The liability trap

Imagine the following scenario: A person with a 20 year history of working in a heavy industrial environment, who suffers from profound industrial deafness, commences work in your business.  

The employee works for two months for you, and then makes a claim for permanent hearing disability, against your business, under the relevant workers compensation legislation.

Can he succeed? The answer is: Yes, or at least probably.

The courts and Parliament have struggled with insidious illness/injury like asbestos related illnesses and industrial deafness.

In the recent decision of Simiele v Redmond, Judge Bowman concluded:

“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.”

The decision means any evidence of exposure, any at all, permits a finding that the last employer in time created the entire loss!

What can you do?

• Accurate pre-medical checks, and where appropriate undertake proper (which in the above case, would be audiometric) assessment.
• Induct the new employee into OH&S rules – particularly protection against further injury to hearing, emphasising the mandatory use of personal protective equipment (PPE).
• Ensure all the factory respects PPE rules. That means all the supervisors and employees do not lift hearing protection to talk in loud areas, for example. The policy procedure and practice must be followed rigorously, and breaches properly recorded and punished.
• Regularly undertake noise readings and advise employees of areas of risk.
• Document, document and then document.
• Don’t permit breaches, because your premium will reflect it!

Best of luck! The law has grown to assist the vulnerable. The risks have now shifted to the employer.

Andrew Douglas is the founder, principal lawyer and managing director of Douglas Workplace & Litigation Lawyers. Andrew is an experienced commercial litigation and workplace lawyer, who acts both as a solicitor and advocate.