BERNARDIN v COSTAIN AUSTRALIA LTD [1998] NSWCA 38

BERNARDIN v COSTAIN AUSTRALIA LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P, SHELLER and BEAZLEY JJA 1 June 1998

[1998] NSWCA 38

Beazley JA This is the plaintiff's appeal from a decision of Shadbolt DCJ in which his Honour entered a verdict for the defendant/respondent in respect of a claim for damages for injuries received in the form of industrial deafness alleged to have occurred as a result of the negligence of the defendant.

His Honour was satisfied that the appellant had established that the respondent had breached its duty of care to the appellant. His Honour was not satisfied, however, that the hearing loss of which the appellant complained was caused by the negligence of the defendant. It is that finding that the appellant challenges on this appeal.

In coming to this conclusion his Honour stated that he was not satisfied in respect of causation because of the:

"inherent contradiction in the plaintiff's medical evidence, coupled with the certain evidence that the plaintiff's left ear, for whatever reason, was already diminished when he went to the defendant's employ."

There was no challenge in respect of that last matter, that is, the diminished hearing in the plaintiff's left ear at the time of the commencement of the employment.

Before dealing with his Honour's finding as to the plaintiff's medical evidence, it is useful to refer to the medical evidence which was adduced on behalf of the respondent. A report of Dr Raymond Carroll, ear, nose and throat surgeon, dated 10 January 1996 was tendered in evidence on behalf of the respondent. Dr Carroll had available to him, for the purposes of the assessment which he made, a report of an audiogram conducted by Mr Keck on 28 April 1992.

Dr Carroll concluded that he would not attribute any of the appellant's auditory impairment to occupational noise exposure. In reaching that conclusion, he had made a number of comments in relation to the audio testing which had been earned out by Mr Keck but he also made reference to the fact that the appellant's hearing loss was not symmetrical in each ear and he said at page 3 of his report: