Cassidy v Duncan & Associates Pty Ltd [2001] NSWCC 7 (28 February 2001)

Last Updated: 5 September 2001

NEW SOUTH WALES COMPENSATION COURT

CITATION: Cassidy v Duncan & Associates Pty Ltd [2001] NSWCC 7


PARTIES:
John Cassidy
v
Duncan & Associates Pty Ltd


CASE NUMBER: 35077 of 2000 of 2001.00


CATCH WORDS: Elements of Workers Compensation


LEGISLATION CITED:


CORAM: Neilson J

DATES OF HEARING: 28/02/01

EX TEMPORE DATE: 28/02/2001


LEGAL REPRESENTATIVES

FOR APPLICANT:
Mr J J Klarica instructed by Taylor & Scott appeared for the applicant.
FOR RESPONDENT:
Mr G Levick instructed by Moray & Agnew appeared for the respondent.


JUDGMENT:

1. Mr John Cassidy of Lithgow claims lump sum compensation under s 66 for 11.8 per cent binaural loss of hearing. The applicant claims that compensation from his current employer, Duncan & Associates Pty Limited. That company would appear to be carrying out construction work at the Conservatorium of Music in Sydney. The applicant commenced employment with the respondent on 7 June 1998. His job was that of a security officer and gate-keeper. There was an administrative change in the relationship between the applicant and the respondent that came into effect on 17 January 1999. Sometime immediately prior to that date the applicant approached the principal of the respondent and asked could he work as "sub-contractor". The applicant assumed the business name of Alpalm Security and sent invoices to the respondent on a monthly basis. Physically nothing changed.

2. The applicant continued the same work under the same conditions. After 17 January 1999 the applicant was paid at a rate of $22 per hour from which no PAYE taxation deductions were made. The applicant conceded that that arrangement was in order to enable him to manage his taxation affairs on a better basis. However, the evidence does not establish that the applicant carried on any partnership, nor was there any evidence of any holding out by the applicant trading as Alpalm Security. Indeed, it would have been almost impossible for the applicant to have done any other work in any event because he was working for the respondent 12 hours per day, six days per week both before and after 17 January 1999. There is no suggestion that the applicant employed any worker or sub-contracted his work.

3. The contractual arrangement changed again with the introduction of the Goods and Services Tax. The applicant was given financial advice to the effect that with the introduction of that measure it would no longer be profitable for him to continue the "sub-contract" arrangement and the applicant then returned to being a normal salaried employee. The change in arrangements was purely a financial arrangement for the purposes of minimising the effect of income tax. Nothing physically changed. If the applicant were an employee before 17 January 1999, then effectively you remained an employee after 17 January 1999. In any event the question is quite academic as there is no doubt that the applicant would, in any event, be entitled to be considered a deemed worker pursuant to Sch 1 cl 2 of the Workplace Injury Management & Workers Compensation Act 1998.

4. The question has arisen only in the context that here the deemed date of injury, that is the date when the applicant gave notice of the claim, was on 6 December 1999 when the "sub-contractor" arrangement was in force. However, both before 17 January 1999 and after 30 June 2000 the applicant was undoubtedly an employee of the respondent. The only remaining issue is whether the applicant was employed in conditions to which the nature of the disease, boilermaker's deafness or deafness of the like original, is due. The only direct evidence on that issue is that of the applicant himself and on that evidence the applicant was not challenged.

5. The respondent itself has not sought to introduce any evidence to exculpate itself, to establish that the applicant was not employed by it in conditions which carried a real risk of inducing boilermaker's deafness or deafness of the like origin. In other words, although the legal onus of proof remains always on the applicant, the evidentiary onus of proof shifts. Here the applicant's evidence-in-chief, to which I shall come shortly, indicates that he was employed in conditions where there was sufficient level of noise to induce industrial deafness and the applicant's evidence in that regard being unchallenged, and no contrary evidence being called by the respondent, the evidentiary onus shifts to the respondent and the evidentiary onus that falls upon the respondent has not been in any way satisfied.

6. The applicant worked, as I said, at the construction site at the Sydney Conservatorium of Music. He worked at times as a gate-keeper at a booth at the entrance to the site, which the applicant conceded did not expose him to excessive noise. However, the applicant spent a large amount of his time patrolling the construction site to ensure that all was in order. When doing so, the applicant was exposed to the noise of machinery which he referred to as rock-breakers, being very large jackhammers mounted onto the back of backhoes. The applicant was also exposed to the noise of ordinary jackhammers, and tendered in the respondent's case is a report from Dr Waldron, an otorhinolarynogolist, of 31 May 2000. The applicant gave Dr Waldron a history that in his current employment the applicant is exposed to the noise of jackhammers, rock-breakers, compressors and heavy trucks coming to and leaving the building site.

7. The applicant told me that at times he would have to conduct government officials around the site of the construction. When he was escorting government officials he was unable to talk to them normally, unless they removed themselves 30 to 40 metres from rock-breaking machinery. The applicant's evidence is that he approached within 20 metres of rock-breaking machinery. The inability to carry on a normal conversation near noisy machinery indicates a noise level of at least 85 dBa L aeq. It is common jury knowledge that jackhammers emit loud noise and common jury knowledge that rock-breakers emit loud noise. Mr Levick, who said all that could be said on the respondent's behalf, did not submit otherwise. In the circumstances the court is entitled to be bold. I have no hesitation in accepting that the applicant was exposed to noise levels in excess of 85 dBa L aeq.

8. In referring to the L aeq scale, I am of course referring to the average noise over an eight hour period. The applicant's evidence before me is that on certain days of a working week he would be patrolling around the site for nine hours out of his 12 hour shift, and therefore being exposed to the noise of the rock-breakers and the jackhammers. It is to be borne in mind that the construction site at the Conservatorium of Music required excavation in Sydney sandstone to the level of some 35 feet, and hence the need for the rock-breaking machinery. I am satisfied, on the balance of probabilities, that the applicant was employed by the respondent in conditions which carried a real risk of inducing boilermaker's deafness or deafness of the like origin. A medical panel has certified that the applicant suffers from 11.8 per cent binaural hearing loss due to the conditions of boilermaker's deafness or deafness of the like origin.

9. I have enquired of the solicitor for the respondent whether any further reasons for judgment are required, I am told that none is so required.

10. For those reasons I make an award for the applicant for $7,670 for 11.8 per cent binaural hearing loss, the deemed date of injury 6 December 1999.

11. I order the respondent to pay the applicant's costs. I certify an additional conference $200.

Mr J J Klarica instructed by Taylor & Scott appeared for the applicant.
Mr G Levick instructed by Moray & Agnew appeared for the respondent.