FEDERAL COURT OF AUSTRALIA

O’Kane v Comcare [2014] FCA 341

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    Costs are reserved.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

Introduction

1    This is an appeal from a decision of the Administrative Appeals Tribunal (the Tribunal) given on 8 October 2013. In matter 2013/0975 the reviewable decision was affirmed and in matter 2012/2313 the decision was set aside and in substitution the Tribunal decided that the applicant was not entitled to compensation for the permanent impairment claim.

2    The notice of appeal invokes not only s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) but also, for a reason which is not clear, s 5(1)(e) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) which provides that a person who is aggrieved by a decision to which that Act applies may apply to the Federal Court for an order of review in respect of the decision on the ground “that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made”. That paragraph has to be read with s 5(2) of that Act. In oral submissions the reference was to s 5(1) of the Administrative Decisions (Judicial Review) Act more generally and seems to have been directed to any problems arising from a narrow view of s 44 of the AAT Act. I return to this topic at [81] below.

The findings and reasons of the Tribunal

3    The Tribunal said that Mr O’Kane had two claims: for compensation for binaural hearing loss and for tinnitus (Matter 2013/0975); and for permanent impairment due to those conditions (Matter 2013/2313).

4    The first claim was accepted on 10 November 2011, a decision revoked on review on 27 February 2013. Mr O’Kane sought further review by the Tribunal on 6 March 2013.

5    In the second reviewable decision, dated 20 April 2012, Mr O’Kane was found to be entitled to compensation for permanent impairment of $35.11 for hearing loss, but not for tinnitus or non-economic loss in accordance with the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (1971 Act). He sought further review by the Tribunal on 7 June 2012.

6    The Tribunal gave the following background, so far as relevant. The applicant relied in particular on what was said by the Tribunal at [44], [45], [48] and [56]. I have identified those paragraphs in the following summary which reproduces the findings and reasons of the Tribunal.

7    Mr O’Kane commenced work as an ACTION bus driver in the ACT on or about 15 June 1974. No hearing test was conducted prior to his appointment. He received an involuntary redundancy package on 15 January 1996. However, he recommenced as a casual part-time bus driver on 16 January 1996 and became permanent part-time on 16 April 1996.

8    On 7 April 1996, Mr O’Kane was ‘king hit’ at a local hotel in the ACT. The assault was to his left temple and he fell on his right side on a tiled floor, hitting the right side of his head on the floor. By 1 August 1996, Dr Choong reported Mr O’Kane as being fully recovered ‘except for the hearing loss’. Mr O’Kane made a claim for victims compensation in respect of this incident. The claim covered bruising, damage to teeth, and nerve damage to the right ear including hearing loss.

9    On 24 July 1996 Mr O’Kane’s loss of hearing was assessed by Dr Hugh Williams, ear, nose and throat surgeon. Dr Williams found that:

… the tympanic membranes of his ears appeared satisfactory and tuning fork tests along with audiometry indicated moderately severe right-sided sensorineural deafness which I believe is consistent with the injuries sustained which caused him a traumatic cochleitis at the time of the head injury which has left him with partial deafness in his right ear. … According to Tables put out by the National Acoustic Laboratories [NAL] Report of January 1988 I calculate that Mr O’Kane has a 15.1% loss of total hearing. (emphasis added)

10    On 3 June 2001, Mr O’Kane was assaulted outside the same ACT hotel as the assault in 1996. He suffered concussion and undertook a hearing test following the incident. In a statutory declaration, Mr O’Kane submitted that he had resulting “hearing loss” and that his medical advisers said he “will require hearing aids”. He had sought criminal injuries compensation for the cost of hearing aids following the assault.

11    On 8 August 2004, Mr O’Kane ceased driving ACTION buses.

12    On 8 May 2008, Mr O’Kane underwent a hearing test which indicated a binaural hearing loss of 33.9 per cent when corrected for presbyacusis (the effects of ageing).

13    On 2 June 2008, Mr O’Kane underwent a further hearing test which indicated a binaural hearing loss of 15.5 per cent when corrected for presbyacusis.

14    On or about 16 December 2010, Mr O’Kane attended solicitors who lodged a claim for permanent impairment with Comcare in respect of hearing loss and tinnitus.

15    On 31 October 2011, Dr Matison assessed Mr O’Kane to have a 41.3 per cent binaural hearing loss (corrected for presbyacusis).

16    On 10 November 2011, Comcare accepted liability for Mr O’Kane’s hearing loss and tinnitus with a date of injury of 23 November 2010.

17    On 3 January 2012, Mr O’Kane received confirmation from Comcare that it would accept liability for the cost of hearing aids.

18    On 13 February 2012, Comcare decided that Mr O’Kane was not entitled to permanent impairment in respect of his hearing loss and tinnitus.

19    On 20 April 2012, Comcare set aside the decision of 13 February 2012 and found that Mr O’Kane was entitled to a permanent impairment assessment under the 1971 Act in respect of his hearing loss of 0.0095 per cent, amounting to an entitlement to $35.11, and nothing in respect of his tinnitus.

20    On 12 July 2012, Mr O’Kane underwent a hearing test indicating a binaural hearing loss of 50.6 per cent (corrected for presbyacusis).

21    On 14 August 2012, Dr Pham produced a report stating Mr O’Kane’s hearing loss, corrected for presbyacusis, as at 23 November 2010 was 39.8 per cent binaural hearing loss and binaural hearing loss attributable to noise exposure was 17.4 per cent.

22    On 1 November 2012, Dr Matison provided a further report to Comcare. Dr Matison expressed the view that Mr O’Kane’s hearing loss was unlikely to be attributable to the assaults.

23    In a supplementary report dated 21 November 2012, Dr Matison modified his views and indicated that the assault in 1996 may have contributed to the hearing loss in the right ear but could not comment as to the extent.

24    In a further supplementary report dated 29 December 2011, Dr Matison reported that in his opinion, 0.6 per cent loss of hearing by Mr O’Kane was due to acoustic trauma from a burst tyre, the remaining 40.7 per cent hearing was “most likely due to a familial form of deafness unconnected with any employment factor”. His conclusion was “based on the audiogram pattern, which is not typical of noise trauma”. Thus although he considered that Mr O’Kane may have been exposed to excessive noise in the early years of his career with ACTION, in his opinion, bus driving was not the predominant cause of his hearing loss.

25    In a reviewable decision dated 27 February 2013, Comcare revoked the decision of 10 November 2011 and denied Mr O’Kane’s claim for “sensorineural hearing loss” and “tinnitus”.

26    The Tribunal referred to the relevant legislation as being the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act). The Tribunal said that relevant provisions were s 4(1), the definitions provision; s 5A which defines what is a compensable “injury” for the purposes of the Act; s 5B which defines one form of compensable injury as a work-related “disease”; and s 7(4) which describes the date of injury.

27    The Tribunal identified the following issues so far as presently relevant:

•    Was Mr O’Kane’s claim for compensation excluded by s 53 of the SRC Act i.e. did Mr O’Kane notify Comcare of his claim “as soon as practicable”?

•    Was Mr O’Kane’s claimed condition of hearing loss an “injury (other than a disease)”, or a “disease” for the purposes of the SRC Act?

•    Was Mr O’Kane’s claimed condition of tinnitus an “injury (other than a disease)”, or a “disease” for the purposes of the SRC Act?

•    Did Mr O’Kane’s claimed conditions arise out or, or in the course of his employment with the Australian Capital Territory (ACT) Government?

OR

•    Were Mr O’Kane’s claimed conditions contributed to, to the degree relevant, depending on the legislation at the date of injury, to his employment with the ACT Government?

•    Were the impairments arising from Mr O’Kane’s claimed conditions permanent?

•    Was Mr O’Kane entitled to compensation for permanent impairment and non-economic loss for his claimed conditions?

28    So far as relevant for present purposes, the Tribunal considered these matters as follows.

29    In considering whether Mr O’Kane’s claim for compensation was excluded by s 53 of the SRC Act, the Tribunal said at [44] that in an earlier Tribunal decision s 53 was found to be no bar when an applicant had only recently become aware of a possible link between his condition and his employment. Of its nature, hearing loss was often slowly incremental and difficult to detect. The Tribunal referred to the report of the National Institute on Deafness and other Communication Disorders which indicated at paragraph 50 that the symptoms of Noise Induced Hearing Loss increased “gradually over a period of continuous exposure … The individual may not be aware of the loss but it can be detected with a hearing test”. In other words, the Tribunal said at [45], the gradual deterioration of the condition may prevent a person becoming aware of the deterioration of their hearing. The evidence suggested this appeared to be the case for Mr O’Kane. In summary, the Tribunal said at [48], the gradually developing nature of the injury, the worsening of his hearing only since Mr O’Kane ceased bus driving in 2004, the paucity of audiometry reports for Mr O’Kane prior to 2010, and the fact that the pre-2010 audiometric evidence did not attribute hearing loss to bus driving, were an adequate explanation for Mr O’Kane’s delay between the middle of 2008 and the end of 2010, to notify Comcare of his claim.

30    The Tribunal went on to consider whether Mr O’Kane’s claimed condition of hearing loss was an “injury (other than a disease)”, or a “disease” for the purposes of the SRC Act.

31    The Tribunal at [50] referred to Re Sandercock and Military Rehabilitation and Compensation Commission [2013] AATA 517 at [25]-[28], another claimed long-standing hearing loss claim.

32    In that case the Tribunal said there was no consistent view in the cases as to whether hearing loss was an “injury” or a “disease” for the purposes of ss 4(1), 5A, 5B and 6 of the SRC Act. However, the Tribunal said, the distinction between an “injury” in its primary sense and a “disease” was described by the High Court in Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286 at [39] per Gleeson CJ and Kirby J as the difference between “a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state” as compared with the “underlying pathology” that constitutes a “disease”. Applying that distinction, acoustic trauma, if it results in sudden damage to sensitive hair cells of the inner ear as well as the hearing nerve would amount to an “injury”; while presbyacusis, being a slowly degenerative process associated with ageing, would amount to a “disease”.

33    The present Tribunal said that, as acknowledged in the cases, “the appropriate characterisation of the cause of the hearing loss [is] generally apparent from the facts of each particular case”, citing Re Tralongo and Military Rehabilitation and Compensation Commission [2004] AATA 1242 at [36].

34    The Tribunal said that in Mr O’Kane’s case, the claim was that his hearing loss was due to loud continuous noise from driving buses in combination with the effects of ageing, and possibly a familial disposition to hearing loss, alongside the injury from the assault in 1996. That meant that Mr O’Kane’s hearing loss was due to combined effects which were categorised differently. The assault, a “sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state”, and the “loud continuous noise” from driving buses which damages the sensitive hair cells of the inner ear, perpetuated and worsened over the period of his driving noisy buses and the ‘301’ tram would both be “injuries”. The age-related and familial predisposition would be characterised as slowly degenerating or congenital conditions and hence, if employment-related, would be “diseases”.

35    Since it was the contribution of the former categories including hearing loss from bus driving, which were being considered in the present claim, the Tribunal found that Mr O’Kane’s hearing loss related to an “injury”, namely, the damage to the sensitive hair cells of the inner ear.

36    The Tribunal then turned to whether Mr O’Kane’s claimed condition of tinnitus was an “injury (other than a disease)”, or a “disease” for the purposes of the Act.

37    It said that tinnitus was “a noise heard in the ear without any external cause”. It was most commonly associated with noise induced hearing loss, but could also be related to trauma or disease. Initially the condition was manifested in Mr O’Kane’s right ear. Since then, the condition had deteriorated and was now experienced binaurally as shown in the audiogram of 8 May 2008.

38    Due to the indeterminate nature of the evidence, the Tribunal said it was difficult to make a definitive finding of “injury” or “disease” in relation to Mr O’Kane’s tinnitus. There was evidence which the Tribunal accepted that Mr O’Kane first noticed tinnitus following the assault in 1996. The continuing and worsening nature of Mr O’Kane’s tinnitus suggested that his condition may also be associated with his noise induced hearing loss or his presbyacusis/familial predisposition, the first possibly being an injury, the second two causes, a disease.

39    On balance, the Tribunal said at [56], it found that although the tinnitus may have been initiated by trauma, the condition had been perpetuated and worsened by association with his general hearing loss, both being characterised as “injuries”. Accordingly the Tribunal found that his tinnitus initiated by, and exacerbated by being associated with, an “injury” was itself an “injury”.

40    The Tribunal then turned to whether Mr O’Kane’s claimed condition of hearing loss was contributed to, to the degree relevant, depending on the legislation at the date of injury, by his employment with the ACT Government.

41    The Tribunal had found that Mr O’Kane’s claimed noise-induced hearing loss was categorised as an “injury” which meant for liability to accrue, that element of his condition must “arise out of or in the course of” his employment. A similar test applied to his tinnitus. The Tribunal referred to s 5A(1) of the SRC Act.

42    Mr O’Kane’s claim was that his noise-induced hearing loss was due in part to the noise he experienced while driving ACTION buses, particularly those with front mounted engines. He gave evidence that he drove some 11 different vehicles while at ACTION.

43    Mr O’Kane also submitted that ticket validators, placed behind the driver’s head, were installed in 1998/9, and if they jammed, let out a high-pitched scream. This noise could not be shut off by drivers until the bus returned to the depot where the supervisors could turn them off. He also submitted that a two-way radio was fitted to the buses in the 1980s. Initially they could not be adjusted by drivers and provided a constant stream of noise.

44    The Tribunal set out a table indicating the percentage of hearing loss (corrected to deduct the effects of ageing) experienced by Mr O’Kane as found by the medical experts and on audiometry. There was no evidence of Mr O’Kane’s level of hearing when he started bus driving.

45    The Tribunal considered the evidence of Mr Herbert, a former ACTION driver, who said that if allocated to one of the three ‘301’ trams, the shift would be between 8-10 hours. One of those trams was allocated to the Canberra city route. Two of the trams were noisier than the third. The trams were introduced in 1995 and retired in 1998. Of the 12 drivers of those trams, six of them had put in hearing claims which were accepted by Comcare.

46    The Tribunal considered the evidence of the engineering manager for ACTION who said he was not a noise expert but to his knowledge the noise level on a normal day of driving buses did not exceed the 85 decibel level. He conceded that he did not know whether the ‘301’ trams had been tested, nor the Dennis dart bus. In his view, even the two vehicles which exceeded the 85 decibel level did not do so for 8 hours. In his view exposure was harmful only if over 8 hours.

47    The Tribunal considered the opinion of Dr Matison, from which he did not resile at the hearing, that the audiogram findings were “characteristic of familial forms of sensorineural deafness” at least for the left ear, and were not typical of steady state noise exposure. He favoured this view, even though Mr O’Kane’s right ear exhibited a “high tone dip consistent with noise trauma”, that is, hearing loss in the 2000hz to 4000hz range, since steady state noise exposure would have had the same impact on both ears. His view was supported by the fact that the 40.7 per cent binaural hearing loss was “much higher than seen in the majority of cases of industrial noise trauma”. Dr Matison conceded that there was some work-related element, but noted the difficulty in estimating the quantum of that contribution due to the fact that “there is no contemporaneous report from either his GP or a specialist, no claim and no audiometry”. Moreover, as he pointed out, what later audiometry existed was confusing. He said in his report:

The June 2008 audiogram shows, after an allowance for presbycusis, a 15.1% binaural hearing impairment, yet the Australian Hearing audiogram done approximately one month previously indicated a 33.9% binaural hearing handicap after an allowance for presbycusis.

…

There is no incident or factor in the history to account for this disparity. Furthermore, the Audio Clinic audiogram on 10 July 2012 shows a 50.6% binaural hearing handicap after a deduction for presbycusis, significantly greater than the audiometry of 23 November 2010.

What it did establish, he said, was:

… that the bulk of Mr O’Kane’s hearing losses appear to have occurred between 2008 and 2012. This deterioration cannot be attributed to his Commonwealth Government employment which ceased in 2005. [sic]. Noise trauma does not progress once exposure to the offending noise ceases.

48    The Tribunal said that in a supplementary report dated 21 November 2012, Dr Matison conceded that the loss of hearing in the right ear “could be consistent with the injuries received in the assault” in 1996. However, he denied that all the hearing loss could be attributed to that cause since the left ear also had a hearing loss. In the absence of the audiogram at the time, he could not calculate what proportion of hearing loss might be attributed to noise from driving buses as compared with the assault.

49    The Tribunal considered Dr Pham’s view that the Robson report indicated that for the two trams referred to, “during acceleration … there was noise level at 94 decibels with a peak reading at 100 decibels” and this would be sufficient to damage hearing. He noted it was difficult to know how often the tram accelerated but it could be inferred that Mr O’Kane was periodically exposed to excessive loud noise. He considered this would have been sufficient to cause employment-related hearing loss. Discounting for periods when the engine was idling or not exceeding the 85 decibel limit, and for presbyacusis, he attributed Mr O’Kane’s work-related binaural hearing loss to be 17.4 per cent of the total hearing loss.

50    The Tribunal referred to the oral evidence of Dr Matison who said that a person can withstand 100 decibels of noise per day for no longer than about 15 minutes per day. If the exposure was only for shorter times, it would not cause deafness. He acknowledged that the ‘301’ tram exceeded that noise level when accelerating or braking but said without knowing the average time per day or per shift of Mr O’Kane’s exposure, or whether he was in the noisier or the less noisy of the trams, there was no evidence that driving the ‘301’ tram contributed to his deafness.

51    At the hearing, the Tribunal said, the two experts conceded that noise-induced hearing loss and tinnitus are usually permanent. The experts also agreed that employment made some contribution to Mr O’Kane’s hearing loss. The experts agreed that the two most consistent audiograms were those in May and June 2008. They were undertaken only four years after Mr O’Kane ceased work with ACTION and probably were sufficiently indicative of his hearing conditions in 2004.

52    They also agreed that the fairest way to estimate his hearing loss was to take an average of the two results for the two 2008 audiograms for the frequencies most likely to be associated with noise induced hearing loss, that is, the hearing loss within the 2000hz to 4000hz range. That produced a figure of 8.55 binaural hearing loss. A deduction needed to be made for age for both audiogram results. That produced a figure, according to Dr Matison, of 4 for the Audio Clinic audiogram and 9 for the Australian Hearing audiogram. Averaging the two led to a figure of 6.6 which divided by two gave a whole person impairment of 3 per cent. Both experts agreed that Mr O’Kane’s tinnitus attracted a five per cent hearing loss.

53    Dr Matison also said, following discussions with Dr Pham, that there was not enough evidence to reach a firm conclusion that Mr O’Kane did suffer hearing loss due to work factors. Dr Matison said their findings were on the basis of “possibilities”, but not of “probabilities”. There was insufficient proof, he said, that Mr O’Kane was exposed to noise from driving ACTION vehicles. However, he acknowledged that they could not rule out noise induced hearing loss since he had suffered binaural hearing loss in the upper 2000hz to 4000hz range, at least in the right ear, typical of noise induced hearing loss. But he said that the pattern of hearing loss shown in the audiograms was not typical of noise induced hearing loss. Each hearing test showed markedly different results from the other, and there was little or no consistency in the readings. Dr Pham said there was a contribution from work, but it was difficult to quantify.

54    The Tribunal said it was hampered because of the paucity of evidence of the hours of driving per day by Mr O’Kane of the vehicles found in the reports to have exceeded safe noise levels, and the frequency of such exposure. He did drive the Hino bus which was said to be noisy, but the 2004 report said the Hino bus did not exceed safe occupational limits and it was not known how often and for what periods he drove the bus. Similarly he did have split shifts on school buses, but the excessive noise levels, according to the Robson reports, occurred for short periods only when the bulk of the children were either entering or exiting the buses, recorded as being for less than 15 minutes. Mr O’Kane did drive ‘301’ trams but there was the same deficiency of information about length of shifts, frequency of shifts and length of excessive noise levels when accelerating, braking, or driving in second/third gears. The average length of time he was exposed to these noises was not known. Any noise level would have been intermittent and it was not known for how long it would have continued.

55    The Tribunal said that given an 8 – 10 hour shift it was unlikely on the evidence for excessive noise levels to continue for an average of 8 hours a day. In addition, the audiometry reports showed that Mr O’Kane’s hearing loss was worse on his right than his left ear. That finding was inconsistent with Mr O’Kane’s claim of excess noise from engines located to the left of the driver at the front of the vehicle. Finally, it was not known what was the decibel level of the scream from the malfunctioning ticket validators, nor for how long or how frequently Mr O’Kane was exposed to the noise. The Tribunal also noted that it had no information about the period during which the radio noise could not be turned down by the driver, nor of Mr O’Kane’s length or frequency of exposure.

56    Whether Mr O’Kane’s hearing loss arose out of or in the course of his employment involved both a causal and a temporal test, although there was overlap between the two tests. “Arising out of employment” referred to the work which an employee was employed to do and what was incidental to that work. There was no question that to the extent that Mr O’Kane’s hearing loss was due to driving buses, it arose out of, or in the course of his employment.

57    However, the Tribunal found at [81] it was not satisfied on the evidence that Mr O’Kane’s hearing loss was due to his work or an incident of that work. There was an absence of evidence about length and frequency of exposure, and the need for continuous exposure at A-weighted levels for an average of 8 hours a day, and for higher frequency noise levels, for example, averaging above 100 decibels, for longer than 15 minutes. In light of medical and other evidence about the contributing effects of injury to Mr O’Kane’s ears from two assaults, of his ageing, and the possibility of some familial predisposition as well, the Tribunal was not satisfied that his hearing loss could be attributed to his employment. Both medical experts agreed that the evidence was deficient without the benefit of a report from a sound engineer and this would be difficult to obtain now that the noisiest buses or trams had been sold and were no longer in use.

58    The Tribunal said that that finding was supported by the limited evidence of Mr O’Kane’s hearing loss prior to 2004, being confined to the test undertaken in 1996. It was also supported by the fact that two of the noisiest vehicles Mr O’Kane drove, the Leyland crash gear box bus and the ‘301’ trams, were decommissioned by 1978 and 1998 respectively, some time prior to Mr O’Kane’s ceasing work with ACTION. In addition, his hearing loss was worse in his right ear, when the engine noises to which he said he was exposed were closer to his left ear. The evidence that his hearing had worsened since leaving work was also significant.

59    The Tribunal accepted Dr Matison’s evidence which was that after exposure to excessive noise ceased, noise induced hearing loss ceases. So the worsening of Mr O’Kane’s hearing after he ceased working for ACTION indicated that his worsening hearing loss, as reflected in audiograms of 2010 and 2012, must be due to other causes. The post-employment worsening of his hearing was supported by the fact that Mr O’Kane did not seek medical treatment for the condition until 2008, a finding consistent with the audiometry reports. Finally, although Dr Pham was prepared, prior to the hearing, to attribute 17.4 per cent of Mr O’Kane’s hearing loss to employment, at the hearing, he acknowledged that it was not possible to know what amount could be attributed to his employment. Dr Matison was only prepared to allocate 0.6 per cent hearing loss to employment and although both experts considered the fairest method of estimation in the unsatisfactory state of the evidence was to average the results from the audiometric tests in 2008, that option only applied if the Tribunal accepted, as it had not done, that the hearing loss arose out of or during the course of Mr O’Kane’s employment.

60    The Tribunal then turned to consider whether Mr O’Kane’s claimed condition of tinnitus was contributed to, to the degree relevant, depending on the legislation at the date of injury, by his employment with the ACT Government.

61    The Tribunal referred to Mr O’Kane’s evidence that his tinnitus was severe, continuous and interfering with his sleep.

62    The Tribunal then referred to Dr Matison’s initial view which was that it was “highly unlikely that Mr O’Kane suffered any tinnitus from [the assaults]”. At the hearing Dr Matison conceded the evidence indicated that Mr O’Kane did not have tinnitus prior to 1996, the condition was compatible with the effects of an assault, and this suggested it was the trauma, not noise which contributed to his tinnitus. At the same time he acknowledged that tinnitus can be either of gradual onset or of sudden onset, although it was usually sudden. He noted the confusion from the Audio Clinical reports which indicated that “tinnitus was either absent, intermittent or mild”. He could not explain why it was bilateral in Mr O’Kane’s case.

63    The Tribunal referred to Dr Pham’s view in his report of 14 August 2012 which was that “the level of noise exposure could contribute or aggravate tinnitus”. However, at the hearing, he said it was hard to say what caused Mr O’Kane’s tinnitus and there was no way to know.

64    In this state of the evidence, the Tribunal found it was not satisfied that Mr O’Kane’s tinnitus was sufficiently associated with his hearing loss for it to have “arisen out of or in the course of his employment”.

65    The Tribunal concluded its reasons by saying it was satisfied that the injuries did not arise out of or in the course of employment. This also meant, the Tribunal said, it was not necessary to consider further the issues relating to the permanent impairment claim.

Notice of Appeal

66    The notice of appeal was in the following terms.

67    The questions of law were stated to be:

1.    Did the Tribunal err in law by finding that the Applicant’s hearing loss was an injury other than a disease under s 5A of the Safety, Rehabilitation and Compensation Act 1988 (“the SRC Act”).

2.    Did the Tribunal err in law by finding that the Applicant’s tinnitus was an injury other than a disease under s 5A of the SRC Act.

3.    Did the Tribunal err in law by failing to consider whether the Applicant’s employment contribute[d], to a significant degree, to the development of disease under s 5B of the SRC Act.

4.    Did the Tribunal err in law by failing to consider whether the Applicant’s hearing loss and tinnitus constituted a disease under the deeming provisions, s 7(2) and or s 7(3) of the SRC Act.

5.    Did the Tribunal fail to consider a submission of substance:

whether the incidence of hearing loss and or tinnitus, or the incidence of the aggravation of hearing loss and or tinnitus, was significantly greater than the incidence among person suffering from hearing loss and or tinnitus who have engaged in other employment satisfying “contribution to a significant degree” under s 7(2) and or s 7(3) of the SRC Act;

a submission capable of changing the outcome of the proceedings.

6.    The Tribunal failed to provide adequate explanation as to its reasoning.

7.    Whether the Tribunal failed to give findings on material questions of fact with regard to whether the Applicant satisfied s 7(2) and or s 7(3) of the SRC Act with a reference to evidence and other material on which those findings were based as required under s 43(2B) of the Administrative Appeals Tribunal Act 1975 (the AAT Act).

68    The grounds relied on were stated as follows:

Question of law 1, 2 and 3

1.    The Tribunal found that the Applicant suffered a gradual deterioration of his hearing [45] [48].

2.    The Tribunal found that the Applicant’s tinnitus was perpetuated and worsened by the association with the Applicant’s general hearing loss [56].

3.    Notwithstanding the factual findings by the Tribunal at [48] and [56], the Tribunal found that the Applicant’s hearing loss and the Applicant’s tinnitus was an injury other than a disease under s 5A of the SRC Act.

4.    The Tribunal erred by restricting its consideration under s 5A to whether the Applicant suffered an injury other than a disease under s 5A of the SRC Act.

5.    The Tribunal erred by failing to consider and determine whether the Applicant’s ailments, that is, the Applicant’s hearing loss and tinnitus were contributed to by his employment to a significant degree under s 5B of the SRC Act.

6.    The approach adopted by the Tribunal in determining the date of injury in respect of the hearing loss and tinnitus was inconsistent with its finding that these were injuries other than a disease.

Question of law 4 and 5

7.    The Applicant made submissions at the hearing that the incidence of hearing loss and or tinnitus, and or the incidence of the aggravation of hearing loss and or tinnitus, was significantly greater for employee’s (sic) driving the “301” trams than the incidence among persons suffering from hearing loss and or tinnitus who have engaged in other employment.

8.    The Applicant made submissions at the hearing that the incidence of hearing loss and tinnitus amongst the drivers of “301” trams satisfied the deeming provisions under s 7(2) and or s 7(3) of the SRC Act.

9.    The Applicant made submissions at the hearing that the incidence of hearing loss and tinnitus amongst the drivers of “301” trams would be taken for the purposes of the SRC Act to have contributed to a significant degree to the contraction of or the aggravation of the employee’s (sic) hearing loss and tinnitus under s 7(2) and s 7(3) of the SRC Act.

10.    The submission made by the Applicant under s 7(2) and s 7(3) of the SRC Act was capable of changing the outcome of the Hearing.

11.    The Tribunal failed to consider, or to refer to at all, the submission of the Applicant under s 7(2) and or s 7(3) of the SRC Act.

Question of law 4 and 5

12.    The Applicant repeats paragraphs 6 to 10 above.

13.    The Tribunal failed to give findings on material questions of fact with regard to whether the Applicant satisfied s 7(2) and or s 7(3) of the SRC Act with a reference to evidence and other material on which those findings were based as required under s 43(2B) of the AAT Act.

Question of law 6

14.    The Tribunal noted at 75 and 76 that the experts agreed on a work-related contribution to both the Applicant’s hearing loss and tinnitus and a permanent impairment in respect of them.

15.    The Tribunal failed to provide any or any adequate reason as to why this medical evidence should be ignored.

Submissions

69    The applicant submitted that the Tribunal erred in law by finding that the applicant suffered an injury other than a disease under s 5A of the SRC Act. The applicant submitted the Tribunal incorrectly applied the test in Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310 and Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286. This was particularly so given the finding by the Tribunal that the applicant suffered a gradual deterioration of his hearing: the applicant referred to [44], [45] and [48] of the Tribunal’s reasons. The applicant submitted that the Tribunal at [50] referred to its earlier decision of Re Sandercock and Military Rehabilitation and Compensation Commission [2013] AATA 517 and failed to consider or apply the test in Zickar and Petkoska. The applicant submitted that hearing loss and tinnitus may only be classified as an injury where there is a sudden and ascertainable or dramatic physiological change or disturbance but a gradual deterioration of hearing as determined by the Tribunal at [44], [45] and [48] could not constitute an injury simpliciter as it was inconsistent with Zickar and Petkoska.

70    The applicant next submitted that the Tribunal went on to misdirect itself by failing to apply the definition in s 5B.

71    Thirdly the applicant submitted that there was a failure to consider a submission of substance capable of altering the outcome of the hearing in that the applicant’s substantive argument at the hearing was that s 7(2) or s 7(3) would apply because of the high incidence of hearing loss and tinnitus amongst the drivers of ‘301’ trams.

72    Fourthly, the applicant submitted that the Tribunal failed to provide reasons. The material questions of fact on which it was submitted the Tribunal failed to give findings were identified as: (a) why it found that a gradual deterioration of hearing constituted an injury under s 5A of the SRC Act, and not a disease under s 5B; (b) why it did not consider or make findings on significant contribution under s 5B of the SRC Act; (c) why it failed to consider the submission under s 7(2) or s 7(3) of the SRC Act; (d) why evidence that six of the 12 ACTION bus drivers who submitted hearing loss claims since 1976, drove the ‘301’ trams between 1995 and 1998 did not constitute a greater incidence under s 7(2) or s 7(3) of the SRC Act; (e) why evidence that six of the 12 ACTION bus drivers who submitted hearing loss claims since 1976, drove the ‘301’ trams between 1995 and 1998, was not a relevant consideration as to whether the hearing loss of the applicant arose out of or in the course of employment.

73    The respondent submitted that the first four purported questions of law in the applicant’s notice of appeal were not questions of law. The respondent submitted that an appeal under s 44(1) of the AAT Act may not be brought on a mixed question of fact and law, citing Comcare v Etheridge (2006) 149 FCR 522 at 527 [16]. The fifth to seventh “questions of law” might raise a question of law, the respondent submitted.

74    The respondent submitted that the test for an injury simpliciter was whether the claimed condition amounted to a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state. The respondent referred to Petkoska at [39]. The respondent submitted that the Tribunal referred at [50] to the distinction between a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state as compared to the underlying pathology that constitutes a disease. The respondent submitted that the applicant’s challenge to those findings of fact on the basis that the Tribunal found that the applicant suffered a gradual deterioration and that such a deterioration could not constitute an injury simpliciter must fail for at least two reasons. First, the applicant’s submission was in truth a disagreement with the specific findings of fact made by the Tribunal and there was no error of law simply in making a wrong finding of fact. Second, the Tribunal’s commentary as to a “gradual deterioration”, when read in context, did not amount to a specific finding of fact in relation to the question of whether the applicant suffered an “injury” or “disease”. The comments appeared in the passage which addressed whether the applicant’s claim was effectively statute-barred for want of notice under s 53. The Tribunal only observed that the evidence suggested that the applicant experienced a gradual deterioration in his condition. Specific findings of fact on the questions of “injury” and “disease” were made at a later point in the Tribunal’s reasons.

75    The respondent went on to submit, in the alternative, that the applicant’s arguments under ss 7(2) and 7(3) were incorrect in law and did not accurately reflect the evidence before the Tribunal.

76    In reply, the applicant submitted that given the significance and prominence of the s 7 argument at the hearing, the Tribunal was required at law to refer to the submission in its reasons. It failed to do so. It did not make findings as to whether s 7 applied to diseases only. In fact s 5A of the SRC Act is the definition section for the term “injury” and defined injury to include a “disease suffered by an employee”. The applicant submitted that if the Tribunal wished to reject the applicant’s s 7 argument on the basis that s 7 only applied to a disease, then the Tribunal was required to provide reasons as to why s 7 did not apply to injuries, having regard to s 5A of the SRC Act. The applicant also submitted that the respondent’s submissions, in the alternative, as to its construction of s 7 highlighted the very complaint that the applicant had with the decision of the Tribunal.

Consideration

77    The applicant’s submission that the Tribunal misdirected itself by failing to apply the definition in s 5B is, in my view, merely a consequence of the Tribunal finding that the hearing loss and tinnitus were each an injury rather than a disease. There is no separate substance in this point. In order to succeed on it the applicant would first need to succeed in establishing at least an error of law in the Tribunal’s finding that the hearing loss and tinnitus were each an injury rather than a disease.

78    The applicant’s submission that the Tribunal failed to consider a submission of substance capable of altering the outcome of the hearing in that the applicant’s substantive argument at the hearing was that s 7(2) or s 7(3) would apply because of the high incidence of hearing loss and tinnitus amongst the drivers of ‘301’ trams does not seem to me to be aptly expressed. The real error, if there be an error, is whether the Tribunal’s finding that the hearing loss and tinnitus were each an injury and not a disease meant that the Tribunal did not have to consider the argument concerning s 7(2) or s 7(3). This would only be a separate ground if those provisions could apply as a matter of construction in light of that finding, assuming for the purposes of this ground that the Tribunal’s finding that the hearing loss and tinnitus were each an injury and not a disease was not an error of law.

79    Similarly, the submission concerning a failure to provide reasons is not, in my opinion, a sustainable separate ground. In my opinion it does not provide an appropriate tool of legal analysis. Section 43(2B) of the AAT Act provides that the Tribunal’s written reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based. It is to be recalled that Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 established that s 430 of the Migration Act 1958 (Cth) obliged the tribunal to set out its findings on those questions of fact which it considered to be material to the decision which it made and to the reasons it had for reaching that decision (at [10] per Gleeson CJ, [34] per Gaudron J, [68] per McHugh, Gummow and Hayne JJ, [217] per Callinan J). Section 430 provided that where the Tribunal made its decision on a review, the Tribunal must prepare a written statement that: (a) set out the decision of the Tribunal on the review; (b) set out the reasons for the decision; (c) set out the findings on any material questions of fact; and (d) referred to the evidence or any other material on which the findings of fact were based.

80    Applying that reasoning, and referring back to [72] above, (a) has no foundation in fact as the Tribunal did give extensive reasons and the matters in (b)-(e) followed from the Tribunal’s findings as to injury and not disease.

81    I reject the respondent's submission that the present appeal may not be brought on a mixed question of fact and law. I do so for the reasons I gave in Comcare v Martinez (No 2) [2013] FCA 439; (2013) 212 FCR 272 at [86], that is that in Collins v Administrative Appeals Tribunal (2007) 163 FCR 35 Allsop J, with whom Lindgren and Emmett JJ agreed, explained Comcare v Etheridge as follows, Collins being a case involving s 120 of the Veterans’ Entitlements Act 1986 (Cth). His Honour was considering an argument, the first of two arguments, that even if the Tribunal had gone beyond the process of assessment and had entered into the prohibited domain of fact-finding, prohibited because of the terms of s 120 of the Veterans’ Entitlements Act, that was not a question capable of raising a question of law for the purposes of s 44 of the AAT Act, and that the Tribunal could only be found to have erred if the conclusions it reached were unreasonable or capricious (at [55]):

[55]     The first of these two arguments rests on a number of Full Court decisions including Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321; [2003] FCAFC 232 at [18]; Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd (2003) 133 FCR 290; [2003] FCAFC 244; Comcare v Etheridge (2006) 149 FCR 522; [2006] FCAFC 27; and HBF Health Funds Inc v Minister for Health and Ageing (2006) 149 FCR 291; [2006] FCAFC 34. These authorities, it was submitted, prevented an error of the kind asserted (that the Tribunal exceeded what was legally open to it to do in the formation of its opinion for s 120(3)) being capable of being a question of law for the purposes of s 44 of the AAT Act. This was so, it was submitted, because the Court would need to examine the handling of the facts by the Tribunal and also because at most the question would be a question of mixed fact and law and not a pure question of law. I reject this argument. Nothing in any of the cases referred to at the commencement of this paragraph gainsays the proposition that a properly framed question of law directing the Court’s attention to the manner in which the Tribunal failed to discharge its obligations according to law under s 120(3) can be the subject of an “appeal” under the AAT Act. All those cases were directed at the necessity for there to be a proper and precise framing of a “question of law” to found the statutory authority of the Court under s 44 of the AAT Act to dispose of the appeal. Nothing in these cases limits the reach of s 44 to questions of law divorced from the need to look at facts. If, as here (on the hypothesis put forward on behalf of Mrs Collins), the Tribunal has begun a process of fact finding by preferring some evidence to other evidence or by rejecting conflicting material in the formation of its opinion as to reasonable hypothesis, it would have exceeded the statutory task required of it under s 120(3) of the Veterans Act. There can be no doubt that a properly framed question of law raising that legal error would be the legitimate subject of an “appeal” under s 44 of the AAT Act. All the cases relied upon were dealing with what has become an endemic problem in the failure of applicants in appeals under s 44 to frame the question as a question of law, including, but not limited to, the practice of raising of factual issues or simply expressing subject matter to set the outer limits of debate before the Court.

As I observed in Martinez:

[87]     It follows that it is too simple a proposition to say that there cannot be a question of law within s 44 of the AAT Act merely because it is necessary to examine the handling of the facts by the Tribunal and also because at most the question would be a question of mixed fact and law and not a pure question of law.

82    Thus the matter comes down to two questions, one is whether there is any legal error in relation to the finding that the applicant suffered an injury other than a disease and the second is whether in those circumstances, as a matter of construction, s 7(2) or s 7(3) has any application.

83    On the first question I have identified, in my opinion the Tribunal was well aware of and applied the distinction drawn in Petkoska and approached the question by giving consideration to the precise evidence concerning the nature and incidents of the physiological changes which it found. The Tribunal referred at [50] to its earlier decision in Re Sandercock which had expressly considered Petkoska. I reject the applicant’s written submission at [26] that there was an error of law in that the Tribunal failed to consider or apply the test in Zickar and Petkoska. I note that that submission was withdrawn in the course of the hearing of the appeal before me.

84    The applicant then put the submission that, notwithstanding the explicit reference by the Tribunal to the test which the applicant pressed as the correct test, the Tribunal did not seem to consider whether there had been a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state or, if it did consider it, the Tribunal did not say why it found that there had been such a change. The Tribunal could not identify, and did not identify in its reasons, the submission went, any date or day that there was an ascertainable change in the physiological state. The Tribunal referred to some evidence in relation to damage to the hairs of the inner ear but this, the applicant submitted, was similar to Comcare v Etheridge where the asbestos fibres infiltrated the lung. The Tribunal found that gradual deterioration constituted an injury simpliciter under the SRC Act and, the applicant submitted, the Tribunal simply could not do that in law.

85    I was taken to Comcare v Etheridge in some detail, at [27] and [32]-[52], especially at [45], but I see nothing in it which shows that it was an error of law for the Tribunal to proceed as it did in the present case. This is not surprising since Comcare v Etheridge was an asbestos case. Also it was concerned relevantly with the construction of the 1971 Act. Further, in the passages to which I was taken, the Full Court was dealing with the question whether the mere experiencing of an event or condition necessary for the development of the disease contracted by gradual process was capable of constituting an “injury” within the meaning of the relevant legislation in force before the SRC Act. The Court answered that question “No”. But that, in my view, does not show error in the present case. To reason as the applicant’s submissions did tends to confuse findings of fact with questions of construction of the legislation. It does not show that the present Tribunal erred in law in misunderstanding the word “injury” or, indeed, that it erred in law in finding the facts as it did.

86    In my view the clear finding of fact of the Tribunal in the present case was that a number of events each constituted an injury and, over the years, had a cumulative impact. The Tribunal said that, in the case of the applicant’s hearing loss, the assault in 1996 and the loud continuous noise from driving buses which damaged the sensitive hair cells of the inner ear were injuries. I see no legal error in so finding. It is also relevant that the Tribunal applied the distinction between injury and disease in stating that the applicant’s age-related and familial predisposition would be characterised as slowly degenerating or congenital conditions and hence, if employment-related, diseases. In relation to tinnitus, the Tribunal found that the applicant first noticed tinnitus following the assault in 1996 and that the condition had been perpetuated and worsened by association with his general hearing loss, both being characterised as injuries. I see no legal error in so finding. Again the Tribunal noted that the applicant’s presbyacusis and familial predisposition would be characterised as diseases.

87    I note that the applicant did not plead a “no evidence” ground nor put a “no evidence” submission.

88    I do not accept that, in order to find as it did, the Tribunal was required to make a finding of fact as to the specific date on which each such injury occurred. It would be placing a gloss on the words used in Petkoska at [39] per Gleeson CJ and Kirby J to read “ascertainable” as “ascertained” to the effect that each such damage to the applicant was required by the SRC Act to have a date attributed to it or that the Tribunal's reasons were deficient if no such date were so attributed. I also bear in mind that the words used in a judgment are not to be construed as if they were statutory language nor are they to be substituted for the words of the statute.

89    Insofar as the applicant contended that the Tribunal’s reasons in this respect were inadequate, I reject the contention as founded on a construction of the SRC Act or on an application of Petkoska which I do not accept. In other words, the alleged deficiency of reasons stood or fell with the underlying issue of construction or application.

90    I do not accept that any legal error is established by comparing [44], [45], [48] and [56] of the Tribunal’s reasons with its ultimate findings. Not only are the findings in the earlier paragraphs to do with the question of whether the claim was brought within time but also, and more significantly, I see no inconsistency amounting to a legal error between the findings of injury and the developing nature of the injury such that a person may be prevented from becoming aware of the deterioration of their hearing.

91    At one point it was put in oral submissions to me, on behalf of the applicant, that the error of law attributed to the Tribunal was founded in a lack of procedural fairness as neither party had put to the Tribunal that the applicant's hearing loss should be characterised as an injury. I reject this submission for two reasons. The first is that it was not open on the notice of appeal and no application to amend was made to me by counsel for the applicant. Second, I was taken to the transcript of the hearing before the Tribunal where the Tribunal raised the question and referred to its earlier decision in Re Sandercock where it had decided, after considering whether hearing loss should be characterised as “injury” or “disease” for the purposes of the SRC Act, that on the facts in that case hearing loss and tinnitus constituted an injury. Counsel for the applicant said he was aware of that decision. It was not then said, and in my opinion it is not maintainable now, that characterising the hearing loss as an “injury” was not open on the statements of facts, issues and contentions or written submissions in the Tribunal. Also, it is not clear to me why an applicant would seek to dissuade the Tribunal from that approach since, as the Full Court observed in Australian Postal Corporation v Burch (1998) 85 FCR 264 at 268, the necessary relationship to employment may be, generally speaking, less readily susceptible to proof of work connection for disease than injury and an employee seeking compensation, like the respondent in that case, will naturally enough try first to show that he or she has suffered an injury (in the ordinary sense).

92    For these reasons, I do not accept that the finding of the Tribunal that the injury in respect of the hearing loss was the damage to the sensitive hair cells of the inner ear involved a legal error.

93    Finally and independently, I note that Comcare v Etheridge concerned the definition of “injury” then contained in s 4(1) of the SRC Act, relevantly (a) a disease suffered by an employee; or (b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment. Justice Branson, with whom Spender and Nicholson JJ agreed, said at [26] that it was not suggested that the word “injury” there used was used in other than its ordinary or common meaning. Consequently, her Honour said, the question of whether facts as found fell within the meaning of the word “injury” as defined was a question of fact rather than a question of law, citing Hope v Bathurst City Council (1980) 144 CLR 1 per Mason J at 7. Whether, in light of the terms of the present definition and the extensive judicial exegesis surrounding this word, that conclusion sits comfortably with the approach of the Full Court in Industry Research & Development Board v Bridgestone Australia Ltd (2001) 109 FCR 564 at [49]-[62] per Lindgren J with whom, at [86], Mansfield J agreed was not argued before me and I say no more about it.

94    As to the second of these questions, s 5A provides, so far as presently relevant:

5A  Definition of injury

(1)    In this Act:

injury means:

(a)    a disease suffered by an employee; or

(b)      an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or

(c)      an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;

….

95    Sections 7(2) and (3) are in the following terms:

(2)    Where an employee contracts a disease, any employment in which he or she was engaged by the Commonwealth or a licensed corporation at any time before symptoms of the disease first became apparent shall, unless the contrary is established, be taken, for the purposes of this Act, to have contributed, to a significant degree, to the contraction of the disease if the incidence of that disease among persons who have engaged in such employment is significantly greater than the incidence of the disease among persons who have engaged in other employment in the place where the employee is ordinarily employed.

(3)    Where an employee suffers an aggravation of a disease, any employment in which he or she was engaged by the Commonwealth or a licensed corporation at any time before symptoms of the aggravation first became apparent shall, unless the contrary is established, be taken, for the purposes of this Act, to have contributed, to a significant degree, to the aggravation if the incidence of the aggravation of that disease among persons suffering from it who have engaged in such employment is significantly greater than the incidence of the aggravation of that disease among persons suffering from it who have engaged in other employment in the place where the employee was ordinarily employed.

96    The first of these two provisions in s 7 is concerned with the contracting of a disease and the second with the suffering of an aggravation of the disease.

97    In my opinion the second of the two questions I have identified, that is, whether in circumstances where the Tribunal has found that the applicant suffered an injury other than a disease, s 7(2) or s 7(3) have any application must, as a matter of construction, be answered unfavourably to the applicant. The misconception involved in the submission is that s 7(2) or s 7(3) applied by virtue of the definition in s 5A.

98    It is of course true to say that the definition of “injury” includes, unless the contrary intention appears, “a disease suffered by an employee”. But that is a definition section. It shows what the legislature means by the word “injury”. It does not authorise the substitution of the word “injury” wherever the word “disease” appears in the SRC Act. As it seems to me, this is the construction for which the applicant contends. I reject this submission.

99    In my opinion absent any error in relation to the first question I have identified, this ground must fail because the Tribunal found at [53] that the claimed condition of hearing loss was an injury other than a disease and at [56] that his claimed condition of tinnitus was an injury other than a disease. It follows from these findings that neither s 7(2) nor s 7(3) were engaged. It also follows that the Tribunal was not obliged to give any reasons for that self-evident conclusion of law. Alternatively, there was no material error in the Tribunal not giving reasons for that conclusion because this Court has held that on the facts found and conclusions reached by the Tribunal neither s 7(2) nor s 7(3) were engaged.

100    I assume, but it is not of present relevance, that the parties before the Tribunal put submissions about s 7(2) and s 7(3) because one of the issues before the Tribunal was whether the claimed conditions of hearing loss and tinnitus were an injury other than a disease or whether they were, or one of them was, a disease. Only in the case of a finding of disease may s 7(2) and s 7(3) have been engaged.

101    For these reasons the grounds relevant to the second question, whether put as a failure to consider a submission of substance or a failure to give reasons, fail.

Conclusion

102    I dismiss the appeal. The respondent sought to be heard on costs if the applicant were unsuccessful and for that reason I reserve the question of costs.

Associate:

Dated:    9 April 2014