IRWIN v COSTAIN AUSTRALIA PTY LTD [1997] NSWCA 162

IRWIN v COSTAIN AUSTRALIA PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SHELLER and COLE JJA, and SHEPPARD AJA 21 August 1997, 21 August 1997

[1997] NSWCA 162 No question of principle

Cole JA The appellant claimed in respect of an alleged hearing loss caused by his employer, being the respondent, during his employment which commenced in 1972. Although his employment continued beyond that date the claim was limited to the period ending 30 June 1987. It was admitted that the appellant was exposed to noisy conditions which could have caused a hearing loss. The issue at trial and on appeal was whether the element of causation had been established. Gallen DCJ was not satisfied that it had and entered a verdict for the defendant.

The plaintiff tendered reports on four audiometric tests. Those tests showed the following results:

1978 test Nil on CAL scale but at a frequency of 4000 cycles

a hearing loss in the right ear of 50 Db and in the left ear 15 Db.

1984 test At 4000 cycles a hearing loss in the right ear of 65 Db and in the left ear 10Db. This was stated to be a 7% loss of hearing in the right ear with no loss in the left ear.

August 1992 test Mr Keck found a 1.9% binaural loss. At 4000 cycles the right ear was tested with a 60Db loss and the left ear a 10Db loss.

These results cannot all be accurate. They show a hearing loss in the right ear between 1978 and 1984, but an improvement in hearing between 1984 and 1992. Hearing does not improve.

There was a further report of a Dr Finlay-Jones of August 1992 which the trial judge did not accept as it was based on an inaccurate history. Nonetheless the hearing test showed no loss in the left ear and a 1.2% loss in the right ear with a binaural loss of 0.24%. Each of the test results were after a prespycusis correction.

The trial judge found the appellant to be an unsatisfactory witness and there was evidence to support that finding. The appellant in a Joint Coal Board regular examination sheet had noted in 1984 that he had noticed a hearing loss. However he gave evidence that he first noticed a hearing loss in 1987. A complicating factor was that in January 1987, some five months prior to the closed period in respect of which the claim was brought, the appellant suffered a severe blow to the jaw on the right side. Mr Keck expressed the view in his August 1992 report that the loss of hearing in the right ear was due primarily to that blow, as was the tinnitus which the appellant said he noticed sometime thereafter.