were busy, and that traffic was often heavy.
7. However, this does not of itself prove exposure to noise at a sufficient level to establish noisy employment. Dr Tamhane's opinion suffers from not having the benefit of the applicant's job description and also contains a relevant but perfectly appropriate concession that the applicant would be exposed to the noise of heavy traffic on a "intermittent basis during his working day".
8. As Mr Saul noted, such exposure was not constant and took place in the outdoors, rather than a confined environment. Additionally, Dr Harrison notes he has measured noise levels in heavy traffic areas and found them to rarely exceed 85 decibels. That contention by Dr Harrison is not contested by any expert evidence on the part of the applicant. It therefore is, in my view, entitled to be accepted.
9. This being so, I prefer the views of Dr Harrison to those of Dr Tamhane and am not satisfied on the balance of probabilities that the applicant has established exposure to noisy employment whilst working with the respondent. This being the case, there will be an award for the respondent in this matter.
10. A dispute also arose as to the interpretation of the audiometry testing in the matter, and the frequencies at which impairment was noted. For his part, Dr Harrison asserted the nature of the impairment was such that it was not consistent with boilermakers' deafness, or deafness of a similar origin. Dr Tamhane asserted to the contrary.
11. On balance, I again prefer the views of Dr Harrison, noting his findings on examination and on the investigation of the audiometry results are more consistent than those of Dr Tamhane on the face of the very readings which were taken.
12. However, in my view, the discrepancy in the interpretation of the audiometry findings is not the decisive issue in the case. Having found a lack of noisy employment, it would not matter if the findings on investigation were perfectly consistent with industrial deafness, as I have found such impairment would not be caused by the employment of the applicant with the respondent owing to the nature of the noise to which the former was exposed during the course of that employment.

1. For the above reasons, the Commission will make the findings and orders set out on page 1 of the Certificate of Determination