Citra Constructions Limited; John Holland (Constructions) Pty Limited and Concrete Constructions Pty Limited T/As Concrete Constructions- John Holland Joint Venture and John Holland (Constructions) Pty Limited v John Costello [1989] ACTSC 1 (10 January 1989)

SUPREME COURT OF THE ACT

CITRA CONSTRUCTIONS LIMITED; JOHN HOLLAND (CONSTRUCTIONS) PTY. LIMITED AND
CONCRETE CONSTRUCTIONS PTY. LIMITED T/AS CONCRETE CONSTRUCTIONS- JOHN HOLLAND
JOINT VENTURE and JOHN HOLLAND (CONSTRUCTIONS) PTY LIMITED v. JOHN COSTELLO
S.C. No. 1451 of 1986
S.C.A. No. 43 of 1987
S.C.A. No. 44 of 1987
Appeal

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Gallop J.(1)

CATCHWORDS

Appeal - workers' compensation claims for percentage loss of hearing - sufficiency of evidence - means of ascertaining percentage loss - need for expert evidence

Campisi v. General Motors Holden's Ltd (1957) SR(NSW) 477

Stevenson v. Buchanan & Brook Pty Ltd (1971) VR 503

Sadler v. Commissioner for Railways (NSW) (1969) 43 ALJR 393

Australian Iron & Steel Pty Ltd v. Jansen (unreported decision of NSW Court of Appeal, 5 September 1983)

HEARING

CANBERRA
10:1:1989

ORDER

The appeal in each case be allowed.

DECISION

On 7 August 1986 Magistrate Ward, sitting as an Arbitrator in the Magistrates Court, Canberra, made three awards in favour of the respondent/worker against three separate employers of the respondent between 1961 and 1986 in respect of hearing loss sustained to varying degrees during the periods of employment with the three employers. Those three employers have appealed against the award made in each case.

2. The appellant Citra Constructions Limited (Citra) employed the respondent from 1961 to 1973 and was found liable for 60 percent of the respondent's measured hearing loss as at 13 December 1983, which was the date when the respondent's hearing loss was first assessed by an ear, nose and throat specialist. The appellant John Holland Constructions Pty Ltd (John Holland) employed the respondent from 1973 to 1982 and was found liable for 34 percent of the respondent's measured hearing loss as at 13 December 1983. The third appellant, Concrete Constructions-John Holland Joint Venture (the Joint Venture) employed the respondent from 1982 to the date of hearing of the applications in the Magistrates Court and was found liable for 6 percent of the respondent's measured hearing loss at 13 December 1983.

3. The evidence established that when the respondent's hearing loss was measured again by the same ear, nose and throat specialist on 6 February 1986 it had deteriorated by 13.3 percent. The Magistrate held that this deterioration was solely attributable to his employment with the Joint Venture and found the Joint Venture liable for that 13.3 percent increase in loss of hearing.

4. Section 10 of the Workmen's Compensation Ordinance 1951 (the Ordinance) provides for payment of lump sum compensation to a workman who has suffered an injury arising out of or in the course of his employment and, where the workman has suffered a percentage loss of one of the injuries specified, for payment of proportionate compensation based upon that percentage loss. Loss of hearing is a lump sum injury and, subject to establishing the proportionate loss of hearing attributable to each employer, the respondent was entitled to an award proportionate to that percentage loss of hearing against each of the present appellants.

5. The Magistrate calculated the proportion of the respondent's loss of hearing attributable to each appellant. The thrust of the appellants' appeals is that the Magistrate was in error because there was insufficient evidence to support his conclusions of fact.

6. It is necessary to examine the Magistrate's findings of fact and the evidence to support those findings. He found that the respondent worked with machinery in various jobs prior to his job with Citra. He found that prior to Citra the machines on which the respondent worked made very little noise. When he started with Citra he was subjected to a particularly noisy machine, a G.M. Excavator, a "Linkbelt", with a faulty muffler and was obliged to put up with this machine for three to four years. It was this machine that caused a ringing in the respondent's ears and "launched him well on the path to deafness". Other machines used over the next 15 years or so were noisy, but not as bad as this machine. The Magistrate also found that the noise level at Citra was greater and caused proportionately more deafness than the noise level at either John Holland or the Joint Venture, which "noise-wise" were approximately level with each other.

7. The medical evidence was confined to two reports by Dr Gerard Crisp, ear, nose and throat surgeon, dated 16 December 1983 and 25 March 1986. They read respectively:
Report of 16 December 1983

"This man was examined, at your request, on 13th
December 1983 in relation to his loss of hearing. For
the past 7-8 years, he has had difficulty hearing
conversation, particularly in the presence of
background noise. There is no past history or family
history of deafness. There is no complaint of tinnitus
or vertigo.
He gave a history of industrial noise exposure from the
age of 25 years until now, operating cranes,
excavators, bulldozers and other heavy equipment.
During this time, he has worked for a number of
different construction companies and is presently on
the new Parliament House site.
On examination, his ears appeared normal. Pure tone
audiometry demonstrated a bilateral sensorineural
hearing loss which is more marked in the high
frequencies and consistent with an industrial hearing
loss. The percentage loss was calculated allowing for
his age, and was 31.8% on the right and 46.3% on the
left. This gives an effective binaural hearing loss of
34.7%. This is a permanent inner ear hearing loss. It
is the combined result of noise exposure suffered under
a number of employers since the age of 25 years and it
would not be possible to calculate the proportion due
to each employer."
Report of 25 March 1986
"I have your request of February 18. 1986 for a further
report on Mr. Costello. He was reexamined with
audiometry on February 6. 1986.
His audiogram shows a bilateral industrial hearing
loss, which is calculated, allowing for age, at 47.1%
on the right and 53.9% on the left. This gives an
effective binaural hearing loss of 48%. Thus his
hearing has deteriorated by some 13% since he was
previously tested on 13.12.83.
This further hearing loss would be consistent with the
effects of continued noise exposure at work since
December 1983."

8. Notwithstanding the fact that Dr Crisp found it impossible to calculate the proportion of hearing loss attributable to each employer over the 25 years prior to his examination of the plaintiff on 13 December 1983, the Magistrate was not impeded by any such difficulty and found himself in a better position than Dr Crisp to make the respective assessments on the material before him.

9. The evidence of the respondent was that he was born in Ireland on 15 November 1926 and was 59 years of age. He came to Australia in 1952 at the age of 25. For the first 12 months he worked at home on a farm and then for another three years as a farm labourer in Western Australia. He went to the Snowy Mountains Scheme in 1955 and worked as an excavator operator until 1957. He then moved to Canberra and worked as a crane driver from 1957-1958. He went back to the Snowy Mountains and was working on excavators and cranes from 1958-1961. Up till that time he had noticed no problem at all with his hearing. Asked whether the excavators he was working on were noisy machines he said that they were not; they were about average for that time. From 1955-1957 he was driving a small crane like a tractor with a boom and slightly larger than a farm tractor. Asked whether that machine made some noise, he said "very little".

10. In the next three years he worked on big excavators and cranes. Asked whether they made a noise, he said "Yes, any motor makes a noise". He described that noise as not great because the machines had a very big cabin and he as the driver was a long way from the motor. He spent most of his time on the excavators until he came to the Australian Capital Territory in 1961 and commenced work with Citra driving an excavator.

11. He drove the first machine for "maybe three or four years". It was a "Link Belt", an excavator with a large mechanical arm powered by a diesel motor. Later in his evidence he described that machine more fully. He said it was extra noisy because of the muffler system. He usually worked eight hours a day, six days a week for up to three years. At that time he noticed ringing in his ears after that machine nearly every afternoon for about an hour after work.

12. He then moved to a second machine known as a "22 Rushton" which was a new machine. It made a noise but not as much. He described it as 50 percent less noisy than the first machine. He did not suffer the ringing in his ears when driving the second machine. While working the 22 Rushton he noticed that he had a little bit of trouble hearing people at lunchtime when there were other people around the table talking together. He thought his hearing was deteriorating. He then moved to another machine known as a "30 Rushton" machine. It was a larger new excavator. The motor of that machine made a noise, but the noise was slightly less than the noise on the model 22 Rushton and a lot quieter than the first machine. He had no trouble with ringing in his ears when working on the third machine. That was the totality of his evidence in relation to his employment by the appellant Citra.

13. He commenced with John Holland in 1973 and drove an excavator for 18 months to two years. It made a similar noise to the model 30 Rushton which he had driven for Citra. It had a very good exhaust system and an efficient muffler. Then he drove a mobile crane which made about the same noise as the excavator he drove for John Holland. While working on those two machines he did not have any trouble with ringing in his ears. Nor did he notice any change in his hearing, but he knew he had a problem because he could not hear people talk. He then worked on a number of other machines for John Holland. The noise levels of these machines were about the same as the excavator and crane and they were reasonably new machines.

14. While still working for John Holland he went to work in Newcastle for roughly three years. While doing that work he noticed that his hearing was getting worse. That was the totality of the evidence in relation to the appellant John Holland.

15. He came back to Canberra in 1982 and started work at Parliament House for the Joint Venture. He was driving mobile cranes. He noticed his hearing was getting worse. When asked about the noise level in the cranes by comparison to the Linkbelt excavator that he had worked when employed by Citra, he said the Linkbelt is a different type of noise because it screams more. He described the types of machines that he was driving for the Joint Venture and said that those types might be louder, but did not seem to affect him as much as "it was more of a continuous burr". While working for the Joint Venture at Parliament House he has noticed trouble sorting out the two way radio and unravelling conversations "when there is a lot of blokes in the shed". At home he cannot hear the television if there is any background noise and he cannot hear other people talking unless the person is in front of him and he can see him talking. That was the totality of the evidence against the appellant Joint Venture.

16. It is unnecessary to set out all of the respondent's evidence in cross-examination. He said that he had been going deaf since the early 1960s, which is a lot more than 10 years. He regarded it as a serious problem from the early or mid 1960s. He said it was difficult for him to look back over all the years that he has been working and assess how his hearing loss was at one particular point of time compared with how it was at another point of time. He knows that it is a lot worse now than it was 20 years ago and over that period of time seems to have got worse. He said that the process of worsening has increased in the last few years.

17. The primary submission on behalf of the appellant Citra, which was adopted on behalf of the second and third appellants, was that the evidence was insufficient to enable the apportionment of hearing loss between the three employers. Counsel noted, en passant, that the apportionment between the three appellants of the liability for the respondent's hearing loss seems to equate to the periods of employment of the respondent with each such appellant. It was submitted that, as the only evidence of noise levels while working with each appellant was the subjective assessment of the respondent himself, the Magistrate lacked material upon which to frame his final apportionments.

18. The respondent's entitlement to compensation against each appellant derives from s.10(6) of the Ordinance, which reads:

"(6) Where a workman sustains an injury which
causes partial and permanent loss of the efficient use
of a part of the body specified in the Second Schedule
to this Ordinance in and for the purposes of his
employment at the date of the injury, there shall be
payable an amount of compensation equivalent to such
percentage of the amount of compensation payable under
this section in respect of the loss of that part as is
equal to the percentage of the diminution of the
efficient use of that part."

The part of the body specified in the Second Schedule to the Ordinance is "loss of hearing".

19. In New South Wales and Victoria it is now well established that the loss which is a compensable injury against an employer is the difference between the hearing (or vision) prior to the injury and the hearing (or vision) afterwards (Campisi v. General Motors Holden's Ltd (1957) SR(NSW) 477 and Stevenson v. Buchanan & Brock Pty Ltd (1971) VR 503).

20. In Campisi's case the Full Court of the Supreme Court of New South Wales, in construing s.16 of the Workers' Compensation Act 1926-54 (NSW), held that the words "percentage of the diminution of sight" clearly mean the percentage by which the applicant's sight has been reduced in consequence of the injury. Street C.J. held that in order to ascertain the percentage by which the sight has been reduced, it is necessary to find, first, what was the state of the worker's vision before the injury, and then ascertain to what extent that vision which he then possessed has been reduced. Hardie J. was of the same view. He said that the percentage of loss of sight is to be calculated by comparing the worker's post-injury sight with his pre-injury sight. Owen J. agreed with the reasons for judgment of the Chief Justice and those of Hardie J.

21. In Stevenson's case the employer had followed the trade of a boilermaker for 50 years and suffered a loss of hearing during that time as a result of exposure to noise. When he commenced employment with the respondent/employer in 1940 there had already been a partial loss of hearing due to his trade. But the percentage of loss then existing could not be assessed. His employment thereafter with the respondent materially contributed to a loss of hearing. In October 1966 the loss of hearing was measured at 25.9 percent binaural loss of the normal standard of hearing, determined without regard to any age factor. In November 1966 he made a claim for workers' compensation for injury consisting of loss of hearing. The Workers' Compensation Board made an award in his favour on the basis of 26 percent loss of the hearing of both ears.

22. It was held by the Full Court of the Supreme Court of Victoria that it was not open to the Board to make an award based on a percentage of the normal standard of hearing and to disregard the lesser part played by the particular employment; and it should have made an award based on the loss of hearing suffered during the period of employment expressed as a percentage of the hearing existing at the beginning of the particular employment. Gowans J. (with whom Winneke C.J. agreed) said at p 514, adopting the view suggested by Windeyer J. in Sadler v. Commissioner for Railways (NSW) 43 ALJR 393 at 397, that the product of (the) injury is the reduction of hearing it produced and that the diminution or reduction would therefore be the difference between the hearing before the employment contributed to its deterioration and the hearing after it had so contributed. Gowans J. observed that the identification of the beginning of the period when the hearing should be first measured is the commencement of the employment and that the measurement of the hearing at that time does present some difficulty where a medical assessment has not been made at that time; but it is a question of fact to be determined on the available evidence.

23. He concluded that once the difference is ascertained between the measure of the hearing at the time of the commencement of the employment and the measure of the hearing at the time of the medical assessment, and that difference is turned into a percentage of the hearing at the former time, the amount of the compensation is to be ascertained by taking that percentage of the specified sum.

24. Gillard J. was of the same view. He said (at p 517) that the compensable injury is a "loss" and in order to ascertain whether there is a compensable injury it becomes necessary to determine the condition of the hearing at the time of the claim for compensation and to compare it to the condition of hearing at some anterior period. Injury involves showing a diminution of hearing in relation to the condition of hearing at an earlier period. The compensable injury is the end result of the diminution of hearing suffered during the employment. Diminution in the relevant sense means the lessening of the ability to hear from the condition of the hearing as it existed at the beginning of the employment. In summarising his views (at p 519), he said the compensation payable for a partial loss of hearing is calculated by discovering the actual impairment in a worker's hearing due to his employment at a specified date in relation to and as a fraction of the state or condition of his hearing at the time of the commencement of his employment. He then adverted to the fact that great difficulty can be encountered in attempting to discover the state or condition of the worker's hearing at the time of his engagement.

25. In my opinion these observations are equally applicable to s.10(6) of the Ordinance and should be adopted.

26. On the above evidence the Magistrate does seem to have come to conclusions on inadequate material. For instance, the finding that while working for Citra the respondent was subjected to a particularly noisy machine with a faulty muffler and this machine caused ringing in his ears and "launched him well on the path to deafness" was not supported by the respondent's evidence and was otherwise unsupported by any medical evidence.

27. In my opinion the evidence of the respondent alone lacks cogency and does not support the apportionments made by the Magistrate. The respondent himself, as a layman, is not able to establish from his subjective feelings the necessary connection between the noisy conditions in which he worked and his loss of hearing which has happened over a period of some 20 years. The respondent simply did not have the expertise to give that evidence. The same evidentiary defect confronted the unsuccessful worker in Australian Iron & Steel Pty Ltd v. Jansen (unreported decision of NSW Court of Appeal, 5 September 1983).

28. No scientific or other form of expert evidence was called to establish the causal connection between the conditions of employment with each appellant and the proportionate loss of hearing during each period of employment. In the absence of that evidence it is just not possible for the respondent's case to be made out. There was, for instance, no evidence of the significance of the ringing in the ears which the respondent experienced whilst in the employment of Citra in the early 1960s, or of the ringing having stopped when he changed machines. There was no evidence of the significance of the respondent's difficulties in unravelling conversations or hearing the television or the two-way radio difficulties. Yet the Magistrate was able to find that the ringing in the ears indicated that he had been "launched ... well on the path to deafness".

29. So far as the appellants Citra and John Holland are concerned, there is simply no starting point or indeed finishing point for measuring the respondent's loss of hearing. All that is established is that by 13 December 1983, by which time both Citra and John Holland had ceased as the respondent's employers, the respondent had a measured hearing loss of 34.7 percent.

30. With regard to the appellant Joint Venture, it was the employer both before 13 December 1983, when the loss of 34.7 percent was measured, and after 13 December 1983. There was no measurement of hearing loss at the commencement of that employment. It was not possible to measure the loss between the commencement date and 13 December 1983. It was still the employer when the second measurement was made on 13 February 1986 and when there had been a deterioration by some 13 percent since the previous testing on 13 December 1983. But there was no evidence to establish that that deterioration was attributable to the employment by the appellant Joint Venture.

31. It follows that in each case the appeal should be upheld.

32. I think it is appropriate to give all counsel an opportunity to be heard on what further order should be made in relation to each appeal. Section 26 of the Ordinance provides that Part XIXA of the Court of Petty Sessions (Civil Jurisdiction) Ordinance 1982 applies in relation to an appeal as if it were an appeal from a judgment or order of a kind specified in sub-s.282C(2) of that Ordinance. That Ordinance has since been retitled Magistrates Court (Civil Jurisdiction) Ordinance 1982. Section 282J, which is contained in Part XIXA, sets out the powers of the Supreme Court on appeal, including the power to remit the proceedings to the Magistrates Court for further hearing and determination. I shall defer making any final orders until counsel have been heard.