Riganias v Victor Footwear [2002] NSWCC 4 (12 February 2002)

Last Updated: 15 July 2003

NEW SOUTH WALES COMPENSATION COURT

CITATION: Riganias v Victor Footwear [2002] NSWCC 4


PARTIES:
Nick Riganias
v
Victor Footwear Pty Ltd


CASE NUMBER: 50077 of 2000 of 2002.00


CATCH WORDS: Entitlements & Liability


LEGISLATION CITED:


CORAM: Geraghty J

DATES OF HEARING: 12/02/02

EX TEMPORE DATE: 12/02/2002


LEGAL REPRESENTATIVES

FOR APPLICANT:Mr M J Perry instructed by Nicholas Karefylakis
FOR RESPONDENT:Mr ML Snell nstructed by Goldbergs Lawyers


JUDGMENT:

1. Nick Riganias claims, pursuant to s 17, that he was exposed to noisy employment with the respondent between 1965 and 1979, that this employment had been the last employment to the nature of which his loss of hearing could be due; that pursuant to the medical certificate, he has suffered a binaural hearing loss of 11 per cent. He therefore claims an amount pursuant to s 66, and the costs of the provision of hearing aids.

2. Mr Snell of counsel informed me that the issues were:

3. Firstly, that the applicant failed to notify the respondent in reasonable time pursuant to s 92 of the Workers Compensation Act 1987.

4. Secondly, that the respondent’s employment was the not the last noisy employment.

5. Thirdly, that there was no satisfactory expert evidence to establish a link between the employment and the applicant’s hearing loss.

6. Fourthly, the principal issue was whether work with the respondent between 1965 and 1979 was employment to the nature of which the injury was due.
7. 1. Failure to Notify

8. S 92(1) of the Workers Compensation Act 1987 (which, since March 2001, is no longer operative) required notice of injury to be provided to the employer within six months of the injury. The applicant ended his employment in 1979, and provided notice of injury on 12 November 1999, 10 years later.

9. S 65 of the Work Injury Management Act does not apply since by the transitional provisions in Sch 6 Pt 9 cl 11(2), the section became operative after 4 March 2001. It was agreed between counsel therefore, that the provisions of s 65 of the Workers Compensation Act 1987 apply. Pursuant to subclause (2) of that section, the worker does not become disentitled to compensation by virtue of his failure to notify in circumstances where his failure was the result of ignorance, mistake or some other reasonable cause.

10. The applicant relied upon the services of an interpreter in the hearing before me, and despite this assistance, he seemed confused about his evidence and somewhat lost. He seemed to be a rustic type man who was uneducated in any formal sense, and disorientated by the legal system. It was not surprising that he said in evidence that he knew nothing about his entitlements, about his right to claim compensation for hearing loss, and did not realise that his hearing loss was connected with his work. He said that this information came to him about two years ago when he consulted the doctor about his back, and as though by accident, he was informed about a hearing loss which could be associated with his work.

11. That part of the answer which relied on the provisions of s 92 of the Workers Compensation Act was not forcefully pursued by the respondent, although nonetheless it was seriously pleaded. It seems to me that the worker’s failure to notify his employer was in fact the result of his ignorance. The requirement to notify within six months of the injury does not, in these circumstances, disentitle him.
12. 2. Subsequent Noisy Employment

13. In general, there was no persuasive evidence to establish that the applicant worked for someone after his employment with the respondent, that is, in employment to the nature of which a hearing loss injury could be due. The respondent led no evidence of a later noisy employment. It relied entirely on what transpired from the cross-examination of Riganias to establish this aspect of its answer. The applicant did work after 1979, in a takeaway fish and chip shop at Manly, and in a business at Carlingford which collapsed rather quickly. There was some suggestion that there might have been some street and traffic noise, and some noise from the patrons in the shop, but none of this was persuasive evidence of his working in noisy employment, in employment to the nature of which a hearing loss could be due. I was not persuaded that Riganias worked in subsequent noisy employment.

14. Noisy Employment

15. The principal issue was whether the respondent was a noisy employer. The evidence in support came from the applicant himself and his son, Constantine Riganias. The evidence against was that of the respondent’s managing director from as early as 1955, a Bill Cloros. His evidence was supported by a report of Jones Stewart dated 28 February 2000 (Exhibit 1).

16. Nick Riganias said that he had been employed by the respondent between 1965 and 1979. He had worked at their premises on Pacific Highway, St Leonards. He gave evidence of his duties, evidence that was somewhat confusing, but in general he said that his duties had not changed over the whole period of his employment. He said that he had operated machinery; that there had been 12 to 14 other employees on the lower floor where he had worked for about eight hours a day (ordinary time) and for an hour an half overtime on many occasions. He said that he had worked mostly on the sanding machine (sanding the soles of shoes), though he also said that he had worked on the cutting and the trimming machines from time to time. There were other machines on the floor - he described the number as too many, more than 25. Some of these machines were moulding machines.

17. Riganias said that he worked in a corner and that the other machines were about 1 to 2 m away from his work station. He worked on machines each day and for the whole time he was in the factory, and described the factory as quite noisy. He was not required to wear, nor was he provided with earmuffs or plugs. He said that when he spoke to others in the factory, he had to switch off the machine or speak loudly.

18. In 1979, Riganias realised that he had a hearing problem. He had recognised this a year or two beforehand. He said he had pain inside his ear, that there was too much dust and he was told to clean his ears out. He had problems conversing with his wife. He had a buzzing noise in his ears, mainly in the right ear. He also complained of balance problems. He noticed that he had to ask his friends to speak more loudly, that he had problems speaking on the telephone and watching television. He said that he had to sit close to the television set and even then he could not understand. This might have been because he does not speak English as his native tongue.

19. In cross-examination, it was suggested that the applicant’s duties had changed in 1973, that he had been working on the sanding machine from 1965 to 1973, but that from 1973 he had been working on a different process. He seemed very puzzled by this suggestion. His puzzlement seemed to be a natural, spontaneous reaction, not fabricated. It was put to him that for the last six years of his employment (from 1973 to 1979) he had been working on gluing and cementing of shoes and that this was work he performed by hand. He said that he had done this work as a secondary job; that he had kept working on the sanding machine and that when people needed to talk to him, they had to touch him on the hand to attract his attention. They could speak, but only in a loud voice. He denied that people were able to converse with him normally.

20. To a large extent this evidence was contradicted by the managing director, Mr Cloros. He is the managing director of the family company. It has been in existence since 1930, and he took over as managing director in 1963. He knew Nick Riganias well and regarded him as his best employee. They were friends and often spoke in the course of a working day. He said the applicant had joined his company (though he did not know when, since the records of those employees who had left the company were eventually destroyed). He thought he had worked for the respondent for about seven or eight years. I note that the author of Exhibit 1 was informed that the claimant had been employed for six or seven years prior to resigning in 1979.

21. This information did not agree with the length of time Riganias said he had been employed with the respondent. There was also a marked disagreement in the evidence about the duties of the applicant. Mr Cloros was sure that before 1973, the applicant had been sanding the edge of shoes and putting ink on them with a brush. This work was done with a machine which made some noise because it was operated on a belt. Mr Cloris said that one could converse with the operator normally, without any need of raising one’s voice. He said that before 1973 the applicant was also required to do some overtime, inserting stiffeners and cementing uppers. He did this for about an hour and a half each day, but by hand.

22. However, in 1973, a new process was introduced into the factory when they discontinued the line of footwear which was being produced and which required the sanding operation. After 1973, the applicant changed his duties, Mr Cloros said, to cementing bottoms of shoes before placing them in the moulding machine. This was done by hand. He did this until he left the respondent in 1979. Mr Cloros said that Nick Riganias was fast at what he was doing, that he did it all day long, though he did work some overtime, inserting stiffeners into shoes and cementing the uppers.

23. Mr Cloros said that while doing the cementing or gluing job after 1973, Riganias had been near a bank of six moulding machines immediately to his right. The closest one, Cloros said, was about 2 m from him. These six machines were operated by three compressors. Each machine closed every 30 seconds and then opened with a blast of air, like a hiss. Despite these machines at work, Mr Cloros said, employees could converse in a normal voice. He said that the job which Riganias was doing from 1973, was quieter than the sanding. He agreed there was a little bit of noise, and then added, It was like being in here in the Court. After this spontaneous unreflected remark, he qualified his observation a little by saying that there had been somewhat more noise than in court.

24. Mr Cloros said that in 2001, experts had come to his new factory at Lidcombe and recorded noise level tests of the machinery which was like the machines, (though not the same machines) which they had used in the factory at St Leonards. He said that he had sent the tester down into the factory. When Mr Cloros was asked to compare the level of noise at St Leonards in about 1979 with the level of noise in the factory at Lidcombe, he said that it was the same as far as the noise levels were concerned.

25. In cross-examination Mr Cloros agreed that there was more machinery in the factory at Lidcombe than there had been at St Leonards; that there were different machines and that they had been upgraded. He said that in 1973, the sanding plant had been put into storage and no longer used. It had remained in storage for a few years and later thrown out.

26. Mr Cloros also said that in 1973, there had been 12 to 14 employees working on the floor where Riganias had worked, though there had been 30 to 40 employees spread across the three floors of the factory. He agreed that there had been three compressors working six moulding machines, and that each compressor had been 1 hp, without any soundproofing. The compressors had been switching on and off about every minute. Mr Cloros said that he had spoken to the applicant every day, several times a day.

27. Exhibit 1 is an unsigned report prepared by a noise level testing firm. The operative attended the respondent’s factory at Lidcombe where it was operating four moulding machines. He was instructed, it would seem, that of the six moulding machines which had been operated at St Leonards, four had been moved to Lidcombe. I do not believe that this was the evidence of Mr Cloros. At least one of the machines operating at Lidcombe is bigger than any of the ones from St Leonards and was recently imported from overseas.

28. In any event, the report records that Riganias’ task was to cement the soles onto the upper sections of shoes, and of course this was the evidence of Mr Cloros, at least for the period 1973 to 1979. Nothing was recorded about the worker’s tasks on the sanding machine before 1973. The report notes that Riganias spent each shift working at one task and that his work station was situated in close proximity to the moulding machines, the closest machine being approximately 1 m away from his work station, and the furthest one was approximately 7 m away. Mr Cloros said that the closest moulding machine had been 2 m away.

29. The report records that the four moulding machines were air operated and ran constantly during each shift. The tests ran over a 48 minute period and were made at the operator’s ear level, the OEL. The tests recorded an LEQ of 79 db(A). This is well within the safe limits of hearing which was set in previous years at 90 db(A), but the limit has been reduced in recent times to 85 db(A). The tester noted that the noise level was of a consistent nature throughout the 48 minutes.

30. Cloros attempted in his evidence to make this report relevant to the factory at St Leonards. He said that there was the same level of noise at Lidcombe as there had been at St Leonards. There are of course some problems associated with this report.

31. Firstly, there is no mention of other machines functioning during the test, only the four moulding machines.

32. Secondly, there was no attempt to measure the level of the sanding machine noise, and of course this would not have been possible because this machine had long since been removed from the factory. Yet Riganias had worked at this machine consistently, exclusively almost, from 1965 to 1973.

33. Thirdly, the moulding machines themselves were different in the Lidcombe premises than they had been in St Leonards. There were now only four, whereas at St Leonards there had been six. There was now one large one which had been imported in recent years and which had not been in use at St Leonards. Two of the compressors were encased at Lidcombe, whereas none had been encased at St Leonards.

34. Finally, the size of the area at St Leonards was different to the area at Lidcombe whereas a similar number of employees were employed in both places.

35. These considerations diminish the force of the expert evidence, but do not destroy it. The report is of some weight and must be considered.

36. I concluded that I could not totally accept the evidence of Nick Riganias or of Bill Cloros. Both seemed to exaggerate their position for different and understandable reasons.

37. Cloros seemed offended by the thought that his factory at St Leonards could be noisy and that one of his employees could make a claim, particularly so long after leaving his company. He said without reflection that the factory was as quiet as the court room, and immediately, he slightly modified this observation. I thought his initial observation was significant, and, given the evidence of the machinery operating, could not have been true. His memory of Nick Riganias’ period of employment was vague and, I thought, inaccurate. He had no recollection of Constantine Riganias, the son of the applicant, visiting the factory after school several times each week.

38. On the other hand, I thought that Nick Riganias’ evidence was vague and confused. His denial of the change of duties in 1973 was not persuasive in the end, though I suspect that he really thought he had worked on the sanding for the whole period. His evidence was so vague and confused that it seemed to me the evidence of Mr Cloros in this regard was more persuasive.

39. That leaves the evidence of Constantine Riganias, the applicant’s son. He said that he used to visit the St Leonards premises on his way home from school, that his mother worked around the corner in a leather factory, sewing wallets, and that he would call in and see his father, usually first, spend a few minutes there before going round to see his mother. His memory of the premises and the machinery was impressively vague. He admitted that he did not remember much about the place, though he did remember that it was a little dirty and dark when he went down beneath the street level into the lower floor of the factory. He said that first of all he had to report at the office because he could not just go down and see his father, but that there was never any trouble about this. Once or twice a week, he used to go there and speak with his father. He said simply that his memory was that he could not speak if the machines were running, that his father either had to switch them off, or he would speak pretty loudly. He said that he was 15 or 16 at the time (he was born in 1962), so it would mean that he was visiting there in 1977 or 1978, at the time when his father’s duties had changed, when, it would seem, his father did not have control over switching machines on and off. He was not working on a machine, he was working near them.

40. Constantine Riganias said that when he used to visit his father, he would sometimes be there for 10 or 15 minutes, and the machines were always working. He arrived there, sometimes at 3.30, sometimes at 4 o’clock. It was put to him in cross-examination that he was able to talk to his father while the machines were working and without yelling. He denied this.

41. His evidence was simple, uncluttered and persuasive. I was persuaded that Nick Riganias had been engaged, between 1965 and 1979, in work to the nature of which his loss of hearing was due or could have been due, or, in other words, that the respondent was a noisy employer within the meaning of the Act.

42. The respondent submitted that there was not sufficient, satisfactory expert evidence to establish a link between the noise in the factory and the hearing loss. It relied on Jansen v AIS WCR 1983 p145 at 148. In his judgment, Acting President Hutley observed that the respondent worker had worked for 25 or 26 years under conditions which he himself described as noisy, but that he had led no evidence which connected the noise level with the damage to the nerves of his ears. It is not possible for a mere layman to establish that.

43. The judge observed that there were innumerable activities in life, besides actual work, which could cause damage to one’s hearing. There had been no material before the judge at first instance, Moroney J, upon which he would allow him to find a link between the worker’s state as found by the Medical Board and his employment. The Medical Panel certified that the worker had a partial loss of hearing due to boilermaker’s deafness or deafness of like origin.

44. The medical report of Dr Di Michiel is Exhibit B. He recorded, in his consultation in August 1999, the various difficulties the applicant had in hearing. He recorded that there had been no exposure to recreational noise, or any head trauma, or any otological disease, and that there was no history of congenital hearing loss. He also recorded that Riganias had been exposed to occupational noise for approximately 14 years, and that hearing protection was never used. He recorded that he had worked for the respondent from 1965 to 1979, described his position as a shoemaker, and observed that his work had involved the use of rubber moulding and pressing machines on a shoe production line, and also the use of very noisy grinding machines. The doctor observed that, in the course of his employment, Riganias had been exposed to environmental noise from his fellow workers who were engaged in similar noisy tasks in a very noisy factory. The doctor made some clinical findings which, he said, were not uncommon in the elderly.

45. He said that a pure tone audiogram had been performed, and he identified the various thresholds recorded to the left and right ears respectively. He noted particularly the thresholds on the left and right ears at 2000 Hz, 3000 Hz and 4000 Hz. These are frequencies affected by noise. When presbycousis correction had been applied, a percentage hearing loss was found, binaurally, of 13.4 per cent.

46. The doctor observed that the pure tone audiogram had demonstrated a bilateral sensorineural hearing loss. He said that the frequencies from 2000 Hz were affected by noise, that the hearing defect was permanent, sensorineural, and that it could not be restored to normal. He also observed that Riganias had experienced greatly improved speech discrimination with amplification, and this would provide him with improved communication skills. The doctor recommended that, to assist with rehabilitation, Riganias should be provided with binaural hearing aids to overcome his handicap and to manage his tinnitus.

47. It seems to me that Dr Di Michielis’ report does establish the necessary link between the industrial noise and this applicant’s hearing loss type. He expressly stated that the frequencies from 2000 Hz are affected by noise, and that the hearing loss, bilaterally, is sensorioneural.

48. Finally, there is the question of hearing aids.

49. I note that Exhibit C is a quotation for binaural hearing aids in the sum of $2,179. I do not know whether that amount is a reasonable sum. It was not submitted on either side that it was reasonable, or that it was not reasonable. The quotation was simply tendered. It is reasonable that the applicant should be provided hearing aids, and I leave it to the parties to determine what type, or to return with further evidence.

50. On the basis of these considerations, I make the following findings and award.

51. (1.) The applicant was employed by the respondent in employment to the nature of which binaural hearing loss was due.

52. (2.) I find that the employment of the applicant with the respondent was the last employment to the nature of which such loss could be due.

53. (3.) The deemed date of injury is 12 November 1999.

54. I note that the medical panel has certified 11 per cent binaural hearing loss.

55. I make an award in the sum of $7,150 pursuant to s 66.

56. I order the respondent to pay the applicant’s medical expenses, and find that the provision of hearing aids is reasonable.

57. I order the respondent pay the applicant’s costs.
Mr M J Perry instructed by Nicholas Karefylakis appeared for the applicant
Mr M L Snell instructed by.Goldbergs Lawyers.appeared for the respondent