THE ELECTRICITY COMMISSION v KIRKMAN [1995] NSWCA 141

ELECTRICITY COMMISSION v KIRKMAN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

GLEESON CJ, MEAGHER and COLE JJA 15 September 1995, 15 September 1995 [1995] NSWCA 141

NEGLIGENCE — CAUSATION — industrial deafness — whether caused by failure to provide safe system of work — no error in finding.

NEGLIGENCE — CAUSATION The respondent sued his employer for negligence, claiming he suffered industrial deafness as a result of failure to provide a safe system of work. The respondent succeeded at first instance and was awarded $50,600 by way of damages. On appeal the issue was causation — HELD — There was no error in the trial judge's finding on that issue. No question of principle involved.

ORDERS Appeal dismissed with costs.

Gleeson CJ The respondent to this appeal, who was the plaintiff in the Court below, sued his employer, the appellant, for damages for personal injuries alleged to have been suffered by reason of the negligence of the appellant. It is unnecessary to go into details of the kind of negligence alleged. It suffices for present purposes to say that it was claimed that the appellant failed to provide a safe system of work and a safe working environment. The nature of the personal injuries suffered by the respondent was described in summary form as industrial deafness.

The matter came on for hearing before his Honour Judge Moore in the District Court. For reasons that are not entirely clear the hearing lasted over many days and ultimately his Honour entered a verdict for the respondent/plaintiff in the sum of $50,600 together with costs. That award, or verdict, was made up of the following components.

Having found that the respondent had made out his case on liability and was entitled to damages, Moore DCJ assessed general damages at $50,000. However, by reason of some legislative provisions, the detail of which is not presently material, his Honour was constrained to reduce that award to the sum of $35,000. The second component was interest for eight years at 2 percent, which amounted to $5,600, and the third component was what was described as a cushion against future loss of earnings, the cushion being in an amount of $10,000.