Henry Walker Eltin Contracting Pty Ltd v Hrstic

CITATION:	Henry Walker Eltin Contracting Pty Ltd v Hrstic [2005] NSWCA 253
HEARING DATE(S):	15 June 2005
JUDGMENT DATE:	4 August 2005
JUDGMENT OF:	Hodgson JA at 1; Basten JA at 2; Burchett AJA at 44
DECISION:	Appeal dismissed with costs.

CATCHWORDS:	Negligence - causation - onset of persistent tinnitus - multiple possible causes - medical evidence inconclusive - whether finding on the balance of probabilities open - Non-economic loss - section 151G of the Workers Compensation Act 1987 - "a most extreme case"
LEGISLATION CITED:	Workers Compensation Act 1987 Supreme Court Act 1970
CASES CITED:	March v Stramare (E&MH) Pty Ltd (1991) 171 CLR 506 Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307 Wilsher v Essex Area Health Authority [1988] AC 1074 Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720 Southgate v Waterford (1990) 21 NSWLR 427 Dell v Dalton (1991) 23 NSWLR 528 Franklins Ltd v Burns [2005] NSWCA 54 Rabay v Bristow [2005] NSWCA 199 House v The King (1936) 55 CLR 499
PARTIES:	Henry Walker Eltin Contracting Pty Ltd (Appellant) Kreso Hrstic (Respondent)
FILE NUMBER(S):	CA 40585/04
COUNSEL:	R. Seton SC/D. Stanton (Appellant) C. Barry QC/K. Andrews (Respondent)
SOLICITORS:	Phillips Fox (Appellant) Sowden Akerman (Respondent)

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 13331/01
LOWER COURT JUDICIAL OFFICER:	Puckeridge J

CA 40585/04
DC 13331/02

HODGSON JA
BASTEN JA
BURCHETT AJA

4 August 2005

HENRY WALKER ELTIN CONTRACTING PTY LTD v HRSTIC

This is an appeal from a judgment of the District Court awarding damages to Mr Hrstic and finding that his then employer, Henry Walker Eltin Contracting Pty Ltd (the Appellant), was negligent in failing to provide Mr Hrstic with a safe system of work.

Mr Hrstic was employed as a project manager in a mine, which required him to work in an environment with unsafe noise levels. While he had worked in the mining industry for some 28 years and had developed tinnitus and had suffered hearing loss prior to his employment with the Appellant; during his employment with the Appellant the tinnitus became permanent.

The issues for determination by the Court of Appeal included:

(i) whether Mr Hrstic established that the onset of persistent tinnitus was caused by the exposure to unsafe noise levels during his employment with the Appellant; and

(ii) whether the trial judge erred in finding that the severity of Mr Hrstic’s injury was 30% of a most extreme case.

Held as to (i)

Per Basten JA (Hodgson JA and Burchett AJA agreeing)

:

1. Where science does not provide an explanation as to the link between a putative causative factor and a result, the question of causation must ultimately be seen as involving a question of satisfaction of the burden of proof.

2. It was open to the trial judge to be satisfied on the balance of probabilities that the exposure to excessive noise levels…