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Commissioner for Railways v Bain [1965] HCA 5; (1965) 112 CLR 246 (3 February 1965)

CATCHWORDS

HEARING

DECISION

2. The respondent is a boilermaker who has been in the employ of the appellant since 1915 with the exception of a period of six weeks during the recent war when he worked as a boilermaker for the Government of the Commonwealth. On 27th February 1961, he applied for a determination under the Workers' Compensation Act, 1926-1960 (N.S.W.) (the Act), claiming that he was suffering from boilermaker's deafness resulting in a substantial loss of binaural hearing and that this "injury" "caused by employment" was received on or before 16th February 1961. He sought the payment of a lump sum by way of compensation under s. 16 of the Act and its table. At the date of the application he was still employed by the appellant against whom he sought the award of compensation and was not incapacitated for work in any degree by reason of his deafness. He has been suffering from boilermaker's deafness to an increasing extent since some time in the 1920's. By February 1961 he was suffering from a loss of 26.3 per cent of binaural hearing. (at p251)

3. The learned Chairman of the Workers' Compensation Commission made an award in favour of the respondent and against the appellant for 460 Pounds 5s. 0d., being 26.3 per cent of 1,750 pounds, the amount set out in the second column of the table in s. 16 as the lump sum compensation for the injury "loss of hearing of both ears". (at p251)

4. It seems that boilermaker's deafness results from successive impacts of sound on the terminal nerve system connected with hearing and that the effect of these successive traumas is to cause cumulative deterioration in the capacity to hear. Apparently it does not, as a rule, incapacitate a boilermaker from following that occupation. (at p251)

5. The respondent's application was based on a combination of ss. 7 (4), 7 (4B), s. 16 (1) and (1A) and the table in s. 16; that is to say, he claimed to have suffered a "tabled" injury, being partial loss of binaural hearing due to boilermaker's deafness, that progressive condition being by statutory definition for the relevant purpose a disease of such a nature as to be contracted by a gradual process, and being due to the nature of his employment, namely, boilermaking. (at p252)

6. The various steps taken by the legislature to accommodate boilermaker's deafness to the concept of injury upon which the Act is built are well set out in the judgment of the learned Chairman in support of his award. I need merely recapitulate with brevity the principal of these steps. (at p252)

7. Prior to June 1951 a worker who sustained an injury, whether traumatic or by way of disease, could only have obtained an award of compensation either for a weekly payment or for a lump sum if total or partial incapacity to work had ensued upon the injury or disease. (at p252)

8. However, by reason of the amendment to s. 16 effected by Act No. 20 of 1951, a worker who suffered traumatic injury in the requisite circumstances, or contracted a compensable disease (being, or resulting in either case in, an "injury" in the first column of the table in s. 16), after 27th June 1951 could obtain an award for a lump sum payment under s. 16 without total or partial incapacity having resulted. (at p252)

9. Upon a worker, suffering from boilermaker's deafness, but not incapacitated thereby, seeking against his current employer a lump sum award after this amendment in respect of that disability, it was held that boilermaker's deafness was neither a disease nor a disease of gradual onset within the meaning of s. 7 (4) of the Act. It was also held that non-incapacitating boilermaker's deafness which had manifested itself before the passing of the amending Act was not in any case compensable. (at p252)

10. The amendment of 1957 (No. 22 of 1957), effective in April 1957, provided that boilermaker's deafness should be deemed for the purposes of s. 7 (4) of the Act to be a disease of such a nature as to be contracted by a gradual process. (at p252)

11. It was, however, decided in 1960 in the case of Coates v. Commissioner for Railways (1960) 78 WN (NSW) 377, that none the less, a boilermaker with boilermaker's deafness who had suffered no incapacity could not obtain compensation under s. 16 from his current or last employer as for a disease of gradual onset because sub-s. (5) of s. 16 made resulting incapacity necessary for compensation to be payable by such employer in respect of such a disease. (at p252)

12. Later, s. 3 (1) (c) of Act No. 58 of 1960 inserted the following sub-section into s. 16: "(1A) Where an injury mentioned in the first column of the said table is a disease which is of such a nature as to be contracted by a gradual process and which has not resulted in incapacity, such injury shall, for the purpose of determining a worker's right to the amount indicated in the second column of the said table, be deemed to have happened at the time when such worker makes his claim for compensation. (at p253)

13. In this sub-section 'disease' includes the condition known as 'boilermaker's deafness' and any deafness of the like origin. . . ". (at p253)

14. It was after this amendment, but in respect of the full extent of his loss of hearing due to boilermaker's deafness that the respondent brought the present application. (at p253)

15. Although a number of matters were discussed before the Supreme Court and are reflected in the judgment of the Full Court, the sole difference between the parties which remains for determination by this Court turns on the proper construction of sub-s. (1A). (at p253)

16. The actual questions asked in the stated case are as follows: "(i) Whether the applicant is entitled to any compensation in respect of traumata to his hearing sustained prior to 1st December 1960. (ii) Whether the applicant is entitled to any compensation in respect of traumata sustained to his hearing prior to 29th April 1957. (iii) Whether the applicant is entitled to any compensation in respect of traumata sustained to his hearing prior to 27th June 1951. (iv) Whether there is any evidence of any claim for compensation. (v) Whether the boilermaker's deafness of the applicant which caused no incapacity and in respect of which there was no election under s. 100D of the Government Railways Act entitled the applicant to any payment under s. 16 of the Workers' Compensation Act. (vi) Whether the boilermaker's deafness of the applicant which caused no incapacity and in respect of which there was no election between the benefits conferred by s. 16 of the Workers' Compensation Act and benefits arising under other sections of the said Act, entitled the applicant to any payment under the said s. 16. (vii) Whether there was any evidence upon which his Honour could hold that the applicant was entitled to an award of 460 Pounds 5s 0d. under s. 16 of the Workers' Compensation Act in respect of loss of binaural hearing. (viii) Whether in view of the provisions of ss. 7 (4B) and 16 (1A) of the Workers' Compensation Act the applicant is entitled to the award made by his Honour." (at p253)

17. But the questions which remain live issues are questions (vi), (vii) and (viii). (at p253)

18. The rival contentions of the parties are, on the part of the appellant, that the amendment inserting sub-s. (1A) in s. 16 did no more than cure the position which was disclosed by Coates' Case (1960) 78 WN (NSW) 377, leaving the rights of employer and employee as they otherwise were at that time; that is to say, that it did no more than to allow a worker suffering from boilermaker's deafness, but without resulting incapacity, to be awarded compensation payable by his last employer for the loss of hearing which had occurred between the date of the commencement of the 1957 amendment, viz. April 1957, and the date of his application for compensation: and, on the part of the respondent, that the amendment of the section gave to the worker suffering from boilermaker's deafness a right to compensation for the full extent of the loss of hearing from which he was in fact suffering at the date of his claim for compensation. In the event of this submission of the respondent being accepted, the appellant submitted that none the less the appellant could not be awarded any sum under s. 16, because not having any other right to compensation under the Act, he had not "elected" to pursue his remedy under that section and so could not satisfy its language. (at p254)

19. The appellant submitted that a worker suffering from boilermaker's deafness could not have recovered and still cannot recover compensation as for injury by disease for any deafness which had manifested itself prior to 1957, nor, as I understand the argument, for any deafness which subsequently manifested itself but which was due to traumas received before 1951. His counsel said that but for the difficulty disclosed by the decision in Coates' Case (1960) 78 WN (NSW) 377, a worker suffering from boilermaker's deafness could have recovered from his last or current employer compensation under a combination of ss. 7 (4), 7 (4B) and 16 for the results to his hearing, of the traumas to which he was subjected in employment in the period subsequent to April 1957, but he also seemed to concede, perhaps somewhat inconsistently, that such a worker could recover compensation for the actual diminution in his hearing which manifested itself in that period, irrespective of the fact that the traumas had been received between 1951 and 1957. Treating the progressive condition of boilermaker's deafness as a disease of gradual onset within s. 7 (4) would seem to me to make irrelevant the time of reception of the traumas and make the onset of the deafness the significant fact. (at p254)

20. But, whichever view the appellant really preferred, the submission was that the position after the insertion of sub-s. (1A) in s. 16 is that the appellant can at best recover no more than compensation rated to the actual diminution in his hearing which has occurred since April 1957. (at p254)

21. Whilst some measurable deterioration in the respondent's hearing due to the progress of his boilermaker's deafness did take place in the interval between April 1957 and February 1961, it was so slight that applied as a percentage to the appropriate lump sum amount in the second column of the table, it would yield no appreciable financial result. (at p255)

22. Consequently, acceptance of the appellant's principal contention, however expressed, would mean that no award of any substantial sum could be made in favour of the respondent in this matter. (at p255)

23. The history of the legislation in relation to boilermaker's deafness might possibly at first glance incline one to the view that the purpose behind the Parliament's amendment in 1960 was no more than the removal of the difficulty which had been held to stand in the way of success of a boilermaker in a claim against his last or current employer under s. 16 and the table in respect of his boilermaker's deafness. As Coates' Case (1960) 78 WN (NSW) 377 had disclosed that disability, it was the inability of the worker to fix for the purposes of s. 7 (4) a time at which his injury had happened. There being no incapacity, there was no time of injury within sub-s. (5) of s. 7, notwithstanding that the statute had deemed the condition of boilermaker's deafness to be a disease of gradual onset. It was therefore said that all that the amendment did was to provide a time of injury thus, at the most, enabling a worker in the respondent's situation to claim the appropriate compensation for the injury he had sustained between April 1957 and the date of application for an award. This contention, in substance, treated the amendment as doing no more than inserting an alternative time of injury in sub-s. (5) of s. 7. (at p255)

24. But there were more difficulties in connexion with compensating a worker for boilermaker's deafness than the frustrating consequence of sub-s. (5) of s. 7, which would be within the knowledge of the legislature. Though the Workers' Compensation Commission had decided in Milne's Case (1953) 27 WCR 80 that this condition, to the extent that it had manifested itself before 1951, was not in any case compensable, that question had not been passed upon by the Supreme Court and remained a possible area of dispute. See Coates v. Commissioner of Railways (1963) 81 WN (Pt 1) (NSW), at p 319 Nor must it be assumed that the legislature would be content to allow the result of Milne's Case (1953) 27 WCR 80 to stand. Also, the complexities in the computation of a lump sum award of compensation because of changes in the amounts of compensation specified for loss of hearing in the table in s. 16, which were subsequently discussed in Coates' Case (1963) 81 WN (Pt 1) (NSW), at pp 319-321 would be known to the draftsman of the amendment. It is not surprising therefore that the amendment was not made to s. 7 but to s. 16: it makes boilermaker's deafness a disease of gradual onset for the purposes of s. 16 (and not merely for the purpose of sub-s. (4) of s. 7) and deems the "injury" for the purposes of s. 16 and its table to have occurred at the date of the application for compensation. This is radically different from merely removing the need to satisfy sub-s. (5) of s. 7 in the case of a disease of gradual onset, including boilermaker's deafness. (at p256)

25. But although these are useful speculations as to what may have been in the legislature's mind in making the amendment, it is in the actual language of the amendment that the expression of the legislature's intention will be found. Accordingly, I turn to examine what that language effects. In the first place, it is to be observed that the amendment only applies where an injury mentioned in the first column of the table to s. 16 is a disease of gradual onset without resulting incapacity. Secondly, where the injury in the first column is such a disease, it is that injury, that is to say, that mentioned in the first column of the table, which shall be deemed to have happened at the time when the worker makes his claim for compensation. (at p256)

26. None of the injuries in the first column of the table is in any case a disease though, perhaps, all of them might in some circumstances be the result of a disease. It seems to me quite impossible to read the words of the amendment literally. In my opinion, however, their meaning is reasonably plain. The opening words of sub-s. (1A) should be read: "Where an injury mentioned in the first column of the said table is the result of a disease which is of such a nature, etc.". (at p256)

27. The amendment therefore provides, it seems to me, that if you find that a worker has suffered, or is suffering, an injury of the kind listed in the first column of the table which is not incapacitating but which is the result of a disease of gradual onset, then that injury shall be deemed to have happened at the time the worker makes his claim for compensation. To take a simple case by way of illustration, where the complete loss of hearing of both ears is the result of boilermaker's deafness, there will be an injury which is the result of a disease of gradual onset because the final paragraph of the amending section makes boilermaker's deafness a disease and, as I would construe the whole sub-section, a disease of a nature to be contracted by a gradual process for the purposes of s. 16; and because "loss of hearing of both ears" is an injury appearing in the first column of the table. That loss of hearing of both ears will then be treated as having happened, as it were, at one blow, at the time the worker makes his claim for compensation. The injury which thus becomes compensable is the loss of hearing of both ears; and by reason of s. 7 (4) his current or last employer becomes liable if the disease - here boilermaker's deafness - was incidental to the employment of a boilermaker. To my mind, the express words of the statute make that consequence inescapable. (at p257)

28. It was objected by the appellant that such a reading of the amendment gave it a retrospective or retroactive operation because the worker would then be presently compensated for the results of trauma which had occurred and the results of which had manifested themselves long years ago, for which compensation could not have been obtained in any circumstances before 1951 and could only have been obtained thereafter if incapacity resulted and the injury resulting from the trauma arose out of or in the course of some specific employment. In that event compensation only to the extent of the traumatic injury thus arising could have been recovered. (at p257)

29. But, whilst in construing a statute there is a presumption against giving it a retrospective or retroactive operation, the language of the statute and the subject matter with which it deals may make it clear that the legislature intends the particular result, whether or not it involves giving retrospective or retroactive operation to the statute. See Sunshine Porcelain Potteries Ltd. v. Nash (1961) AC 927, at pp 937, 938 ; [1961] UKPCHCA 2; (1961) 104 CLR 639, at pp 642, 643 (at p257)

30. According to the meaning which, in my opinion, should be given to the words of the amending section, the worker is to be entitled upon an application made after the enactment of the amendment to be compensated for his physical condition at the date of that application by a lump sum payment under s. 16. No doubt his then condition is a product of past events but by the express words of the statute it is to be treated as having occurred at the date of his application, i.e. at a time subsequent to the making of the amendment. This does give him a right to compensation for the present result of the progressive deterioration of his hearing caused during many prior years of boilermaking. Their Lordships in the Sunshine Porcelain Potteries Case (1) seemed to think that the statutory provision there in question did have a retrospective operation in substance to the extent that the injury which it made compensable was the result of the inhalation of dust during periods anterior to the passing of the statutes. But their Lordships in that case found the presumption against retrospective operation overborne by the circumstances with which the legislature was dealing. In this case, both the language of the statute and the circumstances with which it is dealing, in my opinion, make it clear that if the language in its natural meaning involves any retrospective or retroactive operation, which I very much doubt and find no need to decide, the legislature intended it. (at p258)

31. The applicant in the present case had been so long continuously in the employment of the appellant that he may well have been able to make out a case that the injury - his loss of hearing as at the date of the application - arose out of or in the course of his employment with the appellant. The amendment deeming this injury to have occured at the date of his application for compensation would solve for him questions of notice of the injury. The removal in 1957 of the necessity for resulting incapacity would thus leave the way open for him to claim under s. 16 as for a non-incapacitating traumatic injury. The terms of sub-s. (1A) may also have made it impossible for others not so circumstanced as the respondent to claim compensation under any other provision than s. 16 and its table. But the application does not seem to have been made by the respondent on a combination of s. 6 and s. 16, nor has it been fought or argued on such a basis. I therefore express no concluded opinion of either of the possibilities I have just mentioned. (at p258)

32. The applicant in this case, in my opinion, was entitled to an award in respect of the condition of his hearing at the date of his application as a condition resulting from a disease of gradual onset, if that condition constituted one of the injuries set out in the first column of the table in s. 16. All the other requirements of the Act, including s. 16 (1A) as I have construed it, were satisfied. (at p258)

33. He was suffering from partial deafness of each ear and thus could possibly be said to be suffering partial loss of hearing of both ears, but perhaps more accurately, to be suffering from partial loss of hearing of each ear. Was this an injury, or were these injuries, mentioned in the first column of the table? The injuries mentioned in that column of the table which can be said to be relevant are: (a) loss of hearing of both ears; (b) loss of hearing of one ear. (at p258)

34. There is a footnote to the table in relation to the loss of hearing of one ear, its connexion with the injury set out in the first column of the table being indicated by a dagger. This footnote provides that for the partial loss of hearing of one ear there shall be payable such percentage of the amount as would be payable for the total loss of hearing as is equal to the percentage of the diminution of hearing. But partial loss of the hearing of one ear is not expressly set out as an injury in the first column of the table. The described injury is "loss of hearing of one ear", or as the footnote would paraphrase it, "total loss of hearing of one ear". (at p259)

35. A question arises as to whether the footnote has the effect of inserting in the table before "loss of hearing of one ear" the words "total or partial" and of amending the relevant amount payable in the second column of the table to read "800 Pounds or such percentage thereof as there has been loss of hearing in the ear". Though I find some difficulty in so reading the table, I have come to think that that is the meaning to be given to the combination of the statement of the injury in the first column of the table and the footnote which is to be read with it. I am therefore prepared to hold that the injury described in the first column should for presently relevant purposes be treated as being "total or partial loss of hearing in one ear". (at p259)

36. However, there is no such footnote in the case of the "loss of hearing of both ears". Sub-section (5) of s. 16 provides that for the purpose of the table the expression "loss of" includes the "permanent loss of the efficient use of" and that a percentage of the prescribed amount payable, equal to the percentage of the diminution of the full efficient use, may be awarded in lieu of the full amount. But this provision, designed for the case of an injury to a member of the body, is inappropriate and, in my opinion, inapplicable to the case of "loss of hearing". One might speak of the loss of the efficient use of an ear or of both ears but scarcely of the loss of the efficient use of hearing of an ear or of both ears. The item "loss of hearing" is a description of the result of the efficient use of the ear. There is, therefore, in my view, neither an injury described in the first column of the table as "partial loss of hearing of both ears", nor can such an injury be constructed out of the other provisions of s. 16. (at p259)

37. At the time Coates v. Commissioner for Railways (1960) 78 WN (NSW) 377 was decided in 1960 the relevant injuries mentioned in the first column of the table were "loss of hearing" and "complete deafness of one ear". Kinsella and Collins JJ. in that case held that sub-s. (5) of s. 16 applied to the item "loss of hearing" but not to the item "complete deafness of one ear" for the reason that the latter does not speak of "loss of". McClemens J., basing himself largely on a concession by the employer's counsel, held that in the case of one ear a partial loss of hearing could not be compensable because the item was "complete deafness of one ear". He also took from the presence of the words "loss of" in the item "loss of hearing" an intention on the part of the legislature to attract to that item the provisions of sub-s. (5). (at p259)

38. I am able to agree with these learned judges in thinking that, as the table then stood, a percentage of the amount for the item "complete deafness of one ear" could not have been awarded. But, with respect, I am unable to accept their view as to the application of sub-s. (5) to the item "loss of hearing" for the reasons that I have already expressed in relation to the item "loss of hearing of both ears" in the table in its amended form. Also, both as the table then stood and as it stands now, partial loss of sight was and is covered, not by sub-s. (5) but by a footnote connected to the item "loss of the sight of one eye" by an asterisk. In the present table, as I have mentioned, partial loss of hearing of one ear is covered by a footnote connected to the item "loss of hearing of one ear" by a dagger. (at p260)

39. Apparently, following the Supreme Court's decision in Coates' Case (1960) 78 WN (NSW) 377 in 1960, the Commission has continued under the new table the practice which that decision required it to follow under the former table. Thus a percentage loss of binaural hearing is assessed in cases where there is only a partial loss of hearing involving each ear. This, in my opinion, was not justified after the amendment of the description of the items in the table. (at p260)

40. In conformity with this practice, the "injury" in this case is expressed in the award of the learned Chairman, as it was in the expert evidence before him, as a percentage loss of the hearing of both ears, as a loss of binaural hearing. I gather from the evidence attached to the case stated that individual percentages of the loss of hearing of each ear were determined and were then combined in some fashion to give a percentage loss of hearing of both ears. It seems to me that this is not the sum of the loss of hearing of each ear but is the product of some computation which gives the resultant loss of hearing of both ears consequential upon the loss of hearing of each ear. It seems to me that because there is no tabled injury "partial loss of hearing of both ears", an award in the terms made by the learned Chairman cannot be supported. But, in my opinion, an award could be made for the partial loss of hearing of each ear because, for the reasons I have given, the relevant injury mentioned in the first column of the table can be treated as "total or partial loss of hearing of one ear". In so deciding I am conscious that the provision for partial loss of hearing of one ear may have been inserted upon the assumption that it would apply only in cases where the hearing of the other ear was unaffected. But the table does not in terms confine the provision as to partial loss of hearing to such a case. (at p260)

41. In the result, I am in agreement with the construction placed upon sub-s. (1A) of s. 16 by the Full Court and find the reasons given by Walsh J. for adopting that construction satisfactory. I realize, as did his Honour, that this construction provides no answer to situations which may yet occur and to some of which reference is made in his judgment. But that is the result of the course adopted by the legislature and those situations must be left to be dealt with if and when they arise. The difficulties which they occasion would not be wholly avoided by the construction for which the appellant contends. (at p261)

42. The appellant's residual contention is that the respondent did not have alternative remedies under the Act and therefore was not in a position to "elect", and thus satisfy one of the conditions of s. 16. I assume, without deciding, that the respondent had at the time of his application but one basis for compensation under the Act, and that therefore he had not two or more courses between which he could choose or elect. But as Kinsella and Collins JJ. pointed out in Coates v. Commissioner for Railways (1960) 78 WN (NSW), at p 385, he might yet have other remedies than an application under s. 16 should incapacity supervene: and in any case, the word "elects" should not, in my opinion, be read in the sense of choosing between courses. If the worker so decides he can resort to s. 16, whether or not he might have done otherwise. What consequences follow from his taking that course will be determined by the substantive provisions of the Act and not merely because of some doctrine of election. (at p261)

43. If it were not for the difficulties which I think flow from the absence from the first column of the table in s. 16 of an injury described as "partial loss of hearing of both ears", I would be content to answer the critical questions in the case stated in precisely the same way as the Full Court did. But as I do not think that an award of 26.3 per cent of 1,750 Pounds was necessarily the correct award to have been made in this case, the questions should in my opinion be answered as follows: (i) to (iii): The applicant is entitled to compensation under s. 16 of the Workers' Compensation Act in respect of his loss of hearing due to boilermaker's deafness existing at the date of his application, irrespective of when his hearing deteriorated to or towards the stage it had then reached. (iv): The matters raised by this question were not debated in the appeal to this Court. As the appellant apparently accepts the answer given by the Supreme Court, it is unnecessary for this Court to answer this question. (v), (vi): Yes - if the Commission is satisfied that there has been a partial loss of hearing in each or one of his ears. (vii) and (viii): There was evidence upon which his Honour could hold the applicant was entitled to an award under s. 16 in respect of the partial loss of hearing of each of his ears, if his Honour was satisfied of such loss of hearing. But it did not support the award in fact made by his Honour. (at p262)

44. The appeal should be dismissed but the case remitted to the learned Chairman for the assessment of compensation in conformity with the Court's reasons of the amount to be awarded. The appellant should pay the costs, both of the appeal and of the further proceedings to assess the amount of the award. (at p262)

KITTO J. I have had an opportunity of considering the judgment which has been prepared by my brother Menzies. I agree in it and there is nothing that I wish to add. (at p262)

TAYLOR J. I have come to the conclusion that the appeal should be dismissed and I have nothing to add to the reasons given by Walsh J. in the Supreme Court for rejecting the argument that s. 16 (1A) of the Workers' Compensation Act, 1926-1962 applies only to loss of hearing, constituting boilermaker's deafness, occurring after the date when that section was introduced into the Act, namely, 1st December 1960. Further I am unable to see any good reason for differing from the view expressed in Coates v. Commissioner for Railways (1960) 78 WN (NSW) 377 that the presence in s. 16 (1) of the words "if the worker so elects", confines the operation of that section to the case of a worker who, having sustained an injury, has been incapacitated thereby and has, therefore, a choice of remedies under the Act. I merely add that if this was not entirely clear when Coates' Case (1960) 78 WN (NSW) 377 was decided the intention of the legislature appears beyond doubt from the language of sub-s. (1A) which applies to "injuries" which have not "resulted in incapacity". (at p262)

2. Two other questions which do not appear to have been debated in the Supreme Court presented themselves to us upon the hearing of the appeal. The first of these arose because of the fact that although the second paragraph of sub-s. (1A) of s. 16 provides that "disease" in the first paragraph of the sub-section "includes the condition known as 'boilermaker's deafness'" it does not explicitly go on to provide that boilermaker's deafness is a disease "which is of such a nature as to be contracted by a gradual process". For my part I do not think that the omission, if it can be called an omission, is of any significance for it is clear from the findings of fact appearing in the case stated that if boilermaker's deafness is to be regarded as a disease within the meaning of the provision and, therefore, that it can be "contracted", it is of such a nature as to be contracted by a gradual process. Further it should be observed that s. 7 (4B) of the Act provides that "the condition known as 'boilermaker's deafness' . . . shall for the purposes of subsection four of this section be deemed to be a disease and to be of such a nature as to be contracted by a gradual process". The purpose of sub-s. (4) is to cast upon the worker's last employer the obligation of paying compensation to the worker in any case where the injury is a disease of that nature and the obligation so cast upon the employer must be taken to mean an obligation to pay compensation in accordance with the Act. Where there is resultant incapacity there will be an obligation to pay compensation under ss. 7, 9, and 11 or "if the worker so elects" in such a case, under s. 16 (1). In either case the compensable injury is deemed by the Act to be a disease and to be of such a nature as to be contracted by a gradual process. But the obligation of the worker's last employer must also extend to the liability under s. 16 (1A) to pay a lump sum in the case of boilermaker's deafness which has not resulted in incapacity and the disease in respect of which that liability exists must, in my view, be taken also to be treated by the Act as a disease "which is of such a nature as to be contracted by a gradual process". (at p263)

3. The other question which has been somewhat agitated in the case is concerned with the application of s. 16 (5) to the table appended to s. 16. As appears from the reasons of the Chief Justice the award which the respondent obtained was based upon a partial loss of binaural hearing and the amount awarded was a proportionate amount of the sum specified in the table for a total loss of hearing. But the suggestion is made that although s. 16 (5) is applicable to most of the injuries described in the table it cannot apply to a so-called injury described as "loss of hearing of both ears". The expression in s. 16 (5) - "permanent loss of the efficient use of" - it is suggested is inapplicable to an injury described by reference to the loss of a faculty though it is, without question, applicable to an injury described by reference to the loss of a member. It is, however, not questioned that in the case of loss of hearing of one ear the apparent difficulty is overcome by the second foot-note to the table. But, in my view, and with respect to those who think otherwise, the suggestion concerning the applicability of s. 16 (5) to the item in question is without validity. I observe that in Coates' Case (1960) 78 WN (NSW) 377 the applicability of s. 16 (5) to the item as it then appeared in the table - "loss of hearing" - was assumed without question though it was held that the provisions of that sub-section could have no application to the ensuing item - "complete deafness of one ear". But following Coates' Case (1960) 78 WN (NSW) 377 the former item was altered to "loss of hearing of both ears", the latter item was deleted and "loss of hearing of one ear" was substituted and at the same time the second foot-note was added. It may be conceded that the form of the amendments then made are open to substantial criticism but upon examination of the relevant provisions I am satisfied that s. 16 (5) is applicable to each of the injuries listed in the table including the injury described as "loss of hearing of both ears". I reach this conclusion by accepting the view that what that section plainly requires is that in the case of each tabled item the words "loss of" are to be read as including "permanent loss of the efficient use of" to the intent that the table will include provision for permanent impairments causing a diminution of "full efficient use". When this is done in respect of the item in question we are left, in effect, with the expression in the table "permanent loss of the efficient use of the hearing of both ears". The expression is without doubt awkward but no more awkward than many expressions to be found in legislation of this character. However, it is necessary, if possible, that some meaning should be given to this phrase and I think the intention sufficiently appears that one of the effects of s. 16 (5) was to make provision in the table for the award of an appropriate lump sum when an "injury" results in a permanent diminution in the hearing of both ears. (at p264)

MENZIES J. I find this a frustrating case because of unnecessary difficulties created by inept draftsmanship and because the appellant's arguments were not directed to what, it seems to me, are the real difficulties of the case. (at p264)

2. The contentions that the appellant did advance are untenable. The first was that the law, which it was assumed provided that boilermaker's deafness should be an injury which was deemed to have happened at the time when a worker suffering from it makes his claim for compensation, nevertheless had no application to a worker suffering from boilermaker's deafness before the enactment of the law - that is, s. 16 (1A) of the Workers' Compensation Act (N.S.W.) - because, so it was said, to apply the law to such a worker would be to give it retrospective effect. The second was that, as s. 16 provided the only means for compensation for boilermaker's deafness not resulting in incapacity for work, a worker suffering from that injury could not in any real sense elect to claim thereunder because he had no alternative but to do so. The judgment of Judge Conybeare in the Commission and Walsh J. in the Full Court entirely disposed of these contentions and I say no more about them. (at p265)

3. However, there are, as it seems to me, two matters of real difficulty in the way of supporting the award that was made. These I will consider separately. (at p265)

4. The claim in question was made on 27th February 1961 and was for an award under s. 16 of the Act on the footing that the worker had suffered an injury consisting of boilermaker's deafness reducing his binaural hearing. It was found that the reduction in his binaural hearing was 26.3 per cent and an award was made for that percentage of 1,750 Pounds, the amount which the table provides for the complete loss of hearing of both ears. This calculation inevitably assumed that sub-s. (5) of s. 16 applied when the table injury is "Loss of hearing of both ears - 1,750 Pounds". That sub-section is as follows: "For the purpose of the said table the expression 'loss of' also includes the 'permanent loss of the efficient use of' but in such case a percentage of the prescribed amount payable, equal to the percentage of the diminution of the full efficient use, may be awarded in lieu of the full amount." This provision can, of course, be applied readily enough when the nature of the injury is the loss of a member (for example, "loss of the lower part of a leg - 1,800 Pounds"), but, for myself, I do not see how it can apply when the table injury is itself a particular loss of capacity (for example, "Loss of hearing of one ear - 800 Pounds", "Loss of hearing of both ears - 1,750 Pounds"). It seems to me that the impossibility of using sub-s. (5) in such a case was recognized in the case of "Loss of sight of one eye" and "Loss of hearing of one ear" because, to confine myself to the latter case, the following note is appended to the table: "For the partial loss of hearing of one ear there shall be payable such percentage of the amount that would be payable for the total loss of the hearing thereof as is equal to the percentage of the diminution of hearing." Why like provision was not made with regard to the injury "Loss of hearing of both ears" it is impossible to understand. It is, however, quite clear that it is not possible to treat the partial loss of hearing of both ears as something to be dealt with simply by attributing the percentage of binaural loss to each ear separately, because the sum provided for the loss of hearing of both ears is not twice that provided for the loss of hearing of one ear. It follows that not only was the assumption that was made in calculating the award not justified but it is not possible to treat it distributively as though it had been found that there had been loss of hearing of each ear to the extent of 26.3 per cent. (at p266)

5. The second matter of difficulty is more complicated. The history of s. 16 of the Act, so far as it relates to boilermaker's deafness, has been traced by Judge Conybeare and I will do no more than extract some significant dates from his informative historical survey of the legislation. It was in 1951, following the decision in Frost v. Mark Foys Ltd. (1951) 25 WCR 164, that the words "when the injury results in total or partial incapacity" were deleted from s. 16 (1) so that thereafter the table applied notwithstanding that the injury caused no incapacity. Nevertheless, a claim for compensation for boilermaker's deafness made under the section with the aid of s. 7 (4) failed because it was decided that boilermaker's deafness was not a disease and, furthermore, that it was not contracted by a gradual process: Milne v. International Combustion Australia Ltd. (1953) 27 WCR 80 Section 7 of the Act was then amended in 1957 to provide by sub-s. (4B) as follows: "The condition known as 'boilermaker's deafness', and any deafness of like origin, shall for the purposes of subsection four of this section be deemed to be a disease and to be of such nature as to be contracted by a gradual process." Nevertheless, after this amendment, a claim under s. 16 with the aid of 7 (4) and 7 (4B) for compensation for boilermaker's deafness failed because, by reason of s. 7 (5), the date of the happening of the injury was fixed as the date of the worker's incapacity, and boilermaker's deafness produced no incapacity: Coates v. Commissioner for Railways (1960) 78 WN (NSW) 377 It was in these circumstances that sub-s. (1A) of s. 16 was introduced and it must be set out verbatim: "Where an injury mentioned in the first column of the said table is a disease which is of such a nature as to be contracted by a gradual process and which has not resulted in incapacity, such injury shall, for the purpose of determining a worker's right to the amount indicated in the second column of the said table, be deemed to have happened at the time when such worker makes his claim for compensation. In this subsection 'disease' includes the condition known as 'boilermaker's deafness' and any deafness of the like origin and total or partial loss of sight which is of gradual onset." This subsection creates a number of problems. One, with which we are not directly concerned, was discussed by Walsh J. in his judgment in the Full Court, namely, the application of the sub-section to successive claims. No assistance towards the solution of the problem of construction that now faces the Court would, I think, be gained by attempting to solve this problem, so it may be put on one side. There are, however, two real difficulties of direct concern here. One is that, although "boilermaker's deafness" is expressly included in the word "disease" for the purpose of the sub-section, the final provision of the sub-section does not go further and deem boilermaker's deafness to be a disease "of such a nature as to be contracted by a gradual process" as does s. 7 (4B) for the purposes of s. 7 (4). The other is that, although the sub-section operates to provide a date for the happening of certain injuries, it does so only with regard to injuries mentioned in the first column of the table, and boilermaker's deafness is not mentioned there. (at p267)

6. I cannot find any satisfactory explanation of the terms of the last provision of the sub-section. Whatever deficiencies it may have with regard to total or partial loss of sight - and perhaps the different words "of gradual onset" were intended to mean the same as the words "of such a nature as to be contracted by a gradual process" used earlier in the sub-section - I have come to the conclusion that the provision is merely redundant in its reference to boilermaker's deafness and any deafness of the like origin, because the effect of s. 7 (4B) is to entitle a sufferer therefrom to compensation under s. 7 (4) and this may be enforced under s. 16, so that, without the last provision of the sub-section, boilermaker's deafness should, for the purposes of s. 16, be deemed a disease which is of such a nature as to be contracted by a gradual process. It seems clear beyond dispute that the amendment of s. 7 by the inclusion of sub-s. (4A) was made to meet the case of a claim under s. 16 failing because of the character of boilermaker's deafness (Milne v. International Combustion Australia Ltd. (1953) 27 WCR 80) and that in Coates v. Commissioner for Railways (1960) 78 WN (NSW) 377 it was rightly decided that, thereafter, the obstacle to the success of an applicant claiming compensation under s. 16 for boilermaker's deafness was s. 7 (5). The difficulty here has been created by bringing the words "which is of such a nature as to be contracted by a gradual process" into s. 16 and then making a limited provision with regard to it which could have some effect only if s. 7 (4B) did not, through s. 7 (4), apply. As I have said, I think this should be regarded merely as a redundancy and not as in any way negativing the full application of s. 7 (4B) through s. 7 (4) to claims under s. 16. (at p267)

7. The other difficulty is also one created by an unhappy choice of words, for I have no doubt that it was intended that boilermaker's deafness should be regarded as an injury mentioned in the first column of the table. It seems to me that to give effect to this intention, which s. 16 (1A) evinces clearly enough, the words "mentioned in the first column of the said table" should be read as covering any injury which is included within an injury mentioned in the table so that the injuries "Loss of hearing of both ears" and "Loss of hearing of one ear" would cover boilermaker's deafness. (at p268)

8. Accordingly, because there are in the first column of the table the injuries "Loss of hearing of both ears" and "Loss of hearing of one ear", such deafness, when it is boilermaker's deafness, is, for the purpose of s. 16 (1A), to be regarded as an injury mentioned in the first column; furthermore, that injury, being deemed to be a disease and to be "of such a nature as to be contracted by a gradual process" by reason of s. 7 (4B) is, in the absence of incapacity, to be deemed to have happened at the time of the claim for compensation. (at p268)

9. What, then, is the result of this construction in this case? There is authority to make an award for boilermaker's deafness when it constitutes the loss, complete or partial, of the hearing of one ear, or the complete loss of hearing of both ears, but there is no authority to make an award for partial loss of hearing of both ears. This last, however, was the award that was made, and I consider that it was wrongly made. Moreover, as the findings stand, there is no basis upon which an award could now be made upon the footing that there was 26.3 per cent loss of hearing of each ear. It follows that questions (vii) and (viii) should have been answered "No" instead of "Yes" and that as things stand, no answers to questions (v) and (vi) could be given categorically, because the answer in each case depends upon a finding that there was some specified loss of the hearing of each ear. There was evidence upon which such a finding could have been made, but it was not made and this Court has no authority to make it. Accordingly, I would reverse the answers given by the Supreme Court to questions (vii) and (viii), refrain from giving any separate answer to the other questions, and remit the matter to the Commissioner for further consideration. (at p268)

10. In accordance with the undertaking given when special leave to appeal was granted, the appellant should pay the costs of the appeal to this Court, including the costs of the motion for special leave to appeal. (at p268)

WINDEYER J. For over forty years the respondent has been employed by the appellant as a boilermaker. As a result of his work he has boilermaker's deafness, an impairment of hearing brought about gradually by repeated concussions by noise on the nerve endings of the ear. His deafness does not prevent his working at his trade. It thus has not produced incapacity, in the industrial and economic sense, necessary to entitle him to an award of periodic payments under the Workers' Compensation Act, 1926 (N.S.W.) as amended. But on 27th February 1961 he claimed, under s. 16 of the Act, lump sum compensation for "Loss of hearing", a table injury. The deterioration in his hearing, as ascertained by testing in accordance with the Commonwealth Acoustic Laboratories standard, was in May 1961 26.3 per cent of the normal hearing of a man of his age. And this was accepted by the Workers' Compensation Commission as the degree of loss of binaural hearing at the date he made his claim. He based his claim on s. 16 (1A), which was introduced into the Act by an amendment made in December 1960. It reads as follows: "Where an injury mentioned in the first column of the said table is a disease which is of such a nature as to be contracted by a gradual process and which has not resulted in incapacity, such injury shall, for the purpose of determining a worker's right to the amount indicated in the second column of the said table, be deemed to have happened at the time when such worker makes his claim for compensation. In this subsection 'disease' includes the condition known as 'boilermaker's deafness' and any deafness of the like origin and total or partial loss of sight which is of gradual onset." (at p269)

11. On 22nd November 1961 the learned Chairman of the Workers' Compensation Commission, Judge Conybeare, made an award in the respondent's favour for 460 Pounds 5s. 0d., being 26.3 per cent of 1,750 Pounds the amount provided in the table for "Loss of hearing". (at p269)

12. On an appeal to the Supreme Court by way of case stated, this award was in effect upheld. From that decision this appeal comes to this Court pursuant to an order giving special leave to appeal. (at p269)

13. The appellant's main argument in this Court, as in the Supreme Court, was that, because s. 16 (1A) first came into force on 1st December 1960, it only enabled the worker to have compensation for such diminution of his hearing as had occurred after that date; that the deterioration that had occurred up till that time was a different "injury". But the new sub-section was clearly intended to effect an alteration of the law as it was before 1st December 1960 by removing defects and limitations that had been revealed by Coates' Case (1960) 78 WN (NSW) 377 I can see no warrant in its language for confining its effect in the way suggested. The time of the worker's claim for compensation for the consequences of a disease contracted by a gradual process is made the date of his injury for the purposes of s. 16. There is nothing in the Act to suggest that he is not to have compensation according to s. 16 for his loss of hearing as at that date, no matter when or over what period of time that loss occurred or developed. To confine the operation of the amendment in the way the appellant proposes would be to limit a right, newly created, by reference to the law as it had been before it was created. The proposition as advanced was inconsistent with the principles applied by this Court in Fisher v. Hebburn Ltd. [1960] HCA 80; (1960) 105 CLR 188 and Wyper v Hetton Bellbird Collieries Ltd. [1960] HCA 81; (1960) 105 CLR 208 I need say no more, for the judgment of Walsh J. in the Supreme Court effectively disposed, I think, of this part of the appellant's argument. (at p270)

14. Next it was said that s. 16 (1A) was entirely ineffectual - that the legislature's intention had miscarried because s. 16 (1) contains the words "if the worker so elects". This phrase, it was said, postulates a choice, and the choice contemplated is between periodic payments during incapacity and a lump sum under the table: therefore, it was said, s. 16 (1A) could have no operation, because it applies only in cases of a disease "which has not resulted in incapacity". But s. 16 must be read as a whole in the form that now, after the amendment, it has. In any case in which a worker could have either periodic payments or a lump sum under the table he may elect to have the latter. The choice is for him, not his employer. But saying that does not mean that in a case in which only one remedy is available to him he cannot have that one. Here again the decision of the Supreme Court was, I consider, plainly right. (at p270)

15. Although the grounds on which the appellant attacked the decision of the Supreme Court were mistaken, the awkward language of s. 16 (1A) does create some difficulties. This is no new occurrence in legislation on workers' compensation - in New South Wales or elsewhere. Forty years ago Lord Atkin, then Atkin L.J., said of a provision in a workmen's compensation statute: "We have to consider the terms of the section. It is not very artistically drawn. There is a fatality in legislating on workmen's compensation. It seems impossible to legislate in such clear terms as to avoid the possibility of dispute": Davies v. Gwauncaegurwen Colliery (1924) 2 KB 651, at p 661 (at p270)

It was the decision in Coates' Case (1960) 78 WN (NSW) 377 that led to the enactment of s. 16 (1A). But to understand the situation that led to that decision it is necessary to go back to Milne v. International Combustion Australia Ltd. (1953) 27 WCR 80 and the amendment to which it gave rise. The history is set out in the judgments in the present case delivered by Judge Conybeare in the Workers' Compensation Commission and by Walsh J. in the Supreme Court, and I shall not go over that ground again. Much of the difficulty arose, I think, from Judge Rainbow's decision in Milne's Case (1953) 27 WCR 80 , that boilermaker's.deafness, being in a medical sense the product of a succession of minute traumata, was not a disease. His Honour's decision was carefully considered. But it seems to me to have been erroneous. It led counsel for the appellant in the present case to make a distinction between what he called claims on an injury basis and claims on a disease basis. The distinction seems to me to have no firm place in the law of New South Wales. (at p271)

17. In England and elsewhere many cases of occupational disease have turned upon the word "accident" in the phrase "personal injury by accident". Wherever those words appear in a statute in which certain diseases are specified as being compensable, the question whether some other disease resulting from a worker's employment can give a right to compensation depends upon whether it could be said to have been contracted by accident. The judgments in the long series of cases on this point exhibit perhaps some lack of uniformity and perhaps too some variations in the use of medical knowledge of the aetiology of particular diseases as the foundation of analogies between one case and another: see Fife Coal Co. Ltd. v. Young (1940) AC 479 But I think it may be said, at all events since the decision in the House of Lords in Roberts v. Dorothea Slate Quarries Co. Ltd. (1948) LJR 1409, that a disease which is contracted by a gradual process cannot be an injury by accident, because an accident is some identifiable event as distinct from a continuous process. In the New South Wales statute, however, the word "accident" does not appear. It may be that the word "injury", standing alone and undefined, contains, either of itself or from past associations in this branch of the law, a suggestion of a traumatic injury as a distinct happening at an identifiable point of time. But in the New South Wales statute the word "injury" is not undefined. The Act gives it a comprehensive meaning which robs it of any essential sense of particular occurrence - for, as the definition stood at the time relevant for this case, "'injury' . . . includes a disease which is contracted by the worker in the course of his employment . . . and to which the employment was a contributing factor . . . ". A disease is thus none the less an injury within the meaning of the Act whether it be in fact contracted at a particular point of time or by a gradual process. The word "disease" seems to me apt to describe any abnormal physical or mental condition that is not purely transient, certainly one that, like boilermaker's deafness, is commonly called an occupational disease. Such a disease may be the result of infection (e.g. anthrax or blood poisoning), of constant exposure to some irritant substance (e.g. dermatitis), of the absorption of a substance poisonous by its cumulative effect (e.g. lead poisoning), of the long continued inhalation of dust injurious to the lungs or of exposure to some other factor which is a circumstance of the employment. I cannot see that, for the purposes of the New South Wales Act, any abnormal physical condition well recognized in medical science that, like beat hand or beat knee, is the result of repeated pressure or, like boilermaker's disease, of repeated concussion by noise is any the less a disease than is an abnormal physical condition caused by a germ or by the repeated absorption through the nose or the skin of some deleterious substance. Of course, when all forms of occupational disease were brought compendiously within the definition of "injury" for the purposes of the Act, the need for special provisions concerning diseases contracted by a gradual process still remained. These were necessary to determine the person from whom the worker could claim compensation - fixed by the Act as his last employer in the disease-producing employment - and also to determine for various procedural purposes, including notices of injury and service of claims, the time at which the injury was to be taken as having happened, that is to say when the disease was to be taken as having been contracted. (at p272)

18. Section 16 (1A) provides that "disease" in that sub-section includes the condition known as boilermaker's deafness. Section 7 (4B) provides that for the purposes of s. 7 (4) the condition known as boilermaker's deafness is to be deemed to be a disease and to be of such a nature as to be contracted by a gradual process. Both provisions, introduced by amendments at different dates, are examples of the patching and tinkering manner in which the New South Wales legislature has so often dealt with the Workers' Compensation Act. Particular provisions and exceptions are introduced regardless of their consistency or conformity with the scheme of the Act as a whole. To undo the effect of the decision in Milne's Case (1953) 27 WCR 80 that boilermaker's deafness was not a disease, the most obvious course would have been to declare that it was a disease within the statutory definition of injury. Once it be said, as in s. 16 (1A) it is said, that boilermaker's deafness is a disease, then it is a disease which, within the meaning of that sub-section, is contracted by a gradual process - because it is in fact so contracted. (at p273)

19. I see no justification for construing s. 16 (1A) by reference to the different wording of s. 7 (4B). Section 7 (4B) relates only to s. 7 (4) and cannot control s. 16 (1A). Moreover, a statement that a condition is to be deemed to be a disease contracted by a gradual process does not amount to a declaration that it is not in fact such a disease. The word "deemed" is of course often used to give an artificial meaning to a word, or to direct how notwithstanding the true facts some situation should be understood. But, remembering its derivation, the word "deemed" merely states how some matter is to be adjudged: and a direction that a matter is to be adjudged in a particular way is not necessarily an assertion that without such a direction it must have been adjudged differently. (at p273)

20. The case comes, I think, fairly within the terms of s. 16 (1A). But some troublesome questions remain when it is sought to relate that sub-section to the table. It has been said that the opening words "Where an injury mentioned in the first column of the table is a disease "should be read as meaning where the injury so mentioned is the result of a disease. But, having regard to the terminology of the Act making the word "injury" include disease, the wording of the sub-section, though clumsy, is understandable. The difficulty is that the table, a thing long familiar in workers' compensation law, contains no reference to any disease by name. It lists under the heading "Nature of injury" losses of various bodily members - an arm, a leg, a finger, a toe and so forth - and in the form it now has, and at the relevant date had, it includes, beside such losses of members, certain losses of faculties. The item that is relevant for present purposes is "Loss of hearing of both ears". There is no specific provision for a partial loss of hearing of both ears as there is, by a footnote, for a partial loss of hearing of one ear. However, s. 16 (5) provides that: "For the purpose of the said table the expression 'loss of' also includes the 'permanent loss of the efficient use of' but in such case a percentage of the prescribed amount payable, equal to the percentage of the diminution of the full efficient use, may be awarded in lieu of the full amount". In my opinion, and with respect to those who think otherwise, the judges of the Supreme Court and of the Workers' Compensation Commission were correct in regarding this as applicable to any item described as "loss of", whether of a faculty or of a bodily member. "Permanent loss of the efficient use of hearing" is no doubt a clumsy expression. But the provision - and there are similar provisions in other workers' compensation statutes - is understood and applied without difficulty by those regularly engaged in the administration of this branch of the law. I think that this Court ought not to interfere in their assessments unless it be clearly established that they proceeded on some erroneous principle - and certainly ought not to do so by adopting a construction of the Act which was not put forward in argument. I appreciate that an argument could be advanced that the effect of the table and its footnotes is that a partial loss of the hearing of one ear is compensable, but that a partial loss of binaural hearing is not. But that would mean disregarding s. 16 (5) - or treating it as inapplicable, which I think it is not. It would be illogical and moreover contrary to the principle expressed by Dixon C.J. in Williams v. Metropolitan Coal Co. Ltd. [1948] HCA 8; (1948) 76 CLR 431 where he said: "It was settled very early in the history of workers' compensation legislation that the liability provisions were to be treated as paramount to the compensation provisions where any conflict is found between them" (1948) 76 CLR, at p 450 His Honour expressed the same view in Nash v. Sunshine Porcelain Potteries Ltd. [1959] HCA 7; [1959] HCA 7; (1959) 101 CLR 353: "It is well settled that a right to compensation conferred by the Act is not to be restricted or denied because of difficulties in fitting the clauses relating to the computation of compensation to the circumstances of his case" (1959) 101 CLR, at p 361 These statements are supported by authorities to which his Honour referred. (at p274)

21. In my opinion the computation that Judge Conybeare made in this case was warranted by the fact he found, namely that the respondent (the applicant before him) had suffered a 26.3 per cent loss of binaural hearing. The Supreme Court was, I think, correct in upholding that decision. (at p274)

22. I have not overlooked the argument that, upon the view that I consider to be correct, an applicant might by successive applications made as his deafness increased obtain sums that in the aggregate would be more than the total amount that the table provides for loss of hearing. But if this anomaly does exist it is not altogether new in cases of this kind: see King v. Hayward [1943] HCA 17; (1943) 67 CLR 488 It may require the attention of the legislature as Starke J. suggested in that case, twenty years ago. But I do not wish to be taken as agreeing that the result is as suggested. There may be more than one answer to the appellant's contention. I would only say that, as I read the Act, what the table provides for is a permanent loss of effective binaural hearing. That seems to mean total deafness, not partial deafness. But s. 16 (5) authorizes the Commission to award a percentage "in lieu of the full amount". A worker who fails to establish total deafness, but establishes a diminution of hearing may thus be awarded a quantum meruit instead of having his claim dismissed. But that may not mean that he can get more later under the table - whatever might be the position if later he becomes incapacitated and claims under other provisions of the Act. However, these questions can wait until they arise. (at p275)

23. I would dismiss the appeal. (at p275)

ORDER

Question (i)
(ii) See answers to questions (vii) and (viii).
(iii)
Question (iv) Unnecessary to answer.
Question (v) See answers to questions (vii) and
(vi) (viii).
Question (vii)
(viii) No.

But there was evidence on which an award could properly be made under s. 16 of the Workers' Compensation Act in favour of the applicant in respect of his partial loss of hearing of each ear.

Case remitted to the Workers' Compensation Commission to be dealt with in conformity with these answers.

Appeal dismissed with costs.