Appeal Court finding regarding hearing loss and tinnitus

Appeal Court upholds finding in favour of worker who developed hearing loss and tinnitus due to fire alarm noise

The Sheriff Appeal Court has recently upheld a finding of the All-Scotland Sheriff Personal Injury Court in favour of a worker who developed hearing loss and tinnitus following her exposure to the noise of a fire alarm while employed by Indigo Sun Retail Ltd on 12 December 2015 (McDonald v Indigo Sun Retail Limited [2022] SAC (Civ) 15).

This case is particularly noteworthy as it demonstrates the possibility of a hearing loss claim arising out of a single exposure to noise at work, whereas the vast majority of deafness cases relate to exposure to noise over a period of many years.

Haesel McDonald’s solicitors raised a court action for damages in respect of hearing loss she developed as a consequence of a single exposure to the noise of a fire alarm sounding while she was working in her employer’s tanning salon. At first instance, evidence was given that Ms McDonald, who was then aged 19, was employed at the tanning salon on a part-time basis as a salon assistant, while also a student at Dundee & Angus College.

On the date in question, Ms McDonald was working in the course of her duties when the fire alarm sounded at 9am, and continued to sound until 12.55pm. It was known that the alarm within the premises had sounded ‘unnecessarily’ on several prior occasions, including the previous day. The Sheriff held that Indigo Sun through its management was, our ought to have been, aware of this happening. On 12 December 2015, the noise of the fire alarm was excessively loud and caused Ms McDonald to have a headache and ringing in her ears. Ms McDonald had to endure the full effect of the noise of the alarm sounding until her manager arrived at 11am to apply tape to try to muffle the noise. The alarm was not disabled, but the noise it emitted was reduced. Ms McDonald was not sent home but was instead instructed to remain at work. She required to converse with customers by shouting. The alarm continued to sound until near the end of her shift. She was not offered ear protection. By the end of her shift, she was distressed and continued to suffer from headache and tinnitus.

Over time, the tinnitus and hearing loss persisted. The tinnitus became intermittent and fluctuating. She attributed impairment of her hearing to the tinnitus. She had difficulty in class at college. When working at the tanning salon, she had difficulty in picking up customers’ names. She left her part time job at the tanning salon in February 2016 to concentrate on her studies. The Court heard medical evidence that she suffered from moderate to severe high frequency sensorineural hearing loss in both ears. She now required to wear hearing aids in order to hear and communicate properly.

Finding in her favour, the Court awarded her £241,277.

In the grounds of appeal, Indigo Sun advanced the proposition that the Sheriff at first instance had erred in all of the three issues which he had to determine following proof.

Firstly, in finding that they were in breach of the common law duty of care towards Ms McDonald, by determining that the noise levels experienced by her were levels which breached the employer’s obligations under the Control of Noise At Work Regulations 2005.

Secondly, it was argued that the Sheriff erred in determining that Ms McDonald’s hearing loss and tinnitus were caused by her exposure to noise at work on 12 December 2015. On the evidence, she had failed to establish a causal connection between exposure to noise and her loss and injury.

The third ground of appeal was directed at the Sheriff’s approach to the quantification of damages, and, in particular, in determining Ms McDonald was entitled to the costs of privately obtained hearing aids throughout her life.

Counsel for the company argued that instead of relying upon a single exposure to noise on one particular date, the Sheriff should have used the average measurements over a period of one week. If that had been done, it was argued that the company would not have been in breach of duty. This approach was branded by Sheriff Principal Mhairi Stephen QC as “manifestly illogical and inaccurate”, and one that would “distort the measurement of the noise by, in effect, diluting the noise levels to which she was actually exposed on the day in question”.

The arguments in relation to the private hearing aid provision were also rejected on the basis that the NHS funded equipment was inadequate, uncomfortable and had a tendency to fall out. Accordingly, the decision to fund these on a private basis was said to be a reasonable one.

Accordingly, the appeal was unsuccessful.

In a written judgement, Sheriff Principal Mhairi Stephen QC, stated: “We are satisfied that the Sheriff fulfilled his function to assess what was fair and reasonable compensation given Ms McDonald's age, loss and circumstances leading to an award of damages which can be justified on the material available to him. The appeal has been refused on all grounds advanced by the appellant, who shall be liable to the respondent in expenses of the appeal as taxed. The appeal merits sanction for the employment of counsel.”

If you wish to pursue a claim for damages in respect of noise induced hearing loss, please get in touch with us.

Email Jacqueline Raitt
Call our personal injury claims team free on 0808 560 0872
Arrange a callback by using our enquiry form

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