COROWA TIMBER AND MOULDING MILLS PTY LTD v PF WOOD [1989] NSWCA 50

COROWA TIMBER AND MOULDING MILLS PTY LTD v PF WOOD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, PRIESTLEY and CLARKE JJA 7 April 1989, 11 May 1989

[1989] NSWCA 50

DAMAGES — hearing loss — loss established before worker joins employer — evidence of hearing loss with employer — evidence of negligence by employer in failing to provide a safe system of work — worker confined by Limitation Act to short period of claim — trial judge finds figure of hearing loss attributable to negligence of employer during relevant period — fails to give clear indication of how he arrived at his figure — held: (1) Where the plaintiff has suffered some real loss, the court must do its best to place a value on that loss despite the paucity or even absence of evidence on the point. Ratcliffe v Evans [1892] 2 QB 524, 532; Electricity Board v Nayler [1968] AC 529, 548; Yammine v Kalwy [1979] 2 NSWLR 151; and H Luntz, Assessment of Damages, S2nd Ed, 1983, 1.9.22 approved and applied; (2) There was evidence, in the circumstances, to sustain the judge's order and apportionment of the loss attributable to the relevant period of employment with the employer; (3) There was also evidence of negligence; (4) Appeal dismissed.

Priestley JA The appellant, Corowa Timber and Moulding Mill Pty Ltd, appeals against a judgment against it for damages in favour of the respondent Mr Wood, formerly one of its employees. The appellant was held liable to the respondent for damage to his hearing arising from a negligently unsafe system of work. The damages awarded were not large and the appeal is brought only against the finding of liability against the appellant.

Mr Wood worked for the appellant from 19 January 1977 to 5 February 1979. In the early part of this employment and during the last three months of it he worked in the moulding shed, close to noisy machinery. His claim was that his hearing was affected while working in the moulding shed.