LAMINEX (AUSTRALIA) PTY LTD v SMEETH

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40008/98

MASON P MEAGHER JA BEAZLEY JA

LAMINEX (AUSTRALIA) PTY LTD v JOHN CRAWFORD SMEETH JUDGMENT 1 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: • 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. 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).

Appellant's challenge based upon undue delay 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. One ground of appeal is that his Honour's findings were flawed due to the excessive delay between the conclusion of addresses and the giving of judgment (19 months). In its written submission the appellant put it this way: There was a delay of some 19 months between the conclusion of the hearing and the date judgment was delivered. Such a delay may lead to dulling of recall of the evidence and of the presentation of those who gave that evidence with the consequence that justice is not done between the parties. There are indicators that the delay may have affected his Honour's recall of details in this case as his Honour has seemingly overlooked important matters of evidence which are referred to earlier in these submissions. The extent to which the passage of time may have affected his Honour's judgment cannot be known by the appellant, and in the circumstances it is submitted the appellant has been denied procedural fairness as a result of the delay and a re-hearing on this basis alone is appropriate.

7 The appellant's senior counsel indicated in argument that this ground would only be pressed if it were necessary to do so, ie if the other grounds were insufficient. This attitude is entirely understandable. 8 The principles relating to miscarriage stemming from undue delay in giving judgment in a matter involving assessment of witnesses have been considered in recent times by the English Court of Appeal (Goose v Wilson Sandford & Co, unreported, Court of Appeal (Civil Division) 13 February 1998) and by this State's Court of Criminal Appeal (R v Maxwell, unreported, Court of Criminal Appeal 23 December 1998). In the latter decision, the Court adopted (at pp23-4) the following remarks in the English decision: Because of the delay in giving judgment it has been incumbent on us to look with especial care at any finding of fact which is now challenged. In ordinary circumstances where there is a conflict of evidence a judge who has seen and heard the witnesses has an advantage, denied to an appellate court, which is likely to prove decisive on an appeal unless it can be shown that he failed to use or misuse, this advantage. We do not lose sight of the fact that the judge had transcripts of the evidence, as well as very extensive written submissions from counsel. But the very fact of the huge delay in itself weakened the judge's advantage, and this consideration had to be taken into account when we reviewed the material which was before the judge. In a case as complex as this, it is not uncommon for a judge to form an initial impression of the likely result at the end of the evidence, but when it comes to study the evidence (both oral and written) and the submissions he has received with greater care, he will than go back to consider the effect the witnesses made on him when they gave evidence about the matters that are not troubling him. At a distance of twenty months, Harman J denied himself the opportunity of making this further check in any meaningful way.

9 This factor is part of the backdrop to this appeal. In the circumstances, it becomes unnecessary to decide whether, standing alone, this ground of appeal would have been determinative. But it remains relevant in the assessment of the strength of some of the other grounds.

The liability issue 10 The respondent was required to ensure that the motors running the saws at the timber mill were operating at maximum efficiency. When he wished to check a motor, the sander operators would disengage the motors to the saws by activating a limiting switch. As the motor slowed down the respondent would listen for any tapping or metal-on-metal noises. He used to remove his earmuffs for this purpose. 11 On the occasion in question he lifted the door on one of the longitudinal saws to stop the operation and then went to attend to one of the right-hand cross-cut saws. He opened the door on one of the cross-cut cabinets and tied it to a piece of twine located on top of the cabinet for this purpose. He took off his earmuffs and was leaning into the cross-cut saw cabinet with his left ear directed towards the motor he wished to listen to. A board of timber was forcibly jammed into the longitudinal saw which was winding down. There was what he described as "like an explosion of noise. It was indescribable because it was so loud and so quick". It felt like someone slapping him across the right ear. There was pain in the back of his neck and immediate ringing of the ears. 12 The appellant accepts that the respondent now suffers from a hearing loss in his right ear. The appellant's own expert, Dr Talbot, describes the respondent as suffering from "a severe sensori-neural deafness in the right ear, probably total deafness and has a constant swishing tinnitus in the right ear. He also gets intermittent bouts of unsteadiness". However, the appellant disputes that the work incident in September 1988 was the cause of the loss. 13 The respondent's evidence was that he suffered tinnitus and severe and worsening deafness in the right ear continuously from the day when this incident occurred. The trial judge (Dowd J) observed that a large part of the case depended on the respondent's credibility. That credibility was challenged by reference to a video showing the respondent doing activities said to be inconsistent with the injuries said to stem from the three separate incidents upon which the proceedings were based. Much of the video related to the leg injury. But it was also relied upon in the context of the hearing loss. The respondent was shown at a beach, apparently conversing without too much difficulty despite the noise of the surf. 14 The trial judge made findings in the respondent's favour as regards negligence in respect of each of the three injuries. 15 As indicated, there was a small award totalling $6,900 (including interest) referable to the laceration of the left wrist, an injury that had no long term impact. 16 The learned judge found that a severe left knee injury had occurred on 10 February 1988 and that it caused residual weakness evidencing itself in a slight limp and causing the respondent to favour his right leg in some movements. There was severe pain during normal use, although it did not stop the respondent using the leg. He was able to carry out many ordinary daily tasks such as taking out garbage, and his capacity in relation to sporting activities (as disclosed in the video) showed a considerable degree of continuing strength and agility. The respondent's claims with reference to the left knee injury were significantly discounted. Dowd J assessed the non-economic loss stemming from the left knee injury at 1/6th of a most extreme case, with the injury to the left leg being in the order of 20% of the use of the leg. Because this fell below the statutory thresholds in s151G and s151H of the Act the claims for economic and non-economic loss referable to the second injury failed in their entirety. 17 There were, however, findings about the continued impact of the left knee injury. These findings are significant because this injury preceded the hearing trauma. Dowd J found that there had been a substantial injury to the left knee that left the respondent weak and unable to carry out heavy lifting tasks or to engage in any activity involving crouching or climbing stairs. His Honour accepted Dr Ganora's view that it left the respondent unfit for heavy manual work and for work requiring ladders or stairs or slippery surfaces (RB 21). The respondent was found unable to carry out heavy work tasks. Having regard to his limited educational skills, this limited his capacity to obtain gainful employment. As a result of the injury there was a heightened propensity for osteo-arthritis, although there was no evidence of it at the present stage. 18 As regards the alleged hearing trauma of 30 September 1988, the trial judge accepted the respondent's evidence that he had a considerable diminution in hearing of his right ear and that he suffered from an aggravated tinnitus condition. His Honour observed that it was clear and uncontested that there was no evidence of tinnitus or damage to the hearing in the right ear prior to the 1988 incident. 19 The appellant challenges the finding of the causal link between the 1988 incident and the hearing loss/tinnitus. At trial it called Dr Talbot who stated a very firm opinion that the deafness and tinnitus had nothing to do with the acoustic trauma in 1988. During cross-examination the doctor adhered to this opinion and explained his reasons for it. Those reasons included: • The hearing loss would need to be of immediate onset, whereas it was not.

• The hearing in the left ear should have been affected, whereas it was not.

• The hearing loss would not be progressive, yet it was.

• The type of tinnitus complained of was not consistent with the incident.

• Any problem of balance would be of immediate onset, yet there was no complaint by the respondent that this had occurred.

• There were other possible causes for the condition. Dr Talbot thought the most likely cause of the hearing loss was "degenerative or vascular" .

• Audiograms conducted shortly before and shortly after the incident did not reveal any fresh hearing loss in the right ear. 20 The respondent's expert (Dr Vance) disagreed with Dr Talbot. In his view, the tinnitus and deafness were caused by the noise accident. Dr Vance acknowledged in cross-examination that it was unusual for such damage not to manifest itself at the time of the trauma; and that it was also unusual for it not to progress (as had occurred here) (Black AB 127-8). Dr Vance had said that there was nothing in the history he had obtained that would point to a virus rather than an acoustic trauma and that the respondent was not, at the time he had seen him, suffering from Meniere's disease. He thought that the audiograms taken before and after the accident were unsatisfactory (Black AB 131). 21 The causation issue was determined in the respondent's favour by the trial judge. His Honour's reasoning started from the uncontested fact that there was no tinnitus or right ear hearing loss before the 1988 incident. Dowd J then referred to the evidence of Drs Talbot and Vance in some detail, before expressing preference for the evidence of Dr Vance. Nothing in the reasons indicates any concern based upon the credibility of the two experts. 22 In weighing up the strength of the competing expert opinions, his Honour referred more than once to Dr Talbot's "concession" that there was a possibility that the tinnitus was caused by the September 1988 incident. But, with respect to his Honour, this did not do justice to the strength of Dr Talbot's views as expressed in the following passage (Black B 107): Q. Is that tinnitus being caused by the same thing that is causing his deafness? A. That is what I have just said, I think it is. Q. But you would concede the possibility at least of some connection between the tinnitus and the acoustic trauma? A. There is a vague possibility. Q. How would that present, that could connect the tinnitus to the acoustic trauma, could you help us with that? A. Well, the tinnitus - no, I can't. Q. So, you put it forward but you cannot think of any way to support if as a proposition? A. Yes, that is why I said it is highly unlikely that tinnitus is caused by the noise. Q. But, you put the deafness as a zero connection? A. Yes. Q. But, the tinnitus as a possible connection? A. No, probable. Q. Probable? A. Well, I will change my opinion; I will say 99.9 per cent. Q. Likely or unlikely? A. Unlikely, because it is a barometal tinnitus, it is a mid tone tinnitus and industrial noise causes high tone whistle-like tinnitus, but I can't be put down as stating a hundred per cent certain, because it is a subjective sensation and no one can prove it.

23 In what appears to be the critical point in the judgment (RB 28B-F), Dowd J stated: In analysing the evidence the simple uncontested fact is that there is no evidence of injury beforehand and he now has evidence of injury to the right hand ear and the tinnitus. The evidence of how the injury occurred is not contested. There is evidence that the injury is possible and Dr Talbot is unable to preclude the possibility completely that it occurred as given by the plaintiff in his evidence before the court.

24 His Honour did not address the reasons offered by Dr Talbot for his opinion. He specifically noted Dr Vance's evidence that the differential impact of the trauma on the two ears could be explained by the fact that the respondent's left ear was masked by his head from the direct force of the noise. Unfortunately, he made no finding on that point. And as indicated, his Honour mistakenly referred to Dr Talbot as stating a 90% probability of no causal link with the tinnitus, whereas the doctor had put it at 99.9%. 25 There was a significant body of evidence indicating that the respondent's hearing loss was not an immediate consequence of the 1988 incident. The respondent did not complain immediately. Audiogram tests conducted on 24 August 1988 and 26 October 1988 showed little change. (The allegedly tortious incident occurred on 30 September 1988.) As indicated, Dr Vance also accepted that it was unusual for noise damage not to manifest itself at the time of the trauma and unusual for it to become progressively worse. 26 The appellant submits that the judgment contains no real analysis of the competing strengths and weaknesses of the medical opinions. It submits that the trial judge's citing and misconstruing of Dr Talbot's "concession" was an insufficient basis upon which to resolve the complex disagreement between the experts. With considerable reluctance, we are constrained to agree. The obligation to give satisfactory exposure of reasoning is not confined to tribunals from which appeal lies only for error of law. The principles are well known (see Beale v Government Insurance Office (NSW) (1977) 25 MVR 373). The basal consideration is the broad interest in maintaining public acceptance of judicial decisions by enhancing judicial accountability and dampening the litigant's sense of injustice stemming from the perception that his or her arguments have not really been considered (see Beale at 383-4 per Meagher JA and authorities there cited). 27 The respondent relies upon the well-known remarks of Rich ACJ in Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538 at 563: I do not see why a court should not begin its investigation, ie, before hearing any medical testimony, from the standpoint of the presumptive inference which this sequence of events would naturally inspire in the mind of any common-sense person uninstructed in pathology. When he finds that a workman of the not-so-young standing attempts in a posture calculated by reason of the pressure on the stomach to disturb or arrest the rhythm of the heart a very strenuous task not forming part of his ordinary work and then collapses almost immediately and dies from a heart condition, why should not a court say that here is strong ground for a preliminary presumption of fact in favour of their view that the work material contributed to the cause of death? From this standpoint the investigation of physiological and pathological opinion shows no more than the current medical views find insufficient reason for connecting coronary thrombosis with effort. Be it so. That to my mind is not enough to overturn or rebut the presumption which flows from the observed sequence of events. If medical knowledge develops strong positive reasons for saying that the lay common-sense presumption is wrong, the courts, no doubt, would gladly give effect to this affirmative information. But, whilst science presents us with no more than a blank negation, we can only await its positive results and in the meantime act on our own intuitive inferences.

28 There is difficulty with applying this reasoning to the present case. Here the claim of immediate and obvious injury following a work-place accident was a central matter in dispute. True, the respondent said this was the case. But the appellant disputed the claim, relying strongly upon the histories given to medical practitioners after the accident. The appellant did not contest that the incident occurred as related by the respondent (see RB 27B). But it disputed its impact and it challenged the credibility of the respondent as to the symptoms said to arise immediately but progressively worsening from the accident. The favourable assessment of the respondent's credibility was influenced by the preference of the medical opinion of Dr Vance. Even if the respondent were to be accepted as to the immediacy of the adverse symptoms (despite absence of early complaint and objective signs to the contrary), there was still the possibility that the work accident merely exacerbated an underlying condition. This scenario would not remove liability, but would affect the quantum of damages stemming from the tort. 29 This is not a case where the issue is whether there was or was not evidence capable of supporting the causal link. It is an appeal by way of rehearing, albeit subject to the significant restraints stemming from the advantages of a trial judge who has (a) heard the whole of the evidence and (b) observed the witnesses. But there were no credibility findings referable to the testimony of the experts. The critical importance of the issues debated between them meant, in my opinion, that the trial judge had to grapple with the disagreements on points of substance and expose his reasons for preferring one rather than the other, at least to a degree greater than occurred. The emphasis placed upon Dr Talbot's mistakenly reported concession further undermines confidence in the reasoning process, although standing alone it may not have been sufficient to justify a new trial. So too does the separate ground of appeal based upon delay. 30 There should be a new trial. 31 It is nevertheless convenient that we should address the further grounds of appeal and cross appeal.

The trial judge's award of damages 32 The learned trial judge accepted the respondent's evidence that the hearing trauma had caused three permanent conditions: Severe tinnitus: It was found that since September 1988 the respondent had never been free of tinnitus. He is awakened frequently at night and remains awake for some period. The respondent described it as like the hissing noise of a sea shell or a toilet cistern. The tinnitus is particularly exacerbated when diversionary techniques are not available. The problem it creates in a social context in terms of inability to hear people in noisy surroundings is socially and emotionally debilitating. The condition will continue to cause trouble in the workplace and in the respondent's normal daily life. When the respondent consulted Dr Dent, psychiatrist in February 1995 he complained that the biggest "bugbear is the hearing in my ear" , referring specially to the ever-present tinnitus. Mrs Smeeth's evidence corroborated its significance (Black AB 159T). Severe hearing loss to the right ear : Dowd J found that the respondent has a considerable diminution in hearing of his right ear. The respondent's hearing loss in his right ear was variously calculated at between 57% (Dr Vance) and probably total (Dr Talbot). Hearing in the left ear is normal (Dr Talbot) or has a slight loss (Drs Vance and Pohl). In 1991 Dr Pohl assessed the bilateral hearing loss at 15.3%.

Loss of balance: The respondent's sense of balance is affected. 33 The respondent's speech discrimination is normal. 34 The hearing problems found to stem from the September 1988 incident have had a major and continuing impact upon the respondent. The physical incidents of the disabilities have been described. These in turn led to serious depression, which created its own difficulties in home life and the workplace. It caused the respondent to drink and brought about significant levels of anger and loss of self-esteem. Dowd J accepted the respondent's evidence that the impact of the trauma and its sequelae included despair in that the respondent's concentration was seriously affected. Matters such as using the telephone were extremely frustrating. The respondent's social contacts were restricted. These findings were clearly open in the light of Dr Dent's report, the force of which was not destroyed by the need for the doctor to adjust his opinion somewhat when shown the video of the respondent. 35 The severe hearing loss to the right ear was also found to affect the respondent's employability, particularly in employment requiring safety consciousness, such as working in particular types of factory. After the hearing trauma, the respondent found that his inability to hear properly caused danger at work and was a major factor in him moving from being the highest paid operator with the appellant to being the lowest paid cleaner (Black AB 26). The hearing disabilities were also found to make it more likely that, if the respondent did gain employment, he would be limited in that employment due to periods of inability to work during bouts of unsteadiness. His general employability would be affected because periods of sickness would need to be disclosed to most employers. 36 The respondent's work history showed that he has been capable of carrying out a large number of manual or labouring jobs. In addition he has some teaching skills in areas such as swimming instruction. It was nevertheless found that the level of employment available to the respondent would be extremely fragile in the light of his disabilities. The respondent was aged 40 at date of trial and he lives and would seek work outside the city of Sydney. 37 His Honour found that there would be a very substantial reduction in earning capacity, notwithstanding the conclusion that the respondent was a resourceful person with a degree of capacity to soldier on notwithstanding physical difficulties. 38 During final addresses at trial the primary judge was informed that the parties had agreed as to the calculations of past economic loss. If entitled to an award under s151H, the respondent had been prevented from earning $121,421 net. His Honour said in his principal judgment (on 29 October 1997): The parties have agreed that the correct sum if it is found that the plaintiff is entitled to an award under s151H, that he has been prevented from earning in the past, was the sum of $121,421 net. Although the defendant does not concede the plaintiff is entitled to that sum I consider that as at the date of the hearing that was the correct sum that should have been awarded by reference to comparable earners, particularly that of Mr Booth, earning $718.53 per week.

39 Damages were assessed for future economic loss on the basis that it was "clear that the plaintiff was a fit and able man and would have continued in his employment until age 65" (RB 40). 40 Past and future economic loss was calculated on the basis of the earnings of a comparable employee less a residual or retained earning capacity of "a little over $300 per week" (RB 39) less the conventional 15% for vicissitudes. Dowd J explained the $300 sum in the following terms: This is quite separate from the normal vicissitudes and is based on the fact that the plaintiff will have considerable periods and an accumulation of periods when he will not be in employment and where that employment is maybe of an intermittent or part-time nature and will be at or near the lowest range of remuneration. Included in that figure of earning capacity will be periods when he will earn at a higher rate and periods when he may only be able to obtain part time and some menial work. Notwithstanding the high level of motivation of the plaintiff in terms of employment and his general application to work I consider that he has suffered a severe loss in earning capacity which I assess at $400 per week from that which he would otherwise have been able to earn. This produced a loss of $400 per week. 41 There was a further hearing on 10 December 1997. The parties agreed that a further 80 weeks at $400 ($32,000) gross per week needed to be added to deal with the time that had elapsed between trial and final judgment. This produced $153,421. The parties agreed on the appropriate reduction for tax on $32,000 ($6,400) to bring the aggregate figure for past economic loss back to a net figure of $147,021. In calculating future economic loss, the parties also used the base figure of $400 per week. From the resultant $256,258 they deducted tax of $51,251.60 leaving a rounded up figure of $205,007. These deductions for tax are the basis of the cross-appeal. 42 Damages were awarded as follows:

1. Non-economic loss (45% of a most extreme case) $81,000.00
2. Interest thereon $73,510.00
3. Past economic loss $147,021.00
4. Interest thereon $51,251.60
5. Future economic loss $205,007.00
6. Out of pocket expenses $3,306.50
7. Damages referable to first injury (including interest) $6,900.00 Total $567,996.10 43 It is convenient to deal first with three separate matters where the dispute between the parties on appeal was muted or non-existent.

Appellant's challenge to finding on mitigation 44 The trial judge rejected a submission that the respondent had failed to mitigate his loss by undergoing a labrynthectomy to the right ear, a procedure which it was suggested might cure the tinnitus and unsteadiness. In our view, the challenge to this conclusion fails. On the evidence, the labrynthectomy would not necessarily cure the tinnitus and unsteadiness and it is an operation which could have other consequences and operational risks. Dowd J found that the respondent was not obliged to subject himself to such a risk. It lies ill in the appellant's mouth to complain about apparent oversight of s151L(3) of the Act (which reverses the common law onus of proof as to mitigation) to which his Honour's attention was not drawn at trial. But more importantly, there was no attempt (prior to cross-examination of the respondent) to inform him about the possibility of this risky procedure of uncertain success. It would have been unfair to conclude that the respondent failed to mitigate his loss when given no effective opportunity to consult with his own treating doctors on the matter. Indeed, it is accepted that the respondent was not cross-examined as to failure to mitigate.

Appellant's challenge to award of interest on non-economic loss 45 It is agreed between the parties that the component of interest on non-economic loss ($73,510) was included in error (see s151M(3) and Schedule 6, Pt 14, cl 7 of the Act).

Respondent's challenge (by cross-appeal) to deduction for income tax 46 In his Cross-Appeal the respondent challenges the awards for past and future economic loss and the consequential interest calculation on past economic loss. It is submitted that Dowd J deducted for income tax from figures that were already net of tax. 47 The method whereby his Honour arrived at a figure of $400 per week gross as the measure of past and future economic loss has already been recounted (par 40, above). 48 The respondent has referred us to the "Schedule of Nett Earnings" placed before the trial judge. It indicated that comparable earners to the respondent earned net weekly earnings of $718.53 (Booth) and $506.14 (Hannon), an average of $612.34. That Schedule showed that at the date of trial the respondent's net weekly loss, taking account of moneys earned ($147.69 per week), was $464.65 net per week. 49 The respondent submits that the reference to a "residual earning capacity" of a little over $300 per week and a "severe loss of earning capacity [assessed] at $400 per week" (RB 39,40) were references to net figures which are entirely explicable having regard to the comparable earnings in the Schedule. 50 On this basis, it is submitted that the trial judge erred when, accepting the submission of each party, he assessed part of the past economic loss award and all of the future economic loss award on the basis of a gross rather than a net figure. Accordingly, the award for past economic loss needs to be adjusted upwards by $6,400 with a corresponding increase in pre-judgment interest; and the award for future economic loss needs to be adjusted upwards by $51,251. 51 We accept this submission. The Schedule used net figures throughout and his Honour intended to proceed primarily by reference to Mr Booth's earnings, to which he made particular reference (RB 39). It is unfortunate that counsel who appeared before his Honour on 10 December 1987 led the judge into error, presumably because they overlooked the detail of the Schedule (assuming they had been briefed with copies of it). 52 When interest is included, the net effect of this error is that the judgment should be increased by $60,595. This, of course, is more than offset by the agreed error of $73,510 in relation to interest on non-economic loss. 53 The remaining matters in the appeal overlap somewhat. Particular issues are raised. But one thing the remaining grounds of appeal have in common is the appellant's submission that the trial judge failed to give (proper) effect to his findings as to the respondent's injuries and disabilities that pre-existed the hearing trauma.

Appellant's challenge to award for past economic loss 54 The appellant challenges the awards for past and future economic loss because they proceed on the basis of $400 gross loss per week and contain no allowance for the established disabilities unrelated to the hearing loss. The parties' agreement as to figures was subject to the causation issue and that issue required proper allowance being made for the impact of pre-existing disabilities unconnected with the hearing trauma.

Appellant's challenge to award for future economic loss and allowance for vicissitudes 55 The appellant challenges this component of the award on two broad grounds. It is submitted that: (a) Factors other than hearing trauma precluded the respondent from being described as "a fit and able man" .

(b) The retained earning capacity of $300 per week was too low.

Appellant's challenge to award for non-economic loss (45%) 56 The appellant challenges the 45% assessment, contending that 20% would be appropriate. It submits that the award was simply too high and that it failed to have regard to the independent impact of pre-existing disabilities.

The impact of pre-accident disabilities upon economic loss 57 The appellant points to evidence of considerable disabilities that had manifested themselves before 1988 and that were unrelated to the hearing trauma. The principal submission is that these had and were likely to continue to have a significant negative impact on the respondent's earning capacity. 58 These disabilities include a severe lumbar disk lesion stemming from a 1976 injury as well as the tortious left knee injury sustained on 10 February 1988 which was the subject of the second claim in the proceedings below. 59 Dowd J's findings referable to the left knee injury have already been summarised (pars 16-17, above). 60 The respondent had had two to three months off work in early 1988 after the left knee injury. There was an arthroscopy of the left knee and a complete menisectomy. Thereafter, while the respondent remained employed by the appellant there was occasional backache which did not improve, although it did not cause work loss with the appellant. The respondent took redundancy with the appellant in December 1990. In 1992 he got a labouring job with Ulladulla Council that was supposed to last six months, but he finished after five and half months because of problems with his knee as well as hearing problems. 61 His Honour was entitled to find that the respondent was keen to get work and that his difficulties stemming from the hearing trauma (though exaggerated somewhat) were real and continuing (cf Black AB 33-35). In 1995 the respondent was examined by a psychiatrist, Dr Dent. He noted that the injuries to the back, left knee and ear were considered by the respondent to be permanent impairments (Blue AB 5F). Nevertheless, the respondent reported to Dr Dent that "the biggest bugbear is the hearing in my ear", (Blue B 5) which was significantly severely impaired with a tinnitus as ever-present and awakening him at night. 62 The respondent said that his knee injury prevented him from driving a vehicle with forward gears such as an articulated vehicle. It would also have prevented him from working in a job involving prolonged standing, such as a shop (Black AB 146). The respondent's shoulder problem also prevented him lifting above the shoulder (Black AB 52, 140). The nature of these disabilities suggest that the respondent's difficulties are likely to increase as he get older even allowing for his past capacity to "soldier on" despite his knee and back problems (see esp RB 31). 63 In challenging the finding of a retained earning capacity of $300 per week, the appellant relies upon the respondent's concession that he had the capacity to work as a courier driver, driver of a mobile library, shop assistant, cleaner and swim instructor. It is his desire to set up a swim school. 64 As indicated, the left knee injury was held not to be "serious" within s151H of the Act, with the consequence that no damages were to be awarded for economic loss stemming from that injury. Dowd J held that the Act did not allow the accumulation of injuries in order to pass over the s151H threshold (RB 32-34). This conclusion has not been challenged on appeal. The corollary is that the assessment of damages for economic loss stemming from the later hearing trauma must take place independently. The impact upon earning capacity of the respondent's pre-existent disabilities (tortiously caused or otherwise) must be taken into account (Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485 at 499. See also Wilson v Peisley (1975) 50 ALJR 207). 65 The appellant submits that Dowd J failed to take account of the impairments to the respondent's earning capacity stemming from his 1976 and February 1988 injuries. Unfortunately, it is somewhat unclear how his Honour addressed this matter. 66 Having ruled that the second and third incidents could not be treated accumulatively, Dowd J turned to the damages for the third incident (RB 34ff). He described the economic and non-economic impacts of the hearing trauma and its sequelae. While addressing the impact upon employability he observed that "the plaintiff has suffered a very substantial reduction in his earning capacity which was already reduced as a result after (sic) the injury in the second incident" (RB 36Q, emphasis added). This sentence supports the respondent's submission that the impact of the pre-existent disabilities was not overlooked. 67 However, it is less clear that this recognition was translated into monetary terms. 68 Past and future economic loss was calculated by reference to comparable earners, particularly Mr Booth who earned $718.53 per week (see par 48, above). This figure had been agreed and was included in the Schedule of Nett Earning already referred to. It appears to be based upon the generous availability of overtime and upon the respondent's unchallenged evidence that Mr Booth was doing exactly the same job as he was (Black B 29-30). The learned judge appears to have rounded this figure down to $700 per week and assessed residual earning capacity referable to the hearing trauma at $300 per week before arriving at the weekly loss of $400 which was used as the basis of calculating past and future economic loss. 69 Ostensibly no allowance was made for the respondent's injuries unassociated with the hearing trauma, and their impact (particularly in the future). Concern that all economic loss was treated as referable to the hearing trauma is heightened by the remarks made in the context of loss of earning capacity that: "The plaintiff is left in an impaired working capacity. There are obviously going to be some driving jobs although not of heavy vehicles or passenger vehicles, available to him" (RB 37, emphasis added). The words emphasised suggest that the economic impact upon driving heavy vehicles or passenger vehicles was treated (economically) as a loss stemming from the hearing trauma, whereas it was a consequence of the earlier orthopaedic injuries (see par 62, above). 70 The appellant also submits that error is disclosed in the trial judge's conclusion that "it is clear that the plaintiff was a fit and able man and would have continued in his employment until age 65" (RB 40). 71 Were it not for the need for a new trial as to liability we would have considered whether the proper course would be to reassess damages for future economic loss, allowing (say) 25% for vicissitudes to reflect the ongoing economic impact of the antecedent disabilities. The better course is that the new trial should be on all issues.

Appellant's challenge to damages for non-economic loss 72 The award of damages for non-economic loss based upon an assessment of 45% of a most severe case (cf s151G of the Act) appears to be on the high side. But, it might not be so far out of range as to be beyond a sound discretionary judgment. We have already indicated that Dr Dent's evidence was capable of supporting the finding that a significant cause of ongoing depression bordering on despair is the continuing tinnitus problem. Dr Dent's assessment supported the finding that the tinnitus had and continues to have a significant impact upon the respondent's personal well-being and sense of worth and that it contributed to prolonged depression. Because the tinnitus intrudes day and night into the respondent's life, affecting his enjoyment and amenity with consequential adverse impact upon family relationships, we do not think that the award is outside a proper range. We reject the submission that the award is vitiated because his Honour failed to take account of the pre-existing disabilities of the respondent. Dowd J said that these were considered (RB 38S). 73 However, his Honour has attributed the respondent's digestive problems to the hearing trauma (RB 35X, 38J) when these disabilities were neither claimed (RB 8-9) nor established on the evidence (see Blue B 56) to be caused by the hearing trauma. Likewise he cited severe weight loss and a period of extreme matrimonial discord when the respondent's wife left him for 6 months, neither of which misfortunes were shown to be a consequence of the accident. Those factors mean that this part of the assessment should not stand. It would obviously be open to this Court to reassess, were this the only issue in the appeal. However, for reasons already given there must be a new trial.

Disposition 74 The following orders should be made: 1. Appeal allowed.

2. Set aside the verdict and orders made by Dowd J.

3. Order a new trial on all issues relating to the accident of 30 September 1988 and any damages flowing from that accident, such trial to be expedited on the basis of a special fixture. Direct the parties to approach the Common Law Division List Judge within 7 days. 4. Costs of the first trial to abide the result of the new trial. 5. Respondent to pay appellant's costs and to have a certificate under the Suitors' Fund Act.

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