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. As a result of these difficulties, the Judge found himself obliged to conclude his reasons for judgment by saying: "Tt is for the plaintiff to satisfy me on the balance of probabilities that his hearing suffered a deterioration during the period of employment. I am satisfied that it did but I am unable to point to a percentage loss in either ear - on the evidence". In one sense this statement by his Honour was justified. There was before him a considerable amount of expert medical evidence and expert evidence relating to measurement of hearing loss but despite the quantity of the evidence, it did not 2 UNREPORTED JUDGMENTS yield any clear percentage difference in the mechanical test results, if the logical starting and finishing points were looked at, those being the year in which he commenced his employment with the respondent and the year in which he finished. Efforts were made both at the trial and in the appeal, to put the best complexion on this evidence in the mechanical sense; that is it was argued, more particularly at the trial than here, that a satisfactory percentage difference based on the audio grammatical testing could be arrived at. In my view that was not possible as the evidence was left. If the right approach to assessing the amount of damages which should be allowed to the appellant because of his hearing loss was one which had to take as its starting point some relatively clear evidence showing the percentage loss he had suffered during the course of his employment, then I do not think there would be any ground for criticising the trial judge's approach and result. However, in the course of the appeal today it was put to the Court for the appellant that such an approach is not the appropriate approach. There was material in the appeal books of an expert kind which when explained to us by the appellant's counsel today, seemed to me to show fairly clearly that while the availability of precise percentage figures at the appropriate dates would have been of assistance to the trial judge, nevertheless such material is at best only of assistance to the essential and somewhat different inquiry into the effect on a plaintiff of the degree of industrial deafness, suffered in the course of employment, on that particular plaintiff's life and enjoyment of life. It was further explained and the explanation seems to me to be a sound one, that when a person with a hearing deficit commences employment which makes that hearing deficit worse, there is no direct relation between the increase in the deficit during the employment, when expressed in percentage terms by some method of testing, and the effect of that deterioration upon the person's perception of his or her deafness and the quality of his or her life. In comparative terms, although the increase in the degree of deafness caused by the employment, expressed as a percentage following mechanical testing, may be less than the comparable percentage loss already suffered at the time of the commencement of the employment, it can have a much greater effect on the person suffering that increase than the person either noticed or was affected by before the employment began. For the assessment of damages, it seems to me the proper enquiry is to ask what effect the increased deafness had upon the person claiming damages. That way of looking at the matter does not seem to have been adopted by the trial judge. It was both available to him and also it seems to me to have been necessary for him to approach his assessment of damages by reference to that question. It was common ground in the appeal that the trial judge had accepted the appellant as a truthful witness. The trial judge's description of the effect upon the appellant of his deafness was in these terms: "As to the hearing loss after starting at Garden Island in July 1980 he said that he first noticed it whilst working on the Hobart and he went to have a hearing test in 1981. The plaintiff said that he also suffers from tinnitus which takes the form of a hum. He has had a hearing aid for the last year or two. He hears the hum if he takes the aid on both ears off. As to his deafness generally he said that he needs URJ MOSS v COMMONWEALTH OF AUSTRALIA (Priestley JA) 3 to turn the TV up and has a special implement on the telephone. The family is used to him and they just speak louder". That is a very brief summary by the trial judge of what the appellant had said in his evidence. It is sufficient however for me to make the point that had the trial judge approached the assessment of the appellant's damages by asking himself, in light of the available medical and other expert evidence and looking at the effect upon the appellant of the change in the degree of deafness which was caused by his employment, what should his damages be, I think he would inevitably have arrived at a larger figure than he did arrive at, on the basis which he used, and would have arrived at that larger figure even on the rather limited findings which I have just read, as being his summary of the appellant's evidence. My reason for saying I think the amount would have been larger had he approached it in what in my opinion is the appropriate way, is based upon my own general awareness, and here I am using phrases from Planet Fisheries v La Rosa, of current general ideas of fairness and moderation, this awareness being a product of my own general experience, which as it happens includes experience of a direct kind, of cases in this general area. Based on that general experience it is my view that for industrial deafness of the kind established in the evidence in this case, caused to the extent to which it was caused by the negligence and breach of duty of the defendant, the level of damages awarded is quite significantly higher than that exemplified in the figure chosen by his Honour in this case. Bearing in mind that even on the approach that I am taking there is still a good deal of vagueness about the extent of the hearing loss attributable to the employment, nevertheless guiding myself by the fact that prior to the employment with the respondent, the effect of his deafness on the appellant was very much less than the effect his increased deafness had upon him both during and at the conclusion of his employment, it is my view that an appropriate figure for the damages is $20,000. My conclusion therefore is that the trial judge's judgment should be set aside, except as to costs, and in place of it, and to take effect from the same date, there should be judgment for an amount of $24,000 inclusive of interest. The costs of the appeal should be borne by the respondent. 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. Counsel for the appellant: BS Robinson Solicitors for the appellant: Maurice May and Co Counsel for the respondent: D Staehli Solicitors for the respondent: Australian Government Solicitor