By the very nature of claims for industrial deafness, it is quite often the case that the injury was sustained some time prior to the date of notice being given to an employer.
The first issue for consideration when determining whether a worker is able to seek payment of compensation for any injury is the relevance of s254 of the Workplace Injury Management and Workers Compensation Act 1998 (WIMA) which relevantly provides as follows:
(1) Neither compensation nor work injury damages are recoverable by an injured worker unless notice of the injury is given to the employer as soon as possible after the injury happened and before the worker has voluntarily left the employment in which the worker was at the time of the injury.
(2) The failure to give notice of injury as required by this section (or any defect or inaccuracy in a notice of injury) is not a bar to the recovery of compensation or work injury damages if in proceedings to recover the compensation or damages it is found that there are special circumstances as provided by this section.
(3) Each of the following constitutes special circumstances:
(a) the person against whom the proceedings are taken has not been prejudiced in respect of the proceedings by the failure to give notice of injury or by the defect or inaccuracy in the notice,
(b) the failure to give notice of injury, or the defect or inaccuracy in the notice, was occasioned by ignorance, mistake, absence from the State or other reasonable cause,
(c) the person against whom the proceedings are taken had knowledge of the injury from any source at or about the time when the injury happened,
(d) the injury has been reported by the employer to the Nominal Insurer in accordance with this Act.
Given that industrial deafness claims can sometimes not be notified until years or even decades after the injury was occasioned or the employment to which the nature of the injury is due has ceased, the issue of prejudice is quite an important consideration. Often the prejudice can be a difficulty in being able to locate documentation in order to confirm employment or being able to obtain objective information relevant to identifying the nature or type of any noise exposure in a workplace. For these reasons, consideration needs to be given to relevance of the issue of notice when considering claims for industrial deafness by workers.
Notwithstanding, s261(1) of the WIMA relevantly provides the appropriate timeframes for the notification of a work related injury as follows:
(1) Compensation cannot be recovered unless a claim for the compensation has been made within 6 months after the injury or accident happened or, in the case of death, within 6 months after the date of death.
Section s261(5) of the WIMA goes on to provide:
(5) The failure to make a claim within the period required by this section is not a bar to the recovery of compensation if the insurer concerned determines to accept the claim outside that period. An insurer cannot determine to accept a claim made more than 3 years after the injury or accident happened or after the date of death (as appropriate) except with the approval of the Authority.
However, what is important to ascertain is when the relevant time periods as provided in s261 of the WIMA commence, particularly with respect to latent conditions/injuries such as hearing loss. In terms of claims where the injury is a latent condition, s261(6) of the WIMA provides the requisite benchmark for notice as follows:
(6) If an injured first becomes aware that he or she has received an after the was received, the is for the purposes of this section taken to have been received when the first became so aware.
Having regard to provisions of ss254 and 261 of the WIMA and whether they are likely to present a procedural impediment to a worker seeking compensation for industrial deafness, the primary issue for consideration is to identify when a worker first became aware that they suffered from industrial deafness as a consequence of their employment. On this issue President Judge Keating in Qantas Airways Ltd v Gittoes  NSWCCPD 8 (24 March 2017) held:
The test [for determining awareness of an industrial deafness injury] is an objective one, but is based on the individual worker’s knowledge, not the knowledge of some hypothetical reasonable person. The worker must be actually aware, not constructively aware. In determining when a worker became aware he has received an injury it is necessary to have regard to the worker’s state of knowledge at the relevant time. A worker cannot be said to be aware he has received a work injury if he is unaware of the nature of the condition said to constitute the injury or is unaware that it has been caused by work. Because of the insidious nature of boilermaker’s deafness, and lack of general knowledge in the community of its cause, awareness that a worker has received a s17 injury will usually require specialised knowledge that will normally come from an appropriate expert in the field.
In a claim for compensation for boilermaker’s deafness, a worker is aware that he has received an injury to which s 17 applies when he is aware of two things. First, that he has sensorineural hearing loss (boilermaker’s deafness and any deafness of a similar origin (s 17(2)), which is a loss of hearing of such a nature as to be contracted by a gradual process. As noted above, because many things unrelated to employment can cause hearing loss, it is not sufficient that the worker is merely aware of a gradual loss of hearing. In addition, and second, though liability will ultimately fall on the employer who last employed the worker in employment to the nature of which the injury was due, as opposed to the employer who actually caused the hearing loss, the worker must be aware that his hearing loss has been contributed to by his employment.
Employer take aways
As can be seen from the decision in Gittoes given the highly complex nature of industrial deafness and its manifestation, the relevant notice provisions do not run from the date of a worker becoming aware of the injury as would be the case with other types of work-related injuries, but rather run from the date that a worker gains the knowledge that their industrial deafness is the result of their employment. Accordingly, when considering a worker’s entitlement to the payment of workers compensation entitlements in relation to industrial deafness injuries it will be necessary for employers to undertake further investigations as to precisely when a worker became aware that any such injury was related to their employment if they intend to raise the notice provisions as a potential defence to any such claim.