Allouche v Leigh-Mardon Pty Ltd and Pps (No 2) Pty Ltd t/as Prestige Cleaning Services Pty Ltd [2001] NSWCC 5 (9 March 2001)

Last Updated: 23 July 2001

NEW SOUTH WALES COMPENSATION COURT

CITATION: Allouche v Leigh-Mardon Pty Ltd and PPS (No 2) Pty Ltd t/as Prestige Cleaning Services Pty Ltd [2001] NSWCC 5

PARTIES:

Ahmed Allouche

v

Leigh-Mardon Pty Ltd and PPS (No 2) Pty Ltd t/as Prestige Cleaning Services Pty Ltd

CASE NUMBER: 30033 of 1999 of 2001.00

CATCH WORDS: Elements of Workers Compensation

LEGISLATION CITED:

CORAM: Neilson J

DATES OF HEARING: 09/03/01

EX TEMPORE DATE: 09/03/2001

LEGAL REPRESENTATIVES

FOR APPLICANT:

Mr M J Clardige instructed by Peter Erman appeared for the applicant.

FOR RESPONDENT:

Mr C Robertson instructed by A O Ellison & Co appeared for the first respondent.

Mr A J McCarthy instructed by Herbert Geer & Rundle appeared for the second respondent.

JUDGMENT:

1. This is a claim for industrial deafness. I understand from what I have been told by the parties from the Bar table that the quantum of the deafness claimed is approximately 9.34 per cent which, as I understand it, amounts to the princely sum of $6,006.

2. The second respondent applies for an adjournment. The second respondent was handed this morning by applicant's counsel a copy of a report of Dr Stanley Stylis, an otorhinolaryngologist, bearing date 31 March 2000. It is to be noted the report is almost one year old. That report contains the following history:

He says that he has used the same industrial strength Electrolux vacuum cleaner since 1991. The motor on this machine was only refurbished a few months ago; before that, it was making such a loud noise that the tenants of the building where he was cleaning complained of the noise. Thus, he was only able to use the vacuum cleaner after hours. In the small rooms this would be extremely noisy.

3. That history indicates that the refurbishment of the machine to make it quieter, which is the inference to be drawn from the history, occurred in late 1999 or early 2000 prior to the deemed date of injury against the second respondent. The second respondent did request some particulars of the applicant's claim. The form of the request however was not specific to a claim for boilermaker's deafness or deafness of the like origin. The relevant request is this:

Statement of duties and details of all activities performed by your client whilst in employment with the second respondent.

The replied delivered on 8 March 2001, that is yesterday, was this:

Cleaning duties. He uses a vacuum cleaner on the floor three hours a day, an Electrolux industrial.

4. There appears to be common ground from the way counsel have conducted themselves before me this morning, that some time between a formal claim being delivered to the second respondent in early 2000, and today, noise level testing has been carried out at the respondent's premises and it stated by learned counsel for the second respondent that that indicated the noise level emitted by the vacuum cleaner of 71 dBa L aeq which is insufficient to carry a real risk inducing industrial deafness.

5. It is clear that the applicant's case is that the noise level measured recently on behalf of the second respondent does not represent the noise to which he had been exposed antecedent to late 1999 or early 2000. The second respondent seeks an adjournment because a witness who is alleged to be able to establish that there was no material change in the noise level of the vacuum cleaner is not available to give evidence and has not been served with a subpoena.

6. The forms of this Court are contained in a practice note. The first form is the normal form of application for determination. The last part of the form contains this endorsement:

Note;

Further particulars may be appended.

Particulars must be given of any other facts alleged, failure to give which may take the respondent by surprise.

7. A relevant fact here appears to me to be the refurbishment of the industrial vacuum cleaner prior to the testing of its noise level by the respondent's expert. The applicant failed to apprise the second respondent of that material fact. It is unfortunate that was not done. If Dr Stylis' report of 31 March 2000 had been served about the time it was received by the applicant's solicitors the current problem would not have arisen. It is equally unfortunate that the respondent's request for particulars was in general form and not particular to a claim for industrial deafness or deafness of the like origin.

8. It appears to me that the second respondent is entitled to call the person whom it alleges will disprove the allegation of material amelioration in the level of noise since early 2000, and that person is not available because it was not known that he was needed because the respondent had not been apprised of an alleged fact. It appears to me that on the issue as to costs, both the applicant and the second respondent should be seen as having some equal responsibility or some responsibility at least for the current position.

9. The sum of money involved is relatively small. There is no suggestion of any hardship in granting the adjournment to the respondent.

10. In the circumstances, the orders are: on the second respondent's application, opposed by the applicant, adjourned, stood over to the top of the pending list. Costs thrown away by the adjournment to be costs in the cause.

11. The first respondent is not to be liable in any event for the costs thrown away by today's adjournment. If it is determined that the applicant be successful, but only against the first respondent, the applicant's costs of today are to be paid by the second respondent.

Mr M J Claridge instructed by Peter Erman appeared for the applicant.

Mr C Robertson instructed by A O Ellison & Co appeared for first respondent.

Mr A J McCarthy instructed by Herbert Geer & Rundle appeared for second respondent.