LEMINGTON COAL MINES LTD v COLLINS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SHELLER and COLE JJA, and SHEPPARD AJA 29 August 1997 [1997] NSWCA 189 Sheppard AJA This is an appeal from a judgment of a judge of the District Court (Gallen DCJ) given in an action for damages for personal injury. The amount of it was $37,988 which included interest comprising the sum of $1988. His Honour said that the plaintiff (the respondent before us) claimed damages from the defendant, his employer, for negligence up to 4pm on 30 June 1987 together with such further damage or loss to his hearing causally connected to the damage already sustained as at 30 June 1987. A claim for economic loss which had been earlier maintained was abandoned. The date, 30 June 1987, was the date when the then s149 of the Workers' Compensation Act 1987 took effect. It operated to abolish common law rights. Amendments effected by the Workers' Compensation (Benefits) Amendment Act 1989 restored common law rights retrospectively, but the provisions of s151G(4) provide for a deductible threshold of $36,000 for damages for non-economic loss. The restoration of common law rights does not assist the respondent in the present case because the amount of the judgment, overlooking the amount awarded for interest, is $36,000. At the hearing liability was in question. His Honour resolved this issue against the defendant (the appellant here). No appeal has been brought against that part of his Honour's decision. His Honour said that it was the respondent's contention that he was entitled to recover not only damages for the injury sustained by him during the period between February 1984 and 30 June 1987, but also for any further damage or loss to his hearing or for any aggravation of his condition of tinnitus connected to the damage already sustained as at 30 June 1987. In the submission of counsel for the appellant, a reading of his Honour's judgments (his Honour gave judgment in two parts, one on 9 May 1996 and the other on 22 May 1996) discloses that Gallen DCJ found that damages should be assessed to allow for injuries which had not been inflicted and torts which had not been committed at the cut-off date (30 June 1987) but had occurred thereafter and which might occur in the future. On that basis his Honour. so counsel said, in the judgment delivered on 22 May 1996, allowed damages for injuries which he found were inflicted after June 1987. There is no question but this appears to have happened. Counsel for the appellant contends that his Honour was in error in taking the course he did. In the course of his reasons, his Honour referred to the decision of this Court in Electrolytic Refining & Smelting Company of Australia v Jiminez (Court of Appeal, 26 June 1991, unreported). The Court in that case consisted of Mahoney JA, Priestley JA and Hope AJA. The judgment of the Court was written by Hope AJA. Gallen DCJ quoted three passages from that judgment. The first was as follows (see at p10): 2 UNREPORTED JUDGMENTS "However, quite apart from any question of presbycusis, the evidence was that the plaintiff intended to continue to work for the defendant until retirement. In the ordinary course of that work he will, in all probability, be subjected from time to time to noises which would exacerbate the loss of sensory neural hearing. In my opinion, any increase in the amount of sensory neural loss of bearing arising in this way could properly be regarded by his Honour as a continuation or extension of the damage caused by the injury upon which the plaintiff sued. He may have been entitled to bring separate actions in respect of each separate 'insult' to his cars, but he was not required to. Indeed it is difficult to see what distinction is to be made in this regard between 'insults' received between the commencement of the proceedings and the hearing - concerning which no point is taken save for s149 - and 'insults' received after the hearing." The second and third passages cited from the judgment make up the last paragraph of it. It is as follows (see at p16): "Tt follows that if it is relevant to consider the provisions of s149, the defendant should not be allowed to raise them in this appeal. However, it is my opinion that, as I have earlier indicated, the plaintiff was entitled, in these proceedings, to recover damages for any aggravation of his industrial deafness caused by traumas to his ears in the course of his employment by the defendant, even though those traumas occurred after the issue of the statement of claim or the hearing. Hence it would not be relevant to considers 149." Gallen DCJ also referred to the decision of the Court of appeal in Hobbs v Costain Australia Ltd (Court of Appeal 9 February 1995, unreported). The Court consisted of Kirby P and Handley and Cole JJA. Having referred to some remarks made by Cole JA, Gallen DCJ said that he understood the principle enunciated by what his Honour had said to be that if, as a result of an injury, a plaintiff suffers consequences which occur or are likely to occur in the future, it is proper to compensate the plaintiff for those consequences. After some further discussion his Honour said that this approach to the assessment of damages was, in his opinion, not any different from that employed in assessing damages for injuries of all kinds where evidence of the consequences of the particular injury upon the plaintiffs future is taken into account. It was then that he referred to Jiminez. In relation to that case his Honour expressed his puzzlement as to how a court could take into account traumas occurring after the hearing. He said that he assumed that Hope JA referred to traumas which the evidence up to the hearing suggested would, in the future, probably occur. He said that evidence had been given as to the way in which the plaintiff was exposed to noise up to 30 June 1987. He said that he needed the transcript to ascertain if, in fact, the plaintiff was subjected to traumas which occurred in the course of his employment after 30 June 1987. Accordingly be broke off the judgment which he was delivering and after considering the transcript resumed his judgment on 22 May 1996. As mentioned the earlier part of it had been delivered on 9 May 1996. In what his Honour said on 22 May 1996 he referred to the earlier segment of the judgment in which he had indicated that he would examine the evidence with a view to ascertaining whether there was evidence which would justify him in finding that there was evidence of aggravation of the damage caused "by the defendant's negligent conduct after 30 June 1987" or any evidence of traumas which would have aggravated the damage already done to the plaintiff's hearing at that date. URJ LEMINGTON COAL MINES LTD v COLLINS (Sheppard AJA) 3 His Honour said that the plaintiff continued to be employed by the defendant in circumstances where he was still exposed in his work to noise. When the plaintiff commenced his employment with the defendant in 1984, he thought that it was more probable than not that he had already suffered a loss of bearing as a result of being exposed to noise during his employment before then by persons other than the defendant. He said, however, that he was satisfied that the plaintiff was not then aware of the loss and that he first became aware of his hearing loss in about May 1987. His Honour went on to discuss the evidence which there was about the extent of the bearing loss which he found to amount to a moderate social disability. He said that he was of opinion that it was more probable than not that the increase in the measured loss demonstrated by the tests carried out subsequently in 1987 had been caused by the inadequacy of the hearing protection provided to the plaintiff by the defendant. He said no deduction had been made to take into account presbycusis (the lessening of the acuteness of hearing that occurs with advancing age). The reason for this was that the plaintiff at the time was 47 years of age. His Honour concluded that it was more probable than not that the plaintiff had suffered a moderate, high frequency sensorineural bearing loss in both cars and tinnitus which he commenced to suffer in 1990. He went on to make his assessment of damages. In the submission of counsel for the appellant (the defendant) the appeal raises the question whether the respondent (the plaintiff) was entitled to recover damages for further injury suffered by him or likely to be suffered by him after the date upon which "he elected" to cut off his claim. Counsel referred to Neall v Watson (1960) 34 ALJR 364 where the High Court said (at p367): "\..... a defendant is liable only for the harm his negligence causes, not for harm later ensuing from the operation of a new and independent cause. If a man who is injured is thereby made more vulnerable to injury in the future that will count in assessing damages. But this does not mean that increased vulnerability is to be compensated as if it were an actual wounding." The Court went on to say that it became necessary to consider what were the actual consequences of the accident and whether his Honour made an adequate award for them. Counsel in the present case then referred to Hobbs v Costain earlier mentioned and to Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485. A particular matter which the Court considered was the discount which should be applied for contingencies when assessing damages for loss of earning capacity. In the course of their judgment, Dawson, Toohey, Gaudron and Gummow JJ said (at p498-p499): "Tt is necessary to say something of susceptibility to further injury. It is not permissible in assessing the chance that an earlier injury may have resulted in impaired earning capacity to have regard to the possibility of further tortious injury. That possibility must be disregarded because, in the event of further injury, damages would be assessed, as in this case, by allowing for any pre-condition resulting in or having the possibility of resulting in impaired earning capacity. Only by disregarding the possibility of further tortious injury does the law ensure full compensation." Counsel for the appellant then referred to the judgment of this Court in ABI Group Ltd v Loguch (Court of Appeal. 10 February 1997, unreported). It is to be observed that the decision was given after his Honour's judgment under appeal in the present case. The plaintiff suffered from industrial deafness in both ears. The extent of the loss was assessed in July and December 1992 at 15 per cent. 4 UNREPORTED JUDGMENTS He was employed by the defendant from 1981 until December 1989 operating noisy earthmoving equipment without adequate hearing protection. Prior to 1981 he operated earthmoving equipment for other employers also without adequate hearing protection but his work then was not as noisy as it became when he was employed by the defendant. After 11 December 1989 until the trial he operated noisy earthmoving equipment for another employer. The trial judge held that the defendant was liable for the totality of the plaintiff's hearing loss assessed in 1992 because sensorineural deafness progresses arithmetically, not geometrically. Every insult accumulates upon the last until human speech cannot be heard. Had the defendant acted reasonably, the diminution of his hearing capacity might well have been arrested and he might well have remained one of those whose hearing, whilst not perfect, was nonetheless functional. His Honour said that since he had worked in the mines and taken precautions, the only evidence was that two years apart two tests had shown almost the same deficiency. He thought that that consistency appeared to indicate that, with care, the plaintiff was not, as he well might have been, "getting much worse". After reviewing the evidence Handley JA drew the inference that a significant part of the plaintiff's hearing loss occurred after 11 December 1989. He said (at p5) that in those circumstances the assessment had to be set aside. Later Handley JA said (at p6) that his conclusion did not mean that the damages in the case were limited to the effects as at 30 June 1987 of the plaintiff's then hearing loss. That loss, to the extent that it was caused by the defendant, would have made the plaintiff more vulnerable to further losses due to industrial noise. His Honour said that the plaintiff was entitled to damages for that increased vulnerability in accordance with the principles established in Neall v Watson (supra). His Honour quoted the passage which has been earlier cited. His Honour added (at p7) that the loss tortiously caused by the defendant would also have made the plaintiff more vulnerable to the effects of age-induced deafness which, as a result, would have a greater impact on him. The plaintiff was entitled to damages for this added vulnerability. Handley JA referred to Hobbs v Costain Australia Ltd (supra) and said (at p7) that that case decided that damages were recoverable for a plaintiff's increased vulnerability due to losses tortiously caused where the evidence supports an award upon that basis. It did not support the view propounded for the respondent at the trial and accepted by the trial judge that a pre-30 June 1987 tortfeasor was liable for all subsequent losses. No reference was made in the judgment of the Court of Appeal in Loguch to the decision of the High Court in Wynn nor to the earlier decision of this Court in Jiminez. Both counsel agreed that Jiminez was wrongly decided but there is a question whether their assumption in this respect is correct. It will have been noted that in the second of the quoted passages from his judgment in that case, Hope AJA said that it followed that, if it were relevant to consider the provisions of s149, the defendant should not be allowed to raise them in the appeal. His Honour said what he did in order to dispose of an application by the appellant to rely on an additional ground of appeal based on s149 of the Act as a bar to the recovery of part of the damages, they being concerned with the consequences of further insults to the plaintiff's hearing which had occurred after 30 June 1987. Hope AJA concluded that the appellant, ie the defendant in the case, should not be allowed to take the point. However, in what followed, he said that it was his opinion, as he had earlier indicated, that the plaintiff was entitled to recover URJ LEMINGTON COAL MINES LTD v COLLINS (Cole JA) 5 damages for any aggravation of his industrial deafness caused by traumas to his ears in the course of his employment by the defendant even though those traumas occurred after the issue of the statement of claim or the hearing. For that reason he thought that it would not be relevant to consider 149. It is that part of the judgment which I confess makes it difficult to perceive why the judgment is not in conflict with the decisions of the High Court and the other decisions of this Court to which reference has been made. Nevertheless, I would prefer to leave the question whether Jiminez itself was correctly decided to a case in which that question directly arises for consideration and is fully argued. What is clear is that the way the matter was approached by his Honour in the present case was erroneous. It was not in accordance with the authorities particularly Loguch, which, in fairness to his Honour, had not been decided at the time he gave his judgment. What his Honour did was to take into account the consequences of further injuries or insults to the respondent's (ie the plaintiff's) hearing which occurred in the course of his employment after 30 June 1987 or which may have been expected to occur as a consequence of the continuation of that employment. The law is clear that a plaintiff will be compensated for the actual consequences of an injury including those which may be anticipated as likely to occur or which may possibly occur. But what is to be emphasised is that they must be the consequences of the injury upon which the plaintiff's cause of action is based. They may not be the consequences of other injuries distinct from that in respect of which the action is brought. Amongst the matters which it is proper to consider particularly in cases of this kind is the fact that the original injury may make the plaintiff more vulnerable to further injuries of a similar kind. That is a matter which it is appropriate to take into account. His Honour's award was not so restricted. He purported to compensate the respondent for further and distinct insults which themselves either did or could cause injury to the respondent's bearing. The appeal should therefore be allowed. I have considered a submission made by counsel for the respondent to the effect that the amount of the reduction which would be involved would be so small as not to require the Court's interference. This is not at all clear to me and I would reject the submission. Unless the parties can reach an agreement as to the amount of damages the unfortunate consequence of all this is that the matter must be remitted to the District Court for a new trial limited to the question of damages. The appellant should have its costs of the appeal but the respondent will be entitled to a certificate under the Suitors' Fund Act. The costs of the first trial should abide the outcome of the second. I propose the following orders: 1. Appeal allowed 2. Judgment of Judge Gallen of 22 May 1996 set aside. 3. Matter remitted to the District Court for new trial limited to damages. 4. The respondent to pay the appellant's costs of the appeal but to have a certificate under the Suitors Fund Act. 5. Costs of the first trial to abide the outcome of the second. Sheller JA I agree with Sheppard AJA. Cole JA I agree with Sheppard AJA. 1. Appeal allowed 6 UNREPORTED JUDGMENTS 2. Judgment of Judge Gallen of 22 May 1996 set aside. Matter remitted to the District Court for new trial limited to damages. 4. The respondent to pay the appellant's costs of the appeal but to have a certificate tinder the Suitors Fund Act. 5 5. Costs of the first trial to abide the outcome of the second. »