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FREE BOOK CHAPTER: Noise Induced Hearing Loss Claims – from ‘A Practical Guide to Disease and Illness Claims’ by Andrew Mckie

30/05/18. The Small Claims Track change for personal injury cases is likely to come into effect in October 2018. This book looks at other areas personal injury practitioners have begun to focus in, including industrial disease claims. This book covers issues in relation to industrial disease, and in particular focuses on the day-to-day issues in practice that one encounters with such cases including spotting the ‘winners’ and ‘losers’ quickly and efficiently, practical tips for investigation, litigation tactics, as well as a summary of the law, the important cases, and how to run these claims efficiently.


SAMPLE CHAPTER – NOISE INDUCED HEARING LOSS CLAIMS

Noise Induced Hearing Loss: The Law

The following sections of the Factories Act 1961 are likely to apply for pre-1990 claims:-

29 Safe means of access and safe place of employment.

(1) There shall, so far as is reasonably practicable, be provided and maintained safe means of access to every place at which any person has at any time to work, and every such place shall, so far as is reasonably practicable, be made and kept safe for any person working there.

(2) Where any person has to work at a place from which he will be liable to fall a distance more than [2 metres], then, unless the place is one which affords secure foothold and, where necessary, secure hand-hold, means shall be provided, so far as is reasonably practicable, by fencing or otherwise, for ensuring his safety.

The pre 1990 Law was helpfully summarised in a case of Baird and Latham Farms Limited (2005) which said:-

There is no dispute between the parties as to the applicable law. The relevant period was before any relevant statutory regulations and thus the common law duty of care provides the only route to any liability. This has recently been considered by the supreme Court in Baker v Quantum Clothing [2011] UKSC 17 and confirms the position as described by Swanwick J in Stokes v Guest, Keen & Nettlefold (Bolts and Nuts) Ltd [1968] 1 WLR 1776 @ 1783.

...the overall test is still the conduct of the reasonable and prudent employer, taking positive thought for the safety of his workers in the light of what he knows or ought to know; where there is a recognised and general practice which has been followed for a substantial period without mishap, he is entitled to follow it, unless in the light of common sense or newer knowledge it is clearly bad; but where there is developing knowledge, he must keep reasonably abreast of it and not be too slow to apply it; and where he has in fact greater than average knowledge of the risks, he may be thereby obliged to take more than the average or standard precautions. He must weigh up the risk in terms of the likelihood of injury occurring and the potential consequences if it does; and he must balance against this the probable effectiveness of the precautions that can be taken to meet it and the expense and inconvenience they involve. If he is found to have fallen below the standard to be properly expected of a reasonable and prudent employer in these respects, he is negligent.”

At paragraph 23 of his speech in Baker Lord Mance put it thus:-

The primary inquiry, when considering whether an employer has acted with due care to avoid injury from noise induced hearing loss, is whether there is a recognised and

established practice to that end; if there is, the next question is whether the employer knows

or ought to know that the practice is “clearly bad” or alternatively, if the area is one where there is developing knowledge about the risks involved in some location or operation, whether the employer has acquired “greater than average knowledge of the risks”.

Whilst Mr Williams for the defendant focused on this passage to a degree, in my judgment it does not say anything different to the test propounded by Swanwick J.

The case also considered the factual matrix of past reports/ investigations prior to 1990 which said:-

  1. Mr Hill for the Claimant and Mr Lawton for the Defendant gave evidence as to the general state of occupational health knowledge at the material time by reference to publications and ministerial guidance. Mr Hill pointed to the 1963 publication of “Noise and the Worker” by the Ministry of Labour as a landmark for knowledge within industry of the dangers of industrial noise. That is not to say that “Noise and the Worker” was revolutionary. It had been known for many years that noise could cause injury and the Wilson report (1963) considered in some detail the hazards of occupational noise. It was the presentation of the Wilson Report to Parliament in 1963 which led to the publication of the booklet “Noise and the Worker”.

  1. It is evident that “Noise and the Worker” contained sufficient information to alert any employer reading it to indications of a potential occupational noise hazard. The section headed “Have you a Noise Problem?” highlights four considerations for a convenient test:-

a) Do workers find it difficult to hear each other speak while they are at work in a noisy environment?

b) Have workers complained of head noises or ringing in the ears after working in noise for several hours?

c) Have workers who have been exposed to very high noise levels for short periods experienced temporary deafness, severe enough for them to seek medical advice?

d) Have workers exposed for longer periods complained of a loss of hearing that has had the effect of muffling speech and certain other sounds?

  1. Mr. Hill regarded 1963 as the year in which the hazards of occupational noise became widely known in industry and should have been in the mind of a prudent employer. In cross- examination he accepted that 1963 was not a fixed date of knowledge for all industry and that in some industries it took longer before it became recognised that noise (or a particular type of noise) was a hazard within that industry. He accepted that “Noise and the Worker” was published by the Ministry of Labour and directed more at factory conditions than agriculture. Indeed the Wilson report which preceded “Noise and the Worker” considered noise from agricultural machinery solely in an environmental context rather than an occupational health hazard.

  1. Mr Lawton conducted something of an historical literature review as part of his report. He identified the Wilson report and “Noise and the Worker” from 1963 and doubted whether these would have been circulated through the agricultural sector which came under the Ministry of Agriculture Fisheries and Foods. He identified a research paper by C. J. Moss entitled “Machinery Hazards” published I think in the Annals of Occupational Hygiene in 1969 but first presented at an Occupational Hygiene conference in 1968. This document specifically recognised the problem of increased noise levels for tractor drivers in the metal cabs of the day with noise levels of 100.5 dB(A) (safe for only 43 minutes a day). Mr Lawton doubted that this paper would have been much circulated outside professional occupational health circles.

  1. The Department of Employment Code of Practice for Reducing the Exposure of Employed Persons to Noise (1972) was a publication identified by both experts. This publication set out acceptable noise levels and durations of exposure. It advised as to appropriate steps to protect the hearing of those exposed to potentially hazardous levels of noise. This was a publication which dealt in some detail with the hazards of occupational noise as an issue across the employment spectrum.

  1. Two years later came the Agriculture (Tractor Cab) Regulations 1974. These dealt specifically with noise levels in tractor cabs and steps to protect the hearing of drivers. Certainly from 1974 there could be no excuse for any prudent employer in the agricultural sector to be unaware of the hazards of tractor cab noise for tractor drivers.

  2. Mr Hill and Mr Lawton agreed that it was not the practice in the 1960s for tractor drivers to wear ear defenders”.

The 1972 Code of Practice for Reducing The Exposure of Employed Person to Noise

  1. The Code of Practice was published in April 1972. In those pre-internet days it would have taken a little time to circulate and be absorbed by employers such as the Defendant. I would allow six months from publication for the penny to drop for this Defendant in relation to Mr Baird in his tractor. Thereafter I would allow a further two months for the defendant to seek and obtain expert assistance, confirm the problem and identify a solution – that being the provision of ear defenders.

  1. I need to identify a date from which the defendant was in breach of duty in not taking reasonable steps to protect the Claimant from noise damage whilst tractor driving. The date I alight upon is 1st December 1972. To a large extent this exercise has to be driven by what I regard as reasonable rather than any evidence as to how long such matters were taking at the time. I have simply done the best I can in the absence of specific evidence.

Conclusion

  1. I find no breach of duty in the Defendant until publication of the Code of Practice in 1972.

  2. Thereafter the general comments by Mr Baird about his noisy tractor cab should have come together with the information and guidance in the Code.

  3. I would allow a total period of nine months for the Defendant to come to appreciate what was in the Code, relate it to Mr Baird and then obtain advice before implementing a solution.

  4. I find breach of duty by the Defendant in failing to recognise and take steps to protect Mr Baird from noise hazardous to health from 1st December 1972.

The case of Wignall v Secretary of State for Transport (2016), also considered similar provisions in relation to the 1960’s and 1970’s publications and said:-

The particulars of negligence as pleaded in paragraph 6 of the particulars of claim (page 7) do not all apply to BR. In particular, the provisions of the Factories Act 1961 did not apply to the deceased’s employment with BR and the references to the statute were directed at the other two Defendants. As against BR, in essence, the deceased alleged that he had been exposed to excessive noise without provision of personal hearing protection, BR having failed properly or at all to commission or carry out any or any adequate noise surveys and having failed to provide him with suitable and sufficient information or instruction or training in respect of the risk that his hearing might be damaged by exposure to noise. He alleged that BR knew or ought to have known that exposure to excessive noise could cause deafness, having regard to the nature of his employment with them. The conventional references to various publications were included, culminating (for the purpose of his claim against BR) in the pleading of the publication by the Ministry of Labour in 1963 of the pamphlet Noise and the Worker. The deceased recognised that his claim was ostensibly out of time, having regard to the applicable three year limitation period, but he pleaded that his date of knowledge for limitation purposes had not arisen until about 2010, that is to say less than three years before the commencement of the proceedings. By paragraph 8 of its defence (page 16) BR neither admitted nor denied this date of knowledge, but reserved its position on limitation and effectively put him to proof. Indeed the Claimant does bear the burden of proof in relation to establishing that this claim has been brought within the statutory limitation period.

11. In my judgment, it was implicit, having regard to the dates of employment pleaded, that the deceased was seeking to claim damages for hearing loss attributable to alleged exposure to excessive noise throughout his period of employment commencing in and continuing after 1957. In order to succeed in a claim for damages for noise-induced hearing loss, an employee must establish on the balance of probabilities not only that he was exposed to excessive noise (according to the recognised criteria applicable at the relevant time) but also that the employer was in breach of its duty to him to take reasonable care for his health, safety and welfare by preventing or minimising such exposure. This latter carries with it the need to prove that the employer had actual or constructive ‘guilty’ knowledge, that is to say was aware or ought to have been aware of the relevant risk. In order to recover damages, the deceased would have to prove that BR was in breach of duty. However, given that the conventional starting date for awareness by the average employer of the risk of damage to his employee’s hearing through noise is taken to be 1963, following the publication of Noise and the Worker, the defence pleaded at paragraph 4.5 (page 15) that the earliest date on which liability could arise in this claim was 1963 in accordance with that convention. This pleaded defence was without prejudice to the averment that, although it was admitted that a fireman on steam locomotives would not have been provided with hearing protection during the period of the deceased’s employment, nevertheless there was no breach of duty because work on steam locomotives was “not known to be excessively noisy and such measures were not necessary” and in any event that the “use of hearing protection on the footplate would have been unsafe”: see paragraph 4.4 of the defence (page 14)”

The Court in Wignall gave detailed consideration to the common law duty of care in NIHL cases and said as follows:-

DUTY OF CARE

At common law, an employer owes a duty to take reasonable care for the health, safety and welfare of its employees. This duty is owed to each employee as an individual. The well-known formulation of the duty by Swanwick J. in Stokes v Guest, Keen and Nettlefold (Bolts and Nuts) Ltd [1968] 1 WLR 1776 at p.1783 is a useful starting point:–

... The overall test is still the conduct of the reasonable and prudent employer, taking positive thought for the safety of his workers in light of what he knows or ought to know. Where there is a recognised general practice which has been followed for a substantial period in similar circumstances without mishap, he is entitled to follow it unless, in the light of commonsense or newer knowledge, it is clearly bad. But where there is developing knowledge, he must keep reasonably abreast of it and not be too slow to apply it. Where he has, in fact, a greater than average knowledge of the risk, he may therefore be obliged to take more than average or standard precautions. He must weigh up the risk in terms of the likelihood of injury occurring and the potential consequences if it does; and he must balance against this the probable effectiveness of the precautions that can be taken to meet it and the expense and inconvenience they involve. If he is found to have fallen below the standard to be properly expected of a reasonable and prudent employer in these respects, he is negligent.” (Emphasis mine).

In this case, the question arises as to the date from which BR was on notice of the risk of damage to the hearing of employees and in particular those working on and around working steam locomotives, through noise. By reference to Thompson v Smiths Shiprepairers (North Shields) Ltd [1984] QB 405, BR would, as in the case of any large but average employer then in business, have had actual knowledge of this risk with effect from 1963 when they would have become aware of “Noise and the Worker”. This much is, in my judgment, effectively conceded by paragraph 4.5 of the defence (page 8). In the Thompson case at p.423, Mustill J. formulated a liability test by reference to date of knowledge in these terms:–

From what date would a reasonable employer, with proper but not extraordinary solicitude for the welfare of his workers, have identified the problem of excessive noise ..., recognised that it was capable of solution, found the possible solution, weighed up the potential advantages and disadvantages of that solution, decided to adopt it, acquired a supply of the protectors, set in train the programme of education necessary to persuade the men and their representatives that the system was useful and not potentially deleterious, experimented with the system and finally put it into effect?” (Emphasis mine).

It is interesting to note that Mustill J. referred to the employees’ representatives, anticipating by implication that any relevant trade union would have to be consulted and that that union might not, for whatever reasons of its own, be immediately supportive of any change in the system of work. Such was, on the documents presented to me, albeit limited, apparently the position of the main rail union (of which, it is a reasonable inference to infer, in a closed-shop industry at that time, the deceased was probably a member), namely ASLEF.

  1. In Doherty v Rugby Joinery (UK) Limited [2004] ICR 1272 (CA) at [57], Auld L.J. said:–

Whilst the notion of a general ‘date of knowledge’ may provide a useful starting point for considering the date of knowledge in any particular case, that is all it is. Looking – as a court must – at each case on its own facts, the relevant ‘date of knowledge’ will vary according, not only to the general nature of the industry in its widest sense ... but also to the particular type of work within the industry that is under consideration, the tools used by the Claimant, the nature and pattern of his use of them and the extent to which ... the employer in those circumstances should have been put on notice that harm might ensue to the Claimant if he, the employer, did not do something about it.”

  1. In terms of noise-induced hearing loss, the accepted position is that for exposures at or above 90 dB(A) Lep,d (terminology used, as I understand it, to indicate or describe average exposure over notional eight hour working days or shifts) in the absence of greater than average knowledge, liability at common law in industry generally will run from 1963, the date when Noise and the Worker was first published and for exposures at or above 85 dB(A) Lep,d and below 90 dB(A) Lep,d, in the absence of above average knowledge, liability will only run from 1990 : see Baker v Quantum Clothing Group [2011] UKSC 17.

  2. In this case, the Claimant seeks to prove that he was regularly exposed to a level of noise at or above 90 dB(A) during the course of his employment with BR. If, subject to proof that he did suffer noise-induced hearing loss and that it was attributable at least in part to his work with BR, if he is to recover any damages for exposure before 1963 he must prove that BR had “above average knowledge” at an earlier date. In order to do so, as I understood Mr Rigby’s submissions, he relies firstly on the decision of Popplewell J. in Kellett v British Rail Engineering Limited (QBD, unreported, 3rd May 1984) in support of the proposition that BR had “guilty knowledge” as far back as 1956 or alternatively, on the correspondence disclosed by the Defendant, in support of the proposition that BR had such knowledge at some later point in time but before 1963.

 

  1. This point as to “date of guilty knowledge” was argued before Miss Recorder Ashworth in Tibbs v BRB (Residuary) Limited (Burnley County Court, claim number 1IR25884, unreported, 4th July 2014) and before Mr Recorder Tilbury in Moss v Secretary of State for Transport (Worcester County Court, claim number 0IR00419, unreported, 8th September 2015). It does not appear that the decision in Tibbs was cited to the recorder in the later case of Moss. Indeed Tibbs was only cited before me because the Claimant’s medical expert, Mr Zeitoun, had been a witness in that case and mentioned it to the claimant’s solicitors in response to the apparent suggestion that this would be the first case of its kind to come to trial, the Claimant’s solicitors and counsel having apparently been previously unaware of them. It will be noted that the defendants were the same in those trials as the Defendant in the present case although I am not sure that the defence solicitors were the same in both of them. It would appear from both judgments that the two recorders had essentially the same documentation before them as each other and essentially the same documentation as I have before me. The Kellett case was relied upon by the claimants in both those cases. In Tibbs the recorder found as a fact that in October 1961 BR had appreciated that men who were working on the locomotives were exposed to levels of noise which potentially could cause damage to hearing and held that BR knew or should have known at that point that there was a risk of injury. Mr Tibbs had been employed as a footplate fireman on steam locomotives but in his case only between 1961 and 1964.

  1. Interestingly, in that case it had been conceded that Mr Tibbs had been exposed during the course of his employment with BR to levels of noise in excess of 90 dB(A), but there was a joint statement by engineers on both sides (Mr Hill and Mr Worthington) who had apparently reached that agreement. Mr Jackson was not an expert witness in that case. No such concession is made in the present case before me. The decision of Miss Recorder Ashworth in Tibbs was, so far as I am aware, not appealed. However, in Moss, Mr Recorder Tilbury, having noted that, as in the present case, the defendant admitted that it possessed sufficient knowledge of the risk of damage to the human ear caused by exposure to high levels of noise to render it subject to a relevant duty from 1963 and that, much as in the present case, the claimant asserted that BR had the requisite knowledge from 1955 relying on Kellett, found that he was prepared to accept that BR had knowledge at an earlier date than 1963, but not before “the diesel reports were obtained in 1962” (see paragraph 58 of his judgment). It may be that Mr Recorder Tilbury saw other or different documents to those before me, because the disclosed documents before me indicate that there were diesel reports in 1961 and steam reports in 1962. Mr Jackson was the single joint engineering expert in Moss and in paragraph 53(6) of his judgment the recorder noted that Mr Jackson had seen documents relating to problems with diesel locomotives dating from 1961 but that these had not been produced before him. At all events, the recorder held that Kellett was a case dealing with “boilermaker’s deafness”, that is to say affecting employees working in the engineering workshops, whereas Mr Moss complained of noise exposure whilst working as a fireman between 1956 and 1964. The recorder appears to have held (see paragraph 61 of his judgment) that Mr Moss had not satisfied him that BR had “actual knowledge” before 1963.

  1. In my judgment the decision of Popplewell J. in Kellett is not directly applicable to the present case. Mr Kellett had worked in the engineering workshops at Crewe, Cheshire, as a fitter from 1955 to 1966. The judge was aware of the decision in Thompson and said (see page 3H of his judgment) that if “ ... the plaintiff’s case depended solely on the published literature produced I would have been inclined to adopt the view of Mr Justice Mustill ... that 1963 was about the date when the defendant should be found liable and for the same reasons.” However, documentary disclosure in that case showed, in his judgment, that the particular defendant, BRE Limited, had the means of knowledge from about 1951 and actual knowledge from 1955. In the present case, the Claimant relies upon the documents referred to in the judgment in Kellett, which are in the public domain having regard to that judgment, given in public albeit unreported, although no such documents were disclosed in the present case because they appear no longer to exist. Mr Rigby pointed out that correspondence relating to BRE Limited’s workshops included letters from “the Chief Medical Officer of British Rail” and from “the Railway Executive” and argued that the knowledge gained in relation to the workshop should have been applied to the locomotives, that is to say not just to the manufacture and repair of the locomotives but to their actual use on the rails. Popplewell J. found that BRE Limited had actual knowledge which was demonstrated by a series of documents starting in November 1955, including documents in which there was reference to the “British Rail Transport Commission” although in fact I believe that the strictly correct title of that public body was simpl the “British Transport Commission”. In any event, nowhere in the documents to which Popplewell J. made reference and upon which he relied in support of his finding of actual knowledge, turning the ‘innocent’ period into the ‘guilty’ period in 1955, is there any reference to noise exposure generated by the running in service of BR’s steam locomotives. It is a remarkable fact that no claim appears to have been made or, if made, succeeded, prior to the three recent claims of which I am aware which were issued nearly 30 years after the Kellett judgment.

  1. Essentially, I take the view that Kellett is a decision on its own facts relating to noise exposure of those working within engineering workshops at BRE Limited and to that particular employer’s knowledge of the risks in that case. I am prepared to infer that the risks to that type of employee may have been or even were known in general terms to BR as the state monopoly responsible for the running of the railways at that time, but that does not justify the proposition that BR should have investigated the position with regard to another “particular type of work within the industry”, that is to say the work of its footplate firemen employees or “the tools used by” those employees, that is to say steam locomotives, to adopt the wording of Auld L.J. in Doherty. Accordingly, I do not accept that BR’s “date of knowledge” in relation to the risks of knowledge of exposure to firemen working on steam locomotives in general passenger and goods service was as early as 1955”.

The 2000 Diagnosis Guidelines were also referenced in the same case, and HHJ Butler said:-

  1. Mr Zeitoun accepts the efficacy of what are commonly called the ‘Coles, Lutman and Buffin’ guidelines (page 281). The guidelines are conventionally named after their authors but are more properly “Guidelines on the diagnosis of noise-induced hearing loss for medicolegal purposes” published in 2000 in the Journal of Clinical Laryngology, (2000) Clin. Otolaryngol. 25, 264-273. I will simply refer to them as “the guidelines”.

  1. Mr Zeitoun’s evidence before me was to the effect that he had applied those guidelines in an orthodox manner, albeit taking into account certain atypical features of the audiogram taken for his purposes in October 2012. On the other hand, to put it mildly, Mr Jones does not “rate” those guidelines. This is demonstrated by the fact that his report contains a three page critique of what he describes as the “Coles, Lutman and Buffin test” (page 238), expressing the opinion that there are “a number of problems” with that test which in his opinion has been “shown to over diagnose noise-induced hearing loss”. He criticises the tables used for age-associated hearing loss by the authors of those guidelines, saying that the same are “inaccurate” (see pages 238–241). In his oral evidence he told me that he did not in fact “dismiss” the guidelines “in their entirety”. He recognised that a number of other medico-legal experts in this field do accept those guidelines although he mentioned the names of a number of other experts who, he says, would agree with him. Asked in cross-examination by Mr Rigby whether he had applied the guidelines to the audiogram taken for his purposes in February 2014, he replied by saying that he had not done so, that he did not agree with a lot that was in the guidelines, that many people took the same view but, remarkably, he added that “I am the only one who applies it (the test) properly”.

Mr Zeitoun and Mr Jones also gave evidence before Miss Recorder Ashworth in Tibbs and I note that at paragraph 18 of her judgment she said that the two experts “had very different styles”. Her view was that Mr Zeitoun gave his evidence in a more measured way than Mr Jones and, with a certain degree of diplomacy, she said that “Mr Jones could not in any way be accused of being reluctant to express his forthright opinion”. She preferred the evidence of Mr Zeitoun in that case although it is fair to say that she considered the difference between them to be more a matter of presentation than quality. I regret to say that I do not feel able to be quite so diplomatic. Before me, Mr Jones gave evidence in a way that can only be described as self-reverential and occasionally arrogant, of which latter characteristic his assertion that he was the only expert who actually applies the guidelines properly (notwithstanding that in large measure he did not agree with them and considered them to have no authority beyond the authors themselves) was the starkest example.

  1. Where two experts apply the same general methodology but simply come to a different opinion on the facts of a given case, a judge often faces great difficulty in preferring one to the other. In such cases, albeit rarely, a judge may be forced to decide the case on the balance of proof and, taking the view that it is for a claimant to prove on the balance of probabilities that he did suffer noise-induced hearing loss, to apply the burden of proof where the court is unable to choose between the experts. I do not find myself in that position in this case. Where two experts apply different methods of approach and where indeed one of the experts (a) dismisses significant parts of the guidelines applied by the other expert and (b) alternatively asserts that the other expert has not applied the guidelines in an orthodox fashion, it seems to me that I can and should decide between those experts, express a preference for one or the other and make a finding both as to the nature of the deceased’s hearing loss and as to causation accordingly. In doing so, I have had regard to the well-known principles stated by the Court of Appeal in Loveday v Renton [1990] 1 Med LR 117 at 125 (per Stuart-Smith L.J.) and Transco PLC v Griggs [2003] EWCA Civ 564 at [24] – [26] (per Hale L.J.) and having done so I unhesitatingly prefer and accept the evidence, opinion and conclusions of Mr Zeitoun. In my judgment he has reasonably applied the guidelines, taking proper account of atypical features and expressing his opinion in what was, after exploration in cross-examination by Mr Stewart and in re-examination by Mr Rigby, a measured, cogent and persuasive manner. In explanation of my preference I will refer to the nature of the technical dispute between the two experts and the application of the guidelines to this case.

  1. For the purposes of Mr Zeitoun’s report a pure tone audiogram was performed for him by an audiologist on 18th October 2012 (page 268). It appears at more than one place in the bundle (e.g. page 207). For the purpose of Mr Jones’ report a further pure tone audiogram was taken by an audiologist or technician on 18th February 2014 (page 271). As I understood the evidence of both experts, the appearances of those audiograms are quite similar, both demonstrating a hearing loss at the 2 kHz frequency, particularly in the right ear, greater than that at the 3 kHz and 4 kHz frequencies. It appeared to be agreed that this was an atypical appearance. Mr Zeitoun expressed the opinion that it was something he would expect to see and indeed had seen in perhaps 5 to 15% of cases but Mr Jones expressed the opinion that the audiograms simply did not show evidence of noise-induced hearing loss at all because, as an invariable point of principle on his part, hearing losses most marked at 2 kHz are not evidence of NIHL. His opinion was that even if the guidelines were used they could not be used to apply to such losses because they would result in a false diagnosis, this being “one of many flaws” in those guidelines (page 262). This dispute appears to have been the very same issue argued by the same experts in Tibbs where, as in this case, the claimant’s loss at 2 kHz was greater than would have been expected for someone of his age. In that case, as in the present case, Mr Zeitoun pointed to the chapter on noise-induced hearing loss in a recognised textbook, Scott-Brown’s Otolaryngology (6th Edition) (page 274), the editor of the relevant chapter apparently being one Dr Alberti. In the present case, the first part of the crucial passage at page 2/11/11 of the textbook (page 278) relied upon by Mr Zeitoun states:–

Noise-induced permanent threshold shift usually commences between 3 and 6 kHz, often around 4 kHz, and gradually worsens at that frequency and spreads into neighbouring frequencies. At first it may be asymptomatic but if it spreads into the lower frequencies of 3 and 2 kHz complaints begin.”

Pausing there, Mr Zeitoun’s opinion is that it is accordingly recognised that noise-induced hearing loss can affect the 2 kHz frequency. As will be seen, he also points out that the guidelines also refer to involvement at 2 kHz in some cases. If this is correct, then Mr Jones’ opinion that a loss (or “excess loss”) greatest at 2 kHz rather than 3 kHz is not a feature of noise- induced hearing loss and that the audiograms demonstrate that this deceased did not have such loss, cannot be correct or, at the very least, is seriously overstated. The passage from the textbook continues on pages 2/11/11 to 2/11/12 (pages 278, 280 and 279 of the trial bundle in that order, pages 279 and 280 having plainly been inserted in the wrong order):–

“’Typical’ audiograms are frequently found in texts but they are typical only of the group to which they apply. The ‘typical’ audiogram shown in Figure 11.12 is quite different from the audiogram shown in Figure 11.7....... It should be remembered that loss from noise is not the total hearing loss in an otherwise otologically normal person. It is the difference between the normal hearing corrected for presbyacusis” (age-associated hearing loss) “and the observed hearing loss. Individual susceptibility varies enormously and unfortunately there is no good way of predicting this.”

The guidelines do indeed indicate that the normal or typical presentation is of a measurement of hearing threshold level at 3, 4 or 6 kHz which is at least 10 decibels greater than that at 1 or 2 kHz. It is in my judgment important to bear in mind that guidelines are just that. They are guidelines not a straightjacket. The express purpose of the guidelines is said (page 281) to be:–

... to assist in the diagnosis of noise-induced hearing loss (NIHL) in medico-legal settings. The task is to distinguish between possibility and probability, the legal criterion being more probable than not. It is argued that the amount of NIHL needed to qualify for that diagnosis is that which is reliably measurable and identifiable on the audiogram. The three main requirements for the diagnosis of NIHL are defined: R1, high frequency hearing impairment; R2, potentially hazardous amount of noise exposure; R3 identifiable high frequency audiometric notch or bulge.” (Emphasis mine)

It is also correct that the guidelines refer, for the most part, to “uncomplicated cases of NIHL”, that is to say “typical” NIHL together with presumed “normal” age-associated hearing loss (AAHL): see paragraph 2.1 of the guidelines (page 282). In my judgment, this plainly does not mean that the guidelines cannot be applied to complicated cases where the NIHL is atypical or the AAHL is abnormal, merely that the expert using the guidelines should recognise the atypicality or abnormality. No doubt in some cases the atypicality and the degree of abnormality would be such as to prevent an expert using the guidelines but I am satisfied on the balance of probabilities that Mr Zeitoun did not find himself in that position. In my judgment he has interpreted the guidelines as a guide not a rigid rule: see paragraph 3.1 (page 282). It is to be noted that the authors of the guidelines considered that they had “been derived after careful consideration of the data available”.

  1. I note with interest that in the Moss case, where the defendant (this same Defendant) had no medical expert, leading counsel for the Secretary of State, Mr Limb QC, actually deployed the guidelines against the claimant’s expert in an attempt to demonstrate that he had not applied them properly and in the course of that case leading counsel specifically described the guidelines as being “the definitive report in these cases for diagnosis” (see judgment of Mr Recorder Tilbury at paragraph 50). I find it difficult to understand how the Defendant can, in the very next trial on the same point, seek to persuade the court to accept the evidence of an expert who does not accept the efficacy or accuracy of guidelines, far less their definitive nature, when this same Defendant has previously put them forward before a different court on similar facts as being the definitive basis for diagnosis in such cases.

  1. In my judgment and experience, categorisation of the guidelines as being the definitive basis for such diagnosis in the medico-legal context (whatever might be the case in clinical practice) is justifiable and correct. Requirement 3 (audiometric configuration) paragraph 7.2 (page 283) states that “evidence for NIHL is also provided on the audiogram by a sufficiently large relative bulge downwards and to the left in the 3 to 6 kHz range”, it being noted that a notch or a bulge may suffice. In this case Mr Zeitoun expresses the opinion that there is a bulge in the audiogram (page 268) at 3 kHz: see paragraph 3.2.4 of his report (page 200). To the contrary Mr Jones expresses the opinion, certainly by reference to the later audiogram (page 271) that the bulge is not at 3 kHz but at 2 kHz. In cross-examination Mr Zeitoun appeared to modify his opinion at least to the extent of accepting that the bulge might include 2 kHz. As was said in Griggs the willingness of an expert to reconsider or modify an opinion may well support his credibility rather than damage it. He did not agree with Mr Jones that excess loss at 2 kHz, greater than that at 3 or 4 kHz, contraindicated NIHL or prevented a diagnosis of NIHL, saying that the audiogram was atypical but still within the methodology of the guidelines. He accepted that if the atypicality had included the 1 kHz frequency he would then not have diagnosed NIHL.

  1. For the sake of completeness I should record that the tabular representation of the appearances of the October 2012 audiogram are set out on pages 269 (right ear) and 270 (left ear) in the bundle. The statistically predicted average for the general population of a man of the deceased’s then age (70 years) appears at line c, the deceased’s actual hearing levels at line a, the adjusted calculation for the loss attributable to age association at line f and the calculation as to the relevant audiometric bulge at line g. I pause to say that Mr Zeitoun’s calculation is made by reference to the guidelines and therefore by the use of tables which Mr Jones does not consider to be accurate. The tabular presentation of the audiogram result shows that there is no loss attributable to noise at 4 or 6 kHz on the right side, that there is a loss (13.6 decibels) at 3 kHz but a greater loss (25.8 decibels) at 2 kHz. In the left ear, the pattern is similar although the difference perhaps less marked, there being a small loss (5.4 decibels) at 4 kHz, a large loss (21.6 decibels) at 3 kHz and an even larger loss (29.8 decibels) at 2 kHz. It is, as both experts say, atypical. However, rejecting as I do Mr Jones’ opinion that the guidelines are not accurate, efficacious, definitive or applicable to this case the question still remains whether Mr Zeitoun’s opinion that the atypical result at 2 kHz is sufficiently within the scope of the guidelines to enable him properly to diagnose NIHL by reference to that methodology. Mr Jones, using tables different to those in the guidelines (derived he said from the National Study of Hearing published in 1991 but which tables were not included in the bundle) made his own calculation which also showed that the greatest loss was at the 2 kHz frequency (14.8 decibels) although it was pointed out that there was at least one, admittedly small, error in his calculations (the excess loss at 3 kHz in the left ear on the 2014 audiogram having been wrongly recorded by him as “45” rather than “55” (page 231).

  1. I have not overlooked the fact that Mr Jones was able to refer (page 242) to a sentence from a publication with which he does agree, that is to say a position paper of the American College of Occupational Medicine (ACOM, 2002). That paper, summarising “the typical features of NIHL” states eight principal characteristics of occupational NIHL, the sixth of which includes the words, “there is always far more loss at 3, 4 and 6 kHz than at 0.5, 1 and 2 kHz” and “the greatest loss usually occurs at 4 kHz”. He also referred (page 243) to a publication called Advances in Noise Research (1998) and in particular Chapter 8 thereof on “The clinical diagnosis of noise-induced hearing loss” written by Dr (now Professor) Luxon, which he said endorsed the American criteria, although I note that it does so in slightly different terms, perhaps because it was quoting the 1989 version of the ACOM criteria (see pages 727 – 728) to the same general effect. Mr Jones seizes on the use of the word “always”. That is his own opinion and it is unsurprising that he quotes a position paper with which he agrees and which agrees with him (a circular argument worthy of the criticism to the same effect made of Mr Zeitoun about considering the deceased’s atypicality to be within the acceptable range because in previous cases in which he had himself diagnosed NIHL such atypicality had been seen). However, Dr Luxon also accepts that NIHL “can begin in frequencies other than the 3 – 6 kHz region” albeit that “this is rare” and should only be accepted in certain circumstances. By necessary implication there could in such cases be a greater loss at 2 kHz. The evidence of Mr Jones before me was that it could never be diagnosed where there was more loss at 2 kHz in any circumstances so his reliance on this reference seems to be somewhat selective.

  1. In any event, if the UK guidelines from 2000 are to be regarded as the “definitive” approach in the medico-legal context in English courts, as in my experience is usually the case and as was this same Defendant’s position in Moss, then whatever might be the position in a non-forensic clinical diagnostic context in the USA (or even in England), the word “always” cannot be justified in the medico-legal context because the guidelines support the opinion that sometimes, albeit in a small proportion of cases, there can be more loss at 2 kHz.

  1. For all the foregoing reasons, I found the opinion of Mr Zeitoun to be logically consistent and his use of the guidelines and his approach to the audiogram results to accord with the orthodox medico-legal approach.Each case depends on its own facts and the quality of the evidence adduced. In the context of this present case, on the evidence presented to me, I reject Mr Jones’ opinion that where the greatest loss is at 2 kHz, NIHL cannot ever properly be diagnosed. I accept the opinion of Mr Zeitoun that although the deceased was atypical and his, NIHL in his case could properly be diagnosed, albeit as a rare or minority cases, subject to proof of hazardous noise exposure has been proved. The position is that, on the facts of this case, such exposure has been found proved.

  1. On the balance of probabilities, having regard to the main area of dispute between the experts, Mr Jones’ residual alternative argument that this deceased’s hearing loss could be explained by reference to some idiopathic or genetic cause, currently beyond scientific explanation, does not dissuade me from finding that on the balance of probabilities the hazardous noise exposure in the deceased’s employment was causative or materially contributory of part of his noise-induced hearing loss. Accordingly, he is entitled to an award of general damages for pain, suffering and loss of amenity to be assessed initially by reference to the totality of NIHL but then apportioned to reflect the portion that can be attributed to this Defendant’s breach of duty.

 

The 1989 Noise at Work Regulations

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations give effect as respects Great Britain to provisions of Council Directive 86/188/EEC (OJ No. L137, 24.5.86, p.28) on the protection of workers from the risks related to exposure to noise at work.

The Regulations–

(a) impose requirements on employers with respect to the making and review of noise assessments (regulation 4);

(b) impose requirements on employers with respect to the keeping of records of noise assessments and reviews thereof (regulation 5);

(c) impose requirements on employers with respect to the reduction of risk of damage to the hearing of their employees from exposure to noise (regulation 6);

(d) impose requirements on employers with respect to the reduction of exposure to noise of their employees (regulation 7);

(e) impose requirements on employers with respect to the provision to their employees of personal ear protectors (regulation 8);

(f) impose requirements on employers with respect to the marking of, and entry of their employees into, ear protection zones (regulation 9);

(g) impose requirements on employers and employees with respect to the use and maintenance of equipment provided by employers pursuant to the provisions of the Regulations (regulation 10);

(h) impose requirements on employers with respect to the provision of information, instruction and training to such of their employees as are likely to be exposed to specified noise levels (regulation 11);

(i) modify section 6(1) of the Health and Safety at Work etc. Act 1974 (c. 37) (general duties of designers, etc., of articles for use at work and articles of fairground equipment) so that any duty imposed by that subsection includes in specified circumstances a duty to provide certain information relating to noise generation (regulation 12);

(j) provide for the issue of certificates of exemption by the Health and Safety Executive and the Secretary of State for Defence (regulations 13 and 14 respectively); and

(k) revoke regulation 44 of the Woodworking Machines Regulations 1974 (S.I. 1974/903) (regulation 15).

Assessment of exposure

4.—(1) Every employer shall, when any of his employees is likely to be exposed to the first action level or above or to the peak action level or above, ensure that a competent person makes a noise assessment which is adequate for the purposes–

(a) of identifying which of his employees are so exposed; and

(b) of providing him with such information with regard to the noise to which those employees may be exposed as will facilitate compliance with his duties under regulations 7, 8, 9 and 11.

(2) The noise assessment required by paragraph (1) shall be reviewed when–

(a) there is reason to suspect that the assessment is no longer valid; or

(b) there has been a significant change in the work to which the assessment relates;

and, where as a result of the review changes in the assessment are required, those changes shall be made.

Assessment records

5. Following any noise assessment made pursuant to regulation 4(1), the employer shall ensure that an adequate record of that assessment, and of any review thereof carried out pursuant to regulation 4(2), is kept until a further noise assessment is made pursuant to regulation 4(1).

Reduction of risk of hearing damage

6. Every employer shall reduce the risk of damage to the hearing of his employees from exposure to noise to the lowest level reasonably practicable.

Reduction of noise exposure

7. Every employer shall, when any of his employees is likely to be exposed to the second action level or above or to the peak action level or above, reduce, so far as is reasonably practicable (other than by the provision of personal ear protectors), the exposure to noise of that employee.

Ear protection zones

9.—(1) Every employer shall, in respect of any premises under his control, ensure, so far as is reasonably practicable, that–

(a) each ear protection zone is demarcated and identified by means of the sign specified in paragraph A.3.3 of Appendix A to Part 1 of BS 5378, which sign shall include such text as indicates–

(i) that it is an ear protection zone, and

(ii) the need for his employees to wear personal ear protectors whilst in any such zone; and

(b) none of his employees enters any such zone unless that employee is wearing personal ear protectors.

(2) In this regulation, “ear protection zone” means any part of the premises referred to in paragraph (1) where any employee is likely to be exposed to the second action level or above or to the peak action level or above, and “Part 1 of BS 5378” has the same meaning as in regulation 2(1) of the Safety Signs Regulations 1980(3).

Maintenance and use of equipment

10.—(1) Every employer shall–

(a) ensure, so far as is practicable, that anything provided by him to or for the benefit of an employee in compliance with his duties under these Regulations (other than personal ear protectors provided pursuant to regulation 8(1)) is fully and properly used; and

(b) ensure, so far as is practicable, that anything provided by him in compliance with his duties under these Regulations is maintained in an efficient state, in efficient working order and in good repair.

(2) Every employee shall, so far as is practicable, fully and properly use personal ear protectors when they are provided by his employer pursuant to regulation 8(2) and any other protective measures provided by his employer in compliance with his duties under these Regulations; and, if the employee discovers any defect therein, he shall report it forthwith to his employer.

Provision of information to employees

11. Every employer shall, in respect of any premises under his control, provide each of his employees who is likely to be exposed to the first action level or above or to the peak action level or above with adequate information, instruction and training on–

(a) the risk of damage to that employee’s hearing that such exposure may cause;

(b) what steps that employee can take to minimise that risk;

(c) the steps that that employee must take in order to obtain the personal ear protectors referred to in regulation 8(1); and

(d) that employee’s obligations under these Regulations.

So in summary – breach of duty:-

  1. It is generally taken as the date by which the harmful effects of excessive noise were foreseeable.

  2. The 1972 publication said that where noise level was above 90DBA, an employer must take steps to reduce the noise, or if this was not practicable, provide hearing protection.

  3. The defendant’s date of knowledge is not fixed across all industries and all employers. It may vary from industry to industry.

  4. The Supreme Court in Baker v Quantum Clothing Group [2011] UKSC 17 confirmed that prior to 1 January 1990, the average employer owed a common-law duty of care to protect employees where their daily noise dose exceeded the ‘negligent threshold’ of 90dB(A) over eight hours. Baker v Quantum confirmed that the Factories Act applies to NIHL claims.

  5. These 1989 noise Regulations came into force on 1 January 1990. They set a First Action Level of 85 db(A) and a Second Action Level of 90 db(A).Regulation 4 – assessment of noise exposure- The employer must risk assess the noise levels where they are above 85db. This will allow them to identify the employees exposed to noise and to take action. At 90 DB Regulation 7 – reduce noise exposure- Every employer shall reduce employee’s exposure to noise to below 90db (other than by providing hearing protection)Regulation 8 – ear protection- An employer shall supply employees with hearing protection if they request it when the noise levels are likely to be above 85db. They must supply the protection when the noise levels reach 90db

  6. In addition to the obligations placed on employers by the above 1989 Regulations, there are the requirements of the Personal Protective equipment at Work Regulations 1992, and the Management of Health and Safety at Work Regulations of 1992 and 1999.

  7. The 2005 Noise Regulations replace the 1989 Noise Regulations and introduce new requirements for action to be taken by employers. For example, the 2005 Regulations require employers to take action to protect workers at levels of noise 5 decibels lower than in the 1989 Regulations and now require health surveillance (hearing checks) for workers regularly exposed above 85 decibels.

In summary – causation:-

The Coles guidelines state that 3 Main Requirements:-

R1 – high frequency hearing impairment- there should be evidence of high frequency hearing loss (at least 10 db more hearing loss at 3, 4 or 6 khz than at 1 or 2 khz).

R2 – potentially hazardous exposure to noise. There should have been exposed to a lifetime noise exposure of at least 100 DB A (Nil). 100 db(a) NIL can be achieved by noise exposure of 80 dB for 50 years plus, 85 db for 32 years or 90 dB for 10 years. Diagnosis can be achieved by the 2000 guidelines with a NIL of between 90 and 99DB (A) NIL.

95 dB (A) can be achieved by a noise exposure of 80db(A) lepd for 32 years plus, 85 dB (A) lepd for 10 years or 90 dB (A) lepd for 3 years.

90 db (A) can be achieved by noise exposure of 80 dB(A) lepd for 10 years, 85 dB (A) lepd for 3 years and 90 dB (A) lepd for 1 year.

R3 – high frequency audiometric notch/bulge - the audiogram should show a ‘notch’ or ‘bulge’ shape with a bilateral drop of 10 db or greater from 1, 2 KHZ down to 3,4, or 5 KHZ.

R3 (b), if the NIL is between 90 DB and 99 DB (A) the audiogram should show a notch with a bilateral drop of 20 DB or greater than 1, 2 KHZ down to 3, 4 or 5 KHZ.

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