COAL AND ALLIED OPERATIONS PTY LTD v COLLINS [1989] NSWCA 38

COAL AND ALLIED OPERATIONS PTY LTD v COLLINS

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, PRIESTLEY and MEAGHER JJA 27 July 1989, 11 August 1989

[1989] NSWCA 38

Workers' Compensation — pre-employment defect causing increased sensitivity to injury — s7(4) Workers Compensation Act — liability of the last employer.

Mahoney JA I agree with the judgment of Meagher JA. To succeed against the company, it was necessary for the worker to establish that his employment with the appellant was, within the authorities to which Meagher JA has referred, one to the nature of which the injury from which he suffered was due. In deciding what, within the cases, is the "nature" of the employment, it is not necessary to consider or classify the particular employment and decide whether, in an Aristotelian fashion, what are the essentials and what are the accidentals of such an employment. In the present context, what is required is a consideration of what the employment requires of the employee and what happens in it.

It is then necessary to decide whether an employment of that nature is, as I shall describe it, apt to produce the relevant injury. It is not necessary that the worker show that it will produce such an injury in all cases or that it produced it in his case. In this case, the worker worked on a ship in a galley as a chief cook. Work as a cook would not, as such, subject him to noise sufficient to produce the injury. But his work involved that, when the ship came to port, he was subjected to intermittent noise of loading and unloading, of the levels referred to in the evidence. If such an exposure to noise was apt to produce the relevant injury, then his work was of the relevant nature.

In deciding this question, there was a difference in argument as to whether, as it was put, it was sufficient if such an exposure to noise would produce such deafness in persons not subject to the worker's particular hearing sensitivities or whether it was sufficient that it would produce the injury in worker's having his sensitivities. In my opinion, his Honour found that the work was apt to produce the relevant deafness in a person without the worker's sensitivities and there was evidence on which he could so find.