BISHOP v ELECTRICITY COMMISSION OF NSW [1996] NSWCA 50

BISHOP v ELECTRICITY COMMISSION OF NSW

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

HANDLEY JA, SHELLER JA and POWELL JA

16 May 1996

[1996] NSWCA 50 DAMAGES — negligence — causation — no question of principle.

The appellant worked for the Electricity Commission from 1 August 1967 until December 1988 in a generally noisy environment without hearing protection. The trial judge found that he did not suffer appreciable deafness, but did suffer from significant tinnitus. However he held that the appellant had failed to establish a causal connection between the proved breach of duty and tinnitus. Tinnitus is present in 50% of industrial deafness cases, but is also present in cases where there is no industrial or similar deafness. The appellant contended that the Court should find that there was such a causal connection.

HELD, dismissing the appeal: (1) Where the association in time and place is sufficiently close and dramatic a tribunal of fact may draw the inference of causation without positive scientific support: Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538; Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720; (2) In the present case however no such association has been established.

Handley JA. This is an appeal by a plaintiff who failed in an action against his former employer, the Electricity Commission, to recover damages for hearing difficulties alleged to have been caused as a result of his exposure to industrial noise.

The trial judge found that the plaintiff genuinely suffered from significant tinnitus but was not persuaded that he suffered from any appreciable deafness. He found that the Electricity Commission had employed the plaintiff continuously from 1 August 1967 until December 1988 in a generally noisy environment and had failed to take reasonable care to protect his hearing from noise-induced damage. He nevertheless found that the plaintiff had not discharged the onus of proving the necessary causal connection between the proved breach of duty on the part of the employer, and the tinnitus.