26 May 2022

In the case of Haesel McDonald v Indigo Sun Retail Limited, 2022, the respondent, Haesel McDonald, had been awarded over £240,000 in damages by the All-Scotland Personal Injury Court after it found her hearing loss and tinnitus had been caused in the course of her employment. Indigo Sun Retail Ltd appealed against that decision, arguing that the sheriff had erred in finding it in breach of its common law duty of care and that the sheriff had misinterpreted the Control of Noise at Work Regulations 2005 (“the 2005 Regulations”).

By way of background, the respondent was employed by the appellants, a tanning salon. She had successfully claimed damages from them for noise induced hearing loss following an episode where she was subjected to a faulty fire alarm. The court heard that she was forced to sit through the sounding fire alarm for the entirety of her shift. The evidence produced was that she was exposed to noise levels of between 87.5 and 82.3 decibels. The faulty alarm was already known by the appellants. Despite this, the respondent was told to remain at work whilst the fire alarm was sounding, without being provided with ear protection.

At first instance, the appellants had argued that the respondent had suffered “progressive congenital hearing loss”, unrelated to the incident. However, the evidence produced by the respondent was that having never suffered from hearing loss before, she immediately suffered from a headache and experienced tinnitus and hearing loss thereafter. The sheriff found that it was "more likely than not" that the respondent then developed her hearing loss because of this exposure to excessive noise.

The appellants were found to be in breach of the 2005 Regulations and accordingly, were found to be  in breach of their duty of care towards the respondent. Whilst the 2005 Regulations could not be directly relied upon in civil cases following the introduction of the Enterprise and Regulatory Reform Act 2013, they could still be referenced and relied upon to establish negligence at common law. The 2005 Regulations imposed various statutory duties upon employers to which they must comply and evidence of a breach of, in this case the 2005 Regulations could be relied upon when considering whether the appellant was in breach of its common law duty of care towards the respondent.

The respondent was ultimately awarded £241,277. Of that amount, she was awarded £25,000 for solatium with interest of £1,300. The remainder of the award was for the life-long provision of specialist privately funded hearing aids, for which she was awarded £214,977.

The decision of the sheriff was unsuccessfully appealed to the All Scotland Sheriff Appeal Court. Counsel for the appellant 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 appellants would not have been in breach of duty. This approach was branded by Sheriff Principal Stephen 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.

The decision highlights that there are always risks and perils when challenging a decision at first instance. In order to successfully appeal against a decision at first instance, the Sheriff Appeal Court must be satisfied that the sheriff has erred in the application of the facts, the application of the law (or a combination of both) or that the sheriff has erred in the exercise of his/her discretion.

The appeal was refused on all grounds, with an award of expenses being made in the respondent’s favour, in what was a costly exercise for the appellants. The case touches on some of the issues explored in the English Court of Appeal case of Goldscheider v Royal Opera House Covent Garden Foundation [2019] EWCA Civ 711, which also considered causation and found that hearing loss can be caused by short term exposure to noise.

The decision serves as an important reminder to defenders and insurers dealing with noise induced hearing loss claims that negligence can still be established, even where the noise exposure takes place over a relatively short period.

For more information please contact:

Jennifer MacKenzie, Associate: jmk@bto.co.uk / 0141 221 8012