Unilever Australia Ltd v Petrevska

Court of Appeal (NSW)|2013-10-16|Before: Macfarlan JA, Meagher JA, MacFarlan JA

Before: Deputy President O'Grady File Number(s): A1-1220/11

Judgment 1MACFARLAN JA: Between 1983 and 1995, Mrs Petrevska, the respondent, worked for Unilever, the appellant, as a process worker at its Streets brand ice cream factory. The factory was very noisy and has now been closed. 2On 20 August 2009, Mrs Petrevska gave Unilever a notice of injury under the Workplace Injury Management and Workers Compensation Act 1998 (the "WIM Act") claiming that she suffered a loss of hearing as a result of her employment by it. On the same day she lodged a claim under s 260 of that Act. 3Unilever contends that the claim was lodged out of time. It says that it was lodged long after the expiration of the six month period "after the injury or accident happened" specified in s 261(1) of the WIM Act for a claim to be lodged and also after the extended period of three years after the injury or accident happened applicable in some circumstances by reason of s 261(4)). Mrs Petrevska's response is that her claim was made within time because, by reason of s 261(6), the time for lodgement of her claim did not commence to run until she first became aware that she had received the injury and she did not become so aware until 2009 when she first received medical advice concerning her hearing loss and its cause. 4By Decision of 16 October 2012, Ms Josephine Snell, Arbitrator, determined on behalf of the Workers Compensation Commission, as preliminary points, that Mrs Petrevska gave notice of her injury in compliance with the WIM Act and made her claim for compensation in accordance with s 261 of that Act. By Determination of 21 January 2013, Deputy President O'Grady of the Commission granted leave to Unilever under s 352(3A) of the WIM Act to appeal against the Arbitrator's decision but then proceeded to confirm that decision. 5Unilever applied to this Court for leave to appeal under s 353 of the WIM Act against the decision of Deputy President O'Grady. It seeks leave to appeal upon the basis that the Determination below was an interlocutory decision. It recognises that, if leave is granted, its appeal is limited to a challenge to the Determination "in point of law" (s 353(1)). 6Unilever informed this Court, without contradiction, that Mrs Petrevska's claim is one of 50 similar claims lodged against it and that it is reasonable to infer that, depending upon the result of these proceedings, many similar claims will be made against many different employers. In these circumstances, I consider that leave to appeal should be granted to Unilever. However, for reasons that appear below, my view is that its appeal should be dismissed.

THE STATUTORY SCHEME 7The WIM Act established a workplace injury management and workers' compensation system designed, inter alia, to regulate claims for and payment of compensation under the Workers Compensation Act 1987 (the "WC Act"). The parties agreed that the "new claims" procedures prescribed by Chapter 7 of the WIM Act were applicable in the present case. They provide that neither compensation under the WC Act nor general law work injury damages are recoverable unless notice of the worker's injury is given to the employer "as soon as possible after the injury happened and before the worker has voluntarily left the employment in which the worker was at the time of the injury" (s 254(1)). The failure to give such a notice is not a bar to proceedings if one of a number of specified special circumstances exists. Unilever no longer contends that Mrs Petrevska failed to comply with s 254. 8Section 261(1) precludes the recovery of compensation unless a claim for the compensation has been made within six months after the injury or accident happened. Section 261(4) states that failure to make a claim within that period is not a bar to the recovery of compensation for an injury if the failure was "occasioned by ignorance, mistake, absence from the State or other reasonable cause" and either the claim is made within three years of the injury or at any time in the case of an injury resulting in "serious and permanent disablement". Mrs Petrevska does not rely upon s 261(4). Instead she relies upon s 261(6). 9Section 261(6) is in the following terms: "(6) If an injured worker first becomes aware that he or she has received an injury after the injury was received, the injury is for the purposes of this section taken to have been received when the worker first became so aware." 10Section 260 requires that a claim comply with the WorkCover Guidelines which, the section states, may provide for a number of different matters, including the information that a claim is to contain. The failure to make a claim as required by the section is said not to be a bar to the recovery of compensation or damages "if it is found that the failure was occasioned by ignorance, mistake or other reasonable cause or because of a minor defect in form or style" (sub-s 5).

THE ARBITRATOR'S DECISION 11In considering when, for the purposes of s 261(6), Mrs Petrevska first became aware of her injury, the arbitrator summarised as follows observations made by Deputy President Roche in Inghams Enterprises Pty Ltd v Jones [2012] NSWWCCPD 17: "(a) 'Because hearing loss of a gradual process can have many different causes, it is not sufficient that a worker is merely aware of loss of hearing and that he worked in a noisy place.' [86]; (b) 'In the context of s 261 ... 'aware' means knowledge or knowing.' [88]; (c) 'The test is an objective one, but is based on the individual worker's knowledge, not the knowledge of some hypothetical person.' [89]; (d) 'The worker must actually be aware, not constructively aware.' [89]; (e) 'It is necessary to have regard to the worker's state of knowledge at the relevant time.' [89]; (f) 'A worker cannot be said to be aware he has received a work injury if he is unaware of the nature of the condition said to constitute the injury or is unaware that it has been caused by work.' [89]; (g) This 'will usually require specialised knowledge that will normally come from an appropriate expert in the field.' [89], and (h) Awareness of injury for the purposes of section 261(6) does not involve knowledge of the claims procedure, time limits and need for expert evidence. [92]". 12The arbitrator then noted that Deputy President Roche concluded in that case that the requisite awareness required the following to be established: "(a) Awareness that he has sensorineural hearing loss, and (b) His hearing loss has been contributed to by his employment" (at [40]). 13The arbitrator then concluded as follows: "47. Unilever's counsel made the submission that, as Roche DP in Inghams Enterprises stated that for a worker to be aware of her injury will 'usually' require specialist knowledge; this suggests there can be cases where awareness can come before or without such specialist opinion. I accept this submission. In Milosevic it was found that she had no awareness until she received confirmation from an appropriate medical practitioner; however this does not necessarily mean it is simply [a] matter of calculating the date from the first medical report to the date a claim was made. The applicant's evidence as to her first awareness of injury is crucial. 48. Unilever has submitted the fact that Mrs Petrevska knew she had hearing problems and made the connection in her own mind [that] such problems were due to her work at Unilever, and no other source, this was enough to fall within section 261(6) of the 1998 Act and so she was first aware of her injury within a year or two of leaving Unilever. However I do not accept this submission on the facts in Mrs Petrevska case. She says in her statement dated 19 January 2010 in paragraphs 16 to 18 (and repeated in her statement signed on 5 August 2010) that she saw Dr Howison on 25 May 2009 and he confirmed 'the majority of my deafness was due to noise exposure. Before seeing Dr Howison I did not know the cause of my hearing problems and I had not seen a doctor beforehand either in relation to my problems'. I accept this evidence which is consistent with the entirety of the evidence regarding her awareness of her alleged injury. 49. While Mrs Petrevska has said she noticed she had hearing problems and buzzing in her ears, which she thought was due to her employment with Unilever because it was the only noise she had been exposed to; this does not equate in my view to awareness she had the injury of boilermaker's or industrial deafness. As Deputy President discussed in Inghams Enterprises because hearing loss of a gradual process can have many different causes, it is not sufficient that a worker is merely aware of loss of hearing and that she worked in a noisy place. I note Dr Howison in his report dated 14 August 2009 found she also suffered from non occupational hearing impairment. I find that Mrs Petrevska was not in a position to have awareness that, the perception she had of hearing loss, was a sensorineural hearing loss until she was so advised by Dr Howison". 14These conclusions were reached notwithstanding evidence, referred to earlier in the arbitrator's decision, that Mrs Petrevska gave in cross-examination that "in her mind in 1996/97 she knew it was the noise at Unilever that was causing her loss of hearing and buzzing in her ears".

THE COMMISSION APPEAL DECISION 15Deputy President O'Grady expressed his conclusions on the appeal as follows: "41. I consider that the Arbitrator's summary of that which was stated in Inghams (noted at [28] above) is correct. I respectfully agree with the reasoning found in that decision. The Arbitrator has properly relied upon that which was there stated as guidance when construing and applying the provisions of s 261 to facts as found relating to first awareness of injury. 42. It is important to note that the Arbitrator accepted Mrs Petrevska's evidence found in written statements that before seeing Dr Howison she did not know the cause of her hearing problems. It is clear that when accepting that evidence the Arbitrator had taken into account Mrs Petrevska's evidence when cross examined (at [49] of Reasons). That evidence, which I note was generally in response to leading questions and given with the assistance of an interpreter, was found not to "equate to awareness" that Mrs Petrevska had been relevantly injured. That conclusion was open to the Arbitrator on the evidence as a whole and followed correct application of principle. Her factual conclusion demonstrates no relevant error. 43. It was, in my view, open to the Arbitrator to accept, as she did, that requisite "knowledge or knowing" had not occurred until Mrs Petrevska had been advised by a medical practitioner of her hearing loss and its relationship to noise exposure. It is clear on the evidence of Dr Howison, and by inference from the evidence of Dr Niall, that not all of Mrs Petrevska's hearing loss was related to noise exposure. Such question is one that only expert opinion may persuasively address. That fact demonstrates the peculiar nature of an injury being noise induced hearing loss and the attendant difficulty faced by a worker in becoming "aware" in terms of the section of such injury. The appellant has failed to establish error on the part of the Arbitrator in concluding as she did on this issue. All relevant facts were considered, correct principles applied and her conclusion was one open to her on the evidence".

RESOLUTION OF THE APPEAL TO THIS COURT 16For Unilever to succeed on its appeal it must establish that Deputy President O'Grady erred "in point of law" (s 353(1) of WIM). The alleged error of law was not well-defined (compare Fletcher International Exports Pty Ltd v Lott [2010] NSWCA 63 at [23]). In its draft Notice of Appeal, Unilever defined it, in effect, as a failure to find that Mrs Petrevska was "aware" that she had received "an injury" at a time when she "understood" that she had suffered hearing loss which was due to her noisy employment. This formulation gave rise to issues as to the meaning of the words "aware" and "injury" in s 261(6). It is convenient to address these issues under the following headings.

Awareness of what? 17Section 261(6) refers to awareness of receipt of an "injury". This word is defined in s 4 to mean "a personal injury arising out of or in the course of employment". It follows, as Unilever accepted, that awareness for the purpose of s 261(6) involves not only awareness of the injury as such but also of its connection to the worker's employment. In the case of a gradual loss of hearing resulting from noisy employment ("boilermaker's deafness"), which is governed by the special provisions of s 17 of the WC Act, awareness of a connection to the worker's employment in noisy conditions by one or a number of employers is required, rather than connection to employment by a particular employer. 18So far as the injury itself is concerned, Clarke JA's observations in CRA Ltd v Martignago (1996) 39 NSWLR 13 at 20, made in the context of s 60I of the Limitation Act 1969, are also applicable in the present context: the question is whether "in a real sense, the applicant knows the nature of his or her injury and its broad extent". As the High Court said in Harris v Commercial Minerals Ltd [1996] HCA 49; 186 CLR 1 at 14, "[t]he nature or extent of [an] injury is not synonymous with the precise pathology or consequences of the injury". 19Unilever submitted that the arbitrator erred in finding that it was necessary for the worker to know that his or her hearing loss was sensorineural (Arbitration Decision at [40] and [49]; and see her related decision in Unilever Australia Ltd v Saab at [45]-[47]). However, as I read her decisions, the arbitrator was not saying that the worker had to know the medical term for his or her condition but rather that the hearing loss was related to noise exposure and that this would not ordinarily be known, rather than suspected, by the worker before expert advice was received. 20Senior Counsel for Mrs Petrevska submitted that greater awareness was required for the purposes of s 261(6) than identified in [17] above. He contended that, it was necessary for the worker to be aware of all the matters that he or she needed to know in order to lodge a claim. These included, he submitted, the applicable requirements of the WorkCover Guidelines, with which s 260(1) specified that a claim had to comply. The guidelines operative at the relevant time required the inclusion in a claim of particulars about the claim that included the following: "The amount of loss as measured by the Table of Disabilities". "A medical report supporting the amount of loss claimed". 21The context and purpose of a statutory provision are important in determining its proper construction, as well as its text (Certain Lloyd's Underwriters v Cross [2012] HCA 56; 87 ALJR 131 at [23] and [24]; Federal Commissioner of Taxation v Unit Trend Services Pty Ltd [2013] HCA 16; 87 ALJR 588 at [47]). However, none of the text, context and purpose of s 261(6) in my view provides any support for Mrs Petrevska's argument. The text makes the question of causation relevant (through the definition of "injury"), but does not refer to other matters. Nor does the context of the provision assist her. The purpose of it is no doubt to avoid the unfairness that would be caused to a worker if the worker became time barred before he or she became aware of the injury and its cause. However that does not mean that the sub-section should be construed as directed to awareness of all the matters required for the lodgement of a claim, as once the worker is on notice of the injury and its cause, he or she has six months in which to acquire that information and lodge a claim, with the possibility of a longer period being available as a result of the application of s 261(4).

What is awareness? 22The concept of awareness in ordinary English, and in the context of s 261(6), may in my view be equated, at least in a general sense, with the concept of knowledge. The awareness to which s 261(6) refers is clearly actual awareness, as distinct from constructive notice (see in not dissimilar contexts: Deming No 456 Pty Ltd v Brisbane Unit Development Corporation [1983] HCA 44; 155 CLR 129 at 151 and Harris v Commercial Minerals Ltd at 9 - 10). 23Like the concept of knowledge, the concept of awareness may embrace different gradations of belief. This is reflected in the following observations of the High Court in Vines v Djordjevitch [1955] HCA 19; 91 CLR 512 at 522: "The fact to be known is not a physical event or thing. It is negative in character, namely the impossibility of establishing what car it was that caused her injuries. It is therefore a question of opinion or belief. The word 'know' is used in the provision in an ordinary sense, without any intention that it should be analyzed or refined upon. But of course there are gradations of knowledge or belief upon such a matter. The gradations extend from a slight inclination of opinion to complete assurance. Here it seems to amount to an awareness or consciousness that no reasonable probability exists of ascertaining the identity of the car satisfactorily or with any certainty. Complete assurance is by no means necessary. When the plaintiff has come to think that the identity cannot be established that is enough. If the expression 'think' must be refined upon, it may be said to mean that the steady preponderance of his opinion or belief is that it cannot be done." 24As is evident from these observations, the High Court was not there considering knowledge of an observable, physical event or thing, but of a fact whose existence was a matter of opinion or belief, although not one requiring expertise for the formation of that opinion or belief. As that expertise was not required, the High Court found that it was enough that in that case the plaintiff had come to think that the identity of the motor vehicle could not be established. 25A case such as the present is different because there is a variety of possible causes for hearing loss. The ageing process is one, as was recognised by s 70 (now repealed) of the WC Act which presumed that a specified proportion of the hearing loss of a worker who is over the prescribed age results from that process. As with boilermaker's deafness, which is caused by noisy working conditions, that loss occurs by a gradual process. As noted by Senior Counsel for the appellant, disease is another possible cause of hearing loss. Whilst the cause of deafness may be obvious where it has suddenly occurred after a severe impact and thus be something of which a worker is "aware" without receiving expert advice, the cause of a worker's gradual hearing loss will ordinarily be a fact of which the worker is not "aware" until he or she receives medical advice. While the worker may well have, as did Mrs Petrevska, an opinion or belief that the hearing loss is related to the worker's employment this is not sufficient. The high level of assurance required for "awareness" of its correctness will ordinarily require expert advice. There is some analogy to an issue concerning the value of a lay person's admission of a conclusion that requires expertise to reach. For example, the admission by a lay person of a proposition that involves the application of a legal standard will have little, if any, weight (see Dovuro Pty Ltd v Wilkins [2003] HCA 51; 215 CLR 317 at [66] - [71]). The force of this analogy is not diminished by the fact that the rules of evidence do not apply in the Commission (s 354 of the WIM Act). The Commission is still required to act upon material that is logically probative (Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282 at [2] and [59]). 26The following authorities provide support for the above approach. 27In the decision of this Court in Field v Field (Court of Appeal, 21 October 1981, unreported), the issue was when the appellant came to know that a motor vehicle accident in which she had been involved caused her a particular spinal disability. Reynolds JA (with whom Hope and JJA agreed) regarded the existence of that disability as only capable of establishment by the acceptance of qualified expert opinion. His Honour distinguished a situation where "the physical happenings constituting the occurrence were seen and remembered by the plaintiff", in relation to which "there is no difficulty in [the plaintiff] saying he knows those facts". 28As the medical opinions that the appellant in that case obtained over time were to some extent qualified, it was necessary for his Honour then to determine, by reference to those opinions, at what time the appellant's state of mind became one of knowledge of the existence of the relevant condition. It is pertinent to the present case that his Honour clearly would not have regarded a view of the appellant formed prior to the receipt of medical advice as of significance. 29In Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431 there was an issue as to when the appellant became aware of the causal relationship between the negligent administration of a myelogram and her condition of arachnoiditis. Davies JA referred to Vines v Djordjevitch and observed: "Given that the existence of a causal relationship between the myelogram and the arachnoiditis could not have been known by or within the means of knowledge of the appellant in an absolute sense, as an observable fact could have been known, the question then is what is the necessary degree of satisfaction of the existence of that fact for it to have been within her means of knowledge" (at 441). 30His Honour then determined when the appellant knew of this by reference to the terms of the medical advice that she received from time to time. It is clear that his Honour took the view that, whether or not the appellant believed in the existence of the relevant connection, she did not know of that connection until she had received expert advice. 31In Commonwealth of Australia v Dinnison [1995] FCA 1176; 129 ALR 239, there was an issue as to whether the respondent knew that he had suffered psychiatric illness prior to the expiration of the limitation period. The Court held that the respondent's knowledge that he experienced symptoms such as stress and anxiety did not mean that he knew that he was suffering from a psychiatric illness in the absence of medical advice to that effect. 32A similar question arose in Morris v Rawlings [2010] VSCA 306 where the Court observed: "Although human beings may suffer all sorts of significant emotional and mental problems from time to time, neither they nor anyone else, short of a psychiatrist or psychologist is ordinarily likely to perceive the problem as arising out of a permanent severe mental or permanent severe behavioural disturbance or disorder. In most cases, it is only when and if they are so diagnosed that they are capable of knowing that the incapacity of which they were aware arises out of that condition." 33In Inghams Enterprises Pty Ltd v Jones, to which I have referred in [11] and [12] above, the issue was, as in the present case, when the worker who suffered from boilermaker's deafness became aware that he had received this injury as a result of his employment. Deputy President Roche observed: "90. In a claim for compensation for boilermaker's deafness, a worker is aware that he has received an injury to which s 17 applies when he is aware of two things. First, that he has sensorineural hearing loss (boilermaker's deafness and any deafness of a similar origin (s 17(2)), which is a loss of hearing of such a nature as to be contracted by a gradual process. As noted above, because many things unrelated to employment can cause hearing loss, it is not sufficient that the worker is merely aware of a gradual loss of hearing. In addition, and second, though liability will ultimately fall on the employer who last employed the worker in employment to the nature of which the injury was due, as opposed to the employer who actually caused the hearing loss, the worker must be aware that his hearing loss has been contributed to by his employment. 91. Each case will turn on its own facts. In some cases, a worker will not be aware that he has received an injury until he has obtained expert medical evidence and advice on the relevance of that evidence. That was the situation in Heatcraft Australia Pty Ltd v Lapa [2007] NSWWCCPD 27 (a hearing loss claim) and in Griffin v Qantas Airways Ltd [2010] NSWWCCPD 22 (a psychological injury claim). Neither case is determinative of the result in the present matter, but each provides an example of the kind of information required before a worker will be aware that he has received an injury."

No error of law in the Commission's decisions 34The approach taken by the arbitrator was in my view consistent with the decisions to which I have referred. She made particular reference to Inghams Enterprises which I consider aptly encapsulates the proper approach: that is, because the determination of the cause or causes of sensorineural hearing loss ordinarily requires the application of medical expertise, the opinion of a medically unqualified worker about that issue will rarely be of value, or amount to knowledge of that worker that his or her hearing loss has been caused by the worker's noisy employment. Having rejected the proposition that Mrs Petrevska's belief was sufficient to establish her knowledge of a causal connection between her hearing loss and her employment, the arbitrator understandably turned to the question of when Mrs Petrevska was advised of that matter by a qualified person (see Judgment [48] and [49] quoted in [13] above). 35On appeal, Deputy President O'Grady's approach was to the same effect (see [15] above) and did not in my view reveal any error of law. 36In summary, in light of the technical nature of the issue of causation, it was open to the Commission to treat Mrs Petreveska's belief as to what caused her hearing loss as of little, if any, significance. In those circumstances, the date upon which she became aware of the cause of her injury was properly regarded as the date upon which she received relevant medical advice.

ORDERS 37For these reasons, I propose the following orders: (1)Grant leave to appeal. (2)Direct the appellant to file, within seven days of today, a notice of appeal in the form of the draft supplied to the Court. (3)Appeal dismissed. (4)The appellant to pay the respondent's costs of the application for leave to appeal and of the appeal. 38MEAGHER JA: I agree for the reasons given by Macfarlan JA that the orders his Honour proposes should be made. 39TOBIAS AJA: I agree with the orders proposed by Macfarlan JA and with his reasons. I would simply add the following observations. 40Section 261(6) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) can apply in many different circumstances. Certainly it cannot be the case, as submitted by the respondent, that a worker can never be aware that he or she has received an injury unless and until it has been diagnosed by a medical specialist. There are obviously many cases of frank injuries the awareness and the cause of which are obvious. 41Awareness in s 261(6) requires the worker to be aware or to have knowledge of the fact that he of she has received the injury and that that injury arose out of or in the course of their employment. There are therefore two matters of which the worker must have actual knowledge. 42Frank injuries do not cause a problem. The ones that do are those of gradual onset such as gradual loss of hearing (as distinct from instantaneous loss due, for instance, to an explosion next to one's ear) and injuries such as mesothelioma or, possibly, a psychiatric injury depending upon its symptoms. 43Knowledge of symptoms is insufficient as the sub-section requires awareness of the injury and its cause as matters of fact. Although deafness is itself an injury it can be one of gradual onset and was in the present cases. More importantly, gradual loss of hearing is sensorineural. It was therefore necessary in the present case for the respondent to have knowledge as a fact that her deafness was work induced. The difficulty with sensorineural deafness is that it may be due to a number of causes including those which are not so induced. It was insufficient for the respondent to believe that her condition was noise induced due to the possibility of that not being the cause of her type of deafness. Accordingly, in order for the respondent to be aware (or have knowledge) of the fact that her deafness was noise induced, it was necessary for her to obtain specialist advice and until that advice was obtained and confirmed that the condition arose out of her employment, she could not be aware of her injury within the meaning of s 261(6). 44Of course, each case must depend upon its own facts and, in particular, on the type of injury alleged to have been received by the worker. What is clear is that in the case of injuries of gradual onset more than a mere belief or a suspicion is necessary for there to be relevant awareness. Mere awareness of symptoms is generally insufficient in such cases. To determine otherwise would be unfair to the worker given that awareness sets in motion the time limit in s 261(1). Accordingly, the findings of fact of the Arbitrator in the present case, confirmed by the Deputy President, were properly based upon a correct construction of the subsection. It follows that no error in point of law on the part of the Deputy President was established.

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: 11 November 2013

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