Holberton v Tasmea Limited (SAET 2025)

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Background

In the past five years there has been unprecedented growth in the audiology industry nationally. As a result, you may have noticed hearing services providers popping up in your local shopping strip, or advertising on television and radio. Even Specsavers have broadened their services to audiology tests and the sale of hearing devices.

This growth has been underpinned by an ageing population and beneficial state-based compensation laws, which allow individuals to not only make claims against current employers, but also past employers. As a result, insurers have seen a spike in compensation claims for industrial hearing loss.

One of the main difficulties in defending hearing loss claims is that they are not subject to the same time limits as other types of compensation claims. This means claims can be made years after the claimant experienced the work noise. As a result, employers and insurers often cannot properly investigate the claim, as the workplace may have changed significantly (or may no longer even exist), relevant staff may have moved on, and relevant records may not be able to be located. Further, many claimants make their claims at an advanced age, often after retirement, at which time their hearing may have degenerated due to the natural ageing process, constitutional factors, or even non-work activities which are difficult to separate from work-related factors.  

The other major obstacle faced in seeking to defend these claims is that the law does not require the relevant employer to be the main cause of the hearing loss. This is because in most Australian states, if you have suffered hearing loss at work, liability for compensation generally lies with the last employer where there was noise capable of causing hearing loss (the last ‘noisy’ employer). This is true even if the relevant exposure was brief, or if previous employers were perceived to be louder. However the recent case of Holberton v Tasmea Limited in the South Australian Employment Tribunal provides some hope for employers in defending this presumption.

Facts

In Holberton, the parties agreed the worker had suffered hearing loss due to work, but disagreed as to which employer was liable for the injury. The claimant, Mr. Holberton, was employed by Ottoway Engineering (Ottoway), a subsidiary of Tasmea. He worked there from 2012 to 2016, mainly in an office, but also worked regularly in the workshop. He then worked for Ecospec PL from January 2017 to January 2018, and was then self-employed at Tube Solutions, performing similar work as Ecospec.

Holberton brought a hearing loss claim against Tasmea, as the last noisy employer. He provided an affidavit which included evidence of noise exposure at Ottoway, as well as other prior employers. He also alleged there was no such exposure at Ecospec or Tube Solutions. Medico-legal experts were called for both sides, and a witness from Ottoway was called to give evidence about the level of noise there.

Judgment

The claimant needed to prove that he had suffered noise induced hearing loss, and that employment at Ottoway involved exposure to noise. The burden of proof then shifted to the employer to refute the assertion that the hearing loss arose from employment at Ottoway.

The worker proved he was suffering hearing loss, and that his duties at Ecospec and Tube Solutions were not capable of causing such loss. However, Tasmea successfully proved that any noise exposure at Ottoway was insufficient to cause hearing loss. Specifically, they were able to demonstrate that being exposed to 90 decibels of noise for 1 - 2 hours a day, while wearing hearing protection, and then working in a quiet environment for the rest of the day, was unlikely to cause hearing loss. The employer relied on a combination of factual evidence (including that of their witness) and the opinion of their medico-legal expert, to support their defence. Accordingly, the rejection of the worker’s hearing loss claim was maintained.

Key Takeaways

The ‘last noisy employer’ rule can be defeated by detailed circumstantial evidence (including witness evidence as to the relevant conditions at the time), and supported by medico-legal evidence, showing that the claimed employment could not have caused noise-induced hearing loss.