Cahill v State of New South Wales

Cahill v State of New South Wales - [2005] NSWIRComm 33 - NSWIRComm 2005 case summary — Zoe

[15]

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.

[18]

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]

[70]

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.

[83]

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.

[95]

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.

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