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: "Typically noise induced hearing loss is bilaterally symmetrical." Notwithstanding those views of Dr Carroll, the trial judge stated that he had reached his conclusion on causation not because of the view Dr Carroll had expressed but, because of the inherent contradiction in the plaintiff's medical evidence. It is to that I now turn. Mr Keck, who is an industrial audiologist, had conducted an audiogram in April 1992 in which he had found a difference in the monaural hearing loss between the left and the right ear. His findings were that the appellant had a 10.4 per cent monaural hearing loss in the left ear and a 0.4 per cent monaural hearing loss in the right ear. Mr Keck gave oral evidence in the matter in which he was cross-examined as to why there was a difference in the hearing loss between the two ears. During the course of that cross-examination he gave the following evidence: 2 UNREPORTED JUDGMENTS "Q [A]s you look at the audiograms, and in the absence of the opinion of any ear, nose and throat surgeon, would you agree that what you see of Mr Bernardin suggests that he does not suffer noise induced hearing loss but rather some other conductive conditions. A I believe that the point four per cent loss in his right ear is consistent with noise induced trauma. I was of the opinion that an ear, nose and throat specialist would find some other cause for the difference between the left and the right ear, but I would be prepared to attribute some of that left ear to noise induced trauma." Upon further questioning about that matter, Mr Keck gave evidence that the percentage of hearing loss in the left ear to which he would attribute to noise induced trauma was the same as that in the right ear, namely 0.4 per cent. He conceded that a binaural 0.4 per cent loss would be such as to amount to a zero per cent loss on the standard NAL tables. In further cross-examination about the discrepancy between his left and right ear hearing loss, he again stated that he thought that something would emerge from the report of the ear, nose and throat specialist "but ''ve been proved wrong". Before I refer to the specialist ear, nose and throat report to which Mr Keck referred in that evidence, it is noteworthy that at that point Mr Keck's evidence is consistent with Dr Carroll's evidence. Namely that the auditory impairment would not be attributable to any occupational noise exposure except to the most minimal extent, which would not be reflected on the tables. The ear, nose and throat specialist to whom Mr Keck referred was Dr Fernandes. It appears that Mr Keck referred the appellant to Dr Fernandes in June 1992. In his report of 15 June 1992 Dr Fernandes reported that the result of his audiogram testing was that there was a nil monaural hearing loss in the right ear and a 20.9 per cent hearing loss in the left ear. In response to a section of his report, which seems to be a pro forma style report, he put the word nil next to the statement other relevant findings. Under a conclusion, which he entitled impression, he stated left sided noise induced hearing loss. It was also reported in Dr Fernandes report that the appellant suffered occasional low pitched tinnitus. Counsel for the appellant, of course, relies upon Dr Fernandes' report to seek to prove that the appellant's hearing loss in his left ear was noise induced and thereby was a loss for which the respondent was liable. The difficulty with that is, however, that the appellant relied upon both Mr Keck's evidence and Dr Fernandes' evidence at trial. That evidence is, as the trial judge considered, inherently contradictory to the extent that Mr Keck sought to explain why it might be that the appellant suffered a differential hearing loss in the left and right ear. He did so on a basis which was not supported by the evidence in this case. I cite three examples to explain what I mean by that. He said, firstly, that it is possible for a person to have what is termed a hard ear on one side and a soft ear on the other which could account for a difference in a hearing loss over time. He also said that it was possible that a person could be exposed on one side only to noisy conditions and that might account for the hearing loss being more pronounced on one side than the other and, thirdly, he gave evidence that there could be a specific trauma which could account for such differentiation. There was no evidence, in this case on behalf of the plaintiff/appellant, that he satisfied any of those explanations. URJ BERNARDIN v COSTAIN AUSTRALIA LTD (Sheller JA) 3 In those circumstances it was open to the trial judge not to be satisfied in relation to causation. That is sufficient to dispose of the appeal, which I would dismiss. There are, however, two other matters. On the crucial issue of the causation of the hearing loss there were credit problems associated with the appellant's evidence, in so far as there was contradictory material as to when he first suffered from tinnitus. In his evidence he stated that that had begun sometime between 1984 and 1986. However, he stated in relation to one of the routine hearing examinations conducted by the Joint Coal Board in 1991, that he had answered that he did not ever suffer from ringing noises in the ears. Also, it was submitted that the trial judge was wrong in requiring the appellant to satisfy the onus of proof by giving an appropriate explanation as to why it was that he might suffer a differential hearing loss. I see nothing wrong in the way his Honour dealt with the judgment. I confirm that I consider that the appeal should be dismissed with costs. Mason P IJ agree. Sheller JA I also agree. Mason P: The appeal is dismissed with costs.