SAAD v METAL MANUFACTURERS LTD [1994] NSWCA 275

SAAD v METAL MANUFACTURERS LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, MAHONEY and PRIESTLEY JJA 16 June 1994, 16 June 1994 [1994] NSWCA 275

INDUSTRIAL DEAFNESS — whether common law negligence — effect of Limitations Act — evidence that segregation of machines would not have reduced impact of noise on worker — case in negligence not made out.

The appellant, who had been employed to operate noisy machinery, brought a claim in common law negligence seeking damages for industrial deafness from his employer. During his employment the machines were not segregated but ear muffs were supplied and noise warnings displayed.

Held: As there was expert evidence that the segregation of machines would not have altered the noise levels to which the appellant was subjected when at the machine, it was established that the lack of noise reduction in the factory was causative of the appellant's

increasing deafness. Hence, the case in negligence was not made out. ORDERS Appeal dismissed with costs.

Priestley JA Mr Saad, the appellant in this appeal is a worker who started work with the respondent around about February 1971. Audiometric testing conducted by the defendant on 11 February 1971 showed, at least according to the testing then done, that he had a 16.3 per cent loss of hearing in the left ear and 9.3 per cent loss of hearing in the right ear. It seems that thereafter he was tested yearly and nearly all of the yearly results are available. They show the gradual increase in loss of hearing in both ears. A test done on 7 December 1976 showed percentage hearing loss of 22.8 in the left ear and 14.5 in the right ear. A test done on 2 December 1977 showed the loss of 31.3 per cent in the left ear and 24.8 per cent in the right.

The appellant left the employ of the respondent on 14 November 1978. A further test is in evidence done by Dr Hilliar on 20 August 1979. This showed a loss of 26.7 per cent for the left ear and 15.1 per cent for the right ear.