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. The appellant was, at the time of the trial, aged 52 years having first undertaken employment with the respondent at the Ravensworth No 2 open cut coal mine, which was situated near Muswellbrook, on 22 May 1972. A short time after he entered that employment he commenced working on a Lima shovel which was a very noisy piece of machinery. He continued working on that shovel until the last few months of 1979. He then proceeded to work as a greaser on the drag line remaining there for about six to eight months. He then became an operator of the 295B shovel and worked in that capacity until June or July 1984. During that time he also relieved the operator of the drag line from time to time. In about the middle of 1984 he became the regular operator on the drag line and 2 UNREPORTED JUDGMENTS continued working in that capacity until the time of trial. The Lima shovel was probably the noisiest piece of equipment on which he worked. However, it was also noisy working as a greaser on the drag line and even when he went to the crib room during the time he worked as a greaser he found that you had to speak up in order to be understood. operating the 295B shovel was not very noisy as he worked from a cabin which was air conditioned and sound proofed. You could, he said, have a conversation in the cabin without raising your voice. The only occasions on which he would be exposed to a noisy environment were when he was in the crib room or the door of the cabin flew open. Similarly, the drag line was operated from an air conditioned cabin and there was no noise problem there. About four times each shift he had to check machinery and once a week he had to assist with the grease drums. Every three to four weeks the cables had to be changed. That took two to three hours and was a noisy operation. While working as an operator on the drag line he worked two hours on and two hours off. During the time off he could, if he wished, spend time in the crib room. There was scientific evidence of noise levels tendered during the trial. That disclosed that the appellant was not exposed to dangerous levels of noise while in the operating cabin of the drag line or the shovel. The noise in the machinery room was on the other hand of a dangerous level. The appellant conceded that ear plugs and ear muffs were available. He said that he wore ear plugs, which he found more comfortable than ear muffs, while working on the drag line. He was not informed that ear muffs probably provided greater protection nor was he given any instructions as to how the ear plugs should be inserted except to the extent that there were instructions on the packet in which the plugs were contained. The results of audiometric testing of the appellant's hearing were tendered and were not seriously in dispute. They showed that in May 1978 he had loss of hearing equating 5.2 per cent in the left ear and 3.3 per cent in the right ear on the NAL scale. By 23 August 1984 a significant deterioration had occurred. He was then suffering a loss of 10.9 per cent in the left ear and 9.2 per cent in the right ear on the NAL scale. It was accepted that this was a moderate loss of hearing. He was tested again on 6 September 1985 and on this occasion the loss was 11 per cent in the left ear and 9.3 per cent in the right ear on the NAL scale. It was accepted that this demonstrated there was no significant diminution in his hearing capacity between August 1984 and September 1985. His case was that this deterioration in hearing between 1978 and 1984 resulted from the respondent's failure to protect him from the damaging effects of the noise to which he was exposed in the various jobs he was working during that period. The trial judge directed the jury that there was evidence in the case of four reasonably practicable methods of minimising the risk of damage from noise. Firstly, the respondent could have made available adequate hearing protection either by way of ear muffs or ear plugs; secondly, the respondent could have taken steps to ensure that the appellant was fully aware of the manner in which he should use the available precautions; thirdly the respondent could have taken steps to ensure that supervisors regularly checked to see that the hearing protection was being correctly worn, and fourthly, the respondent could have reduced the appellant's daily dose of noise by way of rest periods or rotating him between noisy and non noisy jobs. The major contention of the appellant appears to have been that no one told him how to fit the ear plugs or took any steps to supervise, or check on, the way he wore them. His claim to this effect was not contradicted in evidence and the URJ GILMORE v COSTAIN AUSTRALIA LTD (Clarke JA) 3 learned trial judge instructed the jury that they were entitled to reach the conclusion that all the respondent did by way of protecting the appellant from noise damage was to make available to him hearing protection, leaving it to him to use plugs or muffs as he chose. The appellant's case was that the objectively demonstrated diminution in his hearing capacity between 1978 and 1984 indicated that he had been exposed to excessive levels of noise during his employment and that the jury should infer that the steps taken by the respondent were less than those which would have been taken by a reasonably prudent employer and that it should be found negligent. The case presents as quite a compelling one. But there is one complication to which I should now refer. The appellant issued his statement of claim on 18 June 1985. Accordingly he could rely only on those breaches of duty which may have led to his damage which occurred after 18 June 1979. For present purposes I put to one side the question whether he may have in fact been able to rely on the respondent's conduct prior to that date upon the basis that the damage occurred during the six years immediately preceding the institution of the writ for the reason that the case was conducted upon the basis that the appellant could complain only of those breaches occurring during that period. The appellant had earlier made an application for an extension of time under Pt3 Div 3 of the Limitation Act but this application was dismissed and no appeal was brought from the decision dismissing it. Accordingly, it was necessary for the appellant to satisfy the jury that his hearing loss was caused by breaches of duty which occurred after 18 June 1979. In these circumstances it was incumbent upon the appellant to satisfy the jury that the deterioration of hearing did not result from the exposure to noise while working on the Lima shovel between May 1978 (when the audiogramme was taken) and June 1979. If he failed to do that then he ran the risk that the jury might reject his claim upon the basis that there was no causal connection was shown between any breaches which occurred after the beginning of the limitation period and the time of the 1984 audiogramme and his hearing deterioration. It is well established that a party which wishes to set aside the verdict of the jury upon the ground that it is perverse or unreasonable bears a heavy burden. It undertakes the obligation of establishing that, in the light of the evidence and the summing up of the trial judge, the verdict is one to which no reasonable jury, properly directed, could come. In my opinion the appellant's task in seeking to satisfy that test is a hopeless one. While there was no doubt that there had been significant deterioration between 1978 and the effect of the limitation period in this case was to introduce a complicating factor and to leave it open to the jury to decide that even though there may have been breaches of duty which were causally connected to the hearing loss those occurred, more probably than not, prior to the commencement of the limitation period. As that conclusion was properly open to the jury there is no basis upon which to reach a conclusion that in rejecting the case of the party who bore the onus the jury was acting unreasonably. That conclusion provides a complete answer to the claim of perversity. It is not the only answer but in the circumstances it does not appear to be necessary to demonstrate the other grounds, such as whether the jury was satisfied that there were breaches of duty in the relevant period, which could have led the jury to reject the appellant's case. Accordingly, this challenge fails. 4 UNREPORTED JUDGMENTS The next matter of which the appellant complains is the withdrawal from the jury of the head of negligence set out in particular XIV in the statement of claim. That read: "A failure to carry out or regularly carry out monitoring audiometry on the plaintiff in circumstances which the defendant well knew, or should have known, that the plaintiff was exposed to danger and injury and failure to inform the plaintiff of such audiometry." His Honour accepted that there was evidence before the jury that regular monitoring audiometry, preferably on an annual basis, is a desirable step to be undertaken by an employer and assumed, for the purposes of the argument, that a reasonably prudent employer would, during the period relevant in the case, having instituted a programme of such audiometry. Notwithstanding this assumption his Honour concluded that there was no evidence of a causal nexus between any failure to institute a system of regular audiometry and the deterioration in the appellant's hearing. The reason why he came to that conclusion is to be found by reference to the respondent's submissions which his Honour accepted. The respondent argued that on the plaintiff's own evidence the substantial part of the hearing loss occurred while he was working as a greaser on the drag line for six to eight months starting in late 1979. Accordingly if a system of annual audiometries had been instituted and tests conducted in May 1979 and May 1980 (following an audiometric test which was carried out in May 1978) then the appellant's deterioration would have been detected only in May 1980 when it was too late to do anything about it. To put it another way, the evidence was that the deterioration occurred during the period of 12 months between May 1979 and May 1980 with the consequence that it would not have appeared in the 1979 audiogramme and only come to light in 1980 when It would have been too late to do anything about it. It seems clear that his Honour was persuaded that upon the only view of the evidence open to the jury this submission must succeed. There are, it seems to me, difficulties with this approach. The practical benefit of monitoring audiometry was that it enabled regular supervision of the appellant's, and other workers, hearing. In the event that deterioration was shown to have occurred during a period of 12 months then the respondent, as a reasonably prudent employer, could have taken alternative steps to ensure that a further decline in hearing was avoided. In these circumstances it may have been correct to say, as the respondent did, that any deterioration in the appellant's hearing which occurred between May 1979 and 1980 could not have been avoided. But, unless there was no evidence on which the jury could have found that there was any later deterioration, a finding was open that later deterioration could have been avoided by the installation of this system. The point upon which this ground of appeal depends can thus be refined so that it involves a consideration only of the question whether there was any evidence upon which a jury could conclude that deterioration occurred following May 1980. The evidence concerning this point is sparse. The appellant was asked whether his hearing had stayed the same or got worse during the period he worked on the 295B shovel and he said his hearing had dropped a little he thought. He added "Its a bit hard to explain." He was then asked: Q. I appreciate that, but the jury has to understand? A. Around about the same level I thought. Q About the Same? A Yes. URJ GILMORE v COSTAIN AUSTRALIA LTD (Clarke JA) 5 In the light of the evidence that he commenced working on the 295B shovel in 1980 it was said that it was not open to the jury to conclude that there had been any deterioration after that time. It seems to me, however, that the evidence of the appellant was not all one way and that its interpretation was very much a matter for the jury. He had said that he found it difficult to explain whether his hearing had deteriorated after he started working on the shovel although he did say he thought his hearing had got a little worse. His later statement that it was about the same level was a matter that had to be weighed, in my opinion, with the earlier statement. I do not agree with the proposition, which was urged by counsel for the respondent, that, as there is an element of conflict between the two statements given in evidence in chief, the later statement should be treated as the final word. I take it to be established that the interpretation of the evidence of witnesses and the decision whether to accept the whole or a part of the evidence of a witness is essentially within the province of the jury. There are additional reasons why, in my opinion, this particular ground of negligence should have been left to the jury. Prior to commencing work on the drag line the appellant had been working on the Lima shovel, which on the evidence, was the noisiest piece of equipment in the mine, and he continued working on this piece of equipment until late in 1979. In the light of his earlier evidence that his hearing had deteriorated significantly prior to his starting work on the drag line it was open to the jury to conclude that a significant diminution occurred while he worked on the Lima shovel. In my opinion this evidence left it open to the jury to come to the view that if there had been monitoring audiometry in May 1979 then some deterioration may have been revealed which would have met with some response from a reasonably prudent employer. I am not overlooking the fact that the limitation period commenced in June 1979 but it was nonetheless open to a jury to conclude that if, as his evidence suggested, the deterioration was continuing while he worked on the Lima shovel, then an audiometric test taken in May 1979 would have enabled positive steps to be taken after June 1979 to terminate conditions under Which the deterioration was occurring. In the event, and in the absence of any audiometric test, he continued to work on that shovel for about six months after May 1979. The failure to have a test in 1979 and take positive steps following this could be seen by the jury as negligent. Accordingly, I have concluded that his Honour was in error in withdrawing this particular from the jury and that the appellant in the circumstances is entitled to a new trial. A number of other grounds of appeal were taken which had no substance and there is no need to refer to them. There were, however, three associated grounds of appeal arising from successful objections to evidence upon which, in view of the fact that a new trial will occur, it is desirable that this court rules. The objections occurred during the evidence of Mr John Pearce who was an industrial audiologist and psychologist. He gave evidence that the ear plugs supplied by the respondent were treated with a chemical that allows the foam of which they are made to expand slowly. According to this evidence the foam material takes about a minute to achieve its full expansion. What was, perhaps, more relevant, was his evidence to the effect that the foam expands within the ear canal but unless it is held in place it could expand out of the ear canal as well. In that instance it would be ineffective. 6 UNREPORTED JUDGMENTS The witness had seen a demonstration by the appellant of the manner in which he inserted the plug into his ear prior to giving evidence. In this demonstration, which was witnessed by the jury, the appellant placed the plug into his ear and almost immediately removed his hand. In the first question which was rejected, as the appellant suggests wrongfully, his counsel sought from Mr Pearce an answer to the question whether the instructions on the packet in which the plug was contained were adequate instructions. His Honour ruled that that was not an appropriate matter upon which expert evidence may be received. The instruction in question read: Quickly insert the compressed plug well into the ear canal. Hold gently in ear with finger tip until expansion is complete. Repeat for other ear. Whether that instruction was, in the opinion of the expert, inadequate and if so in what way was never revealed. But assuming that Mr Pearce was an appropriate expert, as his Honour did, it seems to me that it was open to him to express an opinion as to the content of instructions which would appropriately bring to the user's attention the need to ensure that the plug was held firmly in the ear canal for a minimum period of time to allow it to expand. On one view the supplied instruction did that but it may be that Mr Pearce, and here I am assuming his expertise which was not questioned, would have been able to demonstrate that because of the particular qualities of the plug there was a necessity to instruct the user to hold it in place for a minimum period of time. The question of the proper manner of use of such a plug clearly fell within the realm of an appropriate expert and unless the jury were given the benefit of expert evidence as to the precise steps that needed to be taken before the plug provided adequate protection then it was deprived of an important evidentiary base upon which to approach the question. In his summing up his Honour directed the jury that the appellant complained that the defendant was negligent in failing to take steps which it could have taken to ensure that the appellant was fully aware of the manner in which he should use the available precautions. It will be seen therefore that in the way in which the case went to the jury the appellant was at a distinct disadvantage. He had indicated that as far as he knew he had inserted the plugs properly and the respondent was able to point to the instructions on the carton which had not been shown to be inadequate. Once there was evidence that those instructions were inadequate, at least in the opinion of an expert, then the appellant's case became more persuasive. That is not to say that it was not open to the jury, even if this expert evidence had been given, to conclude that the appellant's own evidence that he had inserted the plug properly was a complete answer to a charge of negligence. Of course the jury could reach that conclusion. The point is that the exclusion of the evidence meant that the appellant had no evidentiary support for the proposition that there was inadequacy in the instructions. The appellant's counsel also sought to extract from the witness an answer to this question: "Whether fitting the ear plug in the way Mr Gilmore demonstrated in court gives sufficient time for the ear plug to expand fully in the ear? This questions also seems to have been rejected as being inappropriate for expert evidence. If as Mr Pearce was contending: it was necessary for the plug to be held in position for an appreciable time I would take the view that, again assuming his expertise, he was entitled to point out to the jury that if the plug was inserted in the manner demonstrated then its usefulness was markedly limited. URJ GILMORE v COSTAIN AUSTRALIA LTD (Clarke JA) 7 The evidence was, in a real sense, complementary to the witness's earlier statement about the time of expansion of the foam. Accordingly, the evidence was, in my opinion, wrongfully rejected. I emphasise, however, that in dealing with these questions I have assumed Mr Pearce's expertise to answer the questions which were asked. I have done so because they were not objected to on the grounds that he lacked that expertise. No doubt the granting of a new trial is a discretionary remedy and the fact that this particular trial continued for many days works in favour of declining to grant the remedy in this instance. I have taken that into account and have come to the conclusion, which I earlier indicated, that the withdrawal of an important claim of negligence by the appellant requires that, in the interests of justice, a new trial be granted. I would order that the judgment and costs order below be set aside; that a new trial be ordered on all issues and that the respondent be ordered to pay the appellant's costs of the appeal and to have, if qualified, a certificate under the Suitors Fund Act. Order that the judgment and costs order below be set aside; that a new trial be ordered on all issues and that the respondent be ordered to pay the appellant's costs of the appeal and to have, if qualified, a certificate under the Suitors Fund Act.