CITATION: LAMINEX (AUSTRALIA) PTY LTD v SMEETH [1999] NSWCA 462 FILE NUMBER(S): CA 40008/98 HEARING DATE(S): 22 September 1999 JUDGMENT DATE:
15 December 1999PARTIES :
LAMINEX (AUSTRALIA) PTY LTD v JOHN CRAWFORD SMEETHJUDGMENT OF: Mason P; Meagher JA; Beazley JA
LOWER COURT JURISDICTION: Supreme Court - Common Law Division LOWER COURT FILE NUMBER(S) : CLD 11594/93 LOWER COURT JUDICIAL OFFICER: Dowd J
COUNSEL: Appellant: J D Hislop QC and G M Watson
Respondent: D A Wheelahan QC and E G RomaniukSOLICITORS: Appellant: McCulloch & Buggy
Respondent: Scott Sheils & Glover by their agents VerekersCATCHWORDS: Employee's negligence - hearing loss - dispute between experts whether attributable to accident - delay in delivering judgment - absence of findings on critical issues - unsatisfactory basis for preferring one expert over another - uncertainty as to whether proper allowance made for pre-existing condition - new trial ordered DECISION: Appeal allowed - new trial ordered
THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL1 THE COURT: The appellant employed the respondent at a timber processing plant at Wagga Wagga between 17 March 1986 and 21 December 1990. 2 The respondent brought proceedings in the Common Law Division. He sought damages with respect to three work injuries:
CA 40008/98
15 December 1999
MASON P
MEAGHER JA
BEAZLEY JA
LAMINEX (AUSTRALIA) PTY LTD
v JOHN CRAWFORD SMEETHJUDGMENT
3 The proceedings were commenced in 1993 and heard in March 1996 with judgment being delivered in October 1997. There was a further hearing on 10 December 1997, resulting in amended orders. 4 The appellant challenges the award of damages with respect to hearing loss. It disputes its responsibility for the respondent’s acknowledged hearing difficulties. And it challenges the quantum of damages awarded. 5 The appeal came on for hearing on 25 May 1999 before a differently constituted Court. The hearing was adjourned to enable enquiry to be made about the reasons leading to the amended final orders. When located, they led to a cross-appeal. The matters urged in support of the cross-appeal are also relied upon in support of the submission that the appeal should in any event be dismissed because the sum ultimately awarded can be justified (cf Robinson v Riley [1971] 1 NSWLR 403).
• A laceration to the left wrist on 11 May 1987, for which there was an award of $6,000 plus $900 interest;
• An injury to the left knee on 10 February 1988, for which no damages were awarded because the thresholds imposed by the Workers Compensation Act 1987 (the Act) were not met;
• Loss of hearing in the right ear sustained on 30 September 1988, for which $567,996.10 was awarded.
6 Each side expressed concern based upon the delay that has occurred in bringing this matter to completion. The respondent’s concerns are obvious, given that he is still awaiting final determination of proceedings commenced in May 1993. But the appellant also complains of delay and its impact.…
Appellant’s challenge based upon undue delay
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Details
- Case
- [1999] NSWCA 462
- Decision Date
CaseChat Overview and Summary
Laminex (Australia) Pty Ltd appealed to the New South Wales Court of Appeal against a judgment of the District Court of New South Wales. The dispute concerned a claim by the respondent, Mr Smeeth, for damages for hearing loss, which he alleged was caused by an accident at work.
The Court of Appeal was required to determine whether the primary judge had erred in finding that the respondent's hearing loss was attributable to the accident, and whether the primary judge had made proper allowance for any pre-existing condition. The court also considered whether the delay in delivering the judgment and the absence of clear findings on critical issues rendered the original decision unsatisfactory.
The Court of Appeal found that the primary judge's preference for one expert's opinion over another was not adequately explained, particularly given the conflicting expert evidence on the cause of the hearing loss. Furthermore, the court noted that it was uncertain whether the primary judge had made appropriate deductions for any pre-existing hearing loss. Consequently, the court concluded that the original judgment was based on an unsatisfactory foundation.
The appeal was allowed, and a new trial was ordered.
The Court of Appeal was required to determine whether the primary judge had erred in finding that the respondent's hearing loss was attributable to the accident, and whether the primary judge had made proper allowance for any pre-existing condition. The court also considered whether the delay in delivering the judgment and the absence of clear findings on critical issues rendered the original decision unsatisfactory.
The Court of Appeal found that the primary judge's preference for one expert's opinion over another was not adequately explained, particularly given the conflicting expert evidence on the cause of the hearing loss. Furthermore, the court noted that it was uncertain whether the primary judge had made appropriate deductions for any pre-existing hearing loss. Consequently, the court concluded that the original judgment was based on an unsatisfactory foundation.
The appeal was allowed, and a new trial was ordered.
Orders
Orders of the court
Appeal allowed - new trial ordered
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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