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. Since no consent to unlimited jurisdiction under s51 of the District Court Act had been given the judge reduced the verdict to a judgment for $124,527.15, that is to say the jurisdiction limit of $100,000 plus the amount of interest. We gave leave to the defendant, the appellant, to file an amended notice of appeal, and I will deal in turn with the grounds that are advanced in challenge to the assessment which for various reasons is said to have been excessive. First of all, the second ground of appeal complained that the learned judge failed to give sufficient weight to the acceptance by the plaintiff of the redundancy package. No evidence was led as to the details of the package or its components and this ground was rightly abandoned. 2 UNREPORTED JUDGMENTS It was then argued that the learned judge was wrong to find that the plaintiff ceased employment with the appellant in September 1988 as a result of her hearing loss. As to that, in my opinion the evidence strongly suggested the conclusion to which his Honour came in which I can perceive no error. The fourth ground of appeal challenges the award of the sum of $23,000 odd for future loss of earnings which should, it is said, have been discounted for contingencies. This relates to the period from 7 November 1989 to 1 June 1991. In my judgment Judge Johnston made no error in failing to discount for contingencies in respect of that period. It was well established in the evidence that it was the plaintiff's hearing loss and her inability on that account to accept retraining for alternative employment, the section in which she had been working having been closed down, that precipitated her decision to retire at that time. The fifth ground of appeal seeks to rely upon the recent decision of the High Court in M B P (SA) Pty Ltd v Goaic (1991) 65 ALJR 203. At the time of the trial Cullen v Trappell (1980) 146 CLR 1 authorised, indeed required, the application of a commercial rate of interest to past non-economic detriment. The view now adopted by the High Court, which is to the contrary effect, was not advanced at the trial, and in my view it should not be permitted to be taken now: see Pienina v Wanless (1967-68) 117 CLR 498. The substantial challenge therefore is presented by the third ground of appeal which contends that the award of the sum of $80,000 for pain and suffering and so forth was excessive. The learned judge accepted the plaintiff as an impressive and forthright witness who was unshaken during a cross-examination which his Honour appears to have thought was rather more arduous than indeed it was. He felt, however, having observed her in the witness box that he need have no hesitation in accepting the evidence of her continuing disability. Observations which the learned judge made of the plaintiff confirmed his view of the evidence that she was unable to hear to the ordinary extent, and, in particular, when she was unable to augment her diminished hearing by some attempt at lip reading. These findings, of course, we are bound to and do accept. The plaintiff gave evidence of some unpleasant aural experiences during employment in the period 1982 to 1988 consisting of sudden loud and penetrating shrieks, as she described them, over her headset. She described the difficulty she had in hearing conversations and in communicating with others in an ordinary social context. She found difficulty for example in hearing those whom she could not see and in responding to a voice coming from behind her. She was unable easily to hear the light high voices of her grandchildren; and she also had problems in hearing television soundtracks. The plaintiff called Mr Keck to whom I have shortly referred. He was asked to comment on history put to him on the footing that it represented the plaintiff's experience. In some respects it seems to me all of this history was not proved; but I do not think that in the present case anything turns on that. He was asked to express a view whether these problems were difficulties and embarrassments which in his opinion were consistent with what he had found to be the extent of the plaintiff's disability. His evidence was in some respects more compelling and evocative than the plaintiff's own testimony. He had, however, described her, following an examination on 6 April 1989, as suffering from a "moderate social disability". In my view the learned judge was over impressed perhaps and rather too much influenced by the evidence that Mr Keck gave, as if it was in some way a substitute for a description by the plaintiff of her own social encounters. Of URJAUSTRALIAN TELECOMMUNICATIONS COMMISSION v LENNOX (Samuels JA) 3 course, it may be misleading to regard adjectives such as mild and moderate as conveying some definitive assessment of hearing loss and its disabling, restricting and embarrassing consequences. It may be also that on some scales the plaintiff's condition is not far from the borderline of severe hearing loss. But it must be pointed out that she has not endeavoured to ascertain whether a hearing aid might be of possible assistance to her. There was some discussion about this, and it cannot be said with certainty that the provision of a hearing aid would improve her hearing to any significant extent, or indeed at all. But the point is that Mr Keck having suggested in a comparatively recent report made on 6 April 1989 in respect of examination on that day, that the plaintiff should undergo a trial hearing aid fitting "since I do feel she may gain benefit from such a device', the learned judge should have taken account of this evidence. It is not unimportant as bearing upon the extent to which the plaintiff was really affected by the problems which she had described. I make it clear that I am not for one moment suggesting that the plaintiff was other than a perfectly frank witness. It may well be that the modest terms in which she described her disability conveyed an accurate view of her subjective reaction and responses to it. Judge Johnston adopted Mr Keck's assessment that the plaintiff was suffering a moderate social disability, to which he referred in those terms, but he went on, with all respect, to describe her situation in words of some hyperbole which the evidence does not in my view support. For example he appears to have drawn some analogy between loss of hearing and loss of sight describing them (that is, each of them) as one of the most serious disabilities that one could imagine. No doubt that is true. But the plaintiff's condition falls far short of any equivalent to loss of sight. He goes on to speak of her dream of retirement with the warm companionship of children, grandchildren and friends having been shattered, a catastrophe %X7 which I hardly think the evidence really makes good. And finally upon this point he describes the plaintiff as suffering a continuing and worsening disability. It was undoubtedly continuing but there is no evidence that it was worsening. Indeed Mr Keck, whose views the learned judge evidently accepted, was of the opinion that it was unlikely that with no more noise exposure the plaintiff "is going to suffer any more." It may therefore be that the learned judge approached the matter on the footing that the plaintiff would have to cope with deteriorating hearing over the rest of the presumed span of her life. I am conscious that the award of damages for pain and suffering and loss of amenities in a case of this kind is more than ordinarily one that attracts the quasi-discretionary elements examined in Moran v McMahon (1985) 3 NSWLR 700. But I am of opinion after careful reflection that the award of $80,000 is an wholly erroneous estimate of the plaintiff's loss and therefore requires the intervention of the Court. In my view that figure should be reduced to $50,000 proportioned equally to the past and to the future, with interest, now applying Gogic, of course, at two per cent on $25,000 for seven years, which comes out at $3500. If we intervene and re-assess we are of course able to, and in some case we may be bound, to re-assess the whole of the award item by item; but here the other elements in my view are not open to challenge although in some respects a challenge has been unsuccessfully made to them. Leaving aside the question of the apportionment of interest which was raised in the sixth ground of appeal I would accept and adopt the other items of the learned judge's assessment. Hence I would reduce the total award to the sum of $98,290.67. This is wholly within the jurisdictional limit and the question 4 UNREPORTED JUDGMENTS whether the learned judge ought to have adjusted the amount he awarded for interest does not arise. I will resist the temptation to express any view about it therefore. Accordingly, the orders I would propose are these: the appeal is allowed; the judgment below save as to costs is set aside and in lieu thereof judgment should be substituted for the plaintiff for $98,290.67 to date from 9 November 1989. Clarke JA I agree. Handley JA I also agree. Appeal allowed. The judgment below save as to costs is set aside and in lieu thereof judgment should be substituted for the plaintiff for $98,290.67 to date from 9 November 1989. The respondent must pay the appellant.'s costs of the appeal and shall have a certificate under the Suitors' Fund Act in respect of those costs. Counsel for Appellant: Ms C Simpson QC with Mrs P Sharpe Solicitors for Appellant: Australian Government Solicitor Counsel for Respondent: J Crumpton Qe with P Seery Solicitor for Respondent: Maurice May and Co