Tanning business loses appeal against £240,000 personal injury claim arising from faulty fire alarm

About this case:

• Citation:
  [2022] SAC (Civ) 15
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Sheriff Principal Mhairi Stephen QC

It was argued by Indigo Sun Retail Ltd that the sheriff had erred in finding it in breach of its common law duty of care and misinterpreted the Control of Noise at Work Regulations 2005. 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.

The appeal was heard by Sheriffs Principal Mhairi Stephen QC and Marysia Lewis, along with Appeal Sheriff Robert Fife. The appellant was represented by McGregor, advocate, and the respondent by Langlands, advocate.

Instructed to remain

The respondent had been employed at a tanning salon operated by the appellant in December 2015. On a morning where she was scheduled to work a 9am to 1pm shift, the fire alarm began to sound just after 9am and continued to sound until 12:55pm due to a fault known about by the appellant. Ms McDonald was instructed to remain at work and had to endure noise from the alarm until close to the end of her shift without ear protection.

After seeking medical advice from her GP, the respondent was referred to an ENT surgeon who confirmed she was suffering from hearing loss and advised her to wear hearing aids. A consultant otolaryngologist that she was referred to, Professor Laing, concluded that most of her hearing loss was caused by her exposure to the fire alarm.

It was determined by the sheriff that the noise levels produced by the fire alarm were in breach of the 2005 Regulations and thus the appellant was in breach of its duty of care towards the respondent. As part of the quantification of damages, the sheriff included the cost of a particular set of privately purchased hearing aids which had been recommended to the appellant.

Counsel for the appellant submitted that the sheriff had not been entitled to conclude that there had been a breach of the 2005 Regulations based on a single exposure to noise on one particular date and the application of the daily personal exposure level (LEPd) was inappropriate. Had the noise been measured on a weekly rate, the lower exposure action value would not have been exceeded. Additionally, insufficient evidence was led to allow the sheriff to conclude that the cost of private hearing aids should be included in the quantification of damages.

Appropriate measure

Delivering the opinion of the court, Sheriff Principal Stephen said of the applicable noise level standard: “The pursuer was a part-time worker whose shift on the Saturday in question was between 9am and 1pm exactly half of the LEPd measure of the working day. LEPw is a calculation based on 5 working days of 8 hours. We therefore cannot see any justification for adopting a weekly average to assess the noise exposure level for an employee who is usually working a half shift on a Saturday and not normally exposed to noise.”

She continued: “As this was patently a single exposure to high noise levels it would be manifestly illogical and inaccurate to adopt a measure which appears to average the noise levels over a full working week when Ms McDonald, a student, did not work other than part time usually at a weekend. This would distort the measurement of the noise from the alarm by, in effect, diluting the noise levels to which she was actually exposed on the day in question. In our opinion, the sheriff was correct to conclude that LEPd was the more appropriate measure of Ms McDonald’s exposure to noise given her working pattern and the single value exposure to high noise levels.”

Addressing whether the sheriff was entitled to add the cost of the hearing aids, Sheriff Principal Stephen said: “We see no reason to depart from the sheriff’s reasoning that the private hearing aids would provide the pursuer with an improvement on her NHS hearing aids which had a tendency to fall out; which she found uncomfortable; which were indiscriminate in how they amplified surrounding noise (whether speech or background noise) and annoyed her to the extent that she often did not use them. The sheriff had available to him evidence upon which to make an assessment of the reasonableness of making this award.”

She concluded: “Damages or compensation for injury and loss should be reasonable, fair and just. It must be based on the evidence and material available on which the sheriff exercises his judgement to assess the appropriate compensation. 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.”

For these reasons, the appeal was refused on all grounds.