Simiele v Redmond Repetition Engineers Pty Ltd
[2008] VCC 1463
•5 December 2008
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT MELBOURNE
CIVIL DIVISION
SERIOUS INJURY
Case No. CI-03-08433
| MARIO SIMIELE | Plaintiff |
| v | |
| REDMOND REPETITION ENGINEERS PTY LTD and ALLIANZ AUSTRALIA WORKERS COMPENSATION (VIC) LTD and VICTORIAN WORKCOVER AUTHORITY | First Defendant Second Defendant Third Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 November 2008 | |
DATE OF JUDGMENT: | 5 December 2008 | |
CASE MAY BE CITED AS: | Simiele v Redmond Repetition Engineers Pty Ltd & Ors. | |
MEDIUM NEUTRAL CITATION: | [2008] VCC 1463 | |
REASONS FOR JUDGMENT
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Catchwords: Accident Compensation Act 1985 – s.88(4)(a) – industrial weather exposure and injury occurred at workplace of first defendant as last employer – whether test is injury, exposure or nature of employment – factors to be considered
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S. Carson | Maurice Blackburn Cashman |
| For the Defendants | Mr A. Middleton | TAC Law Pty Ltd |
HIS HONOUR:
General background
1 This matter comes before me by way of a claim by the plaintiff against the defendants in respect of alleged industrial deafness for which the plaintiff is claiming compensation pursuant to s.98C of the Accident Compensation Act 1985 (“the Act”). The provisions of the Act specifically dealing with industrial deafness are ss.88, 89 and 90. Section 88(4)(a) is of particular relevance to the present dispute which, as shall be discussed, is of narrow ambit.
2 Mr S. Carson of counsel appeared on behalf of the plaintiff. Mr A. Middleton of counsel appeared on behalf of the defendants. The defendants have common interests, and henceforth I shall refer to them collectively as “the defendant”, meaning Redmond Repetition Engineers Pty Ltd which employed the plaintiff during the relevant period.
3 Oral evidence was adduced from the plaintiff; from Mr John Redmond, director of the defendant; Mr Geoffrey Pennycook, general manager of the defendant at the relevant time; and Mr Craig Solomon, team leader of the section in which the plaintiff worked at the relevant time. In addition, a number of documents were tendered and counsel made brief submissions.
4 The issue in the case is a limited one. I am asked to determine whether, for the purposes of s.88(4)(a) of the Act, injury in the form of industrial deafness arose out of the plaintiff’s employment with the defendant. That the plaintiff suffers from industrial deafness is not in dispute. I am not asked to make any assessment of the degree of hearing loss. Basically what I am asked to determine is what could be described as the gateway question. Was the plaintiff’s employment with the defendant the last in which the injury arose for the purposes of s.88(4)?
5 In fact, whilst that remains the central question to be answered, the factual dispute was even narrower. It is not disputed that, at the relevant time, the defendant’s workplace was noisy, and the area in which the plaintiff worked noisy to the extent required to damage hearing in the absence of ear protection devices. There is no doubt but that, prior to commencing employment with the defendant, the plaintiff signed an agreement in relation to the importance of ear protection and the provision of equipment in this regard. There is also no doubt but that the plaintiff was issued with modern earmuffs and was expected to wear them. For the purposes of the dispute before me, no argument arose as to their efficiency or adequacy. The factual dispute centred upon the extent to which the plaintiff wore them whilst in the workplace.
6 Of course, this not being a claim based upon negligence but for statutory benefits, the questions concerning the adequacy of the workplace policy, supervision and the like do not arise, and neither do questions as to whether non-compliance by the plaintiff was deliberate or in some way constituted contributory negligence. The central issue boils down to one of the extent to which the plaintiff did or did not wear the earmuffs provided by the defendant.
Factual background
7 As is apparent from the above, many of the facts are not in dispute. I shall summarise them briefly. The plaintiff is a 68 year old man of Italian origin who migrated to Australia in 1962. He had previously worked as a builder’s labourer. In Australia he worked, firstly, for an entity called Cyclo Windows as a machine operator. The work was noisy and he did not wear ear protection. In 1976 he commenced employment with Britax Childcare Products (“Britax”), again working with machines and presses that stamp out such things as the metallic fasteners for child restraints in motor vehicles. This was also a noisy workplace and the introduction of ear protection did not occur until approximately 1990. Hearing loss tests carried out at Britax in 1991, 1994 and 1996 confirmed that the plaintiff was, by then, suffering from industrial deafness.
8 In approximately December 1997, and following some negotiations with Britax and some of its employees, the defendant purchased from Britax four of its machines. The plaintiff also transferred to employment with the defendant. There he was effectively doing the same work on the same press and producing the same products, but in a different location.
9 As stated, prior to commencing work with the defendant the plaintiff signed an agreement acknowledging the importance of ear protection. He was also issued with earplugs and earmuffs. His preferences seems to have been to wear the earmuffs, and there is no reason to doubt but that they were of high quality. Mr Redmond, managing director of the defendant, has a very high level of commitment to ear protection.
10 Photographs of the work area which demonstrate the location of the machines were tendered, as was a report from SysTec Pty Ltd, an entity which carries out assessments of industrial noise levels. The assessments carried out in September 1998, reveal that the workstation of the plaintiff was the noisiest in the press shop with exposure exceeding the required standard. Of course, as I understand it, such testing does not take into account the use of ear protection, but does indicate that the level of noise would be capable of causing industrial deafness should ear protection not be worn. Indeed, there is no argument between the fact that the defendant’s workplace was noisy, and it was not suggested that, in the absence of ear protection, the noise level was not of sufficient magnitude to cause industrial deafness. The plaintiff described the press as repeatedly making a noise like a shotgun as it stamped out metallic parts. In addition, and in the relevant area of the workplace, there was a machine known as a “rumbler”. This was in the nature of a large barrel filled with stones and metallic parts, the object of the exercise being that the barrel would rotate and the stones would take the sharp edges off the metallic pieces. As I understand it, this machine was in the nature of a large tumbler and, as one might expect, was noisy. It ran for lengthy periods, and would continue to operate if, for example, the plaintiff turned off his press.
11 In summary, this was a noisy workplace, which is hardly surprising given the nature of the repetition engineering work that was carried out there. I accept that the area in which the plaintiff worked was particularly noisy. The real question is the amount of time spent by him carrying out his work without his wearing ear protection.
Ruling
12 This was a case in which each witness was impressive. In actual fact, when the evidence of each is carefully considered, there is far less conflict between them than might at first have appeared to be the case.
13 The first determination which I make is this. I am quite satisfied that there were periods during the working day when the plaintiff removed his ear protection. He gave evidence that he did this when engaging in conversation with his superiors and workmates and that such conversations – concerning work to be done, rate of production and the like – occurred on a regular basis. In addition, in warmer weather the plaintiff’s ears would become very hot and sweaty under the earmuffs, and he would remove the earmuffs from time to time. I shall turn shortly to the question of the duration for which they were removed and the possible significance of this.
14 That the plaintiff did remove the earmuffs in the workplace on occasions was confirmed by the evidence of Mr Pennycook, who was called on behalf of the defendant. At the relevant time he was the general manager of the defendant. He is no longer with the defendant, and was a perfectly credible witness. He gave evidence that he could remember the plaintiff lifting the ear protection during short conversations of 30 seconds or so, and taking the ear protection off completely during longer conversations, which could last for ten minutes. During these lengthier conversations, he would either turn the machine on which he was working off or would go outside the factory area. Mr Pennycook agreed that, if the plaintiff stayed in the vicinity of the machine, the rumbler, which was noisy, could still be operating. Mr Pennycook also agreed that he was only on the workshop floor for some two to three hours on a daily basis and that it would be impossible for him to say whether or not the plaintiff was wearing ear protection during the balance of the day.
15 Mr Redmond, a most impressive witness with an admirable commitment to ear protection (he suffering from industrial deafness, having a profoundly deaf granddaughter, and having raised substantial amounts to assist the profoundly deaf), very fairly agreed that he would only be on the factory floor, on average, for some three to four hours per day. For the balance of the working day, he was not in a position to say what the plaintiff was doing or whether he was wearing ear protection. He also agreed that, when he, as boss, was on the floor, the staff was more conscientious about wearing earmuffs. As he said, “They got the message pretty quick”.
16 Mr Solomon, the team leader, originally stated that he had never observed the plaintiff performing work without the earmuffs in place. However, he also made the fair concession that he did not have the plaintiff under observation all day. In cross-examination, he agreed that had seen the plaintiff, when conversing, remove his earmuffs and either turn his machine off or go outside. He had also observed the plaintiff pull his earmuff away from his ear without turning the machine off during short conversations. He also gave evidence that he preferred earplugs because he found that he would sweat a lot inside earmuffs.
17 Incidentally, both Mr Pennycook and Mr Solomon frankly admitted that there were times when they should have been wearing their ear protection and did not do so, thus being the subject of comment from Mr Redmond. Whilst this is not in itself of great significance, it underlines the proposition that, despite the policy that was in place, there were occasions when those on the factory floor, including those superior to the plaintiff, failed to wear the ear protection provided.
18 Accordingly, when the evidence is analysed, and given that the plaintiff was also a credible and impressive witness, his assertion that there were times when he removed his ear protection whilst on the factory floor is confirmed rather than contradicted. I accept it.
19 The next issue concerns the impact of such evidence and the appropriate test to be applied. In relation to this latter point, counsel agreed that the statutory provisions are far from clear.
20 It seems to me that, whether the test be the occurrence of actual injury or whether it relates to exposure, however minimal, the outcome is the same. In either instance, the plaintiff has discharged the burden of proof. Indeed, as shall be discussed, the result is the same if the test is based upon the nature of employment rather than actual injury or exposure.
21 In s.5 of the Act, industrial deafness is defined as follows:
“Industrial deafness means any condition of deafness caused by –
(a) exposure;
(b)continued exposure; or
(c)periods of continued exposure –
to industrial noise.”
22 That the plaintiff suffers from such a condition caused by exposure to industrial noise is not disputed. By consent, an oral report of Mr Costello obtained by Mr Carson over the telephone (Mr Costello being unavailable) was put in evidence. This was in addition to Mr Costello’s written reports. The oral report was to the following effect. If the earmuffs used by the plaintiff were “state of the art”, they might reduce the noise level by something in the order of 20 decibels. Bearing in mind the results of the testing performed by SysTec in relation to the area in which the plaintiff worked, had the plaintiff worn the earmuffs all day, that would have been safe for him. However, if there was an hour or two each day when the plaintiff did not wear the earmuffs, Mr Costello was of the view that this would be sufficient to cause noise-induced hearing loss.
23 The plaintiff has given evidence that, on average, for the reasons that have been set out, he only wore the earmuffs six of the eight hours of each working day. It was not suggested by the plaintiff that he removed the ear protection for the same time each day, and clearly what he was giving was an approximation, but it was one from which he did not move in cross-examination. When the evidence is analysed, this assertion was not really contradicted by the other witnesses. Mr Redmond was on the factory floor, on average, three to four hours per day and Mr Pennycook less than that. Mr Solomon admitted that the plaintiff was not under his observation at all times. As previously stated, both Mr Pennycook and Mr Solomon conceded that they were aware of times when the plaintiff did not wear his ear protection. In the circumstances, I accept the evidence of the plaintiff. He was a credible witness whose version of events could not really be said to have been contradicted.
24 If that be so, the oral report of Mr Costello would clearly implicate the defendant. I might add that the oral report of Mr Costello is the only expert medical evidence which directly addresses the issue of the hours of wearing the ear protection and the effects thereof. However, in two written reports in 2006, Mr Costello expressed the view that some part of the hearing loss, albeit small, occurred whilst the plaintiff was working for the defendant.
25 It may well be – indeed, it seems highly likely – that the majority of the damage to the plaintiff’s hearing occurred prior to his employment with the defendant. Nevertheless, despite Mr Redmond’s exemplary attitude, some injury has occurred with the defendant, and it is the last employer in time where such injury occurred. Therefore, pursuant to s.88(4) of the Act, the date of injury is deemed to have been the plaintiff’s last day of relevant work with the defendant.
26 The above conclusions are based upon the premise that, for the date of injury to be deemed to be the last day with the last employer in time, actual demonstrable injury must be proven to have occurred. Whilst this has been proven, I am far from convinced that a test of this stringency is appropriate. It seems to me that any exposure in an employment to noise capable of causing industrial deafness, however brief that exposure might be, is sufficient to attract the operation of the Act and to implicate such employment. If it is the last such employment in time, the employer becomes the party against which the claim is made.
27 This approach seems to be consistent both with the manner in which the Act is intended to operate and consistent with long-standing compensation law.
28 That industrial deafness is an injury which occurs by way of gradual process over time and is due to the nature of the employment are propositions that can scarcely be challenged. In Stevenson v Buchanan and Brock Pty Ltd [1971] VR 503, Gillard J categorised industrial deafness as an injury comprised by “the cumulative effect of a series of traumata over a period of years”. In Accident Compensation Commission v Fletcher [1990] VR 102, McGarvie J stated that:
“The injury of industrial deafness which each respondent suffered is an injury of the type described by the following words which appear in s.82(6):
‘… an injury which occurs by way of a gradual process over time and which is due to the nature of the employment in which the worker was employed …’.”
29 His Honour went on to say the following:-
“In the case of industrial deafness occurring by gradual process there is only one injury for which compensation is payable under the A.C.A. That injury is the whole hearing impairment existing on the deemed date of injury and produced by exposure to industrial noise in employment.”
30 In the same decision of the Supreme Court, Marks J referred to the description of “boilermaker’s deafness” by Barwick CJ in Commissioner for Railways v Bain (1965) 112 CLR 246, and also expressed the view that:
“ … industrial deafness is not strictly speaking a disease but rather a condition resulting from a large number of traumata. The cumulative effect, when measurable, is capable of constituting an ‘injury compensable under the A.C.A.’.”
31 Marks J also stated the following:-
“It can thus be seen that the solution in New South Wales has been understood to provide compensation on the footing that the whole deafness, no matter over what period it arose and progressed or by what employment at what time it was compounded, occurred at the one time so as to become compensable as if in truth it had done so. In my opinion, a fiction of the same kind has been adopted to achieve a similar solution in Victoria.”
32 The emphasis upon exposure is also to be noted, and indeed that word is used in the definition of industrial deafness contained in s.5 of the Act.
33 Thus, bearing in mind the operation of ss.82(6) and 88(4) of the Act and the definition of industrial deafness, the designated employment upon which liability rests is that in which the worker was last exposed to industrial noise. That is regardless of whether an actual injury, in the sense of a quantifiable deterioration in hearing, has occurred. Exposure to industrial noise, of whatever duration, is sufficient.
34 Of course, in the present case – and bearing in mind the evidence of the plaintiffs, Mr Pennycook and Mr Solomon – it is clear that such exposure occurred. If the plaintiff has satisfied the more demanding test of injury, he has obviously satisfied a test based upon exposure to industrial noise.
35 I might add that, arguably, there is support for the proposition that the appropriate test is even less demanding. It may be that all that is required in order to visit liability upon the last employer in time is that the worker have industrial deafness as defined and that, in accordance with the wording of s.82(6), it be due to the nature of the employment in which the plaintiff was employed. In other words, arguably, there may be even no need for exposure as such, provided that the particular worker suffers from industrial deafness and the employment in which he is engaged is of a nature or type that has the characteristic of producing or being associated with industrial noise.
36 Support for such a proposition can be found in decisions such as The Commonwealth v Bourne (1960) 104 CLR 32. In that decision, Dixon CJ quoted the words of Lord Sumner in Blatchford v Staddon & Founds (1927) AC 461 as follows:-
“In construing the Act effect must be given to the words ‘to the nature of’. Their meaning cannot be the same as if the section had simply said ‘is due to’ any employment. I think they are inserted because this part of the section is not concerned directly with something arising out of the particular service of the particular employer sued, but with results which are incidental to the class of employment, in which the workman has served several employers”.
Dixon CJ went on to state the following:-
“The word ‘nature’ is a wide as well as a vague word and one must be careful not to narrow its application or attempt to reduce it to too much precision. But it does seem to refer to a connection between the ‘disease’ in the defined sense and the description of employment in virtue of its tendencies, incidents or characteristics. The investigation of sales tax cases (being the employment in which Bourne was engaged) appears to me to have nothing in its nature to accelerate vascular and cardiac degeneration …”.
37 Thus, in a case such as the present one, once it is established that the plaintiff suffers from industrial deafness, and once s.82(6) is applied, the only question might be whether the last employment in which he was engaged possessed the characteristic of producing industrial noise. Even if one did not take judicial notice of the fact that repetition engineering is renowned for being noisy work, the evidence of Mr Redmond, who stated that he had been in engineering since he was aged 16 and has industrial deafness, might suffice. In any event, I have already found that the plaintiff has discharged the burden of proof whether the test be based on injury or exposure and these further observations are made in the light of the uncertainty surrounding the appropriate test. Whichever test is applied, it seems to me that the plaintiff satisfies it.
Conclusion
38 As previously stated, I have been asked only to determine this gateway question relating to whether the plaintiff’s employment with the defendant was the last in time in which the injury of industrial deafness arose for the purpose of s.88(4). I find that the plaintiff is successful in this regard and that the injury did so arise. I would repeat that I can appreciate the disappointment which Mr Redmond might feel given his particular and admirable attitude towards loss of hearing. This finding is in no way meant to be a criticism of the work practices which he has introduced at the defendant’s workplace. It is simply the result of the operation of the Act as it applies to injuries of this sort.
39 I shall hear the parties as to the future conduct of the matter in the light of this ruling and as to any ancillary orders that may be required.
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