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. The appellant commenced proceedings against the respondent on 11 August 1983. The date of the commencement of the proceedings and the Limitations Act meant that if he were able to establish a cause of action against the respondent he would only be able to obtain damages in respect of the period commencing on 11 August 1977, approximately fifteen months before he left the employ of the respondent. In view of the figures recorded by Dr Hilliar about nine months after the appellant left the respondent's employ it would seem that the only prospect of obtaining damages if the appellant were able to establish a cause of action would be in respect of the increase in loss recorded by the employer's testing in the period between 11 August 1977 and 2 December 1977. On the available testing materials it is unlikely that a court would have held that there had been a deterioration between 2 December 1977 and 14 November 1978 in view of Dr Hilliar's testing on 20 August 1979 which showed lower levels of loss than the test of 2 December 1977 had shown, so that at best on the figures the appellant might have been able to persuade a court had he shown a 2 UNREPORTED JUDGMENTS cause of action, that he should be recompensed for a third of the hearing loss that occurred between the tests of 7 December 1976 and 2 December 1977 which, on a very rough calculation, works out at something like three per cent for each ear. Thus the appellant, in commencing his proceedings against the respondent, had great difficulty facing him in regard to any damages he could establish, if he could establish a cause of action. In his proceedings he relied on two causes of action - common law negligence and breach of statutory duty. The trial was conducted, it would seem, principally on the first of these two alleged causes of action and, in the written submissions filed on the appellant's behalf for the appeal, it was made clear no reliance would be placed in the appeal on the cause of action for breach of statutory duty. The evidence given before the trial judge showed that the appellant worked directly upon noisy machines. Put in a very simple summary way, the case that he was seeking to make can be said to have been that the employer did not take reasonable care to protect him against the deafening effects of the noise from the noisy machines upon which he was working, and that he could prove deafness, at least to some extent, caused by the work he was doing, in the course of which, if his contention was correct, he had not been sufficiently protected against the consequences of the noise in the workplace. The case for the appellant was said to be supported by evidence from Mr Eden, an expert in the matter of acoustics and audiometry, The case sought to be made was that the respondent employer should have organised its machinery in such a way as to reduce the noise level. Reference was made to a standard known as Standard AS 1269, and, broadly speaking, the appellant's case was that the employer had been in breach of this standard and it was the breach of the standard which had caused his danger. The trial judge considered the evidence of the expert and, in a finding that really was crucial to his decision, said: "Although it is true that the machines were noisy the evidence does not satisfy me that it was practical to segregate the machines from each other or that, even if this had been done, the plaintiffs health would have been benefited." This finding of his Honour's was based, it would seem, upon a paragraph in the expert's report which had been tendered in the appellant's case. The relevant paragraph read: "The noise from the machines and the tools operated by Mr Saad are generally not easily reduced by the usual noise reduction practices. In most cases the noise is generated by the work itself and in view of the large sizes of the materials and components and the need to move them around the factory, it is not easy to enclose noisy machines, but it could have been done." In his oral evidence Mr Eden elaborated on this paragraph and, in particular, in examination in chief gave reasons why in his view it would have been possible to enclose the noisy machines on which Mr Saad worked. He maintained his view that this could have been done although there were some difficulties in his maintaining it. It was clear from the report, which he had signed, that he had himself not interviewed the appellant. This had been done by two of his employees and Mr Eden worked from their reports of what Mr Saad, had told them. There is nothing intrinsically wrong in such a procedure but it is something that may occasion a judge to place somewhat less reliance on the opinions emerging from the procedure adopted. In the report this sentence occurred: "Without a view of the factory we have been unable to determine an accurate noise level for the machines." URJ SAAD v METAL MANUFACTURERS LTD (Priestley JA) 3 This was a clear statement that neither the employees who interviewed the appellant nor Mr Eden himself had had a view of the particular factory which included the appellant's work place. In his evidence to the court Mr Eden modified the statement in the quoted sentence to some extent in that he said that he had been in working premises of the respondent and had what he considered a sufficient idea of the noise levels and the type of machinery present in their premises, but it does seem inescapable, upon a reading of the report together with his evidence, that he had not himself seen the particular working place which Mr Saad had described, both in his evidence to the court and in his interviews with Mr Eden's employees. This would provide another reason why the trial judge might not feel confident in relying on what Mr Eden had to say about the noise levels in the factory and what could have been done by the employer to reduce the level Of noise which Mr Saad was subject to in the particular circumstances of his work. What I have said may give some help in understanding why it was that the trial judge said that the evidence did not satisfy him that it was practicable to segregate the machines from each other. There is, however, a more fundamental reason which makes the appellant's case extremely difficult to maintain in this court. In the paragraph which I read earlier from the report tendered in evidence, which Mr Eden had signed, there appears the proposition that in most cases machines and tools of the kind operated by Mr Saad themselves generate the noise which is the subject of complaint in the present case. The rest of the paragraph and the evidence given by Mr Eden about the steps that could have been taken to reduce the level of noise in the factory from the machines really do not assist the appellant once it is realised that what Mr Eden was really saying was that, in Mr Saad's case, there was no way of effective noise reduction. The noise was generated by the work itself and for somebody working directly upon the machines their noise level could not be reduced by any intervening barriers or precautions. The noise, in the nature of the machinery, came directly to the worker. In those circumstances the only protection that could be given to the worker was by direct protection of the ears, and this was done. From the beginning of the worker's employment he was supplied with ear muffs and it is plain from the materials that he word them continually during his working hours on the machines. The ear muffs as supplied to the worker and in the context of the instructions given to him and noise warnings displayed by notice in the factory appear to be the reason why the trial judge said that he was not satisfied that there had been any breach of standard AS 1269. However, the point is that, in light of the way the case was conducted at the trial, the only way the appellant could succeed in displacing the judge's decision against him on liability was if the finding which I earlier described as crucial to the judge's reasoning could be overturned. The appellant's counsel in the course of argument agreed that this was so and I have therefore not referred specifically to the individual grounds of appeal in their final form. For the reasons I have indicated I do not think the crucial finding can be overturned. In particular, that part of it which said - even if the machines had been segregated that would not have altered the situation so far as the appellant's health was concerned - cannot be said to be wrong. That finding meant that segregation of the machines would not have altered the noise levels to which he was subjected. This finding was fully justified by Mr Eden's report, and contradicted the proposition on which the appellant's case before the trial judge 4 UNREPORTED JUDGMENTS depended, namely that the lack of noise reduction in the factory was causative of increasing deafness on the appellant's part. The appellant did not satisfy the judge of mat ingredient of his cause of action. What I have earlier said states, in a compact way, what it was the judge said in regard to that ingredient in the cause of action, and the reasons why, first, he was justified in saying what he did and, second, why it does not appear to the court that there is any basis upon which that aspect of his reasoning can, or should, be overturned. It follows, in my opinion, that the appeal cannot succeed and should be dismissed with costs. Kirby P I agree with what Priestley JA has just said. A day may come where, ifan employer exposes his employee to prolonged and extreme noise against which no practical protection can be provided, that this court may have to consider whether, in such circumstances, liability exists in common law under some cause of action different from negligence. However, this case was not fought upon that basis at trial, nor was it raised in this court in the appeal. It could not have been raised in the way in which the matter proceeded at trial and this court upon the conventional footing of common law negligence. For the reasons which Priestley JA has given that case was not made out and it was open to the trial judge to reach the conclusion he did. No error has been shown in his conclusion. This court cannot, therefore, interfere. I agree that the appeal should be dismissed with costs. Mahoney JA I agree with what has been said by Priestley JA and then by the President. Nothing that is decided in this case indicates that the precautions to be taken against injury to a worker from noise are any less than would otherwise be inferred. The evidence in cases before this court indicates the difficulties which arise because of noise and the effect that noise may have upon workers. In the present case one matter was, I think, of interest. The evidence was in this case - it may not be so in other cases, or it may - that even if proper ear muffs and protective apparatus are provided, a temporary lifting of the ear muffs or the apparatus may, within a short time, cause damage to the worker This raises the question of the adequacy of protective devices of this kind. This is a matter which will require consideration in an appropriate case. The present case was, in my opinion, a special case. It was agreed that the worker, to succeed, had to establish a deterioration of his hearing in the period between August 1977 and November 1978. The judge was not satisfied that that was established. Upon my own review of the evidence I, with respect, would conclude that he was right. On that basis alone I think the worker failed in this case. I, therefore, agree with the orders that are proposed. Kirby P: The orders of the court are - appeal dismissed, appellant must pay the respondent's costs. Appeal dismissed with costs. Counsel for the Appellant: BF MURRAY QC / P ADAMS Instructed by: MAURICE MAY AND CO Counsel for the Respondent: GF LITTLE URJ SAAD v METAL MANUFACTURERS LTD (Mahoney JA) Instructed by: AO ELLISON AND CO