Richard Dababneh providing Q & A on the 2GB Chris Smith Afternoon Show discussing workplace injury/hearing loss issues– 31 July 2018
Tuesday, 31 July 2018
CS –Chris Smith /RD – Richard Dababneh /C1,2,3, etc – Callers
CS Well as you know, I love my motorcycles, but I have to say that I still hate overly noisy bikes. Usually those, you know custom made terrible exhausted Harley Davidsons. Interestingly, a former Harley Davidson employee in the United States has successfully sued Harley Davidson for causing his hearing loss. A former Harley Davidson employee and it got me thinking about much responsibility lies with the employer and how much the employee, obviously Harley Davidson must have proper measures in place to prevent this sort of workplace injury. But the employee also must have known there was a risk, he could damage his hearing by working at a place like Harley Davidson. Well, that’s what we will talk about today in our Legal Matters segment and thanks to Turner Freeman Lawyers and the segment, we’ve got a $100 Westfield voucher to give away to a caller this afternoon. A $100 Westfield voucher as usual and Turner Freeman Lawyers provide a range of specialised legal services including compensation and negligence law, asbestos litigation, superannuation and disability claims, family and employment law, Wills and Estate and property law. Their NSW offices are in Sydney, Parramatta, Campbelltown, Penrith, Newcastle and Wollongong and their Queensland offices are in Brisbane, Logan, North Lakes, Ipswich, Toowoomba, Gold Coast, Sunshine Coast and Cairns. Now Richard Dababneh is an accredited specialist in personal injury law. That’s where we are heading today. Personal injury law. If you’ve got a question for Richard who is a Partner at Turner Freeman’s Parramatta office. Dial in right away. First in, best dressed. 131 873 that talk back number. 131 873. Richard. Thank you very much for your time this afternoon.
RD Oh good to be back on the show Chris.
CS Yes – outline for us the ruling in the case from the United States that I highlighted. Why was the former employee successful?
RD Well, the interesting thing about this case was that there was a dispute in relation to the assessment of the extent of the hearing loss.
CS How bad his hearing got?
RD Yeah. So it wasn’t a situation whether they conceded that they were a noisy employer, it was whether they were responsible for the totality of the loss that he had suffered and they were saying that essentially it was a medical question.
CS So the employer in this case accepted the premise from the plaintiff that they had caused the hearing loss or some of it?
RD Certainly….. Yeah – and most manufacturing employers would struggle to argue that they are not a noisy employer. In NSW we’ve got laws that protect workers from these types of things and that what a worker needs to show in NSW is that the employment had the tendencies, incidents and characteristics to potentially cause a hearing loss. So, you don’t have to show that all of your hearing loss was caused by your employer but that the employment had those tendencies and if you can show that, then you become entitled to compensation and in this man’s case, hearing aids.
CS So do you think the way this case was run in the United States would be the same if a similar case had been put to our Courts here in Australia?
RD Yes. Exactly the same way. It comes down to the medical evidence in NSW. That evidence is from ear, nose and throat specialists who have that particular expertise in assessing the cause of a particular hearing loss and in most cases they can determine what percentage of that hearing loss has been caused by employment or loud noise in employment and what has been caused by other factors, genetic factors for example.
CS But how much responsibility do workers, do employees hold in terms of workplace injuries?
RD Well. None whatsoever really Chris. It’s a no …… it’s one of those jurisdictions where you don’t need to prove that the employer was necessarily negligent to be able to become entitled to compensation. So, whilst in most cases employees may have some responsibility in that they might, maybe not wear hearing protection all the time. The reality is if they can show they were caused…. that they have an injury that was caused by employment, they are covered.
CS I’d be interested to hear from listeners on this point, especially those that have either taken action against their former employer because of the degradation of their hearing, or whether people have actually left a job and known that what they were doing was causing a problem to their hearing, but basically did nothing about it. There’d be a lot of people in that boat, but because they would deem – oh how could anyone prove that my hearing is bad, either because of my age or what went on at work or what was going on in my social life. And there’d be a lot of people who wouldn’t go through in taking action for that sort of personal injury wouldn’t there?
RD Well, you know – the other problem is that a lot of people don’t know that they have actually got a hearing loss, it’s other people that need to tell them that you know they are repeating things or they’re turning up the volume too loud. Mainly family members. So, if someone’s ever complained about the TV being too loud or having to repeat themselves, then it’s probably an indication there is a problem and the first step would be to get a hearing test. The other thing…… just to go back to what you were saying about the responsibility, well unfortunately despite best measures, safety and OH&S, the use of hearing protection, ear muffs/ear plugs doesn’t necessarily prevent someone becoming injured in this way.
CS Ah ha…… So the employer might take out precautions for their employees but it might not necessarily stop the injury.
RD Yes – exactly right. And the other thing is, most people might be wearing that protection whilst they are using a particular machine but if they stop using that machine and go to the lunchroom or move away to a different area, you know that walk from that machine to where they are going, they will still be exposed to the environmental noise in the workplace and they would be enough to cause hearing loss.
CS And what about a time limit. Is there a time limit between when the injury may have happened and once again, let’s stick with the hearing template here and when the employee decides to sue the employer?
RD Thankfully not really. Most people don’t know they’ve got a hearing loss until they get tested and they are told by a doctor that this hearing loss ……….. that they do have a hearing loss and the hearing loss is caused by their employment.
CS And that could be 15 to 20 years later?
RD It could be. You know …. we’ve done cases for people who stopped working 25 – 30 years ago, but they were not aware they …….. well they knew they had a hearing loss but they weren’t aware that it was caused by their employment.
CS And then in the nature of that hearing loss can be measured by the experts which could draw the connection between the hearing loss and the workplace.
RD Exactly right. So the hearing……. loud noise exposure in employment or generally affects certain frequencies of hearing…. so doctors are able to in most cases precisely tell how much of the hearing loss was caused by exposure to loud noise and if you look at the history … you know someone is working for 30 or 40 years in a loud environment and there is no other causes or no other exposure to loud noise in their day to day life, then it’s easy to pinpoint it to employment.
CS Okay. Personal injury is our topic this afternoon and I’d love to know whether you have been through this process and have had to take your workplace on or your former workplace on and in particular whether it’s been about your hearing. 131 873 is the telephone number and as I’ve mentioned, I have a $100 Westfield voucher to give to a listener this afternoon. 131 873. What about other injuries? Just away from hearing here. Are there any time limits on injuries caused from the workplace at all?
RD There are. There are.
CS There are……
RD The law says that you are required to give notice of your injury to your employer as soon as possible. Now that doesn’t actually define a period but then there is a 6 month period within which to make a claim, so ……..
CS 6 months?
RD Yes…. you can’t sit on it… and then there’s another limitation at 3 years…. so in order to you know – commence proceedings in Court, you are required to do so within 3 years.
CS So you’ve got to be right on top of it.
RD You do. Especially in a work injury.
CS Especially in a work injury. And what sort of compensation exists for someone who has very very bad hearing because of work?
RD Hearing aids is the number 1 – well it’s the only treatment really – you can get.
CS But I mean financial compensation.
RD And then there’s financial compensation. If your hearing loss over a certain percentage then you also become entitled to monetary compensation.
CS Okay. Vanessa is on the line. Hi Vanessa. Go right ahead.
Caller 1 – Vanessa
Vanessa Hey guys. I basically got my arm stuck in a lift – like the doors shut on it and didn’t open again. And the lawyers have basically come back and said well it’s my own fault.
CS You’re own fault?
RD That’s an interesting thing to put back to someone that has been injured in that situation. sounds like a defect in the lift.
CS Because normally the sensors would open the lift doors when you put your hand in between.
RD I think the lift owner or the maintenance people that worked on that lift probably have something to answer to.
CS What sort of injuries did you succumb to?
Vanessa Oh – I’ve actually now got CRPS. Both my nerves in my arms got crushed. So now I have got CRPS – so it is a permanent injury.
CS Have you had a second opinion, a second legal opinion?
Vanessa Um yeah. I actually have like legally went through the bits and pieces and did a thousand tests and a thousand medical examinations and yeah.
CS But were the second lawyers telling you that it could be deemed to be your fault?
Vanessa Well we were going against you know one of the insurance companies and yeah…. I had to walk away because no-one would touch it because I put my arm in the lift doors and they said it was my duty of care that I should have thought that the doors would have closed on my arms.
RD So that there’s something that is called contributory negligence which might apply in a situation like that but that wouldn’t be a total defence and there would still be – sounds like there would still be an argument in that and as I said the owner of that lift or the maintenance people would have something to answer.
CS Vanessa. Do you want a third opinion?
Vanessa I’d love a third opinion.
CS Okay Turner Freeman and the third opinion is coming your way. Stay on the line Vanessa. and we will give you Richard’s direct number. But the number for Turner Freeman by the way is 1300 237 112. 1300 237 112 and we’ll also give Vanessa the $100 Westfield voucher. $100 Westfield voucher to Vanessa. Brad. Very quickly.
Caller 2 – Brad
Brad Um. I’ve got a hearing loss here…… I was a school teacher – a metal work teacher from 1974 to 1985 and I’ve got out of that – I’ve been in small business – I’ve done nothing as far as loud noises or anything like that but my hearing loss is – I’m forever having to ask and I’ve had a hearing test and I have got hearing loss…..
CS And you think it’s linked to your job back then? Brad, you might be in a similar mode here – how about we get you Richard’s number off air and you can call him direct. Brad, stay on the line and I’ll put you through there. Richard Dababneh. I’ve run out of time. But very interesting case in the United States and good to speak about it this afternoon. Thank you.
RD Nice chatting.
CS Richard Dababneh from Turner Freeman.