ELECTROLYTIC REFINING and SMELTING COMPANY OF AUSTRALIA LTD v JIMINEZ SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, PRIESTLEY JJA and Hope AJA 13 March 1991, 26 June 1991 [1991] NSWCA 90 INDUSTRIAL DEAFNESS — WORKERS' COMPENSATION AMENDMENT ACT 1987 APPEAL from District Court — In 1985 plaintiff sued for damages for industrial deafness arising between 1979 and 1984 — Award $48,850, including $40,000 for general damages and $3850 for interest to trial. WHETHER Workers' Compensation Amendment Act 1987 disentitled plaintiff to damages in respect of injuries arising after 1987 and that damages included award for such injuries — Whether award of $40,000 general damages appealably excessive. HELD: Award of $40,000 not appealably excessive. HELD: Submissions based on Workers' Compensation Amendment Act 1987 were not based on defence pleaded or issues raised at trial — Not allowed to be relied on on appeal. HELD: In any event, notwithstanding s149 of the Workers' Compensation Amendment Act 1987, plaintiff was entitled to recover damages for aggravation of industrial deafness even though it occurred after proceeding commenced. ORDER Appeal dismissed with costs. Mahoney JA I agree with Hope AJA. Priestley JA I agree with Hope AJA. Hope AJA The plaintiff, who came to Australia from Spain in 1974 commenced employment with the defendant in May 1979. In the course of his work he was subjected to a considerable amount of industrial noise, and after some time began to suffer industrial deafness. In January 1985 he commenced proceedings in the District Court for the injury, commonly called industrial deafness, which he claimed that he had suffered between May 1979 and 1984 during the course of his employment by the defendant, and for disabilities consequential upon that injury from which he claimed he had suffered since 1984. On 24 February 1989 his Honour Judge Nield gave judgment in the plaintiff's favour and awarded him damages in the sum of $48,850. This amount included $40,000 which his Honour assessed in respect of general damages and interest amounting to $3,850 calculated on a sum of $10,000 which his Honour attributed to that part of the general damages incurred for five years and six months preceding the date of the trial. The defendant appealed, the grounds of appeal relating both to liability and the amount of damages. In written submissions before the appeal came on for hearing the defendant's counsel abandoned all these grounds save for one relating to the amount of $40,000 which his Honour had awarded for general damages and interest associated with that amount. The plaintiff's written submissions answered the submissions thus made by the defendant. On the day before the hearing of the appeal, the defendant delivered an amended submission which relied upon the provisions of the Workers' Compensation Amendment Act 1987. This Act replaced the existing s149 with a new section which it was submitted should have been taken into account by his Honour in the determination of the 2 UNREPORTED JUDGMENTS amount of damages which he awarded. It was submitted that the effect of the Act was that the plaintiff was not entitled to any damages in respect of injuries arising after 30 June 1987, and that his Honour had included injuries of this kind as objects of his assessment. This question had not been raised at the trial nor was it referred to by the learned trial judge. It was not the subject of any ground of appeal nor, until the day before the appeal, of any submissions. Counsel for the defendant submitted that he was entitled to raise the matter even though it had not been pleaded or raised in the District Court or on the appeal, and that if he was wrong in this regard he sought leave to amend the grounds of defence and the grounds of appeal to include it. This course was objected to by counsel for the plaintiff. After hearing argument the Court directed that written submissions be made in relation to these questions and otherwise reserved its decision in the case. I shall first deal with the appeal in the way in which it came to this Court originally and to the action in the way in which it was dealt with in the District Court, that is, without regard to the provisions of the Workers' Compensation Amendment Act 1987. The plaintiff was born in Spain on 16 August 1945 and was thus 33 years of age when he commenced to work for the defendant and 43 years and 6 months at the time of the trial. When he commenced his employment with the defendant in May 1979, he worked first in the construction department and was there subjected to a very considerable amount of industrial noise, including noise from jack hammers, when he was working in what were described as brickline converters. In or about February 1980 he was moved to the machine department as a tradesman's assistant. He no longer used jack hammers but was still subjected to a considerable amount of industrial noise. The evidence of the plaintiff and his wife, which was accepted by his Honour, was that both of them first noticed the onset of the plaintiffs deafness some time after he moved from the construction department to the machine shop, that is, some time after February 1980. Some time in 1987 he was classified as a greaser, and was thereafter enabled to avoid working in noisy areas to a considerable extent. Before this time he had had to work where he was told to work, whatever the noise position was. As a greaser, he could work in such a way as to try to avoid noise. If he went to grease a machine and there was noise in the area, he could go elsewhere until the noise had ceased. He still remains employed by the defendant. Deafness apparently can be of two kinds, a conductive loss of hearing or a sensory neural loss of hearing. Conductive loss of hearing occurs when there is an injury to the outer or middle ear. There is a loss of sensory neural hearing where there is an injury to the inner ear or cochlea. This damage is irremediable. It appears that the plaintiff had suffered some conductive loss of hearing, particularly in his left ear, before he commenced to work for the defendant, but his Honour found, and it is not challenged, that he had had no loss of sensory neural hearing before that time. The plaintiff and his wife gave evidence as to the onset, extent and consequences of the plaintiff's deafness and this evidence was accepted by his Honour. His Honour described the effect of this evidence in these terms: "The plaintiff says that he has and his wife and children have noticed his defective hearing. He said that he cannot hear as were, that he cannot hear people taking in a group, that he has to have one person facing him and talking directly to him, that he has to concentrate on what is being said to him, that people must UBRECTROLYTIC REFINING and SMELTING COMPANY OF AUSTRALIA LTD v JIMINEZ (Hope AJA) attract his attention by touching him rather than by calling to him, that sometimes he has difficulty in hearing instructions given to him, that he cannot hear conversation over a telephone if there is background noise in the room where he is listening to the telephone that he must have the volume of the television too loud for other people in the room with him, that he cannot hear a person singing with a band although he can hear the music of the band and that sometimes he has a "ringing" sound in his ears, the left more so than the right. He said, because of his defective hearing, he has become irritable and cranky at home with his wife and children, and he prefers not to mix with people. Mrs Jiminez said that she first noticed that the plaintiff had defective hearing when he would not answer a call from her, when her children had to repeat themselves when talking with the plaintiff and that the plaintiff had the volume of the television too loud for her and her children. She said that over the past few years the plaintiff had become upset and cranky with his defective hearing. She said that she believes that the plaintiff "s defective hearing is worsening. I accept without reservation what the plaintiff and Mrs Jiminez told me of the effect on the plaintiff of his defective hearing." I should add that the plaintiff also gave evidence that his deafness was getting worse and that both he and his wife gave evidence that they and their children noticed the deafness some time after he had ceased to work in the defendant's construction department. (at page) The plaintiff called in support of his case Dr Tamhane, an ear, nose and throat specialist, and tendered two written reports by him. He also called Mr D Eden, an acoustical engineer and Mr DJ Keck, an industrial audiologist, both of whom had given written reports which were tendered in evidence. (at page) The defendant called Dr R Carroll, an ear, nose and throat specialist and tendered his two reports. It also called Mr A Day, a consulting acoustical engineer. (at page) The learned judge preferred the evidence both of Mr Eden and Mr Keck to that of Mr Day for reasons which he set out in his judgment. Those reasons were not challenged in the appeal, but perhaps it should be mentioned that one of them was because of the evidence given by the plaintiff and his wife that they had noticed the plaintiff's defective hearing after he had been transferred from the construction department to the machine shop. (at page) Between August 1983 and the trial, the plaintiff underwent seven audiograms to determine the percentage sensory neural hearing loss in each ear. These tests were taken by Dr Tamhane, Dr Carroll and Mr Keck. The results are set out in this table: Date of Audiogram Audiogram Performed By Percentage Hearing Loss 4. 8.83 Dr Tamhane Left 7.0% Right 5.5% 6. 8.85 Dr Carroll Left 1.8% Right 2.9% 20.9.85 Mr Keck Left 4.9% Right 2.6% 6. 2.86 Dr Tamhane Left 14.3% Right 5.2% 3. 8.87 Dr Carroll Left 0.5% Right 1.8% 26.8.87 Mr Keck Left 9.1% Right 5.1% 30.1.89 Dr Tamhane Left 18.3% Right 7.0% It will be seen that there was quite a variation in these results, and his Honour's conclusion in respect of them was in these terms: 4 UNREPORTED JUDGMENTS "Although there is quite a wide variation between the audiogram results, and notwithstanding the evidence of Dr Carroll, I am satisfied that the plaintiff has a noticeable (that is noticeable to him, his wife and his children) hearing loss. Although it is difficult to accept or to reject one expert when compared with another expert when all that was done was the measurement by audiogram of a percentage hearing loss, because I accept the evidence of the plaintiff and of his wife as to the effect upon the plaintiff of his defective hearing, I prefer the evidence of Mr Keck and of Dr Tamhane to that of Dr Carroll." Having so concluded, his Honour went on to say that although the plaintiff had defective hearing, he did not experience discomfort or pain. He had occasional episodes of tinnitus. His Honour went on to say that the plaintiff had "a moderate social disability", that his defective hearing had, to some degree, affected his emotional state, and that there had been some impact upon and change to his day to day lifestyle. His defective hearing was worsening, in the sense that his percentage hearing loss was increasing. His Honour then considered the possible effects of surgery or the use of a hearing aid by the plaintiff. He concluded that although surgery could remedy the whole or part of the conductive hearing loss, it would not improve the sensory neural hearing loss. He also concluded that wearing a hearing aid might improve the conductive hearing loss, but would only improve the sensory neural hearing loss to a marginal, if any, extent. When he came to assess the amount to be awarded for general damages, his Honour pointed out that the plaintiff had lived with his increasingly defective hearing since some time during 1980 when he first became aware of it. He was 43 1/2 years of age at the time of trial and he had some 30 years expectation of life remaining to him. Accepting as he did the evidence of the plaintiff and his wife, he thought that the plaintiff's defective hearing had had and would continue to have a significant effect upon the plaintiff and upon his day to day lifestyle. Although it should not intrude seriously upon his wage earning capacity, he thought that it would intrude seriously upon his lifestyle, particularly his social life. He accepted and could understand the plaintiff's reluctance to mix with people and his preference to remain at home with his wife. He said that as the plaintiff's percentage hearing loss increased he would become more and more frustrated, irritable and reclusive, and his enjoyment of his life would be diminished. It was on this basis that he awarded the plaintiff $40,000 for general damages. Putting to one side the effect of the provisions of the Workers' Compensation (Amendment) Act 1987, the defendant submits that the award of $40,000 as general damages was so high as to justify interference by this Court both in general terms, and also upon the basis of what are alleged to be two errors made by his Honour in arriving at his assessment. The first of the particular errors relied upon is that his Honour said that he preferred the evidence of Mr Keck and Dr Tamhane to that of Dr Carroll, that Mr Keck and Dr Tamhane gave different audiogram results in respect of the plaintiff's loss of hearing, and his Honour did not select which one of these he adopted. These audiogram results were a measure of the extent of the plaintiff's loss of sensory neural hearing and it was necessary for his Honour to select one of them before he could proceed to award damages. In my opinion there are various reasons why this submission should be rejected. First the measurements were taken at significantly different times. That of Mr Keck was taken on 26 August 1987 and that of Dr Tamhane on 30 January 1989. Secondly, in his evidence Mr Keck said that it was up to an ear, nose and throat specialist to make UBRECTROLYTIC REFINING and SMELTING COMPANY OF AUSTRALIA LTD v JIMINEZ (Hope AJA) the final determination of how accurate bone conduction thresholds were. Bone conduction thresholds measure the extent of sensory neural loss of hearing. Thirdly, and indeed this appears to have been conceded by the defendant in submissions before this Court, the defendant is constrained in this appeal to make submissions on the basis of the higher of the readings, namely that of Dr Tamhane. And lastly, but possibly more importantly, the measurements taken by audiogram do not in themselves identify to a non specialist the extent of any loss of hearing. They must be translated into language which the non specialist understands and they were so translated. They were translated in two ways: first, in the evidence of the plaintiff and his wife, accepted by his Honour, as to the nature and extent of the plaintiff's loss of hearing over the relevant period; and secondly by his Honour's acceptance of the loss of hearing as a moderate social disability. I should perhaps add that in cross examination, Dr Tamhane said that a 5% sensory neural hearing loss would result in a social handicap. The loss found by Dr Tamhane was greatly in excess of 5%. I do not think that anything follows from his Honour's failure explicitly to identify which of the two figures given respectively by Mr Keck and Dr Tamhane he accepted. The second ground relied upon for the defendant is based on his Honour's reliance, in part, on what he said would be the worsening of the plaintiff's defecting hearing in the future. It was submitted that the evidence established that any future loss of sensory neural hearing would be the result of a new trauma or new traumas, or, as they were called in evidence, insults, to the inner ear. It was submitted that any such new trauma or traumas would give rise to a new cause of action, and that any loss resulting from such a trauma could not be included in the damages awarded in respect of the injury upon which the plaintiff sued in these proceedings. The evidence accepted by his Honour established that the plaintiffs hearing loss has grown worse gradually over the whole period from the inception of his industrial deafness right up to the time of the trial. As the plaintiff was only thirty-nine years of age, he was not yet suffering from presbycusis, which is a natural loss of acuteness of hearing gradually in the period past fifty to fifty-five years of age. When the plaintiff reaches that age, he will begin to suffer from presbycusis from a level of deafness occasioned by the traumas suffered by him as a result of his noisy work environment. However, quite apart from any question of presbycusis, the evidence was that the plaintiff intended to continue to work for the defendant until retirement. In the ordinary course of that work he will, in all probability, be subjected from time to time to noises which would exacerbate the loss of sensory neural hearing. In my opinion, any increase in the amount of sensory neural loss of hearing arising in this way could properly be regarded by his Honour as a continuation or extension of the damage caused by the injury upon which the plaintiff sued. He may have been entitled to bring separate actions in respect of each separate "insult" to his ears, but he was not required to. Indeed it is difficult to see what distinction is to be made in this regard between "insults" received between the commencement of the proceedings and the hearing concerning which no point is taken save for s149 - and "insults" received after the hearing. There remains the general question of excessiveness. It has been submitted that whether one takes into account the two particular issues of fact relied upon by the defendant or not, the amount awarded was so high that this Court should interfere and set the judgment aside. I have already described what his Honour found as to the loss suffered and to be suffered by the plaintiff. It should be borne in mind 6 UNREPORTED JUDGMENTS that the plaintiff's deafness is not something which occurs intermittently; it is with him all the time, and will be with him for the rest of his life. It was a substantial loss and will continue to be a substantial loss. In my opinion although the award might be regarded as on the high rather than the low side, there is no occasion for this Court to interfere with it. Accordingly, apart from any question arising as a result of the provisions of S149 of the Workers' Compensation Amendment Act 1987, I would dismiss the appeal with costs. I will now deal with the provisions of s149 of the Workers' Compensation Act 1987. The relevant amendments to the Act came into force on 30 June 1987, and it is submitted for the defendant that as a result of the provisions of subs(1) of the new s149, the plaintiff was not entitled to bring any action and thus not entitled to recover damages in respect of any loss of hearing caused as a result of further "insults" to his ears after 30 June 1987. $149(1) provides that a worker is not entitled to recover damages, otherwise than under the Act, from his employer in respect of an injury to the worker for which compensation is payable under the Act by the employer. Since the present proceedings were commenced before the Act came into force, it is necessary to have regard to the transitional provisions to be found in Schedule 6 to the Act. CLI of Ptl4 of the Schedule provides that s149 does not apply to a cause of action in respect of an injury received by a worker before the commencement of the section. CL2 provides that in the case of any such cause of action, the provisions of s63, s64 and s64A of the former Act continue to apply. It is thus necessary to see when, for the purposes of the Act, the plaintiff received his injury. S17(1) of the 1987 Act provides: "(1) If an injury is a loss, or further loss, of hearing which is of such a nature as to be caused by a gradual process, the following provisions have effect: (a) For the purposes of this Act, the injury shall be deemed to have happened (i) Where the worker was, at the time when he or she gave notice of the injury, employed in an employment to the nature of which the injury was due - at the time when the notice was given; or.... (2) Without limiting the generality of subs(1), the condition known as 'boilermaker's deafness' and any deafness of a similar origin shall, for the purposes of that subsection, be deemed to be losses of hearing which are of such a nature as to be caused by a gradual process." CLI of Pt2 of Schedule 6 provides that Pt2 of the Act applies whether the injury was received before or after the commencement of that Part. S17 is in Pt2 of the Act. It will be noticed that the provisions of s17(1)(a) are expressed to be "for the purposes of this Act", and not merely for the purposes of this "section" or "this Part". The provisions of s17(1)(a) thus apply to s149 and to Ptl4 of Schedule 6 to the Act. It is submitted for the plaintiff that having regard to these provisions, s149 does not apply in the present case, since the plaintiffs deafness, which falls within the scope of s17(2), is deemed, for the purposes of the Act, to have happened at the time when the plaintiff first gave notice of his deafness to the defendant. That notice was given, at the latest, at the time of the service of the statement of claim in the present proceedings in 1985. In my opinion there is substance in these submissions, and if it were necessary for a plaintiff to rely upon them he might well succeed. UBRECTROLYTIC REFINING and SMELTING COMPANY OF AUSTRALIA LTD v JIMINEZ (Hope AJA) It was further submitted for the plaintiff that the defendant has now raised, for the first time, an issue in respect of which evidence could have been led at the trial but concerning which no evidence was given by either party. It is clear, for example, that by possibility evidence could have been given by the plaintiff or the defendant as to the state of the plaintiff's hearing on 30 June 1987. It is then submitted for the plaintiff that the defendant should not be allowed now to raise this issue, and in addition, that if he wished to raise it, it would be necessary to plead it and to raise it as a ground of appeal, that neither course was adopted by the defendant, and that leave to amend should not now be given. Matters which a defendant is required to specify in his notice of grounds of defence are dealt with in Pt9 R9 of the District Court Rules. That rule provides that in a notice of grounds of defence the party pleading shall plead specifically any matter: (a) Which he alleges makes any claim, defence or other case of the opposite party not maintainable; (b) Which, if not pleaded specifically, may take the opposite by surprise;..." Ptl0 R1(4) of the District Court Rules provides: "(4) A defence shall not, at the trial of an action, except by consent of the plaintiff or by leave, given on terms, of the Court, set up any ground of defence not included in a notice of grounds of defence filed by him under this rule." The defendant submits that it is entitled to raise the point, even at this late stage. It submits that it cannot waive the provisions of s149, that it was not necessary to plead those provisions, and, if it were necessary, it should be given leave to do so and to make an appropriate amendment to the grounds of appeal. If leave were granted, it concedes that there should be a new trial and that the prejudice to the plaintiff should be met by appropriate orders as to costs. Although the defendant has raised the question of s149 in the context of damages, in essence what it submits is that in respect of any increase of the plaintiff's deafness occurring as a result of traumas received after 30 June 1987, the plaintiff had no cause of action. It seems to me this is a matter which the defendant was required to plead by the provisions of Pt9 R9 of the District Court Rules, either as being a matter which the defendant alleges, so far as relevant, makes the plaintiff's claim not maintainable, or which, if not pleaded specifically, might take the plaintiff by surprise. The principles to be applied in considering whether to grant leave for an amendment are fairly well established. An important principle of general application was stated in the joint judgment of Gibbs CJ, Wilson, Brennan and Dawson JJ in Coulton v Holcombe (1986) 162 CLR 1 at 7: To say that an appeal is by way of rehearing does not mean that the issues and the evidence to be considered are at large. It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. The powers of an appellate court with respect to amendment are ordinarily to be excercised within the general framework of the issues so determined and not otherwise." At p 8 their Honours quoted a passage from the joint judgment of the Court in University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 at 483: 8 UNREPORTED JUDGMENTS "Tt is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principles to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so." It is true that at the time when the defendant originally filed its notice of grounds of defence, the Workers' Compensation Act 1987 had not been enacted. However at the trial in January 1989, it was given leave to file an amended notice of grounds of defence, and it did so. This new notice did not raise the question of s149. It had every opportunity to raise the section, but did not do so, and did not raise it until the eve of the hearing of the appeal. The amount at stake in the case is not large. That part of the damages which would be affected if the defendant's submissions on the construction and effect of s149 are correct is relatively small, and this circumstance, together with the delay that has already been entailed in bringing the proceedings and the appeal on for hearing, and the costs already incurred and the costs of a new trial, coupled with the considerations which the High Court referred to in the passages I have quoted, leads me to the conclusion that this is not a proper case in which leave to allow the issue to be raised should be granted. It follows that if it is relevant to consider the provisions of s149, the defendant should not be allowed to raise them in this appeal. However, it is my opinion that, as I have earlier indicated, the plaintiff was entitled, in these proceedings, to recover damages for any aggravation of his industrial deafness caused by traumas to his ears in the course of his employment by the defendant, even though those traumas occurred after the issue of the statement of claim or the hearing. Hence it would not be relevant to consider s149. Accordingly, the conclusion which I reached in relation to the appeal without regard to the provisions of s149 is in my opinion the conclusion which should be reached in the appeal. The appeal should be dismissed with costs. Counsel for the Appellant: RR STITT QC WP KEARNS Counsel for the Respondent: JA CRUMPTON QC P. ADAMS Solicitors for the Appellant: MAXWELL CONNERY and CO Solicitors for the Respondent: MAURICE MAY and CO