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Our annual keynote seminar was held on Tuesday, 18 June 2019 at the Vale Resort. Speakers included Simon Evans, Peter Bennett, Amanda Evans and guest speaker, Steven Ford QC.

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Our annual keynote seminar was held on Tuesday, 18 June 2019 at the Vale Resort. Simon Evans considered the impact of the Civil Liability Act 2018, Peter Bennett provided a regulatory update and Amanda Evans and guest speaker, Steven Ford QC, discussed recent developments following CN v Poole BC [2019] UKSC 25.

Our monthly review of developments in the insurance and public sector. This edition considers a claim brought under the Occupiers’ Liability Act where the Claimant slipped and fell whilst visiting a leisure centre and case summaries relating to the recoverability of Counsel’s fees and the Court’s approach to Blamire awards.

This edition considers recent case-law regarding fundamental dishonesty, the necessity for bespoke life expectancy evidence, the meaning of ‘use of vehicle’ where a vehicle had been parked in a private garage which caught fire and apportioning liability for speeding.

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More music to my ears

CHL v City and County of Swansea [2017]

Readers are referred to our previous article regarding the case of BA v Bridgend County Borough Council entitled “Music to My Ears”. We mentioned towards the end of that article that we were dealing with another similar claim which was in its very early stages. This is the case in question.

The Claimant issued a Claim Form in which he named Neath Port Talbot County Borough Council as the First Defendant and City and County of Swansea ("the local authority") as the Second Defendant.

The Claimant subsequently served Particulars of Claim in which he named the local authority as the only Defendant. We were informed by the Claimant’s Solicitors that the Claimant had decided not to pursue a claim against Neath Port Talbot County Borough Council in view of the fact that he was only employed by that organisation for about 12 months.​

The Claimant alleged that he was employed by the local authority as the Head of Music at a boys comprehensive school between 1996 and 2000 and as a Music Teacher at a mixed comprehensive school between 2000 and 2011. He alleged that he was employed as a part-time English and Mathematics Teacher from 2011 onwards.

The Claimant alleged that he was exposed to excessive noise during his employment with the local authority, which had led to him sustaining a hearing loss and tinnitus.

 

We investigated the claim and interviewed a number of witnesses. This was not an easy task as the schools at which the Claimant had worked had closed some years ago and the teachers were redeployed to other schools or took early retirement. We were unable to trace some potential witnesses, which was unfortunate.

 

It became clear during our investigations that there was far more emphasis on the teaching of music at the first school where the Claimant was the Head of Music than at the second school where he was a Music Teacher.

 

It also became apparent that the Claimant stopped teaching music sometime between 2005 and 2007 when he went to work in the specialist teaching facility at the second school. This meant that he was not exposed to excessive noise after 2007 (and possibly earlier) and was contrary to the Claimant’s pleaded case.

 

The Claimant alleged that, at the first school, he taught music for 22.5 hours per week and that the Headteacher put a huge emphasis on musical activities. He alleged that he was expected to be in the school hall with the orchestra every morning and that the orchestra would play for 60 minutes during the lunch hour and 15 minutes during the morning break in the lead up to a school concert. He maintained that he would practice with the orchestra 4 or 5 times a week if they were approaching a concert. He said that special assemblies were held about 6 times a year and the orchestra would perform up to 6 concerts throughout the year. He also alleged that there would be several external concerts and parents’ evenings and an awards ceremony once a year. The orchestra would also be involved in the annual Eisteddfod and the annual music show.

 

The Claimant described the noise during the rehearsals and in performances as being intense. He alleged that, at the second school, he would hold an annual musical which would involve rehearsals with the band every night for around 3 ½ months before the show took place and which lasted for 2 hours each night. This was an extraordinary statement in respect of which the Claimant would have been cross-examined in detail had the matter proceeded to trial.

 

The Claimant confirmed that there was less emphasis on music at the second school and he was no longer required to play music with the orchestra prior to registration or assembly in the morning and during the morning and lunch breaks.

 

The Claimant also said that a higher proportion of children than usual played brass instruments in the GCSE lessons and he described the noise generated as "especially loud".

 

The Claimant alleged that he was not given any warnings about the risk of noise exposure, not advised to wear hearing protection, not given any training in relation to noise exposure and not provided with hearing protection.

 

Each of the witnesses that we interviewed thought that the Claimant was overstating the extent of his exposure to excessive noise during his employment, and, in particular, at the second school. We interviewed the Headteacher of the second school and he was of the opinion that the Claimant was not exposed to much noise during his employment at that school.

 

We were also able to obtain evidence from some employees in the local authority’s Health and Safety Department. Their evidence was quite helpful, but limited due to the passage of time.

 

The Claimant had gone to some effort to obtain supportive witness evidence and there were a number of witnesses, including two former school pupils, who gave evidence, which was helpful from his point of view. Each of the witnesses stated in their Witness Statements that they were not aware of any hearing protection being provided or any advice being given to wear hearing protection.

 

The Claimant alleged that he had sustained noise induced hearing loss and tinnitus as a result of his exposure to excessive levels of noise during his employment with the local authority. He alleged that the local authority was in breach of its statutory duty and/or negligent. He alleged breaches of various Regulations, the most important of which were the Noise at Work Regulations 1989 and the Control of Noise at Work Regulations 2005.

 

The Claimant issued proceedings in which he claimed damages exceeding £25,000 but not exceeding £250,000. However, the Claimant’s Solicitors served a Schedule of Loss at a fairly early stage in the proceedings in which it was stated that his claim for General and Special Damages was in the total sum of £37,693.87.

 

Acoustic engineering evidence is essential in a case of this nature and the normal practice is for such evidence to be obtained on a joint basis. Mr Nicholas Hill was instructed as the parties’ joint acoustic engineer in this particular case. Mr Hill was the acoustic engineer who was jointly instructed by the parties in the case of BA v Bridgend County Borough Council. We took the view that Mr Hill was an appropriate choice of expert given his experience of dealing with the BA case and the comprehensive nature of his report in that case. The fact that Mr Hill was able to deal with the matter within the timescale laid down by the Court was also an important factor in his instruction.

 

The Claimant’s Solicitors did not object to Mr Hill being instructed. It was agreed that Mr Hill would prepare a desktop report as the school premises at which the Claimant worked were no longer operational and it would have been impossible to replicate the type of lessons that the Claimant undertook at those schools. However, Mr Hill was able to draw upon the readings obtained by him in the BA case.

 

He concluded that it was unlikely that the Claimant would have regularly experienced a hazardous daily noise exposure level attaining 90 dB(A), although occasional exposure exceeding 85 dB(A) was likely, particularly when exposed to music involving live drumming. He was of the opinion that an average daily noise exposure level of no greater than 84 to 85 dB(A) did not seem unreasonable based upon the readings in Mrs Addicott's case. He calculated that the Noise Immission Level was 96 to 97 dB, which was below the level of 100 dB. He emphasised that the Noise Immission Level did not include additional exposure to noise from personal musical training or serving in the Salvation Army Band.

 

In summary, Mr Hill was of the opinion that the Claimant was not exposed to excessive levels of noise during his employment with the local authority and we were pleased to note his conclusions.

 

The Claimant's Solicitors encountered some difficulty in dealing with the question of medical evidence, but eventually disclosed a report from Mr A Raza, Consultant ENT Surgeon, dated 28 September 2015. Mr Raza was of the opinion that the Claimant was suffering from noise induced hearing loss as long as he had been exposed to significant noise immission levels in the past. He was also of the opinion that presbyacusis and idiopathic factors had contributed to the hearing loss.

 

Mr Raza was further of the opinion that the Claimant was suffering from tinnitus which had been caused by a combination of noise induced hearing loss (if he had been exposed to significant noise immission levels in the past), presbyacusis and idiopathic factors.

 

We formed the impression that Mr Raza’s report was not a very strong report, but nevertheless, we took the view that it was appropriate for the local authority to obtain its own independent medical evidence given the nature, importance and value of the claim.

 

We arranged for the Claimant to be examined on behalf of the Defendant by Mr Philip H Jones, Consultant ENT Surgeon. Mr Jones is a very experienced expert witness who has dealt with a significant number of noise induced hearing claims over the years. He was also the medical expert instructed by us to act on behalf of the Defendant in the BA case.

 

Mr Jones was of the opinion that there were 2 possible histories of noise exposure in this matter which were as follows:

 

  • Little exposure before 1995 and after 2007, with the major exposure being between 1996 and 2000. 

  • Significant exposure before 1995 and some possible exposure after 2007.

 

Mr Jones said that a substantial amount of the alleged noise exposure was before 1999 when his hearing was reported as normal in the left ear with a slight loss of sudden recent origin in the right ear. If so, the Claimant had no NIHL in 1999. If 4 years of high level exposure (to include the 12 month period when he was employed by Neath Port Talbot County Borough Council) had caused no NIHL, he could not have developed any after 1999 from one more year of alleged high level exposure followed by 7 years of lower level exposure. He said that the same principles applied in respect of the second potential period of exposure.

 

Mr Jones said that the diagnosis of NIHL depended upon an 16 October 2012 audiogram, but also said that this had been influenced by his recent idiopathic loss. He was of the opinion that there was evidence on both sides of an idiopathic loss causing notching at 3 kHz, which could not be due to noise exposure. Mr Jones was also of the opinion that the Claimant could not have had NIHL in 1999 and he could not have had NIHL after 1999 if he had none before. In summary, Mr Jones’ conclusion was that the Claimant was not suffering from NIHL and tinnitus as a result of his exposure to excessive noise during his employment with the local authority.

 

Following the disclosure of Mr Jones’ report to the Claimant’s Solicitors, we instructed Mr Jones to contact Mr Raza to discuss the matter and prepare a Joint Statement. Mr Jones encountered great difficulty in contacting Mr Raza and getting him to deal with the matter. We provided Mr Jones with a copy of Mr Hill’s report and we understand that he provided Mr Raza with a copy of that report.

 

Mr Raza and Mr Jones eventually discussed the matter and prepared a Joint Statement. They stated that they agreed that the engineering evidence in itself was such that a finding of NIHL and tinnitus was highly improbable, regardless of any finding on pure tone audiometry. They concluded that NIHL and associated tinnitus were improbable in the circumstances.

 

The upshot of the Joint Statement was that Mr Raza and Mr Jones were not of the opinion that the Claimant was suffering from NIHL and associated tinnitus arising from his employment with the Local Authority. 

 

The claim was listed for trial before the Circuit Judge in Swansea County Court in September 2017. The Claimant’s Solicitors served Notice of Discontinuance on 12 April 2017. This was a case which post-dated 1 April 2013 and in respect of which the Claimant had the benefit of the QOCS shield. The local authority was not able to recover its costs of defending the claim for this reason.

 

Conclusion

 

This was a highly unusual claim, but we were fortunate in being able to call upon and utilise our experience in dealing with the claim brought by BA. We were mindful of the fact that this was likely to be a ground breaking claim and we advised the Local Authority that the claim would need to be investigated thoroughly if it was going to be contested.

 

Our investigations into the matter, including the obtaining of lay witness evidence, engineering evidence and medical evidence, led us to the conclusion that the Claimant was not going to succeed in establishing liability against the Defendant and that the Defendant was justified in contesting the claim to trial.

 

It would appear that the Claimant and his legal advisers came to the same conclusion having considered all the evidence, and, in particular, the acoustic engineering and medical evidence.

 

This was a claim which had the potential to set a precedent and we know that the local authority was pleased that the claim was discontinued.

 

Our experience of dealing with this claim and the BA claim has led us to conclude that it would be very difficult for a Music Teacher to successfully pursue a claim for damages for noise induced hearing loss and tinnitus arising out of his/her employment with a local authority. It will be interesting to see if we are instructed to deal with any similar claims in the future.