Environment Day and sad judgments

When was the last time you did a spot of gardening in a suit? The Prime Minister, Lawrence Gonzi, was busy at it together with Environment Minister George Pullicino and Tonio Fenech, Parliamentary Secretary in the Finance Ministry, in preparation for Environment Day tomorrow.

The photo of the trio carried in The Times on Thursday shows Mr Fenech with his right hand behind his back and his left hand gingerly holding a teensy sapling, while the PM shifts some soil (which looks more like dust), without getting a speck of it on his shiny black shoes and sparkling white cuffs. Mr Pullicino was checking on the job.

It really amuses me to see politicians at a PR exercise, when it is blatantly obvious that it is just a photo opportunity. I could just imagine George Pullicino racking his brain on how to be seen, while promoting the PM at the same time.

"What shall we do? Something in the open air, which will not take too much time, yet shows we care about the environment. Hmm! How about planting a tree?"

Now I think planting trees is a good idea. But I think preserving established ones is much more important. The latter, however, does not provide a photo op.

When more and more of our meagre countryside is being sacrificed to development, MEPA is "not prepared to take action against the big developers" (this according to Joe Falzon, MEPA's audit officer); and when we hear that local authorities do not have the funds to bring in people with the expertise to object effectively to development applications, planting a teensy-weensy sapling does not cut any ice.

We have huge environmental problems, and the big developers are not the only culprits. Watch Bla Kumment, an HSBC Environment Fund one-minute production, on PBS tomorrow after the news to see the amount of construction and other waste dumped at the White Rocks.

Catch-22

Health and safety is a topic I frequently comment on. It still amazes me that despite all the awareness raising and frequent, similar accidents at the workplace, and on building sites involving third parties, the people in a position to bring about change still do not take health and safety issues seriously enough.

Even the media only take an interest in the immediate aftermath of an accident and the interest is only sparked by sensation. When the media are invited to seminars, conferences and other talking shops on the subject, few attend. This is partly because our size limits specialisation, but even so, few journalists follow up health and safety issues.

Every time I write about the subject I get a barrage of mail from people who have either been victims of accidents at work, or have lost family members through construction accidents, or experts in the field abroad. They also keep me informed on ongoing related issues, and partly because it is one of my 'soapbox' topics, I do try to follow them up.

It is with a heavy heart that I have to report that a fine judgment awarding damages to a man who suffered a hearing disability because of excessive noise at his place of work has been overruled on appeal.

In October 2003, I commented on an interesting judgment related to an ex-Drydocks foreman who sued his employer for damages because of his loss of hearing due to excessive noise at work.

What had made the case particularly newsworthy was that it was the first time compensation for hearing impairment, caused by an excessively noisy work environment, had been awarded.

Passing sentence, Judge David Scicluna had awarded Paul Cilia Lm6,672, because of the lack of effective and quick action on the part of Malta Drydocks, which did not even provide the most basic gear such as earmuffs to protect its employees from noise.

An Appeal Court decision last Friday week, however, overturned the judgment because they accept the appellant's (Drydocks') claim of prescription. I shall go into its reasons for that decision after I fill you in on the case.

Mr Cilia joined the Drydocks in 1967 and worked in a " boiler shop" where the noise was excessively loud. At that time, protective wear, like earmuffs, was just not provided.

By 1972 he had started to notice that his hearing was being affected and he went to see a specialist. He also started researching what Health and Safety at Work (HASAW) measures were being taken abroad.

In fact it was due to Mr Cilia's efforts that earmuffs were eventually introduced at the Drydocks.

By 1978 Mr Cilia had obtained medical certificates and had to be operated on in 1979 because of unbearable pain.

But it was only in 1980 that doctors told him that "he was very sensitive to noise" and he immediately asked to be moved from that noisy environment.

A professor had that year certified that people like Mr Cilia were " very sensitive to loud noise and are very prone to acoustic trauma which would increase neuro-sensory loss and further impairment of hearing" .

He recommended that Mr Cilia should not work in a noisy environment like that of a dockyard workshop.

However, Mr Cilia was only given alternative work two years later and in that time the Docks gave him no remedy to improve his situation. Further tests in 1981 showed that his situation had worsened.

According to a certificate in October 1990 by specialist Mr A. Griscti Soler, it was determined that the noisy environment in which the plaintiff worked "has no doubt contributed to his sensori-neural hearing loss" and a subsequent certificate in 1991 by the same specialist determined that his "noise-induced hearing loss due to cochlear otosclerosis is about 10 per cent" .

Now the lawyers acting for the Drydocks had claimed the case was prescribed in 2003, because although the damage was certified in 1980 and 1981, action was not taken until 1991.

However, Judge Scicluna had ruled that this action could only be instigated after October 1990, since the previous medical certificates had not been as specific in the grade of disability and that his work environment had contributed to his hearing loss. They had only suggested he change his place of work. Therefore this action could only be instigated after October 1990.

But the appeal court found this judgment incorrect and based its reasoning on a Catch-22 situation. It claims that damages should have been claimed in 1982 when he was moved out of the noisy work environment.

But all the doctors told him in 1980 was that "he was very sensitive to noise". And it took the Drydocks two years after that to move him away from the noise.

I wonder how a court would have reacted to a claim for damages with a certificate saying the claimant was "sensitive to noise"?

The Appeal Court did not seem to consider that it was the doctors' lack of awareness on work-related noise injuries and their unspecific diagnosis, which prevented Mr Cilia from making his claim earlier than 1990. Had the doctors who initially saw Mr Cilia been more aware of Health and Safety at Work, they could have been more specific in what was causing the problem.

According to the UK Government Health Executive the link between exposure to noise and hearing damage is well known and it is internationally accepted that regular exposure to loud noise can lead to permanent hearing loss and/or tinnitus.

"There is generally a long latency before the effects of damage due to noise exposure may be noticed". For example, continuous occupational exposure to noise at 90 dB(A) would result in about five per cent of the population sustaining a 30 dB hearing loss (considered moderate disability) within 10 years, but this rises to approximately 50 per cent over a working lifetime of exposure, though some of this hearing loss would be the result of the normal ageing process.

The Association of British Insurers figures show that deafness accounts for approximately 80 per cent of occupational disease claims up to 1997, though cases have fallen since then, probably because of the decline in heavy industry.

phansen@timesofmalta.com