ABI GROUP LTD v LOGUCH [1997] NSWCA 5

ABI GROUP LTD v LOGUCH SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE and HANDLEY JJA, and GILES AJA 19 and 21 November 1996, 10 February 1997

[1997] NSWCA 5

DAMAGES — assessment of common law damages for hearing loss — causation.

WORKERS' COMPENSATION — assessment of common law damages for hearing loss — Workers Compensation Act 1987 (NSW) s151G(4) — Workers Compensation (Benefits) Amendment Act 1989 (NSW).

EVIDENCE — failure to call evidence on hearing loss — Jones v Dunkel.

EVIDENCE — admission of new evidence on appeal — Supreme Court Act 1970 (NSW) s75A(8) — not appropriate for Court to guess where precise evidence would be available at a retrial.

The plaintiff, who was aged 48, was employed by the appellant between 1981 and 8 December 1989. He made a claim for damages for deafness caused by exposure to noise in his employment prior to 4 pm on 30 June 1987 when common law rights were abolished by the Workers Compensation Act 1987 (NSW).

Common law rights were retrospectively re-introduced by the Workers Compensation (Benefits) Amendment Act 1989 (NSW), but no claim was made by the plaintiff upon this basis.

The evidence before the trial Judge was that the plaintiff had sustained approximately 3% hearing loss prior to commencing work for the appellant, and also suffered further hearing loss after leaving employment with the appellant in 1989. His hearing loss was assessed in July and December 1992 at 15% and 15.1% respectively.

The plaintiff was successful in obtaining general damages of $50,000, $10,000 for future economic loss and $6,000 for interest, on the basis that the appellant was liable for the whole of his hearing loss.

There was also evidence available to the respondent of the results of hearing tests taken after he left the employment of the appellant, which he did not call.