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. The submission on behalf of the appellant comes down to this. His Honour's preference for Dr Seymour's opinion over that of Mr Keck was vitiated or somehow infected by his excessive reaction to the plaintiff's period of loss of consciousness after the fall from the horse. It is said that it was wrong of his Honour to speak of the plaintiff being rendered 'deeply' unconscious or to find that he 'remained unconscious for a long time'. This is claimed to be inconsistent with notes from the Royal Newcastle Hospital of the plaintiff's history of 'immediately unconscious for 15 mins', and Dr Seymour's reference to the plaintiff being unconscious for 'something like 24 hours'. From an examination of the relevant evidence, it is impossible to be precise about the plaintiff's unconsciousness. It is likely that he was unconscious for a number of hours. It is possible that he regained consciousness at one stage, only 2 UNREPORTED JUDGMENTS to relapse back into a state of unconsciousness. It is undisputed that when he was regaining consciousness, he called his wife by the wrong name. On being cross-examined about his reference to '24 hours', Dr Seymour said that anything from 4 to 24 hours unconsciousness 'would be considered bad'. The duration of the head injury would make cochlea damage more likely. Importantly, Dr Seymour made it plain that a fall from a horse causing 'severe head injury' could, in any event cause hearing damage. The reference to 'severe head injury' is to the diagnosis of the Royal Newcastle Hospital (AB 817 J). Dr Dhasmana was of a like opinion. His report states: 'There is a history of head injury [the fall from the horse] and this probably has caused some hearing loss in the left ear'. In the circumstances of the evidence from the doctor, which it appears that his Honour accepted, the length of the unconsciousness of the plaintiff may be of limited relevance. Moreover, his Honour reasoned why he chose between the expert evidence. In preferring Dr Seymour and Dr Dhasmana, to Mr Keck, it cannot be said that he erred. Further, it inevitably followed from his Honour's preference that the plaintiff had not made out his case on causation. There remains one matter which was faintly argued by counsel for the appellant. If the horse injury was the initial cause of the plaintiffs hearing loss, the damage was exacerbated and materially contributed to by his exposure to excessive industrial noise in the years following the fall while he remained in the respondent's employ. It is not apparent that this was argued before Mahoney DCJ. His Honour did not deal with it in terms in his reserved judgment. What is apparent is that the deterioration, if there was such, was slight and, in any event, may not sound in damage. One of the plaintiff's difficulties is that, while there was damage to his left ear, there was little or no evidence of damage to his right ear. According to Dr Seymour, the possibility of monaural hearing loss from exposure to industrial noise was 'extremely rare' unless explained by one sided noise source not here relevant. His Honour accepted Dr Seymour's evidence of 'the strongly held view that monaural deafness is not due to industrial noise exposure' adding 'in short, he denied that any work caused hearing loss had occurred'. In the light of that finding, open on the evidence, the alternative submission of the appellant must be rejected. The appeal should be dismissed with costs. Sheppard AJA In this matter I have had the advantage of reading the judgment to be delivered by Stein JA. I agree in the orders which he proposes and with his reasons. Appeal dismissed with costs. Counsel for the appellant: B S Robison Solicitors for the appellant: Maurice May & Co Counsel for the respondent: J D Hislop QC/ G M Watson Solicitors for the respondent: Sparke Helmore