Carroll v Forgacs Floating Dockyard [2000] NSWCC 1 (1 March 2000)

Last Updated: 9 August 2000

CITATION: Carroll v Forgacs Floating Dockyard [2000] NSWCC 1

PARTIES: Patrick Carroll v Forgacs Floating Dockyard Pty Ltd

TITLE OF COURT: Compensation Court

JURISDICTION: Original

MATTER NO/S: NSWCC 35520 of 1998

DELIVERED ON: 1 March 2000

DELIVERED AT: Sydney

HEARING DATES: 2 June 1999

JUDGMENT OF: Neilson J

NUMBER OF PARAGRAPHS: 22

CATCHWORDS: Workers Compensation Assessment Of Compensation; Lump sum payments, Pain and Suffering. Worker makes two claims for boilermaker's deafness. Each claim against a different employer and each insufficient to reach threshold to s 67. If two losses added together, sufficient to cross threshold. Whether claims can be agglomerated. Held, following repeal of s 71(2), claims can not be agglomerated to cross s 67 threshold.

REPRESENTATION

APPLICANT/S

Mr J Kearney instructed by MRM Solicitors appeared for the applicant.

RESPONDENT/S

Mr G P Neilson instructed by Grahame Goldberg Partners appeared for the respondent.

Compensation Court of New South Wales

Matter No 35520 of 1998

Patrick Carroll

v

Forgacs Floating Dockyard Pty Limited

1 March 2000

JUDGMENT

NEILSON J

1. On 4 March 1992, the applicant was awarded lump sum compensation under s 66 for 13.1% loss of binaural hearing, resulting from an injury deemed to have occurred on 18 November 1988. That award was satisfied by an earlier employer Todhope Pty Ltd.

2. On 2 June 1999, the applicant was awarded further lump sum compensation under s 66 for an additional 4.1% loss of binaural hearing, resulting from an injury deemed to have occurred on 12 February 1998.

3. It is common ground that the applicant now has a 17.2% binaural hearing loss. An award for 17.2% binaural hearing loss would entitle the applicant to claim a lump sum under s 67 for pain and suffering. The applicant claims in these proceedings a lump sum under s 67.

4. The question which has arisen is whether the two losses which have been compensated under s 66 can be agglomerated so that the applicant can claim an entitlement under s 67. The applicant argues, correctly, that if he had not made the earlier claim for the injury deemed to have occurred on 18 November 1998, he would have been entitled to claim and to be awarded compensation for 17.2% binaural loss of hearing against the current respondent and therefore to an award under s 67. His argument then is that his "right" to compensation under s 67 should not be defeated by his having made two (or, theoretically, any number of) claims under s 66.

5. This situation was formerly governed by Workers Compensation Act 1987 s 71. That section provided:

71(1) If:

(a) compensation has been paid or becomes payable under this Division (or section 16 of the former Act) for a loss, being:

(i) the loss of a proportion (but not all) of a thing; and

(ii) an occupational disease; and

(b) the worker suffers a further loss of that thing,

compensation is payable under this Division for the further loss, but only the proportion of that further loss of the thing shall be taken into account in calculating the compensation payable.

(2) Any such further losses may be taken into account for the purpose of determining whether compensation is payable for pain and suffering because of the operation of section 67(2).

(3) In this section:

"occupational disease" means:

(a) loss of hearing due to boilermaker's deafness of any deafness of a similar origin;

(b) total or partial loss of sight which is of gradual onset; or

(c) any disease which is of such a nature as to be contracted by a gradual process.

6. Clearly, there was a statutory warrant in subsection (2) to agglomerate two or more losses of hearing to entitle a worker to make a claim under s 67. However, s 71 was repealed by the WorkCover Legislation Amendment Act 1996, No 120, which received the Royal Assent on 3 December 1996 and came into force on 12 January 1997. Accordingly, s 71(2) is not available to the applicant for an injury deemed to have occurred on 12 February 1998.

7. Neither Counsel has been able to identify any provisions replacing s 71(2). Nor have I. This has caused learned Counsel for the applicant to argue that this "creates an anomaly which can not be justified" and that "the legislature could not have intended to create this anomaly and that the applicant should be entitled to pain and suffering in the present circumstances."

8. The repeal of s 71(2) and the failure of Parliament to enact any similar provision, prima facie, indicate an intention that a worker can not agglomerate two or more losses to cross the s 67 threshold. Learned Counsel for the applicant has referred me to one extrinsic aid, the second reading speech in the Legislative Assembly, given on 20 November 1996. That speech was delivered by the Hon Mr K Yeadon, Minister for Land and Water Conservation. The relevant part of the speech is:

The next two items concern lump sum compensation provisions. First, the bill will reduce by 25 per cent the maximum lump sums payable for permanent disability and associated pain and suffering. This reduction will reverse the irresponsible and unsustainable increases in maximum lump sums introduced under the former Government in 1991. Those increases, which no-one had asked for, were excessive and were not a sensible use of compensation resources. Second, the bill extends provisions - currently applicable only to claims for impairment of the back, neck or pelvis - so that pre-existing disability will be deducted from lump sum claims for other types of injury. As well as avoiding cases of lump sum double-dipping, this arrangement will ensure that the employer will only be liable for the part of a worker's permanent disability actually caused by the work injury.

Such deductions will help to minimise reluctance of employers to hire or re-hire workers with prior disabilities, because of concern about being held liable for the pre-existing condition.

9. I should also have regard to other extrinsic aids. In the Legislative Council, the speech of the Hon J W Shaw, Attorney General and Minister for Industrial Relations, was incorporated in Hansard. The speech contains the following passage:

Secondly, the bill extends provisions - currently applicable only to claims for impairment of the back, neck or pelvis - so that pre-existing disability will be deducted from lump sum claims for other types of injury.

As well as avoiding cases of lump sum double-dipping, this arrangement will ensure that the employer will only be liable for the part of a worker's permanent disability actually caused by the work injury.

Such deductions will help to minimise reluctance of employers to hire or re-hire workers with prior disabilities, because of concern about being held liable for the pre-existing condition.

10. The explanatory note to the Bill which became Act No 120 of 1996 (WorkCover Legislation Amendment Bill 1996 (No 2)) provides greater assistance. The relevant part of that Note is:

Deduction for previous injuries and pre-existing conditions and abnormalities

Schedule 1.6 contains amendments to broaden the application of a provision introduced in 1995 that requires lump sum compensation payment for permanent loss to be reduced by the proportion of the loss that is attributable to previous injuries or pre-existing conditions or abnormalities. The provision currently applies only to permanent impairment of the back, neck or pelvis. The amendment will expand the provision so that it applies to all injuries for which lump sum compensation is payable. The result will be that the employer will only be liable for the part of a worker's permanent disability actually caused by the work injury. The intention is to minimise possible reluctance by employers to employ or re-employ workers with prior disabilities because of concern about being held liable for the pre-existing condition. To avoid litigation seeking to determine the precise percentage of pre-existing disability the amendments provide that where it is clear that the worker did have some pre-existing disability but there is an absence of medical evidence to ascertain the percentage, 10% of the worker's overall disability (of the bodily part or function affected) may be taken by the insurer assessing the claim or, in case of a dispute, by a conciliator or the Compensation Court as the proportion to be deducted for that purpose. The new provision will also subsume the function of section 71 of the Act, deleted by the amendments, which dealt with occupational diseases such as loss of hearing due to industrial noise and required prior losses suffered by the worker, for which compensation was already paid or payable, to be deducted from any claim for further loss.

11. It is clear that s 71 was repealed because it was thought that is was subsumed in the new ss 68A and 68B. S 68B(4) provides:

(4) When determining the compensation payable in a case in which section 17 applies (loss of hearing) there is to be no deduction under section 68A for any proportion of the loss that is due to the worker's employment (after the commencement of this Act) by a previous employer in employment to the nature of which the disease was due (but without affecting any deduction under that section for any proportion of the loss that is not due to the worker's employment in employment to the nature of which the disease was due or that is due to any pre-existing condition or abnormality).

12. At first blush, it might appear that this provision would entitle the applicant to an award against the present respondent for 17.2% loss of binaural hearing, even though he has been earlier awarded a lump sum for 13.1% loss of binaural hearing. However, it must be remembered that s 17(1) commences with the words: "if the injury is a loss, or further loss, of hearing" The "loss" referred to in s 68B(4) must be understood in the appropriate case as referring to a "further loss." If that interpretation were not adopted, the scheme of ss 68A and 68B would fail.

13. The reputed subsumption of s 17(2) in the new provisions can not be seen. Rather, the new provisions indicate a contrary intention. In his oral submissions on 2 June 1999, and inferentially in his written submission, Mr Kearney, for the applicant, submitted that there had been a Parliamentary "oversight". There is some force in his submission when one sees in s 69A(9) a continuing reference to the repealed s 71. Mr G P Neilson, for the respondent, did not join in that submission. An inference can be drawn that the de facto repeal of s 71(2) was not specifically adverted to by Her Majesty's Ministers because it was politically inopportune to do so. Whether the failure to re-enact s 71(2) was unintentional or deliberate is not for me to say. All that it is necessary to say is that I have no power to re-enact it. I must apply the law enacted by Parliament, not amend it.

14. Mr Kearney has submitted that there is only one loss, a 17.2% loss of binaural hearing and that I should ignore the "fictional" deemed date of injury of 18 November 1988. In his written submissions he stated: "[The applicant] has suffered industrial deafness which is a disease of gradual on-set and by its nature is continuous." This is not correct. In Milne v International Construction Aust Ltd [1953] WCR 80, Rainbow J held that a gradual loss of hearing resulting from long exposure to noise was not a disease, but was rather a succession of minor traumata, each of which caused some minute amount of damage to the cochlea, the cumulative effect being the slow diminution of hearing ability and therefore it could not be classified as a disease of gradual onset within the meaning of Workers Compensation Act 1926 s 7(4). That decision led Parliament to enact s 7(4B) with a heading referring to Milne's case. The former s 7(4B) is now contained in s 17. Industrial deafness can therefore be seen as a series of minor traumata, deemed to be a disease of gradual onset which is deemed to occur at a specific time Furthermore, industrial deafness is not "continuous." Additional deafness will only occur if a worker is exposed to noise of a sufficient loudness to induce the condition. In the present matter, if the applicant had not worked in a "noisy employment" after 18 November 1988 he would not have increased the level of his deafness from 13.1% to 17.2%. The applicant did not suffer a 17.2% loss of binaural hearing for which the respondent is liable, but rather only a 4.1% further loss of binaural hearing.

15. Mr Kearney referred me to Glebe Rowing Club Pty Ltd v Pride (Court of Appeal, 6 December 1995, unreported) and to my own decision in Sidiropoulos v Able Placements Pty Ltd [1998] NSWCC 7; (1998) 16 NSWCCR 123. Of Pride's case I said in Caufield v Ward and ors (No 2) (unreported, 30 August 1996, No 16971 of 1994):

In that case the worker had two back injuries each in a different employment. Burke J found a 22 per cent impairment of the back resulting from both injuries. He awarded the worker $12,000 under section 67. The majority (Meagher JA and Rolfe AJA) inferred that the trial judge thought that each of the employers was equally responsible and that, therefore, an 11 per cent impairment resulted from each injury. Such a finding would not entitle the worker to an award under section 67 for either injury and the majority set the award under section 67 aside. There was a powerful dissent from Priestley JA, who pointed out that Burke J found only one impairment, not two impairments. Burke J gave his decision on 7 December 1992. The interpretation given to the then section 22 was contained in such decisions as IGF-NEM V GIO (1994) 33 NSWLR 247; 10 NSWCCR 74; MLC Insurance Ltd v Pinto (1994) 10 NSWCCR 101; IGF-NEM v MMI (1994) 10 NSWCCR 431. Both Meagher JA and Rolfe AJA said that section 22 was not applicable, but the construction they reached achieved de facto the same result. The majority thought that Burke J found two impairments each resulting from a separate injury in a different employment. Priestley JA was in the minority in holding that Burke J found that there was only one impairment. However, an extract from Burke J's judgment set out by Rolfe AJA indicates to me that Burke J did find only one impairment. The decision appears to me no more than one concerning the correct interpretation of Burke J's judgment.

16. Strictly, in my view, this case is only authority as to the correct interpretation of the first instance judgment of Burke J. However, it makes the point that one can not agglomerate two or more losses so as to entitle a worker to pass the s 67 threshold. As Mr Neilson pointed out in his written submissions, this authority is directly against the argument mounted on the applicant's behalf. In Sidiropoulos, I made a factual finding of one impairment and one loss resulting from two injuries. In the current case there are two losses - an original 13.1% loss of binaural hearing and a 4.1% further loss of binaural hearing. The law applied in Sidiropoulos has no application to a case of this nature.

17. Mr Kearney has also referred to the policy of the Act. He said:

5. The applicant says that it could not be the intention of Parliament to defeat the purposes of the Act (ie in denying a s 67 award in some circumstances but allowing it in others). Section 33 of the Interpretation Act 1987 allows a Court to prefer a construction that would promote the purpose of the object underlying the Act to a construction that would not (see Rico Pty Limited v Roads & Traffic Authority 28 NSWLR 679 at 692.8 per Sheller JA).

...

7. Finally, the applicant says that the scheme under s 17 whereby multiple awards for industrial deafness are made over time is a scheme which favours individual employers whereby, as is industry practice, workers are required to make a claim for industrial deafness against their prior employer before commencing employment with the new employer. If the respondent's interpretation is accepted, the operation of that scheme might effectively deny workers in the metal industry ever receiving an award of pain and suffering because each individual award could be under the s 67(2) threshold.

However, this submission begs the question - what is the purpose or object of the Act? One can say it is to compensate workers for their injuries but since Act 120 of 1996 one can say, to use the words of the Hon Mr Yeadon and the Hon Mr Shaw, "that the employer will only be liable for the part of a worker's permanent disability actively caused by the work injury." Such an intention can be gleaned not only from ss 68A and 68B but also from s 9A. Reference must also be made to s 69A which was inserted by Act No 89 of 1995 and amended by Act No 120 of 1996. The effect of that provision is to limit the making of claims for industrial deafness, by imposing a threshold of 6% binaural hearing loss. The repeal of s 71(2) can then be seen as a further inducement to delay making a claim - until the quantum of the hearing loss is sufficient to cross the s 67 threshold. (15.38 binaural hearing loss)

18. The "mischief" referred to by Mr Kearney is the same that befell Miss Pride and befalls any worker who has multiple injuries. A worker as the result of one injury may develop lateral epicondylitis of his dominant arm which leads to a 10% loss of efficient use of the arm and, as a result of a second injury, also may develop a rotator cuff problem at the shoulder which increases the loss of efficient use of the arm to 20%. Facilely, one could say that there is a 20% loss of the arm resulting from two injuries, but there is not. There are two separate pathologies caused by two different events, so there are two separate injuries. Aliter if there is one pathology caused by two events, as in Sidiropoulos.

19. In my view the only way two or more losses of hearing could be agglomerated so as to cross the s 67 threshold was the special statutory provision of s 71(2) but, unfortunately, that has been repealed.

20. Lest this matter go further and I, happily, be proved to be wrong, I shall make a finding as to quantum so that the matter need not be returned to me.

21. Mr Carroll was born on 4 September 1946 and is now 53 years old. He has noticed problems with his hearing since his 20s. His total loss of hearing is 17.2%. He has the usual problems that people with such a level of deafness have. He can not discern conversation when in a group of people. He can not hear properly other than when one person is directly facing him. He can not hear his wife when she is speaking in a room in his home in which he is not present. He can not hear the telephone ringing. He can only hear the radio and television when the sound is turned up. Such things lead to domestic stress and have restricted his social activities. The applicant has also noticed tinnitus after his working day as a boilermaker. I accept that the applicant has experienced a moderate degree of anxiety and distress because of his hearing problem. In my view that stands in proportion to a most extreme case of pain and suffering, anxiety and distress in the ratio of 1:10 so that, if the applicant were entitled to benefits under s 67, he would be entitled to an award of $5,000.

22. On the applicant's claim under s 67, I make an award for the respondent.

Mr J Kearney instructed by MRM Solicitors appeared for the applicant.

Mr G P Neilson instructed by Grahame Goldberg Partners appeared for the respondent.