Federal Court of Australia

Pacific National Services Pty Ltd v Tsoumbris [2024] FCA 324

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is allowed.

2.    The decision of the Administrative Appeals Tribunal made on 10 October 2022 is set aside.

3.    The respondent’s application for review of the applicant’s decision denying liability for compensation be remitted to the Tribunal for determination according to law.

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

REASONS FOR JUDGMENT

CHARLESWORTH J

1    William Tsoumbris began working on the railways in 1966 when he was 16 years old. He retired on 8 March 2014, aged 64. At that time, Mr Tsoumbris had been employed by Pacific National Services Pty Ltd as a train driver for 20 years. Before that he had worked for at least two other employers in various roles in the railways.

2    Throughout his working life Mr Tsoumbris was exposed to constant excessive noise. A test done on 3 December 2020 (six years after his retirement) showed that his hearing had deteriorated. It is common ground that he has permanent binaural hearing loss.

3    The Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) establishes a framework for the rehabilitation and compensation of employees of the Commonwealth and certain corporations who have sustained work related injuries.

4    Since 1 July 2001, Pacific National has been licenced under Pt VII of the SRC Act to manage claims and to accept liability for them. The scope of the licence is such that it authorises Pacific National to accept liability in respect of injuries which “occurred” on and from 1 July 2001. I will refer to that as the Licence Date. Mr Tsoumbris first commenced his employment with Pacific National in 1994. Accordingly, some of his employment with Pacific National fell before the Licence Date and some of it after. To the extent that Pacific National is not liable to compensate Mr Tsoumbris under the SRC Act, he may have rights to compensation under State law.

5    Subject to Part II, s 14(1) of the SRC Act imposes a liability on (relevantly) licensed corporations to pay compensation “in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment”. The word “injury” is defined in s 5A (extracted at [18] below) to include a disease.

6    Importantly, the SRC Act operates differently as between an injury being a disease and an injury other than a disease, including by reason of s 7 (extracted at [25] below). It contains a deeming provision in s 7(4), supplying a date on which “an injury, being a disease” is taken to be sustained.

7    Section 24 of the SRC Act is contained in Pt II. Section 24(1) provides that where an injury to an employee results in a permanent impairment, Comcare (and here an eligible corporation) is liable to pay compensation to the employee in respect of the injury. However, compensation is not payable under s 24 if an employee has a permanent impairment that is a hearing loss, and it is determined that the binaural hearing loss is less than 5%:  SRC Act, s 24(7A). Section 24(7A) applies whether or not the injury is characterised as an injury being a disease, or an injury other than a disease.

8    Mr Tsoumbris made a claim under the SRC Act for a lump sum referable to his hearing impairment. That claim was rejected, and the rejection was confirmed on internal review. In its decision, Pacific National determined that the injury or injuries suffered by Mr Tsoumbris after the Licence Date resulted in incapacity falling below the minimum threshold specified in s 24(7A) of the SRC Act, notwithstanding that the loss suffered over the course of the whole of his employment with Pacific National exceeded the minimum. The essence of the decision was that whatever be the total hearing loss, Pacific National was only liable for that part of it occasioned in the period of employment occurring after the Licence Date.

9    Mr Tsoumbris sought a review of Pacific National’s decision in the Administrative Appeals Tribunal. For reasons examined below, the Tribunal concluded that s 7(4) of the SRC Act applied so as to supply a deemed date upon which the injury was sustained, being 3 December 2020 (the date upon which Mr Tsoumbris first sought medical treatment). As a consequence, it set aside the decision on review and substituted it with a decision expressed in the following way:

(a)    The Applicant suffers an impairment as a result of an injury that arose out of and in the course of his employment; and

(b)    The impairment is permanent; and

(c)    All reasonable rehabilitation treatment has been undertaken; and

(d)    The degree of impairment attributable to his binaural hearing loss equates 12% of the whole person as per the Guide to Assessment of the Degree of Permanent Impairment Edition 2.1 and a 5% tinnitus loading;

Outcome of the appeal

10    The issues arising on the appeal and on a notice of contention are outlined at [59] to [66] below. They include an invitation by Pacific National to make limited findings of fact so as to avoid the application for review being remitted to the Tribunal for rehearing in the event that any one of its grounds are established.

11    For the reasons that follow, some grounds of appeal should be upheld and the Tribunal’s decision should be set aside.

12    It is not appropriate to make the findings of fact urged by Pacific National. Nor is it appropriate to proceed on an alternative factual basis agitated by Mr Tsoumbris by a notice of contention.

13    To make sense of the issues arising both on the appeal and on the notice of contention it is necessary to first summarise the Tribunal’s reasons and to identify some additional provisions of the SRC Act upon which the questions of law turn.

The SRC Act

14    The word “employee” is defined in s 5(1) to include a person who is employed by a licensed corporation. Part II of the SRC Act is titled “Compensation”. Section 14(1) imposes a liability to pay compensation expressed as follows:

(1)    Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

15    For relevant purposes, references to Comcare in that and other provisions includes a reference to a licensed corporation:  SRC Act, s 4(10A).

16    The imposed liability is to pay compensation “in respect of an injury”. It arises only if there is a causal connection between the injury and (relevantly) an impairment.

17    The word “impairment” is defined exhaustively to mean “the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.” It is apparent from s 14(1) that an injury is a thing or an event that is distinct from the impairment caused by it.

18    The word “injury” is exhaustively defined in s 5A as follows:

(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;

but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment.

19    Paragraph (a) of the definition may be understood to enlarge on what might ordinarily be conceived of as an injury, so as to include a disease. The definition is structured in a way that identifies two types of “injury”:  an injury that is a disease mentioned in para (a) and an injury (other than a disease) mentioned in paras (b) and (c). Somewhat unhelpfully, the definition of the word “injury” employs, within paras (b) and (c) the word “injury”. Whatever be the internal meaning of the word in paras (b) and (c), it is plain that the concepts referred to do not encompass anything that falls within para (a). As mentioned above, it must also be something distinct from an impairment (as defined). Putting that difficulty aside, it is plain that references elsewhere in the SRC Act to an “injury (other than a disease)” and an “injury, being a disease” must be understood in the context of s 5A and the mutually exclusive categories of injury established by it.

20    A further observation is that paras (b) and (c) refer to an injury or aggravation of an injury that arose out of, or in the course of, the employee’s employment. That criterion is not present in para (a). Rather, the connection between an injury (being a disease) and the employee’s employment is accommodated within the definition of the word “disease”, in s 5B of the SRC Act. It provides:

(1)    In this Act:

disease means:

(a)    an ailment suffered by an employee; or

(b)    an aggravation of such an ailment;

that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.

(2)    In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:

(a)    the duration of the employment;

(b)    the nature of, and particular tasks involved in, the employment;

(c)    any predisposition of the employee to the ailment or aggravation;

(d)    any activities of the employee not related to the employment;

(e)    any other matters affecting the employee’s health.

This subsection does not limit the matters that may be taken into account.

21    The word “aggravation” as it appears in both s 5A and s 5B is defined in s 4 to include “acceleration or recurrence”.

22    An “ailment” is defined in s 4 to mean “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)”.

23    The expression “significant degree” means a degree that is substantially more than material:  SRC Act, s 5(3).

24    Section 6 of the SRC Act describes (non-exhaustively) the circumstances when an injury (or an aggravation of an injury) may be treated as having arisen out of, or in the course of, his or her employment. It is well established that an injury will occur in the course of employment if it occurs during the term of employment and in the workplace.

25    Section 7(4) of the SRC Act is extracted below. Given its importance in the resolution of the issues arising on this appeal, it should be considered in the context of the subsections preceding it:

7 Provisions relating to diseases

(1)    Where:

(a)    an employee has suffered, or is suffering, from a disease or the death of an employee results from a disease;

(b)    the disease is of a kind specified by the Minister, by legislative instrument, as a disease related to employment of a kind specified in the instrument; and

(c)    the employee was, at any time before symptoms of the disease first became apparent, engaged by the Commonwealth or a licensed corporation in employment of that kind;

the employment in which the employee was so engaged shall, for the purposes of this Act, be taken to have contributed, to a significant degree, to the contraction of the disease, unless the contrary is established.

(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.

(4)    For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:

(a)    the employee first sought medical treatment for the disease, or aggravation; or

(b)    the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;

whichever happens first.

(emphasis added)

26    Section 24(1) imposes and conditions the liability on employers to pay compensation to employees in respect of injuries that result in permanent impairment. Injury in s 24 includes injuries being a disease and injuries not being a disease.

27    The amount of compensation payable must not exceed the maximum amount of $80,000.00:  SRC Act, s 24(4) and (9). The amount of compensation is calculated by applying the same percentage to the maximum amount as the employer determines is the degree of permanent impairment resulting from the injury in question:  SRC Act, s 24(5). To illustrate, if an employer determines that the degree of permanent impairment is 10%, then the compensation payable will be 10% of $80,000.00, namely $8,000.00.

28    Section 24 imposes minimum thresholds of impairment that must be met for compensation to be payable. Section 24(7) provides that, subject to s 25, no compensation is payable if the employee has a permanent impairment other than hearing loss and the employer determines that the degree of permanent impairment is less than 10%. As mentioned earlier, s 24(7A) lowers that threshold to 5% in relation to impairment that is a hearing loss.

29    In cases where an employer is liable to pay compensation in respect of an injury under s 24(7A), the employer will also be liable to pay compensation for non-economic loss:  SRC Act, s 27.

Pacific National’s Licence

30    Under Pt VII of the SRC Act, the Safety, Rehabilitation and Compensation Commission may grant licences to eligible corporations:  SRC Act, s 98A. If a licence is granted, the SRC Act applies in relation to employees of the corporation in a similar way to the way in which it applies to employees of the Commonwealth:  SRC Act, s 98(3). However, its operation is subject to the acceptance by the corporation of the whole or part of the liability under the SRC Act for payments in respect of injury, loss or damage suffered by those employees. The application of the SRC Act is also subject to the conditions to which the licence is subject.

31    The Commission has the power to a grant licence for a specified period:  SRC Act, s 103. If a licence is granted, the Commission must (relevantly) determine the scope of the licence so far as concerns the degree to which, and the circumstances in which, the licensee may accept liability for compensation. Under s 108(3), the Commission may determine, as part of the scope of the licence, that the licensee may accept such liability in respect of such injury, loss, damage or death occurring at a time before the licence came into force.

32    The licence issued to Pacific National provided (in clause 7):

Part 3 – Scope of Licence

Scope of licence – acceptance of liability

7.    The Licensee is authorised to accept liability to pay compensation and other amounts under the SRC Act in respect of all injuries, loss or damage suffered by, or in respect of the death of, any of the employees of the Licensee where such injuries, loss, damage or death:

(a)    occur within the period of this licence; or

(b)    occurred during a period for which a previous SRC Act licence was in force.

33    It is common ground that there had not previously been an SRC Act licence issued to Pacific National as apparently assumed in clause 7(b). There is otherwise no indication that the Commission exercised the power in s 108(3) of the SRC Act to determine that Pacific National could accept liability in respect of injury, loss, damage or death occurring at a time before the licence in issue in this proceeding came into force (notwithstanding that there existed at least one employee, Mr Tsoumbris, whose employment covered periods both before and after the Licence Date).

34    It follows that for the purposes of the SRC Act, Pacific National was authorised (and agreed) to accept liability only in respect of injuries, loss, damage or death that “occurred” within the period of the licence, that is, on and from the Licence Date. That phrase should be understood in the context of the SRC Act as a whole, which contains provisions to identify (including by fictional deeming) when an injury has occurred.

35    The consequence of there being no prior licence in force (as wrongly suggested on the face of the licence) is that employees such as Mr Tsoumbris may be left to pursue rights of compensation under State law in respect of periods of employment with Pacific National that do not fall within the scope of the licence. Another consequence is that compensation may not be payable at all because of the combined operation of s 24(7A) and the scope of the licence, notwithstanding that the degree of impairment resulting in injury or aggravation attributable to the whole of the employment period would otherwise exceed the threshold. That seems to me to be a consequence of a licence having been issued with apparently little regard to how s 24(7A) might affect the rights of employees whose terms of employment straddle either side of the Licence Date.

The Tribunal’s reasons

36    The Tribunal’s reasons are published as Tsoumbris v Pacific National Services Pty Ltd (unreported, Administrative Appeals Tribunal, Member A Ward, 10 October 2022).

37    After briefly introducing the issues, the Tribunal noted Pacific National’s acceptance that once noise-induced hearing loss occurs it is permanent, and that Mr Tsoumbris therefore had a “permanent impairment” for the purposes of the SRC Act. It said that there was no doubt that his exposure to noise over the course of his employment had caused damage to his ears with resultant impact on his hearing. It said that there was some doubt as to “when the damage commenced” because of a lack of testing over the duration of his employment.

38    The Tribunal identified the first day Mr Tsoumbris obtained medical treatment for his hearing problem as 3 December 2020, and that his later claim for industrial deafness had been supported by Dr Paul Fagan. It noted that Mr Tsoumbris had made a claim for a hearing aid which had not been disputed, but that his claim under s 24 based on a permanent impairment had been rejected because Pacific National had used a mathematical calculation to arrive at a conclusion that the hearing loss “did not equate to a permanent impairment of greater than 5 percent”. That decision had been confirmed on internal review on 30 July 2021, that being the decision before the Tribunal for review.

39    The Tribunal heard evidence from Mr Tsoumbris as well medical experts Dr Fagan (who produced three reports) and Mr Malcom Baxter (who produced one report).

40    The Tribunal observed that the licence issued to Pacific National did not extend to injuries that had been suffered by an employee prior to the Licence Date. It noted Pacific National’s argument that it was only responsible for the injuries or aggravations it caused in the period following that date. It noted that whilst the Commission had the power under s 103 and s 108(3) of the SRC Act to determine that a licensee may accept liability arising from an injury before the licence comes into force, that had not occurred in Mr Tsoumbris’ case:  cf Grixti v Linfox Australia Ltd (2009) 111 ALD 668.

41    The Tribunal went on to describe Mr Tsoumbris as a very impressive witness who had given an honest and forthright account about his career and his exposure to high levels of noise almost every day of his working life. It said that there had been no attack on his credibility nor on the account he had given to the Tribunal or to the doctors who had assessed him. It said that there was no suggestion of any other factor affecting Mr Tsoumbris’ hearing over time (other than the ageing process which each expert had taken into account).

42    The Tribunal gave a detailed account of Mr Tsoumbris’ employment history, the sources and nature of noise exposure and the lack of any hearing protection provided by his successive employers, including Pacific National. It said that there had been no let up in his exposure to noise over his work with the railways and that the dangerous exposure had been constant over his work history. It said that the lack of care in providing hearing protection or regular medical checks was obvious. It found that Mr Tsoumbris had not noticed hearing loss in the first 10 years after he became a train driver. It continued (at [44]):

The lack of regular medical assessments causes difficulty in this case when trying to measure when the actual damage to the Applicant’s hearing was done because it turns out that the timing of that is important to the Respondent in the circumstances of the Applicant’s particular employment with the Respondent and the granting of the licence. There was a period of about 6 years when the Applicant was employed by Pacific National before they obtained the licence.

43    The Tribunal went on to make findings about the mechanism of hearing loss and the workings of the ear, based on the oral evidence of Dr Fagan and Mr Baxter. Its findings on that topic may be summarised as follows:

(1)    There are three parts to the ear, the outer ear (comprising the visible part of the ear, and the external ear canal ending at the ear drum) the middle ear (comprising the inside of the ear drum and three small bones, known as stapes, held in an air filled space in the head) and the inner ear.

(2)    In the inner ear, the cochlea is a fluid-filled structure that vibrates when struck by the stapes. The vibrations are converted into electric signals by specialised hair cells. A function of the hair cells is to amplify quiet sounds, and to moderate the signal generated by loud sounds.

(3)    Loud sound can cause the hair cells to become overwhelmed and to become permanently damaged. The damage could be caused by a single loud sound or (as in Mr Tsoumbris’ case) by repeated exposure to loud sound.

(4)    The result of damage to the hair cells is a deterioration in the quality of hearing, measurable with an audiogram which could present in a graph to signify when actual significant damage was occurring.

44    The Tribunal said that the experts recognised the difficulties in measuring Mr Tsoumbris’ hearing loss because no audiograms had been taken prior to 3 December 2020. It said (at [54]):

Dr Fagan thought it was virtually impossible to go back and pinpoint when the damage occurred and that is an honest account of the problem facing any assessor, including the Tribunal. In the initial rejection of the application, an artificial mathematical equation was used to try and explain what damage was caused by the post 2001 employment and what was not.  …

45    The Tribunal said that Mr Baxter used a similar equation to work out how to apportion the effect of Mr Tsoumbris’ work at Pacific National in the period after the Licence Date on his level of hearing. It said that both processes “are not factual, rather just a measure of convenience in the absence of contemporaneous evidence”.

46    The Tribunal said that had an audiogram been taken upon the commencement of the licence there would have been a reference point by which increasing hearing loss could be measured over the period of the licence. It said that had that been done, then if there was already hearing loss at the beginning of the licence then Mr Tsoumbris would “presumably” have a claim pursuant to State based compensation systems in respect of it.

47    The Tribunal then turned to consider the extent of Mr Tsoumbris’ hearing loss. It said that the extent of loss had been measured by audiograms performed on 13 August 2019, 29 September 2020, 2 November 2020, 3 December 2020 and 8 November 2020. It summarised Dr Fagan’s methodology, which resulted in a conclusion that the measure of whole person impairment under Ch 7.1 of the Comcare Guidelines was 12%. To that, Dr Fagan added a further 5% to account for tinnitus as later diagnosed.

48    Mr Baxter had calculated a total percentage loss of 12.2% (including tinnitus), from which he deducted 3.8% to account for aged-related deterioration, arriving at 8.4%. In doing so, he relied on an earlier audiogram to that upon which Dr Fagan had relied because he considered it to be more proximate to the last date of employment-related noise exposure. Mr Baxter had then made a further adjustment to identify the deterioration that occurred after the Licence Date, reaching a whole person impairment of 4.2%, being less than the 5% statutory minimum.

49    The Tribunal said that it accepted the audiogram relied upon by Dr Fagan was an accurate representation of hearing loss, as it fit comfortably with the undisputed history of the “impact of the injury” upon Mr Tsoumbris.

50    In determining how the SRC Act applied, the Tribunal commenced with a summary of the judgment of Perry J in Comcare v Kemp (2020) 171 ALD 537 which it said gave rise to a “similar issue” to that arising in Mr Tsoumbris’ case. The Tribunal noted that in Kemp, Perry J had applied s 7(4) of the SRC Act to address the difficulty that industrial deafness was a disease that may develop incrementally without a person being aware of its development. Later in its reasons the Tribunal extracted this from the reasons in Kemp (at [75]):

…  The policy underlying the provision is clear:  as in the case of industrial deafness, a disease may develop incrementally without the person being aware of its development and it may prove difficult, if not impossible, later to determine a day on which the disease was first ‘sustained’. Section 7(4) is intended to address that difficulty by positing a number of possible alternative events by reference to which an employee ‘shall be taken to have sustained an injury, being a disease, or aggravation of a disease’ for the purposes of the Act.  …

51    The Tribunal observed that in its original decision made on 24 June 2021 Pacific National had itself applied s 7(4) of the SRC Act so as to conclude that the date of Mr Tsoumbris’ injury was 3 December 2020.

52    The next portion of the Tribunal’s reasons is said by Pacific National to include a critical finding of fact and so is set out in full:

70.    In the decision of Re O’Kane & Comcare, the Tribunal concluded that ‘loud continuous noise’ which damaged the sensitive hair cells of the inner ears, perpetuated and worsened by driving noisy buses, would be an ‘injury’, being, ‘an injury (other than a disease)’ for the purpose of applying the SRC Act.

71.    With further consideration of Re O’Kane, in that case, the Applicant had hearing issues caused during his employment of driving a bus. There was also the issue of an assault to be taken into account but for relevant purposes, the first instance decision, that loud and continuous noise from driving buses damaged sensitive hair cells of the inner ears and was perpetually worsened by the continuous driving, found it was an ‘injury’ for the purpose of the SRC Act. This was upheld by the Federal Court which noted in paragraph 86 that, ‘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’.

72.    In this matter, the Tribunal considers a similar approach applies on the facts. We have the injurious presence of the loud noise, the intensity of which became worse when he became a driver. There is no distracting assault or other possible cause here as was the case in Re O’Kane but the underlying nature of injury from the continuous noise exposure is the same.

(footnotes omitted)

53    The Tribunal referred repeatedly to the difficulty in assessing when the injury occurred given the uncertain state of the evidence. It said that conundrum was not uncommon in hearing loss cases.

54    It found that the date of the injury in the circumstances it had described was to be identified pursuant to s 7 of the SRC Act. That, it said, was the nature of the decision made in Kemp and was consistent with how Pacific National had acted in accepting the hearing loss claim (noting that acceptance was not binding).

55    The Tribunal later turned to consider the scope of Pacific National’s licence. It summarised the facts and outcome in the earlier Tribunal decision of Grixti, in which the impairment of a person claiming against a licenced employer had not been shown to have increased after the date on which the licence first operated. That, it said, was an importance difference. It said that the date of Mr Tsoumbris’ injury was important and that the procedure for assessing it was contained in s 7(4) of the SRC Act. The Tribunal continued (at [98]):

The specific time when damage was caused is unable to be assessed by clear evidence. Reference has been made to generalities and what would happen in the usual course of events. There is a danger of reliance on such generalities because really what is necessary is what happened in this case.

(original emphasis)

56    The Tribunal said that whilst the methodology employed by the experts had been noted, it was not evidence that was applicable to Mr Tsoumbris’ situation. It repeated that testing had not been undertaken, even though there were opportunities where it could have been. The Tribunal continued:

100.    …  Thus, we are left to rely on the clear provisions of the SRC Act so as to affix a date for injury, and the consequences follow.

101.    Here, because of the difficulty in just such a case, there is no measuring point at all in terms of medical assessment until the Applicant had retired.

102.    Therefore, the situation facing the Tribunal in Grixti does not apply here because the operation of section 7(4) applies, and the date of the deemed injury is 3 December 2020. The Grixti case involved a much more scientific approach to be made to the actual hearing loss as a consequence of the earlier claim for it, which information is unavailable here. The Tribunal is forced to use the remedy provided by the statute. The Tribunal has noted and analysed the detailed written and oral submissions of the Respondent on these points, but on the facts of this matter does not agree. Not every issue raised has been addressed in these reasons - some of the issues have become otiose given the findings - but there is enough detail to understand the decision reached.

(footnote omitted)

57    The Tribunal said that hearing tests at relevant times of pre-employment and the time of the rearranging of “the insurance regime” may well have led to a different result, but “this now is speculation”. It said that it saw no basis in the legislation to undertake the apportionment course adopted in Pacific National’s decision, nor to adopt the outcome of the exercise adopted by Mr Baxter. It said that such a course was inconsistent with s 7(4) “as applicable on the facts of this matter”. Accordingly, Mr Tsoumbris was entitled to the full extent of the assessment impairment with no reduction. It repeated its preference for the calculation of Dr Fagan to the extent that it arrived at a whole of hearing loss percentage of 12%, with a 5% loading for tinnitus.

58    The Tribunal then substituted the decision on review with the four sentences extracted at [9] above. The first of those sentences was that Mr Tsoumbris suffers an impairment “as a result of an injury that arose out of and in the course of his employment”. It will now be apparent that that form of words is taken from para (b) of the definition of “injury” in s 5A of the SRC Act.

Issues arising on the appeal

59    Pacific National brings this appeal from the Tribunal’s decision under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). Such an appeal is confined to questions of law.

60    The notice of appeal asserts five grounds of appeal said to give rise to five questions of law.

61    The first question is whether the Tribunal misconstrued and/or misapplied s 7(4) of the SRC Act. The next two questions reframe the same issue in terms of whether the Tribunal exceeded or failed to exercise its jurisdiction or otherwise erred in law. The fourth and fifth questions are whether the Tribunal failed to “mention one, or more than one, contention made by Pacific National” or “failed to provide reasons to the standard required by law”.

62    The fourth and fifth questions are aligned with the fourth and fifth grounds. They allege that the Tribunal failed to mention Pacific National’s submissions as to why s 7(4) of the SRC Act was inapplicable which (if accepted) would have affected the outcome. By ground 5 it is alleged that the Tribunal failed to give reasons for rejecting (if it did) Pacific National’s contentions on that topic. The particular submissions that the Tribunal is alleged to have ignored or failed to grapple with are the same submissions made before this Court in connection with the first to third grounds of appeal. They in turn allege that the Tribunal:

(1)    misconstrued and/or misapplied s 7(4) of the SRC Act (ground 1);

(2)    exceeded its jurisdiction or otherwise erred in law by determining Pacific National to be liable to pay compensation to Mr Tsoumbris, which exceeded the scope of Pacific National’s authority to accept liability under the Act (ground 2); and

(3)    failed to exercise its jurisdiction or otherwise erred in law by failing to determine the degree of Mr Tsoumbris’ binaural hearing loss impairment and failed to find, as it was obliged to do, that it was not satisfied that the relevant impairment was 5% or greater (ground 3).

63    Ground 3 further alleges, in the alternative, that the Tribunal was bound to make findings of fact “on the balance of probabilities doing the best it could with the materials/evidence available to it”.

64    On an appeal under s 44(1) of the AAT Act, this Court may make findings of fact if the findings are not inconsistent with the findings of fact made by the Tribunal and it appears convenient to make the findings having regard to certain matters:  AAT Act, s 44(7). In doing so, the Court may have regard to evidence given in the proceeding before the Tribunal and receive further evidence:  AAT Act, s 44(8).

65    By its notice of appeal, Pacific National asks the Court to make a finding that the binaural hearing loss suffered by Mr Tsoumbris resulting from injury/injuries suffered in the course of his employment with Pacific National as a licensee is 1.75%. In the alternative, it asks the Court to find that the binaural hearing loss suffered by Mr Tsoumbris is less than 5%, or cannot be assessed as 5% or greater, for the purposes of s 24(7A) of the SRC Act.

66    Mr Tsoumbris relies on a notice of contention. It contains a statement to the effect that the Tribunal reasoned that it was “forced to use the remedy” provided for in s 7(4) of the SRC Act because the specific time when damage was caused was unable to be assessed by clear evidence. Mr Tsoumbris then contends (at [1.2]):

…the Tribunal was also able to apply s.7(4) and s.7 generally to the found facts in this matter - as gradually acquired noise induced hearing loss is a disease ‘of a progressive type’ which ‘does not manifest itself in the kind of sudden physiological change or disturbance of the normal physiological state that will constitute an ‘injury’ in the primary sense’ and provisions such as s.7 provide ‘alternative and additional heads of entitlement’ to workers compensation benefits. (Kennedy Cleaning Services v Petkoska [2000] HCA 45 (at 40)

67    Rather than address each question, ground or contention in turn, I prefer to identify and resolve the issues arising on the appeal and the notice of contention under the headings that follow.

Erroneous reason for resorting to s 7(4)

68    As fairly recognised on the notice of contention, the Tribunal proceeded from an assumption that s 7(4) was a provision that could be resorted to in all cases where the date upon which an injury is first sustained cannot be ascertained on the evidence. It referred to s 7(4) supplying a “remedy” in such cases to overcome perceived inadequacies in the evidence in determining whether Mr Tsoumbris’ injury occurred in the period covered by Pacific National’s licence. From the conclusion reached under s 7(4) of the SRC Act (namely that the “injury” was first sustained on 3 December 2020), the Tribunal reasoned that Pacific National was liable to compensate Mr Tsoumbris in respect of the whole of the impairment, presumably because the injury (and hence the whole of the impairment caused by it) could be deemed to have first been sustained within the period covered by the licence.

69    The reasons of the Tribunal disclose no express acknowledgment that s 7(4) of the SRC Act only applies in a case where an employee has suffered an “injury, being a disease”. Nor do the reasons contain an express finding that Mr Tsoumbris in fact suffered from an “injury, being a disease”. More specifically, there is no consideration of whether or not Mr Tsoumbris suffered from an ailment or an aggravation of an ailment that was contributed to, to a significant degree, by Mr Tsoumbris’ employment by Pacific National within the meaning of s 5B.

70    For Pacific National it was argued that the Tribunal applied s 7(4) after first making a factual finding that Mr Tsoumbris had suffered an injury other than a disease. That finding, it submitted, was expressed at [70] – [72] of the Tribunal’s reasons, extracted at [52] above, read together with the Tribunal’s factual findings about the workings of the inner ear and the physiological causes of hearing loss. It was submitted that the Tribunal must be taken to have made the same finding as that made by a different Tribunal, in a decision subject to appeal to this Court in O’Kane v Comcare (2014) 221 FCR 482. It is true that in that case industrial deafness suffered by the claimant was characterised as an injury other than a disease. On appeal, Robertson J rejected a submission that any part of s 7 could by applied by virtue of the definition of the word “disease” in s 5A of the SRC Act. His Honour said (at [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.  …

71    I acknowledge the force of the submission that the Tribunal considered the facts of the case to be analogous to the facts in O’Kane. But I am not satisfied that passage of the reasons contains an equivalent conclusion to that reached in O’Kane as to which limb of the “injury” definition applied. That is in part because the Tribunal turned to apply s 7(4) of the SRC Act notwithstanding that Robertson J had expressly identified error in that approach where the “disease” limb of the definition was not engaged. It is also because the Tribunal went on to say that the facts were analogous to those arising in Kemp. The reliance on Kemp was, in turn, the basis for resorting to s 7(4) of the SRC Act, specifically because of the policy consideration that a disease may develop incrementally without a person being aware of its development. It is apparent that the Tribunal considered that policy consideration to be somehow apposite in Mr Tsoumbris’ case. In Kemp the characterisation of the injury as an injury being a disease was not disputed, but that question was disputed before the Tribunal in Mr Tsoumbris’ case and required a resolution. Having applied s 7(4) of the SRC Act, the Tribunal then substituted a decision which referred to there being an “injury in the course of employment”, a form of words that is inapposite in cases where there is an injury being a disease.

72    The result is a confusing mix of ideas, all with an underlying assumption that s 7(4)(a) could be applied to supply a date (irrespective of s 7(4)(b)) in all cases where it is perceived that the date on which the onset of a disease or the sustaining of an injury cannot be determined on the evidence. The Tribunal justified its resort to s 7(4) for that purpose because (among other things) it considered that Pacific National could have obtained clearer evidence by conducting testing (especially at or prior to the Licence Date) but it did not.

73    Even if there had been a finding that Mr Tsoumbris suffered from a disease within the meaning of s 5B, the Tribunal proceeded to apply s 7(4) in a way that ignored the words that follow s 7(4)(a). It engaged in no reasoning and made no factual finding as to the day on which “the disease or aggravation resulted in … the impairment”, and it did not ask which of the days supplied under subs (a) and (b) happened first. It erroneously assumed that s 7(4) was a means of avoiding temporal questions of the kind to which s 7(4)(b) refers. The Tribunal could not overcome evidentiary difficulties in determining when the “disease” (if there be one) was sustained by resorting to s 7(4)(a) alone. Assuming that s 7 could apply, nothing in s 7(4) of the SRC Act entitled the Tribunal to avoid the question of when the disease (if there be one) first resulted in the impairment.

74    As a consequence of those errors, the Tribunal erroneously proceeded from the premise that Mr Tsoumbris first sustained an injury on 3 December 2020. It concluded that the injury “occurred” on that date for the purposes of clause 7 of Pacific National’s licence, and so reasoned (at least implicitly) that the binaural hearing loss occurred within the period covered by the licence. All of that reasoning proceeded from the erroneous application of s 7(4) of the SRC Act as identified above.

75    Ground 1 should be upheld, save that I have not accepted the contention that the Tribunal made a finding of fact to the effect that Mr Tsoumbris suffered from an injury other than a disease.

76    Ground 2 is upheld to the extent that the factual findings of the Tribunal did not support its conclusion (reached via the erroneous application of s 7(4) of the SRC Act) that Pacific National was liable for the whole of the impairment.

Adequacy of reasons

77    The Tribunal gave reasons in writing for its decision, as it was obliged to do under s 43 of the AAT Act. Section 43(3) required that the written reasons include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based. A failure to give reasons as required by s 43 constitutes an error of law:  Wonson v Comcare (2020) 276 FCR 613, Anastassiou and Abraham JJ (at [42]). The obligation will be satisfied if the Tribunal sets out those findings of fact which it considers to be material to the decision that it made, and the reasons for making that decision:  Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 (at [68]). Whether reasons for making a decision are adequate for that purpose is distinct from the question of whether the decision is affected by error.

78    At [102] of its reasons (extracted above) the Tribunal said that it was “forced to use the remedy provided for in the statute”. The “remedy” was erected as a reason for not grappling with Pacific National’s submissions on a range of critical questions, including implications flowing from the scope of its licence. The Tribunal’s reasoning was erroneous in a number of respects, but it is nonetheless sufficiently disclosed in the written reasons to enable this Court on appeal to discern to steps that were taken and the errors attending them. Ground 5 is not established.

79    Ground 4 is that the Tribunal “failed to mention one, or more than one, contention made by Pacific National”. The specific submissions said to have been ignored broadly fall within two categories. The first category of submissions concerns the questions of law and fact addressed thus far in these reasons, namely the proper application of s 7(4), its application only to cases in which there is an injury being a disease, and the question of whether Mr Tsoumbris suffered from an injury being a disease or an injury other than a disease. The reasons do not grapple with those questions, again because the Tribunal erroneously perceived that the answer to the issues arising on the review lay in s 7(4) of the SRC Act. The Tribunal did not grapple with the submissions that, at least in part, explained why its resort to s 7(4) of the SRC Act was itself erroneous. The fourth ground of appeal is upheld to that extent, but little turns on that conclusion for the outcome of this appeal.

80    The second category of submissions said to have been ignored relates to the expert evidence before the Tribunal. It will be considered below.

Findings of fact

81    Under s 44(7) of the AAT Act, this Court may make findings of fact on an appeal from a decision of the Tribunal if two conditions are met. The first condition is that the Court’s findings must not be inconsistent with findings of fact made by the Tribunal (other than findings made as a result of an error of law):  AAT Act, s 44(7)(a). The second condition is that it must appear to the Court that it is convenient to make the findings, having regard to matters referred to in s 44(7)(b). Both parties invite the Court to make findings so that the issues between them may be finally resolved.

Pacific National’s invitation

82    Pacific National invites the Court to make a finding that “the hearing loss suffered by … Mr Tsoumbris, resulting from injury/injuries suffered in the course of his employment by Pacific National as a licensee is 1.75%”. Alternatively, it invites the Court to find that “the binaural hearing loss suffered by Mr Tsoumbris is less than 5%, or cannot be assessed as 5% or greater, for the purpose of s 24(7A) of the [SCR Act]”.

83    Underlying that invitation is a submission that the Tribunal made an error fact that was a result of an error of law, being the erroneous application of s 7(4) of the SRC Act.

84    The third ground of appeal alleges that the only conclusion available to be drawn by the Tribunal on the evidence before it was that the impairment caused by any injury occurring within the period of the licence is either zero, or alternatively a percentage below the 5% statutory minimum in s 24(7A) of the SRC Act.

85    Before resolving those arguments it is necessary to say more about the findings that were made (or not made as the case may be) by the Tribunal on the evidence before it.

86    Ground 3 begins with the proposition that “[t]he Tribunal was obliged to determine the degree of Mr Tsoumbris’ binaural hearing loss impairment resulting from injury/injuries attributable to his employment by Pacific National within the scope and period of Pacific National’s licence issued by [the Commission]”. That statement ignores some nuances in the statutory language. It is important to recognise that para (c) of the definition of the word “injury” in s 5A of the SRC Act encompasses “an aggravation of a physical … 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”. On that formulation an “injury” can occur well before an employment relationship with the relevant employer commences, but the next employer may nonetheless be liable to compensate the employee for any impairment resulting from aggravation of the injury, if that aggravation arises out of or in the course of the relevant employment and if the impairment resulting from that aggravation exceeds the statutory minimum in s 24 of the SRC Act. On that formulation a search for the date of when a pre-existing and underlying injury first occurred may be an unnecessary distraction. It will, however, be necessary to assess the degree of aggravation of that injury so that the resulting impairment caused by it can be ascertained.

87    Before the Tribunal, Dr Fagan’s oral evidence was to the effect that it was impossible to say whether the period of employment with Pacific National between the Licence Date and Mr Tsoumbris’ retirement caused any part of Mr Tsoumbris’ hearing loss. He further agreed that it would be speculation to apportion any part of the hearing loss to the period after the Licence Date and the period before it.

88    The Tribunal referred to mathematical calculations that had been used by Pacific National in its original decision, and by Mr Baxter in his evidence. Mr Baxter’s report is in evidence on this appeal and will be summarised shortly. As mentioned earlier, his methodology was rejected by the Tribunal.

89    The Tribunal’s reasons contain repeated references to the difficulty in determining (variously) “when damage was caused” or “when ... actual damage … was done” or “when the injuries commenced” or when “being injured ... first occurred”. The Tribunal articulated that difficulty as follows:

(1)    At [44]:

The lack of regular medical assessments causes difficulty in this case when trying to measure when the actual damage to the Applicant’s hearing was done.  …

(2)    At [56]:

In this regard, the Respondent could have fixed this by having a pre-employment medical including hearing test when he commenced working with them in 1994. Otherwise, or in addition it could have performed a due diligence test prior to or on becoming a licenced employer under the SRC Act, especially given it intended to not cover any pre-existing injuries under the new regime - which included a period when they were nevertheless the Applicant’s employer. That is legally correct. Presumably, had they tested his hearing at either of those times and if the test confirmed hearing loss, he would have had a claim pursuant to the State based compensation systems. In addition, there would be a reference point for any increasing hearing loss over the period of the licence. This does not affect the ultimate decision in this matter. It is an observation. The hard fact is that there is no medical assessment of his hearing quality until after his employment ceased.

(3)    At [74]:

In its considerations, this Tribunal has had reference to matters referred to it in the case of Re Lobb and the Commonwealth, Re Nield & The Military Rehabilitation and Compensation Commission and in Re Chard & Telstra Corporation. These all provide assistance with regards to the position faced by the Tribunal in having to make a decision in the absence of clear evidence. In this case, that evidence would have been regular audiograms over the course of employment pinpointing when the injuries commenced and the extent of the loss over time.

(footnotes omitted)

(4)    At [81]:

A similar process was advanced by [Mr] Baxter. Dr Fagan thought it was difficult to assess when the impairment would have arisen.

(5)    At [87]:

The fact he did not seek treatment confirms the view that he did not think there was anything medically or industrially wrong. He did not think he was being injured. However, the evidence of the specialist demonstrates clearly that he was, although nobody can fix a time for when that first occurred.

(6)    At [98]:

The specific time when damage was caused is unable to be assessed by clear evidence. Reference has to be made to generalities and what would happen in the usual course of events. There is a danger of reliance on such generalities because really what is necessary is what happened in this case.

(emphasis in original)

(7)    At [100]:

Thus, whilst the 10-year period referred to by the experts is noted, it is not evidence applicable directly to Mr Tsoumbris’ situation. Testing was not undertaken. There were opportunities where it could have been. Thus, we are left to rely on the clear provisions of the SRC Act so as to affix a date for injury, and the consequences follow.

(8)    And at [103]:

The lack of clear evidence on this matter which would have been hearing tests at relevant times of pre-employment and rearranging of the insurance regime may well have led to a different result - but this now is speculation.

90    At the same time, the Tribunal’s reasons involved a wholesale acceptance of the evidence of Mr Tsoumbris himself as to when he first noticed hearing loss. On Mr Tsoumbris’ evidence, as recorded in the reasons, he was not aware of hearing loss “in the early years of his employment” (at [85]). He said that he had become aware of the hearing loss “not at the outset but well into his employment” (at [73]). That awareness had come “on reflection, such as remembering when he talked to others about the music being loud or him having to ask them to repeat themselves” (at [73]). Those passages are non-specific as to whether the “employment” referred to is the employment with Pacific National (commencing in 1994) or Mr Tsoumbris’ employment more generally in the railways (commencing in 1966). The Tribunal also found that there was no doubt that Mr Tsoumbris was exposed to dangerous noise levels during his employment with Pacific National after the Licence Date (at [77]). It also recorded that Mr Tsoumbris had said that he had been a train driver for 10 years before he noticed any hearing loss. On the chronology before me, he first worked as a train driver in 1985, and commenced his employment with Pacific National nine years after that.

91    In my view, the Tribunal made a number of findings of fact that have not been shown to have been affected by any error of law within the meaning of s 44(7)(a) of the AAT Act, and so should not be disturbed. They include an acceptance of Dr Fagan’s evidence that the whole person impairment percentage attributable to exposure to industrial noise was 12% (adjusted for age), with an added 5% for the tinnitus diagnosis. The Court does not have the power under s 44(7) to make a factual finding inconsistent with that acceptance.

92    The Tribunal expressly rejected Mr Baxter’s approach which was premised on an earlier audiogram test, yielding a whole person impairment of 7.7%. In oral evidence Mr Baxter made some corrections to his calculations so increasing that figure to 8.4%. His reasoning on the question of apportionment was initially contained in an expert report dated 21 February 2022. It included the following:

Occupational noise-induced hearing loss does most of the damage in the early years and then plateaus out as time progresses. Unfortunately, it is not possible to identify or quantify this and therefore, it is accepted by most, if not all jurisdictions, that noise induced hearing loss can be considered to occur at a constant rate of the person’s exposure and that by dividing the presbycusis corrected percentage loss of hearing by the years of exposure, one can obtain the percentage loss per annum. In this case, 7.7/48 = 0.16% per annum.

93    In his report, Mr Baxter then multiplied the 0.16% by 10, to reflect that part of Mr Tsoumbris’ employment period that followed the Licence Date, resulting in 1.6%. As a result of the corrections made to the starting point, the per annum figure was adjusted to 0.175%, and the impairment referable to the period following the Licence Date was, according to Mr Baxter, 1.75%. That is the finding this Court is now asked to make.

94    The Tribunal’s error of law resulted in a finding that the “injury” was deemed to have first occurred on 3 December 2020 and that it implicitly followed that Pacific National was liable to pay compensation for the whole of the impairment. The error affected the apportionment process, but it did not affect the ascertainment of the whole person impairment (pre-apportionment), which the Tribunal found to be 12% (plus 5% for tinnitus).

95    Pacific National’s primary submission is that this Court cannot act on the evidence of Dr Fagan on the discrete topic of apportionment to ensure that its liability is within the scope of its licence, because Dr Fagan himself said that such an apportionment was impossible or would otherwise amount to speculation. I accept that submission, insofar as it captures Dr Fagan’s view. But it does not follow that this Court can or should wholly adopt the evidence of Mr Baxter, including by adopting his pre-apportion starting point.

96    The measure of Mr Tsoumbris’ total hearing loss is a discrete question to that of Pacific National’s liability to pay compensation for any part of it. Whilst I do not share the Tribunal’s view that the formula adopted by Mr Baxter is arbitrary, and whilst I accept that it would be open to a decision-maker to adopt that general approach, the Court is not obliged to adopt Mr Baxter’s starting point of 8.4%. The submissions made to this Court have not persuaded me that Mr Baxter’s starting point is preferable and appropriate to that of Dr Fagan, nor that adopting the lower starting point is within the Court’s power, given the condition in s 44(7) of the AAT Act.

97    In addition, this Court’s power to make findings of fact is discretionary, or at least involves highly evaluative considerations. A judgment must be made as to whether it is convenient for the Court to make the particular finding sought by Pacific National, having regard to the matters specified in s 44(7) of the AAT Act. They are:

(i)    the extent (if any) to which it is necessary for facts to be found; and

(ii)    the means by which those facts might be established; and

(iii)    the expeditious and efficient resolution of the whole of the matter to which the proceeding before the Tribunal relates; and

(iv)    the relative expense to the parties of the Court, rather than the Tribunal, making the findings of fact; and

(v)    the relative delay to the parties of the Court, rather than the Tribunal, making the findings of fact; and

(vi)    whether any of the parties considers that it is appropriate for the Court, rather than the Tribunal, to make the findings of fact; and

(vii)    such other matters (if any) as the Court considers relevant.

98    In my view, a critical reason for not making the findings sought by Pacific National is that it would necessitate the Court first making an assessment (as the Tribunal ought to have done) as to whether there exists an underlying injury being a disease, or an injury other than a disease. The circumstance that the Tribunal identified an erroneous reason for applying s 7(4) does not mean that it was not open to the Tribunal to identify a correct basis for concluding that there was an injury being a disease. If that had been done, Pacific National’s liability may well turn on an identification of a number of matters arising under s 7 of the SRC Act (not all limited to the issues arising under s 7(4)). Those issues have not been fully explored before this Court. It is unclear whether the evidence adduced on the review was sufficient for a finding to be made about whether there existed an injury being a disease. If it was not sufficient then it would be open to the Tribunal to exercise its procedural powers in a way that ensured that there was a proper evidentiary basis for supplying the correct answer to the question. If the correct conclusion was that the impairment resulted from an injury being a disease, then the enquiry under s 7(4) would be enlivened. The enquiry under s 7(4)(b) is focused on when the impairment occurred, not when the injury occurred. Mr Tsoumbris’ evidence about when he first apprehended that he had difficulty in hearing (even if given in hindsight) would be highly relevant to that issue. At the very least there is the evidence that hearing loss was not noticed by Mr Tsoumbris until 10 years after he began work as a train driver. The Court has not been taken to any evidence of the experts about the medical inferences that may be drawn from that critical evidence.

99    Pacific National’s invitation to the Court to make the factual findings proceeded from the incorrect assertion that the Tribunal made a positive finding that there was an injury not being a disease. I have not accepted that submission and hence consider there to be a wider enquiry yet to be undertaken by the Tribunal responsible for conducting the review.

100    The Court is conscious of the delay in the final resolution of Mr Tsoumbris’ claim, however in my evaluation the preferable and more convenient course is for the application for review to be remitted to the Tribunal, differently constituted. There should on that remittal be no impediment to the parties adducing additional evidence to assist the Tribunal to determine the multiple mixed questions of fact and law that arise, particularly the question of which paragraph of the definition of an injury in s 5A is in play. As I have said, a Tribunal correctly directing itself on the issues to be decided may exercise procedural and inquisitive powers to ensure that the correct findings are made.

Alternative finding sought by Pacific National

101    Pacific National alternatively asked the Court to find that the Tribunal should have affirmed the decision on review because the evidence before it was insufficient to prove “on the balance of probabilities” that the degree of impairment for which it could otherwise be liable exceeded the 5% minimum in s 24(7A) of the SRC Act. I do not accept that submission, for reasons that will become apparent in dealing with the issue arising on the notice of contention. It seems to me that in becoming perplexed about the question of when the “injury” occurred the Tribunal was viewing the evidence through a framework that ignored concepts of aggravation that collapsed the concepts of injury and impairment, and that otherwise failed to appreciate that the body of evidence about when the hearing loss first occurred included that given by Mr Tsoumbris himself. The Tribunal did not explore whether damage to hair in the ear would in all cases immediately result in hearing loss. Nor did it explore whether increased damage by further exposure to excessive noise might constitute an aggravation. It did not ask whether the employment with Pacific National after the Licence Date might have aggravated an injury or an ailment in such a way that hearing loss might first have occurred in that period as a result of the aggravation of a pre-existing ailment or injury. On the material to which I was taken I am not satisfied that the evidence adduced before the Tribunal made it impossible to resolve the questions upon which the claim depended.

Mr Tsoumbris’ invitation

102    By his notice of contention, Mr Tsoumbris invites asks the Court to find that gradually acquired noise induced hearing loss is a disease. He contends that the Court may make such a finding based on the High Court’s decision in Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286. Borrowing phrases from Kennedy, Mr Tsoumbris contends that if the Tribunal erred in resorting to s 7(4) of the SRC Act as a “remedy” for curing a deficiency in evidence, it was nonetheless open to the Tribunal to conclude that hearing loss is a disease “of a progressive type” which “does not manifest itself in the kind of sudden physiological change or disturbance of the normal physiological state that will constitute an ‘injury’ in the primary sense.”

103    In Kennedy, the High Court upheld a decision of the Full Court of this Court in relation to a claim for compensation of a cleaner who had suffered a stroke whilst in the workplace, rendering her incapacitated for work. The claim was made under the Workers Compensation Act 1951 (ACT), a similar but not identical regime to that established under the SRC Act. The claimant’s stroke was caused by blood clot. The blood clot was found to have been explained by an underlying heart disease. The presence of the underlying heart disease did not preclude a finding that the worker had suffered an injury to her brain, characterised as an injury not being a disease. In Kennedy there was no dispute that that injury occurred in the course of employment, the claimant being in the workplace at the time that the brain injury occurred. The conclusion that there was an “injury” resulted from asking whether there was a physiological change or disturbance in the normal physiological state, language derived from prior case law discussing the ordinary meaning of the word.

104    I accept that this Court may make a finding on a mixed question of fact and law not properly explored by the Tribunal. However, I decline to do so, for four reasons.

105    First, the reasoning in Kennedy was based on evidence culminating in findings of fact concerning a very different physiological state, and assessed under a different statutory regime. It is not appropriate to select sentences from the reasons of one or more justices of the Court to support a finding in the present case unmoored from the evidence before the Tribunal.

106    Second, even if this Court were to make a finding that the impairment in the present case (being hearing loss) resulted from an injury being a disease, that would not resolve the issues between the parties. The date of contraction of the disease would not necessarily be fixed at 3 December 2020 by reference to s 7(4)(a) of the SRC Act. As I have explained above, it is necessary to enquire into the question posed by s 7(4)(b):  when did the “disease or aggravation resulted in the … impairment of the employee”. It is the earlier of the two dates that must be determined.

107    Third, under s 7(4)(b), the focus is date of the first occurrence of the impairment (hearing loss), not the date of the underlying “injury, being a disease” that resulted in it. The language of the Tribunal in the passages extracted earlier in these reasons at times refer to hearing loss and injury interchangeably. The fact that the experts could not identify when the underlying change in the physiology of Mr Tsoumbris’ ears occurred does not preclude a finding being made on the topic of when any hearing loss resulting from that change first occurred. Moreover, the Tribunal’s summary of the expert evidence contains no consideration as to whether what might have occurred was an aggravation (either for the purposes of para (c) of the definition in s 5A or para (b) of the definition in s 5B.

108    Finally, I am not satisfied that the finding sought on the notice of contention is one that can be made on the material before me, nor am I satisfied that it is one that should be made, given that it would not resolve a multitude of other questions that would then remain to be determined. I also take into account the circumstance that the Tribunal conducted the review on the basis that s 7(4) provided a solution to a perceived deficiency in evidence. On a correct approach the review may well have been conducted differently, including by exploring the significance of Mr Tsoumbris’ evidence about the time in which his hearing became affected in fact.

Other factual issues

109    Before concluding it is appropriate to observe that Pacific National’s submissions on this appeal at times suggested that each instance of damage to each hair in the inner ear was a separate injury (with resulting impairment from each injury to be discretely assessed against the statutory minimum). It seems to me that that approach is not only inconsistent with the approach Pacific National adopted in first responding to the claim, but also inconsistent with the case it presented to the Tribunal. Mr Baxter did not conceive of there being a multitude of injuries constituted of damage to each hair, each resulting in a miniscule degree of impairment. If he had done so that could well have been the subject of dispute, cross-examination and further evidence.

Orders

110    There will be orders allowing the appeal, setting aside the decision of the Tribunal and remitting Mr Tsoumbris’ application for review to the Tribunal for determination according to law.

Associate:

Dated:    4 April 2024