Ludlow v Return to Work Corporation of South Australia [2025] SAET 83

1. Amongst other things, Schedule 2 links noise induced hearing loss with any work involving exposure to noise. Mr Ludlow contends that he is entitled to rely upon this provision, such that unless the Corporation establishes that his work at Uniting SA did not cause his hearing loss, his claim succeeds.
2. At the commencement of the hearing the Court conducted a view that commenced at the employer's premises at 1 Glebe Street, Alberton. There we entered a building that looked internally like a typical admin building. Inside the building we inspected the worker's office. It looked like a typical small office with a chair, desk, keyboard and telephone. Apart from the noise that might be expected in the admin building, there did not appear to be any other sources of noise that might be relevant. This was where Mr Ludlow worked for the last couple of years at Uniting SA after he had been promoted to a supervisory role.
3. We then attended the Westminster Residential Aged Care facility (Westminster) in Fort Street, Grange. We walked through a reception area through two sets of double doors. The first set was initially identified as the point at which demolition and new building work was undertaken. Mr Ludlow indicated that he believed that this occurred at the point of the second set. We passed through the complex, passed a series of rooms that looked like hospital rooms that accommodated aged residents, as well as more open areas that contained dining and recreational facilities.
4. We passed through the building to the outside and inspected a shed that was between the main building and the independent living units. It is made of metal. The western side of the shed comprises of an office. The eastern side of the shed is a storage area. The office area was cluttered and within it was an air conditioner in the wall and a desk. The storage area was also quite cluttered. We were shown earmuffs and earplugs, that Mr Ludlow identified as being of the type that he used from time to time.
5. Adjacent to the shed was a grassed area. Adjacent to that were stand-alone home units. As we walked back through the building we passed a kitchen, a café, a hairdresser, before coming to an outdoor courtyard that had synthetic grass and trees and hedges that looked manicured.
6. Mr Ludlow said that he was employed as a property services maintenance officer by Uniting SA between 24 June 2013 and 9 September 2018.
7. He said that in his first year he was allocated to work 4 days per week at the Westminster and 1 day per week at the adjoined independent living units. He said that he spent about half his time working in the workshop.
8. He said that in the second year he was allocated to work half a day, 2 days per week, at the Seaton Aged Care facility (Seaton) about 1.5 kilometres down the road from Westminster and the remainder of the time at Westminster.
9. He said that in the third year, for a period of approximately 18 months, he was allocated to look after both sites full-time. He would spend approximately 3.5 days at Westminster and 1.5 days at Seaton site. He said that after this, he was allocated to work solely at Westminster.
10. He said that the workshop at Seaton was also a tin shed that had an air conditioner. He said that when they were running, the sheds at Westminster and Seaton were noisy as the tin walls amplified the sound.
11. He said that as a maintenance officer, his duties required him to maintain the entire site and perform repairs that were within his capability before engaging any contractors. He said that he holds a building supervisor and contractor's licence, and was able to do any form of building maintenance jobs such as maintaining plant rooms, air conditioning, refrigeration, and other equipment. He described some of the duties that he performed. These included patching plasterboard, hand sanding and painting, pumping tyres, repairing walking frames, wheelchairs, and "princess chairs", tightening handles and repairing locks, fixing leaks and changing washers, maintaining and lubricating hinges, cleaning gutters, re-tightening handrails, unblocking toilets using a plunger, restarting air conditioning plants, fixing damage to doors and windows, walls, ceilings, outside fencing, hanging pictures for new arrivals, fitting brackets to attach televisions to walls, cleaning drains and maintaining the safe exit of condensed water.
12. He spoke of regularly operating a cordless drill, hammer drill, angle grinder, hammer, battery-operated pump, circular saw, petrol driven pressure washer, leaf blower, bench grinder, petrol driven cutting saws, and hand tools.
13. He spoke of an occasion when a firm known as Kennetts Builders took over the Westminster site for complete demolition and rebuild of a site operated by Uniting SA known as Wesley House. The site was reopened in approximately May 2017. He said that during the demolition, hammer drills, jackhammers, and angle grinders were used. He said that he did most of the angle grinding. He said that it took about 7 hours to complete the job, during which the noisy tools were in operation for about 6 hours. He described this as the noisiest day in his entire working career.
14. He said that Westminster had two plant rooms and a plant area on the roof. He said that the plant rooms contained old noisy air conditioning and extraction fan systems and the plant area on the roof contained refrigeration units. He said that he had to regularly check and clean these. He said that when he first stared at Westminster, he went to the plant rooms every day for 10 to 15 minutes and that once a month he would be there for approximately an hour.
15. He said that his position as a maintenance supervisor between 10 August 2020 and 28 February 2021 was a six-month position which was extended until he accepted the role full time. He said that his duties as a maintenance supervisor included supervision of all staff and contractors on site, discussing any issues with the contractors, organising replacement of old equipment, and proposing and managing projects.
16. He said that as a supervisor, he attended various sites. He said that although he was not required to operate any tools as a supervisor, he was still exposed to noise from attending the plant rooms, and from the tools operated by maintenance personnel in the workshops and tools operated by the handy persons, gardeners, and contractors he was supervising.
17. He said that although he was officially employed as a maintenance supervisor, because of staff shortages, he undertook the duties of a maintenance officer in the period between approximately November 2021 and mid-2022.
18. Mr Ludlow acknowledged that Uniting SA provided him with earmuffs and earplugs as hearing protection. He said that he used hearing protection most of the time as required during his employment as a maintenance officer. He said that he would normally use them when operating a hammer drill, an angle grinder, or a circular saw but probably not when he was operating a cordless drill, a hammer or battery operated pump. He said that if he was using a motorised high-pressure cleaner for short periods, he would not have used hearing protection, but if it was for a longer period, he probably would have used protection. He said that he probably did not use hearing protection when using a battery operated leaf blower but would use it, if using a motorised leaf blower.
19. He added that he rarely used hearing protection while he was working as a maintenance supervisor.
20. It was put to Mr Ludlow that Westminster was a quiet place to work, as might have been expected of an Aged Care facility. He said:

Most of the time it was reasonably quiet, depending, in the actual building itself. No, not up in the plant rooms or when you went up on the roof to blow pine needles off the roof or stuff like that.

1. It was put to Mr Ludlow that he had exaggerated the amount of noise that he was exposed to at Uniting SA. He refuted this. He was then taken to the claim form that he had completed in connection with his claim for compensation and in particular the section titled: "What happened and how was the worker injured?" where he wrote:

Constant and prolonged noise in the workplace where noise levels were unacceptable.[1]

1. When it was suggested that this was untrue, he said:

Depending on the area I was working in, like plant rooms and stuff like that. They were constant and very noisy.

1. When it was suggested to Mr Ludlow by reference to some employment records that he might be mistaken about his participation in the demolition of the Westminster, he expressed some uncertainty.
2. Faced with an allegation that he was exposed to considerable noise because of his leisure activities, Mr Ludlow acknowledged that he had been involved with Go-Karts and hot rods. He said that the hot rods both had working radios fitted, and that that the radios could be clearly heard at normal volumes when he was driving these vehicles.
3. It is common ground that on 15 August 2014, Mr Ludlow had his hearing tested by Uniting SA and he had losses that ranged from 1.5% to 3.7%.
4. Further audiograms were conducted in 2021, 2023, and 2024. In 2021, the loss was calculated at 10%, in August 2023, it was 11.6%, in December 2013 it was 11.4% and in September 2024, it was 12.7%.
5. It is also noted that Mr Ludlow provided his lawyers with instructions regarding his prior employment and exposure to noise.[2] Those instructions record that he worked as a Factory Manager at Precise Plastic Tooling between 1 April 2008 and 1 August 2009, and was exposed to noise from various items of plant that was described as "very noisy"; he worked as worked as a Caravan Park Manager at Nuriootpa between 26 September 2011 and 1 December 2011, and was exposed to noise from hammering, banging, lawn mowing, and noise from other machinery that was described as "very noisy"; he worked at Blackfriars Priory School as a Maintenance Officer between 17 April 2013 and 12 December 2013, and was exposed to noise from hammering, banging, lawn mowing, and noise from other machinery that was described as "very noisy"; and that he was also self-employed between 1 July 2009 and 30 June 2017 undertaking maintenance work and was exposed to noise from hammering, banging, lawn mowing, and noise from other machinery that was described as "very noisy".

1. Mr Hawke has been employed by Uniting SA as an Aged Care Maintenance Manager since October 2022. He had previously worked for Uniting SA as a Maintenance Officer, but not with Mr Ludlow. His check of the business records did not show that Mr Ludlow worked as a Maintenance Officer at the Wesley House site.

1. Mr Spurling is currently the Senior Manager Property and Facilities at Uniting SA. From 2021, while he worked as Uniting SA's Manager of Property and Facilities, he said that he had several conversations with Mr Ludlow about his leisure activities. He said that on one occasion, Mr Ludlow told him that he would have liked to have installed a radio into his hot rod, but there was no point, as he would not be able to hear it over the noise of the engine.

1. Mr Dewing is an occupational hygienist, a work health and safety consultant, an ergonomist, and an occupational therapist. He was retained by the Corporation to measure the sound levels at Westminster and Seaton.
2. Mr Dewing noted that at the sites several tools were present, but based on discussion with a representative of Uniting SA, and the current maintenance employee, he recorded that the majority of the tools and equipment used were hand tools and there was intermittent, occasional or rare usage of many of the other tools present. He said that he tested the noise levels as follows:
   • Hand tools: negligible noise from most of the hand tools used such as screwdrivers and spanners.
   • Hammering: a hammer would be used at times and it is likely that the noise levels would normally be less than 90 dB(A). There could be occasions when the levels were up to 100 dB(A).
   • Cordless drill: mostly less than 80 dB(A) and possibly sometimes up to 85 dB(A). When used as a hammer drill, the noise levels would be in the range up to 100 to 105 dB(A).
   • Blower: when a Stihl blower was used to blow leaves, the noise levels were in the range between 91 and 94 dB(A).
   • Cordless circular saw: between approximately 80 and 100 dB(A) if used.
   • Cordless angle grinder: between approximately 90 and 100 dB(A) if used.
   • Battery-operated hand pump: 84 to 85 dB(A). this was not present but the testing at Westminster Village Residential Aged Care indicated a level between 84 and 85 dB(A).
   • Bench grinder: up to 90 to 95 dB(A) depending on the specific grinding task.
   • Pressure washer:
   • Electric: the noise levels from an electric pressure washer were between approximately 80 and 82 dB(A) when measured 2 m from the unit. Depending on the specific pressure washer and the application, the noise levels for an electric version are typically between 80 and 85 dB(A).
   • Petrol: a petrol pressure washer was not present at the site. Depending on the application and where the cleaning occurs, the noise levels based on testing units at other sites in the past are typically between 90 and 95 dB(A).
   • Refrigeration system on the side of the building: when measured approximately 500 mm from the unit, the noise levels were up to 70 dB(A). When measured outside the shed door, the noise levels were between 61 and 63.5 dB(A).
   • Air conditioner in maintenance shed: the air-conditioner was a reverse cycle split unit and the noise levels were between 52 and 60 dB(A). There was no wall mounted air-conditioner present. Previous testing of wall mounted air-conditioners showed that the noise levels were between approximately 56 and 59 dB(A) when measured 1 metre from the unit. [3]
3. Mr Dewing believed Mr Ludlow's workplace was unlikely to have exposed him to noise sufficient to damage his hearing. He based this on his view that his average daily exposure to noise was probably not significant. He accepted that from time to time Mr Ludlow might have been exposed to significant noise, but he regarded it as of insufficient duration to have caused noise induced hearing loss.
4. He also stated:

In the claimant's statement dated 27 March 2024, he detailed the duration and frequency of use which was clearly much greater than what has been observed and assessed by me and detailed by other maintenance personnel at different aged care sites.[4]

1. Dr Raj is an Ear, Nose and Throat specialist who assessed Mr Ludlow on 20 September 2024. He noted that there were differences between Mr Ludlow's account of the amount of noise he was exposed to whilst working for Uniting SA, as compared to Mr Dewing.
2. He noted that Mr Ludlow sated that his work at Uniting SA work, including sanding, painting, repairing walking frames, and fixing doors, windows, and fences which required him to use drills, hammer drills, angle grinders, circular saws, pressure washers, blowers, grinders, and cutting saws. He took from this that Mr Ludlow could be exposed to noise for a few minutes to three or four hours using tools that have noise levels between 85dB and 100dB and possibly even more. He noted that Mr Dewing did not consider that in the early years of Mr Ludlow's employment there, he was working with old and noisy air conditioning.
3. On balance, he thought that Mr Ludlow had noise induced hearing loss, and that his work for Uniting SA was the cause.
4. It was put to Dr Raj that loss of hearing is a common feature of age and that many people who have loss of hearing are not exposed to significant degrees of noise over their lifetime. It led to this exchange:

Mr Doyle: Looking, sort of, empirically, in the circumstances we've just discussed, it's not surprising, is it, that if we look at a cross-section of the community, it's a common experience that as people age many of them suffer an increase in - well, a deteriorating hearing?

Dr Raj: That's correct. So as we age - I mean, the deterioration of hearing depends on several causes. I mean, there's a natural cochlear cell degeneration that occurs, like any central brain cell. So as we get older, the brain cells, the number of brain cells we get, get reduced, or function less. So that sort of thing happens in the cochlear as well. So that that's one, and then you may have other effects. For example, if you have hypertension, diabetes, autoimmune disease, rheumatoid arthritis, and if your small vessels are affected, it can affect at the same time. So they can all occur at the same time. But how much of it - how much of each of the conditions contribute, you cannot say or exactly determine.

So there are studies that indicate that - I'm not giving you the exact figures, but these are approximate figures because I have come to know about them from a very long time ago, but there are studies indicate that for - if every - of 100 people who are exposed to noise, only 20 to 30 of them will actually suffer noise injury, and this is in relation to the cochlear sensitivity, because not all cochleas are sensitive to noise, and there are other variables as well that can affect the noise injury. So the studies indicate that if 100 people are exposed to noise, then about 30, an average of 30 per cent would get noise injury, and the other 70 per cent would have a hearing loss, they might have been exposed to noise but may not have a noise injury.

1. In his oral evidence Dr Raj made the point that exposure to high levels of noise over short periods can cause the same damage as exposure to lower levels of noise over much longer periods. He said that noise levels at around 85 decibels over a period of eight hours, or equivalent, is the same in terms of potential damage as 90 decibels over two hours, and 100 decibels over 15 minutes. This was in the context of his understanding that Mr Ludlow was on occasions exposed to noise for four hours at 90 decibels, and two hours at 100 decibels.
2. Dr Raj explained this in terms of the cochlea needing time to recover when exposed to noise. This is apparent from the following exchange:

Mr Doyle: So is it fair to say, Doctor, that noise-induced hearing loss is typically associated with continuous exposure at certain levels? I mean continuous in the sense that whether it's four hours a day continuous, or eight hours a day continuous, or six hours a day continuous, that's the typical scenario. The continuity of exposure is the typical - sorry - and the decibel level, is the typical feature of noise-induced hearing loss.

Dr Raj: That's correct. So what we're trying to establish here is that at a particular noise level, he's been exposed to a particular duration during the day, and that continues every day, and because it continues every day, and the cochlear needs more time to recover than what is given, therefore, it is a continuous damage or continuous exposure that occurs. Yes. That's exactly what we mean.

Mr Doyle ...your basic assumption in Mr Ludlow's case was that, essentially, day in, day out, when he was at work, he was being exposed to noise levels which one might say were at least the level of four hours at 90 decibels or two hours at 100. Sorry, I got that wrong. Yes. Four hours at 90 or two hours at 100. That sort of level.

Dr Raj: Yes. From the history he gave me. Yes...

Mr Doyle: ...in other words, those high levels of exposure, perhaps at 90 or 100 decibels for a very short period of time occurred only intermittently, for example, every month or a couple of months or every few weeks; that is, once every few weeks. That level of exposure wouldn't be expected to cause noise-induced hearing loss?

Dr Raj: Yes. Correct. I agree with that.

Mr Doyle: But in any event, if we go back to your underlying assumption in Mr Ludlow's case, that whether the exposure was two hours a day or four hours a day or more at levels of 85 or 90 decibels or even 100 decibels, unless that exposure was on a continuous basis, that is day after day and week after week, that it's not exposure which would be likely to cause noise-induced hearing loss.

Dr Raj: So let me try to get this correct, what you just said. So we are assuming that he - sorry, can you repeat the whole thing, so I can

Mr Doyle: What I'm saying is if those levels of exposure were only truly intermittent; in other words, those high levels of exposure, perhaps at 90 or 100 decibels for a very short period of time occurred only intermittently, for example, every month or a couple of months or every few weeks; that is, once every few weeks. That level of exposure wouldn't be expected to cause noise-induced hearing loss?

Dr Raj: Yes. Correct. I agree with that.

1. It was put to Dr Raj that noise-induced hearing loss progresses very slowly and more slowly later in a noisy career. He agreed. He said:

...the loss is not linear. So when you would draw the graph of how the noise-induced hearing loss occurs, in the first five, six, seven, 10 years, 15 years of noise exposure, the cochlear injury is significantly more than the next 15 years of noise exposure.

1. It was put to Dr Raj that in respect of a person who has noisy career, typically, hearing loss occurs mostly in the first decade of the exposure to noise capable of causing it, and thereafter, the rate of deterioration slows dramatically. He said: " I totally agree with that. Yes."
2. Dr Raj agreed that for a person to be exposed to intermittent noise exposure, it would be very atypical to suffer 8.5% noise-induced hearing loss over five years. He also agreed that this was also true in respect of someone who had been exposed to noise on a continuous basis.

1. Dr Hains is an Ear, Nose and Throat specialist who assessed Mr Ludlow on 11 December 2023. In a report dated 14 December 2023[5], Dr Hains stated that Mr Ludlow's work history was consistent with a diagnosis of noise induced hearing loss and that Mr Ludlow would benefit from hearing aids. He also stated that there had been a significant progression in Mr Ludlow's hearing loss between August 2014 and his assessment of 11.4% which he increased to 12.4% on account of his tinnitus. He said that this was "despite the findings of the Dewing noise survey".[6]
2. By email dated 18 January 2024, the Corporation sought clarification from Dr Hains. Amongst other things, the email advised Dr Hains that Mr Ludlow had been an active member of a Go-Kart Club, that he did V8 rod restoration, and that he was a member of a hot rod club. He was asked whether in light of this, and Mr Dewing's report, he was still of the opinion that Mr Ludlow had noise induced hearing loss.
3. In a report dated 18 January 2024,[7] Dr Hains said that it was necessary for him to revise his earlier opinion. He said:

The work history and noise survey do not suggest noise exposure during this employment sufficient to have damaged the hearing. Exposure to recreational noise may have contributed.[8]

Although the pattern of the latest audiogram is consistent with noise induce hearing loss, causes other than noise exposure can produce a similar pattern.[9]

1. By letter dated 9 May 2024, the Corporation provided Dr Hains with Mr Ludlow's statement and Mr Dewing's noise level testing at Seaton and posed further questions, including whether they caused him to alter his opinion.
2. In a later report dated 10 May 2024,[10] Dr Hains said that for the purposes of making comparisons, it was reasonable to ascribe to the 2014 test a figure of 2.6%. He said that increase to 11.4% in 2023 was unlikely to be the consequence of 9 years exposure to intermittent noise whilst working at Uniting SA. He noted that he had previously expressed an apparent contradiction between the findings of Mr Dewing and the progression of Mr Ludlow's hearing loss. He stated that Mr Ludlow's statement suggested that his exposure to noise "was clearly intermittent"[11] with time to recover from episodes of noise exposure. He then stated:

The increase in the high tone hearing loss is 8.8% and it seems unlikely that this can be explained by 9 years of exposure to intermittent noise...

The conclusion must be that there is another cause or causes of the hearing deterioration the nature of which is uncertain.[12]

1. By letter dated 10 July 2024, the Corporation sought further clarification from Dr Hains. Dr Hains responded on 12 July 2024 that included the following:

It is axiomatic that noise induced hearing loss does not progress after leaving the noise that caused it. The audiograms dated 22 September 2021 and my own audiogram show significant deterioration in the frequency usually measured for noise induced hearing loss Using 2000-4000 cps inclusive and adjusting for his age the hearing losses are 10% and my own result is 12.4%.

Although both the more recent audiograms have a pattern consistent with noise damage, such a pattern is by no means diagnostic and occurs with many degenerative inner ear conditions that are not work related.[13]

1. The Corporation wrote another letter to Dr Hains on 11 October 2024, asking him to comment on Dr Raj's report. In a report dated 15 October 2024, Dr Hains wrote:

There are major problems with the conclusions reached by Dr Raj.

1. Noise induced hearing loss progresses very slowly and more slowly later in a noise career. Typically loss occurs mostly in the first decade of exposure to noise capable of causing it and therefore the rate of deterioration slows dramatically. Progression from 2.6% on the pre-employment audiogram to 11.4% (the average of the later audiograms) is highly unlikely to be explicable in terms of noise exposure.

2. Intermittent noise exposure as described by Mr Ludlow at Uniting SA is much more likely to damage the hearing than continuous noise because the ears have time to recover between episodes of noise exposure.

3. The Dewing noise survey based on analysis of several care organisations demonstrates that maintenance workers employed are unlikely to be exposed to noise sufficient to damage the hearing. Mr Dewing does concede that on a particularly busy day with special projects, it is possible that the noise exposure exceeded the safe levels on those days.

4. Mr Dewing found that the duties claimed by Mr Ludlow as a maintenance worker were well in excess of those he has encountered in similar care homes. He formed the opinion that Mr Ludlow was exaggerating his noise exposure.

I agree that the recreational noise described is unlikely to have contributed to the hearing loss.

Conclusion

Mr Ludlow has progressive hearing loss that has increased from 2.6% , shortly after he joined Uniting SA, to 11.4% currently and for reasons stated this cannot be explained by intermittent noise exposure for 3 years during this employment.

The hearing loss is more likely to be degenerative in type, in excess of that expected from ageing. The exact nature of the degeneration is uncertain and unlikely to be elucidated by further investigation.[14]

1. On 11 April 2025,[15] the lawyers acting for Uniting SA, sought clarification from Dr Hains. They noted that in his report of 18 January 2024, he stated: "Although the pattern of your 11 December 2023 audiogram is consistent with noise induced hearing loss, causes other than noise exposure can produce a similar pattern". They noted that in his report of 10 May 2024, he wrote: "The conclusion must be that there is another cause or causes of the hearing deterioration the nature of which is uncertain". They then asked Dr Hains to express his opinion as to what cause or causes could explain the progression in Mr Ludlow's hearing loss, and to clarify whether he was in fact saying that Mr Ludlow's employment with Uniting SA was or was not a probable cause either in whole or in part of his hearing loss.
2. In a report dated 11 April 2025,[16] Dr Hains listed several possible causes, such as ageing deafness, hereditary hearing loss, as well as specific diseases such as multiple sclerosis.
3. On 29 April 2025, the lawyers acting for Uniting SA, sought further clarification from Dr Hains. They noted that Dr Hains assumed that Mr Ludlow worked "on the tools" or three years, whereas the evidence indicated that it was for seven years. They attached a video of a Go-Kart being revved. They asked whether the revised history altered his opinion and whether exposure to Go-Kart noise could have cause the hearing loss.
4. Dr Hains stated:

Industrial noise deafness progresses very slowly and more slowly later in a working career. It is often described as a decelerating injury. 7.4% in 7 years (the loss in 2021 minus that in 2014) is most atypical for intermittent noise exposure, particularly as in this case Mr Ludlow was exposed to intermittent noise for only 7 years before he became a supervisor and less directly exposed to the noise of power tools.

I have reviewed the video link of a Go-Kart engine revving. Intermittent noise of this nature is unlikely to be a problem since it is the average noise over an 8-hour period that determines the risk to hearing.

I remain of the opinion that Mr Ludlow's hearing loss progression after 2014 is unlikely to be noise induced for the reasons explained.[17]

1. In cross-examination, it was put to Dr Hains that when he wrote his first report, he was already aware of Mr Dewing's report, such that the only new information he had was about Go-Karts and hot rods. In response as to whether this new information caused him to change his mind he said:

No, I think the main reason was I had had the opportunity to revise my previous report, and I think at that point I realised that there was something wrong here, that an increase in the hearing loss of that degree, when there had only been some two per cent after 20 years as a toolmaker, just didn't add up. So this was an opportunity, really, to revise my opinion.

1. I sought clarification about this and Dr Hains agreed that what he was saying was that because as of 2014, Mr Ludlow had a relatively low noise-induced hearing loss despite extensive exposure to noise, it raises the possibility that he has a greater than normal resistance to suffer from noise-induced hearing loss.
2. Dr Hains said that ameliorating effect of correctly worn hearing protection in respect of any noise exposure was to reduce it by a minimum of 15 decibels, and up to 30 decibels.

1. Mr Bosboom, counsel for Mr Ludlow submitted that Dr Hains conceded that Mr Ludlow has suffered noise-induced hearing loss and that there did not appear to be any dispute that there was noise at the workplaces that Mr Ludlow worked at for Uniting SA. She submitted that it followed that the section 9(2) presumption applies, and the real issue is whether the presumption has been rebutted.
2. Mr Bosboom accepted that the significant progression in Mr Ludlow's hearing loss over the period of his employment at Uniting SA was unusual. She acknowledged that Dr Raj accepted that it was atypical for noise-induced hearing loss, but noted that ultimately this did not cause him to alter his opinion. She suggested that the likely explanation was that from 2014 onwards, the progression in Mr Ludlow's hearing loss was caused by a combination of noise and other unknown causes. She submitted that such a finding would not displace the presumption created by s 9(2) of the Act.
3. As for Dr Hains, she submitted that his emphasis upon the progression in Mr Ludlow's hearing loss was something that arose over the course of him providing numerous reports, and that I might be troubled by this, and query whether he was a genuinely impartial witness. She noted that in all he provided six reports and two clarifying emails in this matter, in response to requests by the Corporation and Uniting SA asking him, effectively, to reconsider things he had already considered.
4. She also noted that Dr Hains relied heavily on Mr Dewing's noise surveys in circumstances where Mr Dewing could not replicate Mr Ludlow's exact working conditions and was basing his opinion on his estimation of what noise Mr Ludlow was exposed to when working for Uniting SA. She also submitted that Mr Dewing relied upon hearsay evidence provided by Uniting SA and that this undermined the cogency of his opinion, and in particular his assertion that Mr Ludlow had exaggerated the noise that he was exposed to at work. She submitted that it was significant that Mr Ludlow's evidence was not contradicted by anyone who worked with him when he was working as a maintenance officer.
5. Ms Bosboom submitted that I should find Mr Ludlow to be a witness of truth, who did not exaggerate and who made appropriate concessions. She submitted that based upon his evidence, I ought to find that he was regularly exposed to noise at work that with things like hammer drill as between 100 and 105 decibels for between half an hour to an hour, once a week. She asked me to note his evidence was that he would only use hearing protection in the form of earmuffs or earplugs when he was using noisy tools for a long period of time such as for more than half an hour or so. She pointed to Dr Hains' evidence where he agreed that the extent to which exposure to noise can damage hearing is variable from person to person. She also pointed to Mr Dewing's evidence where he said that the attenuation that is provided by earmuffs is extremely variable and depends on whether the earmuffs are properly worn at all relevant times.
6. Ms Bosboom submitted that I ought not place too much weight on the fact that Mr Ludlow worked a nursing home, and that some of his work was done in the units of the aged care residents. She submitted that what was important was that his evidence established a lot of his work was done in the workshop, which she submitted was a noisy environment.
7. Ms Bosboom submitted that no other cause of Mr Ludlow's hearing loss had been established, and that in all the circumstances, the presumption created by s 9(2) of the Act had not been rebutted.
8. Mr Birchall, counsel for the Corporation, submitted that Mr Ludlow does not have the benefit of the presumption created by s 9(2) of the Act, because he has not established that he has noise induced hearing loss.
9. He submitted that to make that finding, I need to be satisfied from the work history of the fact of noise exposure consistent with the alleged hearing loss, and secondly, that there is an audiogram pattern consistent with the diagnosis.
10. Mr Birchall submitted that I ought to find that at its highest, Mr Ludlow's evidence established no more than on occasions, over seven years as a maintenance officer at Uniting SA, he was exposed to intermittent loud noise, which is insufficient to be the cause of his hearing loss. He submitted that the overall effect of the evidence is that most of Mr Ludlow's duties as a maintenance officer were not noisy. He noted that Mr Ludlow agreed with the proposition that the facilities where he worked were quiet places. He submitted that whilst the evidence establishes that from time-to-time Mr Ludlow did use tools that exposed him to high levels of noise, this was only occasional and moreover, he was a man who clearly had a conscientious approach to using earmuffs.
11. As for the audiograms, he submitted that what is striking about them is the progression of the Mr Ludlow's hearing loss from an average of 2.6% based on the pre-employment audiograms, to 11.4% after his employment with Uniting SA had ended, in the context of significant noise exposure prior to him commencing work at Uniting SA.
12. He submitted that a hearing loss of that magnitude over loss over seven years in the context of only intermittent noise exposure, and the fact that noise-induced hearing loss progresses very slowly, and more slowly later in a noisy career, is most atypical and leads to the conclusion that the cause or causes of Mr Ludlow's hearing loss is uncertain.
13. As for the apparently contrary view expressed by Dr Raj, he submitted that Dr Raj based his opinion on the assumption that Mr Ludlow's work environment was much louder and noisier than was actually the case. He submitted that Dr Raj appeared to have ignored Mr Dewing's assessment, whereas Dr Hains accepted it.
14. He submitted that based on the Court's observations of Westminster, all of the evidence, including the cross-examination of Mr Ludlow, and Dr Dewing's evidence, which he added was impressive, the Court should find that Dr Hains was right to act upon Mr Dewing's assessment.
15. Mr Doyle, counsel for Uniting SA, adopted Mr Birchall's submissions. He added that it was significant that Dr Raj acknowledged that his opinion that the employment at Uniting SA had contributed materially to a degree of hearing loss by way of noise was based his assumption that Mr Ludlow had had a continuous exposure to noise, not intermittent exposure. He submitted that this was not borne out by the evidence.
16. Mr Doyle then stressed that Mr Ludlow accepted that when he was undertaking noisy work for any significant period, with few exceptions, he wore hearing protection. He also asked me to note that the evidence indicates that Mr Ludlow was very diligent in relation to safety matters and Dr Hains' evidence that the minimum mitigating effects of wearing hearing protection would be something of the order of 15 decibels.
17. Mr Doyle submitted that this meant that even if there might have been occasions when Mr Ludlow was exposed to noise at the level of 100 decibels, they would have been rare and almost always effectively reduced to 85 decibels on account of his use of hearing protection.
18. Mr Doyle submitted that even if Mr Ludlow had the benefit of the presumption created by s 9(2) of the Act, the Corporation and Uniting SA had discharged the onus of demonstrating that the exposure to noise in the course of his employment with the Uniting SA did not contribute to any material degree to his hearing loss.

1. I commence by noting that whether Mr Ludlow worked at Wesley House as he claims, and whether had had a conversation with Mr Spurling about not installing a radio into his hot rod, have no bearing on the outcome of this case, such that I have no need to deal with the evidence of Mr Hawke or Mr Spurling.
2. The crux of this case is whether it has been established that Mr Ludlow has noise induced hearing loss. He bears the onus of proving this. If he meets that onus, provided that he can prove that he was exposed to noise when working for Uniting SA, he will have the benefit of the presumption created by s 9(2). He does not have to prove that the noise from the workplace caused the noise induced hearing loss. That proposition was expressly rejected by the Full Court in WorkCover Corporation v Perre.[18]
3. Based on the Dewing's reports, I am comfortably satisfied that when he was employed in work at Uniting SA, Mr Ludlow was exposed to noise.
4. Ms Bosboom is correct to contend that Dr Hains did express the opinion that Mr Ludlow had noise-induced hearing loss. But that was not an opinion that he maintained.
5. In respect of this change in position, I take on board her criticisms of Dr Hains. I am very much aware of the possibility that an expert witness can, even at an unconscious level, be influenced by those who have engaged the expert. As Dr Freckleton observed in his book: "The Trial of the Expert":

Experts do not come to the courtroom as disinterested observers. They are generally sought out by one side or other side in legal proceedings, requested to make a report to legal representatives, paid for that and, if the report coincides with the arguments which the lawyers wish to put forward in the case, asked to testify. Experts are no more altruistic than lawyers. They expect remuneration and they receive it. Of necessity, this affects the relationship between the expert and the side for which he or she appears. There are all manner of pressures, albeit often subtle ones, that propel the expert in the direction of making findings which are acceptable to the side for which he or she initially prepares the report and then is asked to appear. Some of the pressures are financial but just as important are those which may be summed up as 'cause identification': [19]

1. In this case, it also must also be said that the extent of the communication between the Corporation, Uniting SA's lawyers and Dr Hains is surprising. The extent of that communication not only appears to be disproportionate to the importance and complexity of the dispute, which after all, is primarily about the cost of a set of hearing aids, it raises for consideration whether Dr Hains was truly able to maintain independence from the parties instructing him.
2. Meaning no disrespect to Dr Hains, with these matters in mind, I approach his evidence with some caution. That said, the observations of Dr Freckleton apply with equal force to the evidence of Dr Raj, and indeed to almost every expert witness who gives evidence in proceedings before this Court.
3. What does emerge from the expert evidence in this case are the following:
   • Many people who have hearing loss do not have noise induce hearing loss, so the mere fact that Mr Ludlow has hearing loss, does not establish that it is noise induced.
   • The pattern of Mr Ludlow's hearing loss as of 2021 in terms of the losses within the various ranges, is consistent with it being noise induced, but that pattern does no prove that it was noise induced.
   • The increase in Mr Ludlow's hearing loss between 2014 and 2021 is not typical of the progression that would be expected of noise induce hearing loss.
   • Leaving to one side whether this is noise induced hearing loss, neither expert has identified with any degree of certainty any other cause of Mr Ludlow's hearing loss.
   • If Mr Ludlow does have noise induced hearing loss, it is unlikely that any of the recreational activities that he has participated in have caused it.
4. I now turn to consider Mr Ludlow's evidence.
5. Mr Ludlow was not seriously challenged in cross examination and came across as a straightforward witness. No lay evidence was called to contradict what he said about his work at Uniting SA. Ms Bosboom is correct in observing that Mr Dewing's evidence that queried the accuracy of Mr Ludlow's statement about the level of noise he was exposed to at Uniting SA was based on untested assumptions.
6. I therefore find that Mr Ludlow was generally a credible witness. I say 'generally' because a person's estimate of noise and their evidence as to what constitutes 'noisy' work can be very subjective. Moreover, whether noise is capable of causing noise induced hearing loss, is not a matter that a lay person, uninstructed in the relevant science, can attest to.
7. Thus, in determining the levels of noise that Mr Ludlow was exposed to, I place much more weight on the test results of Mr Dewing, than Mr Ludlow's evidence.
8. I accept Mr Ludlow's evidence that he found the plant rooms at Westminster and the plant area on the roof, noisy. But he was not there for extended periods, and the evidence does not enable me to make a finding as to the level of noise that this exposed him to.
9. I find that for most of the average working day when working for Uniting SA as a maintenance worker, Mr Ludlow was exposed to noise that was much less than 85 decibels.
10. I find that from time to time, but for usually no more than a half an hour, and not every day, when undertaking work for Uniting SA as a maintenance worker, Mr Ludlow was using tools that generated noise at levels between 90 to 100 decibels.
11. I find that on some odd occasions Mr Ludlow was using tools that generated noise at levels as high as 105 decibels.
12. Mr Ludlow struck me as a conscientious man who might be expected to show close attention to detail, and who takes occupational safety very seriously. As such, I was left with the very firm impression that if he was to conduct work for any extended period with noisy tools such as hammer drills, cordless drills, blowers, circular saws, angle grinders, bench grinders and petrol pressure washers, he would have used ear protection and he would have worn it properly. I accept the evidence that establishes that the correct use of hearing protection results in a reduction of 15 decibels.
13. Having regard to this, I find that when Mr Ludlow was using tools that generated noise at levels of 90 decibels or greater, if he was to use those tools for more than a few minutes at a time, he invariably used ear protection that he used properly.
14. These findings are at odds with the factual assumptions underpinning Dr Raj's opinion and therefore seriously undermines it.
15. Mr Ludlow has the burden of proving that his hearing loss is noise induced. As Heydon JA observed in Williams v The Minister, Aboriginal Land Rights Act 1983 and the State of New South Wales:

...[the] discharge of the burden of proof depends on experience by the trial judge of an actual persuasion of the existence of the matter to be proved. There must be an appropriate degree of confidence in its existence."[20] (Emphasis added mine)

1. Having considered and re-considered the evidence, I am left none the wiser as to what is the cause of Mr Ludlow's hearing loss. It might be noise induced, but I am certainly not satisfied that it is more likely than not that that is so.
2. I do not make this observation because Mr Ludlow worked in an Aged Care facility, with the imputation being that it was therefore a quiet place.
3. I make it, because, for the most part, when Mr Ludlow was working either inside the facilities at Westminster and Seaford, outside of them, or in his workshops, he was not exposed to noise that was anywhere near 85 decibels; when he was using tools that generated noise at that level or higher, it was generally only for short duration, and if for longer duration, he frequently used ear protection; and the increase in his hearing loss between 2014 and 2021, is not typical of the progression that would be expected of noise induce hearing loss.
4. In Rehsa Shipping Co SA v Edmunds,[21] Lord Brandon of Oakbrook said:

...the judge is not bound always to make a finding one way or the other with regard to the facts averred by the parties. He has open to him the third alternative of saying that the party on whom the burden of proof lies in relation to any averment made by him has failed to discharge that burden. No judge likes to decide cases on burden of proof if he can legitimately avoid having to do so. There are cases, however, in which, owing to the unsatisfactory state of the evidence or otherwise, deciding on the burden of proof is the only just course for him to take.[22] (Emphasis added mine)

1. Because he has not met his burden of proof, Mr Ludlow does not have the benefit of the presumption created by s 9(2) of the Act. Without the benefit of that presumption, he has not established that his hearing loss arose from his employment with Uniting SA. Accordingly, the Corporation's rejection of his claim for compensation must be upheld.

1 The application for review is dismissed.

2 I grant the parties liberty to apply as to costs.

[18] (1999) 76 SASR 95 at 100.

[19] Freckelton; The Trial of the Expert, Oxford University Press (1987) at 124.

[20] [2000] NSWCA 255 at [61] per Heydon JA.

[21] [1985] 1 WLR 948; [1985] 2 All ER 712.