Issue 2: February 2019

(a) Ground 1: The Arbitrator erred in law in considering that s 17 of the 1987 Act had application in respect of the question of injury (as opposed to it being a deeming provision in respect of liability);

(b) Ground 2: The Arbitrator erred in fact and law in his consideration and determination of the issue of “main contributing factor”;

(c) Ground 3: The Arbitrator erred in fact and law in his consideration and determination of the issues under ss 254, 260 and 261 of the 1998 Act, including by reversing the onus of proof and making a finding which was against the weight of the evidence;

(d) Ground 4: The Arbitrator erred in law in making a distinction between loss of hearing and a further loss of hearing;

(e) Ground 5: The Arbitrator erred in fact and law in his consideration of the advice given to the appellant by Hearing Aid Services Australia on 12 August 2016, and

(f) Ground 6: The Arbitrator erred in denying Fairfield procedural fairness.

Held: The Certificate of Determination dated 31 July 2018 was confirmed.

Whether the decision appealed against is interlocutory in nature

1. The determination of whether an order is final or interlocutory requires a consideration of whether the determination finally determines the rights of the parties in respect of a principal cause pending between them. The question is answered by determining whether the legal, rather than the practical, effect of the judgment is final. ([30])

(Despot v Registrar General of New South Wales [2016] NSWCA 5 per Gleeson JA (Leeming JA and Sackville AJA agreeing), [93] applied)

2. Deputy President Wood held that the Arbitrator had determined the substantive issues of injury, and whether Mr Deguara gave notice of injury and brought his claim for compensation within the time limits prescribed by ss 254 and 261 of the 1998 Act. Those principal issues between the parties had been finally dealt with and on that basis the Arbitrator’s determination was final, rather than interlocutory. ([31])

Ground 1

3. Fairfield submitted that s 17 of the 1987 Act simply provides a mechanism for determining a deemed date of injury and fixes the date of injury. ([176])

4. Deputy President Wood found that s 17 is a separate and special provision of the 1987 Act that is distinct from ss 15 and 16 of the 1987 Act. Sections 15 and 16 do not extend to include s 17, which is specifically excluded from the application of ss 15 and 16 (ss 15(5) and 16(4)). It provides that the injury is deemed to have occurred at either the time the notice was given if the worker was employed in “employment to the nature of which the injury was due”, or if the worker is no longer in such employment, on the last day upon which the worker was so employed. ([177]–[180])

(Blayney Shire Council v Lobley (1995) 12 NSWCCR 52 and Rico Pty Ltd v Road Traffic Authority (1992) 28 NSWLR 679; 8 NSWCCR 515, 689–690 referred to)

5. Section 17 does not simply provide “a mechanism for determining a deemed date of injury and [fix] the date of injury”, as asserted by Fairfield. It creates a series of fictions and presumptions on which a worker’s entitlements are based. It dispenses with the need to establish causation. Where there is a loss of hearing that is of such a nature to have been caused by gradual process, s 17(1) provides that it is taken to be an injury. The Arbitrator did not fall into error in the application of s 17 and his consideration of the question of “injury”. This ground of appeal failed. ([184]–[185])

(A & G Engineering Pty Ltd v Civitarese (1996) 41 NSWLR 41; 14 NSWCCR 158 (Civitarese) per Beazley JA (as her Honour then was) (Handley and Sheller JJA agreeing), [57] applied)

Grounds 2 and 4

6. Section 17 of the 1987 Act is not concerned with establishing true causation of the hearing loss, but “proceeds on a series of fictions or assumptions”. It is concerned with the determination of the identity of the employer who employed the worker in employment to the nature of which the injury of boilermakers’ deafness was due. That is, the employer who employed the worker in employment whose tendencies, incidents and characteristics could give rise to a risk of industrial deafness. A worker does not have to establish that his or her employment with the respondent brought about or contributed to the disease (the hearing loss). ([190])

(Civitarese applied)

7. The very purpose of s 17 of the 1987 Act is to remove the need for a worker to establish a causal connection between his noise induced hearing loss and his employment. After noting Fairfield’s submission that Lobley and Civitarese were decided before the amendment to s 4(b) was introduced into the 1987 Act requiring employment to be the main contributing factor, Deputy President Wood held that the text of s 17 has not changed, and so the authorities that have interpreted the meaning of the text are still applicable. Section 17 is a separate provision to s 15 and s 16 and is an exception to the requirement to establish a causal connection. Section 15(4A) of the 1987 Act qualifies the phrase “employment to the nature of which an injury was due” by stating that such a reference includes “a reference to employment the nature of which was a contributing factor”. The qualification applies only for the purpose of s 15. There is no equivalent qualification in s 17. ([191])

8. Sections 15 and 16 of the 1987 Act specifically refer to the injury being a “disease” of gradual process (s 15) or an aggravation, exacerbation or acceleration of a disease (s 16). Section 17 makes no reference to the word “disease” and there is no indication in the legislation as to whether it should be considered as a “disease injury” for the purposes of s 4(b)(ii) of the Act or whether the requirement to establish that employment was a main contributing factor applies to the hearing loss injuries. The concept of main contributing factor encompasses considerations going to causation. The authorities establish that, for the purposes of establishing injury of the kind referred to in s 17(1) of the 1987 Act, all that is required is to show that the employment had the tendencies, incidents and characteristics of noisy employment. The authorities continue to apply to claims for compensation made on or after 19 June 2012.

(Ware v NSW Rural Fire Service [2014] NSWWCCPD 33, [83]–[90]; State Transit Authority of New South Wales v El-Achi [2015] NSWWCCPD 71, [89]–[91] applied)

9. On the basis of the above, Deputy President Wood held that it cannot be accepted that the hearing loss provisions contained in s 17 are subject to the qualification that employment must be the main contributing factor to or aggravation of the condition. It was not necessary for the Arbitrator to have considered whether employment was a main contributing factor to the injury or the aggravation. ([193]–[194])

10. It was convenient for the Deputy President to incorporate the fourth ground of appeal in this discussion and deal with it. Mr Deguara made a claim for hearing loss in 1992 for which he received compensation in 1993. He continued in employment with Fairfield in employment that had the tendencies, incidents and characteristics of employment that had the real risk of causing sensori-neural hearing loss. That was not disputed. ([197]–[198])

11. Deputy President Wood held that Mr Deguara’s hearing loss injury claimed in 1992 was a separate injury to that claimed on 21 April 2017. As submitted by Mr Deguara, his compensable hearing loss assessed in 1992 had been made worse by further ongoing exposure to noise within his employment up to 2013, when he ceased employment. If it was accepted as a disease, then the further exposure could only be considered an aggravation of the existing condition, just as if he had suffered a back injury and further suffered injury to the back which worsened (or aggravated) his back condition. Mr Deguara’s existing sensori-neural hearing loss had been made worse, which was an “aggravation” injury. ([202]–[203])

(Sukkar v Adonis Electrics Pty Ltd [2014] NSWCA 459 applied)

12. If there was a requirement that employment be the main contributing factor, Mr Deguara would succeed in any event. ([204]–[208])

(Murray v Shillingsworth [2006] NSWCA 367; 68 NSWLR 451 referred to)

13. Deputy President Wood determined that the requirement for employment to be the main contributing factor did not apply to a s 17(1) injury. The Arbitrator was delivered somewhat of a red herring by the parties’ submissions, which proceeded on the basis that it did apply. Nonetheless, his conclusion as to the application of that requirement to an aggravation injury was correct. Fairfield’s allegation that the Arbitrator erred in fact and law in his consideration of “main contributing factor” was unfounded and ground 2 of the appeal failed.

14. The allegation in ground 4 of the appeal that the Arbitrator erred in law in making a distinction between loss of hearing and further loss of hearing also failed. ([210])

Ground 3

15. The Arbitrator determined that special circumstances existed in respect of Mr Deguara’s failure to give notice of injury in accordance with s 254(2). He identified those special circumstances as there being no prejudice to the employer (s 254(3)(a)), and the failure was occasioned by ignorance (s 254(3)(b)). The Arbitrator identified the ignorance as being Mr Deguara’s lack of awareness of his injury. Even if the Arbitrator erred in respect of his acceptance that Mr Deguara’s failure to give notice of injury was occasioned by ignorance, Fairfield conceded in the appeal that it could not show any prejudice because of the lateness of the claim. The absence of prejudice was of itself a special circumstance which removed the bar to the recovery of compensation for the purpose of s 254. On that basis alone, there was no reason to overturn the Arbitrator’s determination in respect of s 254. ([212]–[213])

16. In relation to s 260 of the 1998 Act, there was no issue raised in the proceedings before the Arbitrator that the claim made by Mr Deguara did not comply with the requirements set out in that section. The submissions made on appeal did not address any such alleged non-compliance. The Arbitrator’s note in his reasons at [53] that it was “common ground” that the claim made on 21 April 2017 satisfied the requirements of s 260 accurately reflected the position of the parties. In the circumstances, Fairfield’s allegation that the Arbitrator had erred in respect of s 260 was unfounded. ([214])

17. The Arbitrator recorded that it was also common ground that Mr Deguara’s claim satisfied the requirements of s 261 of the 1998 Act. That was not the case, and whether s 261 was satisfied was a live issue before him. Despite having made that notation the Arbitrator proceeded to determine that very issue. He considered the submissions of the parties, the requirements of the section and relevant authorities. The Arbitrator’s error in that notation was not a material error. His reasoning process and ultimate determination on that issue was not infected by that error and did not provide a basis upon which the Arbitrator’s ultimate determination could be set aside. It could not be said that other probabilities so outweigh that chosen by the Arbitrator that the decision was wrong. Nor could it be said that material facts had been overlooked, or given undue or too little weight in deciding the inference to be drawn, or the available inference in the opposite sense to that chosen by the Arbitrator was so preponderant that the Arbitrator’s decision was wrong. ([215]–[221], [231])

(Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156, [19]–[20] applied)

18. Fairfield also alleged that the Arbitrator reversed the onus of proof. Its submissions referred only to the Arbitrator’s observation that he could not draw an inference that Mr Deguara became aware of his injury earlier than 28 February 2017. In doing so, the Arbitrator assessed the primary facts based on the evidence before him and the inferences he could (or could not) draw from those facts. That did not amount to a reversal of the onus of proof. ([232])

19. It followed that on the basis of all of the above, ground 3 of the appeal failed. ([233])

Ground 5

20. Fairfield’s complaint as to the Arbitrator’s finding in relation to the advice Mr Deguara received from Hearing Aid Services Australia has been dealt with in the discussion and findings in respect of ground 3 of this appeal. Deputy President Wood had rejected the allegation of error on the part of the Arbitrator’s consideration of that evidence. It followed that ground 5 of this appeal failed. ([234])

Ground 6

21. Fairfield alleged two bases upon which it was denied procedural fairness. Firstly, it alleged that it was denied the opportunity to address the Arbitrator in respect of the qualifications of the person from Hearing Aid Services Australia who conducted the audiological examination and report. There was no basis upon which to correct any error on behalf of the Arbitrator by failing to afford Fairfield the opportunity to call evidence or make submissions as to the qualifications of the person conducting the audiological test. ([235]–[244])

(Toll Pty Ltd v Morrissey [2008] NSWCA 197; 6 DDCR 561 applied)

22. The second basis upon which Fairfield alleged it was denied procedural fairness was the Arbitrator’s decision to deny Fairfield the opportunity to cross-examine Mr Deguara’s legal representative, Mr Dougall. Deputy President Wood held that there is no legal right to cross-examine in the Commission and the Arbitrator’s decision as to whether cross-examination ought to be allowed was a discretionary one. ([246]–[249])

(Aluminium Louvres & Ceilings Pty Ltd v Zheng [2006] NSWCA 34 applied)

23. In order to disturb the Arbitrator’s determination not to allow cross-examination of Mr Dougall, Fairfield was required to establish that the Arbitrator erred in respect of the exercise of that discretion. The principles governing an appeal against an Arbitrator’s discretionary exercise are well established. It must be shown that the Arbitrator has:

(a) acted upon a wrong principle;

(b) taken into consideration extraneous or irrelevant matters;

(c) mistaken the facts, or

(d) failed to take into account a material consideration. ([250])

(Electrolux Home Products Pty Ltd v Richey & Email Ltd [2006] NSWWCCPD 242; 6 DDCR 426, [45] applied)

24. The Arbitrator determined that, on the basis of the reasons put forward for the application, he was not satisfied that cross-examination of Mr Dougall would clarify or test Mr Dougall’s evidence. It was wrong to say the Arbitrator gave no consideration to the application. The Arbitrator considered and applied the correct principles. Fairfield did not indicate error on the part of the Arbitrator by taking into account irrelevant matters, by mistaking the facts, or a failure to consider a material fact. The Arbitrator formed the view, as he was entitled to do, that the evidence of Mr Dougall was simply a procedural history of the claim, and cross-examination of that evidence would not assist. ([254]–[255])

25. Ground 6 of the appeal had not been made out and failed. ([257]–[258])

(a) Ground 1: failing to take into account, or give sufficient weight to, the appellant’s evidence and provide adequate reasons as to findings;

(b) Ground 2: primarily determining the issue on the basis of an absence of contemporaneous complaint of injury to the left leg;

(c) Ground 3: misdirecting herself in respect of her statutory task by inappropriately relying on the decision of Moriarty-Baes v Office Works Superstores Pty Ltd [2015] NSWWCCPD 28 (Moriarty-Baes), and

(d) Ground 4: rejecting and/or not properly considering the opinion of Dr Patrick in relation to the question of causation and diagnosis of the injury to the left leg.

Held: The Certificate of Determination dated 16 August 2018 was revoked, there was a finding that the worker’s left knee condition was a consequential condition resulting from the right knee injury on 18 December 2000, and the matter was remitted to the Registrar for referral to an AMS.

Discussion

1. The worker’s principle argument on appeal was that the Arbitrator was in error in rejecting Dr Patrick’s opinion. It was convenient for Deputy President Wood to deal with that part of the appeal first. The issue traverses grounds 1 and 4. ([118])

2. The Arbitrator took into consideration that Dr Patrick had not provided a diagnosis. The lack of a diagnosis was a matter raised by Shannons in its submissions at arbitration, and the worker responded with submissions in reply. It was not clear why the parties pursued a path to identify a diagnosis, or why ultimately the Arbitrator thought that the lack of a diagnosis was a factor that detracted from the adequacy of Dr Patrick’s explanation for his opinion. The distinction between a finding of injury pursuant to s 4 of the 1987 Act and a condition consequent upon an injury is clear. ([131]–[134])

(Bouchmouni v Bakhos Matta t/as Western Red Services [2013] NSWWCCPD 4; 14 DDCR 223 applied)

3. In the present case, the provision of a diagnosis of the worker’s left knee condition was not necessary and any failure on the part of Dr Patrick to find a diagnosis was not a basis upon which to reject Dr Patrick’s evidence or the worker’s claim. ([140])

4. The Arbitrator also formed the view that Dr Patrick failed to “explain what has occurred”. ([141])

5. The factual basis upon which Dr Patrick’s opinion rested was uncontroversial. Further, there was no evidence to contradict that of Dr Patrick. As a general proposition, a decision maker is not obliged to accept evidence on the basis that there is no evidence to the contrary. However, the evidence was consistent with the historical medical evidence and the worker’s statement evidence. It was not inherently incredible, and provided a logical basis on which the necessary causal connection could be established. ([143])

(SZRTN v Minister for Immigration and Border Protection [2014] FCAFC 129 and Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 applied)

6. The Arbitrator’s conclusion in respect of Dr Patrick’s evidence was arrived at by taking into account an irrelevant consideration (no diagnosis) and by failing to take into account material evidence. On the above basis, the rejection of Dr Patrick’s evidence constituted an error, and that error had materially affected the outcome. Grounds one and four of Mr Arquero’s appeal succeeded. It was not necessary to determine the remaining grounds of appeal. It followed that as the Arbitrator’s reasons disclosed error, the decision was set aside. It was convenient for Deputy President Wood to re-determine the matter. ([144]–[146])

Consideration

7. As was observed by Kirby P in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452, “the mere passage of time between a work incident and subsequent incapacity or death is not determinative of the entitlement to compensation”. ([150])

(State of New South Wales v Bishop [2014] NSWCA 354 applied)

8. The delay between the injury and the onset of symptoms is a relevant consideration in some cases of this nature, but in the circumstances of this case, where the worker was experiencing significant and increasing right knee symptoms, the delay in the onset of left knee symptoms was less determinative. The purported delay was also explained by Dr Patrick’s opinion that surgery in the nature of high tibial osteotomy “in many cases can result in undue strain being taken on the contralateral limb over a considerable period of time.” (emphasis added) ([152])

9. In any event the dispute between the parties was limited to whether the left knee condition was “work-related”. There was no challenge to the fact that the worker was experiencing left knee symptoms and those symptoms arose in either late 2014 or 2015. In such circumstances, nothing turned on the absence of corroborative evidence going to the presence of left knee symptoms. ([155])

10. The worker alleged that his left knee symptoms arose as a result of his right knee injury. In his statement, he provided the factual basis upon which his claim rested. The historical medical evidence provided proof of the facts relied upon and Dr Patrick provided a logical explanation for the development of left knee symptoms as a result of the right knee injury. The assumed facts upon which he relied were established. The assumed facts provided a “fair climate” for acceptance of his opinion. There was no evidence to contradict the worker’s evidence. ([160])

(Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; 62 ALR 85; 59 ALJR 844, and Brady v Commissioner of Police (2003) 25 NSWCCR 58, 76 applied)

11. Deputy President Wood found that the worker’s left knee symptoms arose as a consequence of his right knee injury. ([161])