RANKMORE v DRAYTON COAL PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL HANDLEY, BEAZLEY, STEIN JJA 2 September 1997, 2 September 1997 [1997] NSWCA 258 No matter of principle Stein JA The appellant, Jeffrey Bernard Rankmore, appeals against a decision of Acting Judge Gallen delivered in the District Court on | November 1996. His Honour entered verdicts for the defendants in the proceedings which were heard together. In each case the appellant had sued for damages for negligence resulting from noise-induced hearing loss and tinnitus. He was employed by the respondent Blackwood Hodge Pty Ltd between 2 February 1981 and about April 1982. Although this is said in the evidence to be a period of around 17 months, it seems to be somewhat less. The respondent, Drayton Coal Co Pty Ltd, employed the appellant from August 1983 until 1994, although the period of the claim relates to August 1983 to 30 June 1987. Bearing in mind that the evidence took four days, the trial judge's reasons for judgment are exceedingly short. So brief are they, that I can conveniently reproduce the whole of his decision which is as follows. He said: I have examined the evidence that has been taken in this matter and I have come to a number of conclusions; one of them was that the plaintiff was not a reliable witness and I have found it necessary not to accept his evidence; unless it is otherwise corroborated. It seems to me that it is more probable than not that the plaintiff had suffered damage to his hearing long before he became employed by either of the defendants and it is apparent that, in giving his evidence, he exaggerated. His evidence was, on numerous occasions, inconsistent with and in conflict with, other evidence that was put forward in his own case. The medical evidence does not support the plaintiff's case which, essentially, was that he had suffered damage to his hearing between 1981 and 1987. Even the evidence put forward on behalf of the plaintiff, in the form of Mr Eden's report, does not support the plaintiff's case in some respects and there are, in the end, too many problems to overcome before one could accept that the plaintiff has discharged the onus which he bears. The attack on the judgment appears to be based upon an absence of reasons for findings against the appellant on credit and that he had, in all probability, suffered damage to his hearing before he was employed by either respondent. The appellant's written submissions on appeal submit that the judge gave no detailed consideration to, or weighing of, the medical and scientific evidence. It is suggested that the appellant's case is corroborated by audiograms of the Joint Coal Board. Further, his Honour gave no reasons for rejecting the appellant's evidence that he first noticed hearing problems while employed by Blackwood Hodge. As far as the allegation of failure to give reasons is concerned, it may be noted that no such ground was contained in the amended notice of appeal. It is not self-evident to me that leave should be granted at this very late stage. In any 2 UNREPORTED JUDGMENTS event, it seems to me that such an amendment would be futile, see Mahoney JA in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 271 C-D. In so far as reliance is placed on the audiogram dated 25 August 1983 to prove that the appellant suffered virtually no hearing loss before employment with Drayton, there was evidence before the court that this audiogram was aberrant and that the appellant had previously applied for and received worker's compensation on the basis of a hearing loss in both ears, see Dr Lindsay's audiogram in 1982. Indeed, read with the 1982 audiogram of Dr Lindsay, the 1983 JCB audiogram does seem quite out of kilter. In addition, the experts expressed the opinion that there had been no deterioration while at Drayton. For my part, I cannot see how it can be maintained that his Honour failed to take due account of the Joint Coal Board audiograms, especially that of August 1993. The respondents submit that although the judgment was short, it dealt with the necessary issues. These were the appellant's credit and the medical and scientific evidence upon which the appellant relied. Mr Hislop QC (appearing on behalf of Drayton) submits that credit was a crucial issue, bearing in mind the nature of the injuries alleged. He also points to the evidence of a scientific nature called in the appellant's case. This did not support his case. For example, that given by Eden Dynamics and Mr David Keck. According to counsel, it was these issues that decided the case against the appellant. This is undoubtedly so. From 1971 until February 1981, when the appellant commenced employment with Blackwood Hodge, he was working in environments of high to extreme industrial noise. He was an apprentice boilermaker from 1971 to 1974. Thereafter he worked as a boilermaker and in related trades until 1979, including at the Liddell Power Station. In these occupations he was exposed to high levels of noise. In an 18 month period between 1979 and 1980 he was a professional kangaroo shooter. Thereafter he continued to shoot for sport. He worked for Blackwood Hodge from February 1981 to about the middle of 1982 and claimed to have first experienced symptoms of hearing damage some months after starting work with it. After leaving Blackwood Hodge, the appellant gained employment with Leighton Contractors in 1982 as a fitter and welder. Thereafter, from August 1983, he was employed by the respondent Drayton Coal as a fitter and welder. In his evidence the appellant sought, not surprisingly, to blame all of his hearing problems on the present respondents. He down played the noise associated with the boilermaking work and denied it ever entailed noisy riveting. However, the evidence indicated that he had made complaints of 'metallic clanging' (at Muswellbrook in 1978) AB155E-N and also that Liddell was 'very noisy' (AB177M and 178R). Further, that he told Mr Keck that he had undertaken very noisy riveting inside ships between 1972 and 1976 (AB280U - 281M and 444Q). The appellant's case was that he had no hearing problems before Blackwood Hodge and could not recall any treatment. However, it became clear that he had received treatment by Dr Taranto in July 1978 (AB 647) as a result of being subjected to a severe noise incident at Liddell. In addition, he was referred to a specialist (Dr Leake) whom he saw in July 1978 and early 1979 and complained of 'clanging noises' at work. As I have said, the appellant was exposed to a severe noise incident at Liddell when a steam valve exploded near him. The medical evidence in reports from Dr Taranto and Dr Leake reveal that the appellant gave a history of complaints of noises irritating him more than ever since the incident, URJ RANKMORE v DRAYTON COAL PTY LTD (Stein JA) 3 of pain in both ears on a more or less continuing basis over a period of around 8 months, especially evident when exposed to loud high-pitched noises. The appellant was also at pains to diminish any noise exposure from shooting, recreational as well as professional. It appeared however that the weapons he used were more powerful than he had described in his evidence. Also, he denied any substantial use of pistols which was at odds with a history he apparently gave to Dr Leake. While he claimed only to have engaged in minimal shooting in recent years, he renewed his licences annually and told police he needed to use them every day (AB624-625). The appellant, in seeking to maximise his damages, exaggerated his hearing problems. Having described how his hearing problems interfered with almost every aspect of his life, it seems that from 1981 and over the next 10 years with Drayton, he attended a general practitioner on 33 occasions but never made any complaint about tinnitus or hearing loss. When he saw an ear, nose and throat specialist about a hoarse voice in 1982, he did not mention any hearing loss. Notwithstanding that he claimed to have begun suffering from tinnitus shortly after starting work with the respondent, he denied tinnitus to Mr Keck in May 1987, Dr Razmilic in April 1987 (AB449L) and to Dr Bear in August 1987 (AB671P). During lengthy cross-examination the appellant was repeatedly unable to remember facts and events which might be damaging to his case. According to counsel for the respondents, he claimed to be unable to recall on no less than 161 occasions. All this must inevitably lead to the conclusion that his Honour was completely justified to say that the appellant was not a reliable witness and that he did not accept his evidence, unless corroborated. His Honour was also entitled to find that the appellant's evidence was exaggerated and, on occasions, inconsistent and in conflict with other evidence in his own case. The judge found that on the probabilities the appellant suffered hearing damage long before employment with the respondents. This was a finding more than open to him on the evidence, including evidence tendered in the appellant's case, for example David Eden at AB467M. The trial judge was also correct in observing that some of the medical and scientific evidence tendered in the appellant's case did not support him. For example, Eden Dynamics concluded that the appellant 'probably suffered little or no hearing loss as a result of his noise exposure' from the respondent, Drayton (AB456T) and that hearing tests undertaken over the relevant period "do not conclusively show any deterioration' (AB467P). Mr Keck, an audiologist, thought that rifle fire might possibly explain some of the hearing loss and that, on the basis of serial audiograms shown to him, there was no deterioration between July 1982 and December 1987 (AB281X - 282H). In the circumstances of the evidence, the judge's finding on when the hearing loss occurred (that is, prior to employment with the respondents) and that he suffered little or no further hearing loss with the respondents', was one which was perfectly open and cannot be disturbed on appeal. Bearing in mind the very strong findings by the trial judge on the appellant's credit, well and truly justified on the evidence, the judgment is almost unassailable. It has not been shown that his Honour misused his advantage and, brief as his reasons were, they are sufficient to find against the appellant. In my opinion no error has been demonstrated. I would therefore propose that the appeals be dismissed with costs. 4 UNREPORTED JUDGMENTS Handley JA I agree Beazley JA I agree HANDLEY JA: The orders of the Court therefore are appeal dismissed with costs. Counsel for the Appellant: B S Robinson Solicitors for the Appellant: Maurice May & Co. Counsel for the Respondent 1: J Hislop QC & G Watson Solicitors for the Respondent 1: Sparke Helmore 15 Counsel for the Respondent 2: M Scott Solicitors for the Respondent 2: Hunt & Hunt (Newcastle)253545