GILMORE v COSTAIN AUSTRALIA LTD [1988] NSWCA 49

GILMORE v COSTAIN AUSTRALIA LTD [1988] NSWCA 49

The trial judge was in error in withdrawing from the jury the issue of negligence relating to the failure to carry out regular monitoring audiometry and in excluding expert evidence as to the adequacy of ear plug instructions and the effectiveness of their application; a new trial is required to allow these issues to be considered by a jury.

Parties
Appellant: Gilmore; Respondent: Costain Australia Ltd
Jurisdiction
Australia
Judgment Date
23 December 1988
Procedural Posture
Civil Appeal / Appeal From Jury Verdict
Outcome
Appeal allowed; new trial ordered
Legal Topics
Negligence, Employer's Duty of Care, Occupational Safety, Admissibility of Expert Evidence, Audiometric Monitoring, Hearing Loss
Tort Employment Law Negligence Employer's Duty of Care Occupational Safety Admissibility of Expert Evidence Audiometric Monitoring Hearing Loss

Case Brief

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Parties

Gilmore

Appellant

Costain Australia Ltd

Respondent

Procedural Posture

Civil Appeal / Appeal From Jury Verdict

Legal Issues

  1. 1 Whether the trial judge erred in withdrawing a ground of negligence (failing to carry out or regularly carry out monitoring audiometry) from the jury
  2. 2 Whether expert evidence regarding adequacy of ear plug instructions and method of use was wrongfully excluded
  3. 3 Whether the verdict was unreasonable or perverse

Ratio Decidendi

The trial judge was in error in withdrawing from the jury the issue of negligence relating to the failure to carry out regular monitoring audiometry and in excluding expert evidence as to the adequacy of ear plug instructions and the effectiveness of their application; a new trial is required to allow these issues to be considered by a jury.

Court Disposition

Appeal allowed; new trial ordered

Orders

  • Order that the judgment and costs order below be set aside
  • Order that a new trial be ordered on all issues