Marc Antonio Rositano v the Commonwealth of Australia No. SCGRG 93/22 Judgment No. 4287 Number of Pages 8 Negligence
[1993] SASC 4287
•26 November 1993
COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA BOLLEN(1), LEGOE(2) AND MOHR(3) JJ
CWDS
Negligence - liability of master for injury to servant - Master and servant - negligence - allegations of noise induced deafness and tinnitus caused by work on stated occasions said to have been done near aircraft emitting very loud noise - finding that the appellant had failed to prove that his injuries had been so caused upheld. Limitation of Actions Act 1936s48. DeVries v Australian National Railways Commission (1993) 67 ALJR 528 at 531, applied. Stojkovski v Fitzgerald (1989) WAR 328, discussed.
HRNG ADELAIDE, 8 November 1993 #DATE 26:11:1993
Counsel for appellant: Mr S Walsh QC
Solicitors for appellant: Tindall Gask Bentley
Counsel for respondent: Mr D H Peek
Solicitors for respondent: Australian Government Solicitor
ORDER
Appeal dismissed.
JUDGE1 BOLLEN J In this appeal we heard a forceful, ingenious, and, indeed, interesting, argument from Mr Walsh QC, for the appellant. Nevertheless, at the end of this argument the Court was of opinion that the appeal should be dismissed. We did not call upon Mr Peek, for the respondent. The presiding Judge announced that the appeal was dismissed and that reasons would be given later. 2. The appellant was the plaintiff below. He was employed by the respondent. He is and was a civil engineer. In April 1978 in the course of his work he was testing the strength of the surface at the airport at Edinburgh. For a few days in 1981 he did the same work at the airport at Darwin. 3. On 30th June 1988 he issued his summons. He sought an extension of time for institution of proceedings. He sought this order "under" s48 of the Limitation of Actions Act. The defendant opposed the application. 4. In his summons issued out of the District Court the appellant claimed damages for injuries which he said were suffered in the course of his work and were caused by the negligence or breach of contract of the respondent. He asserted the usual things touching "fault" in an "employer's liability" case. 5. The injuries were deafness induced by noise and tinnitus. He alleged that the injuries were caused by noise which in turn came from aircraft. He was asserting that he had suffered noise induced deafness caused by the noise of aircraft together with the tinnitus. But it is important to notice that it was not a case in which continual or lengthy exposure to aircraft in general was said to have caused the injuries. Although that exposure was mentioned in the particulars in evidence the case came down to an allegation that three particular incidents caused the injuries. 6. The pleading was fairly general. In his Particulars of Claim the appellant alleged:-
"6. In the course of this said employment with the
defendant the plaintiff was required to attend at the Edinburgh
Air Base between the 8th and 21st April 1978 for the purpose of
testing runways and taxi strips. Further in or about March to
April 1981 the plaintiff was required to attend at the RAAF base
in Darwin for the purpose of testing runways and taxi strips.
7. In the course of carrying out the duties referred to in
paragraph 5 hereof the plaintiff was exposed to high levels of
noise emanating from any aircraft that were using the runways.
8. In consequence of the plaintiff's exposure to the noise
aforesaid between 1978 and in or about 1981 the plaintiff has
suffered a hearing loss and tinnutis (hereinafter called 'the
injury') incurred expense and suffered loss and damage." (The
reference to paragraph 5 in paragraph 7 must be taken to be a
reference to paragraph 6.) 7. Particulars were given. I quote from them extensively.
"1. Further and better particulars to paragraph 6 of the
Particulars of Claim: The plaintiff was directed by Mr David
Larmour to attend at the RAAF Base at Edinburgh for 'air field
evaluation'. The duties necessitated air field evaluation which
included the attendance of Mr Larmour and a grader driver. The
duties involved the driver towing a 50 ton trailer behind the
grader. The grader and roller would move slowly along the
pavements, aprons and runways being tested. David Larmour
walked on either side of the roller and the plaintiff walked on
the other side. Approximately every 5-10 yards Mr Larmour and
the plaintiff would look under the wheel of the roller to
undertake a visual classification of the movement of the
pavement under the weight. The job was done full-time eight
hours a day for approximately two weeks when every inch of
runway or pavement or apron at Edinburgh was tested. When a
plane approached the group would move over to a taxiway. The
driver had proper ear muffs. The plaintiff has pieces of cotton
wool and on other occasions I may have had the lighter portable
plastic muffs. David Larmour had large ear muffs with a radio
connected to the ear muffs. Mr Larmour was in contact with the
control tower. On one occasion a phantom jet approached towards
the three workers in a manner wobbling his wings at approach and
then approached the group as if it was attacking the group. The
pilot then lifted vertically and it appeared to the group
including the plaintiff that he was on full throttle. The
plaintiff was aware of a very loud noise. The ground almost
reverberated. That was one incident. On other occasions a
mirage jet was being tested. The group were approximately 50
yards from the jet. The sensation felt like a drill piercing
sensation was put through the plaintiff's ears. On other
occasions other planes would come through. The plaintiff felt
as though on occasions he could actually touch their wings.
Those two instances stood out in the two week period that the
group was at Edinburgh. Other jets and planes including Orions,
Hercules transport and other military planes attended.
2. The plaintiff then attended at the RAAF Base in Darwin for
about two months in or about March or April of 1981. The
plaintiff was present with Mr Graham Rogers and a driver of the
grader who was towing a 50 ton roller. On many occasions there
were passenger jets. The group had the occasional visit from
B52 bombers. The group including the plaintiff were on the
taxiways or on the main apron. The group did not go onto the
main runway at Darwin.
3. Further and better particulars to paragraph 7 of the
Particulars of Claim: The plaintiff was carrying out his duties
at the Edinburgh Air Base for a two week period eight hours per
day, seven days a week. In respect of the period in Darwin, the
plaintiff worked eight hours per day, seven days per week for
about ten days. The plaintiff was undertaking the duties at
Edinburgh Air Base under the instruction of Mr Larmour and at
Darwin by Mr Rogers. At Edinburgh Air Base the group was
approximately 10 metres away from jets that were continually
taking off. The plaintiff is unable with accuracy to detail the
frequency at Edinburgh. In respect of the incident at Darwin it
was a joint commercial and civilian airport and planes were
taking off at regular intervals. At times in Darwin the group
was relatively close to the runway although they were not
actually testing the runway. The noise was of a constant level
although it depended on the jets taking off. At other times the
noise varied depending on the position of the planes in relation
to the position of the group. The noise was not as loud when
the planes were taxiing. As the planes were taxiing the planes
were very close to the group." 8. The three instances - i) Phantom jet at Edinburgh (ii) Mirage jet at Edinburgh (iii) Jets at Darwin stand out, and as the case was fought, stood out in the evidence as the occasions when the injuries were sustained. Proximity to aircraft in general, although mentioned, was not the basis for the claim. 9. There was plenty of evidence to prove that the appellant suffered from deafness and tinnitus. The learned trial Judge dismissed his claim on the score of failure to prove causation. The learned trial Judge granted the extension of time sought but dismissed the action. 10. In my opinion, the learned trial Judge made accurate summaries of the evidence in his reasons. At the price of lengthening these reasons I think it well to set out much of the reasoning of the learned trial Judge. Recitation of passages defeats the suggestion offered by Mr Walsh QC that the learned trial Judge did not give adequate reasons. His Honour said:-
"The plaintiff says that on the first day of the work, he
was given cotton wool to put in his ears to reduce the noise of
the planes using the airfield and that, thereafter, during the
course of the work, he was provided with ear plugs. He says he
used the cotton wool and the ear plugs. He says that the man in
charge of the work, David Larmour, and the driver of the machine
pulling the trailer each were provided with, and wore, ear-muffs.
and leaving the airfield, there were two specific incidents, both
very noisy, which occurred; one involving a Phantom jet and the
other a Mirage jet; both military aircraft. The plaintiff says
that on one occasion, when the equipment they were using was parked
at the end of the runway and the team doing the work was standing
near it, a Phantom jet approached the airfield from the east,
flying at about 50 metres above the ground; that it passed over the
runway at that level; that, when it reached the position where
the plaintiff and the others were standing, it went into a
steep, vertical climb with its after-burner operating and
that it continued to climb until it disappeared from view.
The plaintiff says that the plane made a huge noise; that he
was stunned by the noise and had pain in his ears. He says
that he and the other workers discussed the incident at the
time and agreed that the plane was a Phantom jet. The
plaintiff says that, on another occasion, he was
working in an area near a concrete bunker in which planes were
tested; that is, a bunker where the engines in planes were
tested; and that a Mirage plane was parked in this testing area,
tied down and the engines revved to the full. The plaintiff
says that he was 20 to 30 metres away from the Mirage while its
engines were being tested and that the testing lasted for up to
30 minutes, during which time he remained in the same position.
He says that the noise was very loud; louder than the noise
emanating from the Phantom jet in the incident which I have just
mentioned and that it felt like a drill was being used in his
ears. He thought they would burst. He says he was wearing ear
plugs at that time and that he also put his hands over his ears.
The plaintiff says that the noise in these two incidents was
more severe than that caused by any other planes during the time
he was working at Edinburgh. The plaintiff's evidence as to
the events at Edinburgh, to a large extent, is in contrast to
that of David Larmour; the engineer in charge of the work.
Mr. Larmour, amongst other things, says that the work at
Edinburgh was performed from 4 April 1978 to 21 April 1978; that
work was carried out each day during that period except for 9
and 16 April; that the plaintiff worked on the first two days, 4
April and 5 April, for part of the day on 12 April and 13 April
and, perhaps, on 20 April; that the work was carried out
according to the schedule of planes arriving and departing; that
the work- party was not closer than 160 metres or so from the
planes as they landed and departed; that the incident described
by the plaintiff involving the Phantom jet did not occur and
that he does not recall that the engines of a Mirage jet were
tested in a bunker as described by the plaintiff, although he
does not deny that such an incident occurred. He further says
that ear muffs were usually supplied for this sort 6 of work,
although he has no actual recollection of whether they were
supplied on this occasion. He says that he did not supply the
plaintiff with cotton wool to put in his ears. He says that it
would be silly for someone to remain about 30 metres from a
Mirage jet while its engines were being tested. The plaintiff
says that when he worked at the Darwin Airport, he did the same
sort of work as he was doing at Edinburgh. He says he was
involved in the testing of taxi-ways and the parking area in
front of the hangars and that no testing working was done on the
runway. He says that the Darwin Airport was busier than the
Edinburgh Airport. He says that he was exposed to the noise of
passenger jets and military aircraft, including B52 Bombers, on
landing and taking off. He says that the noise from the B52
Bombers was particularly loud. He says that he was 50 to 100
metres from the runway when the planes passed. He says that he
was given ear plugs while the other man with whom he was
working, and who was in charge, Mr. Rogers, was wearing
ear-muffs. He says the worker lasted one to two weeks and that,
during this time, as planes passed along the runway, he was
exposed to the noise they emitted for three to four minutes.
Mr. Rogers gave evidence. He is an experienced engineer. He
says the work at Darwin Airport was done in two stages; one area
being tested in March 1981 and the other in July 1981. He says
the plaintiff assisted in the work in March; the work being
performed between 2 March and 13 March on five separate days.
He says the work was performed around the airport schedule. He
says it was quiet work and that he did not wear ear-muffs. He
says the work was performed at least 500 to 600 metres away from
the runway. He says that the closest he and the plaintiff would
have been to any aircraft using the taxi way was about 150
metres. He says no B52 Bombers took off or landed while he
worked at the airport on either occasion." 11. The contest between the parties appears from these passages. The plaintiff said that at Edinburgh there were two incidents, "the Phantom" and "the Mirage" (both military aircraft). It will have been seen that the appellant spoke of the "after-burner" of the Phantom being in operation. That caused "a huge noise". Of this, the learned trial Judge said that the witness Larmour said that the incident did not occur. Mr Walsh QC said that the evidence of Larmour was not so definite. It amounted to his not remembering such an incident. Larmour gave this evidence:-
"Q. There are specific incidents that Mr Rositano has
referred to in his evidence that he alleges occurred during the
course of work there. One is that you were working at the end
of the runway, I think it is marked on the plan, in that general
position, somewhere near the cross, in the centre of the circle,
and he noticed an incoming plane from the east flying low over
the hills. Can you recollect the range of hills in the east.
A. Yes.
Q. But you had not had any warning from the tower and the
plane was flying at speed directly at you and getting lower and
lower, as it approached, and then, when it was almost upon you,
it suddenly banked vertically, and, some distance above you,
turned on the after burners and produced an extremely loud
noise. Can you recall anything like that.
A. No.
Q. Do you think that is something you might have remembered,
after this time.
A. Yes, because the only time that I have ever seen an after
burner in operation is when an aircraft takes off, when they are
obliged to use full power.
Q. Mr Rositano says that the three of you, and he didn't
mention the other engineer, but the driver, you and himself had
a discussion at the time of the incident, naturally talking
about what had happened being an unusual event, and you also
talked about the type of plane it was, and you all agreed it was
a Phantom jet fighter. Do you remember that.
A. No." 12. That evidence, in my opinion, amounts to a flat denial of the incident of the Phantom jet. In answer to the question: "Can you recall anything like that?" Larmour said: "No". But he went on to say that he would have remembered. And he said why. He did not remember something which he would have remembered had it happened. This amounted to a denial of the happening of the incident. 13. The other evidence of an incident at Edinburgh speaks of the incident of the Mirage. The learned trial Judge made an accurate summary of the evidence of Larmour about this incident. His evidence throws great doubt on the accuracy of the evidence of the appellant. 14. Of the incident at Darwin the learned trial Judge made an accurate summary of the evidence of Rogers. That, too, throws great doubt on the accuracy of the evidence of the appellant. 15. Now, this evidence from witnesses called by the respondent was evidence that had to be weighed with or against the evidence of the appellant. The appellant had deafness. There was evidence from doctors to show that it was induced by noise. He worked at airports. Noise induced deafness of "sounds" like an injury caused by the noise of aircraft. But there was, as has appeared, evidence called which was capable of "defeating causation". As I have said, as the case was fought and largely by reason of the particulars given, the appellant took on the burden of proving the happening of one or more of these three incidents and proving that noise thus caused the injury. 16. Mr Walsh QC referred to the giving of particulars, to the presence of other witnesses (ie other than Larmour and Rogers) who were present at the airfield and to the knowledge which the appellant must have had that Larmour, Rogers and another person were all capable of being called as witnesses against him. How unlikely, said Mr Walsh, that the appellant would have been so silly enough to invent these three incidents. One can see the force of this argument. But the difficulty is that the leaned trial Judge did not believe the appellant. The learned trial Judge said:-
"I unhesitatingly prefer the evidence of Mr. Larmour and
Mr. Rogers to that of the plaintiff where-ever there is a
conflict between them. The plaintiff was a most unimpressive
witness. He is clearly hostile to the defendant over matters
not connected with this case. He had a selective memory. He
lacked candour. He struck me as being prepared to tailor his
evidence to suit what he perceived to be the best interests of
his case. I came away from his evidence with a distinct
impression that it could not be accepted as a reliable basis for
any findings of fact unless it was corroborated by other
reliable evidence or was on a topic which was not contentious.
The plaintiff's hearing was tested in a routine way at work in
the early part of 1988. He realised for the first time that he
had noise induced hearing loss. To be candid, I think what
happened was that when he first found he had a noise induced
hearing loss as a result of those tests at work he saw an
opportunity to obtain some financial gain from the defendant;
but that is a matter of some speculation. It is true that he
was exposed to the noise of the aircraft at Edinburgh and
Darwin, but he has not satisfied me that it was anywhere near
the level claimed by him; or anywhere near the level, or over
the time required, so as to be likely to put him at risk of
thereby sustaining some loss of hearing; as the evidence of Drs
Tomich and Vercoe and Mr. Cook, the acoustic technician, shows.
The evidence falls well short of establishing the necessary,
relevant causal connection between his work at Darwin and
Edinburgh, on which he based his case, and his noise induced
hearing loss and tinnitus. His claim must therefore fail." 17. And really, in this case, that is that. They are strong findings. Had the appellant carried at least a measure of conviction then, no doubt, weight could have been given to the remarks of Larmour about "not remembering". 18. But the appellant was a man whom the learned trial Judge found to have been prepared to tailor his evidence to suit his interests. And the learned trial Judge thought that the appellant had seized on "an opportunity to obtain some financial gain from the defendant". It is implicit in His Honour's reasons that he thought that seizing was dishonestly done. 19. Mr Walsh QC criticised the reasons of the learned trial Judge on several grounds. He said that the learned trial Judge 10 should have looked to see what was proved by the evidence other than that of the appellant. Nothing favourable to the appellant on the score of causation was proved. 20. Mr Walsh QC said that the learned trial Judge did not explore breach of duty. The learned trial Judge was perfectly entitled to confine his conclusion to "absence of proof of causation". Mr Walsh QC said that the learned trial Judge did not give thought to the fact of work near aircraft. That, as I have earlier said, was not the case put forward. Mr Walsh QC said that the learned trial Judge did not give adequate reasons for his decision. He referred to cases which may be taken as establishing the need for a trial Judge to give adequate reasons for his decision (eg Stojkovski v Fitzgerald
(1989) WAR 328). But I think the learned trial Judge did give adequate reasons. He found that he could not accept the evidence of the appellant unless it was corroborated or was evidence about a topic which was not contested. In the long passage quoted earlier his reasons appear. No more was required of the learned trial Judge. 21. Of course, much in this case depended upon the view which the learned trial Judge formed on seeing and hearing the appellant about his credibility as a witness. Mr Walsh QC attacked the finding that the appellant was not worthy of credit. But the fact is that this was a finding of the learned trial Judge which could not, in my opinion, be overturned. It was made for adequate reasons. 22. The High Court has recently emphasised the importance of a finding of a trial Judge based on credibility. In DeVries v ANRC (1993) 67 ALJR 528 at 531 the majority of the Justices said:-
"More than once in recent years, this Court has pointed
out that a finding of fact by a trial judge, based on the
credibility of a witness, is not to be set aside because an
appellate court thinks that the probabilities of the case are
against - even strongly against - that finding of fact. If the
trial judge's finding depends to any substantial degree on the
credibility of the witness, the finding must stand unless it can
be shown that the trial judge 'has failed to use or has palpably
misused his (or her) advantage' or has acted on evidence which
was 'inconsistent with facts incontrovertibly established by the
evidence' or which was 'glaringly improbable'." 23. The learned trial Judge did not fail to use or palpably misuse his advantage gained from seeing and hearing an appellant. The learned trial Judge did not act on evidence which was inconsistent with facts incontrovertibly established by other evidence or which was glaringly improbable. 24. There was no evidence on the score of causation which corroborated or supported the evidence of the appellant. The learned trial Judge was perfectly entitled to come to the conclusion to which he did come. I can find no fault in his approach to the case nor in his reasoning. 25. I would dismiss the appeal.
JUDGE2 LEGOE J Bollen J has expressed the reasons for the order made by this Court dismissing the appeal with complete accuracy and indeed more eloquently than I could have done so myself. I have nothing to add.
JUDGE3 MOHR J I agree with Bollen J in this matter.
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