Sandra Visser v South Australian Housing Trust No. SCGRG 95/104 Judgment No. 5275 Number of Pages 13 Negligence (1995) 65 Sasr 571

[1995] SASC 5275

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA DOYLE CJ(1), DUGGAN(2) AND NYLAND(3) JJ

CWDS
Negligence - proof of negligence - Employee working as telephonist - client blows whistle through telephone - telephonist injured - whether duty of care to install sound limiting device or take other precautions in relation to danger - assessment of employer's response - propositions of fact not to be elevated to propositions of law - trial judge not shown to be in error. - Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301, applied. Miletic v Capital Territory Health Commission (1995) 130 ALR 591, distinguished.

HRNG ADELAIDE, 9 June 1995 #DATE 26:10:1995 #ADD 27:11:1995

Counsel for appellant:     Mr R Evans with Ms N Symons

Solicitors for appellant:    Corsers

Counsel for respondent:     Mr D Trim

Solicitors for respondent: Phillips Fox

ORDER
Appeal dismissed.

JUDGE1 DOYLE CJ In my opinion this appeal should be dismissed.

2. The relevant facts and the findings of the trial judge are to be found in the judgment of Nyland J. Although I agree with her conclusion, and with the substance of her reasoning, I have approached the resolution of the matter in a different manner, and so it is appropriate for me to set out my own approach.

3. In my opinion the issue at trial was whether the employer's duty to take reasonable care required either that the respondent have fitted to the telephone which the appellant used, before the incident of February 1988, a sound limiting device of the type referred to by His Honour (I will refer to it hereafter as "the device") or alternatively that the respondent have instructed the appellant not to use a headset.

4. In my opinion that issue can usefully be approached in two stages. First, by considering whether such action on the part of the employer was required regardless of whether it was aware of the behaviour of Mr Jeffrey and of his potential to cause harm. In other words, were these precautions which a reasonable employer in the respondent's situation would have taken in relation to members of its staff required to deal with clients and with the public? The second stage at which that issue can be approached is by considering whether, in the light of the information which the respondent had about Mr Jeffrey, its duty to take reasonable care required it to take such measures as a response to the risk of harm from Mr Jeffrey in particular, and in that case presumably such measures should be taken at the Port Adelaide office of the respondent and at any other office with which Mr Jeffrey had telephone dealings.

5. It appears that the case was not conducted on the first basis. Nevertheless, in my opinion considering the matter in this way helps to identify the issues.

6. There is a substantial body of case law dealing with the duty of care owed by an employer to employees. That being so there is a constant temptation and tendency to elevate propositions of fact in this area to propositions of law, and to convert decisions in particular cases to statements of principle. In my opinion that temptation and tendency must be resisted.

7. In Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 the judgment of Mason J, Wilson J and Dawson J makes certain basic points which are worth repeating.

8. First, (at 307-8) they confirmed as equally applicable today the statement by Dixon CJ and Kitto J in Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18 at 25 that the duty owed by an employer
    "is that of a reasonably prudent employer and it is a duty
    to take reasonable care to avoid exposing the employees to
    unnecessary risks of injury."

9. Secondly, they confirmed (at 308) that
    "what is a reasonable standard of care for an employee's
    safety is 'not a low one'"

10. Thirdly, they stressed that whether or not reasonable care had been taken:
    "is always a question of fact to be determined in the light
    of the circumstances of each case." (at 308)

11. Fourthly, while emphasising that the duty of care has been and remains a duty to take reasonable care they said (at 308-309) that
    "what reasonable care requires will vary with the advent of
    new methods and machines and with changing ideas of justice
    and increasing concern with safety in the community. ...
    What is considered to be reasonable in the circumstances of
    the case must be influenced by current community standards."

12. Fifthly, they appear to have accepted that in deciding whether reasonable care has been taken the approach to the reasonable person's response to a risk is that outlined by Mason J in his well known statement in Wyong Shire Council v Shirt (1981) 46 CLR 40 at 47-48. In brief one is to consider the magnitude of the risk, the degree of the probability of its occurrence and the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have.

13. I therefore proceed on the basis that the Court is called upon to review a finding of fact, the finding being that it was not shown that the respondent had failed to take reasonable care in the particular circumstances in failing to have installed the device or in failing to instruct the appellant not to use a headset. That finding of fact is to be considered in the context of the evidence about the risk of injury and in the context of the evidence about available means of alleviating or avoiding that risk. Attention is also to be paid to current community standards when considering the response of the employer to the risk in question.

14. It was not the case of the appellant, as I understand it, that the respondent's duty to take reasonable care required it to have the device fitted to all telephones used by its staff and to instruct all of its staff not to use headsets. Nor, as I understand it, was it the appellant's case that it was the respondent's duty to take these measures in relation to all employees in the position of the appellant. The appellant's case rested upon the risk of injury to the appellant resulting from the known activities and proclivities of Mr Jeffrey.

15. It is understandable that the appellant's case should be advanced on this more limited basis. To advance it on the wider basis would mean that the respondent was obliged to undertake the substantial expenditure of equipping all telephones, or most of them, with the device, or to abandon the use of headsets which, common experience suggests, are very widely used by employees in the position of the appellant. There was no evidence to suggest that such measures were accepted as normal and proper practice in Australia, nor that such steps should be taken as a matter as normal and proper practice even if they are not in fact taken.

16. To my mind this point is both relevant and important. It follows from it that an employer does not fail to take reasonable care, ordinarily, by permitting employees who deal with the public, including members of the public who may be difficult to deal with, to use headsets for the purposes of telephone calls and to use headsets to which the device have not been fitted.

17. Having heard the facts of this case it seems to me that it is true to say that for all employees working in positions like that of the appellant's the risk of harm being caused by a loud noise being sent down the telephone line is foreseeable, although the likelihood of a person doing that is low and the risk of harm occurring is probably also relatively low. It seems to me that one must approach this case on the premise that notwithstanding that risk, the reasonable employer is not ordinarily required to respond by fitting the device or by instructing staff not to use headsets.

18. It then emerges more clearly that the question becomes whether, that being so, the known proclivities and behaviour of Mr Jeffrey altered the situation. It seems to me that His Honour's findings, which are contained in the judgment of Nyland J, require a negative answer. Subject to the one incident involving Mrs Stone, there was nothing to suggest that Mr Jeffrey was anything other than the sort of person who might, in some unpredictable way, cause some sort of harm or upset to employees of the respondent. Putting it a little differently, Mr Jeffrey was simply the sort of person who causes one to say that it is foreseeable that employees who have to deal with clients and the public by telephone might be exposed to some risk of injury. He is the sort of person whose presence in the community causes one to acknowledge that there is a risk of harm, but I have already explained why it is that in my opinion that risk, which cannot be denied, does not require of the reasonable employer the response postulated by the appellant in this case. If the presence of such people in the community required that response, then all telephone lines used by the public and clients would have to have the device fitted or the users of them would have to be instructed not to use headsets. I have no doubt that people like Mr Jeffrey are to be found throughout the community, and not just in the community which dealt with the respondent's Port Adelaide office.

19. It is on that basis that I conclude, subject to the incident involving Mrs Stone, that knowledge of the existence and proclivities of Mr Jeffrey did not impose upon the respondent a duty to install the device or to instruct its staff such as the appellant not to use headsets. To conclude otherwise would mean, in my opinion, that the same action should be taken by the respondent at all of its offices which dealt with the public throughout the State and, no doubt, by many other employers.

20. His Honour's findings in relation to the incident involving Mrs Stone are also set out in the judgment of Nyland J. I have given the matter careful thought but I am not prepared to say that His Honour was wrong in concluding that the relatively minor incident involving Mrs Stone, at least a year before the appellant sustained her injury, was such that the reasonable employer would have responded in the manner demanded by the appellant. In considering the respondent's response to that incident it is pertinent to bear in mind that although the device was not expensive, it was not in fact readily available because its availability was not generally known. It is not clear from the evidence how the appellant came to know of the device, but as appears from the judgment of Nyland J the availability of such devices was not generally known nor was the availability of the particular device ultimately obtained from Telecom generally known. Nor was there any evidence in this case to suggest that it was the practice of prudent employers to fit the device to telephones used by employees performing tasks such as the appellant or to instruct such employees not to use headsets.

21. It follows that I do not agree with the trial Judge's conclusion that the risk of injury to a person in the appellant's position from a whistle being blown into the telephone by an irate or abusive tenant was real and foreseeable, and gave rise to a duty of care on the part of the respondent. It is my opinion that, on the evidence or lack of it in this case, and on the basis of what I know about community standards, the respondent was under no duty to take any particular action in response to the slight risk of such conduct by a person telephoning the respondent's office. There was no duty to do so as a matter of ordinary procedure (ie without regard to Mr Jeffrey) or on the basis of what was known about him. An alternative way of putting things is to say, as His Honour concluded, that the magnitude of the risk of harm and the degree of the probability of its occurrence and the degree of injury likely to result did not lead to the conclusion that the reasonable employer in the respondent's position and with the respondent's knowledge would have installed the device. I agree with that conclusion but upon the basis that it has not been established that the risk of harm to the plaintiff at the Port Adelaide office was, in truth, any greater than the risk of harm faced by other employees at other offices who had to deal with troublesome members of the public. If it had been shown that there was a real, rather than slight and remote, risk of such harm to the plaintiff at the Port Adelaide office, then in my opinion it is probable that the reasonable employer would take some protective measure, but that is not something which I have to decide.

22. For those reasons it is my opinion that this appeal should be dismissed.

23. I should add that in my opinion the reliance placed by the trial judges upon decided cases in which an employee had been injured by a fellow worker was misconceived. Those cases are influenced by limitations upon the ability of an employer to deal with isolated acts of misconduct by an employee and the nature of the action which it has been suggested the employer should have taken, namely dismissal of the fellow employee. I do not consider that His Honour was ultimately led into any error by his reference to or reliance upon these cases, but I would not want it thought that the approach to injury due to misconduct of a fellow employee is to be taken to injury due to misconduct or wrong doing by persons who are not employees.

24. Since preparing these reasons, I have read the judgment of the High Court in Miletic v Capital Territory Health Commission (1995) 130 ALR 591. In that case the appellant was employed by the respondent as a housemaid at a hospital. She sustained her injuries when she was cleaning rooms in the nurses quarters at the hospital. She went to push a bed to move it back into position but the castors on which the bed stood jammed causing her to fall and to sustain injury. Her action for damages against her employer failed at trial and a decision dismissing her claim was upheld on appeal to the Full Court of the Federal Court.

25. An expert witness at trial had said that the jamming of castors was a well known problem and easily overcome by the use of oil from an oil can or by the application of a penetrating lubricant from an aerosol can. The effect of the evidence seems to have been that a regular maintenance program would have dealt with the problem and, I gather, that such maintenance programs were a common practice, although this further point does not emerge so clearly from the report.

26. The Full Court had found that there was a foreseeable risk of a bed jamming and a cleaner falling and sustaining injury. But the Full Court had dismissed the appeal because the appellant had not proved that her employer's conduct was unreasonable. This was so, the Full Court said, because of the low degree of probability of the occurrence, the unlikelihood of serious injury and the unlikelihood of the suggested preventive measures being of any practical effect (130 ALR 591 at 593).

27. The High Court held that the incidence of serious injury as the result of falling or slipping was such that there was no warrant for the Full Court's finding that serious injury was unlikely. The High Court also found that the Full Court had erred in concluding that a maintenance program would not have been effective (130 ALR 591 at 593).

28. The High Court then posed the central issue in terms which are relevant to the present case. The Court said (130 ALR 591 at 594):
    "It is clear that the question whether a reasonable person
    would take steps to avoid a foreseeable risk of injury to
    another is to be answered by balancing 'the magnitude of the
    risk and the degree of the probability of its occurrence,
    along with the expense, the difficulty and inconvenience of
    taking alleviating action and any other conflicting
    responsibilities' which may exist: Wyong Shire Council v
Shirt (1980) 146 ELR 40 at 47-8; 29 ALR 217 per Mason J.
    The Full Court should have undertaken that exercise by
    having regard to the possibility of serious injury and to
    the simple and inexpensive nature of the maintenance
    procedures which, according to the evidence, would have
    provided an effective solution to the problem of jamming
    castors. These considerations were properly to be balanced
    against the low degree of probability of an accident
    occurring as a result of the castors jamming. However,
    having regard to the nature of the duty involved, namely, to
    provide a safe place of work: as to the standard of care
    which applies to an employer, see McLean v Tedman (1984) 155
    CLR 306; 56 ALR 359. That balancing exercise can only
    result in the conclusion that a reasonable employer in the
    position of the Commission would have maintained the castors
    on its beds in the manner suggested by Mr Simpson. The Full
    Court erred in finding otherwise."

29. How does the present case differ? It might be said that there was a foreseeable risk of injury and that the device was a simple and inexpensive ($300-$400) measure which would have provided an effective solution to the risk of injury.

30. In my opinion there are a number of material differences. I would describe the likelihood of an attempt to inflict harm in this way as very low. Of course it is foreseeable. But not only are such incidents few and far between, as far as I am aware and as far as the evidence goes, but there is no way of predicting when and where the wrongdoer will strike. The risk of injury in this way in my opinion was not obvious, or at least not as obvious as is the risk of injury as the result of a fall. The problem, the risk of injury being sustained in these circumstances, was not, on the evidence, a well known one. There was no readily available and inexpensive solution. The device was not widely known and was not readily available, although it was obtainable. Nor was it inexpensive despite the relatively low unit cost. Either one works on the premise that the employer fits the device at all work places, or, most favourably to the appellant, one works on the premise that the device should have been installed at Port Adelaide once the employer was aware of Mr Jeffrey's proclivities. But even then, to how many phones, at that office was the device to be fitted and does the employer stop there or does the employer also fit the device at other places which Mr Jeffery might telephone.

31. Despite the apparent similarity between the present case and Miletic, it is my opinion that these differences lead to a different result. Or, to be more precise, in my opinion the trial Judge's finding is not shown to be erroneous.

JUDGE2 DUGGAN J I agree that this appeal should be dismissed.

2. It was well known to the respondent that Jeffrey had been antagonistic towards the respondent's employees for some years prior to the incident involving the appellant. However only one whistle-blowing incident had taken place during that time and that incident was at least a year before the incident which led to the appellant's action. On that occasion one of the respondent's telephonists, Mrs Stone, heard what she referred to as a toy whistle being blown over the telephone. She said the incident did not distress her and she regarded it simply as an act of rudeness. It was mentioned by her to a superior, not by way of complaint, but because she was called upon to explain why she had hung up on the caller. There had been no reports to the Occupational Safety division of the respondent of any other such incidents, whether involving Jeffrey or any other caller.

3. In these circumstances I agree with the Chief Justice that what was known of Jeffrey's conduct would not have the effect of imposing upon the respondent a duty to install safety devices on employees' telephones; nor would the slight risk of callers in general causing injury in this way give rise to such a duty.

4. However, if this view is incorrect and the existence of a duty of care was properly found by the learned trial judge, then I agree with the reasoning of Nyland J which has led her to the view that there was no breach of duty.

JUDGE3 NYLAND J This appeal is from the order of a District Court judge dismissing the appellant's claim for damages for breach of a common law duty of care arising out of her employment with the respondent. The appellant was employed by the respondent as a telephonist. On 23 February 1988, a notorious tenant of the respondent, named Jeffrey, blew a whistle through a phone at the appellant. The appellant was wearing a head set. The noise was so loud that she could not bear it. She moved back in her chair and fell to the side, suffering an injury to her face. There was evidence of previous attempts by Jeffrey to intimidate employees of the respondent and there was evidence of an earlier incident in which he had blown a whistle through the phone at another telephonist. The learned trial judge found that the respondent owed a duty of care to the appellant but concluded that, on the evidence before him, there had not been proved a breach of the duty of care. In reaching that conclusion, he found, on the balance of probabilities, that the following position had been established:
    "1. That for no fewer than four years before 23 February
    1988, Jeffrey had been a troublesome, abusive and orally-
    threatening tenant of the defendant, with much of his abuse
    being directed towards the defendant's employees at the Port
    Adelaide office.

2. That on one occasion, at least a year before 23 February
    1988, a telephonist (Mrs Stone) had there been the recipient
    of a whistle-blowing telephone call, which call had been
    made by Jeffrey; and that, apart from that call, of which
    Mrs Stone was asked by the defendant to explain her conduct
    and she did not complain, the defendant did not become aware
    of another such telephone call until after the third
    telephone call (the second whistle-blowing call) on 23
    February 1988.

3. That while she was operating the defendant's switchboard
    at Port Adelaide on 23 February 1988, the plaintiff was
    subjected to two whistle-blowing telephone calls from
    Jeffrey (although she was not then aware of his identity);
    that the first of those calls she received when using the
    handset and her hearing was not affected; that (contrary to
    her evidence) she did not then report that call to Mrs
    Williams, or any other superior officer, and the defendant
    was not then aware of that call having been received; that
    the second of those whistle-blowing telephone calls was
    received about two and a half hours after the first
    whistle-blowing call, when the plaintiff was using the
    headset and sustained injuries; and that the defendant first
    became aware of the second whistle-blowing telephone call
    when the plaintiff subsequently that day complained to
    Mrs Williams.

4. That at least from the beginning of 1988, there had been
    available for supply to the defendant, upon enquiry of
    Telecom, a sound limiting device which was capable of
    reducing the harmful effects of a whistle being blown into
    the telephone.

5. That the defendant first became aware of, made enquiries
    about and obtained from Telecom, such a sound limiting
    device between one and three months after the plaintiff had
    been subjected to the two whistle-blowing telephone calls on
    23 February 1988, from the second of which she suffered non-
    economic loss."

2. His Honour, by reference to the legal principles established in such well known cases as The Council of the Shire of Wyong v Shirt and Ors (1980) 146 CLR 40 at 44 and 47; Chapman v Hearse and Anor (1961) 106 CLR 112 at 120 and Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301, found:
    "... that a reasonable employer in the defendant's position
    would have foreseen that carelessness on his part in the
    provision of a safe system of work to a telephonist in the
    position of the plaintiff might be likely to cause injury to
    the plaintiff. I am also satisfied and find that the risk
    of injury to a person in the plaintiff's position, from a
    whistle being blown into the telephone by an irate or
    abusive tenant, although remote or extremely unlikely to
    occur, was neither far-fetched nor fanciful but real and
    foreseeable and, therefore, gave rise to a duty of care on
    the part of the defendant to the plaintiff (cf. Bolton v
Stone (1951) AC 850 and the reference to that case by Lord
    Reid in Overseas Tankship (UK) Ltd v The Miller Steamship Co
(Wagon Mound No.2) (1967) 1 AC 617)."

3. In concluding that a breach of duty of care had not been proved, he said:

"Upon the factual findings that have here been made, apart
    from the single, or isolated and harmless whistle blast
    which had been made by Jeffrey to Mrs Stone at least a year
    previously (of which blast, although Mrs Stone had not
    complained, the defendant had become aware), there had not
    occurred another whistle blast at the defendant's Port
    Adelaide office until 23 February 1988 when the plaintiff
    was injured. The defendant then adopted available measures
    to protect the plaintiff. In balancing all of the relevant
    considerations to which reference has been made, I am not
    satisfied that, when the damaging whistle blast occurred on
    23 February 1988, the magnitude of the risk, the degree of
    the probability of its occurrence and the degree of injury
    likely to result were such that, notwithstanding the nature
    and success of the inexpensive remedial response
    subsequently adopted, that response or any other response
    should be ascribed to a reasonable employer in the
    defendant's position with the defendant's knowledge or
    awareness (actual or reasonably to be implied) on 23
    February 1988."

4. In her notice of appeal, the appellant contended as follows:
    "1. The learned trial judge was in error in concluding that
    there was no breach of the defendant's duty of care to the
    plaintiff.

2 The learned trial judge was in error in concluding that
    the defendant acted reasonably in not responding in any way
    at all to the incident involving a whistle blast during a
    telephone call made by its tenant Jeffrey to its servant
    Stone.

3. The learned trial judge should have found that the
    defendant failed to provide a safe system of work.

4. the learned trial judge was in error in assuming that
    Stone's evidence that it was a 'toy whistle' was related by
    her to her superiors.

5. The learned trial judge was in error in finding that the
    said incident occurred at least a year prior to the
    plaintiff's injury.

6. The learned trial judge failed to give sufficient weight
    to the defendant's knowledge of Jeffrey's threats and other
    conduct towards its employees and its belief that he was a
    potentially dangerous person.

7. The learned trial judge should have held that, having
    regard to the defendant's knowledge of Jeffrey's prior
    conduct towards its employees there was a real and evident
    risk that he might use his telephone to injure an employee
    receiving the call.

8. The learned trial judge should have held that simple and
    inexpensive measures that would have substantially reduced
    the element of danger were readily open to the defendant.

9. The learned trial judge was in error in applying the
    principles from cases involving acts of fellow employees to
    the case at bar."

5. The respondent, by notice of alternative contention, submitted that the learned trial judge should have found that the risk of injury sustained by the appellant was not reasonably foreseeable by the respondent, and therefore, the appellant had failed to establish a duty of care. In my opinion, however, there was, sufficient in the prior history of Jeffrey, together with the circumstances of the earlier whistle blowing incident, to alert a reasonable employer to a risk, although the isolated nature of the Stone incident would have made it difficult for a reasonable employer to define the nature and magnitude of the risk. In my view, his Honour correctly found that the risk "was neither far-fetched nor fanciful, but real and foreseeable" and that the duty of care was established. The real issue in this case was whether there had been a breach of that duty of care.

6. The thrust of the submissions made by Mr Evans, who appeared for the appellant, was that the judge, in characterising the earlier whistle blowing incident as a single or isolated and harmless whistle blast, had failed to give sufficient weight to the evidence concerning the long standing and ongoing unpredictable behaviour of Jeffrey towards the respondent's employees. In addition, he argued that Mrs Stone's report, although not described by the judge as a complaint, should nevertheless have been treated as sufficient to put the respondent on notice of the tactic now being used by Jeffrey. This should therefore have alerted the respondent to the potential of a repetition of that form of conduct to cause harm. Accordingly, in the exercise of its duty of care, it had an obligation towards its employees to take remedial action. Mr Evans submitted that there was no evidence that Mrs Stone told her superiors, Mrs Reynolds and Mr Halkett, that she was not distressed or that she thought he "just had a toy whistle at that stage" and pointed out that neither Mr Halkett nor Mrs Reynolds were called to give evidence. He argued, therefore, that it was not open to the judge to infer that they were told or given to understand that the whistle blast was "harmless". He submitted that, in view of the knowledge of Jeffrey's prior behaviour and the incident with Mrs Stone, the respondent, if acting reasonably, could have taken some precaution to prevent the risk of injury, such as withdrawing the headsets or giving some warning to their employees about the use thereof. Alternatively, the respondent could have taken the remedial action subsequently adopted by them whereby the preset device to limit the noise was installed. Mr Evans further argued that the learned trial judge's evaluation of the factors affecting the relevant standard of care had been tainted as a result of his recourse to the line of cases involving conduct by fellow employees which had not been cited by counsel or canvassed in argument.

7. In considering whether there had been a breach of duty of care, his Honour was required to consider the perception of the respondent, as a reasonable employer, of the probability of risk of physical injury to one of its telephone operators in the manner by which the appellant sustained her injury. Although there was a wealth of evidence as to Jeffrey's bizarre behaviour over a number of years, apart from the incident involving Mrs Stone, there does not appear to have been anything in that history to put a reasonable employer on notice that there was a risk of physical injury to one of its telephonists. Mr Evans submitted that when the whistle had been blown about a year earlier at Mrs Stone, the respondent should have identified Jeffrey as having found "a new weapon", but I consider such a categorisation, even against the history of the other behaviour of Jeffrey, over dramatises the significance of that event. His Honour carefully analysed all the evidence relating to the Stone incident. Mrs Stone did not make a formal complaint to her superiors. It is clear from the evidence that she would not have mentioned it at all if Mr Jeffrey had not made a complaint to them that she had hung up on him. It was only when she was called upon to explain her actions that she gave the whistle blowing as a justification for her behaviour. Mrs Stone said in evidence that the noise of the whistle had not distressed her. His Honour did not assume that Stone's evidence that it was a toy whistle that was used was related by her to her superiors. His Honour, in his reasons, referred to the evidence as to Mrs Stone's conversation with Mr Halkett and then went on to consider Mrs Stone's evidence at trial as to the magnitude of the noise which she had encountered. Mrs Stone said:
    "Q. You heard this noise.

A. Yes.

Q. You just hung up straight away.

A. Yes.

Q. You hung up because you took it to be an act of
    rudeness.

A. Yes.

Q. It didn't physically distress you at all.

A. Not the whistle he had for me, no. Yes, I could feel it
    ringing in my ear like for a while afterwards, but I think
    he just had a toy whistle at that stage.

Q. You didn't go off and talk to anybody about it straight
    away, you just (sic) on with your work.

A. I had to, yes, you had to at that stage, you couldn't do
    anything else.

Q. You regarded the whistle blowing as an act of rudeness
    and that's why you hung up on him.

A. Yes."

8. At trial, evidence was given by a Ms Burford, who stated that she had begun her intermittent employment as a switchboard operator at the respondent's Port Adelaide office in January 1987. Mrs Stone's evidence was that the incident with the toy whistle had occurred before Ms Burford had commenced working at this office. I believe that there was therefore sufficient evidence to support his Honour's finding that the Stone incident had occurred at least a year prior to the incident involving the appellant. The time gap is significant because there was no evidence of any other such incident in the intervening period.

9. I am not persuaded that the learned trial judge was led into error by referring to the cases concerning acts of fellow employees (see in particular the reference to Antoniak v The Commonwealth (1962) 4 FLR 454). Although those cases were not directly on point, I believe that the judge only used them to draw a comparison with other types of cases involving a breach of a duty of care by an employer in a situation in which there had been an isolated act of misconduct.

10. Mr Frayne, an ear, nose and throat specialist, gave evidence that the longer the duration of a sound blast, the more likely it was that damage would be sustained and that there was a chance that trauma may be reduced if a telephonist could pull a handset away, thereby reducing the duration of the noise exposure. In my view, however, the isolated and apparently minor nature of the Stone incident was such that I do not believe that a reasonable employer in the exercise of his duty of care should have been required to withdraw the headsets or give a warning with respect to the use thereof.

11. It was common ground at trial that the sound limiting device eventually installed by the respondent had a salutary effect which diminished the noise coming down the phone. It was also established that the device had been available from about the early eighties. Graham Pogson, a senior engineer with Telecom, said in evidence, however, that the sound limiters had been designed and manufactured for Telecom use only, and were not necessarily available for open sale. The device had been developed within Telecom to deal with an emergency situation which arose in the early eighties, whereby Telecom experienced problems with "shrieking" in the network. The device had only ever been provided for Telecom employees and had never been made available commercially. Mr Pogson stated that if an enquiry had been made to Telecom, however, it would have suggested and supplied a sound limiter for between $300 and $400. Such a sound limiter was installed at the Port Adelaide office about three months after the whistle blowing incident which is the subject of this appeal.

12. Mr Monola, a technical manager and specialist hardware designer with NEC, and Mr Read, an electronics engineer, confirmed that the installation of such sound limiting devices was commercially unknown at the relevant time.

13. Mr Wallington, the manager of operational services at the South Australian Housing Trust, told the court that subsequent to the incident with the appellant, he had made enquiries as to the availability of a suitable device. He was told by NEC, the supplier of the equipment being used by the respondent's employees, that it could not assist. He subsequently had a conversation with a person at Telecom in which he was similarly informed that Telecom was unable to assist. It would appear that the appellant eventually provided Mr Wallington with a contact in Telecom (although the source of her information is not disclosed in evidence) and shortly thereafter the device was installed. In view of this evidence, I have some difficulty in accepting his Honour's finding that the evidence of the installation of a sound limiting device at Port Adelaide about three months after the appellant's injury was sufficient to discharge her onus of establishing the practicability of an alternative system. It seems to me that there is considerable merit in the respondent's argument that the lack of information concerning the availability of the device was such that it was not reasonably practicable to expect an employer in the exercise of its duty of care to have installed it.

14. Notwithstanding his Honour's finding as to this matter, however, I agree with the conclusion he reached, namely, that the appellant had not established a breach of the duty of care by the respondent. In my opinion, therefore, the appeal should be dismissed.