Disputing the Joint Engineering Evidence: The Latest ‘Round’ in the Battle Between Claimants and Defendants in Noise-Induced Hearing Loss Claims? Donald Round v West Midlands Travel Ltd, County Court at Walsall, 7-10 March 2022.

Summary

Damian Powell, instructed by Ian Coppell of Weightmans LLP Liverpool, recently appeared for the Defendant in the trial of the above NIHL claim. The Claimant was represented by Stephen Meachem, instructed by Walker Prestons Solicitors Ltd.

This claim was an example of what some consider to be a recent ‘trend’ in NIHL claims for the Claimant, dissatisfied with the evidence of the single joint engineering expert, to seek permission to obtain their own engineering evidence. It illustrates the issues the Claimant’s engineering expert may take with the evidence of the single joint engineering expert and how a case of this kind may ‘play out’ where the Claimant is granted such permission. Unfortunately, despite this being a four-day multi-track trial, the trial judge, Mr Recorder Male QC, gave an extemporary judgment. In those circumstances, this article, which discusses the above aspects of the case, has to deal with matters in more detail than it would have done had there been a written judgment.

Background

The case started off as a fairly run-of-the-mill NIHL claim. The Claimant was employed by the Defendant’s predecessor in title between about 1963 and 1993. He worked as a mechanic in the predecessor’s garage, servicing and maintaining its fleet of buses. In terms of breach, the only noisy tools he alleged he used were a pneumatic impact wrench for removing and replacing nuts and hammers. He gave an estimate of the length of time each day he used the impact wrench and the hammers of being between 30 minutes and 1 hour per day on average.

The Engineering Evidence: Interpretation and Application of the 1972 Code of Practice

Mr Hill’s Report

In the course of the proceedings the parties agreed to instruct Mr Nicholas Hill as the single joint engineering expert. In his report, Mr Hill opined that, on the basis of the evidence set out in the Claimant’s witness statement, whilst the Claimant was probably exposed to noise levels in excess of 90 dB(A) when using the impact wrench and hammering, his daily personal noise exposure was unlikely to have reached 90 dB(A) Lep,d and may not have reached 85 dB(A) Lep,d.

Specifically in relation to the Code of Practice for Reducing the Exposure of Employed Persons to Noise 1972 [‘the 1972 CoP’] Mr Hill opined that the limit for an employee’s daily personal noise exposure set out in that Code was 90 dB(A) Lep,d.

Part 35 Questions

The Claimant’s solicitors put Part 35 questions to Mr Hill. These questions asked Mr Hill: (1) “whether there are any other standards for The Limit at Section 4 of the [1972 CoP] (emphasis added)”; (2) about the range of noise levels to which the Claimant was exposed and whether a logarithmic average could be provided; (3) to set out paragraphs 2 and 14 of Appendix 1 to the 1972 CoP; and (4) the Claimant’s “non-continuous use of tools” and whether the same meant it would have been difficult to measure and/or control the Claimant’s daily personal noise exposure.

Permission for Claimant’s Own Engineering Evidence

Following Mr Hill’s replies to these Part 35 questions, the Claimant’s solicitors served an engineering report they had obtained from Mr Adrian Watson [‘Mr Watson’s report’]. Prior to Damian’s involvement in the matter and at an application before a Deputy District Judge, the Claimant obtained permission to rely on that report, have Mr Watson as his expert and for Mr Hill, formerly the single joint expert, to become the Defendant’s engineering expert.

Mr Watson’s Report

In his report, Mr Watson opined that there was not one standard of care set out in the 1972 CoP but a number of standards of care. He set out and referred to the contents of paragraphs 4.4.1 and 4.5.1 of the Code.

As a reminder, paragraph 4.3.1 of the 1972 Code of Practice, entitled “continuous exposure” provides:

“If exposure is continued for 8 hours in any one day, and is to a reasonably steady sound, the sound level should not exceed 90 dB(A)”.

Paragraph 4.4.1 of the 1972 Code of Practice is entitled “Non-continuous exposure” and provides as follows:

“If exposure is for a period other than 8 hours, or if the sound level is fluctuating, an equivalent continuous sound level (Leq) may be calculated and this value should not exceed 90 dB(A). Practical rules for calculating the value of equivalent continuous sound level from the readings of conventional instruments, and a mathematical definition are given at Appendix 3.”

Paragraph 4.5.1 of the Code is entitled “Non-continuous exposure which cannot be adequately measured”. It provides:

“In certain circumstances, for example where employed persons move from one area to another, it may be difficult to measure and control exposure to non-continuous sound. If the non-continuous exposure cannot be adequately measured and controlled, any exposure at a sound level of 90 dB(A) or more should be regarded as exceeding the accepted limit and requiring the use of ear protectors. Places where this level is likely to be exceeded should be clearly identified”.

Mr Watson stated that he had carried out a “Monte Carlo simulation” in relation to the Claimant’s noise exposure whilst working for the Defendant and, on the basis thereof, opined that the Claimant “was likely to be at or above 85 dBA for most days and at or above 90 dBA LEP,d for 1-2 days a month”.

Under the heading “Interpretation of the CoP 1972”, Mr Watson contended that “Mr Hill is plainly and simply wrong in his interpretation of the CoP 1972”. It appeared from what followed under that heading that Mr Watson’s basis for this assertion was:

  • The Claimant (who worked shifts of 8 hours 15 minutes per day in total) worked for longer than 8 hours a day;
  • Both he and Mr Hill agreed the Claimant would likely have been exposed to noise at or above 90 dB(A) on occasion whilst working for the Defendant;
  • Accordingly, paragraph 4.3.1 of the 1972 CoP did not apply;
  • Therefore, “the Defendant should have taken measures in accordance with the Limit at paragraph 4.4.1 CoP 1972”;
  • Further, where the Claimant’s noise “exposures could not have been adequately measured or controlled, then the Limit at paragraph 4.5.1 CoP 1972 would have applied”;
  • “In the circumstances of this case, the duration of use of handheld hammers and air tools cannot be adequately measured and the duration of exposure cannot be controlled”;
  • Accordingly the Limits in paragraphs 4.4.1 and 4.5.1 of the 1972 CoP apply to this case and, as there was some noise exposure at a sound level of 90 dB(A) or more, the Limit in paragraph 4.5.1 was breached.
Joint Statement

In the joint statement the experts agreed that “the limit at Section 4.4.1 a daily noise exposure level of 90 dB(A) is currently annotated as 90 dB(A) Lep,d”.

However, they disagreed in respect of the interpretation and/or application to the facts of this case of the 1972 CoP. In particular:

  • Mr Watson was of the view that, as the duration of the Claimant’s use of noisy tools (air impact wrench and hammers) varied from day-to-day, his noise exposure was non-continuous and difficult to measure and control. Therefore, paragraph 4.5.1 of the 1972 Code of Practice applied. As both experts agreed there was occasional exposure at or in excess of 90 dB(A), the duty set out by that paragraph was breached by the Defendant;
  • Mr Hill opined that: Had the Defendant carried out noise surveys of the Claimant’s work between 1963 and 1993, it would have been a straightforward task, in accordance with the guidance given at paragraph 4.4.1 of the 1972 CoP, to calculate his daily personal noise exposure in Lep,d and, if necessary in light of the figure obtained, to take steps to control it;
  • Accordingly, whilst the Claimant was exposed to non-continuous noise, it was not difficult to measure or control that exposure;
  • Further, the Claimant was not a peripatetic worker;
  • Therefore, paragraph 4.5.1 of the 1972 CoP did not apply to this case;
  • As the Claimant’s daily personal noise exposure did not, on the balance of probabilities, reach 90 dB(A) Lep,d, there was no breach of the 1972 CoP.

Mr Watson, both in the joint statement and in an earlier supplementary report, made the serious allegation that in Part 35 relies in other cases drafted at about the same time as his Part 35 replies in this case, Mr Hill had given a contradictory opinion to the above interpretation of paragraph 4.5.1 of the 1972 CoP.

The heavily redacted Part 35 answers Mr Watson relied upon in support of this allegation were:

“Do you agree that the Claimant’s peripatetic work and use of tools with the Defendant exposed him to fluctuating levels of noise, which was non-continuous, and that this non-continuous exposure would be difficult to measure and control? If not, why not?

8) Agreed…

Please can you confirm that:

c. there is a differentiation between measuring and controlling such that, even if noise levels could be adequately measured, if they could not be adequately controlled, paragraph 4.5.1 would still apply?

2) Agreed on all points.”

The Trial

Shortly Before Trial

On 1 March 2022, four working days before the first day of trial on 7 March 2022, the Claimant’s solicitors wrote to the Defendant’s solicitors and the Court to state that:

  • The Claimant would now not be seeking to rely on the oral evidence of Mr Watson;
  • However, the Claimant would still be relying on the written evidence of Mr Watson at trial as a basis for the cross-examination of the Defendant’s witness, Mr Hill;
  • In support of (their contention they were able to take) this course of action, they relied upon and attached to their email the case of MS v Lincolnshire County Council [2011] EWHC 1032 (QB) (5 May 2011).
Evidence at Trial

The trial was heard by Mr Recorder Male QC at the County Court at Walsall between 7 and 10 March 2022. The Recorder was content to allow the Claimant to proceed as outlined in the letter from his solicitors dated 1 March 2022 in respect of the expert engineering evidence. He asked Mr Meachem why Mr Watson was not attending. Mr Meachem’s reply, specifically referred to in the Recorder’s judgment, was that, “on instructions it was due to reasons of costs”.

The Claimant’s Evidence

On tool use/breach, under Damian’s cross-examination, the Claimant agreed that his estimate of using the pneumatic impact wrench for 30 minutes to 1 hour per day was the time he “had it in his hand” but not the time it was “on making noise”. He agreed that the wrench was on making noise for “about 4 second bursts” each time he had to remove or replace a nut. He removed and replaced about 20 nuts per day thus used the wrench for 40 x 4 second bursts per day. He used a hammer very occasionally and for only “a few seconds a day”.

Mr Hill’s Evidence

Under cross-examination from Mr Meachem, Mr Hill maintained his position, as set out in his report, Part 35 replies and joint statement in respect of the interpretation / application of the 1972 Code of Practice. Further, having had the benefit of attending the trial and hearing the Claimant’s evidence on tool use, in examination-in-chief by Damian, Mr Hill was able to recalculate the Claimant’s personal daily noise exposure whilst working for the Defendant on the basis of the evidence the Claimant had given on this matter from the witness box.

Having done so, based on that evidence, Mr Hill was of the opinion that, on the balance of probabilities, the Claimant’s daily noise exposure whilst working for the Defendant was below 85 dB(A) Lep,d. Accordingly, not only was this below the 90 dB(A) Lep,d limit in the 1972 Code of Practice, it was also below the first action level in the Noise At Work Regulations 1989 for the period of employment between 1 January 1990 and 1993. Further, with no noise exposure of at least 85 dB(A) Lep,d, Requirement R2 of the CLB 2000 Guidelines was not met.

Judgment

In an extempore judgment given on 10 March 2022, Mr Recorder Male QC made the following findings:

The Expert Evidence
  • He had “no hesitation in preferring the evidence of Mr Hill wherever there was a conflict between his evidence and that of Mr Watson”;
  • This was because “Mr Hill attended trial and Mr Watson did not” Accordingly, Mr Hill was “the only expert whose evidence was tested in the usual way”. By contrast, Mr Watson’s evidence was not tested, including on the “very serious allegations he made against Mr Hill”;
  • The other reason for preferring Mr Hill’s evidence to that of Mr Watson was that Mr Hill had the benefit of hearing the Claimant’s evidence from the witness box on tool use and recalculating his opinion on the Claimant’s personal daily noise exposure on the basis thereof. Accordingly, the Court preferred Mr Hill’s updated opinion, based on the Claimant’s oral evidence, that his daily personal noise exposure was below 85 dB(A) Lep,d to Mr Watson’s opinion, which was made without the benefit of hearing the Claimant’s live evidence.
Breach
  • As the Court preferred and accepted Mr Hill’s evidence that the Claimant’s personal daily noise exposure whilst he worked for the Defendant did not attain 85 dB(A) Lep,d and that paragraph 4.5.1 of the 1972 CoP did not apply (such that any exposure at 90 dB(A) would amount to breach), there was no breach of duty by the Defendant between 1963 and 1993, the entirety of the period it employed the Claimant;
  • Therefore, the claim was dismissed on the basis the Claimant failed to prove breach of duty;
Causation
  • He also accepted the Defendant’s submission that, as the Claimant’s personal daily noise exposure whilst he worked for the Defendant did not attain 85 dB(A) Lep,d, the Claimant was unable to satisfy Requirement R2 of the CLB 2000 Guidelines;
  • Therefore, the claim was also dismissed on the basis the Claimant failed to prove causation.

Comment

This case demonstrates that whatever the merits or otherwise of Mr Watson’s opinions set out above, when he did not attend trial for these opinions to be tested, this was fatal to the Claimant’s case on breach of duty. The Claimant’s tactic of not calling Mr Watson but seeking to cross-examine Mr Hill on the basis of Mr Watson’s report entirely failed where Mr Hill, in response to that cross-examination, ‘stuck to his guns’. In those circumstances, wholly unsurprisingly, the Court had “no hesitation in preferring the evidence of Mr Hill wherever there was a conflict between his evidence and that of Mr Watson”.

As it appears that the reason for Mr Watson’s non-attendance at trial was “due to reasons of costs”, at any future application by a dissatisfied Claimant for their own engineering evidence should a Defendant be asking for the Claimant’s solicitors to satisfy the Court that the Claimant’s expert would, if necessary, attend trial and that there would be the funds in place to cover the costs of the same?

Damian Powell specialises in disease litigation, including claims for noise-induced hearing loss. He has particular experience in multi-track and High Court disease cases involving the cross-examination of expert witnesses.

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