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". There was also evidence that the factory manager had a practice of informing new employees that hearing protection was available. The factory manager did not have any recollection of having so advised the respondent; and the respondent, for his part, said that he was never so informed. As it turned out, the trial judge did not find it necessary to determine what the position was as to the information which had been given to the respondent, for reasons to which I will turn shortly. The respondent conceded in evidence that he was aware that the ear plugs were available. This, of course, would have been obvious to him, given the location of the ear plug dispensing machine. He also gave evidence that he wore the ear plugs on occasions but did not always wear them. He said that he found that the ear plugs popped out from time to time. There was evidence that the senior engineer in the premises was aware that ear protection should be worn but he did not follow any such practice, or any such direction, had he ever been told of it. 2 UNREPORTED JUDGMENTS It was with that brief background, which is more fully canvassed in the trial judge's reasons, that his Honour found that it was obvious on the evidence that the appellant: "\.. did not really approach the problem of noise levels and the effect on employees with any real keenness. Indeed, the cavalier attitude to the employees' noise protection is typified by the evidence of Mr Benkovic" (the senior engineer). I have already referred to this. His Honour concluded therefore that the defendant had failed in its duty of care to the respondent in that it had failed to ensure, as far as it reasonably could, that the ear plugs were in fact used by the respondent. In my opinion there is nothing in the material to which counsel or the appellant has taken the court which has demonstrated that that finding is wrong. In particular, it seems to me that there is a difficulty in an employer on the one hand alleging that it has provided the appropriate hearing protection and erected signs giving the appropriate warnings, when in fact the information which it has given to the employees directly has been quite different, namely, that the ear protection was available, not that the ear protection must be worn. I am also satisfied on the evidence that the factory manager, and therefore the appellant, did not take appropriate steps to ensure that the plaintiff, working as he was in an extremely noisy environment, in fact used the ear protection which was available. In my opinion the appellant has clearly failed to provide a safe system of work. It is appropriate in this regard to refer to the statement of the High Court in McLean v Tedman (1984) 155 CLR 306 at 313 where it was said that the obligation of the employer is: "\.. an obligation to establish, maintain and enforce such a system. Accident prevention is unquestionably one of the modern responsibilities of an employer. And in deciding whether an employer has discharged his common law obligation to his employees the Court must take account of the power of the employer to prescribe, warn, command and enforce obedience to his commands." Counsel for the appellant next submitted that his Honour's finding in relation to contributory negligence was in error. His Honour found that the respondent was an experienced employee and should have taken care for his own safety. He apportioned the responsibility between the parties as to 80 per cent to the appellant and 20 per cent to the respondent. Counsel for the appellant submitted that this was proportionally low, such as to reveal error and that having regard to all factors to which I will refer in a moment, the respondent should have been found at least equally responsible for the injury which he has sustained, and perhaps even responsible to a degree greater than 50 per cent. The factors relied upon by the appellant were: that the respondent was an experienced employee; that there were warning signs in the premises; that ear plugs were available; that instructions were given to employees by management; that the respondent in fact wore the ear protection from time to time; that the supervisor believed that the respondent did wear the ear plugs and finally, that there was apparently a fairly high use of ear plugs within the factory because of the number used in every two to three week period. In my opinion the trial judge's determination of contributory negligence at 20 per cent has not revealed any error. It is unnecessary to deal with this matter in any detail other than to indicate that for the same reasons that I am of the view URJ NARROW FABRICS MANUFACTURING PTY LTD v KAHWAJIAN (Simos AJA) 3 that the appellant breached its duty of care to the respondent, that the finding of the level of that responsibility was within an appropriate range. That leaves only the question of damages. The hearing loss suffered by the appellant has not been severe. His Honour in fact referred to him as suffering a minor or even minimal hearing loss. His Honour then observed however, "but he has tinnitus, particularly in the right ear, which is a very annoying and disturbing ringing in the ears." His Honour recorded that this has caused the respondent considerable anxiety, worry and frustration, sufficient to have required a referral to a psychiatrist. Whilst there was no finding that any mental illness had been caused, his Honour considered that the respondent had undoubtedly suffered as a result of the tinnitus which he had sustained as a result of the appellant's breach of duty. His Honour assessed general damages in the sum of $25,000. In my opinion that is within an appropriate range and his Honour's determination in this regard ought not to be disturbed. In my opinion the appeal should be dismissed with costs. Priestley AP I agree. I do not think the appellant has shown any error in Nash DCJ's approach to fact finding or in his application of the law to the facts. I agree with the orders proposed by her Honour that we dismiss the appeal with costs. Simos AJA I agree with Priestley AP and Beazley JA. Priestley AP: The order of the court is the appeal is dismissed with costs. Representation: Counsel for the Appellant: G McNally Solicitors for the Appellant: Hunt and Hunt Counsel for the Respondent: C Simpson Solicitors for the Respondent: Brydens