AUSTRALIAN TELECOMMUNICATIONS COMMISSION v LENNOX [1991] NSWCA 13

AUSTRALIAN TELECOMMUNICATIONS COMMISSION vy LENNOX

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SAMUELS, CLARKE and HANDLEY JJA

15 and 16 August 1991, 16 August 1991

[1991] NSWCA 13

DAMAGES — quantum — no question of principle.

Samuels JA The plaintiff, who was born on 6 January 1928, sued the defendant to recover damages for a bilateral sensorineural hearing loss sustained while in the defendant's employment as a telephonist in the phonogram section of the Newcastle exchange, a job which she had performed since 1969. Liability was admitted, and the matter came before Judge Johnston on 6 November 1989 for the assessment of damages.

The plaintiff by 1981 had become aware of some hearing loss. In February 1982 she was diagnosed as having sustained, allowing for presbycusis, that is the deterioration of hearing due to age, a loss of 8.7 per cent in the right ear and the 7.9 per cent in the left. At the date of trial some deterioration had occurred and she had 19.2 per cent nett loss in the right ear and 20.6 per cent in the left. This, as the learned judge found, was regarded by Mr D J Keck, an audiologist, as representing what he described as a mild middle frequency and a moderate high frequency sensorineural hearing loss in both ears consistent with noise induced trauma.

The plaintiff had continued to work with the defendant from 1982, when the first diagnosis of hearing loss was made, until September 1988. During that time she was exposed to noise and no doubt it was as a result of that circumstance that some deterioration of her hearing occurred. In September 1988 she took an early redundancy package which, it was said, was not on advantageous terms, having intended to work until 1991 in order to co-ordinate her retirement with that of her husband.

The learned judge assessed the damages as follows: for pain and suffering, loss of amenities and the like $80,000; interest on $40,000 at eight per cent for seven years $22,400; accrued loss of earnings from 1982 to 1988 $739.82; interest thereon $414.30; wage loss from 1 September 1988 to 6 November 1989 $18,352; interest thereon $1712.85; out-of-pockets $233.40 and loss of future earnings from 7 November 1989 to 1 June 1991 $23,338.30. Those items total $147,190.67.