About this case:

• Citation:
  [2023] SC EDIN 10
• Judgment:
  External link
• Court:
  Sheriff Court
• Judge:
  Sheriff K J Campbell

Margaret Denny, 63, had worked for the defender, Chivas Brothers Ltd, and its predecessor business since 1990. Her position was that her hearing loss had been caused by the defender’s negligence and sought damages in addition to the cost of hearing aids.

The case was heard by Sheriff Kenneth Campbell. Pilkington, advocate, appeared for the pursuer and J Thomson, advocate, for the defender.

No further investigation 

In the course of her employment with the defender, the pursuer worked as a line operator in its Newton bottling hall from 1990 to 2000, and then later worked at another bottling hall at Kilmalid. Employees were provided with ear plugs in 1996, however the pursuer and others found that they were itchy in use and would sometimes work themselves out of the ear. No formal instruction was provided on the use of ear plugs until a new form of plug was introduced in 2015.

While audiogram testing of the pursuer in 1991 did not indicate any hearing loss, in 1996 the pursuer showed early evidence of bilateral notching consistent with noise-induced hearing damage. The defender did not refer the pursuer for further medical investigation until 2015 after a further six audiogram tests. The pursuer was determined to have high frequency hearing loss of 50dB in her right ear and 40dB in her left, the majority of which was noise-induced.

It was the pursuer’s case that the development of her hearing loss was caused by the defender’s breach of duty at common law and breaches of the Noise at Work Regulations 1989. No noise level assessments had been carried out during her time at Newton hall and none were carried out in Kilmalid until 2006. Further, the noise surveys carried out were inadequate and lacking in adequate description of how measurements were made.

For the defender it was submitted that the pursuer’s hearing loss could on balance of probabilities be attributed to other sources. Quantum was agreed at £45,594 in the event the pursuer was successful, representing solatium together with the cost of hearing aids, which the pursuer would require to have replaced every five to 10 years.

Absence of solutions 

In his decision, Sheriff Campbell said of the defender’s liability: “It seems to me that the key issue is whether the defender had ensured that risk from the exposure of their employees, and in particular the pursuer, to noise was either eliminated at source or, where this was not reasonably practicable, reduced to as low a level as reasonably practicable. I consider that the onus of demonstrating the level of noise has been reduced to the lowest level reasonably practicable is on the defender.”

He continued: “Given the findings I have made about the noise level in Newton hall, and about the absence of assessment of noise in either Newton hall or Leven hall until 2006, and also the absence of evidence engineering solutions other than provision of ear-plugs, I am not satisfied the defender has demonstrated that on the evidence before me.”

Addressing causation, the sheriff said: “I note the defender’s submission that the medical evidence is not determinative of the issue before the court. But that is simply to recognise that the medical evidence needs to be considered and understood in the context of the pursuer’s employment history; it being common ground there is nothing in her non-work life which is a likely cause of hearing loss.”

He went on to say: “Although the defender obtained [an] expert medical opinion, the defender chose not to offer him as a witness. His reports are therefore not evidence before the court, although it is evident from the evidence of other witnesses to whom his reports were put in evidence, that [the defender’s expert] changed his opinion. I do not speculate about that, though I do consider it is a matter of comment. For all of those reasons, I am satisfied that, on the balance of probabilities, the pursuer’s hearing loss is predominantly noise-induced.”

Sheriff Campbell concluded on quantum: “Parties’ agreement means it is not necessary for me to consider questions of damages at length, however it may be of assistance in future cases to note that in the pursuer’s document solatium was valued at £22,305, apportioned 50 per cent to the past, 50 per cent to the future. The balance reflected the cost of hearing aids and their periodic replacement, together with interest to the date of proof.”

The sheriff therefore granted decree in favour of the pursuer in the sum of £45,594.13, together with interest.