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. Mr Wood began his proceedings on 28 December 1983. The appellant in its defence relied on s14 of the Limitation Act 1969, asserting that Mr Wood could not maintain any part of his cause of action which arose before 28 December 1977. Mr Wood sought an extension of time under the Limitation Act for the commencement of his proceedings but the trial judge, Loveday DCJ as he was, held he was unable to grant it. He also upheld the appellant's reliance on the Limitation Act. Neither of these matters was contested in the appeal, so that this Court must approach the matter on the same basis as the trial judge did, namely, did Mr Wood establish that his hearing had been injured during the last three months of his employment with the appellant, because of the appellant's unsafe system of work. The trial judge held that the respondent had suffered from some diminution in hearing for many years, but that the defect when he began his employment with the appellant was not great. He found that it became greater because of his two periods of employment in the moulding shed. Then, he said that doing the best he could he assessed the respondent's hearing loss to be approximately 30% related to that second period of employment. I take this as meaning that of the respondent's total hearing loss, 30% occurred during the last three months of employment with the appellant. 2 UNREPORTED JUDGMENTS For the appellant it was contended that there was no satisfactory evidence (1) that its system of work was relevantly unsafe or (2) that the respondent's hearing had been affected by it. As to (1), it seems to me that there was ample evidence before the trial judge entitling him to come to the conclusion that the appellant's system of work was such as to damage the hearing of employees working in the moulding shed and that knowledge of the effect of such noise was sufficiently common at the time of the respondent's employment to make it the appellant's duty to take steps to protect its employees from the consequences of the noise. The evidence before the trial judge was that: the shed was very noisy at the time the respondent was working in it; this noise was so loud when the machinery was working that persons working in the shed could not hear others speaking to them, and felt a ringing in their ears upon leaving the shed; an Industrial Noise Survey conducted in November 1982 showed that the noise level in the shed was far above what was then considered safe, and although a machine had been added in the shed since the respondent worked in it, even allowing for this, the noise level must have been unacceptably high at the time of the respondent's employment; the respondent had worked in the same shed for a different employer some time before the appellant began to use the shed as part of its business, and the previous employer, who gave evidence at the trial, said he had had earmuffs available for persons wishing to wear them; at an abattoir where the respondent worked before working at the mill, the employees were required to wear ear plugs because of the noise; various of the appellant's employees, including a union shop steward, used to ask that the appellant supply earmuffs. On this evidence it seems to me the trial judge could really only come to one conclusion about the appellant's system of work, the one he in fact came to. As to (2), on this issue, the trial judge did not regard the respondent as truthful. He had not been candid about having been rejected by the Army because of a hearing problem. His Honour also thought he was unreliable for other reasons. Nevertheless he accepted that his hearing had got worse while employed with the appellant. The evidence of a fellow employee was that the respondent's hearing had become worse during his period of employment. In a report of 1983, Dr Hunter expressed the opinion that the respondent's hearing loss was "consistent with his history of exposure to high noise levels in a saw mill". Also, in the evidence before the trial judge were reports of Mr Kevin Holwell, MB, BS, FRACS (ENT), who had examined the respondent at the request of the appellant's solicitors. In a report of 23 May 1984 he said that the features of the respondent's hearing loss, together with his employment history, indicated the loss was most likely due to industrial noise. In a report of April 1985 he recorded that the respondent had not himself noticed any hearing loss at the end of his employment with the appellant, and his attention was drawn to it by a later employer who suggested he should have his hearing tested. The respondent told Mr Holwell that this was in approximately 1980. The respondent gave a similar account in evidence before the trial judge, when he said that he thought the later employer recommended a hearing test about 1982. He saw Dr Hunter for testing in 1982. At the end of the April 1985 report, Mr Holwell said that in the absence of results of hearing tests at the relevant times, it was "really only speculation as to the exact cause of his deafness". In a report of September 1985 he noted that the hearing loss had apparently remained stable over the last twenty-eight months and expressed the opinion that there would not be any significant deterioration in the future. He ended by saying that he found it hard to reconcile the respondent's URJCOROWA TIMBER AND MOULDING MILLS PTY LTD v PF WOOD (Priestley JA) 3 hearing loss with his employment history and felt that there was "probably a long standing sensori neural deafness as the main component of it". Mr Holwell gave evidence in the respondent's case at the trial, in the course of which the trial judge asked him about the apparent conflict between these reports. Mr Holwell said that, putting them together, "I felt that there was certainly some contribution to noise exposure, but I wasn't prepared to accept that it was all due to that period of employment between 1977 and 1979. If one rapidly develops a hearing loss one usually is fairly aware of it, whereas if it is a more gradual process it is not necessarily so noticeable; and he in fact commented that he did not notice any significant hearing loss problems until 1980." Taking this evidence together with what Mr Holwell had earlier said that noise induced deafness is usually not progressive once the patient is away from noise, and his later evidence that a "daily noise dose" above a level which the Industrial Noise Survey of November 1982 (coupled with other evidence showing what the position was in 1978/79) showed was present in the moulding shed while the respondent was working in it required ear protection to be worn, it seems fairly clear that Dr Holwell was saying that although in his opinion the respondent's hearing had been made worse to some extent by his employment with the appellant, the fact the respondent had not noticed it immediately, indicated not all his hearing loss was due to that period of employment. Mr Holwell's evidence, taken together with that of the respondent's fellow employee who noticed a worsening in the respondent's hearing during his employment, taken together also with the whole of the circumstances of the case, seems to me fairly clearly to call for the finding which his Honour made. To this point therefore, it seems to me that, notwithstanding the submissions for the appellant, there was satisfactory evidence to support the conclusions that the appellant's system of work was relevantly unsafe and that the respondent's hearing had been affected by the noise he had to work in, in the moulding shed. At this point, however, it is necessary to consider what may have been the appellant's strongest submission. This was that there was no evidence of the extent of the respondent's hearing loss prior to employment, or of the extent of loss during that three months of the employment in respect of which the respondent was able to bring his claim. I think in a general way this submission is correct. For the appellant, it is submitted that if this submission is correct, it should follow that the respondent had not established his case, it being necessary for him to show the extent of the damage he suffered during his last three months of working for the appellant. This submission has force, but I do not think that in the circumstances of the present case, it prevails. For the reasons I have already outlined, the trial judge seems to me to have been right in concluding that the respondent, on the probabilities, suffered some loss of hearing during the last three months of his employment with the appellant. The trial judge did not give any very clear indication of how he arrived at his figure of 30% loss (in the sense earlier mentioned) during the three month period; but cases such as Ratcliffe v Evans [1892] 2 QB 524 at 532-3, Electricity Board v Nayler [1968] AC 529 (see per Lord Devlin at 548) and Yammine v Kalwy [1979] 2 NSWLR 151 support the view expressed by Luntz, Assessment of Damages 2nd ed 1983 at par 1.9.22 "that 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"; and although statements of that kind in personal injury cases are usually referring to the translation of a stated degree of physical incapacity into terms of money damages, nevertheless 4 UNREPORTED JUDGMENTS it seems to me the idea they express applies also to cases, -as here, where it is necessary to put a figure on the degree of physical loss suffered during a particular period. I think that in the present case, the evidence of some injury before employment, increased injury during the two periods in the moulding shed, the latter only being compensable, stabilisation after leaving the employment, and the quantification of hearing loss by Dr Hunter in 1982 is sufficient, perhaps barely sufficient, but sufficient, to justify a conclusion that on the probabilities the respondent suffered in the order of 30% of his total hearing loss during the last three months of his employment with the appellant. A consideration which makes it easier in the present case to come to the conclusion I have just stated is that once the position is reached that the trial judge was bound to do his best, on the materials before him, to quantify the injury he found the respondent had suffered, the appellant faced something of a dilemma. The appeal was expressly not brought against the quantum of damage found by the trial judge, but asserted that the court could not award any damage at all. No doubt no appeal was brought in regard to quantum because of the modest amount awarded by the trial judge. This seems to me to have been prudent on the part of the appellant. However, it also seems to me to follow, that once this Court decides that the respondent did suffer a compensable injury and that the trial judge was bound to do his best to quantify the compensable disability and fix reasonable damages for it, then the fact that the appellant did not challenge the actual amount of damages awarded, relieves this Court from examining the damages question further. In my opinion the appeal should be dismissed with costs. Counsel for the Appellant: Mr PJ Deakin Solicitors for the Appellant: Hunt and Hunt Counsel for the Respondent: Mr F Stevens Solicitor for the Respondent: Mr DJ Ironside, Orange, NSW