More De Minimis Success in NIHL Claims: Wiseman v Overhead Doors (GB) Limited (2018)

In the recent cases of Harte and Nicholls, reported in editions 240 (here) and 241 (here) of BC Disease News, defendants have been successful in running de minimis non curat lex as a defence in noise-induced hearing loss (NIHL) claims. This has rebutted the presumption that after judgment in Dryden v Johnson Matthey [2018] UKSC 18 was handed down, any measure of NIHL would constitute an ‘actionable’ injury.

A common thread in these cases has been the preferential treatment of the LCB Guidelines (2015) over the CLB Guidelines (2000), when calculating noise induced losses across 1, 2 and 3 kHz. In this article, we report on the case of Wiseman v Overhead Doors (GB) Limited (2018), another case involving minimal noise induced losses, which was heard at Manchester County Court, in June 2018.

THE CLAIM

The claimant, a former sheet metal worker, alleged that he had developed noise-induced hearing loss as a result of historic employment with 3 defendants, from 1977 to 1988. The work that the claimant was engaged in was the same in each of the defendant’s premises. The claimant worked 8 hour days, 4 days per week, and ‘occasionally’ worked overtime.

In a witness statement, dated 4 September 2014, the claimant identified guillotines, fly presses, orbital grinders and hammers as being ‘constant’ and ‘continuous’ sources of noise exposure, causing him to have to ‘shout’ to communicate with co-workers. In the 2nd and 3rd defendants’ premises, there were 150 employees, all conducting the same work. Responding to Part 18 questions, the claimant identified jigsaws, circular saws, air powered drills and metal folding machines as further sources of noise exposure.

The defendants conceded limitation pre-trial, leaving breach of duty and causation in dispute.

Engineering Evidence

The single joint expert engineer, Mr Tudor, produced a report in July 2017. In calculating the noise levels to which the claimant was exposed, Mr Tudor was drawn to rely on Health and Safety Executive (HSE) documentation on noise in fabrication workshops, as the claimant had failed to provide ‘details regarding how close to the tools he was located, or how long each day he would use each tool’.

According to HSE, a noise level of 99 dB(A) would require a person to shout to communicate with a person 1.2m away, while a noise level of 93 dB(A) would require a person to speak very loudly to communicate with a person 1.2m away.

Taking into account the claimant’s overtime, the single joint engineer considered that the claimant’s daily noise dose would have been between 86 and 96 dB(A) Lep,d.

Mr Tudor went on to state that over ear muffs, provided by the employer, would have significantly reduced noise attenuation by between 25 and 30 dB. The claimant’s evidence alleged that ‘he only wore it, effectively, when he was hammering’. If the claimant wore hearing protection, as alleged, it was Mr Tudor’s opinion that the claimant’s noise exposure would have been reduced ‘to below injurious levels’. It was not possible to say whether the claimant had been exposed to noise levels above the 1972 Code of Practice for Reducing the Exposure of Employed Persons to Noise guidelines on a day-to-day basis. The 1972 Code of Practice recommended a maximum daily noise dose of 90 dB(A) Lep,d.

THE TRIAL

The trial was heard before His Honour Judge Platts, at Manchester County Court, on 20 June 2018.

Breach of Duty

Firstly, on breach of duty, the judge considered the relevance of the claimant’s unchallenged assertion that he had to ‘shout’. Although the definition of shouting is ‘imprecise’ and ‘subjective’, the judge reasoned that both ‘shouting’ and ‘very loud talking’ would imply that the 1972 Code of Practice guidelines would have been breached.

Secondly, HHJ Platts considered the relevance of the date when the 2nd and 3rd defendants provided the claimant with ear muffs. He reasoned that it was ‘probably from 1985 onwards’ and identified that:

‘... the fact that the ear muffs were provided tends to suggest that those Defendants thought that noise levels were such that ear protection should be provided to their employees, even though they did not necessarily enforce the wearing of them’.

In light of all of the evidence on breach, HHJ Platts concluded, at paragraph 20, that:

‘... the noise levels did exceed the guidelines when the machines were being used and, on the Claimant’s unchallenged evidence, that noise was described as either continuous or constant. I accept his evidence that he had to shout and that puts the noise level in excess of the guidelines of 1972. I find that that was the case for both the first Defendants and the second and third Defendants and I therefore find that they were all in breach of duty’.

Causation

On causation, the judge considered R2(a) to be the only CLB Guidelines requirement in issue, namely that the claimant’s cumulative noise immission level (NIL) was in excess of 100 dB(A). The claimant produced 4 audiograms, all of which were consistent with NIHL.

The single joint engineer’s report noted that the claimant’s NIL would have been between 95 and 105 dB(A). On the balance of probabilities, HHJ Platts found that the claimant had proved that the overall exposure was in excess of 100 dB(A) NIL. Accordingly, causation was made out against all three defendants.

De Minimis

Subsequently, the judge considered the extent of the claimant’s NIHL, which was contested by all three defendants. Expert medical reports were provided by Mr Hasan, instructed on behalf of the claimant, and Professor Lutman, for the defendant.

Both experts were in agreement that the claimant’s total binaural hearing loss was the average of all 4 audiograms produced. Across 1, 2 and 3 kHz, Mr Hasan and Professor Lutman assessed the claimant’s hearing loss at 26.8 dB and 27.5 dB, respectively.

However, the experts disagreed over the proportion of hearing loss attributable to noise exposure. Mr Hasan, in his 2012 report, calculated the claimant’s age associated hearing loss (AAHL) at 8.3 dB, using the 50th percentile of ISO 7029. Therefore, he concluded that the claimant’s NIHL was as high as 18.5 dB.

Unlike Mr Hasan, Professor Lutman, who produced his medical report in 2017, was able to rely on the approach taken in the LCB Guidelines, which he had co-written. The latest guidance produced much higher age associated losses. With an AAHL of 24.3 dB, the claimant’s binaural NIHL was calculated at just 3.2 dB. In his report, Professor Lutman considered that such hearing loss was ‘too small to be noticeable’.

In the medical experts’ joint statement, Mr Hasan accepted that the analysis and methodology of Professor’s Lutman’s calculations would have produced 3.2 dB NIHL. Adopting his own, revised methodology and using the 25th percentile of ISO 7029, Mr Hasan arrived at a NIHL element of 5.5 dB. The claimant’s instructed expert did, however, under cross-examination, admit that the claimant’s NIHL would be ‘close to zero’ if he fell within the 5th percentile of AAHL and accepted that 3.2 dB NIHL would be ‘negligible’.

For this reason, HHJ Platts found that Mr Hasan’s calculation of 5.5 dB NIHL could not stand, preferring Professor Lutman’s superior analysis:

‘... the hearing loss, averaged out at 1, 2 and 3 kHz is 3.2 dB and that is the hearing loss which I find that the claimant has suffered as a result of the defendants’ breach of duty’.

The claimant also had a deficit at 4 kHz and sought to rely on the Moore Papers, in addition to the medical reports and joint statement, which discuss the perceptual effects of hearing loss for frequencies above 3 kHz. However, HHJ Platts disallowed the claimant’s application, on the basis that:

  1. Mr Hassan’s written opinion, at the outset of trial, did not state that the Papers should form part of the consideration of the case;
  2. It was too late to introduce the Papers as a new element at trial; and
  3. The claimant had not included the Papers in the 6 months prior to trial when evidence should have been collated.

Before reaching a conclusion on whether NIHL of 3.2 dB was compensable, HHJ Platts considered the binding authorities on ‘actionable’ injury. The most recent case was heard earlier in 2018. In the case of Dryden, reported in edition 224 of BC Disease News (here), platinum salt sensitisation, an asymptomatic condition, constituted ‘sufficient damage to found an action for negligence or breach of statutory duty’.

At the Supreme Court, Lady Black distinguished Dryden from Rothwell v Chemical & Insulating Co Ltd [2008] AC 281. She did so on the basis that unlike pleural plaques, which are a mere marker of exposure to asbestos dust, platinum salt sensitisation constituted a change to the claimant’s ‘physiological makeup’, which carried the risk of subsequent allergic reaction to chlorinated platinum salts. 

In Wiseman, however, accepting that de minimis is a question of fact in each case, HHJ Platts concluded that ‘3.2 dB impairment due to noise exposure’ was not compensable. Although the claimant had successfully argued breach of duty and causation, the claim had to fail.

His reasoning for finding in favour of the defendant and dismissing the claimant’s claim was, as follows [paragraphs 51 and 52]:

‘I accept that there is an injury, and that injury is that excessive noise has caused damage to the ear, identified by the audiological testing results. It is clearly damage to a small degree. The agreed evidence at trial was that it does not have any material, or to use another word “appreciable”, effect for the Claimant. In reality Mr Wiseman is no worse off because of the exposure to noise by his former employers. His perception of his hearing would be exactly the same now whether or not the Defendants had been in breach of their duty to him or whether or not he had been employed by them for those 11 years. As I have said, on the evidence available to me, he is not materially or appreciably worse off to any degree.

In my judgment the fact that he has a measurable hearing loss caused by noise is not of itself sufficient. It is not going to get any worse, there is to be no other condition developing from it. Unlike Cartledge and unlike Dryden, and on the authorities to which I referred, which would seem in my judgement to be consistent, he has to prove that it has made a material difference, that he is appreciably worse off as a result of the negligence. Given that both Professor Lutman says that he is not worse off and Mr Hasan agreed that it has made no difference, or that it was negligible, I just cannot find that that should sound in compensation’.