Cahill v State of New South Wales (NSW Police) [2005] NSWIRComm 33 (17 February 2005)

Last Updated: 21 February 2005

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Cahill v State of New South Wales (NSW Police) [2005] NSWIRComm 33

FILE NUMBER(S): IRC 7034

HEARING DATE(S): 07/12/2004, 08/12/2004, 09/12/2004, 10/12/2004

DECISION DATE: 17/02/2005

PARTIES:

PROSECUTOR

John Joseph Cahill

DEFENDANT

State of New South Wales (NSW Police)

JUDGMENT OF: Boland J

LEGAL REPRESENTATIVES

PROSECUTOR

Mr B G Docking of counsel

Solicitor: Ms A McRobert

Jones Staff & Co

DEFENDANT

Mr M L Shume of counsel

Solicitor: Ms M Buchanan

NSW Police

CASES CITED: Betts v Whittingslowe (1945) 71 CLR 637

Carrington Slipways Pty Limited v Callaghan (1985) 11 IR 467

Cullen v State Rail Authority (1989) 31 IR 207

Drake Personnel Limited (t/as Drake Industrial) v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432

EPA v Sydney Water Corporation Ltd (1997) 98 A Crim R 481

Haynes v C I & D Manufacturing Pty Ltd (1994) 60 IR 149

HG v The Queen (1999) 197 CLR 414

Inspector Covi v The Crown in the Right of the State of NSW (NSW Police) [2004] NSWIRComm 128

Kirkby v A & M I Hanson Pty Ltd (1994) 55 IR 40

Macquarie Area Health Service v Egan [2002] NSWCA 26

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705

McAuliffe v R (1995) 183 CLR 108

McMartin v The Broken Hill Proprietary Company Ltd (2000) 100 IR 241

Morrison v Powercoal Pty Ltd & Anor [2004] NSWIRComm 297

R v McAuliffe (1993) 70 A Crim R 303

R v Moffatt (2000) 112 A Crim R 201; [2000] NSWCCA 174

State Rail Authority of NSW v Dawson (1990) 37 IR 110

Stephen McMartin v Newcastle Wallsend Coal Company Pty Ltd; Oakbridge Pty Limited; Richard Porteous; Phillip Pritchard; Michael Alston; Mark Robinson; Jonathan Romcke; Michael Coffey; Christopher Nicholls; Terence Shacklady [2003] NSWIRComm 292

Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157

WorkCover Authority of New South Wales (Inspector Byer) v Cleary Brothers (Bombo) Pty Ltd (2001) 110 IR 182

WorkCover Authority of New South Wales (Inspector Keelty) v Crown in Right of the State of New South Wales (Police Service of New South Wales) (No 2) (2001) 104 IR 268

WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Limited (2002) 123 IR 121

WorkCover Authority of NSW (Inspector Glass) v Kellogg (Aust) Pty Ltd (No 1) (1999) 101 IR 239

WorkCover Authority of NSW v Maitland City Council (1998) 83 IR 362

LEGISLATION CITED: Evidence Act 1995

Industrial Relations Commission Rules 1996

Occupational Health and Safety Act 1983

Occupational Health and Safety Act 2000

Supreme Court Rules 1970

JUDGMENT:

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

IN COURT SESSION

CORAM: BOLAND J

Thursday 17 February 2005

Matter No IRC 7034 of 2003

JOHN JOSEPH CAHILL v STATE OF NEW SOUTH WALES (NSW POLICE)

Prosecution under section 8(1) of the Occupational Health and Safety Act 2000

JUDGMENT

[2005] NSWIRComm 33

1 Anthony James Hutchins had been employed by the State of New South Wales (NSW Police) (the defendant) as a technical officer at Police Radio Network Services (the workshop) at 96 Georgetown Road, Waratah in the State. Mr Hutchins was a member of the Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales (the PSA). On 10 December 2001, at approximately 2:30pm, while working at the workshop Mr Hutchins went outside to inspect a new Police Toyota four-wheel drive vehicle XQX 296 parked in the driveway area.

2 Mr Hutchins lowered his head to inspect the winch at the front of the vehicle. As Mr Hutchins lowered his head, the Police siren, for which the speaker was fitted to the front of the vehicle, was activated. As a result, Mr Hutchins was diagnosed as suffering from acute acoustic trauma to the right ear with persisting tinnitus and balance disturbance. Arising from the injury, Mr Hutchins was absent from work on sick leave from 10 December 2001 until 5 February 2002, then from 9 May 2002 to 15 July 2002, then from 21 November 2002 until Mr Hutchins was medically retired on 23 June 2003.

3 Arising out of the incident, John Joseph Cahill, General Secretary of the PSA (the prosecutor), charged the defendant with a breach of s 8(1) of the Occupational Health and Safety Act 2000. Mr Cahill was empowered under section 106(d) of the Act to institute proceedings in this matter. The charge alleged that the defendant:

[A]t the NSW Police Radio Network Services workshops at Waratah, New South Wales, an employer, failed to ensure the health, safety and welfare at work of all of its employees, and in particular Anthony James Hutchins, in that the accused person did not ensure systems of work were safe and without risks to health contrary to section 8(1) of the Occupational Health and Safety Act 2000.

4 The particulars of the charge were as follows:

1 The accused person employed sworn members of the NSW Police and Technical Officers at the workplace.

2 From time to time, sirens fitted on police vehicles were activated at the workplace.

3 There was a potential risk that there might be harm to the hearing of Technical Officers and in particular Mr Hutchins.

4 Senior Constable Bell activated a siren fitted to police vehicle XQX 296 when Mr Hutchins was in front of the vehicle inspecting a winch and he suffered to his right ear acoustic trauma with persisting tinnitus.

5 The accused person’s breaches comprised any of the following aspects:

(i) Failing to prevent Senior Constable Bell at the workplace activating the siren fitted to police vehicle XQX 296.

(ii) Failing to ensure before the activation that all personnel in the vicinity of sirens fitted on a police vehicle were aware of the activation.

(iii) Failing to have in place a noise control policy, namely, a written policy, developed by the employer in consultation with employees and employee representatives which in respect of siren activation sets goals for noise exposure in the workplace and the strategies to be used to meet these goals.

(iv) Failing to provide information, training and education to persons working at this place of work about what noise is, the range of health effects due to noise from siren activation and the appropriate control measures.

(v) Failing to provide personal hearing protectors, namely a device, or pair of devices, worn by a person or inserted in the ears of a person to protect the person’s hearing when sirens were activated.

(vi) Failing to identify, with the use of appropriate signs, hearing protection areas in which sirens were to be activated.

6 There was a causal nexus between any of the accused person's breaches and the potential risk.

7 Additionally, or in the alternative, there was a causal nexus between any of the accused person's breaches and the actual injury to Mr Hutchins.

5 The defendant pleaded not guilty to the charge.

EVIDENCE

6 The defendant chose not to lead any evidence other than tendering a statement of facts and a document entitled "Admissions by Defendant". The statement of facts, agreed by the prosecutor, conveyed the following relevant information:

The defendant was an employer and included in its operations was a division known as "Radio Network Services workshops at Waratah"; the defendant employed Anthony James Hutchins as a technical officer at the workshops; at all material times the work of the Radio Network Services involved and included the maintenance, repair and upgrading of the radio infrastructure; and, on 10 December 2001, at approximately 2.30 pm while working at the workshop Mr Hutchins went outside with Constable Craig and Senior Constable Bell to inspect a new Police Toyota four wheel drive vehicle registration number XQX 296 that was parked in the driveway area.

7 The "Admissions by Defendant" repeated what was contained in the statement of facts but in addition contained the following admissions:

8 Mr Hutchins noticed a new winch attached to the vehicle and called out to Constable Craig to have a look at the new winch.

9 Mr Hutchins lowered his head towards the winch at the front of the vehicle. Constable Craig was on Mr Hutchins' left and approximately one metre from where Mr Hutchins was standing. As Mr Hutchins lowered his head, the police siren, model 4126 (12V and 60W) was activated.

10 When the siren was activated, Mr Hutchins immediately raised his head, covered his right ear with his hand, looked into the vehicle and saw Senior Constable Bell at the driver's side of the vehicle smiling.

11 Mr Hutchins proceeded upstairs to the workshop area.

12 Later on in the afternoon of 10 December 2001 Senior Constable Bell approached Mr Hutchins and apologised for the accident. He said he was "only mucking around".

13 Mr Hutchins met with the workplace union delegate and OH & S officer Senior Technical officer Grade 2 (STO2) Wayne Constable. Mr Hutchins told Mr Constable that Senior Constable Bell had turned on the siren as a joke.

14 Mr Hutchins did not attend work on 11 December 2001. He attended the John Hunter Hospital. He was told not to return to work until 17 December 2001.

15 At approximately 11.10 am on 11 December 2001 Senior Constable Bell called into the house of Mr Hutchins and apologised again for "a joke gone wrong".

16 Mr Hutchins attended work on 20 December 2001 to complete a P454 incident report. In completing the details of how the injury occurred Mr Hutchins described this as "siren activated by Senior Constable Bell as a practical joke".

17 There was no reason to activate the siren fitted to Police Toyota four-wheel drive registration number XQX 296 on 10 December 2001.

8 The prosecutor tendered documentary material that included the following:

(a) The Code of Practice for Noise Management and Protection of Hearing at Work issued by the WorkCover Authority of New South Wales, gazetted 31 May 1996 and commencing on 31 May 1997. It was stated in the code that it "provides a framework for managing exposure to noise at work and for minimising the risks of the effects of such exposure. It also provides guidance which will assist employers and employees to understand and conform with the Occupational Health and Safety (Noise) Regulation 1996". The Code contained, amongst other things: the responsibilities of employers and employees for ensuring a safe working environment; training and education objectives and programs; how to carry out a noise assessment; information on audiometric testing; and, relevant definitions including definitions of "decibel", "excessive noise", "hazard", "hearing protection areas" and "risk". The definition of "excessive noise" was that "for the purpose of this national code of practice, noise that exceeds those levels defined in the Occupational Health and Safety (Noise) Regulation 1996." The relevant regulation is now cl 49 of the Occupational Health and Safety Regulation 2001, which provides:

49 Noise management—particular risk control measures

(1) An employer must ensure that appropriate control measures are taken if a person is exposed to noise levels that:

(a) exceed an 8-hour noise level equivalent of 85 dB(A), or

(b) peak at more than 140 dB(C).

Maximum penalty: Level 4.

(2) For the purposes of subclause (1):

(a) the measurement is to be made in accordance with AS/NZS 1269.1:1998 Occupational noise management Part 1: Measurement and assessment of noise imission (sic) and exposure, and

(b) exposure to noise is taken to be measured at the position of the ears of a person, or at an equivalent of that position, and

(c) the measurement is to be made on the assumption that the person is not wearing any device to protect himself or herself from noise.

(b) The curriculum vitae of Brian Joseph Williams, registered medical practitioner, whose area of expertise is "diseases of the ear, nose and throat" with special interest in hearing loss, tinnitus and vertigo and loss of sense of smell and taste. Dr Williams described himself as an ear, nose and throat surgeon (medical otorhinolaryngology) and industrial deafness consultant. He graduated from Sydney University in 1978 as a Bachelor of Medicine and Bachelor of Surgery (MBBS) with Honours. He is a Fellow of the Royal Australasian College of Surgeons (otorhinolaryngology), was a medical referee for the Workers' Compensation Court between 1987 and 2003, Acting Chief Medical Officer for the Workers' Compensation Court 1998-1999, medical referee of the District Court of New South Wales 2004, State Representative of the Audiological Committee of the Australian Society of Otolaryngology - Head and Neck Surgery 1998 to present, Federal Chairman of the Australian Society of Otolaryngology - Head and Neck Surgery 1998 to present, accredited medical referee for the WorkCover Authority and he holds a Bachelor of Laws degree and Master of Health Laws. Dr Williams has published and presented some 22 papers including five relevant to the topic of industrial deafness since 1996. Dr Williams has treated 15 patients with acute acoustic trauma. Dr Williams treated Mr Hutchins for the injury to his ear, having first examined him on 24 January 2002. Dr Williams was requested by the solicitors for the prosecutor to provide a report on Mr Hutchins' conditions and to answer a series of questions relevant to the prosecution of the defendant.

(c) The report of Dr Williams into Mr Hutchins' conditions and the answers to questions asked by the prosecutor relevant to the prosecution. Dr Williams' report indicated that Mr Hutchins suffered acute acoustic trauma, which is damage to the ear caused by a single exposure to a sudden burst of sound. The injury can cause loss of hearing, tinnitus, hyperacusis and imbalance. The report provided answers to 14 questions asked by the solicitors for the prosecutor going to a range of issues including the nature of the risk of a person exposed to the sound of a siren and elimination or reduction of the risk.

(d) An extract from a text entitled "Scott-Brown's Otolaryngology", sixth edition, 1997 in which the author discusses the risk of hearing loss and injury depending upon various noise levels. The text stated "Risk of hearing loss and injury to the ear increases with: (1) Noise level, (2) Duration, (3) Number of exposures, (4) Susceptibility of the individual." A graph indicated that exposure to a decibel level of 115 (a level that will be further discussed) constituted a "high risk of damage to hearing".

(e) An extract from a text entitled "Occupational Hearing Loss", second edition, 1993, by Robert and Joseph Sataloff, an American publication, in which it was indicated the permissible daily noise exposure is a quarter of an hour or less at 115dB.

(f) The affidavit of Terence Regis Hannan, sworn 20 August 2003. Mr Hannan was an industrial officer with the PSA whose duties included investigating alleged breaches of the occupational health and safety legislation brought to the PSA's attention by its officers and members. The affidavit described Mr Hannan's investigation of the incident involving Mr Hutchins.

(g) Correspondence between the prosecutor and the defendant regarding requests for and supply of certain documentation relating to the incident involving Mr Hutchins including witness reports, employer's report of injury, employee's compensation claim, accident report and an extract from the defendant's register of injuries relating to Mr Hutchins. The employer's report of injury in relation to Mr Hutchins stated: "The incident has occurred as reported. At short distance, the police siren has a very powerful blast at high volume level." The report further stated that the injury occurred "While inspecting electric winch at front of vehicle, lowered head between bull bar and front of vehicle when siren activated". The report described the injury as "Acoustic trauma" to "right ear".

(h) A memo to all staff from Peter Cox, Leader, RNS, Waratah dated 21 December 2001 in which Sergeant Cox referred to an incident involving a technician who suffered injury as a result of siren testing. Sergeant Cox stated: "Before testing the sirens ensure that all personnel in the vicinity are aware of the test and can take appropriate precautions".

(i) A series of ten colour photographs taken by Mr Hannan on 17 February 2003 showing where Mr Hutchins was located in relation to the front of a Toyota vehicle fitted with a siren, the location of a switch in the vehicle that activated the siren and the location of the vehicle in relation to the workshop building.

(j) An extract of a record of interview taken by Mr Hannan with Stuart McDonald, a senior technical officer, regarding his knowledge of the incident and observations regarding certain inconsistencies in Mr McDonald's statements with earlier statements he had made. A record of a discussion between Mr Hannan and Sergeant Cox.

(k) The resume of Mr Hutchins showing that between 1998 and 2003 he was employed by the defendant as a technical officer - radio engineering. His previous employment included time as a tradesman electrician and radio technician. Mr Hutchins completed an apprenticeship in electronics and had been working as a tradesman in that field for 25 years.

(l) An extract from an installation manual for the siren. The manual contained a note as follows: "If the system has been supplied for use with a 60W speaker, the loom may have been supplied with this pin already connected. If a 100W siren speaker is used, cut or disconnect this wire."

(m) An extract from a document supplied to Mr Hutchins when he attended a telephony and data cabling course. Mr Hutchins had marked on a graph in the document where he considered the threshold of pain was, caused by noise. The marking was at the 120 dB level.

(n) A sketch plan of the workshop and immediate surroundings, which showed the location of the radio workshop, garage and the driveway where the incident occurred on 10 December 2001.

(o) A record of interview conducted by Mr Hannan with Mr Hutchins on 17 February 2003.

(p) The affidavit of Mr Hutchins sworn on 19 August 2003.

(q) Three colour photographs marked by Mr Hutchins showing his position in relation to where the siren was fitted on the Toyota vehicle.

(r) A letter from the defendant's manager, Personnel Services Branch, to HealthQuest dated 21 March 2003 seeking a medical assessment of Mr Hutchins to determine his fitness to continue as a technical officer. The letter stated "Mr Hutchins suffered a serious injury at work in December 2001, which lead (sic) to him suffering acoustic trauma".

(s) A letter from HealthQuest to the defendant's Personnel Services Branch dated 29 April 2003 that stated: "Mr Hutchins is unfit to work as a Technical Officer. If possible, it is recommended that he may be re-deployed to another position where noise experience is minimal. If the Service is unable to provide a (sic) suitable duties in the longer term, a certificate confirming that Mr Hutchins is permanently unfit for his substantive position could be issued."

(t) A Field Survey Report dated 11 June 2003 by Mr Mark Moskvitch and Mr Ken Mikl of the WorkCover Authority relating to sound level measurements on a siren apparatus affixed to a Holden Commodore sedan. The siren speaker was "a model H10VX 100W - 129dB ... The amplifier/siren apparatus was a model 4E121 100W - 12V and was affixed to the cabin floor immediately behind the front passenger seat. The report stated:

A 'set' of measurements consisting of recording the peak sound pressure level (Lpeak) and the equivalent continuous A-weighted sound pressure level for the duration of the sampling period (Leqt) ...

One set of measurements was taken for the traveller siren level with the registration plate, then at horizontal distances from the registration plate of 0.5m and 1m. An identical sampling regime was undertaken for the yelp siren. The meter was field checked before and after the measurements.

Item

LAeq,t

Time to exceed LAeq,8H=85dB

Lpeak (C)

Travel Siren @ Grill

122

Six seconds

130

Travel Siren @ 0.5m

109

Two minutes

117

Travel Siren @ 1.0m

105

Five minutes

113

Yelp Siren @ Grill

115

Twenty nine seconds

130

Yelp Siren @ 0.5m

107

Three minutes

117

Yelp Siren @ 1.0m

104

Six minutes

114

[Table 1]

9 The prosecutor called a number of witnesses, namely, Dr Williams, Mr Moskvitch, Mr Hannan and Mr Hutchins. Each of the prosecution's witnesses was subject to cross-examination. Dr Williams, as I have already noted, treated Mr Hutchins for the injury to his ear and was requested by the solicitors for the prosecutor to provide a report in which answers were sought to a number of questions. Counsel for the defendant did not object to Dr Williams' curriculum vitae being tendered into evidence, which detailed Dr Williams' qualifications, experience and his field of specialised knowledge i.e., diseases of the ear, nose and throat with special interest in hearing loss, tinnitus and vertigo and loss of the sense of smell and taste. Mr Shume of counsel for the defendant, however, objected to the tendering into evidence of Dr Williams' report to the prosecutor's solicitors and, in particular, to his answers to the questions asked. The objection, as I apprehended it, was on two bases, namely, a failure to comply with the provisions of Pt 36 r 13C of the Supreme Court Rules 1970 and schedule K and, secondly, that the answers to questions from the prosecutor's solicitors were outside Dr Williams' field of specialised knowledge.

10 In the course of the proceedings I ruled that the report was admissible. It is appropriate that I give my reasons for doing so. Mr Shume relied on the judgment of Staunton J in Stephen McMartin v Newcastle Wallsend Coal Company Pty Ltd; Oakbridge Pty Limited; Richard Porteous; Phillip Pritchard; Michael Alston; Mark Robinson; Jonathan Romcke; Michael Coffey; Christopher Nicholls; Terence Shacklady [2003] NSWIRComm 292 revised - 5/11/2003 for the proposition that Pt 36 r 13C of the Supreme Court Rules, and consequently schedule K to those Rules, were to be observed by the Commission in Court Session by virtue of r 89(5) of the Industrial Relations Commission Rules 1996. Staunton J stated at [24] that "Schedule K is a proper reference point for this Court to have regard to in considering the form and receipt of expert opinion reports." Accepting that to be the case, Dr Williams in his evidence indicated the following:

Q. Were you provided with a copy of the Expert Witness Code of Conduct in Schedule K of the Supreme Court Rules 1970?

A. Yes.

Q. Can you just look at the documents provided by Jones Staff & Company with this 9 January 2004 letter. Were there any other documents I have not asked you about?

A. No.

Q. I just want to deal with the last document you identified as being provided to you, an Expert Witness Code of Conduct and Schedule K of the Supreme Court Rules 1970, prior to being requested to prepare this particular report, had you prepared expert medical reports previously for other matters?

A. Yes.

Q. In so preparing other reports, have you, quite separately from the report I'm going to ask you about specifically, been required to read the codes of conduct for experts for other courts?

A. Yes.

Q. What other courts had you read the courts of code for experts previously?

A. Workers compensation matters.

Q. Turning to the specific report requested by Jones Staff & Company dated 9 January 2004, for the purposes of that requested report, did you read the Expert Witness Code of Conduct in Schedule K?

A. Yes.

Q. To the best of your ability and belief, in preparing the report requested by Jones Staff & Company, did you comply with that code?

A. Yes, to the best of my ability.

11 Counsel for the defendant pointed to the fact that contrary to Pt 36 r 13C(2)(c) Dr Williams had not acknowledged in writing that he had read the code in schedule K and agreed to be bound by it and a copy of that acknowledgment had not been served on the defendant. As to the defendant's objection based on schedule K, as I understand it, the defendant contended that the requirements of cl 5 of the code were not all complied with. It lies at the discretion of the trial judge as to whether the requirements of Pt 36 r 13C are to be strictly applied and in light of Dr Williams' evidence regarding his observance of schedule K and the absence of any prejudice to the defendant - or any submission to that effect - I was prepared to admit Dr Williams' report against the defendant's objection on the grounds of non-compliance with Pt 36 r 13C and the terms of the code.

12 The defendant's more fundamental objection to Dr Williams' report was that it expressed opinions outside his field of specialised knowledge and was, therefore, not admissible. Reliance was placed on the decision of Staunton J in McMartin where her Honour referred to HG v The Queen (1999) 197 CLR 414 and Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705.

13 Expert evidence is only admissible if it is relevant (s 56 of the Evidence Act 1995) and if it falls within an exception to the opinion rule in s 76 of the Evidence Act namely, in this case, it is expert opinion falling within s 79 of the Evidence Act, which provides:

79 Exception: opinions based on specialised knowledge

If a person has specialised knowledge based on the person’s training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.

14 Thus, in order for Dr Williams' evidence in his report to be admissible as an expert opinion:

(a) it must be relevant;

(b) Dr Williams must have specialised knowledge based on his training, study or experience; and

(c) his opinion must be wholly or substantially based on that specialised knowledge.

See Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002 FCAFC 157 per Branson J at [12].

15 The standard of proof as to whether the opinion is wholly or substantially based on the person's specialised knowledge is the balance of probabilities: s 142 of the Evidence Act.

16 The parts of the report that the defendant considered inadmissible related to a series of questions to Dr Williams that went to how the risk of injury to the ear from sound could be eliminated or reduced. For example, question 5(a) asked how any risk could be eliminated and Dr Williams answered "By not activating the siren". Question 5(b) asked how any risk could be reduced. Dr Williams answered as follows:

By having a procedure in place that ensured the siren was not activated without workers being aware of the impending activation and wearing adequate and properly fitted hearing protection.

This would involve educating employees about the sound pressure level of the siren and its hazardous nature regarding acute acoustic trauma. This would also involve educating employees about adequate and properly fitting hearing protection. This would also involve having a procedure of work in place to prohibit siren activation when any person is working on or near the vehicle. It would also involve having a safe siren test policy to only activate the siren when there is no one near the vehicle's siren without adequate and properly fitted hearing protection.

17 Mr Shume contended that Dr Williams' expertise did not extend to systems or procedures of work relating to the elimination or reduction of risk of injury to the ears from noise. Dr Williams is undoubtedly an expert in diseases of the ear and, in particular, hearing loss, tinnitus and vertigo. In his professional capacity and as an industrial deafness consultant Dr Williams makes recommendations to patients and clients on how to avoid exposure to noise, how to reduce exposure to noise and the circumstances in which hearing protection should be worn. It seems to me to be an untenable proposition that a person with Dr Williams' training and experience can diagnose and treat injuries to the ear caused by excessive noise but he would not have the knowledge and experience to advise patients and clients about how to avoid the risk of injury or further injury; that is part of his professional role, as the evidence of his treatment of Mr Hutchins shows.

18 I am satisfied that Dr Williams' report is relevant and that the opinions he expressed in the report were based wholly or substantially on his specialised knowledge gained through training, study or experience.

19 I am further satisfied that Dr Williams' evidence established the following:

(a) Mr Hutchins was a patient of Dr Williams.

(b) Dr Williams diagnosed Mr Hutchins as having suffered acute acoustic trauma. This is damage to the ear caused by a single exposure to a sudden burst of sound. The injury can cause loss of hearing, tinnitus, hyperacusis and imbalance. Dr Williams advised on 21 January 2003, "Mr Hutchins should not work at the Police Force because of continuing aggravation/new episodes of acoustic trauma ..."

(c) There is a risk of harm to the hearing of a person as a consequence of the person's head being one metre from the activation for approximately two seconds of a 60-watt police siren speaker that emitted 125dB at one metre in front of the speaker. This is because below 115dB the risk of gradual process noise induced hearing loss and injury to the ear increases with: (i) noise level; (ii) duration; (iii) number of exposures; and, (iv) susceptibility of the individual. Above 115 dB there is a real risk of acute acoustic trauma causing hearing loss and injury to the ear with susceptibility of the individual. The WorkCover Code of Practice definition of decibel states "on the decibel scale, the threshold of hearing occurs at a sound pressure level of about 0dB and the threshold of pain occurs at about 120dB." It follows that sound intensities of about 120dB and above are hazardous with a risk of causing hearing loss and ear injury depending on individual susceptibility.

(d) There was a risk of harm to the hearing of a person as a result of being exposed to the measurements in the sound level field survey report of Mr Mark Moskvitch and Mr Ken Mikl of the WorkCover Authority dated 11 June 2003. This is because the sound intensity at the grille of the motor vehicle was measured at 115dB LAeq,t for the yelp siren and 122 dB LAeq,t for the travel siren with an L peak (C) of 130 dB for each mode. The sound level peak (C) at 0.5 metres was 117dB for each mode.

(e) Dr Williams explained in his oral evidence that:

Although this is controversial, gradual process injuries usually gradually affect the ear up to about 115dB. Once you go over 115dB the process changes from one of gradual to potentially mechanical injury, and it is unclear to us at the moment whether the impulse and impact noise cause more injury than the gradual process under 115dB.

At the moment they are still grouped together for levels over 115 that are very short, but there is some evidence to suggest that, even though short injuries are far more injurious than a continuous noise exposure up to 115dB, acute acoustic trauma is an exposure to noise much greater than an impulse or an impact noise, usually of longer duration than 400 milliseconds.

(e) Personal hearing protectors would not eliminate the risk arising from exposure to the sound levels referred to above because they may not be adequate for the purpose or may not be properly fitted or worn correctly.

(f) Hearing protectors would reduce the risk if properly fitted and worn correctly.

(g) The risk of injury could be eliminated by not activating the siren and reduced by having a procedure in place that ensured the siren was not activated without workers being aware of the impending activation and wearing adequate and properly fitted hearing protection. This would involve educating employees about the sound pressure level of the siren and its hazardous nature regarding acute acoustic trauma. This would also involve educating employees about adequate and properly fitting hearing protection. This would also involve having a procedure of work in place to prohibit siren activation when any person is working on or near the vehicle. It would also involve having a safe siren test policy to only activate the siren when there is no one near the vehicle's siren without adequate and properly fitted hearing protection.

(h) Clause 49(1)(a) of the Occupational Health and Safety Regulation deals with is the gradual process and cl 49(1)(b) deals with impact and impulse noise; it doesn’t deal with acute acoustic trauma. The Regulation only applies to hearing loss and not tinnitus.

20 Dr Williams was asked whether, within his area of expertise, he would adopt, acknowledge, affirm, qualify or reject any or all parts of the Code of Practice for Noise Management and Protection of Hearing at Work. His reply was in the following terms:

The Code of practice defines a hazard as anything that may result in harm to the hearing of a person. The Code of practice states the threshold of pain occurs at about 120dB. Therefore the Code of Practice indicates that sound pressure levels of about 120dB are by definition hazardous. This seems incongruous with a regulated peak level of 140dB(lin) before an area can be designated a "hearing protection area". In my opinion the Code should state that employees should not be exposed to sound pressure levels greater than 115dB without adequate hearing protection.

The forward (sic - foreword) to the Code of Practice for Noise Management states the purpose of the Code is to assist employers and employees to develop and implement practices for noise management and protection of hearing. However there is no expert guidance in this process. In my opinion there should be.

21 It seems to me the opinions expressed by Dr Williams in respect of what the Code should contain are quite appropriate and I agree with them.

22 The matters that I consider have been established by the evidence of Mr Moskvitch are as follows:

(a) In conjunction with Mr Mikl, Mr Moskvitch conducted sound level measurements on a siren apparatus on 29 May 2003 as earlier described in the presence of Sergeant Ian Berry (NSW Police) and Mr David Head, Transport Officer, Mechanical (NSW Police). Mr Moskvitch was qualified to carry out the tests.

(b) The results of the test are set out in Table 1 above. The Court accepts that the test results are valid to the extent that what was tested was a particular model of siren with a wattage of 100 fixed to a Holden Commodore vehicle parked in an open space at Londonderry.

23 The matters that I consider have been established by the evidence of Mr Hannan are as follows:

(a) At the relevant time Mr Hannan was employed by the PSA as an Industrial Officer. His responsibilities included the investigation of alleged breaches of the occupational health and safety legislation brought to his attention by PSA officials and members. Between 1962 and 1984 Mr Hannan had worked as a pharmacist.

(b) In January 2002 Mr Hutchins contacted Mr Hannan. Mr Hannan carried out an investigation of the incident involving injury to Mr Hutchins.

(c) Mr Hannan conducted an interview with Mr Hutchins on 17 February 2003. The interview was transcribed verbatim. On the same day Mr Hannan visited the workshop at Waratah and viewed the four-wheel drive vehicle XQX-296. Mr Hannan took photographs of Mr Hutchins in the positions he alleged he was located vis a vis the vehicle at the time of the incident on 10 December 2001 and photographs of various aspects of the vehicle. Mr Hutchins' head was located somewhere between 30 and 50 centimetres from the grille of the vehicle behind which was located the siren's speaker.

(d) Mr Hannan concluded the siren switch on the dashboard of the vehicle could not have been switched on accidentally and a person reaching in from outside the vehicle could have activated the switch.

(e) When Mr Hannan visited the workshop on 17 February 2003 he did not sight any signs warning of exposure to noise hazards affixed to any of the outside work facilities. The only sign concerning noise hazards was "a very small sign which identified hearing protectors and disposable ear plugs"

(f) Senior Constable Bell would have definitely seen Constable Craig and Mr Hutchins at the front of the Toyota vehicle both before and after Mr Hutchins bent over in front of the vehicle.

24 The matters that I consider have been established by the evidence of Mr Hutchins (in addition to the agreed facts and relevant admissions by the defendant) are as follows:

(a) It was fairly commonplace at the workshop to test sirens at any time on a day-to-day basis. Sirens were repaired at a frequency of about two or three per week.

(b) At the relevant time there were no signs warning personnel that sirens might be activated and to wear hearing protection and there was no procedure for the testing of sirens at the relevant time. Hearing protection was not provided until about September or October 2002.

(c) Contrary to the defendant's admissions the Toyota vehicle had a 100 watt speaker fitted that could emit sound pressure levels up to 129 dB(A) at one metre. As to this latter finding I rely on the information to the defendant from the supplier of the speaker Hazard Systems Pty Ltd dated 2 April 2003.

CONSIDERATION

25 The charge alleged that the defendant failed to ensure the health safety and welfare at work of all of its employees, and in particular Anthony James Hutchins, in that the defendant did not ensure systems of work were safe and without risks to health contrary to section 8(1) of the Act. The prosecutor alleged there were six aspects to the unsafe system of work and these were particularised in the manner described earlier in this judgment.

26 In order to succeed in the prosecution the prosecutor must prove the essential factual and legal ingredients of the offence. The prosecutor accepted that he had to prove at least one of the six particulars alleging the manner in which the defendant failed to ensure a safe system of work: EPA v Sydney Water Corporation Ltd (1997) 98 A Crim R 481 at 485.

27 The prosecutor adopted the elements of the offence I identified in Inspector Covi v The Crown in the Right of the State of NSW (NSW Police) [2004] NSWIRComm 128 at [39] in respect of s 15(1) of the Occupational Health and Safety Act 1983 as those he had to prove in these proceedings:

39 The elements of the offence to be proved by the prosecution beyond reasonable doubt are as follows:

(1) The defendant was an employer for the purposes of the Occupational Health and Safety Act;

(2) The defendant failed to take steps, as exemplified or particularised in s 15(2) of the Act, to ensure the health, safety and welfare at work of all its employees;

(3) One or more of the defendant’s employees was exposed to a risk to their health, safety or welfare, whilst at work; and

(4) There was a causal relationship between the facts causing the detriment to safety and the defendant’s acts or omissions.

The elements listed in Covi v Police apply equally to the successor provision to s 15(1), that is, s 8(1) of the 2000 Act. I propose to adopt the approach taken in Covi v Police in these proceedings.

Whether the defendant was an employer

28 The agreed facts make it clear this element was not an issue.

Whether defendant failed to ensure safety

29 There is an absolute obligation on the employer to ensure the health safety and welfare of its employees at work. There is no doubt that Mr Hutchins was "at work" on 10 December 2001. "Place of work" is defined in s 4 of the Act to mean premises where persons work. "Premises" is defined to include:

(a) any land, building or part of any building, or

(b) any vehicle, ...

30 The workshop and its immediate surrounds where the four-wheel drive vehicle was located at the time the siren was sounded was occupied by and under the control of the defendant and constituted a place of work. I do not understand the defendant to be contending differently.

31 It was alleged the defendant failed to ensure systems of work that were safe and without risks to health. The failure was alleged to have manifested itself in the six ways set out in the particulars and I will come to each of these shortly. Before, doing so, however, I am drawn to observe that it is somewhat problematic as to whether the defendant had any systems of work to ensure that the activation of sirens at the workshop were safe and without risks to health. As counsel for the prosecutor submitted:

On 10 December 2001, the defendant’s so-called system of work in relation to siren testing was the practice of employees at Waratah looking around and saying “I’m about to do a siren test ...” and then you do it. The employee looked in the vicinity of the pointy end of the vehicle to see if anyone was there.

32 It was further submitted for the prosecutor that:

The negative response of the defendant to the summons to produce proves that on or before 10 December 2001 it did not have: any precautions, measures or steps in respect of noise management and protection of hearing at work, including but not limited to the use or installation or testing of sirens, introduced at the workshop or other than at the workshop; Policies and Standard Operating Procedures (SOPs) of the NSW Police in respect of the use or installation or testing of sirens; or any “noise control policy” of the NSW Police in respect of the use or installation or testing of sirens.

33 "System" is defined in the Oxford English Dictionary (Oxford University Press 2005) as "A set or assemblage of things connected, associated, or interdependent, so as to form a complex unity; a whole composed of parts in orderly arrangement according to some scheme or plan; rarely applied to a simple or small assemblage of things (nearly = ‘group’ or ‘set’)." I am left with the impression on the evidence in these proceedings that there was no "systems of work" capable of ensuring the safety of employees at the workshop in relation to the risks associated with the activation of sirens. The risk does not seem to have been given any consideration prior to 10 December 2001 and if that be the case, it is arguable the defendant is guilty of an offence under s 8(1) of the Act without further consideration being necessary.

34 Nevertheless, I intend to proceed on the basis of an inquiry as to whether the charge against the defendant has been made out, that is, whether the defendant failed to ensure systems of work were safe and without risks to health.

35 A failure to ensure safety may come about by an act or omission of the defendant. The obligation under s 8(1) to ensure safety means what it says: guarantee, secure or make certain (Carrington Slipways Pty Limited v Callaghan (1985) 11 IR 467). The obligation is subject only to a person being able to prove on the balance of probability that it was not reasonably practicable to comply with s 8(1) or that the offence committed was due to causes over which the person had no control and against the happening of which it was impracticable for the person to make provision: s 28 of the Occupational Health and Safety Act.

The risk

36 Before turning to the particulars of the charge it is appropriate at this point to consider the nature of the risk. The risk was contended by the prosecutor to have arisen in two ways: a risk of a general nature "that there might be harm to the hearing of Technical Officers and in particular Mr Hutchins” as a result of sirens fitted on police vehicles being activated at the work place “from time to time”; and, a specific risk arising from Senior Constable Bell activating the siren fitted to police vehicle XQX 296 when Mr Hutchins was in front of the vehicle inspecting a winch, thereby causing Mr Hutchins to suffer acoustic trauma with persisting tinnitus to his right ear.

37 As to the general risk, Mr Shume submitted:

[T]here is no evidence that any motor vehicle was at Waratah on 10 December 2001 which was there for the purposes of having its siren either worked on, tested, or anything along those particular lines. So we say to your Honour that, there being an absence of any evidence in relation to that, there is no evidence to support the general risk.

38 The obligation on the prosecutor is to prove beyond reasonable doubt that there was a risk of harm to the hearing of Technical Officers and in particular Mr Hutchins as a result of sirens fitted on police vehicles being activated at the work place on 10 December 2001. I do have some difficulty accepting the prosecutor's contentions regarding the existence of a general risk on 10 December 2001. There is no doubt that sirens were activated from time to time at the defendant's workplace and there is no doubt, on the evidence of Dr Williams and in the absence of proper procedures and appropriate hearing protection, that from time to time persons could have been placed at risk of harm to their hearing. But there was no evidence of sirens being activated on 10 December 2001 other than activation by Senior Constable Bell of the siren on the Toyota vehicle, which was parked outside the workshop for the purpose of having a winch fitted. I do not see in those circumstances how personnel who may have been nowhere near the Toyota vehicle could be said to have been subject to risk. I do not consider I can find the existence of a general risk on 10 December 2001. In my opinion, there is insufficient evidence in that regard.

39 Whilst the drafting of the charge leaves something to be desired, it is apparent that the specific risk alleged by the defendant was that on 10 December 2001 Mr Hutchins was placed at risk of harm to his hearing by Senior Constable Bell activating the siren fitted to police vehicle XQX 296 whilst Mr Hutchins was in front of the vehicle inspecting a winch.

40 The risk is undoubtedly made out. On 10 December 2001 the vehicle was parked outside the workshop and Mr Hutchins and Constable Craig were inspecting the winch at the front of the vehicle. The vehicle had fitted to it a 100-watt siren capable of emitting a sound level of 129dB. But even if it were accepted the siren had a wattage of 60, it would still have been capable of emitting a sound level of 125dB. The vehicle was not locked. The siren activation switch was within reach of a person leaning across the driver's seat of the vehicle and the siren could not have been switched on accidentally. Mr Hutchins was bending down and his right ear was between 30 and 50 cm from the siren's speaker located behind the vehicle's grille. Senior Constable Bell activated the siren for about two seconds. Dr Williams' evidence was that employees should not be exposed to sound pressure levels greater than 115dB for greater than one second, without adequate hearing protection because there is a real risk of injury depending on the individual's susceptibility. I note the threshold of pain occurs at about 120dB.

41 That a risk existed is further reinforced by the fact that Mr Hutchins sustained a serious injury that the defendant accepted was caused by the activation of a siren on 10 December 2001 and in respect of which Mr Hutchins received workers' compensation.

42 To find that a specific risk existed is not, as the defendant submitted, to wrongly focus on the actual incident. I am not approaching the matter from the perspective of the "result", i.e., the harm caused to Mr Hutchins by the activation of the siren, but rather that the circumstances described above created a risk to health and safety and the fact that an injury was the result merely supports the fact that a risk existed: Drake Personnel Limited (t/as Drake Industrial) v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 at 452.

43 Accordingly I find that on 10 December 2001, at the defendant's place of work, one or more of the defendant's employees was exposed to a risk to their health and safety. I turn to the particulars.

(i) Failing to prevent Senior Constable Bell at the workplace activating the siren fitted to police vehicle XQX 296

44 This particular has to be seen in the light of the charge, that is, that the defendant "did not ensure systems of work were safe and without risks to health". In other words, the system of work was not safe because the defendant failed to prevent Senior Constable Bell activating the siren in circumstances where Mr Hutchins was leaning down in front of the vehicle with his head somewhere between 30 and 50 centimetres from the grille behind which was located the siren's speaker. Of course, the prosecutor must establish a causal connection between this failure and the risk to health and safety, a matter that I will come to shortly, but it was not an issue in the proceedings that Senior Constable Bell activated the siren on the day in question and I accept on the evidence he did it as a practical joke - a stupid one for which he later apologised. The defendant, therefore, failed to prevent Senior Constable Bell activating the siren. Was that failure causally connected to the risk to health and safety?

45 In relation to this question of causation, what must be established is not only a relevant failure on the part of the employer but also a causal nexus between the conduct of the defendant and the consequent risk to health safety and welfare: Cullen v State Rail Authority (1989) 31 IR 207 at 209; McMartin v The Broken Hill Proprietary Company Ltd (2000) 100 IR 241 at 244; Drake at 449; State Rail Authority of NSW v Dawson (1990) 37 IR 110 at 120-121; Kirkby v A & M I Hanson Pty Ltd (1994) 55 IR 40 at 49-50; Haynes v C I & D Manufacturing Pty Ltd (1994) 60 IR 149 at 156-157; WorkCover Authority of NSW (Inspector Glass) v Kellogg (Aust) Pty Ltd (No 1) (1999) 101 IR 239 at 253; WorkCover Authority of New South Wales (Inspector Keelty) v Crown in Right of the State of New South Wales (Police Service of New South Wales) (No 2) (2001) 104 IR 268 at [18]-[20].

46 In considering whether a causal nexus exists it is not necessary to find that the act or omission of the defendant was the cause of the risk arising. In R v McAuliffe (1993) 70 A Crim R 303 at 306 Gleeson CJ approved the trial judge’s direction that included:

(Y)ou cannot convict the accused of murder or manslaughter unless you are satisfied that the death of the deceased in this trial was causally related to an act for which the accused, whose case you are considering, was responsible. To be a cause of death, for the purposes of these offences, the act for which the accused is responsible must be a substantial or significant cause of bringing about death but need not be the sole cause but it must be a substantial or significant cause viewed in a commonsense and practical way.

47 That direction was approved by the High Court in McAuliffe v R (1995) 183 CLR 108 at 118.

48 Counsel for the prosecutor drew attention to what was said by Wood CJ at CL (with whom Foster AJA and Adams J agreed) in R v Moffatt (2000) 112 A Crim R 201; [2000] NSWCCA 174 revised - 23/05/2000:

66 It does not matter that there is more than one cause of death: Butcher (1986) VR 43, even if the victim is suffering from a condition that is threatening death, so long as the contribution of the accused later mentioned is present. It is indeed a misapplication of principle to attempt a search for a principal cause of death: McKinnon (1980) 2 NZLR 31 and Pagett (1983) 76 CR App R 279

67 In the present case, it is true, the appellant was confronted with a man who was susceptible to sudden death, because he had atherosclerotic disease, because his blood alcohol level approached a lethal level, and because he suffered from alcohol related liver disease, which may have reduced his resistance and otherwise impaired his health.

68 Having noted that the precise mechanism of death was “obscure”, in those circumstances and upon the pathology, his Honour correctly in my view identified the issue for determination as being whether, by his actions, the appellant accelerated the death of the deceased in a way that met the test of causation.

69 On that issue of causation his Honour then correctly directed himself by reference to the fact that in Royall (1990) 172 CLR 378, each of Mason, CJ; Deane and Dawson JJ; and Gaudron and Toohey JJ, in their separate judgments, cited with approval:

“... the comments of Burt CJ in Campbell v The Queen (1981) WAR 286, where the following was said: (at 290)

‘(It is) enough if juries [are] told that the question of cause for them to decide is not a philosophical or a scientific question, but a question to be determined by them applying their common sense to the facts as they find them, they appreciating that the purpose of the inquiry is to attribute legal responsibility in a criminal matter.’”

70 The formulation of the test to be applied was not stated by their Honours in identical terms. Brennan J, said that the accused’s act or omission ‘must contribute significantly to the death of the victim (at 398). Deane and Dawson JJ said that it would be sufficient if the accused’s conduct “is a substantial or significant cause of death’ (at 411). The ‘causal connection must be sufficiently substantial to enable responsibility for the crime to be attributed to the accused.’ (at 412). Toohey and Gaudron JJ said the jury will inevitably concentrate its attention upon ‘whether the act of the accused substantially contributed to the death’ (at 423). McHugh J said that the wrongful act must be “An operating cause and a substantial cause” (at 444).

71 What is clear is that the act of the appellant must have more than a coincidental or insignificant effect - rather it must provide a substantial contribution towards the death of the deceased: See also Smith (1959) 2 QB 35; Evans and Gardiner (No2) (1976) VR 523; Bingapam (1975) 11 SASR 469 at 480; Hallett (1969) SASR 141; and Osland (1998) 159 ALR 170 at 174. Although there has been some debate as to whether the expression “significant” is interchangeable for “substantial” in this context, (see Vol 24 Criminal Law Journal April 2000 at 73), I am content to accept for the present purpose the latter.

72 If the appellant’s act does not initiate that process of death, then it has been held, that it must at least accelerate it by an amount that is “more than de minimis”: Hennigan (1971) 3 All ER 133; Cato (1976) 1 WLR 110, and Smithers (1977) 34 CCC (2d) 427 at 435 Such expression is, however, somewhat lacking in certainty, and I would prefer to employ a test in terms requiring a substantial contribution to any process that is under way, in order to achieve a consistency in relation to acts initiating and accelerating death. Nothing, however, turns upon that in this appeal, as it is evident that his Honour looked for an accelerating contribution that was substantial.

49 Whilst there is no doubt that the immediate cause of the risk of harm to Mr Hutchins was the action of Senior Constable Bell in activating the siren, it is necessary to go behind the immediate cause and ask whether the act or omission of the defendant in failing to prevent Senior Constable Bell activating the siren was a "substantial or significant cause [of the risk] viewed in a commonsense and practical way".

50 It is impossible to come to any view other than that if Senior Constable Bell had been prevented by the defendant from activating the siren, no risk to health and safety would have arisen. As Dr Williams said in his evidence, any risk would have been eliminated if the siren had not been activated. Particular 5(i) to the charge is made out. Whether or not it was reasonably practicable for the defendant to prevent Senior Constable Bell from activating the siren or the activation of the siren was a matter over which the defendant had no control and against the happening of which it was impracticable to the defendant to make provision, is an issue to be considered in the context of the defences available to the applicant pursuant to s 28 of the Act.

(ii) Failing to ensure before the activation that all personnel in the vicinity of sirens fitted on a police vehicle were aware of the activation.

51 The evidence was that Mr Hutchins was not warned that the siren on the Toyota vehicle was about to be activated on 10 December 2001. The defendant failed, therefore, to ensure before the activation that all personnel in the vicinity of sirens fitted on a police vehicle were aware of the activation. As a matter of plain commonsense and as the evidence of Dr Williams confirmed, by having a procedure in place that ensured the siren was not activated without workers being aware of the impending activation and wearing adequate and properly fitted hearing protection, the risk of injury would have at least been reduced. The failure of the defendant as particularised caused Mr Hutchins to be exposed to the risk of harm, that harm being acute acoustic trauma. Particular 5(ii) is made out.

Remaining particulars

52 The other four particulars were:

(iii) Failing to have in place a noise control policy, namely, a written policy, developed by the employer in consultation with employees and employee representatives which in respect of siren activation sets goals for noise exposure in the workplace and the strategies to be used to meet these goals.

(iv) Failing to provide information, training and education to persons working at this place of work about what noise is, the range of health effects due to noise from siren activation and the appropriate control measures.

(v) Failing to provide personal hearing protectors, namely a device, or pair of devices, worn by a person or inserted in the ears of a person to protect the person’s hearing when sirens were activated.

(vi) Failing to identify, with the use of appropriate signs, hearing protection areas in which sirens were to be activated.

53 Mr Shume for the defendant conceded that:

[T]he Court is entitled to find that the allegations of the factual failure existed. That is, there was no written policy; no information, training and education in relation to the range of health affects due to noise; no provision of personal hearing protectors; and no signs designating hearing protection areas.

I accept the concession as having properly been made on the evidence.

54 Mr Shume submitted, however:

[T]he evidence does not suggest that the failure to have in place any one of these particulars played any part in the detriment to safety on the 10 December 2001. The particulars identified relate to a safe system of work for testing sirens. There is no evidence that testing of any siren occurred on 10 December 2001 nor contemplated.

...

It is the Prosecutor who is required to prove beyond reasonable doubt that a casual nexus exists between the detriment to safety and the alleged failures. No evidence has been called to identify what differences, if any, the implementation of these issues would have made. It is not open to the Court on the state of the evidence to infer that it would have made a difference to the actions of Senior Constable Bell on the 10 December 2001.

55 The defendant submitted that "The particulars identified relate to a safe system of work for testing sirens. There is no evidence that testing of any siren occurred on 10 December 2001 nor contemplated". The particulars in fact relate to the activation - not the testing - of sirens. A siren was activated on 10 December 2001.

56 Mr Shume's principal contention, however, was that the necessary causal link between the defendant's admitted failures and the risk to health and safety was missing in relation to particulars 5(iii)-(vi) because there was no evidence the implementation of the measures referred to in these particulars would have made any difference to the actions of Senior Constable Bell on 10 December 2001.

57 What Mr Shume's submission amounts to is that it would have made no difference at all to Senior Constable Bell's actions on 10 December 2001 if the defendant had:

(a) In place a noise control policy, namely, a written policy, developed by the employer in consultation with employees and employee representatives which in respect of siren activation sets goals for noise exposure in the workplace and the strategies to be used to meet these goals.

(b) Provided information, training and education to persons working at this place of work about what noise is, the range of health effects due to noise from siren activation and the appropriate control measures.

(c) Provided personal hearing protectors, namely a device, or pair of devices, worn by a person or inserted in the ears of a person to protect the person’s hearing when sirens were activated.

(d) Identified, with the use of appropriate signs, hearing protection areas in which sirens were to be activated.

58 That is, the Court could not find beyond reasonable doubt that if the defendant had implemented any or all of the above measures, Senior Constable Bell would not have activated the siren on 10 December 2001. In my opinion, except in the case of (c), the above measures would have prevented the practical joke played by Senior Constable Bell on 10 December 2001. A written policy, established in consultation with employees setting goals for noise exposure in the workplace and the strategies to be used to meet these goals, would have undoubtedly expressly prohibited the activation of a siren when a person was likely to suffer harm. Information, training and education would have informed Senior Constable Bell of the potential effect activation of a siren would have on a person's health and safety at close range, i.e., 30 to 50 centimetres. That is, acute acoustic trauma. It is most unlikely Senior Constable Bell would have played his practical joke knowing it may cause serious injury. The mere provision of hearing protection, on its own, may not have prevented the activation of the siren by Senior Constable Bell and given that Mr Hutchins was inspecting a winch on the subject vehicle he may not have considered the need to wear hearing protection. The identification, with the use of appropriate signs, of hearing protection areas in which sirens were to be activated would have given a clear indication to Senior Constable Bell that activating a siren outside the designated areas was prohibited and it is unlikely that a person in his position would have deliberately disobeyed such a clear instruction.

59 In Macquarie Area Health Service v Egan [2002] NSWCA 26 the Court of Appeal (Sheller, Powell, Heydon JJA) considered an appeal from the District Court in which the plaintiff alleged that while assisting a patient the first defendant struck her on the coccyx with a percussion hammer. She brought evidence of postural problems and persistent ongoing pain to her coccyx, lower back and knee. She sued both defendants for negligence in tort, claiming that the first defendant was primarily liable and that the second defendant was vicariously liable as an employer. The trial judge found against both defendants. The Court of Appeal held there was no basis for overturning the decision on liability. In doing so the Court found the injury sustained was a foreseeable risk. The stressful nature of hospital work and the high spirits of the staff made pranks a real possibility and there was evidence that practical jokes were common in the hospital. Patients as well as employees stood the chance of injury as a result of such a prank and no warning had been issued to employees against pranks of the sort in issue. As to the argument that compliance with the duty would not have prevented the plaintiff’s injury the Court held that a general or vague or bland or manifestly perfunctory or half-hearted instruction might be disobeyed, but what was required was a warning or instruction of sufficient gravity to make compliance likely.

60 Heydon JA stated at [53]-[56]:

53 The defendant submitted that even if it had a duty to give instructions forbidding horseplay and the like, and even if it was in breach of that duty, that breach could not have been causative of the plaintiff’s loss because compliance with the duty would not have been effective to prevent the plaintiff’s injury.

54 There is no evidence to support this submission. There is no evidence that Miss Crawford’s instruction about the spa was disobeyed by any of the staff who heard it. The defendant’s submission, so far as it had any strength, derived it from the rhetorical device of characterising the relevant instruction or warning as merely “general” or “generalised”. While it is true that a general or vague or bland or manifestly perfunctory or half-hearted instruction might be disobeyed, once it is concluded that the tests in Shirt’s case were satisfied sufficiently to justify the conclusion that there was a breach of duty, the duty breached was one which, if it were to be performed, would call for a warning that was likely to be effective. The precise power of Miss Crawford was unclear; if she did not hold an office having the authority to give a warning or instruction of sufficient gravity, a warning or instruction should have been given by a person who did hold such an office, and in a form making it likely that staff would comply. The defendant submitted that there was “nothing really” that it could have done. To submit that is to submit that it had no control whatever over its employees in an important matter affecting the health of both staff and patients. However hard the lives of employers have been made by modern legislation, they do retain some control over their employees in fact, and ex hypothesis they have it in law.

55 This reasoning is the stronger if the only aspect of the relevant duty breached which is focused on is alleviating the risk of physical injury to staff caused by horseplay while the staff were attending to patients. It is probable that even the most irresponsible employee, if reminded by a sufficiently clear and stern instruction, would have appreciated that whatever other forms of horseplay might be engaged in, horseplay directed to a member of staff wholly concentrating on patient needs and unlikely to be sharing the light-hearted mood of the perpetrator of the horseplay was dangerous and to be avoided. It follows that there is no reason to suppose that such an instruction would not have been causally effective to avoid the injury.

56 In Betts v Whittingslowe (1945) 71 CLR 637 at 649 Dixon J said that at least in some circumstances:

“the breach of duty coupled with an accident of the kind that might thereby be caused is enough to justify an inference, in the absence of any sufficient reason to the contrary, that in fact the accident did occur owing to the act or omission amounting to the breach ... “

That inference can be drawn in the present circumstances.

61 Sheller JA at [3] stated:

3 Like Heydon JA, I am satisfied that in the work environment of this hospital proper instruction and directions as to the dangers of engaging in horseplay on the premises would almost certainly have dissuaded a nurse employed there from hitting another nurse employed there on the coccyx with a percussion hammer while the victim was manoeuvring a patient in a wheelchair. For the reasons given by Heydon JA, I agree with the orders he has proposed.

62 In the present case, if an appropriate policy relating to the regulation of noise had been promulgated in the defendant's workshop and proper instruction and directions had alerted personnel to the dangers of excessive noise to health and safety and prohibited the activation of sirens other than in circumstances that were safe it would undoubtedly, in my opinion, have dissuaded Senior Constable Bell from activating the siren thereby avoiding the risk of serious injury to Mr Hutchins. As it was, there was absolutely nothing the defendant had done or said that may have alerted Senior Constable Bell to the potential consequences of his practical joke.

63 Counsel for the defendant submitted:

The Court is not concerned with the occurrence of the risk in any way other than the emission of a noise through a siren of 115dB at ear level for more than one second. The evidence identifies that sirens are activated in the course of work, but only for the purpose of testing their functionality. Further, the usual practice involves no person being in the immediate area of the siren when testing occurs, ie no-one is exposed to a risk. The exposure on the 10 December 2001 came about under abnormal circumstances. There was no siren testing being performed on this vehicle nor was there a requirement to perform siren testing on this vehicle. The siren was intentionally activated by Senior Constable Bell for the specific purpose of it making a noise whilst Mr Hutchins was in very close proximity to the bugle horn, as it unfolds approximately 50cm. It should be noted that on testing of a 100 W siren (Ex AC) that the noise emission was 117dB (peak) at 50cm. Mr Hutchins evidence of a short blast and his immediate reaction to move away has to cast a reasonable doubt as to whether Mr Hutchins was exposed to the emission of a noise of 115dB at ear level for more than one second. The benefit of the doubt should be given to the Defendant and the matter dismissed.

64 The difficulty with what was put in this regard by the defendant was that Mr Hutchins gave evidence that the amount of time he was subjected to the siren was "about two seconds". He was not subjected to any real testing of that evidence in cross examination to the effect that it was less than two seconds and it was Dr Williams' evidence that in order for Mr Hutchins to have suffered acute acoustic trauma, which he undoubtedly did, he would have to have been exposed to sound levels exceeding 115dB for more than one second.

65 Mr Shume relied on the test carried out by Mr Moskvitch and Mr Mikl on a 100 watt siren fitted to a Holden Commodore sedan which showed that at 50 cm from the grille of the vehicle the sound level (Lpeak(C)) was 117. At the grille, however, the sound level was 130. With Mr Hutchins' ear being 30 to 50 cm from the grille, even overlooking the differences between the test and the actual incident, it seems to me to be no doubt Mr Hutchins was exposed to a sound level greater than 115 dB. I do not consider the field test carried out by WorkCover throws reasonable doubt on the evidence that Mr Hutchins was exposed to risks to his health through exposure to sound levels greater than 115dB. The following exchange occurred between counsel for the prosecution and Dr Williams:

Q. So in your mind there is no possibility that he [Mr Hutchins] was exposed to something either at 115 or slightly less?

A. In my mind, no.

Dr Williams confirmed this opinion in cross-examination.

66 I find particulars 5(iii), (iv) and (vi) made out.

67 I find that the defendant failed in the manner particularised in particulars 5(i), (ii, (iii), (iv) and (vi) of the charge to ensure the health, safety and welfare at work of all of its employees, and in particular Anthony James Hutchins, in that the accused person did not ensure systems of work were safe and without risks to health contrary to section 8(1) of the Occupational Health and Safety Act 2000 unless it establishes a defence under s 28 of the Act.

Section 28 defence

68 Section 28 states

It is a defence to any proceedings against a person for an offence against a provision of this Act or the regulations if the person proves that:

(a) it was not reasonably practicable for the person to comply with the provision, or

(b) the commission of the offence was due to causes over which the person had no control and against the happening of which it was impracticable for the person to make provision.

69 The requirements of s 53 of the Occupational Health and Safety Act 1983, the antecedent provision of s 28, were considered by the Full Bench in WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Limited (2002) 123 IR 121 at [83] to [86] and recently adopted by another Full Bench in Morrison v Powercoal Pty Ltd & Anor [2004] NSWIRComm 297.

70 Counsel for the defendant relied on both limbs of s 28. In respect of s 28(a) it was submitted that it was not reasonably practicable to comply with a standard, that is, 115dB, if the standard was unknown and not promulgated.

71 Mr Shume submitted:

Dr Williams has provided evidence of his opinion that 115dB is the appropriate point to draw the line in the sand.

This opinion is as a result of the expertise he has developed over a long career in his specialized field (Ex D). Not even he can be sure of this cut off point, given that no testing has been done nor can it be done. It is his professional opinion but some doubt must exist as to its accuracy. He supports his opinion by the fact that the threshold for pain is 120dB. However, he identifies in his evidence in chief that there is conjecture within his peers as to the accuracy of this figure. The 120dB figure is conservative. He suggests that the range is 120dB to 125 dB or possibly up to 130dB. One would have to come to the conclusion that his opinion is one erring on the side of conservatism. In contrast the Code of Practice (Ex A) approved as an Industry Code of Practice under section 44A of the Occupational Health and Safety Act 1983 and continues to be in force under the Act recommends a different level (see definition of “Excessive noise” and “Hearing protection areas”). The Occupational Health and Safety (Noise) Regulation 1996 (see also the cl 49 Occupational Health and Safety Regulations 2001) also adopts something different to Dr Williams.

Mr Hannan, who investigated the matter, made his own inquiries post the incident. He was not able to provide evidence to the Court that he had been able to identify the bench mark identified by Dr Williams.

Whilst compliance with the regulation is not a defence “in itself”, the fact that the regulation provides a criteria to be complied with must be taken into account in assessing whether the defendant has proved on the balance of probabilities it was not reasonably practicable to identify this “line in the sand” of 115dB.

72 I am prepared to accept on the evidence, particularly the expert evidence of Dr Williams but not overlooking the extracts from the text entitled "Scott-Brown's Otolaryngology" and from the text entitled "Occupational Hearing Loss", second edition, 1993, by Robert and Joseph Sataloff, that above 115dB there is a real risk of acute acoustic trauma that may cause hearing loss and injury to the ear, which varies with the susceptibility of the individual. That is, above 115dB there is a risk. As Dr Williams explained in his evidence:

I take the view that gradual process injuries can cause gradual hearing loss with continuous exposure up to 115dB. Over 115dB, and around about 115dB, we get a change in the nature of the condition. A gradual process injury is a cellular injury, whereas an acute acoustic trauma is a more mechanical injury due to the intensity and duration of the sound. So 115 is, I believe, the place where the type of injury changes from a gradual process-type injury with continuous exposure to a mechanical-type injury. So because 115 - or 125dB (sic - 5dB) above 115 where that process changes where you get a mechanical injury, I believe 120 is the threshold for pain because the nature of the injury then starts to become a mechanical injury.

Q. Why is it in that same paragraph you say that it follows that sound intensity of about 120dB and above are hazardous with a potential risk to cause hearing loss and ear injury depending on individual susceptibility.

A. Because once you start getting mechanical injury to the ear caused by the intense sound and duration of the sound, the mechanical injury can affect the cochlear and the sensory hair cells.

Q. Why is that?

A. Because it's just a direct mechanical injury to the hair cells. It's not like hitting them over the hand with your hand but you're using sound instead. So it's a mechanical injury rather than a gradual process injury where the cells are slightly concussed and then recover with a less intense injury. But over 115 it's more a mechanical, direct injury due to the sound or the trauma.

Q. In expressing that opinion, do you rely in part upon the 15 or so cases you have looked at yourself?

A. Yes, in part.

Q. Do you rely in part upon literature available in this field?

A. In part.

Q. Anything else, apart from your own experience with 15 or so cases and literature, that you relied upon?

A. No, I don't think so. Just my understanding of the mechanism of the injury that occurs with the nature and duration of that trauma.

Q. How do you have an understanding of the mechanisms of that injury?

A. From training, experience, and my experience with those cases.

73 It would be unreasonable for the Court to reject or not follow the evidence of Dr Williams as relied upon by the prosecutor. There is no other material before the Court that conflicts with the expert evidence or outweighs it. In commenting on the decision of the Court of Criminal Appeal in Bailey [1961] CrimLR 828, the NSW Court of Criminal Appeal (Spigelman CJ, Sperling and Hidden JJ) noted with approval what Lord Parker CJ said in delivering judgment:

This court has said on many occasions that of course juries are not bound by what the medical witnesses say, but at the same time they must act on the evidence, and if there is nothing before them, no facts and no circumstances shown before them which throw doubt on the medical evidence, then that is all that they are left with, and the jury, in those circumstances, must accept it.

74 Was Mr Hutchins subjected to a risk of acute acoustic trauma that may cause hearing loss and injury to the ear? Clearly, he was. He suffered acute acoustic trauma following the activation of the siren by Senior Constable Bell on 10 December 2001; he was exposed to the noise of the siren for a period greater than one second; the siren was capable of emitting sound levels of 129dB; he was exposed to a sound level greater than 115dB; and, his right ear was within 30 to 50 centimetres of the siren's speaker.

75 For a defendant that conducts a workshop where sirens, capable of emitting "a very powerful blast at high volume level" (to use the words of the defendant in its report to its insurer), are activated on a frequent basis, it is somewhat perplexing that it would contend in defence of its position that "it is not reasonable practicable to comply with a standard, that is, 115dB if the standard is unknown and not promulgated" in circumstances where, prior to 10 December 2001, the defendant's policies and practices relating to noise and its effect on health and safety were practically non-existent.

76 The obligation on a defendant who seeks to use the defence under s 28(a) is that it must prove on the balance of probabilities that it was not reasonably practicable to comply with the relevant provision. Even if it were the case that there was room for debate about whether 115dB is the point above which individuals may be at risk of harm to their hearing, the defendant made no meaningful effort, prior to 10 December 2001, to comply with s 8(1) to ensure the safety of its personnel at the Waratah workshop in so far as exposure to noise was concerned. There was no evidence from the defendant of any "balancing of the quantum of the risk with the sacrifice (in money, time and trouble) in adopting the measures necessary to avert the risk": WorkCover Authority of New South Wales (Inspector Byer) v Cleary Brothers (Bombo) Pty Ltd (2001) 110 IR 182 at [88].

77 The defendant submitted the Industry Code of Practice under cl 49 of the Occupational Health and Safety Regulations 2001 had adopted a different standard to that of Dr Williams' level of 115dB and further submitted that "Whilst compliance with the regulation is not a defence “in itself”, the fact that the regulation provides a criteria to be complied with must be taken into account in assessing whether the defendant has proved on the balance of probabilities it was not reasonably practicable to identify this “line in the sand” of 115dB."

78 It is not a question of whether the defendant has proved on the balance of probabilities it was not reasonably practicable to identify the line in the sand as 115dB. The issue to be determined is whether the defendant has proved it was not reasonably practicable for it to comply with s 8(1). As there was no evidence from the defendant as to how it was unable to comply because it was not reasonably practicable to do so, it must follow the defence under s 28(a) fails.

79 The defendant also relied on s 28(b) of the Act, submitting that:

The commission of this offence was the subject of whatever was going through the mind of Senior Constable Bell at the time of the incident and immediately before the event. There is no evidence to suggest that an occurrence of this nature had occurred prior to the 10 December 2004. There is no indication that there was any malice towards Mr Hutchins. This appears to be a momentary lapse on the part of Senior Constable Bell. The incident and the type of incident were not reasonably foreseeable. The Court would be satisfied on the balance of probabilities that the commission of the offence was due to causes over which the Defendant had no control. It follows in our submission that it was impracticable for the Defendant to make provision.

80 It is not a question whether the incident was reasonably foreseeable, that is Senior Constable Bell playing a practical joke by activating a siren whilst Mr Hutchins' right ear was next to the siren's speaker. The questions are: whether in the absence of proper policies and procedures it was foreseeable that the health of a person might be placed at risk from exposure to sound levels emitted from a siren; whether the defendant had control over what caused the risk; and, whether it was impracticable for the defendant to make provision to eliminate or avoid the risk.

81 In circumstances where personnel were regularly fitting and testing sirens that emitted "a very powerful blast at high volume level" it was readily foreseeable that harm might be caused to a person's hearing if they were close to the siren at the time it was activated, especially in circumstances where no hearing protection was provided and no training education or instruction was given to personnel about the harmful effects of high level sound. The defendant had control and it was always open to the defendant to implement the measures referred to in the particulars of the charge so there was nothing impracticable about avoiding or eliminating the risk.

82 In the absence of any coherent policy or practice regarding noise protection measures and where a causal connection has been established between the acts or omissions of the defendant and the risk to health and safety, it is simply not open to the defendant to rely on any analogy with the circumstances in WorkCover Authority of NSW v Maitland City Council (1998) 83 IR 362. In that case Hill J found, in a system of work that was safe, it was not reasonably foreseeable that a person would run across the road and attempt to climb onto the back of a cockerel box of a truck on which he was not employed, while it was reversing and laying blue metal on recently laid hot bitumen.

83 I find that the defendant has not made out a defence under s 28(b) of the Act. I am satisfied beyond reasonable doubt that on 10 December 2001 the defendant failed to ensure the health, safety and welfare at work of all of its employees, and in particular Anthony James Hutchins, in that the accused person did not ensure systems of work were safe and without risks to health contrary to section 8(1) of the Occupational Health and Safety Act 2000.

84 I will hear submissions on penalty and costs on a date to be fixed.

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LAST UPDATED: 17/02/2005