New South Wales Court of Appeal CITATION : Pasminco Metals-Sulphide Corporation Ltd v The Public Trustee for and on behalf of The Estate of Norman John Dickson [2001] NSWCA 164 FILE NUMBER(S) : CA 40559/00 HEARING DATE(S) : 30 May 2001 JUDGMENT DATE : 8 June 2001 PARTIES : Pasminco Metals-Sulphide Corporation Limited v The Public Trustee for and on behalf of The Estate of Norman John Dickson JUDGMENT OF : Beazley JA at 1; Hodgson JA at 2; Rolfe AJA at 3 LOWER COURT JURISDICTION : Compensation Court LOWER COURT WCC 10649/96 FILE NUMBER(S) : LOWER COURT Curtis CCJ JUDICIAL OFFICER : COUNSEL : Appellant - W.P. Kearns SC / Ms M. Kumar Respondent - G.L. Parker SOLICITORS : Appellant - Austen Brown Thompson, Broken Hill Respondent - Paul J Keady & Associates, Broken Hill CATCHWORDS : Worker suffered 28% loss of hearing from boilermaker's deafness in left ear after suffering 100% hearing loss in right ear from an unrelated condition - whether he suffered binaural hearing loss as found or only monaural hearing loss LEGISLATION CITED : WorkCover Legislation Amendment Act 1995 Workers Compensation Act 1987 CASES CITED: Re-car Consolidated Industries v Horner (1997) 15 NSWCCR 171 Rodios v Trefle (1937) 11 WCR (NSW) 290 DECISION : Appeal allowed - see paragraph 52 THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40559/00 WCC 10649/96 BEAZLEY JA HODGSON JA ROLFE AJA Friday, 8 June 2001 PASMINCO METALS-SULPHIDE CORPORATION LIMITED v THE PUBLIC TRUSTEE FOR AND ON BEHALF OF THE ESTATE OF NORMAN JOHN DICKSON JUDGMENT 1 BEAZLEY JA: I agree with Rolfe AJA. 2 HODGSON JA: I agree with Rolfe AJA. 3 ROLFE AJA: Introduction . This is an appeal from a decision of the Compensation Court of New South Wales (Curtis J) delivered on 26 June 2000 in which his Honour ordered the respondent/appellant, Pasminco Metals-Sulphide Corporation Limited, for which Mr W.P. Kearns of Senior Counsel and Ms M. Kumar of Counsel appeared, to pay to the applicant/respondent, the Public Trustee for and on behalf of the estate of Mr Norman John Dickson, for whom Mr G.L. Parker of Counsel appeared, "$21,750.30 in respect of 26% binaural loss of hearing". 4 The grounds of appeal asserted that his Honour erred in making an award for the respondent on the basis of binaural hearing loss in circumstances where he had suffered only monaural hearing loss, and on the further basis that he had already received compensation for that loss. At the commencement of the appeal, Mr Kearns sought leave to add the following further ground:- "If the Respondent was entitled to compensation for loss of hearing of both ears it should have been for 5.2% and not 26%." The Court stated that it would hear argument on whether such leave should be granted and on this further ground and, in these reasons, decide whether leave should be granted and, if it should, the fate of the appeal on that ground. 5 Whilst the appeal is confined to matters of law, it is necessary to trace a number of factual matters to understand how the issues arise. 6 Mr Dickson was born on 19 December 1951. For some time prior to 9 February 1993 he was employed by the appellant in a noisy environment as a rigger/platman. On 23 February 1993, he made a claim against the appellant in respect of boilermaker's deafness and, on 26 October 1993, a medical panel issued a certificate pursuant to ss 72 and 131(2) of the Workers Compensation Act 1987, ("the Act"), "making the necessary calculations in accordance with NAL procedure table dated 31st October 1974 and the supplement thereto dated 21st July 1975". "NAL" is a reference to the National Acoustic Laboratories. 7 Section 72(1) obliges a worker, if loss of hearing is allegedly suffered due to boilermaker's deafness, and the extent of the loss is disputed, as it was, to apply under s 131 for reference of the matter to a medical panel. Section 131(4) requires that panel to give a certificate as to the worker's condition or fitness for employment, and subsection (5) provides that such a certificate shall, for relevant purposes, be conclusive evidence "as to the matters certified". 8 That certificate certified that Mr Dickson:- (a) had suffered a partial loss of hearing in his left ear due to boilermaker's deafness in the amount of 28%; (b) suffered no such deafness in his right ear; and (c) in consequence of otosclerosis and sequelae had suffered 70% permanent loss of hearing in his left ear and 100% permanent loss of hearing in his right ear. "Otosclerosis" is a pathological change in the middle and internal ear resulting from a thickening of the bone of the periotic capsule, which is productive of deafness. There has been no suggestion that this condition was in any way related to either boilermaker's deafness or any other compensable work related injury. Thus, at all material times, Mr Dickson had 100% permanent loss of hearing in his right ear, which was not a loss as the result of an injury. 9 The certificate stated that the finding to which I have referred in sub-paragraph (a) caused partial deafness in the left ear, and that the percentage diminution of hearing of each ear, without making any deduction in respect of presbycusis (the natural failure of hearing with advancing years, caused by degenerative changes in the internal ear) was 28% to the left ear, none to the right ear and 27.9% or 5.6% to both ears (binaural). The ultimate finding in relation to both ears was stated to depend;- "...on the correct method at law of calculating the binaural loss in the circumstances of this case". 10 On 25 November 1993, Mr Dickson completed a form directed to the appellant's general manager, which was Exhibit C and is set forth fully for present purposes in par 5 of the trial Judge's reasons, in which he agreed to the assessment of the loss of function in each ear as appearing in the medical panel certificate and to receive for his injury the compensation prescribed by s 66 being 28% of $25,740, namely $7,207.20. $25,740 is 20% of $128,700 which was, at all material times, the amount in s 66(1) of the Act. 20% is the percentage of $128,700 to which Mr Dickson was entitled, by virtue of the Table in Part 3 Division 4 for "loss of hearing of one ear". 11 His Honour ordered that the appellant should have a credit for this amount. 12 The document continued:- "And I accept the above total in full compensation of my claim for compensation for loss of function of hearing as to which I was medically examined on the abovementioned date," ie 26 October 1993. 13 In his reasons, the trial Judge said that it was easy to understand how the medical panel reached the figures of 27.9% and 5.6%:- "The first is manifestly a figure designed to reflect the effect of the additional boilermaker's deafness upon the worker as a whole person. Before his injury the whole of his sense of hearing was contained in one ear. The second is pursuant to the rule of thumb by which binaural deafness is calculated by taking four times the hearing loss in the good ear, one times the hearing loss in the bad ear and dividing by five." 14 We were informed from the Bar Table, without objection, that the "rule of thumb" is applied regularly by the Compensation Court and, in the present case, the right ear was "the good ear" notwithstanding total loss of hearing in it, because that loss did not arise from an injury and was not compensable, and the left ear was the "bad ear" affected by the alleged boilermaker's deafness. Therefore, one multiplies 0 by 4, which produces 0, and adds 27.9. The total of 27.9 is divided by 5 giving the figure rounded to 5.6%. 15 In par 6 of his reasons, the trial Judge said that it appeared that the letter of 25 November 1993 was signed by Mr Dickson when he was retrenched, and that he inferred that when he signed the letter, Mr Dickson had had no independent legal advice, an impression which was confirmed by the filing of the original application in which the claim was made for 27.9% of binaural hearing loss, namely $23,339.75. This figure was reached by calculating 65% of $128,700, viz $83,655, and taking 27.9% of that figure. 65% is the percentage of $128,700 to which Mr Dickson would have been entitled, by virtue of the Table, for "loss of hearing of both ears". 16 On 14 August 1996, an application was filed on behalf of Mr Dickson in which it was alleged that he was suffering from boilermaker's deafness, which injury was received in the course of his employment "up to 19/2/93," and which caused partial incapacity from that date "to date and continuing". The application claimed weekly compensation; compensation pursuant to s 66 of the Act for "Binaural hearing loss - 27.9% - $23,339.75"; compensation pursuant to s 67 in the sum of $32,200; s 60 expenses and ancillary relief. The appellant put all these matters in issue. 17 When Mr Dickson's application came before another Judge of the Compensation Court on 20 August 1997, the certificate of 26 October 1993 was set aside. 18 At some time thereafter, Mr Dickson died and, on 5 May 1999, an amended application was filed by the respondent on behalf of his estate, which application was, for all relevant purposes, in the same terms as the original one. 19 We were informed from the Bar Table, once again without objection, that there was then an issue as to whether the amended application could be relied on in the absence of a medical certificate and that this issue was resolved by Curtis J's ordering, on 21 May 1999, a further report. This report was to be given on the available documentary evidence. It was in a somewhat different form from the certificate of 26 October 1993, which was headed "Certificate" and in which the medical panel stated that they "certify as to the following questions ...". 20 The subsequent report, bearing date 4 August 1999, is headed "Report of Medical Panel", and is in the following terms:- "Following upon the Court's order herein dated the 21st day of May 1999 we hereby report as follows on the questions asked - 1. That the Medical Panel of B.J. Williams and J.H. Seymour report upon following questions, making the necessary calculations-:- Yes, partial and bilateral. (1) Has the applicant total or partial loss of hearing of either ear or both ears due to boilermaker's deafness or any deafness of a similar origin Yes. (2) If so, what percentage diminution of hearing does such hearing loss constitute? Left 26% Right 0% Binaural 26% or 5.2% depending on the correct (sic) at law of calculating its binaural loss in the circumstances of this case. (3) (a) Does the applicant suffer from any loss of hearing loss due to some conditions other than the condition known as boilermaker's deafness or any deafness of a similar origin? Yes. (b) What is the nature of that condition or those conditions? Otosclerosis. Iatrogenic. (c) What percentage diminution of hearing is constituted by such condition or conditions? Left 71% Right 100%" 21 It is to be noted, immediately, that the words:- "Yes, partial and bilateral" are not related to any question and, in my opinion, having regard to the different form of the report and the original certificate, it is not possible to say that those words were in answer to question (a) in the certificate. The order requiring the report was not before this Court, although relevant portions of the report are set forth in his Honour's judgment, and, in these circumstances, his Honour's judgment giving no clue as to the reason for the use of those words, I am not prepared to speculate on what caused their insertion or the significance to be given to them. His Honour's Reasons . 22 His Honour set forth the relevant facts and, in par 4, he explained, in terms to which I have referred, how the medical panel arrived at the figures of 27.9% or 5.6%. 23 His Honour nextly dealt with matters not calling for further discussion on this appeal, set out the terms of the document of 4 August 1999, which he described as "a further medical panel" certification and, in par 14, stated:- "That leaves a further question as to whether the worker suffers from a 29(sic)% binaural loss of hearing in circumstances where the hearing loss occasioned to him is in one ear only". 24 It is necessary to note two matters immediately. First, the parties treated the document of 4 August 1999 as a certificate of a medical panel entitling the respondent to pursue the claim for loss of hearing. Secondly, it was agreed that "29" should have read "26". 25 His Honour, having posed the essential question, said he had found assistance in the judgment of Cole JA in Re-car Consolidated Industries v Horner (1997) 15 NSWCCR 171 at p 185, and he quoted from his Honour's judgment in which Powell and Beazley JJA agreed. That was a case in which the worker had some boilermaker's deafness in each ear. 26 He continued:- "15. It is my finding that the injury suffered by the worker which is the subject of the present claim for compensation, is an injury which caused the loss of 26% of his total faculty of hearing. Because of the terms in which the opinion of the medical panel is expressed s 68A has no application. There is to be no deduction from the compensable loss because no part of that loss is due to any previous condition. Section 68A is upon the facts of this case as I have found them irrelevant". 27 Thereafter he made the order to which I have referred. I should note that Mr Parker stated, conformably with the respondent's written submissions, that no challenge was made to his Honour's finding that s 68A had no application. Mr Dickson's Claim . 28 The only claim pursued on behalf of Mr Dickson's estate was compensation for non-economic loss as provided for in s 66 of Division 4 of Part 3 of the Act. The history of the various relevant legislative provisions is conveniently and compendiously set forth in the judgment of Cole JA in Re-car and, in those circumstances, it is unnecessary to repeat them. It was recognised that Division 4 of Part 3 laid down a different regime from that which had existed previously. 29 In my opinion the most satisfactory way to consider the nature of the present claim and, thereby, essentially the result of the appeal, is by tracing through the relevant provisions of the Act and applying them in the way I think appropriate. Before doing so I should note that it was conceded by Mr Parker that s 69A(5) of the Act and the decision of the Full Court of this State in Rodios v Trefle (1937) 11 WCR (NSW) 290 do not apply to this case. It was also agreed by the parties that the amount provided in s 66(1), at all relevant times, was $128,700 of which 20% is $25,740 of which latter sum 26% is $6,692.40. Further, it was not in issue that Mr Dickson was paid $7,207.20 in consequence of his completing the form on 25 November 1993. The appellant, therefore, sought an order that the amount of the award should have been $6,692.40 and that as it has already paid Mr Dickson in excess of that amount, his Honour erred in making any award in the respondent's favour. The appellant sought no order for a refund of the difference. 30 It is clear, if I may say so with respect, that the concession in respect of s 69A(5) was properly made. That section was included in the Act by the WorkCover Legislation Amendment Act 1995, Schedule 6, Part 6 cl 9(1) of which provides that s 69A:- "... extends to apply to any claim for compensation for loss of hearing made on or after 10 November 1995 even if the injury concerned was received before that date, but does not apply to: (a) a claim for compensation made before that date; or (b) court proceedings commenced before that date". As I have said the claim in the present case was made in February 1993. 31 There is no suggestion in the accompanying notes that s 69A was inserted to remove any doubt, which had existed previously. 32 Section 65(1) defines loss as meaning:- "(a) the loss of that thing, or (b) the permanent loss of the use, or of the efficient use, of that thing". 33 Sub-section (4) provides, inter alia:- "(4) For the avoidance of doubt, the interpretation provisions following the Table to this Division form part of the Table and apply to the interpretation of the losses mentioned in the Table. ..." 34 A "thing" is a bodily member or faculty, relevantly for present purposes, set out in the Table. More precisely, for the purposes of this case, it is a "loss of hearing". 35 Section 66(1) provided, at all material times:- "(1) A worker who has suffered the loss of a thing mentioned in the Table to this Division as the result of an injury is entitled to receive from the worker's employer by way of compensation for the loss, in addition to any other compensation under this Act, the amount equal to the percentage of $128,700 set out opposite to that loss in that Table". The only "loss of hearing" in the present case, which arose as the result of an injury, was that in the left ear. 36 Section 68(1) provides:- "(1) If a loss suffered by a worker consists of the loss of a proportion (but not all) of a thing mentioned in the Table to this Division, a percentage of the compensation payable for the total loss of the thing equal to the percentage lost by the worker is payable as compensation under s 66". In this case the percentage was 26. 37 Although s 69A(5) is not applicable to the facts of this case, it is worthy of note and provides:- "(5) For the purposes of determining the percentage of loss of hearing due to boilermakers deafness, that loss of hearing is to be determined as a proportion of loss of hearing of both ears, even if the loss is in one ear only . The regulations may prescribe a method for calculating the proportion of loss of hearing of both ears". (My emphasis.) This section thus recognised that one may have the injury of boilermaker's deafness in one ear only, but that it may be appropriate to make an award based on binaural or, perhaps, deemed binaural loss. 38 Section 70 is concerned with loss of hearing due to age, but only applies to a worker who has reached the age of fifty years, which Mr Dickson did not. 39 The Table, in relation to "hearing loss", provides:- "Loss of hearing of both ears ....... 65 Loss of hearing of one ear ....... 20". 40 Accordingly if one can prove a loss of hearing of both ears one receives 65% of the amount referred to in s 66(1). If one can only prove loss of hearing of one ear, one receives 20% of that amount. Those figures are liable to be reduced by the application of s 68. 41 There was some argument as to the "thing" in the present case. The "thing" was clearly the loss of hearing. It was for that loss that Mr Dickson was entitled to be compensated. However, as it was not a total loss, the provisions of s 68(1) applied. 42 Mr Parker submitted that in determining the proper way of applying the Table one should confine the loss of hearing in one ear to instances where the applicant has full hearing in the other ear and that if, for any reason, there is an absence of full hearing in the other ear one should proceed on the basis of binaural loss. Mr Kearns, on the other hand, submitted that there was not, relevantly for present purposes loss of hearing of both ears, because the loss must be the result of an injury for s 66(1) to attach and thus a compensable loss, whereas the loss in the non-injured ear was not a compensable loss. Therefore, he submitted, one was left with loss of hearing of one ear, which had to be assessed in the manner to which I have referred. In support of this submissions he pointed to various other provisions in the Table. Under the heading "Loss of Vision", 100% is payable in respect of both the loss of sight of both eyes and the loss of sight of "an only eye", whereas for the loss of sight of one eye the percentage is 40. In the present case Mr Dickson had only one effective ear. However, there is no provision in the Table to compensate him for the loss of hearing of "an only ear". If he had but one effective ear, loss of hearing of that ear would only attract a 20% figure. 43 Similarly, in the interpretation provisions, sub-par (e) provides:- "Loss of an only arm, leg, foot or hand shall be treated as the loss of both arms, legs, feet or hands". (My emphasis.) 44 Accordingly, where the legislature has wished to compensate on the basis of the loss of one remaining member, it has done so in specific terms. In relation to hearing loss it has not followed that path in the Table. Section 69A(5) shows that the legislature has now directed its attention to that situation in the case of boilermaker's deafness. If, as Mr Parker submitted, the loss of hearing in one ear should be confined to cases where the applicant for compensation had full hearing in the other ear, the provisions of subsection (5) would be unnecessary. In my opinion, the formulation of s 69A(5) tends to strengthen Mr Kearns' basic submission. 45 Mr Parker submitted nextly that the report of 4 August 1999 showed that Mr Dickson had a percentage diminution of hearing of 26 in the left ear and a binaural diminution of hearing of 26. In other words, Mr Parker read par 2 of the report as meaning that there was a finding of the percentage of binaural loss, which was conclusive. 46 I do not agree. Paragraph 2 shows a loss of 26% in the left ear and 0% in the right ear. Therefore, insofar as a binaural loss is relevant it was either 26% or, if one adopted the "rule of thumb", that per cent divided by 5, which produced 5.2%. However, the report makes it clear, in my opinion, in par 3 that there was only one 26%, namely the 26% referable to the left ear. Paragraph 3 stated that Mr Dickson suffered from loss of hearing due to conditions other than boilermaker's deafness or any deafness of a similar origin; that those conditions were otosclerosis and iatrogenic; and that the percentage diminution of hearing constituted by such conditions was 71% in the left ear and 100% in the right ear. 47 In the result I am of the view that pursuant to the relevant sections of the Act and within the terms of the Table, Mr Dickson was suffering loss of hearing of one ear entitling him to 20% of $128,700, i.e. to $25,740, which amount had to be reduced to 26%, namely $6,692.40. 48 Curtis J offered no reasoning as to why he found that there was a loss of 26% of binaural loss of hearing. Insofar as the passage from Re-car is called in aid, "the thing" was, on the facts of that case, the "hearing of both ears". That, however, is not the position in the present case, where the "thing" is the loss of a percentage of the hearing in one ear. Conclusions . 49 In the result, I am of the view that the appellant is correct in its assertion that his Honour was in error in making an award for the respondent on the basis of binaural hearing loss. In my opinion, this was a case of monaural hearing loss to the extent of 26% of the left ear. 50 The Notice of Appeal sought orders that the appeal be allowed; that there be ordered a verdict for the appellant; and for ancillary relief. The appellant, however, did not seek an order that any amount paid by it, in excess of that for which it contended the respondent was entitled, should be repaid to it and, in any event, I would have been disinclined to make such an order. 51 The conclusions to which I have come make it unnecessary to consider the further ground of appeal, because it was not in issue that if the appellant was allowed to raise that ground of appeal it could not obtain any result better than that to which I consider it is entitled. Proposed orders . 52 The orders I propose are:- (a) appeal allowed; (b) award of Curtis J of 26 June 2000 and the order for costs in favour of the respondent be set aside; (c) in lieu thereof award for the appellant; (d) the respondent pay the appellant's costs of the appeal and receive a certificate if otherwise qualified. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.