Holcim (Australia) Pty Ltd v Thomas

WARD P: I agree with the reasons of White JA and the making of an order that the application for leave to appeal be dismissed.

MACFARLAN JA: I agree with White JA.

WHITE JA: This is an application for leave to appeal from a decision of Deputy President Wood of the Personal Injury Commission confirming a certificate of determination made by Senior Member Capel dated 18 May 2021.

The application before the Personal Injury Commission concerned a claim by the present respondent, Mr Thomas, that a former employer, the appellant, Holcim (Australia) Pty Ltd (formerly CSR Ltd) (“Holcim”), pay for the cost of new hearing aids. He had been employed by Holcim for many years until he ceased work with it in 2009. He thereafter obtained employment with ACI Operations as a factory worker and was working with ACI Operations at the time of the hearing before the Commission.

On 28 June 1999 Mr Thomas’s former solicitor served a notice of claim on Holcim for lump sum compensation for 16.8% binaural hearing loss. Senior Member Capel recorded that the parties negotiated a compromise settlement of $9,665.50 in respect of 14.87% binaural hearing loss.

In 2010, and again in 2016, Mr Thomas made a claim on Holcim for the cost of hearing aids and Holcim paid for them. On 14 September 2020 his solicitor served notice of a further claim for hearing aids. It was this claim that was the subject of the determination in the Commission.

Senior Member Capel recorded that, on 10 August 2020 a Dr Macarthur reported that Mr Thomas had noticed slowly increasing deafness over the past 30 years, particularly in the presence of background noise and had been troubled by tinnitus for 10-12 years. He observed that Mr Thomas had been exposed to industrial noise since 2009 at his current employer, ACI Operations. Senior Member Capel recorded:

Senior Member Capel’s determination and order were as follows:

Deputy President Wood confirmed that determination (Holcim (Australia) Pty Ltd v Thomas [2021] NSWPICPD 46). An appeal lies from her decision where the appellant is aggrieved “in point of law” (Workplace Injury Management and Workers Compensation Act 1998 (NSW) (“the 1998 Act”) s 353(1)). Because the amount in dispute is less than $20,000 the appeal lies only with leave (s 353(4)(c)).

Holcim submitted that leave should be granted because the decision of the Deputy President is erroneous and because hearing aid claims are extremely common and the circumstances of the present matter will repeat themselves.

In its summary of argument, Holcim submitted that the questions involved in the appeal are:

Mr Thomas submitted that the question for determination is:

He submitted that leave should be given because this is the first case where the issue, as so formulated, has arisen for appellate determination. He submitted that the appeal should be dismissed.

For the reasons which follow, I do not consider that either party’s submission accurately identifies a point of law arising from the Deputy President’s decision and, if there be an error in the decisions below, the error is one of fact, not law. Notwithstanding that the application for leave to appeal and the appeal if leave be given were heard concurrently, for the reasons which follow, I would refuse leave to appeal.

As noted above, on 14 September 2020, Mr Thomas’s solicitor served a notice of claim on Holcim for hearing aids. The claim was made pursuant to s 60 of the Workers Compensation Act 1987 (NSW) (“the Act”). Section 60(1) provides that:

“Injury” is defined in s 4 of the Act as follows:

Special provision is made in s 17 for injuries consisting of loss, or further loss, of hearing. Such “losses” of hearing are deemed to be losses of hearing which are of such a nature as to be caused by a gradual process (s 17(2)). The effect of s 17(1)(a) and (c) is that the injury of loss of hearing (or further loss of hearing) is deemed to have happened at the time notice of the injury is given by the worker to his employer (or his last “noisy” employer if not employed at the time the worker gives notice of the injury). Provided the worker had been employed in an employment “to the nature of which the injury was due” at the time of the giving of notice (or was his last “noisy” employer), that employer will be liable notwithstanding that the worker’s loss of hearing may have been attributable to multiple noisy employments. The injury, being the loss of hearing, or further loss of hearing, as the case might be, is taken to have happened “as it were, at one blow” (per Barwick CJ; Commissioner for Railways v Bain (1965) 112 CLR 246; [1965] HCA 5, at 256-257) without the need to prove that it was the employment with the employer to whom notice of injury was given (or the last “noisy” employer) that caused the loss of hearing, provided the worker was or had been employed in an employment to the nature of which the loss of hearing (or further loss of hearing) was due. The time at which injury actually occurred is irrelevant. The section deems the injury to have occurred at the date notice of the injury is given. [1]

Rico Pty Ltd v Road Traffic Authority (1992) 28 NSWLR 679 concerned the construction of transitional provisions of the Act in relation to a claim for compensation for pain and suffering under the since-repealed s 67. Sheller JA, with whom Priestley JA agreed, described the operation of s 17 as follows (at 690):

This is common ground. It provides the background, but no more than that, to the present dispute. A different issue is raised by the present application. Notice of injury was given in 1999 in respect of the hearing loss Mr Thomas had suffered to that point. Mr Thomas and Holcim agreed in 1999 that his hearing loss at that time was 14.87% binaural hearing loss. Mr Thomas compromised a claim for lump sum compensation pursuant to ss 66 and 77 of the Act on that basis.

After the date of injury of 28 June 1999 Mr Thomas suffered further loss of hearing which it can be assumed would have been due, at least partly, to his continued employment with Holcim up to 2009 and thereafter with his employment with ACI Operations from 2009 to 2020 when he made his present claim for the cost of further hearing aids. By 2020 he had been assessed as having a 21% binaural hearing loss which Dr Macarthur attributed to the nature of his employment with ACI Operations whilst also observing that a 14.8% binaural hearing loss was sufficient to warrant the use of bilateral hearing aids.

Holcim’s position was that, if Mr Thomas had given notice of injury to ACI Operations, ACI Operations would have been liable for the cost of new hearing aids to the exclusion of Holcim, because the need for new hearing aids would have been attributable to the nature of the employment in which Mr Thomas was then engaged. Holcim refers to para 91 of the reasons of Senior Member Capel, where he said:

Holcim submits that s 17 should not be construed in such a way as would mean that the decision of the worker whether or not to give notice of injury should determine which employer was liable to pay for the cost of further hearing aids.

Holcim submitted that, as the worker had suffered a significant increase in hearing loss after a period of noisy employment with a subsequent employer, the responsibility of the earlier employer for hearing loss fixed at the date of injury of 28 June 1999 should be regarded as spent. The later employer would then be liable for the cost of hearing aids if and when the worker chose to give notice of injury to the later employer.

There is nothing in the text of s 17 that supports such a construction. It could only be supported if there is implied in the legislation an obligation by the worker to give notice of injury to the subsequent employer. (Even then, as explained below, it would not follow that the subsequent employer would necessarily be liable for the whole cost of medical treatment, whether by way of new hearing aids or otherwise.)

Deputy President Wood was correct in saying (at [85]) that there is no requirement in the legislation that compels the worker to give a notice of injury to a later employer.

Holcim’s submission assumes that the notice of injury given to Holcim will be “spent” if a notice of injury be given to Mr Thomas’s later employer, because the later employer would then be liable for the whole of the consequences of Mr Thomas’s hearing loss. For the reasons below that assumption is not warranted.

Mr Thomas submitted that, because notice of injury of hearing loss had been given to Holcim on 28 June 1999, Holcim was liable for all the consequences of subsequent hearing loss suffered by Mr Thomas, including the additional hearing loss after 1999, whether or not attributable to Mr Thomas’s subsequent employment with ACI Operations.

Neither construction is consistent with the text of the legislation. The loss of hearing which Mr Thomas suffered that was the subject of his notice of injury of June 1999 was an injury. The injury was agreed to have resulted in a hearing loss of 14.8%. Section 17 provides that further hearing loss is a further and separate injury.

If notice of injury were given to ACI Operations and if, as Dr Macarthur reported, Mr Thomas’s employment with ACI Operations is employment to the nature of which his disease of boilermaker’s deafness is attributable, then ACI Operations would be liable for the consequences of Mr Thomas’s further hearing loss, not his total hearing loss.

In the same way, Holcim is liable for the consequences of Mr Thomas’s hearing loss as at 1999.

Under s 60 the question is whether the cost of “that treatment or service” (that is, a particular treatment or service) is reasonably necessary as a result of an injury received by a worker. In the case against Holcim, the injury received by Mr Thomas was the injury the subject of his notice of 28 June 1999, that is, a binaural loss of hearing of 14.8%. The question before the Commission was whether or not the particular hearing aids whose cost was sought to be recovered from Holcim were reasonably necessary, as a result of that injury.

Senior Member Capel made findings of fact on that question. He recorded the submission of counsel for Holcim that a further loss of hearing represented a fresh injury and observed that that submission was consistent with the reasoning in Sukkar v Adonis Electrics Pty Ltd [2014] NSWCA 459 (at [41]). This observation was correct (Sukkar v Adonis Electrics Pty Ltd at [75]-[76], [85], [117]).

Senior Member Capel found:

These are clear findings that the bilateral digital hearing aids the subject of Senior Member Capel’s determination were assessed by him as being reasonably necessary as a result of Mr Thomas’s binaural loss of hearing of 14.8% suffered in 1999.

The appeal papers did not include any evidence relevant to this question, presumably because, at least prima facie, the question is one of fact rather than law.

The appeal to Deputy President Wood lay if Senior Member Capel’s determination were affected by any error of fact, law or discretion and to the correction of any such error. It was not a review, nor a new hearing (1998 Act, s 352(5)).

It does not appear from the reasons of Deputy President Wood that Holcim challenged Senior Member Capel’s finding of fact that the particular hearing aids the subject of his determination were reasonably necessary as a consequence of Mr Thomas’s 1999 injury. Neither the notice of appeal nor the materials provided to Deputy President Wood were included in the papers before this court. Deputy President Wood identified the grounds of appeal as follows:

Assuming that the grounds of appeal were accurately summarised, and in this Court Holcim did not contend to the contrary, it does not appear that any challenge was made to Senior Member Capel’s finding of fact that the hearing aids the subject of his determination were reasonably necessary as a result of Mr Thomas’s 14.8% hearing loss the subject of his 1999 notice of injury. An erroneous finding of fact can give rise to a question of law if the finding is made on the basis of a wrong principle, but that is not established in this case.

Deputy President Wood summarised Holcim’s principal claim as follows:

No submission based upon s 61 of the 1998 Act was advanced on the application for leave to appeal. Section 61 provides in substance that compensation may not be recovered unless notice of injury has been given to the employer as soon as possible after the injury happened and before the worker has voluntarily left the employment in which the worker was at the time of injury (s 61(1)). The section applies only in respect of an injury received before the commencement of the section which was inserted by the Workers Compensation Legislation Amendment Act 2000 (NSW). The further injury suffered by Mr Thomas from his employment with ACI Operations would not have been an injury in respect of which notice was required to be given under s 61.

It may be, although this was not the subject of argument, that the reference to s 61 of the 1998 Act was intended to be a reference to s 261 of that Act, to which reference was made on the hearing of the application for leave to appeal. Section 261(1) provides that:

Section 261 has no relevant application. Because of s 17, no date of injury for the further hearing loss which it may be assumed Mr Thomas has suffered through his employment with ACI Operations has yet arisen because no notice of injury has been given to ACI Operations under s 17 of the 1987 Act. Section 261 does not impose any obligation on Mr Thomas to make a claim under s 17.

Deputy President Wood rejected the submissions made under each of the grounds of appeal above. Deputy President Wood said (at [86]):

Thus the Deputy President recognised that Holcim remained liable for compensation in respect of the injury notified on 28 June 1999. There is no error in that conclusion. Deputy President Wood continued:

There is no error of law in that finding.

Deputy President Wood concluded:

Again, there is no error of law in those findings if reasonably construed. In particular, Deputy President Wood was correct to say that Holcim was liable for the treatment expenses if Mr Thomas could establish that “the” hearing aids, that is, the particular hearing aids the subject of the application before Senior Member Capel, were reasonably necessary as a result of the 1999 injury which resulted in a 14.8% binaural hearing loss. It is not clear that Dr Macarthur advised that a 14.8% binaural hearing loss warranted the provision of the particular hearing aids that were the subject of Senior Member Capel’s determination, but the evidence on that issue was not before us and, in any event, would not raise a point of law.

Holcim submitted that the respondent’s submission overlooked the fact that:

There was no evidence that the particular hearing aids the subject of Senior Member Capel’s determination were not prescribed by reference to a hearing loss of 14.8%. There is no evidence that the same hearing aids that would be appropriate to address a hearing loss of that degree would not be used for a hearing loss of 21% subject to a different calibration. It was open to Holcim to contend before Senior Member Capel that it should only be liable for the cost of hearing aids appropriate to a 14.8% binaural hearing loss. It appears that such a contention was raised before Senior Member Capel but he determined that the hearing aids in question were reasonably necessary for such a hearing loss. That determination raises no point of law.

I propose that the summons filed 11 March 2022 seeking leave to appeal be dismissed with no order as to costs.