Public Trustee (WA) v State Energy Commission

Whatever view be taken of these questions, the provisions of s. 7B do not in my opinion support the conclusion that a noise induced hearing loss such as boilermaker's deafness is a personal injury by accident within s. 7(1). If it were true that s. 7B could only be applicable to a claim under the Second Schedule, and not to a claim under the Third Schedule, that would not indicate that such a noise induced hearing loss fell directly within s. 7. If a worker is entitled under s. 8, the compensation which he is awarded is determined as if the disease were a personal injury by accident within s. 7. Such a worker may therefore elect to be paid compensation under the Second Schedule, rather than under the First, provided of course that the disease from which he is suffering is specified as an injury in the table of the Second Schedule. Since Item 6 of that table does specify "Total loss of hearing", there can be no room for doubt that a worker who had suffered a total loss of hearing, caused entirely by noise, and who, having been disabled from earning full wages, came within s. 8, would be entitled to elect to take compensation under the Second Schedule. If in such a case the loss of hearing was only partial, whether the worker could elect to take compensation under the Second Schedule would depend on the question whether s. 7(3)(c) permits a claim to be made under that Schedule when there has been a partial loss of function. However if a claim for noise induced hearing loss, total or partial, can be made under the Second Schedule, that does not mean that noise induced hearing loss is a personal injury by accident within s. 7. Such a claim may be made in a case in which the entitlement of the worker is derived from s. 8, rather than directly from s. 7. It is therefore not correct to say that s. 7B can only apply if noise induced hearing loss is a personal injury by accident within s. 7.

For these reasons, I cannot find in ss. 7A and 7B grounds for inferring that noise induced hearing loss is personal injury by accident within s. 7. There is, in my respectful opinion, a good reason for reaching a contrary conclusion. If noise induced hearing loss which resulted from a gradual process rather than from an explosion was a personal injury by accident within s. 7, it was unnecessary to add noise induced hearing loss as a disease in the Third Schedule. If cases such as boilermaker's deafness came directly within s. 7, it was pointless to include them within s. 8; to do so added nothing to the entitlement of a worker, who could only recover under s. 8 if he had been disabled from earning full wages. This suggests that it was not intended, by ss. 7A and 7B, to require noise induced hearing loss to be a personal injury by accident within s. 7. When the provisions of the Amendment Act of 1973 are considered together, it appears to me that the purpose of the legislature was to allow a claim for noise induced hearing loss such as boilermaker's deafness to be made only under s. 8, and that ss. 7A and 7B were intended to be ancillary to that purpose.

The case is a difficult one, and the question is such as to warrant the grant of special leave to appeal. For the reasons I have given, however, the conclusion reached by the majority of the Full Court was correct. I would accordingly grant special leave to appeal but would dismiss the appeal.

I have had the advantage of reading the reasons for judgment of the Chief Justice. I agree both with the view taken by the Chief Justice concerning the findings of the Workers' Compensation Board and with his Honour's understanding of the process of reasoning by which the Board arrived at its conclusion, that is, its reliance upon s. 7A and s. 7B of the Act.

I further agree that the gradually progressive hearing loss of which the appellant complained did not fall directly within s. 7 (1) of the Act as a personal injury by accident and that, without recourse to s. 7A and s. 7B, s. 7 (3) could not avail him. I share with the Chief Justice an inability to find in s. 7A or s. 7B any means whereby the applicant, whose lack of disablement from earning full wages excluded him from the benefit of s. 8 of the Act, became entitled to compensation under s. 7 of the Act. Accordingly I too would uphold the decision of the majority of the Full Court and, while granting special leave, would dismiss this appeal.

This appeal raises a question on the construction and application of certain provisions of the Workers' Compensation Act, 1912-1973 W.A. which were introduced by the amendments of 1973. Section 7 (1) of the Act and the First Schedule deal with periodic payments to an injured worker during his total or partial incapacity for work. Section 7 (3) deals with lump sum compensation of prescribed amounts for certain injuries set out in the Second Schedule. Such lump sum compensation is payable if the worker so elects but, except for certain expenses, he is not on election entitled to receive more than that sum (sub-s. (3) (f)). Sub-sections (3) (a), (b) and (c) of s. 7 are as follows:

(a) Notwithstanding the provisions of the First Schedule to this Act, where the worker so elects, the compensation payable for the injuries mentioned in the first column of the table set out in the Second Schedule to this Act shall, subject to the provisions of this Act relating to that Second Schedule, be the amounts indicated in the second column thereof.

(b) For the purpose of the said table the expression "loss of" includes "permanent loss of the use of".

(c) For the purpose of the said table the expression "loss of" also includes the "permanent loss of the efficient use of," but in such case such percentage of the prescribed amount payable as is equal to the percentage of the diminution of the full efficient use, may be awarded, in lieu of the full amount.

The Second Schedule contains a table of injuries and a statement of the percentage of the prescribed amount payable in respect of them. It includes "Total loss of hearing" against which is placed a percentage of 75 per cent. Previously to the 1973 amendments there were three items in the Second Schedule related to hearing - the existing one of "Total loss of hearing" and in addition "Partial deafness of both ears" and "Complete deafness of one ear".

Where a worker is disabled from earning full wages by reason of suffering from, or his death is caused by, any disease, except pneumoconiosis or mesothelioma, mentioned in the first column of the Third Schedule to this Act and the disease is or was due to the nature of any employment in which the worker was employed at any time within one year previous to the date of the disablement, whether under one or more employers, the worker, or in the case of death his dependants, shall be entitled to compensation in accordance with this Act as if the disease were a personal injury by accident within the meaning of section seven, suffered by the worker at the place of his employment, and the provisions of this Act shall apply thereto accordingly, subject, however, to the provisions of this section. Included amongst the diseases listed in the Third Schedule is "Noise induced hearing loss". By s. 8 (3) the disablement is to be treated as the happening of an accident. The compensation is recoverable from the employer who last employed the worker during the period of one year mentioned in sub-s. (1). If the disease is of such a nature as to be contracted by a gradual process there is an obligation on certain earlier employers to contribute to the compensation (sub-s. 5 (iii)).

The item "Noise induced hearing loss" was introduced into the Third Schedule in 1973 and at the same time ss. 7A and 7B were introduced. These sections provide as follows:

6a. If compensation under this Act is claimed in respect of the injury known as noise induced hearing loss, then, unless the injury is one for which either in whole or in part compensation has previously been paid, that compensation shall be assessed as if the whole of the loss of function arising from that injury occurred immediately before the notice of that injury was given.

(1) Subject to this section, in ascertaining, for the purposes of this Act, the percentage of the diminution of hearing in respect of noise induced hearing loss of a worker who is over the prescribed age, it shall be conclusively presumed that his loss of hearing is, to the extent of the prescribed number of decibels for each complete year of his age in excess of the prescribed age, to be attributed to presbycusis.

(b) the prescribed number of decibels is one-half or, where some other number is prescribed, the number so prescribed.

(3) Regulations made for the purposes of paragraph (b) of sub-section (2) of this section may prescribe different numbers of decibels in respect of different methods of ascertaining the extent of diminution of hearing, and any number thereby prescribed may be or include a fraction.

(4) Nothing in this section applies in a case of total loss of hearing of either ear.

Prior to 1973 compensation for noise induced hearing loss was only payable under s. 7 and the First and Second Schedules, and it was necessary for the worker to prove injury by accident arising out of or in the course of employment with the employer from whom the compensation was claimed. Thus, no doubt, a noise induced hearing loss which resulted in incapacity for work would have entitled a worker to compensation under s. 7 (1) and the First Schedule if he could prove the injury by accident and that he was totally or partially incapacitated for work. A noise induced hearing loss would also entitle a worker to lump sum compensation under s. 7 (3) even if he was not totally or partially incapacitated for work, provided he could prove the injury by accident arising out of or in the course of his employment with the employer on whom the claim was made and could prove total loss of hearing or partial deafness of both ears or complete deafness of one ear. In the case of a sudden noise which caused loss of hearing proof would be possible, but there were immense, if not insuperable, difficulties of proof if there was no sudden noise which induced the hearing loss but a condition of noise which gradually induced hearing loss, as in the case of what is commonly described as "boilermaker's deafness". Moreover, there is s. 12 (1) which made it necessary to give notice to the employer as soon as practicable after the accident causing injury, and to make the claim for compensation within twelve months. A constant stream of notices and claims would have been necessary. It would appear, therefore, that for such loss of hearing compensation was not practically obtainable.

The 1973 amendments were clearly intended to remedy that situation and to enable compensation to be obtained for boilermaker's deafness and similar kinds of deafness. Compensation could be obtained under s. 8 by treating the condition as a disease in which case compensation would be payable as if the disease were a personal injury by accident. However, for such compensation to be payable it would be necessary to prove disablement from earning full wages in accordance with the requirement of s. 8 (1).

The worker in the present case, who has since died and who is now represented by his executor, the appellant, incurred a noise induced hearing loss in the course of his work as a boilermaker. He was employed by the respondent from October 1963 to April 1976 when he retired at the age of sixty-five years. The loss was of gradual onset but there was no evidence of any loss of work or disablement from earning full wages because of his hearing loss. The Workers' Compensation Board found that he had suffered a noise induced hearing loss of 56.1 per cent and accordingly made an award for lump sum compensation under s. 7 (3).

The worker in his claim for compensation did not rely upon s. 8 and he could not do so in the absence of evidence of disablement from earning full wages. He claimed that he had suffered an injury arising out of or in the course of his employment, that s. 7 (3) was applicable to his case, that by virtue of s. 7 (3) (b) and (c) a percentage of the item "Total loss of hearing" in the Second Schedule was payable, and that the difficulties of proof which he previously faced were obviated by s. 7A. On the other hand, the employer claimed, and has since maintained, that the only avenue to compensation for noise induced loss of hearing which was of gradual onset was by s. 8 (1) and the Third Schedule. At the same time, however, it is conceded that, if the requirements of s. 8 (1) are met, and there is disablement from earning full wages, then lump sum compensation may be payable under s. 7 (3) because, by virtue of s. 8 (1), compensation is payable under the Act (including s. 7 (3)) as if the disease were a personal injury by accident within the meaning of s. 7.

I do not think that the 1973 amendments can be so construed that they excluded all noise induced hearing loss from the direct operation of s. 7. That being so, I can see no indication of an intention that a noise induced hearing loss of the particular kind which occurs by gradual onset should be excluded. Section 7A supports that conclusion. It refers to "the injury known as noise induced hearing loss". But on the respondent's contention there is no such injury within the operation of the Act. There is a "disease" which, if the conditions of s. 8 are fulfilled, is compensable as if that disease were a personal injury by accident. It seems to me that the legislature made clear by the language of s. 7A that noise induced hearing loss was an injury even though by s. 8 and the amended Third Schedule it at the same time recognized that it could also be a disease. By s. 7A it overcame the difficulties of proving the suffering of the injury and of duly making the claim for compensation which previously existed.

Section 7B shows an even clearer legislative intention that s. 7, in particular s. 7 (3), should apply to noise induced hearing loss. The only occasion for ascertaining the percentage of diminution of hearing in respect of noise induced hearing loss is where an application is made for lump sum compensation under s. 7(3) and the Board is applying s. 7(3)(c). Where there is total or partial incapacity for work or disablement from earning full wages, the percentage of diminution of hearing is not relevant. It is then a question of the degree of reduction of the ability to earn.

The Second Schedule now refers only to "Total loss of hearing". In 1973 the Schedule was reformed. The sensory and some motor losses were grouped together and separately from loss of limbs or parts of the body. Sensory losses were each expressed in the Schedule as "Total loss". I think that it is sufficiently clear that in the case of anything less than total loss a percentage of the prescribed amount is payable by application of s. 7(3)(b) and (c). When the words of s. 7(3)(b) or (c) are read with the words "Total loss of hearing" or, indeed, any other of the sensory losses itemized in the Second Schedule, the language becomes inelegant but I think that the intention is sufficiently clear. By virtue of s. 7(3)(c) the concept of totality gives way to the concept of diminution and a percentage of the prescribed amount is payable. The ascertainment of that percentage in the case of noise induced loss of hearing is subject to the particular requirements of s. 7B.

I am therefore of the opinion that the application for special leave should be granted and that the appeal should be allowed with costs. The answers to the questions in the stated case should be as follows:

Question 2 - Unnecessary to answer. The respondent should pay the costs of the stated case.

I agree with Jacobs J. Special leave should be granted and the appeal allowed.