SAGGUS v COSTAIN AUSTRALIA LTD [1997] NSWCA 272

SAGGUS v COSTAIN AUSTRALIA LTD SUPREME COURT OF NEW SOUTH WALES — CouRT OF APPEAL

MEAGHER, POWELL and BEAZLEY JJA 22 May 1997

[1997] NSWCA 272

Meagher J. In this matter there is an appeal by a disappointed plaintiff, Mr Saggus against Costain Australia Ltd whom I shall refer to as Costain. The plaintiff sued in the District Court of New South Wales when the matter came on before Mr Acting Judge Gallen who gave a verdict in favour of the defendant Costain.

The negligence alleged arose out of what was said to be noise-induced hearing loss and tinnitus. It is not in dispute that the plaintiff, Mr Saggus, was in fact employed by Costain Pty Ltd and it is not in dispute that employment was from 19 March 1979 until 7 December 1995.

It is not in dispute again that the plaintiff was relying on acts and admissions said to have occurred before 30 June 1987, nor is it denied that the plaintiff had been working from 1961 onwards in conditions of industrial noise. He was thus working for eighteen years in conditions of industrial noise before he was ever employed by Costain. At the end of the day, it was clear enough and there is no dispute about this, that there was some loss of hearing. On the scientific evidence, that loss of hearing is extremely small. His Honour came to the conclusion that he could not be satisfied that that loss of hearing, however small, was caused during the limited period selected by the appellant. Again, bearing in mind the usual rules about credibility, I do not see how the plaintiff can dislodge that finding.

As far as tinnitus was concerned, again it is extremely difficult to work out when the tinnitus was first noticed, that is because of the ambiguous nature of one of the medical reports. But if one assumes it was noticed at about 1984, there was no evidence, his Honour found, that the cause of it was in any way connected with the employment by Costain of the appellant. In these circumstances, his Honour's ultimate conclusion that the plaintiff had not made out a case either in respect of hearing loss or in respect of tinnitus is one which in my view this Court cannot dislodge.