WOLSTENHOLME v COAL AND ALLIED OPERATIONS PTY LTD [1998] NSWCA 265

WOLSTENHOLME v COAL AND ALLIED OPERATIONS PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, STEIN JJA and SHEPPARD AJA 1 June 1998, 12 June 1998

[1998] NSWCA 265

NEGLIGENCE — industrial deafness — causation — preference between expert evidence

Priestley JA I agree with Stein JA.

Stein JA This is an appeal from a decision of Mahoney DCJ of 3 March 1995 entering a verdict for the defendant/respondent to the appeal. It was an industrial deafness case and his Honour found against the plaintiff/appellant on the issue of causation. He did so on the basis of expert evidence. His Honour preferred the evidence of Dr John Seymour, a specialist practitioner dealing in hearing disorders, over that of an audiologist, Mr Keck. His Honour also accepted the evidence of Dr Dhasmana, a witness on the plaintiffs side, to the extent that his opinion accorded with Dr Seymour.

The question on causation was whether the plaintiff's exposure to noise levels at his admittedly noisy workplace with the respondent, caused or materially contributed to his hearing loss, which was, for the most part, in his left ear. It was the plaintiff's case that it did. The defendant submitted that the hearing loss was caused by a severe fall from a horse on 7 November 1982.

In respect of the fall from the horse the trial judge said:

On 7 November 1982 the plaintiff had a very serious horse fall from a horse he was subjecting to what I might describe as a "test ride" before buying. He was rendered deeply unconscious by the severity of the fall. He remained unconscious for a long time. When his unconsciousness was resolving he even called his wife of several years by a wholly incorrect name - not just a mispronunciation of her correct name.

It should be observed that the plaintiff had no damage to his hearing when he commenced work with the defendant in November 1981. The fall from the horse occurred a year later and it was in 1983 that he started to notice a hearing loss. This was confirmed by audiograms taken in November and December 1984, which revealed a 4.1% and 10.2% hearing loss in the left ear.