BATES v ELECTRICITY COMMISSION OF NEW SOUTH WALES [1999] NSWCA 111

New South Wales Court of Appeal CITATION : BATES v ELECTRICITY COMMISSION OF NEW SOUTH WALES [1999] NSWCA 111 FILE NUMBER(S) : CA 40156/97 HEARING DATE(S) : 22 April 1999 JUDGMENT DATE : 22 April 1999

BATES PARTIES : v ELECTRICITY COMMISSION OF NEW SOUTH WALES JUDGMENT OF : Handley JA at 1; Giles JA at 2; Fitzgerald JA at 3

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : DC 4/94 (Singleton) LOWER COURT JUDICIAL OFFICER : Gallen ADCJ

COUNSEL : Appellant - B S Robison & J A Loxton Respondent - C P Locke SOLICITORS : Appellant - Maurice May & Co, Sydney Respondent - Goldrick Farrell Mullan, Parramatta CATCHWORDS : WORKERS COMPENSATION - safe system of work - whether hearing loss attributable to noise. DECISION : Appeal dismissed with costs.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40156/97 DC (Singleton) 4/94 HANDLEY JA GILES JA FITZGERALD JA

Thursday, 22 April 1999

David William BATES v ELECTRICITY COMMISSION OF NSW trading as PACIFIC POWER

JUDGMENT

1 HANDLEY JA: I agree with Fitzgerald JA. 2 GILES JA: I agree with Fitzgerald JA. 3 FITZGERALD JA: This is an appeal by an unsuccessful plaintiff, David William Bates, whose claim for damages against his former employer, the Electricity Commission of New South Wales, was dismissed by a District Court judge on 4 December 1996. 4 After leaving school in 1974 aged 14 years, the appellant worked as a labourer for three years and then as a boner in an abattoir for two years. Between 1980 and 1985, he worked for various employers as a boiler maker, welder or crane driver. He commenced employment with the respondent as a cleaner/labourer at its Liddell power station on 22 February 1985 and remained there until he retired with a redundancy package in November 1995. Since January 1996, he has conducted his own furniture removal business. 5 Briefly summarised, the appellant's claim is that the respondent negligently failed to provide him with a safe system of work in that it failed to protect him from the effects of noise to which he was exposed in the course of his employment. He alleged that the noise in the period between the commencement of his employment on 25 February 1985 and 30 June 1987 caused hearing loss and tinnitus. Damages were claimed for those injuries and their effects and consequences subsequent to 30 June 1987. 6 There was considerable noise in the appellant's workplace, and, when he commenced his employment, he was provided with ear muffs and ear plugs, which he regularly wore. It did not emerge whether similar protective equipment was available to the appellant in his earlier employment, some of which would also have had noise associated with it. 7 The appellant first noticed a loss of hearing and tinnitus in about 1990, and gave evidence that both subsequently worsened. On 20 July 1993, he was examined at the Newcastle Audiology Centre, and a report dated 4 August 1993, by an audiologist, Mr Ross Wolven, was tendered. Another audiologist, Mr David Keck, examined the appellant and carried out tests on 9 November in the same year. Both audiologists expressed the opinion that the appellant had suffered a high frequency sensorineural hearing loss in both the left and right ears. The tests carried out by Mr Wolven revealed a hearing loss in the left ear of approximately 80 decibels and in the right ear of about 25 decibels at a frequency of 4,000 hertz. The tests carried out by Mr Keck revealed a hearing loss of 100 decibels in the left ear and 70 decibels in the right ear at the same frequency. Mr Keck expressed the opinion that the appellant was suffering a moderate to severe social disability at the time when he tested him. Dr Charles Finlay-Jones examined the appellant and carried out tests on 1 December 1994. His report dated 19 December 1994, which was tendered by the appellant, indicated that there was a 6% loss of hearing in the left ear and 1.5% loss in the right ear. Dr Finlay-Jones' opinion was that the appellant had a mixed hearing loss caused by industrial noise. 8 Another audiologist, Mr Louis Aron Challis, whose evidence was adduced by the respondent, expressed the opinion that the appellant had a dramatic and serious sensorineural hearing loss but that it was not attributable to his employment with the respondent. In the opinion of Mr Challis, the ear plugs and ear muffs which had been provided by the respondent to the appellant would have adequately protected him from the noise to which he was exposed in the respondent's employment, and there was no justification for attributing his hearing loss to his work for the respondent any more than to his prior employment. Mr Challis pointed out that the lack of symmetry in the hearing loss between the left and right ears would not normally result from industrial noise exposure. In Mr Challis' opinion, the appellant's hearing loss is attributable to medical degenerative factors which have not been identified. 9 So far as presently material, the trial judge's brief reasons for dismissing the appellant's claim appear in the following passages: "I came to the conclusion that [the appellant] had sustained a hearing loss as a result of exposure to noise, … the evidence could not satisfy me that the hearing loss demonstrated in Mr Keck's report was attributable to exposure to noise, and as a result [I] came to the same conclusion as Mr Challis as to the presence of a medical factor not demonstrated in the evidence. … … in coming to the conclusion that there should be a verdict for [the respondent] I do so on the basis that I am not satisfied that the hearing loss sustained by [the appellant] occurred in the period claimed in the statement of claim, and I am not satisfied that there is a causal connection between that hearing loss and any hearing loss which may have been sustained by [the appellant] after 30 June 1997." 10 Although a number of matters were raised in the notice of appeal and the appellant's written submissions, Mr Robison, with commendable frankness, informed this Court that there was only one point on which he could hope to succeed. That point depended on the finding of the trial judge that the appellant had sustained a hearing loss as a result of his exposure to noise and his Honour's omission to refer to evidence given by Mr Keck that it was "highly likely there'd be some hearing loss" in the material period. Broadly described, Mr Keck's thesis was that it was possible to estimate the effects of industrial noise in the period between 25 February 1985 and 30 June 1987 from the hearing loss which existed when he tested the appellant on 9 November 1993, which the thesis at least implicitly attributed to industrial noise during the entire period of the appellant's employment by the respondent up to the date of testing. 11 However, as noted above, the trial judge was not satisfied that "the hearing loss demonstrated in Mr Keck's report was attributable to exposure to noise", meaning, in context, that the whole of that hearing loss "was attributable to exposure to noise". That being so, there was no need for his Honour to consider the attribution of part of that hearing loss to the period between 25 February 1985 and 30 June 1987. The rejection of the proposition that "the hearing loss demonstrated in Mr Keck's report was attributable to exposure to noise" removed the foundation for the thesis to which Mr Keck's evidence attributing part of the loss of hearing to industrial noise in the material period was related. 12 It follows that the appellant's only argument fails and his appeal should be dismissed with costs. __________________ I certify that this and the preceding 5 pages are a true copy of the reasons for judgment herein of the Hon Mr Justice Fitzgerald and of the Court.