Industrial deafness claims - key evidence lessons

In hearing loss claims, it must be established the ‘tendencies, incidents or characteristics’ of the employment were such that the nature of the work could give rise to the hearing loss injury (Blayney Shire Council v Lobley (1995) 12 NSWCCR 52). The worker does not have to prove his employment actually brought about or caused or contributed to the injury. All that needs to be established is that the employment in question was sufficient to create a real risk of hearing loss (Callaby v State Transit Authority (NSW) [2000] 21 NSWCCR 216).

It’s not uncommon to see conflicting evidence about the noise levels in workplaces which makes it difficult to determine the last noisy employer and if the employment was sufficient to create a real risk of hearing loss.

The Member’s decision in Han v Roblan Pty Ltd & Anor [2026] NSWPIC 460, clarifies which evidence is useful or can be considered unreliable in determining the last noisy employer.

Background

The worker was employed by Roblan Pty Ltd (Roblan), the first respondent, between 4 August 2004 and 2 December 2006 and again between 5 November 2007 and 11 February 2008.

The worker was also employed by Persol Australia Holdings Pty Ltd (Technicolour), the second respondent, on various dates between 2008 and 2010.

Both respondents denied liability on the basis they were not the last noisy employer and did not contribute to hearing loss as required by section 17(1)(a) of the Workers Compensation Act 1987.

The worker asserted that, whilst casually employed by Roblan, he worked on a full-time basis at approximately 40 hours per week. He worked on the factory floor operating and monitoring a plastic moulding machine that produced constant mechanical noise while in operation and was surrounded by numerous other plastic moulding machines operating at the same time. He said the noise exposure was ‘regular, repetitive and formed part of my ordinary day-to-day duties throughout my employment.’

At Technicolour, the worker was employed as a casual employee, with shifts varying between approximately 4 and 8 hours in duration. The worker’s duties involved factory work and pick packing within the production area of a factory. The worker recalled conveyor systems, packing machinery and other automated production equipment operating throughout the facility generating continuous factory noise.

Dr Raj assessed the worker at the request of his solicitors and provided three reports.

Initially, the worker recalled his last job was at Roblan, and so the date of injury was identified as 2008. Dr Raj provided a supplementary report with an updated history, correcting the worker’s account of employment history. Dr Raj wrote in relation to Technicolour, ‘he cannot remember much about his job. There were machines, but Mr Han did not consider this job noisy’.

In a further supplementary report, Dr Raj was asked to address the issue of the last noisy employer, in which he had then determined Technicolour was the last noisy employer, referring to the worker’s statement.

Member’s decision

According to section 17(a)(i) of the 1987 Act, the deemed date of injury is the worker’s last date of noisy employment.

As Technicolour was the worker’s last employer in time, the Member first considered whether the worker had discharged the onus in respect of that employment.

The worker had conceded his memory was ‘no longer as good as it used to be’, and this was crucial in the Member’s decision. It was ultimately found he had not discharged his onus as the plaintiff to prove his case, as his evidence addressed the volume of noise only by describing the workplace as noisy because machinery was present. The Member said the evidence addressing the extent of noise exposure was insufficient and unreliable, given the worker could not specifically recall when he worked at Technicolour, and there was no evidence to establish otherwise.

Similarly, in relation to Roblan, the Member found that other than asserting he was exposed to constant mechanical noise throughout most of his shifts the worker had not otherwise described the volume or intensity of that noise. He had not suggested he was unable to converse when he was in the vicinity of the machines, or described a need to wear ear plugs.

Roblan provided statement evidence addressing the noise levels in the workplace and said staff were not required to raise their voices and even when standing by the machines they could speak normally. They said the plastic moulding machines created very little noise and earplugs were not required. The Member found this was the only real evidence about the volume of any noise.

The Member found that the worker did not establish that the nature and extent of the noise exposure was sufficient to demonstrate the tendencies, incidents or characteristics of the worker’s employment with Roblan were such as to give rise to a real risk of boilermaker’s deafness.

Takeaways

This case highlights the importance of obtaining statement evidence which specifically addresses the legislative and common law tests to establish an injury. In industrial deafness claims, evidence about the nature, volume and duration of noise exposure is crucial. In particular:

• evidence should describe the nature, intensity, frequency and duration of noise exposure

• general statements that a workplace was “noisy” may not be enough

• contemporaneous workplace evidence can be important when a worker’s recollection is limited

• medical opinion may be weakened if it relies on uncertain or inconsistent lay evidence.

The decision reinforces that the outcome may turn less on whether machinery was present, and more on whether the evidence establishes a real risk of hearing loss.”

For employers and insurers, the case is a reminder to gather precise evidence about workplace noise conditions early, particularly where employment history is complex or disputed.

Authors: Kate Ralph & Sol Adamcewicz

This publication is intended as a source of information only. No reader should act on any matter without first obtaining professional advice.