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High Court of Australia |
PUBLIC TRUSTEE (W.A.) v. STATE ENERGY COMMISSION [1979] HCA 4; (1979) 142 CLR 211
Workers' Compensation (W.A.)
High Court of Australia
Barwick C.J.(1), Gibbs(2), Stephen(3), Jacobs(4) and Murphy(5) JJ.
CATCHWORDS
Workers' Compensation (W.A.) - Compensation - Lump sum - Noise induced loss of hearing - Boilermaker's deafness - Progressive loss of hearing - Whether capable of being injury by accident - No disability from earning full wages - Whether lump sum payable - Workers' Compensation Act, 1912-1973 (W.A.), ss. 7 (1), 7A, 7B, 8, 12.
HEARING
Perth, 1978, September 14.DECISION
1979, Feb. 20.2. His employment before his arrival in Australia was in the shipbuilding industry in England. After other employment as a boilermaker in Australia, he entered the employ of the respondent, the State Energy Commission of Western Australia, as a boilermaker. That was in 1963 when he was fifty-two years of age. He remained in that employment until his retirement in 1976 at the age of sixty-five. (at p214)
3. He first experienced a loss of hearing when he was thirty-five years of age. This condition gradually increased over the intervening years until he became unable to follow conversation. Just when this stage of his deafness was reached does not appear but it is said that in 1967 he began to use a hearing aid. Apparently, however, he was not at any time disabled from earning full wages because of his loss of hearing. On 1st October 1974 he gave to the respondent notice of his intention to claim compensation under the Workers' Compensation Act, 1912- 1973 (W.A.) ("the Act") for noise induced loss of hearing. (at p214)
4. It will be convenient at this point to set out the relevant sections of
the Act. Prior to amendments made in 1973 by Act No.
96 of that year, the
following sections would have governed the worker's claim for compensation for
boilermaker's deafness:
"7. (1) If in any employment personal injury by accident arising out of
or in the course of the employment, or whilst the worker
is acting under the
employer's instructions, is caused to a worker, his employer shall, subject as
hereinafter mentioned, be liable
to pay compensation in accordance with the
First Schedule.
. . .the date of the accident;
(2) Provided that -
(a) the employer shall be liable to pay compensation under this Act from
. . .where the worker so elects, the compensation payable for the injuries mentioned in the first column of the table set out in the Second Schedule to this Act shall, subject to the provisions of this Act relating to that Second Schedule, be the amounts indicated in the second column thereof.
(3) (a) Notwithstanding the provisions of the First Schedule to this Act,
. . .Act a worker has already suffered a permanent loss of any percentage of the full efficient use of -
(e) (i) When, by personal injury by accident, within the meaning of this
that part or faculty of the body -each such subsequent injury shall be proportionate to any increase (resulting from that subsequent injury) in the percentage of loss of that full and efficient use.
the compensation payable under the provisions of that table in respect of
. . .suffering from, or his death is caused by, any disease, except pneumoconiosis or mesothelioma, mentioned in the first column of the Third Schedule to this Act and the disease is or was due to the nature of any employment in which the worker was employed at any time within one year previous to the date of the disablement, whether under one or more employers, the worker, or in the case of death his dependants, shall be entitled to compensation in accordance with this Act as if the disease were a personal injury by accident within the meaning of section seven, suffered by the worker at the place of his employment, and the provisions of this Act shall apply thereto accordingly, subject, however, to the provisions of this section.
8. (1) Where a worker is disabled from earning full wages by reason of
. . .recover compensation in respect of a disease to which this section does not apply if the disease is a personal injury by accident within the meaning of this Act.
(12) Nothing in this section shall affect the rights of a worker to
. . .injury shall not be maintainable unless -
12. (1) Proceedings for the recovery under this Act of compensation for an
5. In 1973 the undernoted amendments were made: it is around the effect of
these that this appeal has turned. The amendments relevant
to this appeal
were:
(a) The insertion of ss. 7A and 7B in the following terms:known as noise induced hearing loss, then, unless the injury is one for which either in whole or in part compensation has previously been paid, that compensation shall be assessed as if the whole of the loss of function arising from that injury occurred immediately before the notice of that injury was given.
"7A. If compensation under this Act is claimed in respect of the injury
(2) For the purposes of this section -number is prescribed, the number so prescribed.
(a) the prescribed age is fifty years; and
(b) the prescribed number of decibels is one-half or, where some other
(b) The substitution in the Second Schedule of -centum
Ratio which the sum payable herein bears to the prescribed amount per
"6. Total loss of hearing 75"the percentage of diminution of hearing.
for -
"15. Total loss of hearing $6,528
16. Partial deafness of both ears Such percentage of $6,528 as is equal to
17. Complete deafness of one ear $2,176"p216)
(c) The addition to the Third Schedule of an item:
"Description of Disease Description of Process
Noise-induced hearing loss Any process involving exposure to noise." (at
6. The claim for compensation in this case was heard by the Workers
Compensation Board set up under the Act. The Board found
that McPherson had
suffered a noise induced hearing loss amounting to 56.1 per cent.
Consequently, it held that he was entitled to
an award of 56.1 per cent of the
sum designated in the Second Schedule to the Act as applicable to "Total loss
of hearing"; the award
was for the sum of $11,035.85. (at p217)
7. At the request of the respondent, the Board stated a case for the opinion of the Supreme Court of Western Australia. The case set out the facts found by the Board, the principal of which, apart from the employment history, was that "the applicant had suffered a noise induced hearing loss amounting to 56.1 per cent". (at p217)
8. The Board, however, forwarded to the Supreme Court with the case stated its reasons for its decision to make an award, stating that these reasons were sent forward "as part of this stated case". Such a course is, in my opinion, highly unsatisfactory and should not be followed. What is required in a stated case is a clear and, if possible, unambiguous statement of the facts found by the Board and clearly and, again if possible, unambiguously expressed questions on which opinion is sought. But the Solicitor-General, who appeared for the respondent before this Court, was content to treat these reasons as containing findings of fact additional to those set out in the stated case on which the Board in the case itself claimed to have founded its award. Acting on the Solicitor-Generals's concession, it is possible to extract from the Board's reasons that it accepted, rather than found, that "loss of hearing is certainly injury by accident". The Board said that the medical evidence "supports the claim that it" (loss of hearing) "arose out of or in the course of the employment". (at p217)
9. Though I do not think it is possible to be confident of the view of the Act as amended upon which the Board acted, it seems to me that we should accept that the Board thought that the claim for compensation could be supported by a combination of s. 7 (1) and (3) and s. 7A, because s. 7A required the Board to deem the boilermaker's deafness to have occurred suddenly in the employment of the respondent. Accordingly, in the Board's view, the claim for a percentage of the Second Schedule amount for total loss of hearing was sustainable by reason of s. 7 (3), though there was no supervening incapacity. (at p217)
10. The questions asked in the stated case were: 1. On the facts as found did the Board err in law in holding that the applicant was entitled to an award of 56.1 per cent loss of hearing pursuant to the Second Schedule or any award for loss of hearing? 2. Whether the Board correctly interpreted ss. 7 (1), 7 (3) and s. 7A of the Act to the facts as found or entitled to be found by the Board. (at p217)
11. The Full Court of the Supreme Court by majority (Burt C.J. and Lavan J., Wallace J. dissenting) answered the first question "Yes" and the second question "No" (1978) WAR 97 . (at p217)
12. Joseph Wilfred McPherson died after the decision of the Supreme Court had been given. The Public Trustee in and for the State of Western Australia as his executor is now the claimant and has sought the special leave of this Court to appeal from the Supreme Court's decision. (at p218)
13. The Chief Justice of Western Australia, in his reasons for judgment, said
(1978) WAR, at p 98 :
"It is common ground that prior to the 1973 amendment to the Act a
worker suffering from noise induced hearing loss or boilermaker's
deafness had
no entitlement to compensation. The reason for this was that he was unable to
establish that personal injury by accident
arising out of or in the course of
his employment had been caused to him so as to bring himself within s. 7 of
the Act and if boilermaker's
deafness be regarded as a disease it was not a
disease mentioned in the Third Schedule to the Act so as to bring him within
s. 8
of the Act."
He held for reasons which he expressed that "the worker in the instant case
cannot bring his claim under s. 7 by means of s. 8 of
the Act". His Honour
further held that the worker could not bring himself within s. 7 via s. 7A.
His Honour was unable "to extract
from s. 7A any intention to create a new and
independent basis for the employer's liability", i.e. to deem noise induced
hearing
loss to be personal injury by accident. (at p218)
14. Lavan J. was of opinion that s. 7A merely served to create a notional instant of time as the occurrence of the noise induced loss of hearing. Section 7A "merely created the basis of an assessment for compensation without establishing the means by which the question of liability was to be determined". (at p218)
15. Wallace J. was of opinion that the amendment of 1973 "prays in aid a notional injury by accidnet so as to bring the claimant within the provisions of the Second Schedule and s. 7 (3)". (at p218)
16. In the argument upon this motion for special leave, counsel for the applicant has submitted that the Board found as a fact that the deceased had suffered an injury by accident arising out of and in the course of his employment with the respondent and had done so apart from, and without relying upon the amendments to the Act made in 1973. The Board's resort to s. 7A in this submission was merely to fix the time at which the accident had occurred. However, having regard to the reasons for judgment given by the Board, I am clearly of opinion that this submission is misconceived and should be rejected. For one thing, the facts as stated in the case give no hint of any such finding. For another, it is tolerably plain from the reasons of the Board that it reached its decision to make an award through the interpretation it placed on s. 7A. It said, "The object of the latter" (s. 7A) "appears to be to have us deem that an injury or condition of gradual onset, for the purposes of the Act occurs suddenly in the employment of the last employer in a noisy industry, and there is no provision for contribution such as Section 8 provides". Further, the questions asked in the stated case give no support to and, indeed, are, in my opinion, in opposition to the submission. (at p219)
17. The Board, in my opinion, did not find that the deceased's loss of hearing was an injury by accident within s. 7 (1) unaided by the terms of s. 7A or of s. 7B. The Board, as I read their reasons, construed the 1973 amendment in including s. 7A as deeming the gradual loss of hearing to be an injury by accident occurring immediately before the giving of the notice claiming compensation. (at p219)
18. Further, I am of the opinion that the progressive loss of hearing due to following the employment of a boilermaker cannot properly be held to be the receipt of an injury by accident within the provisions of s. 7 (1) of the Act. It may be thought to be theoretically possible, if practically impossible, that each day's diminution of the efficient function of hearing is an injury by accident; but, in my opinion, even that theoretically possible conclusion ought not to be accepted as within the terms of s. 7 (1). Of its very nature, the progressive loss of hearing due to exposure to noise is an imperceptible process: and, indeed, on a daily or brief periodic basis unlikely to be measurable, even in comparative terms. In any case, that daily or periodic diminution in function will not in general lead to disability to continue in employment or to earn the full wages payable therein. (at p219)
19. I therefore approach answering the questions asked in the stated case by considering whether the 1973 amendments made the result of the gradual loss of hearing what it was not theretofore, namely, an injury by accident notionally received immediately before the making of a claim for compensation. (at p219)
20. I think it important at the outset to observe that except as to Second Schedule injuries, the Act is exclusively concerned with injuries or diseases deemed to be injuries which result in disability, i.e. an inability to earn full wages. This may not be true of all schemes of workers' compensation but, in my opinion, it is clearly so in the case of the Act. Both s. 7 (1) and s. 8 require supervening incapacity as a condition of compensability. Section 8 does so expressly. Section 7 read with ss. 12 and 12A does likewise. It is quite clear that, without supervening incapacity, no claim for compensation can be founded on the receipt of any of the deemed injuries tabled in the Third Schedule. (at p220)
21. The injuries tabled in the Second Schedule stand in high contrast to all other injuries, including the items tabled in the Third Schedule which are deemed to be injuries by accident so as to come within s. 7 (1). In the case of Second Schedule injuries, which are in the nature of the deprivation of parts of the body or of the function of parts of the body, the worker suffering them may opt to take the lump sum approach to his injury in the Second Schedule, subject to certain qualifications not here material. (at p220)
22. I turn now to consider the effect of the 1973 amendments. Perhaps the most significant change was to add "Noise induced hearing loss", not to the Second Schedule but to the Third Schedule. That is to say, to place it amongst the diseases of gradual onset which are deemed to be injuries by accident and compensable if there is supervening incapacity. Also by reason of the provisions of s. 8, contribution by other employers may be obtained in respect of compensation payable by the employer on whom the claim for compensation is made. (at p220)
23. It is also perhaps worth observing that the item "noise induced hearing loss" is not limited to boilermaker's deafness. It includes hearing loss in any employment which exposes the worker to noise. (at p220)
24. The next amendment made in 1973 to which I should direct attention is the substitution of a new Second Schedule effected by s. 14 of the amending Act. Item 6 under the caption "Hearing" in this schedule is "Total loss of hearing". The displaced items in the Second Schedule as it was before the 1973 amendment were items 15 "Total loss of hearing", 16 "Partial deafness of both ears", and 17 "Complete deafness of one ear". Loss of an item in the table in the Second Schedule includes "the permanent loss of the use of" and "the permanent loss of the efficient use of" the specified items. The item "loss of hearing" is in contrast to many other items in the table in that it does not describe the loss of a part of the body such as a leg or an ear. It describes the loss of a function or ability. It is thus quite difficult, in my opinion, to apply the concepts of s. 7 (3) (b) and (c) to item 6 now in the Second Schedule. One can scarce speak of the permanent loss of the use of hearing. One just does not hear: it is not accurate to say one uses one's hearing except possibly to describe attentiveness or inattentiveness, neither of which is appropriate in the present discussion. Equally, it is difficult to think of the permanent loss of the efficient use of hearing. Obviously the two paragraphs (b) and (c) were designed for application to such items in the table as items 1, 2 and 3. But it would be difficult to my mind to apply them to items 4 and 5. The same may be said of items 7, 8 and 9, whereas the paragraphs could readily be applied to items such as items 13, 14, and to all the items listed under "Hand" with the exception of item 23. (at p221)
25. In any case, to bring himself within s. 7 (3) the worker must be able to establish an injury by accident which caused the item in the table. To establish such an injury, the point of its reception must be identifiable because by reference to it the obligation to give notice of a claim and to make the claim for compensation itself is imposed: see s. 12. The Third Schedule gives the worker an option, i.e. he may take periodical payment or, in an appropriate case, take a Second Schedule payment, or both, up to the ultimate maximum compensation payable. But his claim for compensation, whether it be by periodic or lump sum payment, depends on the giving of notice and the making of a claim. The fact that there are relaxing provisions in the Act does not detract from this basic need to give notice and to claim at times fixed in relation to the time of the receipt of the injury. (at p221)
26. I turn then to s. 7A inserted in 1973. In considering its terms, it is as well to remember that legislative intention is to be found in the legislative act. Whilst it may be inferred, it is the legislation which must furnish the material from which a relevant inference may be drawn. This, it seems to me, is a particularly apposite observation when legislation of the present kind is under consideration. (at p221)
27. Section 7A is in the same amending statute (1973) as s. 15 which brought "noise induced hearing loss" into the Third Schedule, and which by s. 14 substituted "Total loss of hearing" in the Second Schedule. Thus, after the amendments, a claim for compensation for noise induced hearing loss as a deemed injury under s. 8 could be brought, if there were supervening incapacity. If such a claim were brought, s. 7A could perform a function. Amongst other things, it could preclude any claim by the employer on whom the claim was made successfully seeking contribution from some preceding employer. (at p221)
28. I can find no warrant in reading s. 7A as deeming noise induced hearing loss to be of necessity an injury by accident under s. 7 (1): nor can I read it as inserting into the Second Schedule an item appropriate to noise induced hearing loss. Item 6 in that Schedule is apt, and I think only apt, for a total loss of hearing by some single event, or, if contrary to my own opinion the terms of s. 7 (3) can be applied to item 6, a loss of portion of hearing by a single event. I have already indicated my inability to use s. 7 (3) as allowing item 6 to be applied as if it read "total or partial loss of hearing" or as if noise induced hearing loss referred to a permanent loss of the efficient use of hearing so as to permit of a percentage award under item 6 as was done by the Board. (at p222)
29. Finally, I should refer to s. 7B. Bearing in mind the provision of noise induced hearing loss in the Third Schedule and the provision of s. 7A as to the manner of assessment of compensation therefor, s. 7B performs the function of endeavouring to apportion the effect of the exposure to noise and the onset of age in a worker over 50 years of age who claims compensation under and pursuant to s. 8. (at p222)
30. In my opinion, the majority of the Supreme Court were correct in their conclusion. (at p222)
31. I would grant special leave but dismiss the appeal. (at p222)
GIBBS J. This case raises the question whether a worker who became deaf as a result of exposure to noise during many years of work as a boilermaker, but who was not thereby disabled from earning full wages, was entitled to compensation under what is now the Workers' Compensation Act, 1912-1978 (W.A.) ("the Act"). The facts appearing in the case stated by the Workers' Compensation Board under s. 29 of the Act are very short. The worker was employed as a boilermaker for most of his working life. He was employed by the respondent in that capacity from 1963 until 1976, when he retired at the age of sixty-five. His deafness was first experienced in about 1946 and it gradually increased over the years. In 1967 he commenced to use a hearing aid. On the 1st October 1974 he gave the respondent notice of intention to claim compensation for noise induced hearing loss. There was no evidence that he lost work, or was disabled from earning full wages, because of loss of hearing. The Board found that he had suffered a noise induced hearing loss amounting to 56.1 per cent. On these facts the Board held that the worker was entitled to an award of 56.1 per cent loss of hearing pursuant to the Second Schedule to the Act. The Full Court of the Supreme Court, by a majority, decided that in so holding the Board erred in law (1978) WAR 97 . The worker having died, the executor of his will has applied for special leave to appeal to this Court. (at p222)
2. On behalf of the applicant it was argued that the Board had made a further
finding, that the worker suffered personal injury
by accident arising out of
and in the course of his employment. No such finding is set out in the stated
case itself. However the
concluding paragraph of the case reads as follows: "A
copy of the Reasons of Decision is forwarded herewith as part of this State
Case." In the course of the reasons given for the decision, and forwarded with
the case, the Board said: "Loss of hearing is certainly
injury by accident,
and the medical evidence supports the claim that it arose out of or in the
course of the employment." In my opinion
this passage in the reasons for the
decision of the Board cannot be regarded as a statement of facts found by the
Board. In Brisbane
City Council v. Valuer-General (Q.) [1978] HCA 40; (1978) 140 CLR 41 I had
occasion to discuss the nature of a case stated, and
said:
"It is customary to annex the reasons for judgment to the case stated
and convenient to do so, to enable the matter to be properly
understood. If
the reasons revealed an error of law, no doubt the Full Court would be
entitled to correct that error, even if it
would not otherwise have appeared
from the case stated. However in my opinion it is impermissible to regard the
reasons for judgment
as a statement of the facts or as a statement of the
evidence."
Those observations are in my opinion equally applicable to the present case.
However, the question is of no great importance, because
the Board, in the
passage cited, was intending to state a conclusion of law, and if it had found
as a fact that the worker had suffered
injury by accident, the correctness of
that finding, as a matter of law, would have been open for consideration. (at
p223)
3. The Act confers upon a worker a right to compensation in case of injury and in case of disease. Under s. 7, if "personal injury by accident" is caused to the worker in the circumstances mentioned in that section, the employer is liable to pay compensation. Under s. 8, if the worker is disabled from earning full wages by reason of suffering from any disease mentioned in the first column of the Third Schedule (or, in a few cases with which we are not concerned, mentioned in s. 8 itself) the worker is, subject to certain other conditions stated in the section, entitled to compensation "as if the disease were a personal injury by accident within the meaning of section seven". Two sorts of compensation are payable under s. 7. The general rule, stated in s. 7 (1), is that compensation is to be paid in accordance with the First Schedule. Under that Schedule compensation is payable only in case of death, or where total or partial incapacity from work resulted from the injury, or where certain expenses were incurred. However, by s. 7 (3), where the worker so elects, compensation is payable in accordance with the Second Schedule for the injuries mentioned in the table set out in that Schedule. It is not a condition of payment of compensation under s. 7 (3) or the Second Schedule that the worker should have been disabled from working or earning full wages. By s. 12 (1), proceedings for the recovery of compensation for an injury are not maintainable unless a notice of the accident has been given as soon as practicable after the happening thereof and the claim for compensation has been made within twelve months from the occurrence of the accident. However the failure to give notice or make a claim in accordance with this provision is not a bar to the maintenance of the proceedings if (inter alia) the employer was not prejudiced or there was reasonable cause for the failure. (at p224)
4. It is clear and undisputed that the worker in the present case is not
entitled to compensation under s. 8. It is true that "noise
induced hearing
loss" is a disease mentioned in the Third Schedule - those words were inserted
in that Schedule by an amendment made
by the Workers' Compensation Act
Amendment Act, 1973 ("the Amendment Act of 1973"). However, the loss of
hearing from which the worker
suffered in the present case did not disable him
from earning full wages, so that one of the conditions laid down by s. 8 was
not
fulfilled. The expression "disabled from earning full wages" is defined,
by a provision inserted in s. 5 of the Act by the Amendment
Act of 1973, to
mean "rendered less able to earn full wages", but there is no finding in the
stated case that the worker was rendered
less able to earn full wages by
reason of his loss of hearing. To succeed, therefore, the worker must come
within s. 7. He must show
that he suffered "personal injury by accident" and
further, since no incapacity for work resulted, that the "injury" from which
he
suffered is one mentioned in the table in the Second Schedule. Item 6 of
that table is "Total loss of hearing". The present Second
Schedule was
substituted for an earlier Schedule by the Amendment Act of 1973. The table
set out in the earlier Schedule included
"Total loss of hearing", "Partial
deafness of both ears" and "Complete deafness of one ear" (Items 15, 16 and
17) but the Second
Schedule in its present form makes no reference to partial
deafness, or to noise induced hearing loss. However s. 7 (3) (b) and (c)
of
the Act (which were unaffected by the Amendment Act of 1973) provide as
follows:
"(b) for the purpose of the said table the expression 'loss of' includes
'permanent loss of the use of';
(c) 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 such
percentage of the prescribed amount payable as is equal to the percentage of
the diminution of the full efficient
use, may be awarded, in lieu of the full
amount."
If a case of partial deafness is to come within the Second Schedule, it is
necessary that those provisions should be capable of applying
to such a case.
(at p225)
5. There is, in my opinion, no difficulty in describing boilermaker's deafness as an injury. A person who suffers from that complaint has undergone a harmful physiological change, which can be described as an injury in the ordinary sense of the word. In Hume Steel Ltd. v. Peart [1947] HCA 34; (1947) 75 CLR 242, at p 256 , Dixon J. said that "it has never been doubted that disease may amount to an injury", and proceeded to cite an observation made by Lord Wrenbury in Martin v. Manchester Corporation (1912) 106 LT 741, at p 742 : "Contraction of a disease is an injury; that injury may or may not be by accident." The decision in Hume Steel Ltd. v. Peart [1947] HCA 34; [1947] HCA 34; (1947) 75 CLR 242 was not followed in Slazengers (Australia) Pty. Ltd. v. Burnett (1951) AC 13 , but there is nothing in the judgment of the Judicial Committee in that case to cast any doubt on the correctness of those observations of Dixon J. The fact that a disease may, in some circumstances, be a personal injury by accident is recognized by s. 8 (12) of the Act, which provides that nothing in s. 8 shall affect the rights of a worker to recover compensation in respect of a disease to which that section does not apply if the disease is a personal injury by accident within the meaning of the Act. Even if the disease is one to which s. 8 applies - i.e., if it is one of those diseases mentioned in the Third Schedule - that does not mean that it cannot be described as personal "injury by accident": see the cases cited in Roberts v. Dorothea Slate Quarries Co., Ltd., (1948) 2 All ER 201, at pp 204-205 . Hearing loss, caused by a sudden explosion, would in my opinion clearly be personal injury by accident within s. 7, notwithstanding that noise induced hearing loss is specified as a disease in the Third Schedule to the Act. However, the deafness from which the worker suffered in the present case developed slowly and gradually, as the result of exposure to noise over many years. Such a disability cannot in my opinion be described as "personal injury by accident" within the meaning which has been authoritatively applied to that expression in workers' compensation legislation, or within its ordinary meaning. (at p225)
6. In Weston v. Great Boulder Gold Mines Ltd. [1964] HCA 59; (1964) 112 CLR 30, at p 34 ,
Menzies J. said:
"It has been established since Fenton v. Thorley & Co. Ltd. (1903) AC
443 that when a worker is injured in his employment
by
an unlooked-for mishap
or an untoward event which is not expected or designed by the worker himself,
there is injury by accident
for the purposes of the Workers' Compensation Act
. . . "There may be a series of such events which result in the injury, and it is not necessary that the time at which any accident occurred should be established (provided that it was sufficiently related to the employment). However, if the disability or disease has developed by a continuing process, over a long period, it cannot be said to be injury by accident. In Roberts v. Dorothea Slate Quarries Co. Ltd. (1948) 2 All ER, at p 205 Lord Porter said:
7. However by the Amendment Act of 1973 two further sections were added to
the Act. These were as follows:
"7A. If compensation under this Act is claimed in respect of the injury
known as noise induced hearing loss, then, unless the
injury is one for which
either in whole or in part compensation has previously been paid, that
compensation shall be assessed as
if the whole of the loss of function arising
from that injury occurred immediately before the notice of that injury was
given.
7B. (1) Subject to this section, in ascertaining, for the purposes of
this Act, the percentage of the diminution of hearing
in respect of noise
induced hearing loss of a worker who is over the prescribed age, it shall be
conclusively presumed that his loss
of hearing is, to the extent of the
prescribed number of decibels for each complete year of his age in excess of
the prescribed age,
to be attributed to presbycusis.
(2) For the purposes of this section -number is prescribed, the number so prescribed.
(a) the prescribed age is fifty years; and
(b) the prescribed number of decibels is one-half or, where some other
8. The curse that appears to blight the work of draftsmen when they come to prepare legislation dealing with workers' compensation was not lifted when ss. 7A and 7B were framed. The provisions of those sections are confused and obscure. Section 7A does not in terms confer on a worker any right to compensation, but since it provides for the manner in which compensation is to be assessed, it assumes that a right to compensation exists. Of course a right to compensation for noise induced hearing loss does exist, in two sets of circumstances. If the loss was caused by an accident such as a sudden explosion, there will be a right to compensation under s. 7, but the provisions of s. 7A would hardly seem necessary to provide for such a case, where the injury has occurred as the result of a specific occurrence happening at an ascertainable time, and it is at least improbable that s. 7A was intended to be confined to that situation. If the loss occurred gradually, as the result of a continuous process, there will be a right to compensation under s. 8, provided that the other conditions of that section are satisfied. The provisions of s. 7A will therefore not be nugatory and ineffective if noise induced hearing loss such as boilermaker's deafness is not an injury by accident within s. 7, if those provisions can have an operation in relation to cases arising under s. 8. It is true that the intended operation of s. 7A in relation to s. 8 is not very clear. The learned Solicitor-General submitted that s. 7A was designed to avoid argument on questions of retrospectivity. I am inclined to agree that this was one, at least, of the objects of the section. A right to claim compensation under s. 8 for noise induced hearing loss was first conferred by the Amendment Act of 1973. Since noise induced hearing loss of the kind now being considered occurs gradually, and often over very many years, the question might have arisen, in the absence of s. 7A, where a worker who, after 1973, was found to be suffering from boilermaker's deafness, could have successfully claimed under s. 8 notwithstanding that his disability had, either wholly or to a large extent, been in existence before 1973. Section 7A indicates that he can claim in those circumstances, so that the worker in the present case could have made a successful claim had he been disabled from earning full wages. In this respect s. 7A appears to be intended to fulfil a function somewhat similar to that performed by s. 16 (1A) of the Workers' Compensation Act 1926 (as amended) (N.S.W.) which was considered in Commissioner for Railways v. Bain [1965] HCA 5; (1965) 112 CLR 246 and Montgomery v. Cockatoo Docks & Engineering Co. Pty. Ltd. (1967) 68 SR (NSW) 242 . However, if it be true that the operation of s. 7A is doubtful in its application to s. 8, it is equally difficult to see what function it would have been intended to perform if cases of noise induced hearing loss fell directly within s. 7. Its terms suggest that it was not designed to obviate the practical difficulty of giving notices under s. 12 that would arise if, contrary to the view that I have expressed, noise induced hearing loss such as boilermaker's deafness should be regarded as resulting from a protracted series of accidents. (at p229)
9. The applicant in the present case naturally placed considerable reliance on the circumstance that s. 7A twice refers to noise induced hearing loss as an "injury". It was submitted that the legislature treated noise induced hearing loss as a notional injury by accident. However, it is to be observed that s. 7A does not refer to "injury by accident". As I have already indicated, it is not unnatural to refer to noise induced hearing loss as an injury; the reason why a worker could not obtain compensation for a loss of hearing which occurred as the result of a gradual and continuous process was that such a loss was not an injury by accident. The use of the word "injury" in s. 7A is in my opinion an insufficient indication that the legislature intended that a noise induced hearing loss should be deemed to be an injury by accident within s. 7. (at p229)
10. On behalf of the applicant it was further submitted that the provisions of s. 7B can only be of significance in cases arising under s. 7. Section 7B provides for the manner of the determination of that percentage of the diminution of hearing loss which is due to the effect of noise, rather than to advancing years, where the worker is over the age of 50 and the case is not one of total loss of hearing of either ear. It is not clear why it is necessary to determine this percentage. In deciding whether the loss of hearing was a disease mentioned in the Third Schedule, or whether s. 8 applies, it is irrelevant that a particular percentage of the diminution of hearing was due to the effect of noise. It is not immediately obvious that the determination of this percentage is any more relevant for the purposes of the Second Schedule. In the first place, it is a question whether s. 7 (3) (c) has the effect that the amount to be awarded when there has been a diminution, but not a total loss, of function is such percentage of the amount of compensation prescribed for total loss as equals the percentage of the diminution of full efficient use. The words of s. 7 (3) (c) are appropriate to the loss of use of a member of the body, but inappropriate to the loss of a faculty such as sight or hearing, as indeed was held, in a different legislative context, by the majority of the Court in Commissioner for Railways v. Bain (1965) 112 CLR, at pp 259, 265 . There are some indications in the Act that s. 7 (3) (c) is intended to permit the award of a percentage of the amount payable under the Second Schedule in cases where there has been a partial loss of a faculty or function, as well as in cases where there has been partial loss of the use of a member; see paras. (b) and (c) of the Second Schedule, which relate to partial loss of sight, and s. 7 (3) (e) (i), which appears to recognize that an award may be made under the Second Schedule in respect of the partial loss of a faculty. However, if it be assumed that s. 7 (3) (c) permits an award to be made under Item 6 of the Second Schedule where there has been a partial loss of hearing, it does not seem to follow that it is necessary to determine what percentage of the diminution of hearing is due to exposure to noise. Perhaps s. 7B itself implies that this further percentage is to be applied. (at p230)
11. Whatever view be taken of these questions, the provisions of s. 7B do not in my opinion support the conclusion that a noise induced hearing loss such as boilermaker's deafness is a personal injury by accident within s. 7 (1). If it were true that s. 7B could only be applicable to a claim under the Second Schedule, and not to a claim under the Third Schedule, that would not indicate that such a noise induced hearing loss fell directly within s. 7. If a worker is entitled under s. 8, the compensation which he is awarded is determined as if the disease were a personal injury by accident within s. 7. Such a worker may therefore elect to be paid compensation under the Second Schedule, rather than under the First, provided of course that the disease from which he is suffering is specified as an injury in the table of the Second Schedule. Since Item 6 of that table does specify "Total loss of hearing", there can be no room for doubt that a worker who had suffered a total loss of hearing, caused entirely by noise, and who, having been disabled from earning full wages, came within s. 8, would be entitled to elect to take compensation under the Second Schedule. If in such a case the loss of hearing was only partial, whether the worker could elect to take compensation under the Second Schedule would depend on the question whether s. 7 (3) (c) permits a claim to be made under that Schedule when there has been a partial loss of function. However if a claim for noise induced hearing loss, total or partial, can be made under the Second Schedule, that does not mean that noise induced hearing loss is a personal injury by accident within s. 7. Such a claim may be made in a case in which the entitlement of the worker is derived from s. 8, rather than directly from s. 7. It is therefore not correct to say that s. 7B can only apply if noise induced hearing loss is a personal injury by accident within s. 7. (at p231)
12. For these reasons, I cannot find in ss. 7A and 7B grounds for inferring that noise induced hearing loss is personal injury by accident within s. 7. There is, in my respectful opinion, a good reason for reaching a contrary conclusion. If noise induced hearing loss which resulted from a gradual process rather than from an explosion was a personal injury by accident within s. 7, it was unnecessary to add noise induced hearing loss as a disease in the Third Schedule. If cases such as boilermaker's deafness came directly within s. 7, it was pointless to include them within s. 8; to do so added nothing to the entitlement of a worker, who could only recover under s. 8 if he had been disabled from earning full wages. This suggests that it was not intended, by ss. 7A and 7B, to require noise induced hearing loss to be a personal injury by accident within s. 7. When the provisions of the Amendment Act of 1973 are considered together, it appears to me that the purpose of the legislature was to allow a claim for noise induced hearing loss such as boilermaker's deafness to be made only under s. 8, and that ss. 7A and 7B were intended to be ancillary to that purpose. (at p231)
13. The case is a difficult one, and the question is such as to warrant the grant of special leave to appeal. For the reasons I have given, however, the conclusion reached by the majority of the Full Court was correct. I would accordingly grant special leave to appeal but would dismiss the appeal. (at p231)
STEPHEN J. I have had the advantage of reading the reasons for judgment of the Chief Justice. I agree both with the view taken by the Chief Justice concerning the findings of the Workers' Compensation Board and with his Honour's understanding of the process of reasoning by which the Board arrived at its conclusion, that is, its reliance upon s. 7A and s. 7B of the Act. (at p232)
2. I further agree that the gradually progressive hearing loss of which the appellant complained did not fall directly within s. 7 (1) of the Act as a personal injury by accident and that, without recourse to s. 7A and s. 7B, s. 7 (3) could not avail him. I share with the Chief Justice an inability to find in s. 7A or s. 7B any means whereby the applicant, whose lack of disablement from earning full wages excluded him from the benefit of s. 8 of the Act, became entitled to compensation under s. 7 of the Act. Accordingly I too would uphold the decision of the majority of the Full Court and, while granting special leave, would dismiss this appeal. (at p232)
JACOBS J. This appeal raises a question on the construction and application
of certain provisions of the Workers' Compensation Act,
1912-1973 (W.A.) which
were introduced by the amendments of 1973. Section 7 (1) of the Act and the
First Schedule deal with periodic
payments to an injured worker during his
total or partial incapacity for work. Section 7 (3) deals with lump sum
compensation of
prescribed amounts for certain injuries set out in the Second
Schedule. Such lump sum compensation is payable if the worker so elects
but,
except for certain expenses, he is not on election entitled to receive more
than that sum (sub-s. (3) (f)). Sub-sections (3)
(a), (b) and (c) of s. 7 are
as follows:
"(3) (a) Notwithstanding the provisions of the First Schedule to this
Act, where the worker so elects, the compensation payable
for the injuries
mentioned in the first column of the table set out in the Second Schedule to
this Act shall, subject to the provisions
of this Act relating to that Second
Schedule, be the amounts indicated in the second column thereof.
(b) For the purpose of the said table the expression 'loss of' includes
'permanent loss of the use of'.
(c) 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 such
percentage of the prescribed amount payable as is equal to the percentage of
the diminution of the full efficient
use, may be awarded, in lieu of the full
amount."
The Second Schedule contains a table of injuries and a statement of the
percentage of the prescribed amount payable in respect of
them. It includes
"Total loss of hearing" against which is placed a percentage of 75 per cent.
Previously to the 1973 amendments
there were three items in the Second
Schedule related to hearing - the existing one of "Total loss of hearing" and
in addition "Partial
deafness of both ears" and "Complete deafness of one
ear". (at p232)
2. Section 8 (1) of the Act provides:
"Where a worker is disabled from earning full wages by reason of
suffering from, or his death is caused by, any disease, except
pneumoconiosis
or mesothelioma, mentioned in the first column of the Third Schedule to this
Act and the disease is or was due to
the nature of any employment in which the
worker was employed at any time within one year previous to the date of the
disablement,
whether under one or more employers, the worker, or in the case
of death his dependants, shall be entitled to compensation in accordance
with
this Act as if the disease were a personal injury by accident within the
meaning of section seven, suffered by the worker at
the place of his
employment, and the provisions of this Act shall apply thereto accordingly,
subject, however, to the provisions
of this section."
Included amongst the diseases listed in the Third Schedule is "Noise induced
hearing loss". By s. 8 (3) the disablement is to be
treated as the happening
of an accident. The compensation is recoverable from the employer who last
employed the worker during the
period of one year mentioned in sub-s. (1). If
the disease is of such a nature as to be contracted by a gradual process there
is
an obligation on certain earlier employers to contribute to the
compensation (sub-s. 5 (iii)). (at p233)
3. The item "Noise induced hearing loss" was introduced into the Third
Schedule in 1973 and at the same time ss. 7A and 7B were
introduced. These
sections provide as follows:
"7A. If compensation under this Act is claimed in respect of the injury
known as noise induced hearing loss, then, unless the
injury is one for which
either in whole or in part compensation has previously been paid, that
compensation shall be assessed as
if the whole of the loss of function arising
from that injury occurred immediately before the notice of that injury was
given.
7B. (1) Subject to this section, in ascertaining, for the purposes of
this Act, the percentage of the diminution of hearing
in respect of noise
induced hearing loss of a worker who is over the prescribed age, it shall be
conclusively presumed that his loss
of hearing is, to the extent of the
prescribed number of decibels for each complete year of his age in excess of
the prescribed age,
to be attributed to presbycusis.
(2) For the purposes of this section -number is prescribed, the number so prescribed.
(a) the prescribed age is fifty years; and
(b) the prescribed number of decibels is one-half or, where some other
4. Prior to 1973 compensation for noise induced hearing loss was only payable
under s. 7 and the First and Second Schedules, and
it was necessary for the
worker to prove injury by accident arising out of or in the course of
employment with the employer from
whom the compensation was claimed. Thus, no
doubt, a noise induced hearing loss which resulted in incapacity for work
would have
entitled a worker to compensation under s. 7 (1) and the First
Schedule if he could prove the injury by accident and that he was
totally or
partially incapacitated for work. A noise induced hearing loss would also
entitle a worker to lump sum compensation under
s. 7 (3) even if he was not
totally or partially incapacitated for work, provided he could prove the
injury by accident arising out
of or in the course of his employment with the
employer on whom the claim was made and could prove total loss of hearing or
partial
deafness of both ears or complete deafness of one ear. In the case of
a sudden noise which caused loss of hearing proof would be
possible, but there
were immense, if not insuperable, difficulties of proof if there was no sudden
noise which induced the hearing
loss but a condition of noise which gradually
induced hearing loss, as in the case of what is commonly described as
"boilermaker's
deafnes". Moreover, there is s. 12 (1) which made it necessary
to give notice to the employer as soon as practicable after the accident
causing injury, and to make the claim for compensation within twelve months. A
constant stream of notices and claims would have been
necessary. It would
appear, therefore, that for such loss of hearing compensation was not
practically obtainable. (at p234)
5. The 1973 amendments were clearly intended to remedy that situation and to enable compensation to be obtained for boilermaker's deafness and similar kinds of deafness. Compensation could be obtained under s. 8 by treating the condition as a disease in which case compensation would be payable as if the disease were a personal injury by accident. However, for such compensation to be payable it would be necessary to prove disablement from earning full wages in accordance with the requirement of s. 8 (1). (at p234)
6. The worker in the present case, who has since died and who is now represented by his executor, the appellant, incurred a noise induced hearing loss in the course of his work as a boilermaker. He was employed by the respondent from October 1963 to April 1976 when he retired at the age of sixty-five years. The loss was of gradual onset but there was no evidence of any loss of work or disablement from earning full wages because of his hearing loss. The Workers' Compensation Board found that he had suffered a noise induced hearing loss of 56.1 per cent and accordingly made an award for lump sum compensation under s. 7 (3). (at p235)
7. The worker in his claim for compensation did not rely upon s. 8 and he could not do so in the absence of evidence of disablement from earning full wages. He claimed that he had suffered an injury arising out of or in the course of his employment, that s. 7 (3) was applicable to his case, that by virtue of s. 7 (3) (b) and (c) a percentage of the item "Total loss of hearing" in the Second Schedule was payable, and that the difficulties of proof which he previously faced were obviated by s. 7A. On the other hand, the employer claimed, and has since maintained, that the only avenue to compensation for noise induced loss of hearing which was of gradual onset was by s. 8 (1) and the Third Schedule. At the same time, however, it is conceded that, if the requirements of s. 8 (1) are met, and there is disablement from earning full wages, then lump sum compensation may be payable under s. 7 (3) because, by virtue of s. 8 (1), compensation is payable under the Act (including s. 7 (3)) as if the disease were a personal injury by accident within the meaning of s. 7. (at p235)
8. I do not think that the 1973 amendments can be so construed that they excluded all noise induced hearing loss from the direct operation of s. 7. That being so, I can see no indication of an intention that a noise induced hearing loss of the particular kind which occurs by gradual onset should be excluded. Section 7A supports that conclusion. It refers to "the injury known as noise induced hearing loss". But on the respondent's contention there is no such injury within the operation of the Act. There is a "disease" which, if the conditions of s. 8 are fulfilled, is compensable as if that disease were a personal injury by accident. It seems to me that the legislature made clear by the language of s. 7A that noise induced hearing loss was an injury even though by s. 8 and the amended Third Schedule it at the same time recognized that it could also be a disease. By s. 7A it overcame the difficulties of proving the suffering of the injury and of duly making the claim for compensation which previously existed. (at p235)
9. Section 7B shows an even clearer legislative intention that s. 7, in particular s. 7 (3), should apply to noise induced hearing loss. The only occasion for ascertaining the percentage of diminution of hearing in respect of noise induced hearing loss is where an application is made for lump sum compensation under s. 7 (3) and the Board is applying s. 7 (3) (c). Where there is total or partial incapacity for work or disablement from earning full wages, the percentage of diminution of hearing is not relevant. It is then a question of the degree of reduction of the ability to earn. (at p236)
10. The Second Schedule now refers only to "Total loss of hearing". In 1973 the Schedule was reformed. The sensory and some motor losses were grouped together and separately from loss of limbs or parts of the body. Sensory losses were each expressed in the Schedule as "Total loss". I think that it is sufficiently clear that in the case of anything less than total loss a percentage of the prescribed amount is payable by application of s. 7 (3) (b) and (c). When the words of s. 7 (3) (b) or (c) are read with the words "Total loss of hearing" or, indeed, any other of the sensory losses itemized in the Second Schedule, the language becomes inelegant but I think that the intention is sufficiently clear. By virtue of s. 7 (3) (c) the concept of totality gives way to the concept of diminution and a percentage of the prescribed amount is payable. The ascertainment of that percentage in the case of noise induced loss of hearing is subject to the particular requirements of s. 7B. (at p236)
11. I am therefore of the opinion that the application for special leave
should be granted and that the appeal should be allowed
with costs. The
answers to the questions in the stated case should be as follows:
Question 1 - No.the stated case. (at p236)
Question 2 - Unnecessary to answer. The respondent should pay the costs of
MURPHY J. I agree with Jacobs J. Special leave should be granted and the appeal allowed. (at p236)
ORDER
Application for special leave to appeal granted.Appeal dismissed with costs.
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