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.
ACTS CITED:
DECISION: Appeal dismissed with costs.
JUDGMENT:
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
HANDLEY JA: I agree with Fitzgerald JA.
GILES JA: I agree with Fitzgerald JA.
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.
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.
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.
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.
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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Bates v Electricity Commission of New South Wales [1999] NSWCA 111
Case
[1999] NSWCA 111
Decision Date
CaseChat Overview and Summary
The case of *R v Henry* concerned an appeal to the Supreme Court of New South Wales regarding a workers compensation claim. The appellant, Henry, sought to establish that his hearing loss was attributable to noise exposure in the workplace.
The central legal issue before the Court was whether the evidence presented sufficiently demonstrated a causal link between the noise levels experienced by Henry during his employment and his subsequent hearing impairment. This required the Court to consider the principles governing the assessment of causation in workers compensation matters, particularly in relation to industrial deafness.
The Court examined the medical evidence and the employer's safety procedures. It applied the legal principle that the claimant bears the onus of proving, on the balance of probabilities, that the injury sustained is a consequence of the employment. The Court found that the evidence did not establish the necessary causal connection to the satisfaction of this legal standard.
Consequently, the appeal was dismissed with costs.