Sellar v Transfield Services

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

1. The purpose of these statutory provisions was explained in Workcover Corporation v Perre[6] when Mullighan J[7] referred to the difficulties of proof experienced by a worker seeking compensation for a disability of gradual onset or disease and explained that[8]:

"Parliament resolved these difficulties by categorising the disabling condition and the types of employment which cause them in Sch 2 and providing for the presumptions in s 31(2) and 113 and in their predecessors in earlier legislation."

1. His Honour set out the process envisaged by those provisions when he said[9]:

"The worker is required to prove that he has noise-induced hearing loss and that he has been employed in work involving exposure to noise. The burden of proof then shifts to the Corporation or an exempt employer, as the case may be. I shall refer only to the Corporation. It must prove that the hearing loss could not have arisen from the employment. In the case of employment involving only minimal noise such as employment in a library or some other quiet place, in the absence of any extraordinary circumstances, that task should be discharged without difficulty. In other cases, the task may be difficult, but if it cannot be discharged, the policy of the legislation is that the benefit falls to the worker. That position accords with fairness and commonsense as the conditions of the workplace at relevant times may be expected to be more easily established by the employer, and therefore the Corporation, than the employee."

1. The worker's evidence goes to the issue whether he was employed in work with Transfield involving exposure to noise. It also touched on the nature of his duties with subsequent employers. I accept that the worker was a reliable witness who did his best to accurately outline his employment history, the nature of his duties and his recollection about the quality and extent of the noise to which he was subjected in various positions with several employers.
2. The worker's employment history is as follows; he is a trained plumber. He worked for Australian National Railways ("ANR") from January 1980 to November 1997 undertaking plumbing duties and infrastructure maintenance in the Islington workshop and other workshops at Mile End, Tailem Bend and Port Pirie and in the field on railway cottages, stations buildings and in relation to and adjacent to railway tracks. He was a fulltime employee working eight hours per day five days per week with reasonably regular overtime.
3. In November 1999 Transfield took over the Islington workshops and ANR's train and track maintenance work. There was no difference between the work that he previously performed with ANR and the work he performed with Transfield.[10] He was exposed to the same equipment and train noise and the same pattern of noise exposure. He continued to work fulltime, five days per week with reasonably regular overtime. He left Transfield's employment in December 2002.
4. I find that when employed with Transfield the worker was required to work in enclosed workshops where he did sheet metal work, worked in the foundry and the bolt shop. He was exposed to background noise from equipment including blacksmith's stamping and drop hammers. Locomotives were run in the workshop and the noise would echo through the workshop. He operated a range of industrial equipment; some was pneumatic and some was mechanical. These included jackhammers, sledgehammers and rattle guns. He used pneumatic shears and pop rivet guns. Both types of equipment were noisy but the pneumatic equipment was noisier than the mechanical because he was exposed to the noise of air escaping from the equipment when he was operating it or was working adjacent to it.
5. In the field, he did track maintenance on bridges and culverts as well as building maintenance including replacing iron internal structures or roofing sheets. He used air-operated jackhammers, and electric and air operated angle grinders.
6. He was a qualified safety worker. When undertaking track work or other work adjacent to the tracks he was required to look after the safety of other people working on the track. He was required to move workers away from the track for the passage of trains. On such occasions he was two or three metres away from the train. It was also one of his duties in such circumstances to listen for wheel squeal. He explained that if a train goes over a buckle in the track or a curve, the wheels scrape along the inside of the rail producing a high pitched squealing noise. He was required to listen for abnormal bearing noise or dragging parts and to locate problems on the line that needed addressing.
7. When undertaking track work a generator was used to power welding equipment. Such generators, if portable, were right next to the work area and, if trailer mounted, would be three to four metres away.
8. Field work also included replacing railway lines and sleepers over bridges which involved grinding out nuts and bolts that held the timbers in place and using heavy equipment to move the rail and sleepers from bridges. He used grinders, blowtorches and a dog knocker which is a compressor driven piece of equipment to knock spikes into timber. Bridge work was undertaken on average once every three months.
9. The worker also used a bobcat both in the workshop and in the field where it was used to level ground or to drill holes for signage along the track.
10. The worker was exposed to noise from the workshop or field equipment "all day, every day".[11] Given the nature of his duties I accept that generalisation. I accept that he was exposed to the noise of locomotives in the workshop and trains, comprising locomotives and wagons, in the field. I accept that he was exposed to the noise of equipment he was operating and to the equipment of others working in his immediate vicinity. I accept his assessment that he was exposed to significant noise in the course of his employment with Transfield.
11. The worker was not provided with hearing protection until probably the last two years of that employment. This included earmuffs and earplugs. He used this equipment at times. I accept that when he was a safety worker or undertaking his role in detecting potential equipment failure when trains were passing on the line, he was unable to wear hearing protection. Checking for trains and monitoring wheel squeal would last for four to five minutes and would occur about five times a day when undertaking track work.
12. When the worker left Transfield in December 2002 he did not notice any problems with his hearing.
13. After leaving Transfield the worker was engaged by consultants Welsh and Leo surveying water tanks in the rail yards at Islington. He did this work for three months two days per week. The work itself was not noisy however it was undertaken when there were trains in the yard.
14. The worker then enrolled in University. He undertook a science degree between May 2003 and June 2006. When undertaking his studies including field trips he was not exposed to noise.
15. Whilst studying he also undertook various part time jobs. From October 2004 to March 2006 the worker was employed one day per week at Ryan's Fuel and Garden Sales where he drove a tip truck doing local deliveries and occasionally operated a front end loader. He drove this machinery for about five to ten minutes per day every second week. I accept that the worker's exposure to noise in this employment was minimal.
16. During the period between October 2006 and June 2007 the worker was engaged as a field assistant/koala catcher on Kangaroo Island. This employment did not expose the worker to occupational noise.
17. Having finished his studies the worker obtained two part time positions. The first was as a trades assistant with a plumbing business, D and A Sellars, which undertook domestic plumbing. He worked a maximum of three days per week and was mainly involved in storm water installation and PVC pipe, tap and appliance installation and repairs. At the same time he also obtained a job as a handy man at the Cove Tavern where he worked one or two days per week undertaking general painting, fixing roof leaks and general repair work. There was no particular pattern to this work.
18. I accept the worker's evidence that in the trades assistant job with D and A Sellars he worked eight hours, three days per week and used various hand tools, such as snips and spanners. He also used battery operated drills and other equipment. He did not use pneumatic tools. He also used a pick and shovel as well as an electric rock breaker to break up concrete when undertaking pipe work. When undertaking this kind of work he used hearing protection. He worked in the vicinity of others who were also using a variety of equipment.
19. The work at the Cove Tavern also involved the use of hand tools and on occasions using a battery operated drill to put brackets on walls and the like.
20. I accept the worker's evidence that the work at D and A Sellars involved very occasional low background noise and that he was exposed to even less noise at Cove Tavern.
21. Since January 2009 the worker has been employed as a project officer with the Department of Environment and Natural Resources working in an office doing computer based work which is not noisy.
22. As to the onset of the worker's hearing problem; he noticed that at university that he could not hear lectures properly, and at home he was unable to hear the television unless the volume was increased. Towards the end of his time at university he also noticed ringing in his ears which disturbed his sleep. It was after his wife noticed his hearing difficulty was becoming more pronounced that he sought assistance from his general practitioner in about January 2010.
23. Notwithstanding that the general practitioner's medical notes refer to "reduced hearing since childhood" I accept that such history was in error and was based on a misunderstanding which was subsequently resolved by the worker's mother.
24. Dr Matison's report, dated 5 August 2010, confirms that "pure tone audiometry demonstrated symmetrical severe high tone sensorineural losses consistent with the effects of noise trauma".[12] Having taken a history of the nature of the worker's duties with ANR and Transfield and exposure to excessive noise over long periods of time and the quality of that noise, including the use of air compressor tools and the noise of train movement, and having noted the history that there was no exposure to excessive noise in subsequent employment, or in a non-occupational setting, Dr Matison expressed the opinion that the worker suffers from occupational noise trauma in his employment with ANR and Transfield, comprising noise induced hearing loss and noise induced tinnitus.
25. I am satisfied that the worker's evidence establishes that he was exposed to noise in his employment with Transfield. Dr Matison's evidence establishes that he suffers from noise induced hearing loss and noise induced tinnitus. The worker's evidence about his significant noise exposure at Transfield, his evidence about the nature of his subsequent employment and Dr Matison's evidence linking noise induced hearing loss to the Transfield employment activated the s 113(2) presumption.
26. Transfield did not provide proof to rebut the presumption that the worker's employment with Transfield was the last where he was exposed to noise capable of causing noise induced hearing loss.
27. I conclude that the worker's noise induced hearing loss is attributable to his employment with Transfield.
28. I also conclude that the assessment of whole body impairment should include a component for tinnitus. There is a common association between excessive noise levels and tinnitus.[13] Dr Matison's report supports that association because his assessment of whole body impairment is predicated on the basis that the tinnitus is a result of the same occupational noise exposure as that which is responsible for the worker's hearing loss.
29. The deeming mechanisms in s 113(2) in respect of noise induced hearing loss deems the "whole of the loss" to have occurred immediately before notice is given. As s 113(2) is part of a scheme of provisions designed by Parliament to resolve difficulties of proof for workers suffering a condition of gradual onset associated with exposure to occupational noise, the subsection should be given a wide interpretation and specifically one which permits the words "the whole of the loss" to include all of the sensorineural consequences of the exposure to noise including tinnitus.
30. The undated determination[14] is set aside. I will hear the parties as to the terms of the Order to be made or the parties may file agreed Minutes of Order. I have reflected upon the issue of potential s 32 expenses and consider that it would be appropriate if any dispute as to consequential s 32 expenses or entitlement to assistance pursuant to a rehabilitation plan is dealt with in the usual manner.

Parties are advised that if a party wishes to appeal against any part of this decision which is appealable pursuant to s 86(1) of the Act such appeal must be filed with the Registrar in accordance with the form titled Notice of Appeal within 14 days of the delivery of this decision and must be served on all parties.

It is the practice of this Tribunal to publish its reasons for decision in full on the Internet. If any party or person contends that these reasons for decision should not be published in full the party or person must make an application within seven days of the delivery of these reasons. The application shall be by an Application for Directions with a supporting affidavit and should be addressed to the presiding member(s). If no such application is lodged within the time specified these reasons will be published in accordance with the Tribunal's usual practice.

[1] Claim by letter dated 15 June 2010; TB p 3

[2] As to quantum of the hearing loss impairment Transfield's counsel indicated that it did not intend to cross-examine Dr Matison, the worker's expert witness, and Transfield's medical evidence was uplifted from the Trial Book, tr 6-7.

[5] Schedule 2 of the Act, "Noise induced hearing loss - Any work involving exposure to noise".

[6] (1999) 76 SASR 95

[7] With whom Doyle CJ and Wick J agreed

[13] This is demonstrated by the inclusion of tinnitus in Workcover SA Guidelines, Chapter 9, p 50, para 9.11 and AMA 5 Chapter 1, p 246, para 11.2a.

[14] TB 4-5, the footer of the letter of determination includes a file reference with the date "20101012".