ATKINSON v COSTAINS AUSTRALIA LIMITED SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL MEAGHER JA, POWELL JA and BEAZLEY JA 22 May 1997 [1997] NSWCA 28 EMPLOYMENT — NEGLIGENCE — NOISE INDUCED HEARING LOSS — FINDING OF FACT BASED ON CREDIBILITY. Meagher JA. This is an appeal against the decision of Bell J of the District Court of New South Wales delivered 18 June 1996. A verdict was found for the defendant Costains Australia Pty Limited and the unsuccessful plaintiff was one Henry Atkinson. Mr Atkinson alleged Costains had by its negligence as his employer caused him noise induced hearing loss by its exposure of him to loud industrial noise in the course of his employment. It is common ground that he was employed as a plant operator by Costains in August 1971 and was continuously employed until he retired in July 1985. It is also common ground that before his employment by Costains he had been employed in circumstances which exposed him to loud industrial noise from about 1946 until 1971. It was his task, and a very difficult task, to prove that Costains had either caused or contributed to his hearing loss, there being again no question but that at the time he retired he did suffer a considerable hearing loss. To this end his representatives brought a large amount of scientific and medicalevidence. The net result of which, as Mr Robison I think very fairly admitted in argument today, was not to advance the plaintiff's case. The trial judge then took into account the plaintiff's own version of what noise he suffered and when. He eventually came to the conclusion after very careful consideration of the evidence that the plaintiff had not proved that the defendant employer had caused or contributed to any hearing loss. That is not only a finding of fact but a finding of fact based on credibility. When I say credibility it is not in any sense that his Honour found that the plaintiff was lacking in voracity, it was simply that his age had prevented him from possessing a reliable memory. But be that as it may, the plain fact is he gave evidence of what happened and the judge found that he was not convinced by that evidence. In those circumstances there is nothing this court can do, and the appeal must be dismissed with costs. Powell JA. I agree. Beazley JA. I agree. Meagher JA. The order of the court therefore is the order I proposed. Orders accordingly. Counsel for the appellant: B S ROBISON 2 UNREPORTED JUDGMENTS Solicitors for the appellant: MAURICE MAY and CO Counsel for the respondent: J D HISLOP QC/G M WATSON 5 Solicitors for the respondent: SPARKE HELMORE