SMITH v JAQUES CULLEN PTY LIMITED SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KirBy P, Hope and SAMUELS JJA 27 April 1988 [1988] NSWCA 137 WORKERS' COMPENSATION — boilermakers' deafness — award of compensation in 1971 based on Medical Board report — later claim in 1980 — claim dismissed — judge holds no nexus established between deterioration in hearing and employment — whether decision involves going behind earlier award and findings inherent in it — whether issue estoppel precludes finding — case stated to Court of Appeal — held: (Hope JA; Kirby P and Samuels JA concurring) (1) Judge not precluded from finding of fact that no relevant nexus to employment of deterioration in hearing; (2) No issue estoppel precludes finding; (3) Case stated answered accordingly. The Electricity Commission of New South Wales v Benham, unreported, CA, 26 October 1981 distinguished. EVIDENCE — issue estoppel — earlier award of Workers' Compensation Commission — later claim for alleged deterioration of hearing of worker — employer challenges connexion with employment — whether such challenge precluded by issue estoppel — held: Not so precluded. Workers' Compensation Act 1926, s16(1A), s16(5A). ORDERS 1. Case stated answered: (a) No. (b) Does not arise. 2. Claimant to pay opponent's costs. Hope JA This is an appeal by way of a stated case from an award made by his Honour Judge McGrath in favour of the respondent in a case where the applicant worker was seeking compensation pursuant to the provisions of s16(1A) of the Workers Compensation Act 1926 in respect of what he claimed to be a diminution in his hearing due to what is commonly called boilermaker's deafness. The history of the matter may be shortly stated. The worker was at all times employed in a business in parts of which there was such noise as could cause persons working there to suffer the condition of boilermaker's deafness. The worker suffered a degree of deafness and in 1970 made an application to the Workers' Compensation Commission against the employer claiming compensation for that deafness. The matter came before the Commission and in due course it was referred to the Medical Board for report. The Board reported that the applicant suffered from sensory neutral hearing loss in both ears; to the extent of 55 per cent in the left ear and 48 per cent in the right ear. On 25 February 1971 an award was made granting compensation to the worker based on that report of the Medical Board; that is, in respect of a 55 per cent permanent loss of hearing in the worker's left ear and 48 per cent permanent loss of hearing in his right ear. It was implicit in this award that the deafness so found to exist was caused by the industrial situation in which the worker had to carry on his activities in the course of his employment. It appears that the only evidence in the proceedings was the certificate of the Medical Board. 2 UNREPORTED JUDGMENTS The worker made a further application on 25 August 1980 claiming a deterioration of hearing in both ears. He claimed an additional degree of deafness in his left ear of 34.3 per cent and in his right ear of 38.2 per cent. A report of the Medical Board was tendered at the hearing which showed that the worker had a diminution in hearing in his left ear of 77 per cent and in his right ear of 75 per cent, without any deduction being made in respect of the condition called presbycusis. The worker gave evidence in the proceedings which established that although at times he took precautions against the effects of the noisy conditions in which he was working, he did not take them throughout the whole of the period that had ensued since the award was made in 1971, and that some of the precautions he took might not have been very effective. For some years he had worn ear muffs, not continuously but regularly, and it would appear that they would normally be effective to prevent damage to hearing. However, at other times he wore ear plugs which were made of cotton wool, which would not be particularly effective in the case of many of the noises to which he may have been subjected. As well as that evidence there was evidence before the Commission from Dr Gorshenin. Dr Gorshenin had been involved with the worker's hearing at the time when the 1971 proceedings were on foot (and indeed before they commenced) and still had in his possession audiograms which he had taken or caused to be taken at that time. These were tendered and were admitted by his Honour over objection on behalf of the worker. Dr Gorshenin also had audiograms which he had taken much more recently, and in particular in 1980 and 1981. There was also in evidence (and Dr Gorshenin had the benefit of examining) the audiogram upon which the Medical Board had based its second report. In relation to the Medical Board's second audiogram, Dr Gorshenin gave evidence that it showed a flat pattern which was not consistent with industrial noise exposure He expressed the same view about the audiograms which he himself had taken at that time. He was also asked questions which went to a comparison between the audiograms taken between 1969 and 1971 and the audiograms taken more recently, including the audiograms which he had taken in 1980 and 1981. As well as the audiograms that I have just referred to there was in evidence the audiogram upon which the Medical Board had based itself in relation to the 1971 report. That audiogram showed a reading of fifty in respect of the low registers. An audiogram taken at the same place in October 1979 was also in evidence and showed a reading of between sixty and seventy in respect of the low registers. In his reasons his Honour, having described the history of the matter, came to this conclusion:- "T am persuaded by the views of Dr Gorshenin that the increase in low tone loss of hearing shown by his serial audiograms is not due to noise exposure. For this reason on the basis of Dr Gorshenin's audiograms and his opinion thereon I am of the view that the applicant has not shown that he has suffered a 'further loss of function' within the meaning of the section." The "further loss of function" to which his Honour referred comes from the provisions of s16(5A)(b) of the Workers Compensation Act. Having made that finding, his Honour went on to say:- "Tam reinforced in this view by other evidence presented in the case. I have before me the following audiograms:". URJ SMITH v JAQUES CULLEN PTY LIMITED (Hope JA) 3 His Honour then set out five audiograms which had been taken on 30 September 1969, 17 November 1969, 10 December 1969, 2 October 1970 and 24 October 1979. It will be seen that of these five audiograms four were ones which were in existence before the 1971 award had been made. In the case stated by McGrath J to this Court the questions asked are:- "(a) Did His Honour sitting as the Workers Compensation Commission of New South Wales err in law by not awarding compensation on the basis of the difference in the percentage loss of hearing as stated in the Award entered on 25 February 1971 and the percentage assessment under the National Acoustic Laboratory's (HAL) scale as determined on 23 February 1982 by the Medical Board of the Workers Compensation Commission constituted pursuant to S51(8) of the Workers Compensation Act, 1926 (as amended). (b) Did His Honour sitting as the Workers Compensation Commission of New South Wales err in law in allowing evidence to be admitted relating to the loss of hearing at the time of or prior to the entering of the Award on 25 February 1971." The worker bases his case firstly upon issue estoppel, for which he relies on the decision of this Court in The Electricity Commission of New South Wales v Benham (26 October 1981; Unreported) There a challenge to an award by a Judge of the Workers' Compensation Commission in favour of a worker claiming Compensation for deterioration of hearing was dismissed. The circumstances of the case were these. It appears that there was originally a method of calculating the results of an audiogram by reference to what were called the Commonwealth Acoustic Laboratory tables (the CAL scale). An audiogram in respect of the worker had been taken and results recorded and accepted by the Commission by reference to the CAL scale. Some years later the worker again had his hearing tested, claiming that there had been a deterioration. By the time the matter came before the Commission a new scale was in general application called the National Acoustic Laboratory scale (the HAL scale) The later state of the worker's hearing was recorded and was the subject of evidence before the Commission by reference to the HAL scale. The CAL and HAL scales gave different results, and at that time one could not readily Convert the CAL scale to an equivalent figure in the HAL scale. The audiogram on which the CAL figure was based was not in evidence before the Commission in the later claim, but the Commission arrived at its award by deducting the earlier CAL figure, which was the subject of the first award, from the HAL figure, in respect of which a claim was made in the second proceedings. The employer appealed against this award on the ground that this approach involved an error of law. In his reasons Glass JA (with whom I agreed) said this about the course that was taken before the Commission:- "The trial judge, it seems to me, did not compare a CAL reading in 1970 with an NAL reading in 1975. He took from the consent award a conclusive determination of loss of hearing function as at 1970. He then matched that with his own determination of hearing loss in 1975 based upon agreed evidence. from these two coordinates he concluded that a hearing loss existed in 1975 which exceeded that which existed in 1970. Since the first step involved no error of law and the second step was not in any way impeached, I am of opinion that his conclusion cannot be faulted for any error of law." In the present appeal the worker submits that there is an issue estoppel arising between him and the employer which precludes the employer from relying upon the evidence of Dr Gorshenin that the readings in respect of his low register of 4 UNREPORTED JUDGMENTS hearing were not related to any industrial condition. What is put for him, as I understand it, is that although the only evidence before the Commission in 1971 was the report of the Medical Board, it is implicit in the award that the deafness reported upon by the Board had an industrial cause and that whatever it was that appeared on the audiogram did not preclude a finding that the deafness the worker was then suffering was due to an industrial cause. In particular, it is submitted that the claim that audiogram readings in respect of the low register do not have a causal relationship with boilermaker's deafness is not an issue which can now be raised by the employer. If one has regard to the evidence which was before the Commission in the present proceedings, it seems that there was a difference between the low register figure in 1971 and that which existed when the present proceedings were before the Commission. That of itself may be sufficient to dispose of any question of issue estoppel. So far as I can see, it does not necessarily follow that if a conclusion was reached in relation to the low register reading in 1971 there would be a relevant estoppel in relation to different low register readings at the time when the present proceedings were before the Commission. However, it does not appear to what extent, if at all, the Commission had regard to or relied on the low register reading in 1971. The worker also relies on the decision in Benham to support a submission that the Commission was precluded from going behind the earlier award for any purpose whatsoever. In Benham the employer was not allowed to go behind the award, but possibly because of the absence of evidence, (the relevant audiogram was not in evidence), and perhaps nothing more was decided than what was the result of that absence of evidence. No error of law had been made by the trial judge in referring to what was the only evidence before him as to the extent of the deterioration of the worker's hearing in 1970, namely, what appeared in the award. But putting that question to one side, there was no issue in Benham as to whether the further deterioration in hearing had an industrial nexus. The only issue was the degree of deterioration. In the present case there is no issue as to the degree of deterioration. The only issue is whether it had an industrial nexus and the question which arises for decision is what evidence is admissible to show that there was or was not an industrial nexus to that deterioration. In my opinion, although it is not necessary to decide the matter, the better view would seem to be that his Honour was entitled to have regard to any evidence which would establish the industrial nexus and that it was not precluded by any issue estoppel from doing so. However, as I understand it, his Honour made a finding on the basis of the evidence of Dr Gorshenin quite independently of any evidence as to what took place before 1971, and quite independently of any matter which was relevant to the 1971 decision. In making his finding, he did not go behind the 1971 award. His Honour accepted the degree of deterioration which was found in the 1971 award and then had to resolve whether the subsequent deterioration had an industrial nexus. There was evidence by Dr Gorshenin as to the condition of the worker's hearing which related solely to what he observed in 1980 and 1981. The material upon which Dr Gorshenin relied for that purpose was of course different to that which the Commission had before it in 1971 or which the Medical Board had before it at that time, or in respect of which a case could have been made by URJ SMITH v JAQUES CULLEN PTY LIMITED (Kirby P) 5 the employer at that time. The material upon which the matter was dealt with in the present proceedings was not that which was or could have been before the Commission in 1971. It is true that there was material before the Commission in the present case which was directed to a comparison between the audiograms before 1971 and the more recent audiograms. It is also true that having made his findings that there was no relevant industrial nexus in the deterioration in the worker's hearing, Judge McGrath said he was reinforced in that view, inter alia, by the evidence of the earlier audiograms. However, that was a view independent of his finding which he made solely by reference to Dr Gorshenin's evidence based on his more recent observations and audiograms. In my opinion the challenge which the worker has made to the learned judge's conclusion is not made out. It is not a case where it is possible to say that Judge McGrath was precluded from reaching his conclusion by some issue estoppel arising out of the earlier proceedings or by the decision in Benham, having regard to the 1971 award and the evidence which supported it, and to Dr Gorshenin's evidence of the worker's condition in 1980 and 1981. What his Honour did was to make a finding of fact which did not involve any error of law, and he was not precluded by any legal principle from coming to that conclusion in relation to the fact which he had to decide, namely, whether the undoubted loss of hearing had an industrial nexus. In my opinion the questions asked in the stated case should be answered: (a) No; (b) Does not arise. The worker should pay the costs of the appeal. Kirby P I agree with the answers to the questions in the stated case proposed by Hope JA and with his reasons and with the order that follows. Samuels JA I also agree. Kirby P The answers to the stated case will accordingly be as proposed by HopeJA and the claimant must pay the costs of the opponent. The questions asked in the stated case are answered: (a) No; (b) Does not arise. The claimant must pay the costs of the opponent.