(Scotland)
A woman who required hearing aids after her ears were damaged by a faulty fire alarm at her workplace has been awarded over £241,000 by the All-Scotland Sheriff Personal Injury Court.
Haesel McDonald, who was an employee of tanning salon operator Indigo Sun Retail Ltd while studying dance at Dundee and Angus College, sought reparation for injury in the form of tinnitus and hearing loss arising from four hours of exposure to the noise from the alarms in her workplace.
The case was heard by Sheriff John Mundy. The pursuer was represented by Langlands, advocate, and the defender by McGregor, advocate.
Told to keep working
The pursuer worked at a tanning salon in Dundee operated by the defender between January 2015 and February 2016. The fire alarm in the pursuer’s workplace was known by the defender to be faulty, causing it to sound unnecessarily on numerous occasions. One such occasion was the morning of 12 December 2015 at which time the pursuer was working an 9am to 1pm shift.
The noise of the alarms made it difficult for the pursuer to concentrate on her work. She telephoned her manager, Steven Campbell, for assistance, who indicated that he would come to the salon but that she should continue working. This frustrated the pursuer, who had hoped that the alarm could be turned off or that she would be allowed to go home. Fearing that she would lose her job if she left, she remained at the salon.
At around 11am Mr Campbell appeared at the salon and applied tape to the alarms to muffle the sound, indicating that an engineer would be called at an unspecified time. The pursuer was not offered any form of ear protection and was told to keep working. Nearby shops that were also having problems with their alarms managed to either turn them off or sent all of their employees home.
The average noise level to which the pursuer was exposed was 87.5dB prior to the arrival of Mr Campbell and thereafter 82.9dB. Following the conclusion of her shift, she continued to be aware of a ringing in both ears and later impairment of her hearing. In December 2016, by which time the pursuer had returned home to Inverness, she was diagnosed with bilateral sensorineural hearing loss and provided with hearing aids on the NHS.
In March 2017, the pursuer was referred to a consultant otolaryngologist, Professor Laing. His working diagnosis was that the pursuer had sensitive inner ears and that most of her hearing loss had been caused by the exposure to the noise of the alarms.
It was averred that the pursuer no longer felt able to pursue a career in dance due to a loss of confidence caused by her hearing impairment. Further, her NHS hearing aids were generally uncomfortable, and it would be better to replace them with a private model. The pursuer now sought to pursue a career in sport science, and her future career would involve vigorous physical activity that could cause the NHS hearing aids to fall out.
The pursuer submitted that the defender was at fault in common law and under its statutory duty under the Control of Noise at Work Regulations 2005. She should not have been exposed to the noise of the alarm and she should have been instructed to leave the premises after it had activated.
No other explanation
In his judgment, Sheriff Mundy said of the pursuer’s evidence: “That the noise of the alarm was extremely loud cannot seriously be disputed in light of the evidence of the pursuer of the effect it had upon her at the time and indeed the evidence of her student colleague and flatmate Amelia Newton that the noise could be heard from within their flat across the street, all of which is reflected in the findings in fact.”
He went on to say: “The application of tape did not achieve elimination of the risk, nor did it bring down the level of noise to below the lower exposure action value. A reasonably practical and obvious step would have been to have a system in place to instruct the pursuer to remove herself from the premises in the event of the alarm sounding.”
On whether the pursuer’s hearing loss had been caused by exposure to the alarms, Sheriff Mundy noted: “[The pursuer’s] evidence, which I have accepted as credible and reliable, shows that before the pursuer’s exposure to the fire alarm she had no tinnitus or hearing difficulties. Following the exposure of the noise of the fire alarm, she developed tinnitus and hearing difficulties.”
He continued: “While it is not of course for the defender to prove a cause, I have found no other credible explanation for the pursuer’s problems and if there was another cause, it would be a remarkable coincidence if the symptoms emerged immediately following the exposure to noise.”
Sheriff Mundy concluded on this matter: “The pursuer has discharged the onus upon her to prove causation by the civil standard. The very risk that the regulations were designed to avoid eventuated and, as indicated, it is my view that the obligations in the regulations founded upon are within the compass of the employer’s duty to take reasonable care at common law.”
Considering quantum of damages, he said: “In light of [the pursuer’s] young age, the immediate onset of symptoms, the hearing deficit being bilateral, the severity of the hearing loss as demonstrated by the audiograms and being accompanied by intermittent tinnitus, an award should be made at the upper end of [the solatium] bracket. Account should also be taken of the prospect of deterioration in her hearing.”
He added: “It seems to me to be perfectly reasonable for the pursuer to have hearing aids which allow her to follow a future career involving vigorous physical activity and also to allow her to engage in dancing.”
For these reasons, the defender was found to be liable for the pursuer’s hearing loss. Damages were assessed at £25,000 for solatium, £1,300 of interest thereof, and £214,977 for the future cost of private hearing aids replaced every three years. The total award amounted to £241,277.
Scottish Legal News Ltd April 2021
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