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Music to my ears

BA v Bridgend County Borough Council [2016]

 

Facts and background

The Claimant was employed by the Defendant as a Music Teacher/Head of Music at a comprehensive school in the County Borough from about September 1997 until 15 September 2014, when her employment was terminated on the grounds of incapacity to attend work regularly due to health reasons.

The Claimant alleged that she was exposed to high levels of noise during the course of her employment with the Defendant. She alleged that she had been exposed to loud noise from various instruments and that dosemeter readings had been taken which revealed readings that were well in excess of the permitted noise levels.

The Claimant alleged that during classroom teaching, she had conducted classroom orchestra rehearsals for 3 to 4 hours a day and for 1 hour 3 evenings a week.

The Claimant alleged that she was not provided with ear protection until after she complained about a hearing problem in April 2011, at which stage a pair of earplugs was purchased for her.

The Claimant had been employed by another Local Authority in the period from 1993 until 1997, but did not bring a claim against that Local Authority on the basis that she was employed by them as a Music and Art Teacher and that she only taught music for 50% of the time.

The Claimant alleged that she had sustained noise induced hearing loss and tinnitus as a result of her exposure to excessive levels of noise during her employment with the Defendant. She alleged that the Defendant was in breach of its statutory duty and/or negligent. She 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 originally issued a Claim Form in which she claimed damages not exceeding £300. She amended the Claim Form to claim damages not exceeding £300,000 and sequently re-amended the Claim Form to claim damages exceeding £300,000. She presented a claim for general damages, special damages and interest in a sum of just under £500,000. Readers will appreciate that this was a substantial claim.

Lay and engineering evidence

We investigated the claim and interviewed a number of witnesses, including the former Headteacher, the current Headteacher, a Music Teacher colleague and her Line Manager. We also interviewed the Local Authority’s Health and Safety Officer.

The witnesses who worked with the Claimant at the school were surprised to hear the Claimant’s allegations regarding the extent of her noise exposure as the Head of Music at the school. They challenged her evidence in that regard and maintained that the Claimant was not exposed to the levels of noise which she alleged.

The former Headteacher said that the extent of music taught at the School reduced over the years and referred, in particular, to the fact that the Defendant decided to remove the teaching of A and AS level Music from the School in or about 2009. This meant that the number of hours taught by the Claimant was significantly reduced at a time when she alleged that her hearing loss was deteriorating. She also said that she was more interested in getting the school to be involved in classical contributions, whereas the Claimant was more interested in organising and hosting rock band competitions.

The witnesses all accepted that there would be more activity during the evenings at the time of Christmas concerts, annual productions and the School Eisteddfod, but pointed out that such activities would only take place for a limited amount of time during the school year and were not regular events.

The Claimant called 3 witnesses in support of her claim. One of the witnesses was the Music Teacher who had also given a Witness Statement on behalf of the Defendant. This in itself was highly unusual, but it should be pointed out that the evidence of the witness was largely consistent and there were very few differences between the contents of his respective Witness Statements. This was to his credit.

The other 2 witnesses were a Peripatetic Music Teacher who had worked at the school for a number of years and a Student Teacher who had worked at the school for a limited period of time in or about 2008. They provided Witness Statements which were very brief and written in very general terms.

We formed the view that the Claimant’s Witness Statements were not very strong and did not appear to support her case regarding her alleged exposure to long periods of excessive levels of noise.

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. A joint acoustic engineer was instructed and he carried out an inspection at the school. We liaised closely with the school with a view to ensuring that they tried to replicate the nature of the Claimant’s classes and the levels of noise to which she would have been exposed during her employment at the school. This was largely successful and the engineer was able to carry out his inspection and take noise measurements over the course of a morning. The Claimant and her Solicitor were present throughout the inspection.

The engineer placed great reliance upon the readings taken by the Claimant in the period from November to December 2011 and concluded that reference to the noise levels measured at the site inspection indicated that general music classroom work was unlikely to result in significant noise exposure, unless drumming was included in the performance. He also said that of the 11 days measured by the Claimant, noise levels exceeded 90 dB(A) Leq on one day, exceeded 85 dB(A) Leq on one day and exceeded 80 dB(A) Leq on 5 days, with 4 days falling below that level.

The engineer concluded that there was an overall average of 84.4 dB(A) LEP,d, but said that this average noise level was dominated by 2 days showing exposure at or around 90 dB(A) LEP,d.

The Engineer concluded his report by stating that based on noise measurements taken at the site inspection, and with reference to the Claimant's personal dosimetry, it was likely that the Claimant would have experienced hazardous daily noise exposure levels exceeding 90 dB(A) LEP,d on days involving drums/amplified music practice, exceeding 85 dB(A) LEP,d occasionally on other days, and at other times regularly exceeding 80 dB(A) LEP,d. He considered that a long term average daily noise exposure level of no greater than 84 to 85 dB(A) LEP,d did not seem unreasonable.

On the basis of his evidence, we formed the view that the Claimant might have been exposed to excessive levels of noise at certain times after The Control of Noise at Work Regulations 2005 came into force on 6 April 2006 and, to a lesser extent, in the period before that. However, it appeared that such exposure was minimal and would, ultimately, be a matter of evidence.

Medical evidence

The Claimant disclosed medical evidence in support of her claim from Mr Geoffrey Shone, Consultant ENT Surgeon. Mr Shone produced a standard report, in which he concluded that the Claimant had bilateral high frequency sensorineural hearing loss with tinnitus and hyperacusis. He classified the tinnitus as being moderately severe.

 

Mr Shone said that provided it could be substantiated that noise levels at work were excessive, he was of the opinion that it was more likely than not that the cause of the Claimant’s hearing loss, tinnitus and hyperacusis was a combination of noise exposure and ageing.

 

Mr Shone further stated that he was of the opinion that the Claimant’s prospects on the open labour market had been adversely affected by her ear symptoms and supported her claim for general damages for potential handicap on the open labour market.

 

The Claimant also disclosed evidence from Mrs Catherene McKinney, Consultant Clinical Scientist (Audiology). She produced a very long report, in which she concluded that the Claimant should have a binaural receiver in the canal combination instruments fitted by an experienced Audiologist. She also recommended that the Claimant should have counselling and support during the fitting process.

 

The Court gave the Defendant permission to obtain evidence from an expert in the same field as Mrs McKinney, but it was eventually decided that there was little to be gained by the Defendant obtaining such evidence. 

 

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

 

Mr Jones examined the Claimant and concluded that the Claimant’s symptoms had worsened when her alleged exposure was less. He was of the opinion that her hearing loss was immaterial because her tinnitus and hyperacusis were secondary to her psychological status.

 

Mr Jones considered that the Claimant had hyperacusis and that this was often seen with tinnitus. He believed that it was more probable that her tinnitus was a psychological phenomenon and also her hyperacusis and hearing loss.

 

Mr Jones was of the opinion that the majority of the Claimant’s symptoms were psychological in origin. He also concluded that the Claimant did not require hearing aids and should not use earplugs. He said that the therapy recommended by Mrs McKinney had not worked.

 

The Claimant did not initially intimate a claim for damages for psychiatric injury, but did so at the Costs Case Management Conference in April 2015. The District Judge gave the parties permission to obtain psychiatric evidence

 

We instructed Dr Dinshaw Master, Consultant Psychiatrist, to act as the Defendant’s expert witness.

 

Given the Claimant’s history of recurrent depression from 2000, Dr Master was of the opinion that it was likely that the Claimant would have suffered with further symptoms of depression, even if she had not encountered any problems with tinnitus and deafness. He said that the Claimant had significant personal problems and issues before encountering problems with tinnitus and deafness. Dr Master did not consider that her depressive condition had prevented the Claimant from working in her normal capacity. However, he believed that there was likely to be an interaction between her depressive symptoms, hearing problems and her perception of how she would be able to cope in work.

Dr Master’s report was disclosed to the Claimant’s Solicitors. The Claimant did not disclose any psychiatric evidence of her own, which was surprising in the circumstances.

Conclusion

The claim was listed for Trial before the Circuit Judge in Cardiff County Court on 18 to 21 April 2016 inclusive. We attended a conference with Counsel and the expert witnesses in London, which reinforced the Defendant’s view that the claim should be contested to Trial. Shortly after the conference took place, the Claimant’s Solicitors approached us and indicated that the Claimant would be discontinuing her claim. The claim was eventually discontinued on 10 March 2016.

This was a case which pre-dated QOWCS and the Defendant was entitled to recover its costs of the action, to be assessed if not agreed.

Comment

 

This was a highly unusual claim and our initial reaction upon reading the papers was that the claim had little or no prospect of success. We were not aware of any similar claims having been brought against a Local Authority in the past and this was also the experience of Counsel and the ENT Surgeon instructed. We were conscious that this was likely to be a ground breaking claim and that it would need to be investigated thoroughly if the claim were to be successfully 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 her legal advisers came to the same conclusion, having considered all the evidence. We understand from our discussions with the Claimant’s Solicitors that the evidence of the joint acoustic engineer was a very important factor in the decision to discontinue the claim.

 

This was a claim which had the potential to set a precedent and we know that the Defendant is both relieved and pleased that the claim has been discontinued.

 

It would appear that claims of this nature are becoming more popular and we are dealing with one other similar claim which is in its very early stages.

 

Some readers may be aware that claims of this nature have received some recent publicity in the national press. We refer to the recent report of a case involving a viola player who is suing the Royal Opera House on the basis that he suffered sudden and irreversible damage from the brass section immediately behind him whilst performing a composition by Wagner which has allegedly ended his career.

 

We hope that this article will raise the level of awareness of potential claims of this nature and we are sure that Local Authorities and Defendants generally will look at this particular issue carefully in the future.