MOSS v COMMONWEALTH OF AUSTRALIA [1994] NSWCA 210

MOSS v COMMONWEALTH OF AUSTRALIA SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, MEAGHER and HANDLEY JJA 14 October 1994, 14 October 1994

[1994] NSWCA 210

DAMAGES — INDUSTRIAL DEAFNESS — PERCENTAGE LOSS INDUSTRIAL DEAFNESS — deterioration of hearing during employment — no clear evidence of percentage loss — damages to be assessed by reference to effect on appellant.

The appellant's hearing deteriorated while he was employed by the respondent but there was no clear evidence of the percentage loss of hearing. The trial judge awarded damages for industrial deafness. Held: it was necessary for the trial judge to approach the assessment of damages by reference to the effect of the increased deafness upon the appellant. On this approach, damages awarded would have been greater, the appropriate figure being $20,000.

ORDERS

1. Judgment below set aside, except as to costs.

2. Judgment in the sum of $24,000 to take effect from the same date, inclusive of interest.

3. Costs of the appeal to be borne by the respondent.

Priestley JA In this appeal the appellant is a former employee of the Commonwealth who began work at Garden Island dock yard in 1980 at the age of 55. He worked there for ten years. During that time his hearing deteriorated. He claimed that this was caused by negligence and breach of statutory duty on the part of his employer. This claim was upheld by his Honour Judge McLachlan of the District Court in proceedings begun during the appellant's employment in 1984 and decided in 1993.

The Judge awarded $12,000 to the appellant on account of the industrial deafness attributed to his employment.

The appellant has brought his appeal on the ground that this award is manifestly too low.

The problem the trial judge faced in assessing damages was that although it appeared fairly clearly from the evidence that the appellant had suffered some loss of hearing during his employment at the Garden Island dock yard, it was also fairly clear that before his employment commenced, in the course of a long working life in noisy work places, he had previously suffered some impairment to his hearing and the evidence was not at all clear about the extent to which the deterioration of the appellant's hearing was due to his employment with the respondent.