Pereira v Siemens Ltd

Supreme Court of NSW|2015-07-31|Before: Garling J

Judgment

On 24 April 2015, Mr Leslie Oswald Gerald Pereira ("the plaintiff") commenced proceedings against Siemens Ltd ("the employer") as the first defendant, the Registrar of the Workers Compensation Commission of NSW as the second defendant, and the Medical Panel of the Workers Compensation Commission as the third defendant.
The second and third defendants have filed submitting appearances and have taken no active part in the proceedings.

Relief Sought

The plaintiff claimed the following relief: "1. A declaration pursuant to s 69 of the Supreme Court Act 1970 (NSW) that the Certificate and Statement of Reasons issued by the second defendant, constituted by the third defendant, on 28 January 2015, is void and of no effect. 2. An order setting aside the Certificate and Statement of Reasons issued by the second defendant, constituted by the third defendant, on 28 January 2015. 3. An order remitting the matter back to the second defendant for referral to a different Medical Appeal panel to determine the dispute according to law. 4. Such further or other order as this honourable Court deems necessary to give effect to the plaintiff's claim in the nature of judicial review. 5 Costs."

Claim in the Workers Compensation Commission

On 5 March 2013, the plaintiff lodged a Notice of Claim with the employer, claiming compensation for a loss of hearing. The claim was made in a letter sent by the solicitors for the plaintiff to the employer. It made a claim for a lump sum pursuant to s 66 Workers Compensation Act 1987 ("the 1987 Act"), in respect of a 38.6% binaural loss of hearing. The claim asserted that such a loss of hearing equated to a 19% whole person impairment.
In addition, the plaintiff's solicitors also made a claim for the cost of supply and fitting of hearing aids.
The Notice of Injury which accompanied the Notice of Claim was on a pro forma which made reference to s 17 of the 1987 Act, gave particulars of the plaintiff and of his employment. The pro forma was headed "Industrial Deafness - Notice of Injury". The claim was accompanied by an expert report from Dr Joseph Scoppa dated 28 February 2013.
In his report, Dr Scoppa provided a history of the plaintiff's industrial deafness. He said that plaintiff had told him that he had had difficulty hearing for about six years. The plaintiff gave a history of bilateral constant high pitched ringing and buzzing tinnitus for about six years. Dr Scoppa reported that the plaintiff gave no history of head or ear injury, no history of ear infection or history of ear surgery.
Insofar as the plaintiff's employment history was concerned, Dr Scoppa's report recorded this: "Employment history Siemens Australia Ltd for the last 32 years as a production planner. He works in a factory where machines for water treatment are manufactured. He is exposed to a lot of workshop noise, hammering and grinding and metalwork and also noise from air tools. He is always around the machines and works 8-9 hours a day with ear protection. He said that the noise level was such that he had to raise his voice in order to communicate with a person standing about a metre away. This has been his only employment in Australia. Before then he lived in Pakistan where he worked in heavy industry for 18 years as a mechanical fitter and production engineer, and was exposed to noise from metalwork, foundry noise, blacksmith shop noise and hammering and grinding. He used ear protection intermittently. He has worked in noisy employment for about 50 years."
Attached to Dr Scoppa's report was a printout of the audiogram and air conduction tests carried out by Dr Scoppa.
On 15 March 2013, Allianz Australia (Workers Compensation) NSW Ltd ("Allianz") sent a letter to the employer which it insured advising that it had received a notification of injury. The date of injury was recorded as 05/02/2013. The date is curious, but probably unimportant. After all, the letter from the plaintiff's lawyers was 5 March 2013, not 5 February 2013. Later material suggests that the date of injury was regarded accurately as being 5 March 2013.
On 23 April 2013, Allianz wrote to the plaintiff's lawyers confirming the receipt of the plaintiff's claim, and advising that the claim for permanent impairment compensation under s 66 had been denied. The denial was based upon an assessment made of the plaintiff's loss of hearing by Dr Paul Niall, who assessed the binaural hearing impairment at 13.5% and the whole person impairment at 7%. This percentage fell below the compensable threshold.
Allianz attached the report of Dr Paul Niall, which was dated 12 April 2013. Dr Niall's report recorded the "notional date of injury" as "5-02-2013".
Under "Occupational Noise Exposure and Employment History", Dr Niall recorded the following: "● Production Planner employed by Siemens Australia Ltd and antecedent employers for 32 years exposed to noise from hammering, grinding, air tools, lathes, milling machines, pneumatic spanners and forklifts. ● Production Engineer in Pakistan for 17 years exposed to similar noise. At Siemens Australia Ltd an ordinary shift lasted 8 hours, over 5 days per week, most of which was regarded as noisy. On the information available it appears that there has been exposure to occupational noise of a duration and average intensity likely to be hazardous to hearing. No history of noisy hobbies was given. No history was given of military service. Other history of loud noise exposure at work (including other noisy jobs) or elsewhere was strongly denied. Hearing protection devices were used intermittently in later employment. No relevant noise survey was available for assessment."
Dr Niall reported that the plaintiff's presenting complaint was a gradual worsening of hearing loss over about five years. He also obtained a six year history of bilateral continuous maskable tinnitus.
Dr Niall expressed the following conclusions: "Behavioural pure tone audiometric thresholds reported by Dr Scoppa were generally at a somewhat less sensitive levels than those established as thresholds of hearing in testing for this report. Noting the history of 17 years of similar noise exposure (until the age of approximately 35 years) outside the jurisdiction of NSW and that (in percentage terms) the decline of hearing in these circumstances is an approximately linear function of exposure time, a fraction of 17/ (17 + 32) has been excluded from the hearing assessment on a before presbyacusis basis."
In light of the fact that the plaintiff's claim had been declined, on 28 May 2013, the plaintiff made an Application to the Workers Compensation Commission ("the Commission") to Resolve a Dispute. He maintained his claim for medical expenses by way of the cost of bilateral hearing aids, and also for lump sum compensation. In that application form, the date of injury was recorded as: "5 March 2013 (notional)".
The application was accompanied by various of the documents to which I have earlier made reference. It also included an undated statement by the plaintiff and made provision for a "supplementary statement", which was not actually supplied.
On 17 June 2013, Allianz, on behalf of the employer, filed a Reply to the Application to Resolve the Dispute. In that pro forma, it confirmed its Dispute Notice and added into it "liability issues not raised in the application to resolve the dispute".
Those liability issues included a statement which said this: "Injury 1. In accordance with s 289A of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) 1.1 The Respondent submits that the Applicant did not suffer a personal injury as alleged or at all, and relies upon Section 4 of both the Workers Compensation Act 1987 (1987 Act) and 1998 Act in this regard. … 1.4 The Respondent disputes that the Applicant's employment with it has resulted in the Applicant's hearing loss (if any). 1.5 The Respondent submits that the Applicant's hearing loss has been caused by pre-existing conditions, and not as a result of his employment with it. 1.6 The Respondent disputes that it was a noisy employer pursuant to Section 17 of the 1987 Act."
Attached to the Reply was an Occupational Noise Assessment dated 2 May 2013, upon which the employer relied to show that it was not a "noisy employer". It is convenient to observe here that the phrase "noisy employer" is not mentioned in s 17 of the 1987 Act. It is nowhere defined in the Act. It is not a concept which has any legislative basis.
Also attached to the Reply was an expert report of Day Design Pty Ltd, with respect to the plaintiff's occupational noise exposure during his employment with the employer. That report referred to various instrumentation used in the course of its testing, and included the following statements: "Noise exposure levels vary with time and location of the worker. To allow for these fluctuations the energy average or 'equivalent continuous noise level' … was measured in accordance with the procedures of AS/NZS 1269.1:2005. The period of measurement in each case was sufficient to cover a number of complete duty cycles performed by the claimant during normal work practices. This was to ensure the level recorded was typical for that normally encountered in the workplace. All measurements were made approximately 100-200mm from the worker's ear receiving the higher noise level, or an equivalent location, using the direct digital readout facility of the sound level meter. … … Noise levels were measured to check compliance with the current impact noise limit of 140dBC as specified in the NSW Work Health & Safety Regulation 2011, which came into effect on 1 January 2012."
Further on in the report, the following appears: "Our investigation of occupational noise levels shows that Mr Leslie Pereira was subject to an average Normalised Daily Noise Exposure Level of not more than 80dBA, with … impact noise levels typically not more than 125dBC, during 32 years of employment with Siemens Ltd."
The report also included this assertion: "Impact noise levels of 95-125dBC were measured … Such levels are below the safe legislated limit of 140dBC, and so hearing impairment would not normally occur."
The report expressed the conclusion that the employer was not a "noisy employer".
The solicitors for the plaintiff lodged a second report of Dr Scoppa dated 15 December 2013 with the Commission. A copy was served on the solicitors for the employer. It was intended to refer to the position of the employer, with respect to whether the plaintiff's employment with the employer was causative of his industrial deafness. This second report referred to the statement of the plaintiff of 12 November 2013, which comprised a reasonably comprehensive description of his work over the years with the employer.
This second report of Dr Scoppa included the following statements: "(ii) Obviously an assessment of whether occupational noise is such that it is capable of causing industrial deafness depends on many factors including the following: (a) the type of noise (whether impact or steady state etc) (b) the frequency characteristics of the noise (c) the intensity or sound level of the noise (d) the duration of noise exposure throughout a working day (e) the individual susceptibility of the worker to developing industrial deafness. (iii) It is clearly impractical to assess all of these factors in any situation when one is assessing past noise exposure, however, my understanding is that it is generally accepted in the medical literature that a worker will probably only develop industrial deafness if he or she is exposed to a noise level above 85dBA over an 8 hour working day, or its equivalent. This generally accepted 'safe level' of occupational noise exposure is also noted in the WorkCover Noise (Health and Safety) Regulation 2001. This regulation states that: 'An employer must ensure that no person is exposed to noise levels that: (a) exceed an 8 hour noise level equivalent of 85 dB (A) or (b) peak at more than 140Db (C)' (iv) I know of no objective method of determining the actual noise levels to which Mr Pereira was exposed during his total period of employment with Siemens Limited, as of course it is impossible to reproduce a past work environment."
Towards the conclusion of his report, Dr Scoppa makes some general remarks with respect to the noise survey which was undertaken by Day Design. He says: "This Noise Survey in my opinion demonstrates the difficulty in proving that a workplace is or is not noisy on the basis of a Noise Survey, because by its very nature a Noise Survey cannot measure past events, and can only measure the conditions at the time of investigation. Furthermore noise surveys usually measure noise for a relatively short period of a working day (as in this instance), and therefore the time of day when the survey is carried out may not be truly representative of a worker's daily noise exposure. Clearly such a noise survey cannot take into account variables such as age of machinery, replacement of old machinery, addition of new machinery, instances of machine malfunction, location of the workplace, changes to the physical layout or relocation of the workplace, changes to the physical layout or relocation of the workplace, the number of other employees who also operate noisy machinery, other sources of concurrent noise, the quality and effectiveness of any ear protection, and the effect of extended work shifts on the Daily Noise Dose ..."
Because at that time there was a dispute as to whether the employment of the plaintiff by the employer was capable of giving rise to industrial deafness, in accordance with the usual procedures in the Commission, the matter was referred for a telephone conference before an Arbitrator.
The conference took place on 20 February 2014. Consent orders were made, which were recorded by the Arbitrator in the following terms: "… the determination of the Commission in this matter is as follows: 1. Remit the matter to the Registrar for referral to an approved medical specialist to certify the degree, if any, of whole person impairment as a result of industrial deafness which notionally occurred on 5 March 2013 as a consequence of the applicant's employment prior to that date. 2. Parties request the approved medical specialist to express an opinion as to whether hearing aids are reasonably necessary as a result of industrial deafness. 3. Approved medical specialist to have access to the Application, the Reply, the Applications to Admit Late Documents and the documents attached to each."
The effect of these orders was that there was no longer any issue about whether the noise to which the plaintiff was exposed whilst working for the employer was of a nature capable of leading to a loss of hearing.
The Commission appointed Dr Robert J Payten as the Approved Medical Specialist ("AMS").

Medical Assessment Certificate of the AMS

The AMS produced a Medical Assessment Certificate on 8 May 2014.
There were two matters referred to the AMS for assessment pursuant to s 319 of the Workplace Injury Management and Workers Compensation Act 1988 ("the 1998 Act"). They were the nature and extent of hearing loss suffered by the plaintiff and whether hearing aids were reasonably necessary.
The AMS certified that hearing aids were reasonably necessary. There is no dispute about this certification.
With respect to the hearing loss issue, the AMS set out his finding as follows: "Mr Pereira, while employed by Siemens Pty Ltd, and while doing previous noisy work, has suffered a noise-induced sensorineural hearing loss and moderate tinnitus. This has caused a whole person impairment of 7%."
The AMS explained how that figure was reached. Shortly put, after adjustments for inconsistent hearing loss between the right and left ear, the AMS adjusted the hearing loss to reflect an equal apportionment of the hearing loss by reference to the number of years the plaintiff had been employed both in Pakistan (17 years) and in Australia (32 years). He concluded that the 17 years of the plaintiff's working life spent in Pakistan amounted to 34% of his whole working life, and so he deducted 34% of the binaural hearing loss which he had found.
He expressed his reasoning in this concise way: "I have calculated the binaural hearing impairment for all of the frequencies from 500 through to 4,000 Kz on account of his 50 year history of noise exposure during his working life. However, 17 years of his working life were spent in Pakistan, which is 34% of his working life. Although the level of noise during that 17 years may not have been as loud as the noise he was exposed to in Australia, he did not have the benefit of wearing ear protection which was worn in Australia for the past 10 years inconsistently and consistently for the past few years."
The AMS obtained the following history with respect to the onset of symptoms: "Mr Pereira first noticed hearing loss approximately 10 years ago. It has become worse since that time and he now finds that the television is up louder than is comfortable for others. He finds it difficult to hear conversation, especially at meetings at work. At home, if he is not facing his wife, he finds it necessary to often ask her to repeat what she said. He finds it difficult to hear conversation in groups of people, or in noise places such as in restaurants."
The AMS noted, and there is no challenge to this, that there was nothing in the plaintiff's past history to suggest that the deafness was due to any factor other than work-related noise exposure.
In respect of his previous work history, the AMS gave the following description: "He came to Australia in 1980 from Pakistan. He began work in 1981 and has remained in the same job ever since, with several different owners, the current owner now being Siemens. In those 33 years he has been exposed to a lot of noise in his employment, especially when the business was located in Artarmon for the first 18 years of his employment. There, he wore foam rubber ear plugs only occasionally. As a fitter, he was exposed to a lot of workshop noise. About 15 years ago, the factory moved to Windsor and the noise was less-loud than previously but still loud enough to make it necessary to raise the voice to be heard at one metre. He has worn ear protection fairly regularly in the past 10 years. Prior to coming to Australia, he worked for 17 years as a fitter in Pakistan and was exposed to workshop noise from hammering steel, from drills and from angle grinding. His total working life has been 50 years to date. The 17 years spent in Pakistan equals 34% of the total of 50 years. Although the noise may not have been as loud in the workshop in Pakistan, he did not ever wear ear protection for that 17 year period."
The AMS certified that the plaintiff's whole person impairment was 7%. The effect of this certification is that the plaintiff is not entitled to an award of lump sum compensation under s 66 of the 1987 Act.

Appeal against Decision of the AMS

On 6 June 2014, the plaintiff lodged an Application to Appeal against the decision of the AMS.
The grounds of appeal claimed that the assessment of the AMS was made on the basis of incorrect criteria, and that the Medical Assessment Certificate contained a demonstrable error.
The Application to Appeal was accompanied by three pages of written submissions.
The employer filed a Notice of Opposition to the Appeal. The Notice of Opposition conceded that there had been a minor typographical error in the calculation of the AMS. It conceded that the whole person impairment should have been 8% and not 7%. Otherwise, the employer contended that there was no other demonstrable error.
The appeal was referred to a Medical Appeal Panel ("the Appeal Panel") on 15 July 2014.

Decision of Appeal Panel

The Appeal Panel comprised an arbitrator and two approved medical specialists. It made its decision on 28 January 2015.
The Appeal Panel noted that there was no material provided to it in addition to that which was before the AMS.
The Appeal Panel, in its reasons, turned to the ground of appeal which dealt with the misapplication of s 323 of the 1998 Act dealing with a deduction for pre-existing injury or conditions. It recorded the submissions of the parties. It then recorded various parts of the AMS report. It expressed its conclusion in this way: "39. There is no difficulty in understanding the basis of the deduction by the AMS given the clear explanation he provides for it. It is the same approach taken by Dr Niall. That the history on the extent of hearing protection in Pakistan taken by Dr Scoppa differs to that taken by the AMS is of no consequence. The history taken and reported by the AMS is unequivocal. 40. The Panel notes that the time at which symptoms of hearing loss are first noticed is not of key importance. With hearing loss the damage can occur without symptoms being noticed for a long period. The nature of long-term industrial deafness is different to other more overt injuries, with the nature and duration of exposure to industrial noise a key indicator of damage over time. That there were no symptoms noticed by the worker until 6-10 years prior to the AMS assessment does not mean there was no loss of hearing, or that the extent of that damage in the current impairment is difficult to ascertain. 41. Theo Hulst had a different history to the circumstances in this matter. Mr Hulst had a mixture of noisy and non-noisy employment in the period before he worked in NSW, whereas Mr Pereira was employed continuously in Pakistan for some 17 years in employment of the same nature and intensity he was employed in when he came to NSW. As the respondent to the appeal submits, each case must be considered on its own circumstances. 42. The evidence here is of greater loss than 10 per cent, and that it can be satisfactorily calculated has been demonstrated by the AMS and also by Dr Niall. The AMS has very carefully taken account of the history, including the exposure in Pakistan and in NSW. The method used by the AMS in the circumstances of this particular case is entirely appropriate. It will not always be that the direct proportion of time in employment outside the jurisdiction is the proper basis for calculating the s 323 deduction (as it was not in Theo Hulst), but in this matter it is highly apt."
The Appeal Panel dismissed the appeal, and issued a certificate which recorded the plaintiff's whole person impairment at 8%. In so doing, the Appeal Panel followed precisely the same reasoning process as the AMS with respect to the noise exposure in Pakistan. It reasoned that that noise exposure was 34% of the plaintiff's working life and, accordingly, a proportionate deduction ought to be, and was, made.

Relevant Legislation

It is convenient before considering the submissions of the parties, to set out the relevant legislation.
The Workers Compensation Act 1987 contains a particular provision which relates to loss of hearing. Section 17, relevantly, is as follows: "17. Loss of hearing - special provisions (1) If an injury is a loss, or further loss, of hearing which is of such a nature as to be caused by a gradual process, the following provisions have effect: (a) for the purposes of this Act, the injury shall be deemed to have happened: (i) where the worker was, at the time when he or she gave notice of the injury, employed in an employment to the nature of which the injury was due - at the time when the notice was given, or (ii) where the worker was no so employed at the time when he or she gave notice of the injury - on the last day on which the worker was employed in an employment to the nature of which the injury was due before he or she gave the notice, … (c) compensation is payable by: (i) where the worker was employed by an employer in an employment to the nature of which the injury was due at the time he or she gave notice of the injury - that employer, or (ii) where the worker was no so employed, the last employer by whom the worker was employed in an employment to the nature of which the injury was due before he or she gave the notice. … (2) Without limiting the generality of subsection (1), the condition known as 'boilermakers deafness' and any deafness of a similar origin shall, for the purposes of that subsection be deemed to be losses of hearing which are of such a nature as to be caused by a gradual process."
Other statutory provisions which have relevance are to be found in the 1998 Act.
In particular, s 323 is relevant. It is in the following form: "323 Deduction for previous injury or pre-existing condition or abnormality (1) In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality. (2) If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence. (3 The reference in subsection (2) to medical evidence is a reference to medical evidence accepted or preferred by the approved medical specialist in connection with the medical assessment of the matter. (4) The WorkCover Guidelines may make provision for or with respect to the determination of the deduction required by this section." (Omitting notes)
It is to be observed that s 323(4) of the 1998 Act refers to the WorkCover Guidelines.
The WorkCover Guidelines contain a section dealing with s 323. That section is as follows: "Deductions for pre-existing condition or injury 1.50 The degree of permanent impairment resulting from pre-existing impairments should not be included within the degree of permanent impairment determined by an assessor if those impairments are unrelated or not relevant to the impairment arising from the relevant work injury. 1.51 In assessing the degree of permanent impairment resulting from the work injury, the assessor is to indicate the degree of impairment due to any previous injury, pre-existing condition or abnormality. This proportion is known as 'the deductible proportion'. The deductible proportion should be deducted from the degree of permanent impairment determined by the assessor. 1.52 For the injury being assessed, the deduction is one tenth of the assessed impairment, unless this is at odds with the available evidence."

Plaintiff's Submissions

The plaintiff submitted that although seven separate categories of error were nominated in the Summons, they fell into two essential errors. The first error contended for was that the methodology of a direct proportion of time in employment outside NSW, compared with time worked in NSW, in the circumstances of this case, was not an appropriate basis for calculating the s 323 deduction.
The second error which was relied upon was that there was no evidence, or no probative evidence, that there was any previous injury or condition or abnormality which fell for consideration by way of apportionment pursuant to s 323 of the 1998 Act.
It was alternatively put that if there was such evidence, the only deduction which could have been made was that deduction of 10% to which reference is made in s 323(2) of the 1998 Act.
The plaintiff's submissions centered upon the proposition that taking the material descriptions about the plaintiff's work in Pakistan in full, there was no basis for a factual finding that any component part of the plaintiff's loss of hearing could be attributable to his work in Pakistan. The plaintiff pointed to the material before the Court which indicated that before a loss of hearing could be attributable to a noisy workplace, it was necessary to establish the nature and intensity of the noise, the type of noise, and the length of exposure of the individual to the noise. In other words, the plaintiff put that the identification of a workplace as being of a kind which might give rise to a loss of hearing, was a matter of intense factual investigation, which had not been undertaken in this case.
The plaintiff submitted that the mere statements of history made to Dr Scoppa and Dr Niall, which were available to the AMS, and such history as the AMS himself took, were not sufficient in combination to enable any deduction to be made for loss of hearing attributable to the plaintiff's work in Pakistan.

Defendant's Submissions

The defendant submits that there was no error by the Appeal Panel in the application of s 323 of the 1998 Act.
The defendant specifically noted that s 17 of the 1998 Act: "… proceeds on a number of fictions or assumptions, … resulting in the injury to be taken as happening: as it were, all in one blow."
The defendant submitted that it does not matter whether the pre‑existing condition has or has not been symptomatic. If the Appeal Panel was satisfied that there was a pre-existing injury, abnormality or condition which contributed to the permanent impairment, then the legislation obliged a deduction to be made.
With respect to the finding of fact dealing with the noise exposure in Pakistan, the defendant submits that in circumstances where the nature and extent of the noise exposure in Pakistan is a matter of fact within the knowledge of the plaintiff as opposed to the employer, and where the plaintiff did not give any description in detail of that noise exposure in the statements which were put before the AMS and the Appeal Panel, it is not now open to the plaintiff to complain that the extent and interpretation of the histories as given to the medical experts were insufficient to enable them to effectively carry out their task determining the extent of a pre-existing injury or condition.
The defendant then draws attention to the histories provided, to which I have referred above, and submits that they were adequate to enable the relevant findings to be made.
In particular, the defendant pointed to the record of Dr Niall who noted "similar noise exposure" in Pakistan to that in NSW.
With respect to the 10% deduction contained in s 323(2) of the 1998 Act, the defendant submitted that before such deduction could be applied, there must have been a finding that it would be difficult or costly to determine the extent of the deductible proportion. Here, the employer submitted that there was no such finding. It also submitted that it was obvious on the face of the opinion of the Appeal Panel (and the AMS) that their determination of the deductible proportion was neither costly nor difficult.

Discernment

It is convenient to commence with remarks about s 17 of the 1987 Act. It has been set out above at [54]. The 1987 Act is intended to provide compensation for workers who receive injuries whilst at work.
The prime operative provision is s 9 which provides that a worker who has received an injury shall receive compensation from the worker's employer in respect of employment which is connected with NSW. It does not matter whether the worker was injured in NSW so long as the employment is connected with the State.
Section 9A provides that no compensation is payable in respect of an injury, leaving aside a disease, unless the relevant employment was a substantial contributing factor to the injury. These provisions are contained within Part 2 of the Act, as is s 17.
Section 15 deals with diseases of gradual process. Section 16 deals with an aggravation of a disease. Section 17 deals with loss of hearing and, as is to be observed, is described as a "Special Provision".
As Kirby P said in Blayney Shire Council v Lobley (1995) 12 NSWCCR 52 at 55, there is an element of artificiality in the section. The injury is deemed to have happened at an arbitrary time, namely when the notice of injury is given. The injury is assigned to the employer at the time. But that is only effective if that employer employed the worker in employment "… the nature of which …" the injury was due. His Honour noted the beneficial purposes of such arbitrary elements.
It is not immediately obvious that, although the injury is deemed to have happened on a particular day, the injury of which deafness is both the symptom and the resultant impairment was caused by anything other than a gradual process. It is not a particular injury which can be fixed by date, time and place.
On the contrary, the purpose of s 17, and its effect, is to relieve a worker of any obligation to identify and prove with precision when the injury occurred, where it occurred, or how it occurred. Rather, for the purposes of compensation for employees in NSW, the legislation deems an injury to have happened at an identified time.
The second matter to observe about s 17, is that generally a worker claiming compensation under the 1987 Act has to demonstrate that the employment concerned was a substantial contributing factor. For a successful claim for industrial deafness, by virtue of the provisions of s 17, it is sufficient for a worker to establish that the employment in which he or she was engaged occurred in an environment which, were he unprotected, could cause injury of the type suffered by him. Attention is directed not to whether the employment engaged in at the time the claim was lodged actually caused the loss of hearing, but rather whether the "tendencies, incidents or characteristics" of that employment were of a type which could give rise to the injury in fact suffered: see Lobley at 58-61 per Cole JA, Smith v Mann (1932) 47 CLR 426 at 448 per Dickson J; Tame v Commonwealth Collieries Pty Ltd (1947) 47 SR (NSW) 269 at 272 per Jordan CJ.
Where the phrase "could" is used in Lobley, it means "could as a matter of real risk", and not "could as a matter of the barest possibility": Ambulance Service of NSW v Daniel [2000] NSWCA 116 at [37] per Hodgson CJ in Eq, Sheller and Beazley JJA agreeing.
It is convenient now to turn to s 323 of the 1998 Act.
The assessment required by s 323 is one which must be based on fact, not assumptions or hypotheses: Elcheikh v Diamond Formwork (NSW) Pty Ltd (In Liq) [2013] NSWSC 365 at [89]; Matthew Hall Pty Ltd v Smart [2000] NSWCA 284 at [33]; Ryder v Sundance Bakehouse [2015] NSWSC 526 at [40].
The process encompassed by s 323 requires the application of each of the following steps before reaching the ultimate conclusion of the existence of a pre-existing injury which has an impact on the assessment of the injury the subject of the worker's claim.
The first step requires a finding of fact that the worker has suffered an injury at work which has resulted in a degree of permanent impairment which has been assessed pursuant to s 322 of the 1998 Act: see Elcheikh at [125].
The second step which needs to be addressed is, assuming such an injury has been sustained and impairment has resulted, what is the extent of that impairment expressed as a percentage of the whole person: see Cole v Wenaline Pty Ltd [2010] NSWSC 78 at [38]; Elcheikh at [126].
The third matter to be addressed is whether the worker had any previous injury, or any pre-existing condition or abnormality. The previous injury does not have to be one in respect of which compensation is payable under the 1998 Act. If the phrase "pre-existing condition or abnormality" is to be relied upon, then such condition or abnormality must be a diagnosable or established clinical entity: Fire & Rescue NSW v Clinen [2013] NSWSC 629.
A finding of the existence of a previous injury can be made without the presence of symptoms, but there must be evidence which demonstrates the existence of that pre-existing condition: Mathew Hall at [31]-[32].
The pre-existing injury or condition must, on the available evidence, have caused or contributed to the assessed whole person impairment: see Matthew Hall at [32]; Cole at [29]-[31]; Elcheikh at [88] and Ryder at [42].
It cannot be assumed that the mere existence of a pre-existing injury means that it has contributed to the current whole person impairment: Clinen at [32]; Cole at [30]; Elcheikh at [91]. What must occur is that there must be an enquiry into whether there are other causes of the whole person impairment which reflect a difference in the degree of impairment: Ryder at [45].
Next in dealing with the application of s 323, the extent of the contribution, if any, of the pre-existing condition to the current impairment must be assessed in order to fix the deductible proportion. If the extent of the deductible proportion will be difficult or costly to determine, an assumption is made that the deductible proportion will be fixed at 10%, unless that is at odds with the available evidence: s 323(2) of the 1998 Act.
Each of these steps, and considerations, is a necessary element of a determination that an assessed whole person impairment is to be reduced by a deductible proportion by virtue of the application of s 323 of the 1998 Act.
The factual context for the consideration of these principles, and whether the Appeal Panel's decision is affected by error can shortly be stated. Industrial deafness is a sensorineural loss of hearing. It typically causes an increased hearing loss from low to high tones with relative sparing of the low tones in comparison to high tones.
Industrial deafness (or boilermaker's deafness as it was once called) is attributed to exposure to noise above an identified level and over an extended period. Thus, it is said that the deafness results from, or is caused by, a gradual process. It is not a pre-existing condition or abnormality as those terms are used.
Section 17 states that the loss of hearing, if caused by a gradual process, will be deemed for the purposes of the 1987 Act to have happened at an identified time.
It is entirely possible that a worker may sustain deafness by a cause other than by a gradual process, such as being in proximity to a single large explosion. In such circumstances, s 17 does not apply.
Applying the principles referred to above, which have been derived from the cases to which reference has been made, together with the well-known principles as to what evidence is sufficient to enable a proper finding of fact to be made in the factual context of this claim, it seems clear to me that the AMS initially, and the Appeal Panel, fell into jurisdictional error in a number of respects.
The relief sought in these proceedings does not challenge the certificate of the AMS. However, it is relevant to consider the certificate of the AMS because of the central role which it occupies in the reasoning of the Appeal Panel. Ultimately, the issue is whether the Certificate and reasons of the Appeal Panel ought to be set aside.
First, an underlying assumption has been made that the deeming provisions of s 17 of the 1987 Act apply with respect to loss of hearing which may have occurred in employment outside NSW, which employment is not subject to the provisions of the 1987 Act.
Secondly, counsel for the first defendant conceded that neither the AMS nor the Appeal Panel identified explicitly the existence of any pre-existing injury. The history obtained contained no record of any symptom of a loss of hearing during the plaintiff's employment in Pakistan. Whilst the absence of a symptom such as loss of hearing does not preclude the finding of a pre-existing injury, it does mean that the facts upon which a pre-existing injury are to be found must be clearly identified, and the injury itself identified including the time at which the injury was sustained.
At best, the Appeal Panel and the AMS before it, made an assumption that because the plaintiff was exposed to a workplace in which noise was generated, he must during that period of exposure have suffered a pre-existing injury.
The difficulty with such a conclusion is that there was simply no factual material which was sufficient to enable such a conclusion to be drawn. Whilst there was factual material available which described some of the work which took place in Pakistan, nowhere was there any evidence which would enable a conclusion to be drawn that the level of noise to which the plaintiff was exposed in Pakistan, was of a nature which would have, by a gradual process, resulted in a loss of hearing. Nowhere was there any material which allowed the Appeal Panel or the AMS, to conclude that the plaintiff had been exposed to an unacceptable noise level for a sufficient length of time, and of the kind of noise level which, on the probabilities, would have resulted in an injury.
Nowhere was there any factual material which would have enabled a conclusion about whether the plaintiff was provided with ear protection, the efficacy of that protection, the extent of time over which it was worn, and the ultimate outcome.
The histories given, which I have recounted above, do not approach an adequate factual basis for the making of any finding of pre-existing injury. If such a finding is implicit, as it seems to be in the assessment process undertaken by the Appeal Panel and the AMS, then that was a clear error because there was simply no factual material to enable such a conclusion to be reached.
Thirdly, the Appeal Panel and the AMS wholly failed to consider whether, if there was a pre-existing injury, it caused or contributed to the present whole person impairment. That is to say, because it cannot be assumed that the mere existence of a pre-existing injury means that it has contributed to the current impairment, they must enquire into whether such pre-existing injury as there was, made a difference in the degree of the whole person impairment presently suffered by the plaintiff. They did not attempt to undertake this exercise.
The application of this rule of thumb deduction does not constitute fulfillment, in a hearing loss case, of this required element. As a matter of logic, the present extent of the plaintiff's hearing loss may have been caused entirely by the plaintiff's employment in NSW over the 32 year period. There is nothing about his present degree of whole person impairment which would, of itself and without more, enable a contrary conclusion. There was no material for example, which enabled a finding that the level of impairment from loss of hearing for the plaintiff, could not all have arisen during the 32 year period of employment in NSW.
However, the Appeal Panel and the AMS have simply assumed that by application of the straight line method of attribution of deafness, there must have been a pre-existing injury, and the degree of impairment from which the plaintiff suffers must have been contributed to by all of the pre-existing noise exposure.
This is nothing more than assumption or speculation. The conclusion is not sufficient to satisfy the obligation under s 323 of the 1998 Act to be satisfied that a pre-existing injury has contributed to the present impairment.
Fourthly, in seeking to assess the deductible proportion by the fixed line methodology of taking the number of years of exposure and applying it equally across the period, the Appeal Panel and the AMS have used a methodology which was unsupported by any direct evidence before them. If it was the application of expert medical knowledge or an accepted medical fact, then their reasons needed to reflect that. Nowhere in the Appeal Panel's reasons is there any discussion at all as to why it ought be assumed that deafness occurs in equal proportions over time.
Finally, if deafness does not occur, other than by assumption, equally across time, then the Appeal Panel failed to give any consideration to whether an assessment of the deductible proportion was either costly or difficult warranting thereby the application of s 323(2) of the 1998 Act at a deduction of 10%.
Each of these failures which I have described above, constitute errors of a kind sufficient to warrant the setting aside of the Appeal Panel's decision.
Accordingly, I conclude that the issue of the plaintiff's whole person impairment arrived at as a consequence of his hearing loss while employed by the first defendant, must be reconsidered, because it has not yet been properly considered according to law.

Costs

Ordinarily, costs follow the event: r 42.1 of the Uniform Civil Procedure Rules 2005. The Court has a discretion to make a different order if warranted. There is nothing about this matter which would warrant a different order.
The first defendant must pay the costs of the proceedings.

Orders

I make the following orders: 1. Quash the whole of the decision made by the third defendant, the Medical Appeal Panel of the Workers Compensation Commission of NSW appointed pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act 1998 made on 28 January 2015, and the Medical Assessment Certificate issued with the decision. 2. Declare, pursuant to s 69 of the Supreme Court Act 1970 that the Certificate and Statement of Reasons issued by the third defendant on 28 January 2015 is void and of no effect. 3. Remit the matter to the second defendant for the purpose of constituting an Appeal Panel under s 328(1) of the Workplace Injury Management Workers Compensation Act 1998 to determine the matter according to law. 4. First defendant to pay the costs of the proceedings.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 August 2015

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