Mark Bradley, instructed by Keoghs, represents defendant in Pandya v Walkers Crisps Ltd & Anor (Leicester County Court, 2018).
A 70-year-old claimant commenced proceedings in negligence against her former employers, claiming that she was exposed to substantial levels of noise over 30-year period of employment (1978-2008) as a packer (1978-1980), quality controller (1981-1998) and laboratory technician (1999-2008). She attributed this noise exposure to her alleged hearing impairment.
After the case had been allocated to the fast track, DJ Reed granted an Order for the medical experts to give oral evidence. As a result, the entirety of the 1-day trial, which took place on 5 October 2018, concerned the parties’ expert medical evidence. Post-trial, counsel were directed to file written submissions and HHJ Hedley handed down judgment on 20 November 2018.
The claimant first contacted her solicitors in 2015, 7 years after her employment with the defendants ended. The Claim Form was issued on 19 April 2016. Therefore, the defendants argued that the claimant had exceeded the 3-year limitation period for bringing their personal injury claim, pursuant to s.11(4) of the Limitation Act 1980.
Since the date of action accrued 5 years prior to issue, the claimant had to prove that her date of knowledge was no earlier than 19 April 2013.
In the alternative, the claimant sought to argue that the Court should grant s.33 discretion to exclude the 3-year limitation period.
The claimant submitted that her date of knowledge was in around the middle of 2013 when she noticed tinnitus and a difficulty socially with hearing. Whereas, the defendants contended that the claimant’s knowledge was obtained earlier. This was on the basis that the claimant acknowledged, in her oral evidence, that hearing protection was supplied in 1990 and that she often noticed symptoms of hearing loss. It was established that the defendants had made the claimant aware of the noise risk:
.... we were told if we wore the earplugs our ears wouldn¹t get damaged.
HHJ Hedley considered that the claimant’s date of knowledge was 1990.
From this date onwards, a reasonable person, armed with the claimant’s knowledge, would have considered their hearing impairment to be significant and attributed it to their occupational noise exposure.
The corollary is obviously that if the ear plugs were not used, then their hearing might be damaged; ... the Claimant was then aware [in 1990] that the noise could cause damage to her hearing ... the Claimant was aware of hearing problems for some 20 to 30 years before she made the claim ... she accepted that in 1990 she was able to say that the noise was causing problems with her hearing ... she could not hear her children at home and she would shout.
Turning to the discussion on the equitable application of s.33 discretion, the judge found that it would not be equitable to allow the claim to proceed, as there had been a wholly unexplained delay between the claimant¹s attendance of a hearing clinic, in 2013, the claimant obtaining an audiogram through solicitors, in November 2015, and the issuing of proceedings, in April 2016.
The claim was therefore dismissed, on the grounds of limitation alone.
Regardless, HHJ Hedley made a determination on issues relating to breach, causation and de minimis, in turn.
According to the claimant¹s witness statement, as a packer, she worked at 1 of 3 packing lines, approximately 1 metre from a packing machine.
As a quality controller, the claimant initially worked approximately 1 metre away from 4 packing machines grouped together and 2 metres away from other machines on the packing line. When the site changed, there were 5 packing lines, each with 24 machines, but the claimant remarked that the noise was similar to the original working premises.
In her final post, as a laboratory assistant, the claimant estimated that 3/4 of her shift was spent in very close proximity to the packing machines.
Adduced documents recorded noise surveys and noise assessments over a period of years at various locations overseen by the defendants:
23 July 1987
Noise levels were mostly above the recommended level of 90 dB.
5 October 1987
Noise levels of 4 packing lines were over 90 dB(A) and 1 line between 89-90 dB(A).
12 February 1988
Noise levels were either above the upper action level or ... just marginally below the value of 90 dB(A)¹.
28 May 1991
Noise dose for an average 8 hour shift was between 87.1-91 dB(A), but the wearing of suitable hearing protection ... would be particularly beneficial.
3 May 1994 and May 1996
Noise levels were at or below the 2nd Action Level (90 dB).
From 1990, when the claimant asserted that earplugs were first provided by the defendants, she admitted to wearing them at all times; signage made it clear that hearing protection was compulsory and was enforced by management, but was not accompanied by specific health and safety training on excessive continuous noise exposure. It was alleged that the earplugs had a tendency to fall out and also to make the Claimant¹s ears sore.
Witness evidence pertaining to another employee of the defendants, confessed that occupational health testing had been available since 1982, while health surveillance and hearing testing of employees had been introduced in 1990.
In the single-joint engineering report, dated 3 November 2017, Mr MD Williams reasoned that:
Based on the noise survey reports and data held by the expert relating to noise levels of machines similar to those described by the Claimant, her daily personal unprotected noise exposure frequently and regularly approached or exceeded 90bD(A).
He added, on the subject of noise protection, that:
If she had used good quality, correctly fitted hearing protection for 100% of the time in the noisy conditions, her daily noise exposure would have been less than 80dB(A).
This would have provided the claimant with more than adequate protection.
Mr Williams went on to perceive the effect of variable exposure times, finding that daily noise exposure could not be calculated with a high degree of accuracy. It was advised that 70% utilisation could discount
1.5 dB(A) from the average noise dose.
Specifically, it was concluded that the unweighted estimate of the Claimant¹s daily unprotected personal noise exposure was 89.7 dB(A) ... from 1978 to 1980 (ie below the 90 dB(A) threshold), and then 85.7 dB(A) for all other employment from 1980 through to 2008.
In respect of lifetime noise exposure:
The cumulative unprotected NIL for the Claimant¹s employment was 100.9dB(A), whilst the attenuated exposure on the basis of the Defendant’s evidence was no more than 98.6bD(A) ... based upon an accumulation of the two periods of employment.
Mr Williams recalculated cumulative NIL to 97.5 dB(A), in response to subsequent Part 35 questions, submitted by the defendants. A further calculation, on the basis that inefficient hearing protection could produce an attenuation range of between 0 dB and 10 dB, put lifetime NIL in excess of 100 dB(A), but this could not be trusted.
In light of engineering evidence, the judge accepted that the claimant¹s noise exposure was substantial. However, the detail as to the precise level of exposure, was unclear. HHJ Hedley emphasised the importance of the engineer’s equivocal statement that there had been no breach:
The revised figures showed that the noise exposure was less than the 90dB(A) recommended limit in the 1972 Code of Practice and from 1990 there was no breach of the Regulations. The evidence suggested that the Defendants took sufficient steps to discharge their statutory and recommended duties during the above quoted periods.
The judge considered that the use of ear plugs post-1990 would have substantially attenuated exposure and even though fitting caused issues from time to time, this was not a significant problem. It was also noteworthy, in discharging the defendant’s duty of care, that ear defenders were available to the claimant.
Although technically, noise exposure of no less than 89.7 dB(A), from 1978 to 1980, could have been rounded up to 90 dB(A), the judge ruled that mathematical ‘rounding up’... does not discharge the burden of proof.
All arguments considered, HHJ Hedley observed that the defendants were not in breach, on the balance of probabilities.
Mr Iqbal was instructed on behalf of the claimant to provide expert medical evidence, while Mr Parker was instructed on behalf of the defendants. The experts were in disagreement over the diagnosis of NIHL.
In reaching a decision as to whether the claimant’s hearing impairment was caused by noise exposure, it was necessary to determine which audiogram(s) was correct:
Mr Iqbal based his report on 2 audiograms conducted at the Holiday Inn, Leicester, in 2015.
It was not conducted in a noise-attenuated soundproof booth but was (according to Dr Iqbal¹s oral evidence) conducted in circumstances where the ambient noise level was less than 35dB.
In his report, Mr Iqbal observed a difference of 5 dB between hearing threshold levels (HTLs) at some frequencies tested. Moreover, there was no air-bone gap (i.e. bone conduction matched air conduction), but there was observable high-frequency sensorineural hearing loss and bilateral bulging of 10 dB. NIHL was measured at 12 dB, on the basis of audiometric testing conducted.
Mr Parker¹s report was prepared following an audiogram and examination, which was undertaken on 12 March 2017.
In his report, the claimant¹s hearing loss appeared to show an improvement from the Iqbal Audiogram, despite medical expert consensus dictating that sensorineural hearing loss is irreversible. There was no high-frequency hearing impairment, nor was there identifiable high-frequency audiometric notching or bulging. Failure to satisfy R1 and R3 of the Coles, Lutman & Buffin (CLB) Guidelines 2000 resulted in an audiogram which showed no evidence of NIHL. The defendants also argued that the engineer did not find lifetime NIL in excess of 100 dB(A), meaning that there was no satisfaction of R2(a).
In the joint-medical expert report, it was agreed that the claimant’s tinnitus was too small to be considered part of the claim. It was also agreed that some degree of the claimant¹s hearing loss was age-related (Presbyacusis). However, Mr Parker explained that, although it is accepted that the Court can derive a diagnosis of noise deafness from the Iqbal Audiogram, the Iqbal Audiogram was unreliable.
The experts were in disagreement, especially, over the effect of repeat audiometry on reliability. The claimant expert argued that the result of a single test is less reliable than the results of multiple tests, where the results of the second test repeat the results of the first. Whereas, the defendant expert argued that the check for repeatability was undertaken in a single test. Accordingly, a second audiogram is only required if the first result is borderline.
HHJ Hedley considered that Mr Parker was correct in declaring that single audiometry encompasses repeatability and thus, to conduct a second test under the same conditions has the effect of underscoring reliability.
Having applied the concept of averaging to reach a positive diagnosis of NIHL, Mr Iqbal’s view was that It is legitimate for two or more readings to be averaged.
In Note 3 of the CLB Guidelines, it is proposed that:
If an average of two, several or many hearing threshold measurements at the relevant frequencies in a particular ear can validly be used, the at least 10dB or greater guideline may be reduced slightly, by up to about 3dB. In borderline cases, an average of all the audiograms available and acceptable for averaging should be used in assessing the evidence for or against the presence of a high-frequency hearing impairment, notch or bulge.
On this issue, HHJ Hedley preferred the opinion of the defendants' medical expert. He explained:
When one of the Audiograms is wrong, in my judgment it cannot be appropriate simply to average the readings.
The judge admitted that it had been difficult to assess the efficacy of any of the audiograms adduced in this case, as neither of the experts who gave oral evidence actually carried out the tests.
The judge prepared a summary of the issues in the present case:
1. The Iqbal Audiogram was repeated, whereas the Parker Audiogram was not. However, I accept Mr Parker’s evidence that in a single audiogram repeatability is tested. However, in terms of reliability, the presence of a second test underscores the position.
2. However, if in fact there was an issue about the reliability of the circumstances of the Iqbal tests, repeating the test on the same day in the same circumstances might not remove such concerns. It is not as though a further test had been undertaken on a different day in entirely different circumstances.
3. I accept that the Iqbal test was undertaken in conditions where the ambient noise was less than 35dB and that in such circumstances a proper hearing test can be undertaken. However, that is not the same thing as undertaking a test in a sound-attenuated booth or in ‘ideal’ audiological conditions (which I find the Parker Audiogram was). In my judgment it is more likely that an accurate audiogram will be recorded in ideal conditions than in a hotel, even where the ambient noise is below the recommended threshold.
4. There is no suggestion that the Parker Audiogram was not carried out correctly. It is inherently unlikely that a patient will record better hearing scores than her actual hearing would dictate, and certainly not across a number of frequencies. The lower frequency scores in the Parker test were in fact similar to those in the Iqbal test, suggesting that the Parker test itself was not faulty.
5. I am accordingly drawn to the conclusion that the Parker test accurately set out the Claimant’s hearing in 2017. It follows that I find that the Iqbal test did not.
As such, HHJ Hedley found in favour of Mr Parker and the defendants, at paragraph 67:
I therefore find, on the balance of probabilities, the Claimant does not have NIHL and the Claimant does not suffer from a hearing loss induced by noise from her employment with the Defendants.