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. The argument suggested that his Honour's judgment in this regard was not free from ambiguity. I suspect that the matter was, before the Chief Judge, put in a way different from the way it was put before this Court. But Dr McAlary's view was, I think, that the noise exposure would produce the deafness in ordinary persons. What he said in cross-examination as to what "a sudden explosive tone of.88 intermittently over a period" would do to "you and me" was directed to the effect of the noise upon persons generally. He added to this his view as to what would happen to a person with the worker's sensitivities. His Honour, in dealing with this evidence, said: "Dr McAlary, who was called by the applicant, takes the view that the intermittent noise, that was demonstrated by those two charts, is at a level which can produce some degree of possible hearing damage and, I suppose, in reliance 2 UNREPORTED JUDGMENTS to some extent on the individual susceptibility argument, he adds to his views that, whilst that may not produce any real damage to some people, to the individually susceptible, it is a danger. If that evidence in broad terms is acceptable, it seems to me that, with the view Ihave taken of the Act itself, the evidence would be sufficient to get the applicant part of the way towards establishing that the respondent was the appropriate employer to sue in the present circumstances." The Chief Judge was, I think, indicating acceptance of what Dr McAlary had said in this regard. Therefore, in my opinion, the present award is not subject to attack in this Court. I agree with the orders proposed by Meagher JA. Priestley JA As I understood the principal submission of counsel for the appellant, it was that McGrath CJ CC had decided the factual questions in this case on a mistaken understanding of the meaning of s7(4) of the Workers Compensation Act. Had I agreed with this submission I would have thought that the appellant had a valid ground of appeal, within the words of the appeal section. However, for the reasons given by Meagher JA on this aspect of the case, I do not think the submission for the appellant should be accepted. In my opinion the appeal should be dismissed with costs. Meagher JA This is an appeal by an employer, Coal and Allied Operations Pty Ltd, against an award made by McGrath CJ, the Chief Judge of the Compensation Court of New South Wales, in favour of the respondent Collins, one of its employees. The applicant employee claimed compensation under s16 of the Workers' Compensation Act 1926 in respect of some hearing loss which he alleged was due to the disease commonly known as boilermaker's disease and which is a disease covered by s7(4) of the Act. The determination as to quantum of hearing loss attributable to the employee's boilermaker's deafness is to be determined by a medical board, or medical panel, appointed under the Act. This was done, and the medical board which made its determination on 26 October 1983 found that the applicant was suffering 16% loss of hearing in the left ear and 15% loss of hearing in the right ear. The applicant was born on 31 December 1932, and was 51 years of age when he made his complaint. At this stage he had worked for the appellant from 4 May 1981 to 1 March 1983, ie 96 weeks. He had spent a maximum of 40 weeks of this time on board the motor vessel "Conara" as chief cook. The Conara is a 2851 gross tonne collier approximately 79 metres long. The ship's personnel worked a 21 day swing, followed by 21 days shore leave. During the 21 day swing the ship was either at sea or else tied up to a dock, in which latter case it was either loading or discharging cargo. At the relevant time the ship was mainly engaged in carrying coal between Catherine Hill Bay (South of Newcastle) and Ball's Head, Sydney. The applicant rarely went ashore during loading and discharging operations, so that in addition to the noise of the ships engine while at sea he was exposed to the noise of cranes and conveyors which are used to load and unload the ship. Specifically the applicant was worried by the noise of the 9 tonne grab used for unloading coal at Ball's Head and the smaller 3 tonne grabs used for unloading bluemetal at the Pioneer Concrete depot at Blackwattle Bay, Sydney. In particular he was concerned by the level of noise caused by the grabs as they struck the inside of the holds. This noise occurred quite frequently when the cargo emptied and the grab struck the bottom and the sides of the almost emptied URJ COAL AND ALLIED OPERATIONS PTY LTD v COLLINS (Meagher JA) 3 hold. The sound involved was carefully measured by Day Design Pty Ltd, specialists consulting engineers retained by the employer for this purpose. Day Design Pty Ltd measured the noise of discharging coal at Ball's Head with the following results: Measurement Location Activity Noise Level Lmax Cook's Cabin Sleeping 53 dB(A) Galley Preparing food and menus 88 dB(A) Preparation and cooking 88 dB(A) Serving and cleaning up 88 dB(A) The figures referred to in the column under "noise level" reflected the instantaneous maximum noise levels caused by the banging of the 9 tonne crane grab inside the hold of the ship at approximately 1.1 minute intervals mainly over a period of approximately 0.75 hour per hold, ie 1.5 hours. The comparable noise levels measured during the discharge of bluemetal at Blackwattle Bay were as follows: Measurement Location Activity Noise Level Lmax Cook's cabin Sleeping 55 dB(A) Galley Preparing food and menus 92 dB(A) Preparation and Cooking 92 dB(A) Serving and cleaning up 92 dB(A) In this case the figures set out in the column under the heading "noise level" represented instantaneous maximum noise levels caused by the banging of two 3 tonne crane grabs inside the holds at approximately 30 to 90 second intervals mainly over a period of approximately 0.75 hours. The medical evidence given by the applicant's doctor, Dr Robert McCauley was that at an exposure of less than 90 dB, approximately 1% of the population would be at risk of a hearing injury and at 90 dB and greater all persons would be at such risk. This evidence was virtually the same as the evidence given on behalf of the employer by Mr BL Raymond, who testified to the effect that "it is a well known fact that certain people over a period of time when exposed to levels of 85 dB or above could possibly sustain injury" and that "the upper level is normally considered at 90 dB". Mr Collins had defective hearing before taking employment with the appellant, and this pre-employment defect apparently rendered him sensitive to further injury. His Honour, as I have said, made an award in favour of the applicant employee. His Honour found that the intermittent noise caused by the activities of the employer was "at a level which can produce some degree of possible 4 UNREPORTED JUDGMENTS hearing damage", and his Honour added that the present applicant, because of his particular susceptibility to noise was in greater danger than other employees. His Honour's award is attacked by Mr Hoeben, counsel for the appellant employer on the basis that it reflects a merely "subjective approach", vis the effect of industrial noise on the applicant employee Collins, who happened to be unusually sensitive to noise because of his pre-employment position rather than n "objective approach" which would limit the relevant inquiry to the effect of noise on the average employee. This attack in my view fails at all points. At the outset it should be observed that the choice of adjectives "subjective" and "objective" is unfortunate. If a particular employee has an idiosyncratic pre-disposition to a hearing injury, the effect of noise on him is an objective fact capable of accurate scientific measurement, every bit as much as the effect of noise on the average employee; it is in no sense subjective. The proposition for which Mr Hoeben contends must therefore be rephrased as: his Honour wrongfully took into account the applicant employee's individual susceptibility rather than restricting his attention to a hypothetical average employee. What course his Honour should have taken depends on s7(4) of the Act. That subsection is in the following form: "Where the injury is a disease which is of such a nature as to be contracted by a gradual process compensation shall be payable by the employer in whose employment the worker is or who last employed the worker. Any employers who, during the twelve months preceding a worker's incapacity, employed him in any employment to the nature of which the disease was due, shall be liable to make the employer by whom compensation is payable such contributions as, in default of agreement, may be determined by the Court. The worker, or his dependants, shall furnish to the employer from whom compensation is claimed such information as to the names and addresses of all the other employers who employed the worker during the twelve months preceding the injury as he or they may possess. This subsection does not apply to an injury to which subs(4B) applies." This subsection has been considered, and its legal meaning elucidated, in a number of judicial decisions, the most important of which is the decision of the High Court of Australia, in Smith v Mann (1932) 47 CLR 426. The ratio of that case is spelled out by Rich J at 438-9 as follows: "In my opinion the provision was not intended to restrict the rights of the workers, but to enlarge them (sic). Its object was to fix upon the ultimate employer of the worker a direct liability to him, leaving to that employer to recover from previous employers subject to the limitation of time expressed in the section. No doubt in the case of the ultimate as in that of the other employers the employment must be one to the nature of which the disease of the worker was due, but it is not necessary that the worker should establish that the disease from which he is suffering was actually brought about or contributed to by the employment of the last employer." That test has been confirmed by numerous subsequent authorities, including Tame v Commonwealth Colliers Pty Ltd (1947) 47 SR (NSW) 269, Dow v Commissioner of Railways (1952) WCR 73, Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 and Commonwealth v Rutledge (1964) 111 CLR 1. The only gloss on it which has been suggested is that of Jordan CJ, who thought that if the employer could prove that he had taken all steps necessary to prevent the injury arising and those steps were effective, he would become URJ COAL AND ALLIED OPERATIONS PTY LTD v COLLINS (Meagher JA) 5 immune from a claim made under s7(4); however, in the present case the appellant did not seek to make out that sort of case. Consistently with these authorities, the question to which McGrath CJ addressed himself was: "The issue in this case is whether, or not, the respondent is the last employer who employed the applicant in an occupation, or employment, to the nature of which the disease of boilermaker's deafness is due." It could hardly be disputed that that was the appropriate question, and in the present case it was not disputed. But it must be emphasized that the question is a purely factual question, and when his Honour answered it in the affirmative, his Honour was making a finding of fact. That being so this Court has no jurisdiction to embark on an analysis of its correctness or otherwise, and hence any challenge to it must fail in limine, since the Court can only entertain appeals from the commission on questions of law. (see Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139). That consideration of itself, in my view, is sufficient to dispose of the challenge to his Honour's award. However, in case I am wrong in this view, and in any event in deference to the argument of counsel, I shall embark on a further analysis. The unanimous view of the experts called by both the employee and the employer was that the degree of hearing damage to the average employee could be caused by noise of more than 90 dB, and the employer's own evidence was that the noise at times reached 92 dB. Therefore his Honour's finding that the employment was one to "the nature of which" the disease was due was amply justified, without any consideration of the individual susceptibilities of Mr Collins. But, in any event, even if his Honour's decision was in some way dependent on such a consideration, I see nothing wrong in that. I can see no valid reason in doctrine why in this field there should not operate the principle, so well established in the common law of negligence, that the employer must take the employee as he finds him. Certainly none of the cases to which we were referred is authority for the suggested doctrine. What the statute, as elucidated by the cases, requires is an enquiry into the question whether the employment was one to the nature of which the disease was due; I do not see why that does not mean that the judge must enquire into whether the disease suffered by the particular employee, as he really is, and not as he hypothetically might be, was due to the nature of his employment. That was the approach adopted by the High Court in Rutledge's case (supra). Finally, I might add that in my opinion there is substance in the submission of the respondent that the appellant's argument involved the proposition that because s7(4) does not require a finding that the disease was caused by the employment in question, if in an individual case a finding of such causation is made, s7(4) thereby becomes inapplicable. There is nothing to say of such a proposition except that it involves turning logic on its head. I would dismiss the appeal with costs. Appeal dismissed with costs. Counsel for Appellant: CRR Hoeben Solicitor for Appellant: Ebsworth and Ebsworth Counsel for Respondent: GW Neilson Solicitor for Respondent: WG McNally and Co