Lopilato Bros v Luigi Marangon [1998] ACTSC 154 (19 February 1998)

  
  
  
  

  
   

  

   IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

   CRISPIN J

  

  

   Workers' Compensation Act 1951 -Sub-sections 9(2)(c) and (d) - whether
combined effect may make employer liable for hearing loss deemed to be an
injury commencing
prior to the employment with that employer - whether any
such deemed injury limited to the extent of the deterioration suffered during
the period in which the worker was employed by such employer - late service of
further report from medical practitioner - whether
adjournment should have
been granted or further report excluded.

  

  

   CANBERRA, 5 February 1998 (hearing), 19 February 1998
(decision)

   #DATE 19:02:1998

  

   Appearances

   Counsel for the appellant: Mr M Cranitch SC

   Solicitors for the appellant
Messrs Abbot Tout Harper & Blain

  

   Counsel for the respondent: Mr R Crowe

   Solicitors respondent: Messrs Gary Robb &
Associates

  

  

  

   Order:

   1 That the appeal be dismissed.

   2 That the appellant pay the respondent's cost of the appeal.

  

  

  

   CRISPIN J

   1. This is an appeal against a decision of the Magistrates Court requiring
the appellant to pay compensation
to the respondent pursuant to section 10 of
the Workers Compensation Act 1951 in respect of a 59.9% binaural hearing loss.
It was not disputed that the respondent had a significant hearing impairment
and there
was substantial agreement as to the extent of that impairment.
However, the decision was attacked on a number of grounds.

  

 
 2. By the time of the hearing the respondent had retired after a long
career during involving employment in a variety of occupations
in which he had
been exposed to very noisy conditions. He had first received treatment for
hearing difficulties at least 10 years
earlier. Counsel for the appellant
maintained that in these circumstances it could not be said that he had
suffered an injury on
19 June 1995 as the Magistrate found or at any time
during his employment with the appellant. Hence, it was contended that the
appellant
should not have been held liable. Alternatively it was argued that
if the Magistrate was entitled to find that the appellant was
liable for any
such injury then the injury in question should have been limited to the
further loss of hearing which had occurred
during the course of the
respondent's employment with the appellant.

  

   3. It was also argued that the Magistrate had erred
in refusing to grant an
adjournment given that a further medical report had been served upon the
appellant's solicitors on the day
before the hearing and, in the alternative,
that the report should not have been admitted into evidence.

   4. Whether or not the
respondent has suffered an injury as the Magistrate
found must be considered in the light of the deeming provisions in section 9
of the Workers Compensation Act 1951 as amended by section 9AA. The relevant
parts of section 9 as so amended provide as follows:

  

  

   (1) "Where -

  

   (a) a worker contracts a disease or suffers an aggravation, acceleration
or
recurrence of a disease; and (b) any employment of the worker by his or her
employer was a contributing factor to the contraction
of the disease or the
aggravation, acceleration or recurrence, as the case may be, whether or not
the disease was contracted or the
aggravation, acceleration or recurrence was
suffered in the course of that employment;

  

   sub-sections (2) to (5) (inclusive)
have effect.

  

   (2) If -

  

   (a) The death of the worker; or (b) the total or partial incapacity for
work of the worker,

  

   results from the disease, or the worker obtains medical treatment in
relation to the disease, then, for the purposes of this
Act, unless the
contrary intention appears -

  

   (c) the contraction of the [the hearing loss], or the aggravation,
acceleration
or recurrence, as the case may be, shall be deemed to be a
personal injury to the worker arising out of the employment of the worker
by
his or her employer who last employed the worker in employment of the kind
referred to in paragraph 9(1)(b); and (d) the date
of the death, the date of
the commencement of the incapacity or the date on which the medical treatment
was first obtained, whichever
is the earlier, shall be deemed to be the date
of the injury."

   5. Mr Cranitch SC who appeared for the appellant submitted that
in a case
such as the present the terms of sub-sections (c) and (d) give rise to a
potential paradox. On the facts proven in evidence
it is clear that the
appellant was the last employer of the kind referred to in sub-section
9(1)(b). Accordingly, if that sub-section
were to be considered without regard
for the terms of sub-section (d) then the contraction, aggravation,
acceleration or recurrence
of the hearing loss would be deemed to be personal
injury arising out of the employment of the worker by the appellant. On the
other
hand, sub-section (d) provides that such injury should be deemed to have
occurred no later than the date on which the medical treatment
was first
obtained, which in this case was no later than 1987. At that time the
appellant did not employ the respondent. Mr Cranitch
submitted that it could
not have been the intention of the legislature to make an employer responsible
for injuries incurred prior
to the commencement of the worker's employment
with that employer. Alternatively, he submitted that if there had been any
such injury,
then it could consist only of the additional impairment of the
respondent's hearing which had been sustained during the course of
his
employment with the appellant.

  

   6. In my view this argument is misconceived and the suggested paradox does
not arise.
The effect of sub-section (c) is to deem the contraction,
aggravation, acceleration or recurrence of the hearing loss to be a personal
injury arising out of the last employment which contributed to that condition.
The effect of sub-section (d) is to deem that injury
to have commenced at the
date of the commencement of incapacity or the first medical treatment. It is
true that the combined effect
of these sub-sections may result in an employer
being liable to pay compensation in respect of an injury deemed to have
occurred
prior to any employment with that employer. However, it is clearly
within the power of the legislature to create such liability and
it seems
clear from the terms of sub-section 9AA(d) that such an exercise in
legislative omnipotence was intended. That sub-section
provides that, in
relation to hearing loss, section 9 must be read as if a further sub-section
(6) had been added and sub-section (6)(b) clearly envisages that at the date
of the relevant
injury the worker may not have been employed by the employer
referred to in sub-section 9(2)(c). Of course, an employer may only
incur
liability in this manner if the worker's employment with that employer has
contributed to the hearing loss and the potential
for injustice may be at
least ameliorated by the right to contribution under sub-section 9(3). It was
not suggested that the Magistrate
erred in finding that the appellant was the
last such employer.

  

   7. Mr Cranitch also submitted that even if the Magistrate
had been correct
in finding the appellant liable under sub-section 9(2)(c) the finding that the
injury occurred on 19 June 1995 could
not be sustained. I accept this
submission. Sub-section 9(2)(d) must also be given full effect. Accordingly
"the date of the injury"
must have been no later than sometime in 1987 when
the respondent first obtained medical treatment. In my view the learned
Magistrate
did fall into error in finding that the respondent had suffered
injury on 19 June 1995.

  

   8. However it is by no means clear
that this error has any practical
significance. This is not a case involving an award of weekly compensation
based upon continuing
incapacity for work and the limitations on liability
contained in the notionally added sub-section (6) have no application. It is
true, of course, that the amounts payable under section 10 have been increased
progressively over the years so that the date in respect of which such an
award is made may not be without significance.
Mr Cranitch submitted that even
if an award under section 10 could properly be maintained against his client
it should have been calculated in accordance with the rates prevailing in
1987. This
submission requires a consideration of the extent, if any, to which
the deeming provision contained in sub-section 9(2)(d) may influence
awards
under section 10. It is to be noted that whilst section 10 requires that there
have been an injury, compensation will only be payable under section 10 where
the injury has resulted in an incapacity. Whilst an injury may have commenced
at a time when medical treatment is first obtained
there may be circumstances
in which that injury does not give rise to consequential incapacity until some
later time and no entitlement
to compensation under section 10 would arise
until that had occurred. In Unimin Pty Ltd v Kostrzewa [1980] 31 ACTR 3 at 7,
Connor J expressed the view that it was
unfortunate that the same word
"injury" had been used in both section 7, which then provided for compensation
in accordance with the first schedule, and section 10 because he thought it
clear that the meaning was not the same. His Honour referred to the decision
of the High Court of Australia
in Brugnoni v Hydro-Electric Commission [1957] HCA 59;  [1957]
97 CLR 548 concerning corresponding provisions in the Tasmanian legislation.
Fullagar J with whose reasons on this issue
Dickson CJ, Williams and Kitto JJ
agreed, said at 562,

  

  

   "Although the 'items' set out in r.4 are referred to, both in
the operative
part of the rule and in the heading of the second column, as 'injuries' what
is described is really in each case .
. . a condition in which the worker
finds himself as the final result of the accident, whether that result be
immediate or delayed."

  

   9. Connor J at 10, expressed the view that where a worker's condition was
deteriorating, improving or fluctuating it could
not be said that he or she
had sustained an injury specified in the second schedule until it had
stabilised to such an extent that
it could be classified and quantified with
reasonable accuracy in the circumstances. In the present case it was not
disputed that
the respondent's injury had continued to deteriorate throughout
the period of his employment with the appellant. Indeed, there was
medical
evidence to the effect that there may be some continued deterioration even
after retirement, though this was likely to be
relatively minor unless the
respondent was exposed to further noisy conditions. Whilst there may obviously
be circumstances in which
the commencement of the injury and the onset of
incapacity coincide it seems to me that sub-section 9(2)(d) does not have the
effect
of deeming the incapacity to have commenced at the time of the first
medical treatment or requiring that any entitlement to compensation
for such
incapacity be deemed, retrospectively, to have arisen at the date of such
treatment. Deafness arising from prolonged exposure
to noise usually develops
progressively over many years. No doubt it was for this reason that the
legislature chose to impose liability
on the last relevant employer rather
than leaving it to the worker to apportion liability for his or her deafness
amongst all of
the employers who may have contributed to his or her overall
condition throughout the period of deterioration. In the light of that
legislative scheme it is difficult to imagine that the legislature intended
that any amounts of compensation payable under section 10 be determined at
whatever rates may have been prevailing at the time when the worker first
received medical treatment which may have
been years or even decades earlier.

  

   10. In my view, the learned Magistrate should have found that the injury
had been sustained
no later than 1987 but that compensation under section 10
was payable at the rates prevailing on 19 June 1995.

  

   11. Mr Cranitch further submitted that the amount payable should have
been
calculated by reference to the degree of deterioration suffered during his
employment with the appellant. This contention flies
in the face of the terms
of section 9AA which was plainly intended to make the last relevant employer
liable for the whole impairment
subject only to the limitations arising from
sub-section 9AA(d) and the right to contribution from other relevant
employers.

  

   12. The appellant's complaints concerning the refusal of an adjournment and
admission of a further medical report both related
to a contention that the
respondent's hearing loss had not been wholly caused by his employment with
the appellant or any antecedent
relevant employer. On 20 May 1997 the
respondent's solicitors served upon the appellant's solicitors a report from
Dr Gerard Crisp
dated 1 February 1996. That report did not deal explicitly
with the issue of causation but in the context of the application could
only
have been regarded as supportive of the respondent's case. On 1 June 1997 the
appellant's solicitors served a report dated 18
November 1996 by Dr Pham. That
report substantially confirmed the level of the respondent's hearing loss but
expressed the view that
the hearing loss below 2 kilohertz was probably caused
by other reasons. On that basis the relevant binaural hearing loss excluding
presbyacusis would have been only 27.4%. No alternative hypothesis was
advanced to explain the balance of the hearing loss. In response
to this
opinion a further report was sought from Dr Crisp and that report dated 24
June 1997 was served upon the appellant's solicitors
on 25 June 1997 which was
the day before the hearing. In that report Dr Crisp expressed disagreement
with the view of Dr Pham and
commented that noise induced hearing loss could
involve frequencies below 2 kilohertz depending upon the duration of the noise
exposure
and the person's susceptibility to noise damage. He supported that
opinion by reference to some medical literature. Counsel for the
appellant
submitted that the Magistrate had fallen into error in refusing to grant an
adjournment to enable these contentions to
be investigated and further
evidence obtained or counsel at least better equipped to deal with Dr Crisp's
opinion in cross-examination.
Alternatively, he submitted that Dr Crisp's
further report should have been rejected.

  

   13. Schedule 4, rule 6A of the Act
provides that the procedure to be
followed in hearing an arbitration is within the discretion of the Magistrates
Court which is not
bound to act formally, is not bound by the rules of
evidence and is enjoined to act according to equity, good conscience and the
substantial merits of the case, without regard to "technicalities and legal
forms". Neither regulations nor rules of court require
the service of medical
reports. However, the Magistrates Court has issued a practice direction the
relevant portions of which are
as follows:

  

  

   "39 Each party shall serve on each other party no later than 35 days or
such shorter time as the court allows,
prior to the date allocated for the
hearing at the arbitration, copies of all medical reports then available to
that party:

  

   (a) upon which the party intends to rely at the hearing of the arbitration;
or (b) obtained from a medical practitioner whom the
party intends to call at
the hearing of the arbitration.

  

   40 If, after compliance with paragraph 39, a party obtains a further
such
medical report from the same doctor, the party shall forthwith serve a copy of
the report on each other party.

  

   41 Subject
to paragraph 42 where a medical report is served in accordance
with paragraph 39, that report is admissible as evidence of the medical
practitioner's opinion and, where the medical practitioner's direct oral
evidence of a fact upon which the opinion was formed would
be admissible as
evidence of that fact.

  

   42 Where a party within 14 days of being served with the medical report
gives notice
to the serving party requiring the maker of the report to attend
court for cross-examination, the report is not admissible pursuant
to
paragraph 41."

   14. In the present case Dr Crisp's first report was served more than 35
days prior to the hearing. Dr Pham's
report, though obtained some 7 months
earlier, was not served until 25 days prior to the hearing. That was, of
course, contrary to
the requirements of the practice direction. Such late
service left the respondent's solicitors with little time to deal with the
contention, apparently raised for the first time, that the respondent's
deafness may have been partially attributable to causes other
than his
employment. It was in this context that the further report from Dr Crisp was
obtained. That report did no more than to express
disagreement with Dr Pham's
contention and to refer to literature in support of the disagreement so
expressed. Nonetheless, it was
submitted by Mr Cranitch that its service on
the day before the hearing meant that counsel for the appellant had been
unable to deal
with it either by adducing evidence or by adequately
cross-examining Dr Crisp. Hence the Magistrates decision to refuse an
adjournment
amounted to a denial of natural justice and this denial was
effectively compounded by her decision to admit the second report into
evidence.

  

   15. In Squire v Rogers [1979] FCA 48;  [1979] 39 FLR 106 Deane J at 114, with whose reasons
on this issue Forster and Brennan JJ agreed, observed that a court of appeal
will not, as a general rule, interfere with a decision of a judge of first
instance on the issue of an application for adjournment
unless it is satisfied
that the exercise of his or her "discretion had miscarried in the sense that
it had been affected by wrongful
application of principle or misunderstanding
or erroneous assessment of the factual material" before the court. As His
Honour observed,
this general rule is subject to any power to receive new
evidence on the hearing of the appeal and the benefit of hindsight in a
case
where it could be seen that serious injustice had resulted or would in fact
would result from the exercise of the discretion.
His Honour also adverted to
the decision of the United Kingdom Court of Appeal in Sackville-West v
Attorney General [1910] 128 LT
Journ 265 where Cozens-Hardy MR, Moulton and
Buckley LJJ held that:

  

  

   "although it could not be said that under no circumstances
would the Court
of Appeal be justified in interfering with the discretion of the learned judge
in a court below as to the proper
mode and time of trying an action, yet it
would be only be in the most extraordinary circumstances that an application
to review
the decision of the learned judge as to the conduct of the business
in his own court could succeed; that the only case in which the
Court of
Appeal would so interfere would be if satisfied that the decision was such,
that notwithstanding any exercise by the learned
judge of the power of control
which he would have over the action when it came on for trial, justice did not
resolve and he had failed
to see that such would be the effect of his
decision."

   16. As Deane J observed, that statement of principle had been followed
with
approval in a number of subsequent cases. It now has the authority of the Full
Court of the Federal Court of Australia in Squire
v Rogers, the subsequent
decision of that Court in Petrovic v Taara Formwork (Canberra) Propriety
Limited [1982] FCA 208;  [1982] 62 FLR 451, and the decisions of the High Court of Australia in
McInnis v The Queen [1979] HCA 65;  [1979] 143 CLR 575 and Bloch v Bloch [1981] 55 ALJR 701.
It is clear that for an appellant to succeed he or she must demonstrate
that
refusal of the adjournment could have produced such an injustice that a
retrial is required. It is clearly insufficient for
an appellant court to come
to the view that an adjournment should have been granted.

  

   17. In the present case the learned
Magistrate was entitled to take into
account that the appellant had been well aware of Dr Pham's opinion and its
implications for
the plaintiff's claim since November 1996. It had been open
to the appellant since that time to carry out any research it thought
necessary in order to bolster that opinion. It had been apparent from the time
the application for arbitration was filed and served
in May 1996 that the
respondent was claiming compensation in respect of a binaural hearing loss of
62% and the Magistrate could have
reasonably concluded that the appellant must
have been aware of the likelihood that Dr Pham's opinion would be contested.

  

 
 18. In this context, Dr Crisp's second report did no more than confirm that
he adhered to his view notwithstanding the opinion of
Dr Pham and provide some
reference as to literature in support of his own opinion. It is true that the
late service of that second
report left the appellant's counsel with little
time to consult Dr Pham or otherwise deal with the precise articles in
question.
However, the appellant was well aware of the nature of the dispute
arising from the competing expert opinions. Had the second report
not been
served the issue would still have required resolution It would have been
within the Magistrate's discretion to permit exploration
of the bases for the
conpeting opinions, including any supporting literature, whether by means of
further evidence in chief or cross-examination.
Indeed, Mr Crowe, who appeared
for the respondent both on the appeal and before the Magistrate, had made that
point during his submissions
in opposition of the adjournment. Furthermore, Dr
Pham's report had contained no reference to any literature or any alternative
hypothesis
which might have explained the hearing loss sustained by the
respondent. The second report, albeit received late, equipped counsel
for the
appellant with more information as to the basis for Dr Crisp's opinion than
his counterpart would have had in relation to
the opinion of Dr Pham. It
should also be observed that the late service of Dr Crisp's second report was
at least partially attributable
to the fact that the report of Dr Pham was not
served within the period specified by the practice direction.

  

   19. At the hearing
of the arbitration counsel who then appeared for the
appellant had also relied upon the need to obtain a further opinion from Dr
Halliday who would have been asked to examine the respondent and consider Dr
Crisp's opinion. It was said that the respondent had
not attended upon Dr
Halliday for examination as the appellant's solicitors had arranged. In answer
to these contentions counsel
for the respondent said that the appointment
suggested had been for 15 June 1997 which was only 10 days prior to the
hearing and
that his instructing solicitors had taken the view that it was too
late since any report obtained could not have been served within
the time
required by the practice direction. Despite the respondent's failure to attend
it appears that the appellant's solicitors
obtained a report from Dr Halliday
but it was not suggested that this had been served and no attempt was made to
tender it. Mr Cranitch
did not suggest that the appeal could be supported by
reference to the respondent's failure to attend for examination by Dr
Halliday.

  

   20. After the adjournment had been refused, the arbitration proceeded. No
alternative cause of hearing impairment was suggested
to the plaintiff in
cross-examination and when the Court was informed that Dr Crisp would be
available for cross-examination at 3.00
pm counsel then appearing for the
appellant elected not to cross-examine him. No further application for
adjournment was made.


 

   21. The Magistrate was entitled to take into account that the application
for arbitration had been filed more than a year earlier,
that the respondent
was a retired man who was in urgent need of a hearing aid and that any
adjournment was likely to result in a
delay of several months. There was no
attempt to adduce further evidence on appeal to demonstrate that the
literature referred to
in Dr Crisp's second report was in any way misleading
or to otherwise impugn the validity of Dr Crisp's opinion. Nor was any attempt
made to demonstrate, albeit with the benefit of hindsight, that some actual
injustice occurred.

  

   22. In all of the circumstances
I am not satisfied that the learned
Magistrate's discretion miscarried or that the interests of justice require
that there be a retrial.
Similarly, I am not satisfied that the Magistrate
erred in admitting the second report into evidence or that any injustice was
thereby
caused to the appellant.

  

   23. The appeal will be dismissed.