[2009] CSOH NUMBER109



in the cause







Pursuer: Bell Q.C., Waugh; Messrs Morton Fraser

DDefenders: Murphy Q.C., Davie; Messrs Ledingham Chalmers

24 July 2009


[1] This is an action for reparation by Mr Robinson against his former employers, Midlothian Council, by whom he was employed as a school teacher between 1983 and 2005. Mr Robinson's date of birth is 5th January 1953. He worked as a design engineer with Burroughs Machines between 1978 and 1981, then attended Moray House, graduating in 1983. He became a teacher of craft and design, and graphic communication. From 1983 until 1988 he was a teacher at Newbattle High School. He then moved briefly to St Augustine's High School and while there he carried out work at the Dean Education Centre. In 1989 he moved to Lasswade High School where he remained until his teaching career ended in 2005.

[2] The pursuer gave evidence, and led evidence from Mr Ross Angus, Mr James Peacock and Mr Kenneth Thomson, all former colleagues at Lasswade High School, from his wife Mrs Nicola Robinson and his son Mr Ewan Robinson, from Mr A. Williams, a doctor who had treated him, from Mr Alistair Kerr, a medical consultant who had seen him for medical legal purposes, and from Mr Leonard Smith, a consultant with Lenford Greasley and Associates Ltd, consulting engineers. Evidence on commission was taken from Mr James Watson, a consultant in matters relating to noise.

[3] The defenders led evidence from Mr O'Reilly a medical consultant who saw the pursuer for medical legal purposes.

The pursuer's evidence

[4] Mr Robinson explained that in craft and design school children are taught to design a process for the manufacture of items and then go on to make the items. They work with wood, metal, plastic and to a lesser extent with glass and stone. A plan of the open area at Lasswade High School was produced, which had been drawn in 2007 and was broadly, though not entirely, accurate as a plan of the area when Mr Robinson had worked there. The open area was designed to accommodate four classes at a time but could take slightly more, and so there might be up to ninety people working there at any one time. Photographs were produced showing work benches, and a variety of machines including a dust extractor, a band saw machine, pedestal drill grinding machines, polishing machines, lathes, and guillotines. Machines of that type had been there when Mr Robinson taught there. The area had a metal working machine shop and a metal saw shop both of which were partitioned off from the main area. The partitions were not sound proof. There were extractor fans in the open area.

[5] In 1989 Mr Robinson specialised primarily in craft and design. He taught higher and standard grade classes and younger children. Each school day was divided into eight periods of forty minutes. In each week there would be a minimum of five free periods which were used for preparation. Most classes attended for a double period, that is eighty minutes. On average a project would last for eleven weeks, with approximately three weeks being design and the rest manufacture. The design work was usually carried out in classrooms, of which there were four for the department, situated off a corridor. Some design work might be carried out in the open area but not normally. When he started in 1989 the department drew in small numbers of pupils but its reputation grew and more pupils took the subject. The head of the department was Mr Ross Angus and the technician at first was Mr Archibald, later replaced by Mr Jonssen Green. The technician prepared materials for the classes, but Mr Robinson and other teachers prepared some of their own material, particularly when Mr Archibald was the technician. Mr Robinson said that there was no risk assessment relative to noise done by his employers before 2004. Prior to 2004 there was no advice about noise, no notices or signs, and no ear protection for teachers or pupils. He recalled Mr Jonssen Green having his own ear protectors. Mr Robinson was unable to say with any certainty how long he had spent in any one day in the open work shop area, and how that had varied over the years. I was advised that school timetables were no longer available. Mr Angus and Mr Peacock were asked about this and the evidence was vague. It appeared to me that the evidence showed that the time in the workshop varied over the years and it its height was in the region of five hours spread over the week. I did not find that there was satisfactory evidence to enable me to decide this with precision or confidence.

[6] Mr Robinson first became aware of a problem with his hearing when his wife told him about it. She noticed that he had the television on louder than normal. He thought that that had happened in 1996. Towards the end of 1996 he became aware of a ringing in his ears but thought that it was temporary and would go away. He thought that he saw his GP in about 1997 and on consulting him was sent to Edinburgh Royal Infirmary to see the ENT consultant. When referred to medical records, he accepted that that he attended in 1999.

[7] Mr Robinson had sought advice because his difficulty in hearing had became become intrusive. He found that if he was in the open area and had to speak to his own class he had to shout and he found that hard to manage. At a busy time there was a great deal of noise. He spoke to Mr Angus and asked if he could be moved out of the workshop, explaining that he could not tolerate noise. At about that time, graphic communication was introduced as a subject. It was taught in the classrooms. Mr Angus tried to timetable more classes in the classroom for him as opposed to in the workshop. Changes were made and initially they helped. He found that he could hear when talking to persons on a one-to-one basis but if a number of people were talking at once he could not isolate the person who was speaking to him. The advice from the ENT consultant was that he would "just have to live with it". He then decided to try and reorganise life so that he could live with it. He did not solve the problem. He enjoyed teaching and was successful at it. He thought that he could plan his working days so that he could cope. He suffered from 1999 onwards from hyperacusis, that is sensitivity to noise. That affected him in several ways. It stopped him being able to think. He found that his sensory system was overloaded and he would tend "to freeze like a rabbit in the headlights". His colleagues said that he was grumpy and difficult to get along with. He attempted to increase his general fitness to help him to cope, but he found his work increasingly stressful due to his poor hearing and his sensitivity to noise.

The pursuer's occupational health file

[8] The pursuer went back to his GP and ENT consultant and was referred to a hearing therapist. He carried out some research on the internet about noise and in March 2003 met with Mr Thomson, the head teacher, to discuss his health concerns. He wanted to be given duties that did not involve teaching in the open area. It was decided that a risk assessment on noise would be obtained. This was obtained in 2004 and is referred to below. According to a letter written by Dr Griffin, occupational health physician, on 16 April 2003 Mr Robinson was at that time fit for his duties. Mr Robinson was referred to Dr Griffin again in June 2004, who wrote a letter commenting on the time taken to obtain the assessment; noting that its recommendations were being implemented, and once again noting that Mr Robinson was fit, if the work environment was altered in line with the recommendations. In July 2004 Dr Leckie, a colleague of Dr Griffin, wrote in his absence on leave advising that Mr Robinson's specialist reported that he had hearing problems going back for a number of years, with no significant deterioration in the last five years. His main difficulty was tinnitus, on which Dr Leckie said that his employers would have to rely on information from him as to the degree of difficulty caused by it. Dr Leckie reported again on 25 November 2004 when Mr Robinson was off work. He noted that Mr Robinson reported symptoms when working in larger and noisy groups and that a move to smaller groups would address his concern. He did not think him permanently incapacitated. On 17 May 2005 Dr Leckie wrote to the effect that Mr Robinson was permanently incapacitated for his duties as a CDT teacher due to his permanent medical condition and work conditions that were unable to be altered.

[9] In October 2004 Mr Robinson went off sick as he felt that he could not cope with teaching but felt that there was other work that he could do. He had previously produced videos for teachers and pupils, had worked on a project with IKEA, and had worked to develop the curriculum and so hoped that the defenders would employ him on such duties. He wanted to be productive. The defenders found it impossible to find employment for the pursuer on that basis. Mr Jaster, who took over from Mr Thomson as head teacher, advised the pursuer that there were no more adjustments which could be made. He went back to school in February 2005; he felt that he staggered to the end of term but decided not to continue. He felt that he was "between a rock and a hard place" and had tried all avenues. He accepted that his was the worst possible job for a person with tinnitus. Mr Robinson was dismissed from August 2005, as medically unfit.

[10] After he stopped work as a teacher Mr Robinson thought for a few months about what he should do and decided he wanted to develop materials as he had done before. He decided to procure some academic training and so applied to the College of Art and did an MA in filmmaking. He started a Master of Fine Arts degree in October 2006 and graduated in June 2008. At the date of the proof he was engaged making a promotional video for New College, Edinburgh, developing a documentary on Patrick Geddes, and working on film making for Pilton Video. He had applied for an internship with Edinburgh Education Department which had not yet been determined. He had been appointed by Scottish Screen as lead practitioner and had been involved in training.

[11] The pursuer purchased cameras and photographic equipment in December 2004 for a sum in excess £7000. Vouching was produced at 6/37 of process. Mr Robinson had used the equipment in his work since leaving his employment as a teacher, but had bought it before he left. His position was that he needed to have these items as matters had turned out. He said that his university fees were £3000 per year being £6000 in total.

Evidence from the pursuer's colleagues

[12] Most of the pursuer's evidence was confirmed by that of his witnesses. Mr Angus spoke of the set up at the school and gave some evidence about the time which Mr Robinson spent on various teaching tasks. He was not able to be definite about timetables as they were no longer available, despite a search having been carried out. Mr Thomson, Mr Angus and Mr Peacock all confirmed that the pursuer had been a keen and committed teacher who had built the department up. Mr Thomson was aware that Mr Robinson was greatly distressed by his hearing loss, tinnitus and hyperacusis. There was a discrepancy between the pursuer on one hand and Mr Angus and Mr Peacock on the other. Mr Angus and Mr Peacock both said that there were ear defenders available at the school and Mr Peacock recalled seeing the purser using them. I formed the impression from Mr Peacock that the teachers did not like using ear defenders as they interfered with their ability to communicate properly with the pupils under their care. Mr Robinson gave evidence to the effect that it would not be safe to be in charge of a class but unable to hear all that was going on. The weight of evidence was that they were available, despite the pursuer's evidence to the contrary effect. I did not think that Mr Robinson deliberately tried to mislead me on the availability of ear defenders. They may have been available only towards the end of his time at the school. If I had had to decide on this disputed evidence I would have held that ear defenders were available at some stage when Mr Robinson was employed, and were occasionally used by him and others, but I could not on the evidence be any more specific.

Evidence from the Pursuer's family.

[13] Mrs Robinson confirmed that she had noticed that her husband's hearing caused him difficulty in around 1997. He had to have the television turned up, and he found it hard to hear if several people were talking. Mrs Robinson spoke of her husband's distress at work starting after he first became deaf and increasing greatly in the last few months of his employment as a teacher. She also gave evidence about his commitment to work and his enthusiasm for his subject. She found that he was more relaxed when he gave up teaching as the stress was affecting him. Ewan Robinson's evidence related to his father's being a keen and well thought of teacher, who had taught his son at school. The stress towards the end of his teaching post was clear to Ewan Robinson, who was away from home by then but very much in touch with his parents. He noted that his father had been inclined to sensitivity about any noise. He felt that this father was more relaxed when he gave up teaching.

The noise assessment

[14] An assessment was requested by the defenders and was carried out on 3 February 2004 by Mr Ian Watson. Mr Robinson led this evidence as part of his case. Evidence from Mr Watson was taken on commission on 26 February 2009 and the report was read into the evidence. Mr Watson was 80 years of age at the date of the commission. I found some of his evidence hard to follow. There were some typing errors in his report, and it was difficult in places to understand. I formed the impression that Mr Watson had been instructed for one purpose, namely to advise the defenders on best practice, and that he was very anxious in evidence to make clear that this report was not intended to be used as evidence in a claim on behalf of one person. In the report 6/19 of process, dated 15 March 2004, Mr Watson set out at paragraph 1 his purpose as follows:

"In order to reduce the risk of noise induced hearing loss (NIHL) for the staff and pupils in the wood working and metal working areas of Lasswade School and to prepare for new noise legislation which has been passed by the European Parliament and will probably be ratified by our UK Parliament to become law in 2005 the Health and Safety Department of Midlothian Council arranged for noise measurements and noise assessments to be carried out at Lasswade School. The noise assessments were arranged by Mr Ross Angus, Principal Teacher".

[15] Mr Watson explained in his evidence that he got information from Mr Angus and Mr Jonssen Green about the maximum time that personnel could be exposed to high noise levels. He assumed that all teachers had the same exposure to noise. He took the worst case scenario, and by that he meant that Mr Angus or Mr Jonssen Green told him the maximum time that personnel could be exposed to high noise levels at the work stations. He took measurements of noise as it would be applied to a person sitting at the machine all the time, rather than moving around. He thought that being absolutely specific about each teacher would be a huge task, and he had not done that. He treated all teachers as getting the same exposure.In the report Mr Watson made very clear that all of his work was based on maximum times which a teacher might be exposed to machinery. As was made clear in evidence he did not measure or attempt to measure noise to which Mr Robinson had actually been exposed. His remit was to advise the authority responsible for the school of any steps they should take to fulfil their statutory obligations under legislation then in force and under legislation which he expected to come into force. Mr Watson concluded at page 8 of his report that certain machines caused a breach of the second action level; others could cause a breach of the first action level, all based on maximum daily exposure times, and all as defined in the Noise at Work Regulations 1989. He made clear in his evidence that he had worked to maximum possible exposure times, and that he had assumed all teachers would have the same exposure. At page 35 he said that the worst case scenario was a four hour exposure period in a day. At page 38 Mr Watson explained that:

"a lot of people think that noise assessments are noise assessments of the machines, but that's not the case, noise assessments are for people, but in order to get the people you have to know what the machine is doing."

The following question and answer is then recorded:

"so what you really need to know is in what way a particular person is exposed to a particular machine and for how long? -Yes, that's right. The purpose of this noise assessment is not to actually establish the total exposure of noise for the person, it's in actual fact to make sure that in all future work he is adequately protected from excessive noise and that's the important thing."

At page 42 he said

"We are not here trying to establish what any person has been exposed to in the past".

I could not therefore find from his evidence any factual basis for the pursuer having been exposed to any particular level of noise for any particular time.

[16] The pursuer led evidence from Mr Leonard Smith, an associate of Lenford Greasly 7 Associates Ltd, consulting engineers. Mr Smith visited the school in September 2007. I understand that he was instructed to measure noise levels, but due to some misunderstanding he was not expected on the day on which he attended and he could not take any sound pressure levels. Mr Smith did examine the workshop, and took photographs. He had been supplied with a copy of Mr Watson's report and used it as a base for his own report. Mr Smith also saw the report of Mr Kerr, a precognition of Mr Robinson and the pleadings. Mr Smith's report was poorly presented and had many typing mistakes. It contained his views on a matter on which he did not claim expertise. Section 2, paragraphs 2.4 to 2.11 set out a part of the Noise at Work Regulations 1989. Paragraphs 2.13 and 2.14 set out Mr Smith's understanding of the physiology of the hearing mechanism and the way in which hearing may be lost. In 2.15 and 2.16 Mr Smith describes tinnitus and hyperacusis which he notes in paragraph 2.18 are matters for medical evidence. In 2.19 under the heading "audiometry" Mr Smith describes his understanding of the effect of noise induced hearing loss, as seen in an audiogram. He says that it invariably follows the same pattern which he describes as 'the 4K dip'. In paragraphs 2.20 to 2.22 Mr Smith describes what he believes Mr Kerr to have done, and sets out what he believes Mr Kerr's position to be. In section 3 he describes the workshop at the school as he saw it in 2007. Section 4 is headed "Observations and Opinions" and it is clear that in coming to opinions Mr Smith used the reports of Mr Watson and Mr Kerr. Section 5 is headed "Conclusions" and in paragraph 5.1 Mr Smith concludes that the sound pressure levels obtained by Mr Watson showed that the exposure Mr Robinson had to noise had resulted in his sustaining noise induced hearing loss. He also opines that such exposure contributed to his other medical conditions. Mr Smith refers in paragraph 5.5 to the audiograms obtained by Mr Kerr and offers his opinion that the high levels of noise in the workshop had caused the industrial hearing loss sustained by the pursuer. He ends by stating that in his opinion the defenders breached their duties at common law and under the Noise at Work Regulations 1989, and the 1992 and 1998 Provision and Use of Work Regulations (sic).

[17] Mr Smith was 84 years of age. He said that he had suffered a stroke and while he was fit to work, and was still working, he had some memory difficulties occasionally. He was at times confusing as he gave his evidence. He was a consultant engineer having become a chartered engineer forty years ago. He produced a CV as part of his report, which showed that he had various qualifications including membership of the Institute of Acoustics, of the Institute of Mechanical Engineers, of the Institute of Electrical Engineers, of the Institution of Occupational Safety and Health, of the International Institute of Risk and Safety Management, a diploma in Safety Management, a diploma in Acoustics, and an HNC in Civil Engineering. He had worked all of his life in engineering and had a special interest in acoustics, and had been involved in considering problems caused by noise in a number of factories for which he had responsibility. His evidence was that he had both theoretical and practical knowledge of the way in which noise at work could affect health, and that he had a great deal of experience behind him. He was led by counsel for the pursuer through his report.

[18] Counsel for the defenders asked Mr Smith if he felt qualified to give all of the opinions which he gave in his report. After some consideration Mr Smith agreed that as regards medical matters the most important opinions come from doctors, but felt that he knew something of physiology and that he knew about noise induced hearing loss. Mr Smith made clear that his opinions about noise to which the pursuer was exposed were based on the reports of others, namely Mr Watson and Mr Kerr. He had no personal knowledge of the conditions in which Mr Robinson had worked and relied on the facts as reported on by Mr Watson; he thought that Mr Kerr's reports also showed that the pursuer had sustained noise induced hearing loss.

Medical evidence

[19] Mr Williams, who treated the pursuer, found that he had some hearing loss but was not able to say what was the cause of it. There was greater loss than Mr Williams would have expected for a man of the pursuer's age. He could not say if hearing loss was noise induced without knowing details of the noise to which the pursuer had been exposed. The causes of tinnitus and hyperacusis are not known.

[20] The pursuer led evidence from Mr Alistair Kerr, now a locum consultant otolaryngologist. Mr Kerr qualified in medicine in 1969 and gained his fellowship of the Royal College of Surgeons in Glasgow in 1973 and in Edinburgh in 1975. He had been a consultant in various hospitals between 1979 and 2008 when he retired from full time practice, now working as a locum consultant. Mr Kerr was author of many articles, contributed to several books, was a past president of the Scottish Otolaryngological Society and had served on many committees and had examined for the Royal College of Surgeons. He had carried out research. His special interest is in paediatrics and otology. Mr Kerr first examined the pursuer on 29 December 2005, having read his records, and produced a report of that examination. He noted that Mr Robinson had difficulty hearing from about 1999. Background noise made hearing difficult, he was distracted by tinnitus and was unduly sensitive to loud noise. He had no discharge from his ears and examination of them showed the ear drums to be completely normal. Mr Robinson told Mr Kerr that he had been exposed to noise "in excess of regulation". Mr Kerr carried out a pure tone audiogram which showed bilateral high frequency moderate sensor sensori neural hearing loss. In his opinion, the shape of the audiogram was completely consistent with, and very suggestive of, noise induced hearing loss. Mr Kerr noted that the several audiograms done since 1999 were all consistent with noise induced hearing loss. He appended to his report the audiograms done by him, both in graphs and in tabular form. In examination in chief Mr Kerr's position was that the shape of an audiogram was not by itself diagnostic of noise induced hearing loss, and a history of exposure to noise sufficient to cause hearing loss was necessary before the cause could be ascertained. He added however that the shape of the audiogram was very suggestive of noise induced hearing loss. He described it as showing the classic dip which is characteristic of noise induced hearing loss. Mr Kerr reported again firstly on 9 August 2007 when he gave his opinion that Mr Robinson's hearing loss was worse than would be expected due to ageing. He based this opinion firstly on tables giving the mean threshold over 1, 2 and 3 kilohertz for a man of the pursuer's age being 14, whereas the pursuer's mean thresholds over the same range were 25.6, that is 11.6 decibels worse than expected; at 4 kilohertz the figures were 21 decibels and 46 decibels respectively; and secondly on the shape of the audiogram as there was some recovery at 8 kilohertz. Mr Kerr examined the pursuer again on 29 November 2007 and reported on that date. He found that the hearing at 6000 and 8000 had deteriorated and noted that these are the frequencies most often affected by ageing. His opinion was still that the hearing loss was in all probability caused by years of exposure to noise at work. Finally, Mr Kerr re examined on 6 November 2008, reporting on 13 November 2008. He found no significant change since the audiogram in 2007. He described the pursuer's hearing as being 20 decibels worse than it should be by reference to the tables for a man of the same age. He adhered to the view that the hearing loss had in all probability been caused by years of exposure to noise at work, and that the hypersensitivity to noise was also related to noise exposure and cochlear deterioration. Mr Kerr was asked to comment on a report by Mr O'Reilly, a consultant instructed by the defenders. He thought that audiograms were very similar to his own, and that by a combination of audiometry and history, as given by the pursuer, he thought that the hearing loss and sensitivity were very likely to be noise induced. Mr Kerr accepted that some loss was age related but in his opinion the main loss was caused by noise. Despite his earlier evidence that the audiometry was not diagnostic, he said that had he not been given the history of noise, he would have said that that hearing loss was likely, rather than very likely, to be noise induced.

[21] Junior counsel for the defenders cross examined Mr Kerr. She asked him if an error of transcription had taken place in the tabular form of the audiograms taken by him in 2005; Mr Kerr confirmed that there was such an error, and that the air conduction figures for the right ear at 3000 and 4000 should both read 45 not 25. She then asked if the figures at 6000 should be reduced by 6, to correct for earphone type, so as to read 49 and 54, and again Mr Kerr confirmed they should. Counsel referred to an article produced as 7/6 of process by the defenders entitled Guidelines on the diagnosis of noise induced hearing loss for medicolegal purposes by Coles and others, 2000. In paragraph 7.5 the authors discuss the shape of audiograms and suggest that a high frequency notch that is sufficiently large to be indicative of the probable presence of noise induced hearing loss is where the threshold level at 3 and /or 4 and /or 6 after correction for earphone is at least 10 decibels greater than at 1 or 2 and at 6 or 8. Mr Kerr agreed with the view expressed in the article and agreed that when his audiogram was adjusted for the transcription error and the headphone correction, it did not amount to a classic notch as described in the article. He also agreed that there is a range of normal hearing, and that while the pursuer was worse than average he was within the range experienced by normal people. Mr Kerr agreed that the deterioration he had observed between 2005 and 2008 was probably caused by ageing. He agreed that the pursuer's results showed a lack of symmetry between right and left ear, and that noise induced hearing loss tended to produce symmetrical hearing loss.

[22] The defenders led Mr Brian O'Reilly, consultant neuro-otologist. Mr O'Reilly qualified in 1976 and became a fellow of the Royal College of Surgeons in Glasgow in 1976. He was a consultant ENT surgeon in Paisley between 1979 and 1986, and consultant otolaryngologist with the North Glasgow Trust from 1986 until the present; and a consultant neuro-laryngologist at the Institute of Neurological Sciences, Southern General Hospital, Glasgow from 1987 until the present. He too had served on many committees and examined for the Royal College and for other examination boards; he had been author and co author of many publications.

[23] Mr O'Reilly saw the pursuer on 11 June 2007 and reported on that date. He noted that Mr Robinson described his main complaint as tinnitus, his second complaint as hyperacusis and his third complaint as decrease in his hearing. The pursuer's records were available and Mr O'Reilly read them, and carried out testing, with the assistance of his technician, who carried out audiometric tests. Mr O'Reilly found that there was nothing in the medical records to indicate any medical problem which might be important in the cause of tinnitus. He noted that results on audiometry in 2007 were worse than in 2005, and they in turn were worse than in 1999. In his opinion Mr Robinson had a moderate bilateral high tone sensorineural loss. He found that the audiometric pattern was more in keeping with age related hearing loss than with noise induced hearing loss. The hearing thresholds were within normal range, and the deterioration observed over the years was probably more in keeping with age related loss. According to Mr O'Reilly three indicators were needed for a diagnosis of noise induced hearing loss, being

1. exposure to potentially damaging loud noise

2. hearing loss worse than expected for age

3. characteristic pattern

Mr Robinson had not given him a history of exposure to noise which seemed to him likely to be damaging. He based this on his experience of the type of work likely to involve such noise, which was different from that done by the pursuer. The thresholds demonstrated were within the normal range for age, as seen in the tables produced as 7/5 of process. As for the pattern Mr O'Reilly maintained there was no characteristic dip when the figures were corrected and the definition given in the Coles article applied. The audiograms were not symmetrical, which would be expected in noise induced hearing loss. In cross examination Mr O'Reilly accepted that Mr Robinson's hearing was worse than average for his age, but maintained he was in the normal range. He did not accept that the audiograms showed the classic notch or dip expected in noise induced hearing loss. Mr O'Reilly thought that the hyperacusis was not organically based.

[24] There was some evidence about Mr Robinson's parents' health. Mr Kerr had asked about family history and had been told that there was nothing of relevance, whereas Mr O'Reilly had noted that both parents had developed problems with hearing in their later years. Mr and Mrs Robinson both said in evidence that any hearing problems of Mr Robinson's parents were in old age, not middle age. Thus Mr Robinson had not regarded his family history as including loss of hearing at an unexpectedly early age, which is what he complains of and what he thought he was asked about. Both consultants said that they always ask for a family history as it may have some significance. I did not regard this matter as of great importance and got no impression from the medical witnesses that they had put much weight on it in forming their views in this case.

[25] Parties had helpfully entered into a joint minute in which they agreed that many of the documents were what they bore to be. Further, they agreed nearly all of the elements of damages, namely solatium, interest thereon, loss of earnings and interest, future loss and pension loss. This saved a good deal of court time. They were unable to agree two items, being the fees Mr Robinson paid for his university course, and the sums he paid to acquire photographic equipment. In relation to the former, counsel for the defenders submitted that Mr Robinson had given evidence of the amount of the fee but had not vouched it by a receipt and that his evidence was not the best evidence. I disagree with that submission. It was not suggested that Mr Robinson was inaccurate in his evidence of what he had paid and it seems to me sufficient in those circumstances that only his oral evidence was led. As regards the equipment the argument was that Mr Robinson had acquired the equipment several months before he left his employment with the defenders and so it was not purchased as a result of his being unable to continue as a teacher, but was something he would have purchased anyway to pursue his own interest. I accept the defenders submission on this and take the view that the pursuer did not prove that this expense was incurred as a result of his requiring to leave employment as a teacher.

Submissions for the Pursuer

[26] The argument advanced for the pursuer was that it was not disputed that he suffered hearing loss, which had led to his being unfit to continue his career as a school teacher. While some of the hearing loss may be age related, it was at least partly caused by noise. The report commissioned by the defenders from Mr Watson in 2004 showed that the workshop noise was such as to breach the Noise at Work Regulations 1989. That report did not measure the exposure of Mr Robinson but it did show that the defenders had not carried out any risk assessment, and that the machines in use in the open area were such as to render employees likely to be exposed to noise as defined in the regulations, to an extent that would breach the regulations. Therefore the defenders were required by regulation 4 to make a noise assessment for the purposes set out in that regulation, but they had not done so. The defenders had failed to observe the requirements of regulation 6, as they had taken no steps to assess noise and then reduce it. They had failed to observe regulation 7, as they had taken no steps to reduce exposure. They had not provided ear protectors until very late in Mr Robinson's career, perhaps 2003, and so had not fulfilled regulation 8. They had failed to set up ear protection zones as required by regulation 9. They had failed to provide information as required by regulation 11. Counsel also argued that regulations 5, 8 and 9 of the Provision and Use of Work Equipment Regulations 1992 and from December 1998 regulations 4.8 and 9 of the Provision and Use of Work Equipment Regulations 1998 had been breached, on the footing that the defenders had done nothing to determine the suitability of the equipment, to give information and instructions, or to provide training.

[27] Counsel for the pursuer submitted that Mr Kerr's evidence was to the effect that the hearing loss was at least likely to be caused by noise in light of the audiogram shapes even though he did agree that the classic notch shape was not seen. Taken with evidence from Mr Watson and Mr Smith that there were machines capable of causing noise in excess of the levels prescribed by the regulations, Mr Kerr's evidence was that the hearing loss suffered by the pursuer was noise induced.

[28] Counsel referred to the cases of Allison v London Underground Limited [2008] EWCA Civ 71 arguing that it was a case in which it was held that an employer had a duty under the particular regulations there in question to investigate risks inherent in his operations, as set out at paragraph 55. As I understood the argument counsel argued that in the present case the defenders had failed in their statutory duty to carry out a noise assessment. Counsel also referred to Gravatom Engineering Systems Limited v Parr [2007] EWCA Civ 967. On the view I took of the evidence in this case, I did not find either case very helpful.

Submissions for the defenders

[29] Counsel for the defenders submitted that the pursuer had failed to prove any common law or statutory breach. The submission made was that this was a case in which the pursuer had failed to discharge the onus of proof. The pursuer had to prove he had suffered loss injury and damage as a result of breach of duty by the defenders, which counsel argued he had failed to do. Counsel referred to the case of Rhesa Shipping Co SA v Edmunds [1985] 1 W.L.R. 948, a case decided in the House of Lords and cited by counsel as an example of a case in which the basic point is made that it is for the pursuer to prove how loss damage and injury has occurred and if he cannot then he must fail. In this case it was argued that there was no evidence from which the court could infer that the pursuer had been injured by anything done or omitted by the defenders. Counsel developed this argument by reference to the Noise at Work Regulations 1989. He argued that the pursuer had to prove that the "daily personal noise exposure" of an employee was likely to be equal or to exceed 85 dB(A) as defined in the regulations. The only employee focussed on in the proof was the pursuer himself, but there was no evidence of his actual exposure. The pursuer had led two witnesses as experts on noise. The first (Mr Watson) had been asked to advise the defenders generally and in carrying out his remit had assumed worst case scenarios and had not measured the actual exposure of the pursuer or anyone else. The second (Mr Smith) had not measured anything and had used the measurements taken by the first. As I understood it, counsel submitted that the regulations defined "daily personal noise exposure" by means of the formula set out in Part 1 of the schedule. Inherent in that is the measurement of time spent by the person involved in proximity to noise. The pursuer had led evidence that he worked in a noisy place, but that was meaningless; it was essential to lead acceptable evidence of what noise the pursuer was actually exposed to. There was no basis on which the court could extrapolate from evidence led what had actually happened to the pursuer. Counsel submitted that Mr Smith had no qualifications or expertise which enabled him to be used as an expert witness in this case. He was an engineer who had an interest in noise, and was a helpful and honest person; but he had relied on measurements taken by Mr Watson and had not appreciated that he had no factual basis for "daily personal noise exposure" and therefore no basis for his opinion that the defenders had failed in their duties in law. Mr Smith appeared to offer opinions on medical matters in his report and in evidence was reluctant to agree that he should defer to those medically qualified. He agreed with the consultant instructed for the pursuer rather than the consultant instructed for the defenders, but he had no knowledge or expertise to enable him to express a view. Counsel referred to the case of McTear v Imperial Tobacco Ltd [2005] 2 S.C. 1 for dicta on the proper role of an expert.


[30] In my opinion the pursuer has failed to prove his case against the defenders. It is not disputed that he has suffered hearing loss, tinnitus and hyperacusis since about 1997. Nor is it disputed that this condition rendered him unfit to continue his career as a school teacher.

[31] What is in dispute is the cause of his condition. The medical evidence was clearly to the effect that hearing loss, leaving aside tinnitus and hyperacusis, may be caused by the ageing process and may be caused by exposure to noise. There may be other causes. It is for the pursuer to prove that this loss has been caused by exposure to noise, and if he can do so, to go on to prove that the exposure was wrong in law. In my opinion the pursuer has not proved that his loss is due to exposure to noise. Thus he has fallen at the first hurdle.

[32] There was conflicting evidence from the two eminent consultants led in evidence. Mr Kerr was clear that the diagnosis of noise induced deafness had two components, being the type of hearing loss a shown by testing, and the history of exposure. He was told by Mr Robinson that he had been exposed to noise which was found to have been excessive in terms of regulations. I understand why Mr Robinson said that in light of the report provided by Mr Watson. Mr Kerr accepted what he was told. It does not seem to me however that it was accurate. Mr Watson's report was advisory and based on his interpretation of best practice. He tried to give advice to enable his clients, the defenders, to ensure that none of their employees were exposed to noise which might cause them injury. His work was not designed to discover if Mr Robinson had been exposed to noise in contravention of the regulations and did not do so. It is inherent in the regulations that actual exposure over a particular period of time is measured. It was not: thus Mr Kerr proceeded on an inaccurate premise. Mr Kerr agreed under cross examination that the shape he had regarded as a classic notch shape, indicative of noise induced hearing loss, was not in fact so. Mr Kerr relied in part on the measurement of Mr Robinson's hearing being less than average for his age. I accepted that it was so, but preferred the approach of Mr O'Reilly which was to look at the average range rather than the median figure. Mr Kerr accepted Mr O'Reilly's opinion on the interpretation of the classic notch shape. Both Mr Kerr had Mr O'Reilly agreed that some age related loss was evident. In all of the circumstances I preferred Mr O'Reilly's evidence and did not accept that Mr Kerr had demonstrated why he was of the opinion that the hearing loss was noise induced.

[33] In my opinion there was nothing in the evidence of either Mr Watson or Mr Smith which would allow me to infer that Mr Robinson had been exposed to noise in breach of any duty owed by the defenders under statute or at common law. There was no evidence which would enable me to know what noise, if any, Mr Robinson had been exposed to and for what period or periods. That being so, I could not hold that he had been exposed to noise in breach of duty.

[34] Counsel for the defenders submitted that should I find in favour of the pursuer then I should make a deduction in respect of contributory negligence in that the pursuer failed to wear ear protectors provided for him. I was not persuaded that the evidence about when the ear protectors were provided was sufficiently clear to enable me to make any such deduction and had I been deciding in favour of the pursuer I would have declined to do so.

[34] As I have decided that the pursuer has failed to prove his case I will grant decree of absolvitor. I was not addressed on expenses.