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. The relevant portion of his Honour's reasons for judgment commences at 12 of those reasons and extends to 23. Those pages appear between at 830 and 841 of the appeal book. I shall not attempt either to repeat or to summarise what appears in those pages but will assume that his Honour's reasons for judgment, and in particular that part of his Honour's reasons for judgment, will be available to be read together with these reasons. The appeal has been argued on both sides in a manner which appropriately directs attention to the essential issue concerning which the appellant seeks to challenge Moore DCJ's reasoning. That is the issue of causation. 2 UNREPORTED JUDGMENTS Moore DCJ found that the respondent was an honest witness and that there was abundant evidence, including the evidence of the respondent himself, medical evidence and evidence of audiometric testing to establish that the respondent has suffered a substantial hearing loss. The pattern of that loss is another matter and one to which further reference will need to be made. Furthermore, there was no serious question about the fact that from the time he commenced employment with the appellant the respondent was obliged to work in a very noisy work environment. He was in fact provided with ear muffs from the time he went to work for the appellant, although there was evidence on the basis of which Moore DCJ found that the ear muffs he was supplied with were inadequate, that there was a failure to carry out proper testing whilst he was working in this noisy environment and that there was a failure to provide him with adequate instruction as to steps that could be taken to minimise his exposure to harmful noise. There was evidence accepted by Moore DCJ that at the time he commenced his employment with the appellant the respondent had no noticeable hearing difficulties. There was also evidence, which was accepted, to the effect that after he had been working for some years for the respondent he was suffering serious social and other disadvantages as a result of his hearing problems. The challenge to the trial judge's reasoning on the issue of causation may be summarised as follows. Audiometric testing showed what was said to be a distinctive and unusual pattern of hearing loss suffered by the respondent. In brief, he suffers an extreme hearing loss at the 1.5 kilohertz frequency range and a marked but not extreme hearing loss between the 3 to 6 kilohertz range. The case which the appellant sought to make out at trial included the proposition, expounded in the course of expert evidence called on behalf of the appellant, that such a pattern of hearing loss was inconsistent with noise induced deafness. That was a theory expounded in particular by the expert witness Mr Challis. On the other hand, the plaintiff's expert, Dr Fernandes, said on more than one occasion in his evidence that he had no hesitation in concluding that the respondent's loss was noise induced, notwithstanding the somewhat unusual pattern revealed by the audiometric testing. For reasons given in his judgment, which appear to me to be perfectly adequate, Moore DCJ accepted the evidence of Dr Fernandes. He also noted that the issue of causation had to be determined in the following factual context, part of which has already been mentioned. The respondent undoubtedly worked in a very noisy environment in his employment with the appellant. He undoubtedly manifested serious hearing loss after he had been working for the appellant for a substantial time. He manifested no hearing loss before he came to work for the appellant. Finally, it is to be observed that one only reaches the issue of causation after having found negligence on the part of the appellant. So in a situation where we have failure on the part of the appellant to provide proper protection to the respondent against industrial deafness, absence of any hearing problems before coming to work for the appellant, work for the appellant in a noisy environment, and then substantial hearing loss manifested by the respondent, on the face of it the case for the respondent on the issue of causation appears plausible and persuasive. URJ ELECTRICITY COMMISSION v KIRKMAN (Cole JA) 3 It was well open to Moore DCJ on the evidence to accept the opinion of Dr Fernandes that the pattern of the audiometric testing was not inconsistent with noise induced deafness. It was also open to his Honour to accept, as he did, that both the loss at the 1.5 kilohertz level and the loss at 3 to 6 kilohertz level was noise induced. There was evidence that many years before commencing employment with the appellant the respondent had been involved in an incident where he had fired about eight gunshots which had made a very loud noise. It was suggested on behalf of the appellant that this might have been the noise which induced the respondent's hearing problems. Moore DCJ considered and rejected that theory and no error has been shown in his process of reasoning in that regard. The only other possibility that was suggested as the origin of the respondent's deafness was that it was autogenous. No other particular cause was advanced as an explanation. In my view no error has been shown in the conclusion reached by Moore DCJ that all of the hearing loss suffered by the respondent was causally connected with the negligence which he found against the appellant. There was a further argument advanced in this appeal on behalf of the appellant to the effect that if we were to conclude that there was demonstrated causation but only as to part of the deafness, then on that account the amount of damages should be reduced. But, for the reasons that I have given there is no occasion to pursue that line of reasoning. Having regard to the findings that were well open to the trial judge, it appears to me that the amounts of money awarded to him by way of damages were well within the range of a proper discretionary judgment. I would propose that the appeal should be dismissed with costs. Meagher JA I agree. Cole JA I also agree. Gleeson CJ: The order of the Court is that the appeal is dismissed. Appeal dismissed with costs. COUNSEL: APPELLANT: CP Locke RESPONDENT: B Robison SOLICITORS: APPELLANT: PC Sistrom (Solicitor to the Commission) RESPONDENT: Maurice May and Co