NARROW FABRICS MANUFACTURING PTY LTD v KAHWAJIAN [1996] NSWCA 381

NARROW FABRICS MANUFACTURING PTY LTD v KAHWAJIAN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY AP, BEAZLEY JA and Simos AJA 20 September 1996, 20 September 1996 [1996] NSWCA 381

WORKERS COMPENSATION — Duty of employer to provide safe system of work — Provision of hearing protection in noisy environment

Priestley AP: Beazley JA will give her opinion first.

Beazley JA This is an appeal from a decision of Nash DCJ in respect of a claim brought by the respondent for damages for a hearing loss which he sustained during the course of his employment with the appellant.

The appeal is brought on three grounds. First, on the ground of liability; second, as to his Honour's finding in respect of contributory negligence; and third, in respect of the quantum of damages awarded by his Honour.

The facts are within a short compass and may be recounted briefly. The respondent was employed by the appellant for a period of about eighteen months or so between August 1984 and August 1986, as a textile technician performing duties requiring him to maintain and repair various forms of machinery in the appellant's factory, the appellant being a textile manufacturer.

The appellant's factory comprised two floors on which there were located many types of machinery relevant to a textile business; and there seemed to be no dispute that the working conditions were very noisy. The appellant did provide a level of noise protection for its employees. That comprised the provision of ear plugs which were located in a dispensing machine adjacent to the bundy machine where employees clocked on each morning. There was evidence that approximately 300 to 500 ear plugs were used in a two to three week period.

There was also, near the bundy machine and the ear plug dispensing machine, a sign which depicted a person's head covered by ear muffs and which bore the wording "Hearing Protection Must be Worn".