GILMORE v COSTAIN AUSTRALIA LTD [1988] NSWCA 49

GILMORE v COSTAIN AUSTRALIA LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, MCHUGH and CLARKE JJA 1 December 1988, 23 December 1988

[1988] NSWCA 49

HELD: (1) Allowing the appeal — the ground of negligence had been wrongly taken from the jury;

The plaintiff, who was employed at the relevant times by the defendant at the Ravensworth No 2 open cut coal mine, sued his employer claiming that his hearing had markedly deteriorated as a consequence of being exposed to excessive noise during the course of his employment. He claimed that the defendant was negligent. The trial judge disallowed evidence from an expert as to the adequacy of instructions contained on an ear plug container and as to the likely effectiveness of the application of the plug if it had been inserted into the ear as the plaintiff demonstrated in court. The trial judge also ruled that the plaintiff was not entitled to have a particular of negligence, in which he contended that the defendant negligently failed to set up a system of regular monitoring audiometric testing, left to the jury. His Honour did this because there was not, in his view, any evidence of a causal connection between the absence of monitoring tests and the deterioration in the plaintiff's hearing.

(2) That the questions which had been rejected were admissible. Mahoney JA I agree with the judgment of Clarke JA.

McHugh JA I agree that there must be a new trial in this matter for the reasons given by Clarke JA. I do so with regret because the trial was a lengthy one and the jury was given every assistance by the comprehensive and incisive summing up of the learned trial judge. However, like Clarke JA I am of the opinion that the learned trial judge did miscarry and that there must be a new trial.

Clarke JA The appellant sued the respondent alleging that he suffered from a significant deterioration of his hearing while working for the respondent whose negligence was, he said, responsible for his hearing loss. At the end of a hearing which lasted seven days the jury returned a verdict for the defendant. The appellant has sought to have the judgment entered following the jury's verdict set aside upon the basis that the verdict was unreasonable or perverse. Alternatively, that a new trial should be ordered as there were erroneous rulings of law which led to the exclusion of a number of material matters from the consideration of the jury.