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Too much noise?

 

MJW v Merthyr Tydfil County Borough Council & Others [2019]

 

This was an interesting and rather unusual noise induced hearing loss (NIHL) claim where we were instructed to act on behalf of the Local Authority, Merthyr Tydfil County Borough Council.

 

Background

 

The Claimant was born on 13 June 1953 and is now 65 years old.

 

The Claimant alleged that he was employed by the First Defendant, Triang Pedigree Limited, between 1970/71 and 1973/74.

 

He alleged that he was employed by the Local Authority, and its predecessors, between 1974/75 and 1976/77 and again between 1979 and 2009. The Local Authority admitted that the Claimant was employed by them, and their predecessors, at various times between 1974/75 and 2009 on the basis of the information contained in the HMRC Employment Schedule, but could not be more specific as to the exact dates.

The Claimant alleged that he was employed by the Third Defendant, Cambridge Box Limited, between 1975/76 and 1978/79.

The Claimant alleged that he was exposed to excessive noise during his employment with the Defendants during the periods in question and that the Defendants were negligent and/or in breach of their statutory duty in that regard. The allegations made against the Local Authority included allegations of breaches of the Noise at Work Regulations 1989 and the Control of Noise at Work Regulations 2005.

 

Readers will appreciate that this was a very old claim, with the Claimant first alleging exposure to excessive noise with the First Defendant almost 50 years ago and with the Local Authority almost 45 years ago. We considered and investigated the issue of limitation, but were unable to challenge the Claimant’s date of knowledge and allege that the claim was statute barred.

 

The Claimant alleged that he was employed by the Local Authority as a Labourer until 1986, as a Foreman from then until around 2000 and finally as a Supervisor. He alleged that he worked in the Grounds Maintenance Department. He also alleged that from 1986 onwards, he worked at a cemetery where he operated grass cutting machinery and strimmers. He further alleged that he became a Supervisor from around 2000, as a result of which he operated machinery around 60% of the time, with the remaining 40% of the time spent working near colleagues and in the office.

 

It was clear from the outset that the contents of the Particulars of Claim were inconsistent with the information provided by the Local Authority during the pre-litigation stage and were also inconsistent with the contents of an open letter written by the Claimant’s solicitors on 24 March 2015. We dealt with these issues in the Local Authority’s Defence as follows:

 

  • It was stated in the letter that the Claimant became a Foreman in 1986, whereas it was pleaded in the Particulars of Claim that the Claimant became a Supervisor from around 2000.

  • It was stated in the letter that the Claimant would spend 50% of his time labouring and 50% of his time supervising during the period from 1986 to 1989, whereas it was pleaded in the Particulars of Claim that the Claimant only commenced supervisory duties in or around 2000.

  • It was stated in the letter that from 1989 onwards, the Claimant ceased assisting with labouring duties and remained in a supervisory position and was not "really exposed to excessive noise" once he became a Supervisor in 1989. This was at variance with the Particulars of Claim in which it was pleaded that the Claimant operated machinery around 60% of the time from around 2000 onwards.

 

The Claimant chose not to serve a Reply to Defence to deal with these issues, which we found surprising. However, he indicated his intention to amend the Particulars of Claim to deal with a number of issues arising.

 

We were surprised by the nature of the proposed amendments to the allegations made against the Local Authority in view of the contents of the letter from the Claimant’s solicitors dated 24 March 2015. It was clear that the Claimant was keen to distance himself from the comments made in that letter and we were intrigued as to the instructions given to enable that letter to be written in the first place.

 

The Claimant was given permission to amend his Particulars of Claim and the Defendants were given permission to amend their respective Defences.

Lay and engineering evidence

We investigated the matter and were able to locate some witnesses who had worked with the Claimant, albeit for fairly short periods of time. The parties proceeded to exchange Witness Statements.

 

The Claimant disclosed a Witness Statement from himself, but no supporting witnesses.

 

He alleged that he was employed by the Local Authority as a Labourer until 1986, as a Working Foreman until 2000 and as a Supervisor from 2000 onwards. He gave evidence regarding his work activities and his exposure to noise as a result of carrying out those activities. He alleged that he became a Supervisor in approximately 2000 and that his role changed due to the fact that he was based in different cemeteries. His duties included instructing staff on their job role, walking around with the Chargehand and allocating duties. He alleged that he was still exposed to noise coming from lawnmowers, backpack blowers and jackhammers during this period.

 

He alleged that he was exposed to the noise of a jackhammer for about 1.5 hours a week and the noise of strimmers for between 4 and 5 hours a week during this period.

 

He alleged that ear defenders were issued to the staff in or about 2000 but, overall, they did not wear the ear defenders as this was not enforced. He said that he never wore ear defenders during his employment, which we found surprising. This could have been interpreted as a tacit admission that he was not exposed to excessive noise.

 

We interviewed 3 witnesses in connection with the claim. Their evidence was that the Claimant would only have been exposed to excessive noise for limited periods of time and that hearing protection was available if required. They said that the process of digging graves was generally not noisy and no hearing protection was required when undertaking this task. It was accepted that using a jackhammer to dig a grave was noisy and that hearing protection was always worn when carrying out such work.

 

The witnesses thought that hearing protection was provided from about 1991 onwards and said that they used it as and when required.

 

The witnesses did not recall the Claimant ever using a jackhammer. They recalled him using a strimmer, but said that this was not very often.

 

The parties were given permission to jointly instruct an Acoustic Engineer and agreed to instruct Mr Steven Tudor of Strange Strange and Gardner to deal with the matter. He produced a desktop report given the antiquity of the claim.

 

Mr Tudor concluded that the Claimant was probably not exposed to excessive noise during his employment with the First Defendant, but was exposed to excessive noise during his employment with the Local Authority and the Third Defendant, and should have been provided with hearing protection. He calculated the Claimant's lifetime Noise Immission Level was between 99 and 109 dB(A). He apportioned this as to 4% to the First Defendant, 77% to the Local Authority and 19% to the Third Defendant.

 

On the basis of the witness evidence provided by the Local Authority, he estimated the lifetime Noise Immission Level to be between 98 and 107 dB(A). He apportioned this as to 5% to the First Defendant, 70% to the Local Authority and 25% to the Third Defendant.

 

Mr Tudor's report confirmed that the Local Authority had by far the greatest period of exposure and liability in respect of the claim. He calculated that the Local Authority's contribution lay between 70 and 77%. We were disappointed to note Mr Tudor’s conclusions given the evidence of the lay witnesses regarding the Claimant’s apparent limited exposure to excessive noise.

Medical evidence

The Claimant disclosed medical evidence in support of his claim from Mr Geoffrey Shone, Consultant ENT Surgeon.

Mr Shone was of the opinion that the Claimant was suffering from bilateral sensorineural hearing loss which had been caused by a combination of ageing and exposure to excessive noise. He calculated that the average binaural hearing loss was 25.3 dB, which was made up of a hearing loss due to ageing of 16.7 dB and a hearing loss due to noise of 8.6 dB.

He was of the opinion that the Claimant was not suffering from tinnitus.

He also said that the Claimant would benefit from wearing bilateral hearing aids and appeared to recommend that the Claimant should purchase private hearing aids.

We were a little surprised to note Mr Shone’s conclusion that the Claimant was suffering from noise induced hearing loss because the Local Authority had in its possession audiometric screening of the Claimant undertaken in 1994, which revealed that he did not have a hearing disability at that time. Unfortunately, the audiogram upon which this conclusion was (presumably) reached could not be found, despite an extensive search.

The Council’s claims handlers considered the Claimant’s medical records and personnel file which contained no entries of note in relation to the issues of deafness and hearing loss. We considered the occupational health records, which also contained no relevant entries.

The Claimant was examined on behalf of the Defendants by Mr Andrew Parker, Consultant ENT Surgeon.

Mr Parker was of the opinion that the Claimant was suffering from deafness as a result of ageing and that anything in excess of that would be non-age/non-noise in nature. He was of the opinion that the Claimant had not been noise deafened. He also said that if the Court were to find otherwise, the Claimant would not have been disabled by any noise deafening.

Mr Parker said that the Claimant's hearing might deteriorate further in time, but this deterioration would not be as a result of noise exposure. He also said that the Claimant would not benefit from any medical or surgical intervention. He was of the opinion that the hearing losses on the right were bad enough to warrant the wearing of a hearing aid, but the position on the left was different.

Mr Parker and Mr Shone discussed the matter and prepared a Joint Statement. They agreed that the audiogram undertaken by Mr Parker on 3 September 2017 was more likely to be accurate than Mr Shone’s audiogram undertaken on 17 March 2015. Mr Parker was of the opinion that the Claimant’s hearing losses could easily be explained by age alone, and even if the Court were to find that he had not been noise deafened, it would not have disabled him. Mr Parker said that the degree of hearing loss of 2.1 dB was not material, appreciable, significant, noticeable and meaningful. Mr Shone acknowledged that the diagnosis of NIHL was borderline and dependent upon noise evidence. He also maintained that the hearing loss was appreciable, although he acknowledged that some experts would regard this as “de minimis”.

The contents of the Joint Statement were helpful from the Local Authority’s point of view and it was clear that Mr Shone had made concessions to Mr Parker.

Trial

Proceedings were commenced in the County Court Money Claims Centre and were transferred to Merthyr Tydfil County Court following the filing of Directions Questionnaires. The District Judge allocated the matter to the Fast Track, but gave the Claimant and the Defendants joint permission to obtain their own medical evidence. The case was listed for Trial on 19 September 2018.

In view of the contents of the medical reports and the Joint Statement, the Defendants took the view that it was essential that Mr Parker and Mr Shone attend Court to give oral evidence. The Defendants issued an Application for such permission, which was heard before the District Judge on 26 July 2018. The District Judge granted the Application, re-allocated the matter to the Multi Track and ordered that the matter be transferred to Cardiff County Court.

The case was then listed for Trial in Cardiff County Court on 27 and 28 December 2018.

The Claimant discontinued his claim against the First Defendant in late August 2018. This was not entirely surprising given the contents of the joint engineer’s report.

Both we and the solicitors for the Third Defendant thought that the Claimant might also decide to discontinue his claim against the Local Authority and the Third Defendant. We invited the Claimant to discontinue his claim, but he was not prepared to do so.

The Claimant was represented by the firm of Roberts Jackson Solicitors who specialise in pursuing deafness and other disease claims. The firm went into administration on 28 September 2018 and the administrators sold it immediately to the firm of AWH Solicitors. We thought that the Claimant might have discontinued his claim at that time, but he did not do so.

We took the view that this was a case where the evidence in relation to noise exposure was fairly minimal and that there were serious doubts as to whether the Claimant would be able to establish medical causation in any event. The solicitors for the Third Defendant were of the same view.

 

We agreed to hold a joint conference with Counsel and Mr Parker in order to assess and valuate the issue of medical causation. Counsel was of the opinion that Mr Parker’s evidence was strong and persuasive and that the Local Authority and the Third Defendant would be justified in contesting the matter on the basis that the Claimant would struggle to establish medical causation. He also advised that the Local Authority and the Third Defendant should not admit breach of statutory duty and negligence, but leave all matters in issue. He further expressed the opinion that the Claimant was likely to discontinue his claim before Trial.

We contacted the solicitors for the Claimant on a number of occasions in the period leading up to the Trial and the solicitors for the Third Defendant did likewise. We made it clear that the Defendants were willing to contest the matter to Trial and asked them to confirm that they had reserved Counsel and arranged for Mr Shone to attend the Trial. Their replies were somewhat evasive and we were not convinced that they had taken these steps.

The Claimant was again invited to discontinue his claim in order to save the incurring of unnecessary costs.

We were eventually contacted by the solicitors for the Claimant on 11 December 2018, when they indicated that the Claimant would discontinue his claim against the Local Authority and the Third Defendant on the basis of each party bearing its own costs. The discontinuance was on the basis that the Local Authority and the Third Defendant would bear their own costs and disbursements as this was a QOWCS claim.

We were pleased that the claim was eventually discontinued, although we were disappointed that this did not occur at an earlier date. We understand that the Claimant’s claim was being funded by way of a CFA and the Claimant’s Solicitors had invested a significant amount of time and resources in pursuing the claim over a number of years.

Comment

This case highlights the importance of taking a robust stance in an appropriate case. There were numerous inconsistencies in the Claimant’s pleaded case and evidence and we were not convinced that the Claimant had been exposed to excessive noise during his employment with the Local Authority on the basis of the lay witness evidence obtained. This appeared to be borne out by the medical evidence which showed that either the Claimant was not suffering from any hearing loss caused by exposure to excessive noise or that such hearing loss was minimal. The Defendants were willing to require the Claimant to prove his claim in Court on oath and it appears that he was not willing to do so.

We were surprised that the Claimant’s solicitors did not review the matter and advise the Claimant to discontinue his claim at an earlier stage in view of the numerous discrepancies in the evidence and documents. The Claimant did not make a Part 36 offer which we thought was surprising.

The Local Authority were adamant that they wished to contest the claim and their stance was vindicated by the late discontinuance of the claim against them.