Re John Costello v Citra Constructions Limited; John Holland (Constructions) Pty Limited and Concrete Constructions Pty Limited [1990] FCA 9; 22 FCR 247 (29 January 1990)

FEDERAL COURT OF AUSTRALIA

Re: JOHN COSTELLO
And: CITRA CONSTRUCTIONS LIMITED; JOHN HOLLAND (CONSTRUCTIONS) PTY LIMITED
and
CONCRETE CONSTRUCTIONS PTY LIMITED
Nos. ACT G21, 22 and 23 of 1989
FED No. 9
Workers' Compensation
[1990] FCA 9; 22 FCR 247

COURT

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Kelly(1), Neaves(1) and Foster(1) JJ.

CATCHWORDS

Workers' Compensation - Worker sustaining injury causing partial and permanent bi-lateral loss of hearing - Arbitration before Magistrates Court (A.C.T.) - Uncontested evidence before Magistrates Court that hearing loss resulted from industrial noise during employment with successive employers - Awards of compensation made by Magistrates Court after apportioning liability as between successive employers - Awards set aside on appeal to Supreme Court (A.C.T.) on basis that evidence adduced by worker before Magistrates Court did not establish his claim against each employer - Appeal to Federal Court - Awards re-instated on basis that evidence before Magistrates Court, though scanty, sufficient to support awards - Whether absence of expert evidence as to precise noise levels generated by machinery operated by worker fatal to worker's case - Whether absence of evidence establishing precise levels of deafness at commencement and termination of employment with each employer fatal to worker's case - Whether Magistrates Court entitled on evidence available to it to apportion liability as between successive employers - Case where paucity of material renders decision-making difficult distinguished from case where absence of material renders decision-making impossible.

Workmen's Compensation Ordinance 1951 (A.C.T.) ss.10, 26

HEARING

CANBERRA
29:1:1990

Counsel for the appellant : Mr A.P. Whitlam QC and

Mr G.J. Lunney

Solicitors for the appellant : Gary Robb and Associates

Counsel for the respondent in
matter No. ACT G 21 of 1989 : Mr R.E. Williams

Solicitors for the respondent in
matter No. ACT G 21 of 1989 : Mallesons Stephen Jaques

Counsel for the respondents in

matter No. ACT G 22 of 1989 and
matter No. ACT G 23 of 1989 : Mr D.G.T. Nock

Solicitors for the respondents in

matter No. ACT G 22 of 1989 and
matter No. ACT G 23 of 1989 : Macphillamy Cummins and Gibson

ORDER

Matter No. ACT G21 of 1989

1. The appeal be allowed.
2. The judgment of the Supreme Court of the Australian
Capital Territory be set aside and, in lieu
thereof, it be ordered that the appeal to that
Court be dismissed, that the award made by the
Magistrates Court be affirmed and that Citra
Constructions Limited pay the costs of John
Costello of the appeal to that Court.
3. The respondent pay the appellant's costs of the
appeal to this Court.

Matter No. ACT G22 of 1989

1. The appeal be allowed.
2. The judgment of the Supreme Court of the Australian
Capital Territory be set aside and, in lieu
thereof, it be ordered that the appeal to that
Court be dismissed, that the award made by the
Magistrates Court be affirmed and that John Holland
(Constructions) Pty Limited and Concrete
Constructions Pty Limited trading as Concrete
Constructions - John Holland Joint Venture pay the
costs of John Costello of the appeal to that Court.
3. The respondents pay the appellant's costs of the
appeal to this Court.

Matter No. ACT G23 of 1989

1. The appeal be allowed.
2. The judgment of the Supreme Court of the Australian
Capital Territory be set aside and, in lieu
thereof, it be ordered that the appeal to that
Court be dismissed, that the award made by the
Magistrates Court be affirmed and that John Holland
(Constructions) Pty Limited pay the costs of John
Costello of the appeal to that Court.
3. The respondent pay the appellant's costs of the
appeal to this Court.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

Before the Court are three appeals which were heard together. The appellant in each case is John Costello. The respondents to the appeals are, respectively, Citra Constructions Limited ("Citra"), John Holland (Constructions) Pty Limited and Concrete Constructions Pty Limited trading as Concrete Constructions - John Holland Joint Venture ("the Joint Venture") and John Holland (Constructions) Pty Limited ("Holland"). The appeals are from a judgment of the Supreme Court of the Australian Capital Territory (Gallop J.) given on 23 March 1989 upon appeals to that court by Citra, the Joint Venture and Holland respectively under s.26 of the Workmen's Compensation Ordinance 1951 (A.C.T.) ("the Ordinance"). Those appeals were from awards of compensation in respect of a loss of hearing made on 7 August 1986 in favour of the present appellant in an arbitration under the Ordinance by the Magistrates Court of the Australian Capital Territory constituted by Mr M. Ward, Magistrate. The Supreme Court set aside those awards and, in lieu thereof, made awards in favour of the present respondents.

2. Section 10 of the Ordinance provides, in sub-s. (1), for the payment of compensation of $20,000 where an injury specified in Part I of the Second Schedule to the Ordinance, being an injury arising out of or in the course of a workman's employment by his employer, is caused to the workman and the injury results in an incapacity other than total and permanent incapacity. By sub-s. (1A) of that section, where an injury specified in the first column of Part II of the Second Schedule, being an injury arising out of or in the course of a workman's employment by his employer, is caused to the workman, the compensation payable, where the injury results in incapacity other than total or permanent incapacity for work, is the amount equal to the percentage of the amount specified in sub-s. (1) as is specified in the second column of that Part opposite the specification of the injury in the first column. Loss of hearing is an injury specified in the first column of Part II of the Second Schedule, the percentage specified in the second column of that Part in respect of that injury being 70 per cent. Sub-section 10(6) of the Ordinance provides:

"Where a workman sustains an injury which causes
partial and permanent loss of the efficient use of
a part of the body specified in the Second
Schedule to this Ordinance in and for the purposes
of his employment at the date of the injury, there
shall be payable an amount of compensation
equivalent to such percentage of the amount of
compensation payable under this section in respect
of the loss of that part as is equal to the
percentage of the diminution of the efficient use
of that part."

3. By virtue of the provisions of sub-s. 26(2) of the Ordinance, Part XIXA of the Magistrates Court (Civil Jurisdiction) Ordinance 1982 (A.C.T.) applied to each of the appeals to the Supreme Court as if each appeal were an appeal from a judgment or order of a kind specified in sub-s. 282C(2) of the latter Ordinance. In the case of an appeal of that kind, the Supreme Court is to have regard to the evidence given in the proceedings out of which the appeal arose, and has power to draw inferences of fact and, in its discretion, to receive further evidence (s. 282G). Section 282J of the latter Ordinance provides:

"(1) On an appeal, the Supreme Court may -
(a) affirm, reverse or vary the judgment or
order appealed from;
(b) give such judgment, or make such order,
as, in all the circumstances, it thinks
fit, or refuse to make an order;
(c) set aside the judgment or order appealed
from, in whole or in part, and remit the
proceedings to the Magistrates Court for
further hearing and determination,
subject to such directions as the
Supreme Court thinks fit; or
(d) award execution from the Supreme Court
or remit the proceedings to the
Magistrates Court for the execution of
the judgment or order of the Supreme Court.
(2) A judgment or order of the Supreme Court
made in proceedings remitted under paragraph (1)(d)
shall have effect as if it were a judgment or order
of the Magistrates Court and may be enforced by the
Magistrates Court accordingly."

It may be observed, in passing, that the provisions contained in ss. 282G and 282J differ in substantial respects from those - contained in sub-s. 215(2) of the Magistrates Court Ordinance 1930 (A.C.T.) - which formerly applied to an appeal to the Supreme Court for which s. 26 of the Ordinance provided. Under the former provisions, the Supreme Court was to hear the matter de novo but on the evidence before the Magistrates Court except in so far as in its discretion it permitted additional evidence to be adduced.

4. No evidence additional to that which was before the Magistrates Court was sought to be adduced before the Supreme Court. Only the learned Magistrate has had the benefit of hearing the oral testimony of the appellant and his wife to which reference will be made hereafter. They were accepted as witnesses of truth and no submission to the contrary has been made in the appeals.

5. The respondents were successful before the Supreme Court on the basis that the evidence adduced in the appellant's case did not establish his claim against any of them. None of the respondents called any evidence on any of the issues. The main thrust of the argument of each of the respondents, both before the Supreme Court and before this Court, was that the evidence called for the appellant, accepted in its entirety, could not, and did not, establish his claims. The Supreme Court accepted this submission. It is, therefore, necessary to consider the claims brought by the appellant and the evidence in support of them.

6. The appellant was employed by Citra from 1961 until 1973. He then entered employment with Holland until 1 March 1982. From that date he was employed by the Joint Venture. He claimed that at the time of entering into employment with Citra his hearing was unimpaired. By 25 March 1986 audiogram measurement showed him as having a bi-lateral industrial hearing loss of 48%. He brought separate claims against each respondent for injury to his hearing during the period of his employment with that respondent. Each claim was necessarily for an amount of monetary compensation, calculated in accordance with sub-s. 10(6), for employment-caused diminution in his hearing for that period. It is clear that in determining a relevant percentage diminution over any given period, account must be taken of any existing impairment of hearing at the commencement of that period (Campisi v. General Motors - Holden's Limited (1957) SR (NSW) 477; Sadler v. Commissioner for Railways (NSW) [1969] HCA 52; (1969) 123 CLR 216; Stevenson v. Buchanan and Brock Pty. Limited (1971) VR 503). The learned Magistrate, on the material before him, arrived at conclusions as to the percentage diminution of hearing suffered by the appellant whilst in the employ of each respondent and made awards based on those percentages. The question is - did the state of the evidence, as the Supreme Court found, prevent him from so doing? As we understand it, in the event of these appeals succeeding, the respondents do not seek that this Court make any alteration in the percentages and corresponding awards of compensation found by the learned Magistrate.

7. One matter should be disposed of at the outset. It was submitted on behalf of Holland that a period of employment in Newcastle was not, in fact, employment by Holland but by an associated company incorporated in New South Wales. On this factual basis it was sought to erect an argument that some proportion of hearing impairment of the appellant could not, in any event, be attributed to Holland. This matter does not appear to have arisen on the pleadings. Although it seems to have been raised before the learned Magistrate, it was not made the subject of evidence. It is not dealt with as a live issue by the Magistrate or by the Supreme Court. In our view, it is far too late to raise it in these proceedings.

8. In turning to the evidence before the learned Magistrate, it must necessarily be said, immediately, that it was scanty in the extreme. It consisted of the oral testimony of the appellant worker, with short corroborative evidence from his wife and of two medical reports from Dr. Crisp, an ear nose and throat specialist.

9. The appellant's evidence may be summarised as follows. He came to Australia from Ireland in 1952, when 25 years of age. Before commencing employment with Citra in 1961 he had worked as a farm labourer for three years and as a crane driver and excavator operator on the Snowy Mountains Scheme and in Canberra. He said that the machines on which he worked at this period made noise but that that noise was not great so far as he was concerned because they had large cabins and he was a long way from the motor. He said that he noticed no impairment in his hearing before commencing work with Citra.

10. When he commenced this work he was required to drive a machine described as a "link belt excavator". He drove this machine for three or four years. It was a very noisy machine, a fact which he ascribed to its having a defective muffler system. He usually worked an eight hour day for six days a week, being fairly constantly exposed to a very high level of noise. At the completion of work each day he would notice ringing in his ears for about an hour. At the completion of this period he was given a new machine, "a 22 Rushton". This machine was only about half as noisy as the link belt machine and he did not experience ringing in the ears after using it. However, he did notice that he was experiencing some trouble hearing people talking in the crib room at lunch time when people were talking together. He expressed the view that his hearing was deteriorating. He was moved to a larger machine, "a 30 Rushton", which was also an excavator. It was noisy but less so than the "22 Rushton". There was no ringing in the ears after using it. He used this machine until leaving the employ of Citra and entering the employment of Holland.

11. His work with the John Holland organisation involved him in driving an excavator for approximately two years. That machine made a similar noise to the model "30 Rushton". He then drove a mobile crane which made about the same amount of noise. He did not experience ringing in his ears but knew that he had some problem with his hearing because he had difficulty in hearing people talk. Other machines that he worked on regularly produced noise levels approximating that of the excavator and crane. It appears that he did similar work for the organisation in Newcastle and noticed that his hearing was getting worse in that period of approximately three years.

12. He returned to Canberra in 1982 and worked for the Joint Venture. The work involved the driving of mobile cranes. They were different in their noise from the link belt "because it screams more." He said the noise did not seem to affect him as much as it was more of a "continuous burr". Nevertheless he noticed that his hearing was getting worse. He had trouble sorting out voices on the two-way radio and also with conversations when there was a number of people present in the shed. He experienced difficulty at home in relation to hearing television and conversation. In our view, his evidence gives a fairly clear picture of deteriorating hearing and was properly accepted as such by the learned Magistrate. He expressed the view and adhered to it in cross-examination that he had been going deaf since the early 1960's and had regarded the problem as a serious one from somewhere in that decade. He, not unnaturally, agreed that it was difficult looking back over the working years to express any view as to the degree of his hearing loss at any particular point of time. He had mentioned the problem to his family doctor from time to time because it was becoming a problem. He had no difficulty in remembering when it started and he knew that it was getting worse.

13. His evidence was corroborated by the evidence of his wife. She first noticed signs of deafness after he had been working for Citra. She also recollected complaints of ringing in the ears. Although her evidence is short, she provides a clear indication of increasing deafness on the part of the appellant over a period of more than twenty years commencing during his work with Citra and increasing during his periods of work with the other respondents.

14. As we have already indicated, both the appellant and his wife were accepted as reliable and truthful by the learned Magistrate. Their evidence clearly establishes that the appellant was working in conditions of considerable noise with all the respondents and that he was over the total period experiencing increasing problems with deafness. The evidence does not establish precise levels of perceived deafness at the times of commencement and termination of employment with each of the respondents. Nor does it establish, except in very general terms, the degree of noise to which he was subjected. However he was able to compare the level of noise when working on the excavator with the Holland organisation with ordinary noise levels by saying "you would never hear that type of noise on the street except from a big truck at close range." It is to be remembered that he also was of the view that the noise level from the excavator with Holland's was less than he had been subjected to when working with Citra.

15. The appellant's family doctor had died. Attempts to get into evidence documentary material relating to his examinations and opinions in relation to the appellant were somewhat surprisingly, in view of the provisions of par. 6A of the Fourth Schedule to the Ordinance, not successful. However, the appellant tendered, without objection, the two reports by Dr. Crisp. The doctor was not called by the appellant, nor was he required for cross-examination by any of the respondents.

16. The first report was dated 16 December 1983 and reads as follows:-

"This man was examined, at your request, on 13th
December 1983 in relation to his loss of hearing.
For the past 7-8 years, he has had difficulty
hearing conversation, particularly in the presence
of background noise. There is no past history or
family history of deafness. There is no complaint
of tinnitus or vertigo.
He gave a history of industrial noise exposure
from the age of 25 years until now, operating
cranes, excavators, bulldozers and other heavy
equipment. During this time, he has worked for a
number of different construction companies and is
presently on the new Parliament House site.
On examination, his ears appeared normal. Pure
tone audiometry demonstrated a bilateral
sensorineural hearing loss which is more marked in
the high frequencies and consistent with an
industrial hearing loss. The percentage loss was
calculated allowing for his age, and was 31.8% on
the right and 46.3% on the left. This gives an
effective binaural hearing loss of 34.7%. This is
a permanent inner ear hearing loss. It is the
combined result of noise exposure suffered under a
number of employers since the age of 25 years and
it would not be possible to calculate the
proportion due to each employer".

The second report was dated 25 March 1986 and reads as follows:-

"I have your request of February 18, 1986 for a
further report on Mr. Costello. He was reexamined
with audiometry on February 6, 1986.
His audiogram shows a bilateral industrial hearing
loss, which is calculated, allowing for age, at
47.1% on the right and 53.9% on the left. This
gives an effective binaural hearing loss of 48%.
Thus his hearing has deteriorated by some 13%
since he was previously tested on 13.12.83.
This further hearing loss would be consistent with
the affects of continued noise exposure at work
since December 1983.

17. It was established that the respondents had had medical examinations of the appellant. They did not, however, tender any medical evidence. Nor did they call any evidence as to the noise levels associated with the appellant's work over the years. Consequently the learned Magistrate was entitled to infer that any such evidence would not have assisted the respondents' case, and that any inferences favourable to the appellant's case which might be drawn from his evidence might be the more safely made (Jones v. Dunkel [1959] HCA 8; (1959) 101 CLR 298).

18. The respondents, however, successfully submitted before the Supreme Court that, contrary to the decision of the Magistrate, this evidence was not sufficient to establish the appellant's various claims. Their assertion, as we understand it, amounted to this: There was a clear deficiency in expert testimony necessary to establish as against each respondent that noise levels to which the appellant had been subjected in his period of employment with it had produced impairment in his hearing and the level of any such resulting impairment.

19. It was put that two types of evidence were lacking and that, in their absence, the appellant's case could not be proved. First, it was said that there was an absence of expert evidence as to the precise noise levels generated by the machinery in question. Such evidence, it was asserted, was regularly supplied in cases of this kind by acoustic engineers or technicians who had taken readings with appropriate equipment of the actual noise output, expressed in decibels, of particular machinery being operated in particular conditions. Such evidence could then be linked with medical evidence which could state with precision that particular decibel levels were generally productive of hearing impairment.

20. No doubt an applicant's case would be greatly enhanced by the adducing of such testimony. The question is, however, was the absence of such evidence fatal? We do not believe that it was. Although expert evidence is undoubtedly necessary to prove a case of work-induced deafness, it is not necessary that it be of the extent and particularity claimed on behalf of the respondents. Clearly the appellant in this case, as a mere lay witness, could not give evidence of the causal connection between the noise level of his work place and his deafness. This must necessarily have been a matter for expert testimony. But the law does not prescribe the mode or content of that expert testimony. Obviously, much depends upon the way in which the evidence is introduced or sought to be introduced in the case. Here the Magistrate had before him the plain evidence of Dr. Crisp that the 34.7% binaural hearing loss ascertained by him on testing on 13 December 1983 was "the combined result of noise exposure suffered under a number of employers since the age of 25 years". That evidence was introduced into the case without objection from the respondents. No evidence was given to controvert it. If it be the fact that it was not valid, as a matter of science, for such an opinion to be expressed simply on the basis of a descriptive history of subjection to industrial noise, without there being supporting material in the nature of actual instrument readings of noise levels, then this matter was not introduced into the case either by way of preliminary examination of the doctor on the voir-dire to determine the admissibility of the opinion or by cross-examination resulting in the withdrawal or neutralising of it. It is nothing to the point, in our view, for complaints to be made later at an appellate level that evidence which has been admitted into the case in the nature of an expert opinion is to be accorded no weight because it is not supported by material which it is asserted, but in no way proved, is in some way essential to its foundation.

21. The simple fact is that the Magistrate had before him the uncontested opinion of an expert that all three respondents had contributed to the hearing loss of the appellant which was measured at 34.7%. He also had before him the uncontested evidence of the appellant that before his entry into employment with Citra he had no impairment of hearing. Both of those matters might well have been the subject of attack by evidence introduced into the case, but they were not. In those circumstances, the Magistrate was entitled to accept that, as at 13 December 1983, the appellant had suffered a hearing loss, as measured, as a result, and only as a result, of his being subjected to industrial noise during his employment with the respondents up to that point.

22. Furthermore, the evidence contained in Dr. Crisp's second report of 25 March 1986, was admitted without objection and was, again, not subjected to any attack. There was, therefore, uncontested evidence before the Magistrate that, in the period between 13 December 1983 and 18 February 1986, the appellant had suffered a further effective binaural hearing loss amounting to a deterioration of 13% between the two tests. The doctor's opinion was that this loss was "consistent with the effects of continued noise exposure at work since December 1983". Although this opinion is couched in the language of consistency rather than causation, no assertion is made in the case that the hearing loss was other than work caused. The onus of establishing such a proposition would, in any event, lie upon the respondents (Sadler v. Commissioner for Railways NSW [1969] HCA 52; (1969) 123 CLR 216 at pp 222-3; Watts v. Rake [1960] HCA 58; (1960) 108 CLR 158; Purkess v. Crittenden [1965] HCA 34; (1965) 114 CLR 164).

23. The learned Magistrate therefore had before him uncontested evidence that the whole of the appellant's hearing loss was work-caused.

24. In these circumstances, criticisms made of the appellant's evidence to the effect that he as a lay person could express no admissible view on the etiology of his deafness seem rather beside the point. The first of these criticisms related to the appellant's evidence that after driving the "link belt" machine in the first three or four years of employment with Citra, he suffered ringing in the ears which would persist for approximately an hour. It is correctly said that there is not direct scientific evidence in the case which would link this aural symptom with the exposure to the "screaming" of the "link belt" excavator. We rather doubt that scientific evidence would be necessary to link the two phenomena in a simple cause effect relationship. The evidence establishes that the tinnitus followed the exposure to noise with such regularity as clearly to suggest a causal connection (Adelaide Stevedoring Co. Ltd v. Forst [1940] HCA 45; (1941) 64 CLR 538). However, such a finding falls short, of course, of establishing that the symptom of ringing in the ears is indicative of damage to the hearing apparatus itself productive of permanent impairment of hearing. Apart from the reference to "tinnitus" in Dr. Crisp's first report, in a context which suggests that it would be of diagnostic significance if present, there is no scientific material in the case to link that symptom, experienced by the appellant between 1961 and 1965, with the permanent hearing damage ascertained by the doctor in 1983 and 1986. However, in our view, the matter lacks all real significance in the case. The only medical evidence quite clearly links the measured hearing loss without any necessary recourse to tinnitus as a necessary connecting link.

25. Criticisms of a similar nature were made in respect of the appellant's evidence as to his difficulties in hearing conversation in the crib room and in conditions of heightened background noise, and similar difficulties in determining what was being said on the two-way radio in the cabin of the crane when the machinery was in operation. Quite clearly, in our view, this amounted to no more than lay evidence on the part of the appellant outlining in detail his hearing difficulties in specific situations. They were statements of fact, not of scientific opinion. They merely formed part of his narrative as to progressive deterioration in his hearing over the period of employment with the three respondents.

26. There can be no doubt that the evidence in the case could have been augmented by oral testimony from Dr. Crisp and from the records of the appellant's general practitioner. However that fact does not eliminate the significance of the evidence that was in fact given through Dr. Crisp's two reports. The history given to the doctor as set out in those reports is sketchy. The learned Magistrate was, however, quite entitled to assume that it was, as is normal, a summary of information given to the doctor by the appellant at the time of his examinations. Apart from the reference to a 7-8 year period of difficulty in hearing conversation, the history is completely consistent with the far more detailed account given by the appellant in his evidence, and corroborated by his wife. The shorter period was put to the appellant in cross-examination and provoked a vigourous assertion on his part that he had mentioned the twenty year period of difficulty to the doctor. The short period would, if anything, appear to favour the respondents. It obviously did not influence the doctor in his ultimate opinion as to the appellant's hearing loss being occasioned by noise exposure over a 25 year period.

27. We find the case of Australian Iron and Steel Pty. Limited v. Jansen (Supreme Court of New South Wales (Court of Appeal) unreported 5 September 1983) of no assistance. It was a very different case indeed. There, a medical witness, essential to the applicant's case as to the relation between his deafness and exposure to industrial noise, resiled from his original evidence favourable to the applicant when confronted with significant material in cross-examination. The end result was that the applicant was deprived of necessary medical evidence linking his condition with exposure to industrial noise. Had Dr. Crisp been cross-examined in the present case and, as a result of additional material put to him, reconsidered the opinion expressed in his report and expressed the view that the appellant's work could not, in fact, have caused the hearing damage, then the case would have been similar to Jansen. No such thing, of course, occurred. The appellant's evidence was consistent with and enlarged upon the history given to the doctor upon which his opinion was founded. The opinion was not attacked. The necessary causal connection remained fully proved.

28. The learned Magistrate was therefore provided with, and accepted, a history of exposure to industrial noise coupled with increasing hearing difficulty on the part of the appellant. He had medical evidence which clearly associated the increasing hearing difficulties with that noise. He had actual measurements of hearing deficiencies taken at two points of time. Those points of time did not coincide with the commencing or terminating point of employment with any of the respondents. However, he had evidence from which he was clearly entitled to infer that the appellant was suffering no relevant hearing impairment at the time he began employment with Citra in 1961. The final measurement taken, in February 1986, although not coinciding with the termination of his employment with the Joint Venture marked the ultimate boundary of his claim as brought before the Magistrate. The other reading, taken on 13 December 1983, was taken some 22 months into his employment with that respondent.

29. Quite clearly there was and is no evidence precisely establishing the diminution in the appellant's hearing during the periods of employment with each respondent. It would appear that the only evidence which could establish this with precision would be evidence of audiometric testing taken at the commencement and termination of each period of employment. Such testing, of course, does occur in certain circumstances in large industrial organisations and, we believe, in the Defence Forces. If accurately carried out, it would provide a basis for precise determination. Does the absence of such evidence and, indeed, the absence of precise scientific measurement of the relevant industrial noise levels, prevent a tribunal of fact from making a decision as to the applicant's entitlement under s. 10 of the Ordinance? Gallop J. was of the opinion that it did. His Honour says:

"No scientific or other form of expert evidence
was called to establish the causal connection
between the conditions of employment with each
(respondent) and the proportionate loss of hearing
during each period of employment. In the absence
of that evidence it is just not possible for the
(applicant's) case to be made out".

30. We regret that we find ourselves in disagreement with his Honour. There was clear evidence that the appellant's deafness was caused by conditions of employment with each respondent and there was evidence of continual deterioration in hearing, as perceived by the appellant and his wife, throughout the periods of employment. The tribunal of fact, therefore, had material upon which to work. The fact that, ideally, it could have had far better material does not, in our view, require that it refrain from utilising the material that it had in reaching the decision required by the section. We refer to Chaplin v. Hicks (1911) 2 KB 786 and Ratcliffe v. Evans (1892) 2 QB 524. The evidence is incapable of producing certainty but the decision-maker must do the best he can on the probabilities. We consider, with respect, that the learned Magistrate was correct in concluding that he was under a duty so to do. It was a case not of absence of material rendering a decision impossible, but of paucity of material rendering a decision difficult.

31. In taking this approach we think that the learned Magistrate had the support of authority. Although the case does not appear to have been cited to him and was not cited to us, it seems that Barron v. Seaton Burn Coal Company Limited (1915) 1 KB 756 indicates the appropriate approach. In that matter, a workman claimed compensation from his last employers on the ground that he was suffering from an industrial disease within s. 8 of the Workmen's Compensation Act 1906. He had been employed by five firms as a coal miner within the twelve months. The amount of compensation was agreed, and third party notices were served on the other four firms claiming contribution from them. Three of them agreed to an award against them in amounts proportionate to the length of the respective periods of employment; but the fourth contended that the length of time of employment was immaterial, and claimed that the judge should hold an inquiry and admit evidence with a view to ascertaining the facts and fixing the respective liabilities. The learned judge refused to do this and made an award on the basis on the length of time of the respective employments. It was held that there was no principle which justified the view that the duty of the arbitrator was merely to work out the arithmetical proportions of the length of time of the employments. He must deal with it as with any other question in the arbitration, admit evidence, and consider and distinguish between the respective merits of the employers.

32. The duty of the arbitrator in such circumstances was described by Cozens-Hardy M.R. at p 761:-

"I think it must be a matter which he must deal with
like any other arbitrator. He must listen to such
evidence as is tendered to him. I think it is
conceivable and right that he may say: 'One of these
five employers has a colliery so admirably arranged as
almost to assure that nystagmus will not be met with
amongst the colliers in their employ, whereas one of
the other five collieries is so badly arranged that
there is a greater probability of it occurring there'.
With such evidence before him he must do the best he
can to apportion the liability as between these five
companies, and if after listening to the evidence he
finds that nothing else but a rateable proportion is
possible, so be it; but he cannot, it seems to me,
preclude or shut out all evidence as to that and say:
'All my duty is to make a mathematical calculation.'"

33. The critical factor in the appeals is the fact that the learned Magistrate accepted evidence of work caused hearing loss. That the paucity of evidence rendered difficult the assessment of the share of responsibility of each of the respondents for that hearing loss does not alter the fact that the Magistrate had a duty to make a finding in this regard if there was evidence which would enable him to do so. The evidence was, as noted, not very satisfactory but it was still enough to enable him to make the decision he did.

34. It is nothing to the point, in our opinion, that Dr. Crisp found himself unable to calculate the proportion of hearing loss "due to each employer". He was under no necessity to do so. Nor did he have the advantage of a hearing of the facts. The learned Magistrate necessarily started with the proposition that, on the uncontested medical evidence, each of the respondents had contributed to the ultimate hearing impairment of the appellant as accurately measured on the two occasions referred to in the doctor's reports. He then entered upon an assessment of the respective legal liabilities of the respondents to the appellant.

35. The respondents have specifically confined their attack upon the Magistrate's decision to the question whether he should have, on the material before him, entered upon such an assessment, or whether, on the contrary, he should simply, as did the Supreme Court, have entered awards in their favour. They were not interested to argue the method or amount of assessment of the respective liabilities of the respondents should this Court hold that there was a case made out on the evidence for the determination of the respective liabilities of the respondents.

36. We are, for the reasons we have given, satisfied that a case was so made out. Accordingly, we do not enter into a consideration of the reasons given by the learned Magistrate for his manner of apportionment of liability between the three respondents. We are satisfied that he had material available to him, scanty though it was, for the apportionments that he made.

37. Accordingly, the appeal in each case is allowed, the judgment of the Supreme Court is set aside and, in lieu thereof, it is ordered that each of the appeals to that Court be dismissed, that the awards made by the Magistrates Court be affirmed and that the present respondents pay the appellant's costs of the appeals to that Court. The respondents must pay the appellant's costs of the appeals to this Court.