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. The question for the trial judge was thus whether the appellant had satisfied the onus of establishing that any hearing loss in fact suffered was due to exposure to the respondent's workplace noise, or was due primarily to the blow suffered to his 2 UNREPORTED JUDGMENTS jaw in January 1987. Having regard to the unreliability of the appellant the trial judge was not satisfied that the onus had been discharged. The substantial contention on appeal was that the trial judge had failed to consider and find that the appellant was suffering from a work induced hearing loss prior to January 1987, and that the blow to his jaw in that month aggravated and made more noticeable that hearing loss. On that basis, it was contended that the appellant was entitled to succeed. If one rejected Mr Keck's report which attributed the hearing loss primarily to the January 1987 blow to the jaw, the consequence must be that the probability was that the hearing loss observed in 1984 was work induced. There was no other reasonable explanation for it. That is so even though the appellant did not become aware of the hearing loss, on one view, until after the blow to the jaw in 1987. The trial judge said: "Tt does appear to me problematical as to whether or not the blow did cause the plaintiff to become aware. That seems to be quite inconsistent with what has been contended for. It has been contended that the plaintiff began to suffer symptoms as a result of noise induced hearing loss. Apart from Mr Keck's opinion there is no evidence, is there, as to the relationship between the blow to the jaw and the hearing loss?" The trial judge then proceeded to say that he had rejected Mr Keck's evidence. If the trial judge rejected Mr Keck's evidence, as it seems he did, that leaves an established hearing loss between 1978 and 1984. That established loss is against the background of the admission that the appellant was exposed work related noises which could cause hearing loss. Notwithstanding the trial judge's rejection of the appellant as a witness of credit, there was no suggestion of any other circumstances inducing the hearing loss other than work related noises, or the blow to the jaw in January 1987. If the trial judge rejected Mr Keck's evidence, as it seems he did, that the hearing loss primarily related to the blow to the jaw, it seems to me that on the balance of probabilities there was no alterative but to find that it was a work related hearing loss. On this analysis the causation issue should have been found in favour of the appellant. In those circumstances I am of the view that the appeal must be upheld, the judgment in favour of the respondent set aside and the matter remitted to the District Court for a new trial. The respondent should pay the appellant's costs of the trial and of the appeal but should have in respect of the appeal a certificate under the Suitors Fund Act if qualified. Sheller JA I agree. Sheppard AJA I also agree. The appeal is upheld. The judgement in favour of the respondent to be set aside, and the matter to be remitted to the District Court for a new trial. The respondent to pay the appellant's cost of the trial and of the appeal, and to have a certificate under the Suitors Fund Act in respect of the appeal, if qualified. Counsel for the Appellant: B S Robison Solicitors for the Appellant: Maurice May & Co Counsel for the Respondents: J D Hislop QC/G Watson Solicitors for the Respondent: Sparke Helmore