Issue 1: January 2019

Elias Bader t/as Genuine Kitchens v Workers Compensation Nominal Insurer [2018] NSWWCCPD 54

Procedural fairness; whether the appellant was afforded procedural fairness; inferences drawn from unchallenged evidence – Re Minister for Immigration & Multicultural Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1, Re Refugee Review Tribunal; Ex parte AALA [2000] HCA 57; 204 CLR 82 considered and applied; Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 14, Toll Pty Ltd v Morrissey [2008] NSWCA 197; 6 DDCR 561; Workers Compensation Nominal Insurer v Al Othmani [2012] NSWCA 45 applied

Wood DP

18 December 2018

Facts

Mr Bader was a sole trader in a business trading as Genuine Kitchens. Mr Bader employed Mr Abdelahad for a period of time to assist with the installation of kitchens. On 20 October 2014, Mr Abdelahad was injured when the circular saw he was using bounced back and badly cut his left thumb. Mr Bader did not hold a workers compensation policy of insurance at the time of Mr Abdelahad’s injury.

The Workers Compensation Nominal Insurer served a notice dated 14 August 2015 pursuant to s 145(1) of the 1987 Act claiming reimbursement of payments made totalling $30,815.82. Mr Bader filed a Miscellaneous Application in the Commission in accordance with s 145(3) of the 1987 Act. He claimed that he was an “exempt employer” pursuant to s 155AA of the 1987 Act. That claim was resolved in the Commission in 2016 by way of consent orders and a notation that Mr Bader agreed to repay a compromised figure on a voluntary basis.

On 15 January 2018, the Nominal Insurer issued a second notice on Mr Bader, seeking reimbursement of a further $70,188.02. Mr Bader filed a further Miscellaneous Application in accordance with s 145(3) of the 1987 Act, again claiming that he was an exempt employer. He also sought reconsideration of the 2016 consent orders.

The Arbitrator declined to reconsider the 2016 consent orders and determined that Mr Bader was not an exempt employer within the meaning of s 155AA of the 1987 Act. Mr Bader appealed the Arbitrator’s determination. The appeal was limited to the determination that Mr Bader was not an exempt employer.

The issues on appeal were whether the Arbitrator erred in fact and law on the following grounds:

Singh v B & E Poultry Holdings Pty Ltd [2018] NSWWCCPD 52

Section 352(3A) of the 1998 Act – leave to appeal an interlocutory decision, s 352(6) of the 1998 Act – admission of fresh or additional evidence on appeal, s 322A of the 1998 Act – one assessment of the degree of permanent impairment, s 329 of the 1998 Act – application for further assessment by an Approved Medical Specialist

Snell DP

3 December 2018

Facts

The worker suffered injury to his back on 25 February 2013, lifting in the course of his employment as a delivery driver. The respondent accepted liability for the claim. The worker made a claim for permanent impairment compensation, which the respondent declined on the basis the worker’s impairment was not greater than 10 per cent. In 2016 the worker commenced proceedings for permanent impairment compensation in the Commission and was assessed by an AMS, Dr Wong, who issued a MAC dated 29 June 2016. Dr Wong assessed WPI at 14%.

On 1 July 2016, the worker lodged an Election to Discontinue Proceedings, bringing those proceedings to an end. The MAC was not the subject of appeal. No Certificate of Determination was issued in those proceedings.

The worker made a lump sum compensation claim on 2 February 2018, in respect of 16% WPI, based on a report of Dr Khan, consultant surgeon. In the current proceedings, the worker sought lump sum compensation in respect of 16% WPI and also made a claim for weekly compensation.

The Arbitrator accepted that the claim made in 2016 by the worker had not been “finally determined”. She accepted the respondent’s submission that a ‘claim’ does not necessarily refer to a claim that is finally determined, but rather “a claim that has been made in accordance with the requirements of ss 260 and 261 of the 1998 Act, as construed in Tan [v National Australia Bank Ltd [2008] NSWCA 198; 6 DDCR 363] and” Woolworths Ltd v Stafford[2015] NSWWCCPD 36; 16 DDCR 291 (Stafford). She said she did not accept that the legislation permitted a worker who had made a claim, and discontinued after a MAC was issued, to “make a new claim and obtain a new MAC”. She concluded that the appellant was “not entitled to bring this claim” and she dismissed the proceedings. The worker appealed.

The issues on appeal were whether the Arbitrator erred in law in failing to:

Penrith Rugby League Club Ltd v Van Poppel [2018] NSWWCCPD 55

Section 352(3A) of the 1998 Act – leave to appeal an interlocutory decision, s 17(1)(a) of the 1987 Act – deemed date of injury involving loss of hearing caused by a gradual process

Snell AP

21 December 2018

Facts

The worker, Ms Van Poppel, was employed by Penrith Rugby League Club Ltd (the Club) from 1977 and she remains in such employment. From 1977 to 1982 she was a bar attendant and was exposed to loud disco music.

Thereafter her duties with the Club were in a clerical capacity, where she was not exposed to any loud noise. On 22 June 2016, Dr Scoppa, an ear, nose and throat specialist assessed the worker to suffer from 13.7% binaural loss of hearing, and recommended hearing aids. The worker, through her solicitors, in a letter dated 9 December 2016, gave notice of injury and made a claim on the Club for lump sum compensation, in respect of 13.7% binaural loss of hearing, and the cost of hearing aids.

The Club’s relevant insurer as at 1982 (when on the evidence her employment was last noisy) was AAI Ltd trading as GIO (GIO). The Club’s relevant insurer as at the date of the notice in 2016 was Club Employers Mutual Ltd (CEM). Both insurers issued s 74 notices raising, as an issue, what the deemed date of injury should be. Each denied it was the relevant insurer.

The Arbitrator found that the deemed date of injury was 1 January 1982 (when GIO was on risk), as opposed to 9 December 2016 (when CEM was on risk). GIO appealed.

There was effectively one issue on appeal, although it was expressed as two grounds, being whether the Arbitrator erred in:

(a) finding 1 January 2002 as the deemed date of injury, and

(b) not finding 9 December 2016 as the deemed date of injury, being the date of claim.

Held: The decision of the Arbitrator dated 26 June 2018 was revoked; there was a finding, on the factual circumstances accepted by the parties, that the deemed date of injury pursuant to s 17(1)(a)(i) of the 1987 Act was 9 December 2016, and the matter was remitted to the same Arbitrator for determination of the remaining issues.

Discussion

1. The s 74 notice issued by GIO did not dispute that the worker’s employment as a bar attendant up to 1982 was “employment to the nature of which the injury was due” (that is, what is frequently described as ‘noisy employment’). However, it asserted that the deemed date of injury was the date of claim, 9 December 2016, by which point GIO had ceased to be the relevant insurer. The s 74 notice issued by CEM asserted that the “deemed date of injury is sometime in or around 1982”, that is, before CEM became the relevant insurer. The matter proceeded on the basis it was common ground that the employment was ‘noisy’ up to 1982, but not thereafter, and that notice was given to the Club on 9 December 2016. Acting President Snell approached the appeal on the same basis. ([58])

2. The Club was the ‘noisy’ employer to which the worker gave notice of injury on 9 December 2016. At that date she remained in the employment of the Club. If this was sufficient to satisfy the requirements of s 17(1)(a)(i) of the 1987 Act, then 9 December 2016 was the deemed date of injury. On the alternative argument, satisfaction of s 17(1)(a)(i) required the additional element that work with the Club be ‘noisy’ at the time notice of injury was given. If this further element was not satisfied, then one moves to s 17(1)(a)(ii) to identify the last day of ‘noisy’ employment before the date notice was given. That last date then becomes the deemed date of injury. ([59])

3. The Acting President rejected the worker’s argument that the breaks in her employment, when she took time off work for the births of her two children, constituted a break in the employment relationship so that fresh contracts of employment were entered into on her resumption of work following maternity leave. The evidence did not support this. ([60])

4. The submission by CEM, that GIO had no evidence that the worker’s hearing loss deteriorated from 1982 onwards, could similarly be put to one side. It was clear from Blayney Shire Council v Lobley (1995) 12 NSWCCR 52 (Lobley), and the authorities discussed in Lobley, that liability under s 17(1) does not depend on whether work with a “particular employer contributed at all to his condition or aggravated it or accelerated its development”. CEM also submitted that the worker’s accounting role “did not consist of an aggravation, acceleration, exacerbation or deterioration of a disease”. This is the language of s 16 of the 1987 Act. It was not of any direct relevance to establishing injury pursuant to s 17 of the 1987 Act. ([61])

5. CEM submitted that the worker’s duties as a bar attendant were of a type “that on the balance of probabilities has been a substantial contributing factor to her having developed the injury of industrial deafness”. Injury pursuant to s 17 is a ‘disease’ injury, which is not caught by s 9A: s 9A(1). On any ‘injury’ issue this submission was inconsistent with what was said (although it predated the commencement of s 9A) by Beazley JA (as her Honour then was) in A & G Engineering Pty Ltd v Civitarese (1996) 41 NSWLR 41, 43G. ([62]–[63])

(Lennon v TNT Australia Pty Ltd [2013] NSWCA 77; 11 DDCR 521 referred to)

6. The argument run by GIO was essentially simple, the construction of s 17(1)(a) is based on the natural and ordinary meaning of the words. The worker was employed by the Club, in ‘noisy’ employment, up to 1982. Her employment with the Club continued, it was a single employment. She was still employed by the Club when she gave notice of injury on 9 December 2016. The injury was deemed to have happened “at the time when the notice was given”, applying the natural and ordinary meaning of the words in s 17(1)(a)(i). This was consistent with the well-known passage in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27. ([64])

7. It was common ground that the Club employed the worker in ‘noisy’ employment, to the nature of which the injury was due. No party argued to the contrary. No party submitted that the worker’s claim should have failed. It followed that the proviso identified by Kirby ACJ in Lobley was satisfied. The Club was “that employer”, as the term was used by Kirby ACJ. In the terms employed in the passage of Smith v Mann [1932] HCA 30; 47 CLR 426 (Smith v Mann), the Club, to which she gave notice of injury on 9 December 2016 whilst she remained in its employ, was an employer who employed or had employed the worker in ‘noisy’ employment. This was sufficient to engage the application of s 17(1)(a)(i). It followed that the deemed date of injury was the date when notice of injury was given, 9 December 2016. The clear words of s 17(1)(a)(i) were satisfied. ([65]–[71])

(Wilson v State Rail Authority of New South Wales [2010] NSWCA 198; 78 NSWLR 704; Rico Pty Ltd v Road Traffic Authority (1992) 28 NSWLR 679; 8 NSWCCR 515; Smith v Mann; Lobley, and Hay v Commonwealth Steel Company Pty Ltd [2018] NSWWCCPD 31 (Hay) applied)

8. The Acting President was of the view that the alternative proposition, consistent with the argument of CEM, would involve adding a further requirement for the operation of s 17(1)(a)(i), which goes beyond the language of the text. ([72])

9. Support for Acting President Snell’s approach may be drawn from the observations of Kirby ACJ in Lobley and Grate Lace Pty Ltd v Thiess Watkins White Constructions Pty Ltd (1995) 12 NSWCCR 365 (Grate Lace). The matters identified by his Honour represent part of the context of s 17(1), the “mischief or object to which the statute was directed”. It is common, for workers involved in ‘noisy’ employment, who give notice to their current employer, to have been in such employment over a period, during which the duties (and noise levels) will have changed from time to time. The construction which the Acting President reached had the advantage of simplicity. Notice is given to the employer, and this identifies the deemed date of injury, which also identifies the insurer. If the alternative construction were adopted, it would be necessary to have regard to when it could be established the employment was last ‘noisy’. This would be of practical interest to insurance interests. It tends to move the dispute more to one about true causation, contrary to the observations by Kirby P in Grate Lace, as adopted by Roche DP in StateCover Mutual Ltd v Cameron [2014] NSWWCCPD 49 (Cameron No 1). It has the capacity to encourage litigation and to increase legal costs. The current matter was an example of this potential. The amount at issue was small, and the facts were (in the current matter) uncontentious. The matter had already been to an arbitral determination, followed by the current appeal, because of disputation about fixing the deemed date of injury (and the associated insurance consequences). ([41], [47], [65], [73])

10. Acting President Snell could not see that StateCover Mutual Ltd v Cameron [2015] NSWCA 127; 13 DDCR 272 (Cameron No 2) assisted the worker’s argument. Section 18, the subject of Cameron No 2, is quite unlike s 17(1)(a). ([77])

11. The worker in this appeal submitted that the Arbitrator, referring to the reasons of the Chief Justice in CIC Workers Compensation (NSW) Ltd v Alcan Australia Ltd (1994) 35 NSWLR 169; 10 NSWCCR 642, correctly identified the inquiry as one going to “the nature of the employment and not to the contract or fact of employment”. Section 17(1)(a) directs attention to both the employment relationship and the nature of the employment duties. The inquiry is not limited to “the nature of the employment”, nor is it divorced from a consideration of “the contract or fact of employment”. The question posed by s 17(1)(a)(i) is whether, at the time notice was given, the worker was “employed in an employment to the nature of which the injury was due” (emphasis added). The provision focuses on both whether the employment was of the nature to which the injury was due, and whether the worker was employed in that employment at the time notice was given. This is quite different to the inquiry required by s 151AB. Basten JA in Cameron No 2 described the language of s 151AB as “critical to the outcome in that case”. ([78])

12. The view the Acting President adopted was consistent with that adopted by Wood DP in Hay. On that construction, there is no requirement in s 17(1)(a)(i) that the relevant employment have continued to be noisy, as at the date when notice of injury is given. It was apparent why the Deputy President expressed herself as she did, on the basis that requiring ongoing ‘noisy’ employment, up to the date of notice, involved reading words into the provision. There was no error in the reasons of Deputy President Wood in Hay. ([81])

Conclusion

13. The Arbitrator erred in the construction which he accepted, of s 17(1)(a) of the 1987 Act. In Acting President Snell’s view, the accepted factual circumstances were such that s 17(1)(a)(i) was engaged, and the deemed date of injury was the date of notice, being 9 December 2016. ([82])