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You are here: BAILII >> Databases >> English and Welsh Courts - Miscellaneous >> Wignal v The Secretary Of State For Transport [2016] EW Misc B17 (CC) (1 July 2016)
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Cite as: [2016] EW Misc B17 (CC)

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IN THE COUNTY COURT AT PRESTON
Case No: 2YK11310

 

The Law Courts

Preston PR1 2LL

Date: Friday 1 st July 2016

BETWEEN:

 

ANDREW WIGNALL

(Personal representative of the Estate of John Wignall deceased)

Claimant

and

 

THE SECRETARY OF STATE FOR TRANSPORT

(in substitution for BRB (Residuary) Limited)

Defendant

 

 

 

JUDGMENT

of

His Honour Judge Butler

(Designated Civil Judge for Cumbria & Lancashire)

 

Hearing Dates; 24 th, 25 th and 26 th May 2016

 

 

 

 

MR TERENCE RIGBY appeared for the Claimant

MR TOBY STEWART appeared for the Defendant

 

 

 

 

 

 

 

 

 

 

 

Crown Copyright

 

 

 

I direct that pursuant to CPR PD 39A paragraph 6.1 no tape or digital recording shall be taken of this judgment and that copies of this version as handed down may be treated as authentic.


His Honour Judge Butler:

INTRODUCTION

1.              This is a claim by the estate of Mr John Wignall deceased, for damages for personal injury in the form of noise-induced hearing loss ("NIHL") allegedly suffered by the deceased by reason of exposure to excessive and hazardous levels of industrial noise during the course of his employment with British Railways ("BR") as a fireman working on steam locomotives hauling passenger and goods trains in the steam age.

2.              The first permanent steam locomotive railway opened to run between Stockton and Darlington on 27 th September 1825. The first permanent scheduled passenger steam locomotive railway opened to run between Manchester and Liverpool on 15 th September 1830. Steam locomotives were noisy and dirty from the beginning and inevitably remained so. The last scheduled passenger train hauled by a steam locomotive ran on BR between Liverpool and Carlisle on 11 th August 1968 ( sources: National Railway Museum; BBC). As far as I am aware or counsel are aware from their research not a single claim for damages for what would then have been called "industrial deafness" was reported as having been brought by a locomotive fireman (or driver) during those 143 years or for more than 40 years thereafter.

3.              On 31 st May 2012, almost 44 years after the last scheduled steam train ran on BR and some 46 years after he had last worked as a fireman on the footplate of a steam locomotive, the late Mr Wignall issued proceedings against the BRB (Residuary) Limited, being the residuary body formed after privatisation to handle claims against the now long-defunct nationalised BR. The residuary body has itself now ceased to exist and its responsibilities have been taken over by the Secretary of State for Transport. The actual current parties to this case are accordingly (1) Mr Andrew Wignall, the deceased's son, as Claimant representing his father's estate for the benefit of which the claim has survived under the provisions of the Law Reform (Miscellaneous Provisions) Act 1934 and (2) the Secretary of State as Defendant in substitution for the residuary body.

4.              All page references in this judgment, unless otherwise indicated, will refer to the trial bundle, which consisted of 756 pages in two lever arch files.

5.              The deceased was born on 12 th January 1942. According to his witness statement (page 69) he left school at about 14 years and commenced employment with BR. Neither BR's employment records nor HMRC's national insurance contribution records (before 1961) have survived to enable the periods of employment to be stated with certainty, but it is a matter of record that the school leaving age had been increased to 15 years, as from 1947, by the Education Act 1944 before 1956. I consider it to be reasonable to find by inference that he probably did not leave school earlier than the term before his 15 th birthday on 12 th January 1957 and did not start work before that date. Indeed that was the notional starting date for noise exposure used by counsel in their damages and apportionment calculations. After about a year working as a locomotive engine cleaner he became a locomotive fireman based in Blackburn, Lancashire, and continued in that occupation until 1963. After a short period during which he left BR and undertook a number of other jobs of short duration, he returned to BR, this time based in Paddington, London, and again worked as a locomotive fireman until 1966. During the period 1964 to 1966 there were also some breaks of employment when he took work of short duration with other employers. For two years after 1966 he worked for other employers but then returned to work for BR as a track worker for a few months in 1968.

6.              As I have recorded, this claim was issued on 31 st May 2012. Unfortunately, Mr John Wignall died on 20 th May 2014 at the age of 72 years, from causes wholly unrelated to his hearing loss and therefore unrelated to this claim. His death certificate records the primary cause of death as hypertensive heart disease and essential hypertension and the secondary cause as chronic obstructive airways disease. On 17 th February 2014, three months before his death, he had verified his witness statement (page 69). He had been examined by medical experts instructed by his own solicitors and by the Defendant's solicitors. He died intestate and his death accordingly delayed the progress of proceedings whilst letters of administration were obtained by his son, the current Claimant. Earlier trial dates, 27 th October 2014 and 1 st December 2014, were vacated. Letters of administration were obtained on 7 th May 2015. A new trial date, 20 th January 2016, was also vacated but ultimately the case was listed for trial before me on 24 th May 2016 with an estimate of one and a half days. In reality, of course, the dispute was between the deceased and BR, but sadly neither is any longer in existence. In the hope of avoiding confusion, except where it may be necessary to draw a distinction between the present Claimant (Mr Andrew Wignall) and the deceased (Mr John Wignall) or between BR as the original employer and the Secretary of State as the current Defendant, I propose in this judgment to refer to the main protagonists simply as "the deceased" and "BR".

7.              In paragraph 9 of his witness statement dated 20 th February 2014 dealing with limitation (page 80) the Defendant's witness Mr Christopher Bruce, a legal executive in the employ of Berrymans Lace Mawer LLP, seemed to say that this would be the first such case to come to trial but in fact it transpired that two other claims of the same or similar type against this Defendant have been tried at first instance in the county court, one in 2014 and one in 2015. Although I was told that Mr Bruce may have believed that this present claim had been the first one issued and that this was what he perhaps intended to convey, court records for the first case tried in 2014 indicate that it was issued in October 2011. At all events, so far as I am aware, the claim before me is only the third of its kind ever to come to trial.

 

THE CLAIM

8.              As originally issued (page 1) the claim was brought against BR and one other later employer but it was very soon amended (page 3) to substitute two subsequent employers for the second employer, so that BR became the first of three Defendants. The claims against the other two Defendants were later compromised on payment of a global sum described as being inclusive of damages, costs, interests, disbursements and additional liabilities. A Tomlin Order was made on 25 th October 2013 to reflect that compromise (page 64). Counsel for both parties agreed that the precise terms of that settlement are irrelevant either to liability or, if appropriate, assessment or apportionment of damages in the remaining claim against BR.

9.              Against BR, the deceased claimed to have suffered noise-induced hearing loss by reason of exposure to excessive or hazardous noise, that is to say the noise of steam locomotives. In the particulars of claim at paragraph 1 (page 5) and paragraph 4.1 (page 6) it was pleaded that he had worked as a fireman throughout the period 1956 (sic) to 1963 and then intermittently between 1963 and 1968. The specific allegation was of exposure to the noise of steam engines with specific particulars given about how he had to " shout" to communicate with colleagues standing more than two feet from him during his shifts of notional eight hours per day five days per week but often allegedly lasting twelve hours. Having regard to his death before trial, no live oral evidence from any witness of fact was adduced before me. The only available witness of fact would have been the deceased. His witness statement dated 17 th February 2014 (page 69) was admitted as a hearsay statement. In addition, there were replies to Part 18 questions asked by the Defendant with a view to obtaining from the deceased (when alive) as much detail as possible about his employment. Such replies were given on 7 th May 2013 (page 28). Both his witness statement and his Part 18 replies bear a statement of truth (but in the case of the replies that is made by the deceased's solicitor who provided the answers on the deceased's instructions).

10.          The particulars of negligence as pleaded in paragraph 6 of the particulars of claim (page 7) do not all apply to BR. In particular, the provisions of the Factories Act 1961 did not apply to the deceased's employment with BR and the references to the statute were directed at the other two Defendants. As against BR, in essence, the deceased alleged that he had been exposed to excessive noise without provision of personal hearing protection, BR having failed properly or at all to commission or carry out any or any adequate noise surveys and having failed to provide him with suitable and sufficient information or instruction or training in respect of the risk that his hearing might be damaged by exposure to noise. He alleged that BR knew or ought to have known that exposure to excessive noise could cause deafness, having regard to the nature of his employment with them. The conventional references to various publications were included, culminating (for the purpose of his claim against BR) in the pleading of the publication by the Ministry of Labour in 1963 of the pamphlet Noise and the Worker. The deceased recognised that his claim was ostensibly out of time, having regard to the applicable three year limitation period, but he pleaded that his date of knowledge for limitation purposes had not arisen until about 2010, that is to say less than three years before the commencement of the proceedings. By paragraph 8 of its defence (page 16) BR neither admitted nor denied this date of knowledge, but reserved its position on limitation and effectively put him to proof. Indeed the Claimant does bear the burden of proof in relation to establishing that this claim has been brought within the statutory limitation period.

11.          In my judgment, it was implicit, having regard to the dates of employment pleaded, that the deceased was seeking to claim damages for hearing loss attributable to alleged exposure to excessive noise throughout his period of employment commencing in and continuing after 1957. In order to succeed in a claim for damages for noise-induced hearing loss, an employee must establish on the balance of probabilities not only that he was exposed to excessive noise (according to the recognised criteria applicable at the relevant time) but also that the employer was in breach of its duty to him to take reasonable care for his health, safety and welfare by preventing or minimising such exposure. This latter carries with it the need to prove that the employer had actual or constructive 'guilty' knowledge, that is to say was aware or ought to have been aware of the relevant risk. In order to recover damages, the deceased would have to prove that BR was in breach of duty. However, given that the conventional starting date for awareness by the average employer of the risk of damage to his employee's hearing through noise is taken to be 1963, following the publication of Noise and the Worker, the defence pleaded at paragraph 4.5 (page 15) that the earliest date on which liability could arise in this claim was 1963 in accordance with that convention. This pleaded defence was without prejudice to the averment that, although it was admitted that a fireman on steam locomotives would not have been provided with hearing protection during the period of the deceased's employment, nevertheless there was no breach of duty because work on steam locomotives was " not known to be excessively noisy and such measures were not necessary" and in any event that the " use of hearing protection on the footplate would have been unsafe": see paragraph 4.4 of the defence (page 14).

12.          The Defendant was obviously alive to the fact that the deceased appeared to be seeking to rely upon an awareness on the part of BR of the risks of excessive noise to railwaymen, in particular those working on and around steam locomotives, but the Claimant did not serve a reply to that defence or amend its particulars of claim specifically to plead a specific earlier date of awareness alleged. For whatever reason, neither party further addressed that issue until the trial, when counsel for the Defendant, Mr Toby Stewart, raised the point in his skeleton argument. He submitted that the Claimant had not pleaded, sufficiently or at all, any earlier date of awareness and submitted that counsel for the Claimant, Mr Terence Rigby, should not be permitted to advance any case that BR's date of guilty knowledge began any earlier than the date applied conventionally to the average employer, generally taken to be 1 st January 1963. Mr Rigby, whilst not accepting the correctness of that submission, pragmatically made an application to amend the particulars of claim in the face of the court. I granted the application. My full reasons for doing so were given in an extempore ruling on 24 th May 2016, to a transcript of which reference may if necessary be made. I do not propose to repeat it, but following that ruling Mr Stewart, having taken instructions, did not apply for an adjournment.

13.          Accordingly the trial proceeded on the basis that the Claimant had permission to add, after the words " knew or ought reasonably to have known that exposure to excessive noise could cause deafness" in paragraph 6(g) of the particulars of claim, the following words namely, " it is averred by the Claimant that (BR) had express or constructive knowledge of this from at least 1956 or in the alternative from a later date before 1963".

THE ISSUES

14.          All issues that can be in dispute in a claim of this kind were in dispute in this claim. I should say that I was greatly assisted by the detailed skeleton arguments and the skilful and persuasive oral submissions of both counsel, who are experienced in this area of practice, namely Mr Rigby for the Claimant and Mr Stewart for the Defendant. The trial was listed for only one and a half days, which was a tight and ultimately unrealistic estimate. Indeed, in February 2014, the Defendant's witness Mr Bruce (whom I know from previous cases is experienced, as is his firm, in this area of practice) suggested in paragraph 10 of his statement (page 80) that a trial on all substantive issues would take at least four days. Given that the parties were in dispute as to limitation, breach of duty, causation (both in terms of whether the deceased was in fact suffering from noise-induced hearing loss or hearing loss from some other cause and, if suffering noise-induced hearing loss, whether it was attributable to noise exposure during his employment with BR), quantum and apportionment of damages, it is not clear to me how an estimate of only one and a half days could have been agreed. I can only think that possibly the delay brought about by the stay to allow letters of administration to be obtained and the repeated adjournment of the earlier trial dates led to the solicitors on both sides taking their eye off the ball.

15.          At all events, with the assistance of skilled counsel, it was possible to complete evidence and legal submissions within two (long) days. After sitting until 6.00pm on the second day, I announced my decision together with comparatively brief skeleton reasons for that decision on the third day (26 th May 2016) following which counsel were able to deal with consequential issues such as costs. The case was accordingly completed within three days but such was the remaining dispute on all issues at the end of the trial, with the exception of apportionment, the method of calculating which counsel had been able to agree, that I considered it necessary to reserve full reasons for handing down at a later date. In particular, the issue relating to BR's date of guilty knowledge is one which may be of potential wider importance and I did not feel that an extempore judgment would do justice to the case.

16.          The decision I announced on 26 th May 2016 was that the Claimant's claim had succeeded on the basis:

(a)            that the deceased's date of knowledge for limitation purposes was probably late 2009 or early 2010 and so within three years prior to the commencement of proceedings,

(b)           that BR's date of guilty knowledge or awareness for the purposes of liability was late 1961 or early 1962 but that, allowing for a short period of grace to take the steps that in my judgment could and should have been taken, the earliest date on or from which liability could arise in the claim was mid-1962 (taking 30 th June 1962 as the specific date for the purpose of calculation of damages),

(c)            that the breach of duty had been proved from mid-1962,

(d)           that the deceased had suffered noise-induced hearing loss partly attributable to his employment with BR, and

(e)            that damages should be assessed in the sum of £6,000 before apportionment.

After a short adjournment, counsel agreed that the apportionment calculation resulted in an award of damages of only £476.18 including interest but, there having been no or no relevant Part 36 offers, costs were payable by the Defendant. Accordingly, judgment was formally entered for the Claimant in the sum of £476.18 with costs, such costs to be subject to detailed assessment if not agreed and with an order for payment on account of costs by the Defendant to the Claimant in the sum of £10,000 including VAT, subject only to set off in the sum of £360 including VAT, being the costs of and caused by the late amendment which were payable by the Claimant to the Defendant. For the purposes of CPR 52.4(2)(b) I directed that the time for either party to seek permission to appeal should be extended to a date fourteen days after the handing down of this judgment on the basis that any such application could, if so advised, be made to me in writing in the first instance.

17.          The remainder of this judgment contains my full reasons for reaching the decision to find for the Claimant on the basis and in the sum explained in the previous paragraph.

 

 

LIMITATION

18.          This is a claim for damages for negligence and accordingly the provisions of section 11 of the Limitation Act 1980 apply and in particular section 11(4) which provides:-

"Except where subsection (5) below applies, the period applicable is three years from -

(a) the date on which the cause of action accrued; or

(b) the date of knowledge (if later) of the person injured."

Section 11(5) does not apply in this case because the deceased died after, not before, the commencement of proceedings. On the evidence in this case, I find as a fact that the deceased was not employed by BR at all after 1968 and that he was not employed as a footplate fireman after 1966. At the latest his exposure to excessive noise in that employment ceased in 1968, whereupon the cause of action would have accrued, and the primary three year limitation period would have expired at the latest in 1971. In fact, as I will briefly explain later in this judgment, I was not satisfied that he was exposed to excessive or hazardous levels of noise in his short additional period of employment as a trackman during 1968 so that the cause of action probably accrued no later than 1966 and therefore the primary limitation period probably expired no later than 1969. The HMRC schedule of national insurance contributions (page 84) shows that the deceased did not work for BR at all during the tax years 1966-67 and 1967-68 which in my judgment leads to the conclusion that his employment as a fireman by BR ended no later than 5 th April 1966. On that basis his cause of action against BR had accrued no later than that date and the primary limitation would have expired no later than 5 th April 1969. On that basis, proceedings were issued in this case more than 43 years out of time.

19.          As I have already noted, the deceased pleaded that his "date of knowledge" for the purposes of section 11(4)(b) was not until about 2010. In the alternative, he sought a direction from the court pursuant to Section 33 of the 1980 Act to the effect that it would be just and equitable to allow the action to proceed, that is to say a direction disapplying the limitation period if it had expired. The definition of "date of knowledge" for the purposes of section 11 is to be found in section 14 of the 1980 Act which, so far as material, provides as follows:-

"(1) ... In section 11 ... of this Act references to a person's date of knowledge are references to the date on which he first had knowledge of the following facts -

(a) that the injury in question was significant; and

(b) that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty; and

(c) the identity of the defendant; and

...

knowledge that any acts or omissions did or did not, as a matter of law, involve negligence ... or breach of duty is irrelevant ...

(2) For the purposes of this section an injury is significant if the person whose date of knowledge is in question would reasonably have considered it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment.

(3) For the purposes of this section a person's knowledge includes knowledge which he might reasonably have been expected to acquire -

(a) from facts observable or ascertainable by him; or

(b) from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek;

but a person shall not be fixed under this subsection with knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice."

20.          Mr Rigby, without conceding the point, readily accepted that if the Claimant could not discharge the burden of establishing that the deceased's date of knowledge was less than three years prior to the commencement of the proceedings, he would be in great difficulty persuading the court to exercise its discretion to disapply the limitation period in his favour. In my judgment, that was clearly the case. The claim relates to events that occurred between 46 to 55 years prior to the commencement of the proceedings. According to the evidence of Mr Bruce, which was not disputed (Mr Bruce was not required to go into the witness box for cross-examination and his evidence was tendered) there are no available defence witnesses of fact and the Defendant has made disclosure of all relevant documents that have survived. Those documents are limited and do not stretch back as far as 1957, albeit that they do go as far back as October 1961. If the claim is out of time then the Defendant would be seriously prejudiced if the Claimant were nevertheless permitted to pursue it. So far as is relevant for the purpose of this judgment, section 33(1) of the 1980 Act provides as follows:-

"(1) if it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which -

(a) the provisions of Section 11 ... of this Act prejudice the (Claimant) or any person whom he represents; and

(b) any decision of the court under this subsection would prejudice the Defendant or any person whom he represents;

the court may direct that those provisions shall not apply to the action ..."

Section 33(3) of the 1980 Act identifies a number of particular matters to which the court should have regard when considering all the circumstances of the case before deciding whether to exercise its unfettered discretion to disapply or to refuse to disapply the limitation period in an appropriate case. In my judgment, unless the Claimant could satisfy the court that the deceased's date of knowledge was less than three years before 30 th May 2012, it would be difficult indeed for the court to consider it equitable to direct that the provisions of section 11 should not apply having regard to the extent to which that decision would prejudice the Defendant.

21.          Having regard to the death of the deceased, the evidence as to date of knowledge is of course limited. The deceased bore (therefore the Claimant bears) the burden of proof. The deceased's medical records are substantial (pages 360 to 713). Suffice to say that it was agreed by counsel that there is no entry in the medical records, which deal extensively with a number of health issues that afflicted the deceased through his life and which ultimately led to his death, referring to problems with hearing. On that basis, I find as a fact that the deceased did not make any complaint about hearing loss to his general practitioner or other medical attendant. It is not therefore possible, by reference to contemporaneous records, to point to any date or occasion upon which he reported anything which might be capable of demonstrating that he had hearing impairment or any constructive knowledge of the attributability of any such impairment to any noisy employment. According to the deceased's (hearsay) evidence contained in paragraph 65 of his witness statement dated 17 th February 2014 (page 75) he first began to notice that he was experiencing some hearing problems approximately three and a half to four years before the making of that witness statement, that is to say in early to mid-2010 (taken literally, between about February and August 2010). He had started to notice that he frequently had to ask people to repeat what they had said to him and that he had to have the television at a loud volume in order to hear it. His evidence is that he had " assumed that this was just due to my age". He also referred to a " hissing noise" in his ears which began as an intermittent noise but became more frequent and which, by February 2014, he noticed every day. He said that before bringing the claim he had not discussed his hearing with his general practitioner, assuming as he did that old age was the cause and there was nothing that could be done. He had not considered the possibility of noise at work being the cause of his hearing problems until, in 2011, he was offered a free of charge hearing test by the Claims Advice Group, for which he went on 26 th April 2011.

22.          In his replies to a Part 18 request for further information dated 7 th May 2013, seven months before his witness statement, the deceased (through his solicitor) said that he had begun to notice that he was experiencing problems with his hearing about three and a half years earlier, that is to say in late 2009 (taken literally, about November 2009). That estimated, understandably imprecise, date is not radically different from the equally understandably imprecise estimate made later and, importantly, his replies as to what he noticed and as to his assumptions at that time are entirely consistent with his witness statement. I take into account that both the statement and the replies contain a statement of truth.

23.          There is nothing in the evidence before me to indicate what preceded the offer of the free hearing test. I take judicial notice, from experience of this and other civil litigation, that such claims often begin after a person receives a cold call by telephone, or replies to an advertisement or is stopped in the street by a canvasser. Whichever may have been the case here, following the hearing test on 26 th April 2011 he was told that he had hearing loss and that the pattern of the hearing loss was suggestive of NIHL. The latter point is a matter for me to decide having heard the evidence of the medical experts, but it is clear that for limitation purposes the date of the deceased's actual knowledge was no later than 26 th April 2011. That is of course less than three years prior to the commencement proceedings.

24.          What, if any, evidence is there of constructive knowledge at any earlier date? The Claimant bears the burden of proving that this claim was brought within three years of the deceased's date of knowledge, actual or constructive. The Defendant bears no legal burden in this respect and on its pleaded case put the deceased to proof. However, Mr Stewart points to a piece of evidence - and it is in my judgment the only piece of evidence available to the Defendant for this purpose - which is said to be at least suggestive of a date of constructive knowledge several years before 30 th May 2012 and he submits that it should operate to prevent the Claimant discharging the burden of proof upon him that the deceased did not have constructive knowledge before May 2009 (three years before commencing the proceedings). This evidence is that when the deceased went for medical examination by the Defendant's medical expert Mr Jones (consultant ENT surgeon) he attended with his son. When Mr Jones gave evidence, he was unable to identify Mr Andrew Wignall, who was sitting in court, as the son who had attended with the deceased and it was not confirmed either in evidence or through counsel that it was indeed Mr Andrew Wignall, as opposed to any other possible son of the deceased, who attended with him. It was however not disputed that a son did attend with him and nor was Mr Jones challenged in evidence as to the accuracy of what he had recorded that son as having said. When the deceased was examined by Mr Jones on 18 th February 2014, which I note was only three months before his death, he told Mr Jones that he complained of moderate hearing loss " for one to two years" (page 214). Taken literally, that would mean only as far back as early 2012, but more importantly Mr Jones recorded that the son who attended with the deceased then stated that " it was a great deal longer than this" and felt that " he has had hearing problems for fifteen years".

25.          Mr Stewart invited me to infer, from the absence of the calling of the son in question to give evidence to contradict what Mr Jones had recorded, that this had been said and, if I understood him correctly, either to make a finding of fact that the deceased did have hearing problems as far back as about 1999, which would of course be about thirteen years before commencement of the proceedings, or at the very least to find that the uncertainty created by this piece of evidence meant that I could not be satisfied that the Claimant had discharged the burden of proving that on the balance of probabilities the deceased's date of constructive knowledge was no earlier than May 2009. For his part, Mr Rigby submitted firstly that this was at best second-hand hearsay evidence and secondly that if it established anything at all it established no more than that the son in question had a perception that his father had suffered hearing loss rather than that the deceased had done so. It was effectively submitted that without subjective awareness on the part of the deceased, the question of whether he should objectively reasonably have investigated the cause of the problem did not arise on the authorities (to which I will refer shortly). Mr Rigby submitted that it was important that Mr Jones had not recorded in his report that the son's intervention had caused the deceased to change the history and that there is no record that the deceased reacted to or acquiesced in the comment or even that he had in fact heard it. Although, when he gave evidence, Mr Jones at first seemed to say that the deceased had heard it, he could not say and did not say that the deceased had adopted it or changed his account at that time of having had the problem for only one or two years.

26.          In Central Manchester Health Authority v W (A minor) [1998] PIQR P324, the Court of Appeal held that in certain circumstances a court was entitled to draw adverse inferences from an absent or silent witness who might be expected to have material evidence. In my judgment it is proper for me to draw the inference, from the absence of evidence from whichever son attended with the deceased on that occasion, that what Mr Jones recorded as having been said was recorded accurately. Medical reports were exchanged after the exchange of statements of witnesses of fact, according to the order set out in the district judge's directions order made on 18 th December 2013 (page 63). It is unlikely that the deceased ever saw Mr Jones' report because he would have died before it was served. However, I find that it is a reasonable inference that Mr Andrew Wignall, when he became Claimant, would have been made aware of what was said. It is reasonable to infer that the Claimant's solicitors would have shown that report to their client after it was served. It would have been open to the Claimant to make an application for permission to serve a supplementary witness statement from the son in question (whether it was Mr Andrew Wignall or another son) and insofar as such an application would have been an application for relief from sanctions, it seems to me that there would have been good reason for a district judge to grant the application. Accordingly I draw the inference that the son who attended with the deceased did say what he is recorded as having said and did, subjectively, have the perception and opinion that his father had been suffering hearing problems for many years. However, I cannot and do not draw the inference that the deceased agreed with that assertion, given that there is no express record that he did so and given that he did not change the history that he was presenting to Mr Jones. It is in my view relevant to note or reasonable to infer from his death only three months afterwards that the deceased was obviously not in the best of health. It is a curious feature that the witness statement of the deceased giving the period of three and a half to four years (page 75) was made on 17 th February 2014, just one day before he went to Mr Jones, on which day is recorded as having referred to a period of only one to two years. In my judgment it is important to bear in mind that what was said to Mr Jones was said in the context of a conversation during a medical examination whereas what is said in the witness statement was said to a solicitor and in the context of signing a statement of truth. Further I bear in mind that what is said in the witness statement is consistent with what has been said (again verified by the statement of truth) seven months earlier in the Part 18 replies.

27.          Accordingly I prefer and accept the first-hand hearsay evidence of the deceased, verified by the statement of truth, given in his witness statement, consistent with and supported by the Part 18 replies, and I do not consider that the weight and force of that evidence is undermined or diminished by the second-hand hearsay reported by Mr Jones.

28.          In A v Hoare [2008] UKHL 6, it was held that for the purpose of section 14(2) the test is generally subjective in the sense that it is applied to what a claimant (here the deceased) knows of his injury rather than any injury as it actually was. Such knowledge may have to be supplemented with imputed objective knowledge but the test itself is an entirely impersonal standard. The question is not whether the deceased himself would have considered his injuries sufficiently serious to justify proceedings but whether he should reasonably have done so. The first question is what if anything the deceased knew about the injury he had suffered to which is added any knowledge about it that may be imputed to him under section 14(3) of the 1980 Act and then the second question must be asked whether a reasonable person with that knowledge would have considered the injury sufficiently serious to justify his taking proceedings for damages against the Defendant. The test for when a person is to be fixed with knowledge that his injury is significant is based upon what it was reasonable for him to think and do, given the facts of which he was aware, to be decided objectively by the judge applying the standards of the ordinary reasonable man: see also Adams v Bracknell Forest BC [2005] 1 AC 76 (HL). It is not to be said that as soon as a person is aware of any minor inconvenience in respect of his hearing he is to be fixed with the knowledge that he would acquire if he immediately took expert advice: see Furniss v Firth Brown Tools Limited [2008] EWCA Civ 182 and Field v British Coal Corporation [2008] EWCA Civ 912.

29.          Accepting the evidence of the deceased, there is in my judgment no basis for finding that he had knowledge, actual or constructive, that he had suffered a significant injury by way of hearing loss attributable in whole or in part to acts or omissions on the part of BR before late 2009. When he became aware of symptoms in 2009, knowing his work history I find that, applying the standards of a reasonable person, he would or should have concluded at the very least that the cause of his hearing loss should be investigated. It follows that by late 2009 or early 2010 the deceased had constructive knowledge of the attributability of his condition and a normal reasonable person, in his position and with his knowledge, would probably have sought expert advice about the actual cause or attributability of his condition at that time. Considered objectively, the deceased could and in my judgment should reasonably have been expected to seek expert advice at that time: see Johnson v Ministry of Defence [2012] EWCA Civ 1505.

30.          In those circumstances his date of knowledge for the purposes of the Limitation Act 1980 was within three years prior to the commencement of proceedings and accordingly the claim is not statute-barred.

31.          In the circumstances it is not necessary for me further to consider the provisions of Section 33 of the 1980 Act.

DUTY OF CARE

32.          At common law, an employer owes a duty to take reasonable care for the health, safety and welfare of its employees. This duty is owed to each employee as an individual. The well-known formulation of the duty by Swanwick J. in Stokes v Guest, Keen and Nettlefold (Bolts and Nuts) Ltd [1968] 1 WLR 1776 at p.1783 is a useful starting point:-

"... The overall test is still the conduct of the reasonable and prudent employer, taking positive thought for the safety of his workers in light of what he knows or ought to know. Where there is a recognised general practice which has been followed for a substantial period in similar circumstances without mishap, he is entitled to follow it unless, in the light of commonsense or newer knowledge, it is clearly bad. But where there is developing knowledge, he must keep reasonably abreast of it and not be too slow to apply it. Where he has, in fact, a greater than average knowledge of the risk, he may therefore be obliged to take more than average or standard precautions. He must weigh up the risk in terms of the likelihood of injury occurring and the potential consequences if it does; and he must balance against this the probable effectiveness of the precautions that can be taken to meet it and the expense and inconvenience they involve. If he is found to have fallen below the standard to be properly expected of a reasonable and prudent employer in these respects, he is negligent." ( Emphasis mine).

33.          In this case, the question arises as to the date from which BR was on notice of the risk of damage to the hearing of employees and in particular those working on and around working steam locomotives, through noise. By reference to Thompson v Smiths Shiprepairers (North Shields) Ltd [1984] QB 405, BR would, as in the case of any large but average employer then in business, have had actual knowledge of this risk with effect from 1963 when they would have become aware of "Noise and the Worker". This much is, in my judgment, effectively conceded by paragraph 4.5 of the defence (page 8). In the Thompson case at p.423, Mustill J. formulated a liability test by reference to date of knowledge in these terms:-

"From what date would a reasonable employer, with proper but not extraordinary solicitude for the welfare of his workers, have identified the problem of excessive noise ..., recognised that it was capable of solution, found the possible solution, weighed up the potential advantages and disadvantages of that solution, decided to adopt it, acquired a supply of the protectors, set in train the programme of education necessary to persuade the men and their representatives that the system was useful and not potentially deleterious, experimented with the system and finally put it into effect?" ( Emphasis mine).

It is interesting to note that Mustill J. referred to the employees' representatives, anticipating by implication that any relevant trade union would have to be consulted and that that union might not, for whatever reasons of its own, be immediately supportive of any change in the system of work. Such was, on the documents presented to me, albeit limited, apparently the position of the main rail union (of which, it is a reasonable inference to infer, in a closed-shop industry at that time, the deceased was probably a member), namely ASLEF.

34.          In Doherty v Rugby Joinery (UK) Limited [2004] ICR 1272 (CA) at [57], Auld L.J. said:-

"Whilst the notion of a general 'date of knowledge' may provide a useful starting point for considering the date of knowledge in any particular case, that is all it is. Looking - as a court must - at each case on its own facts, the relevant 'date of knowledge' will vary according, not only to the general nature of the industry in its widest sense ... but also to the particular type of work within the industry that is under consideration, the tools used by the Claimant, the nature and pattern of his use of them and the extent to which ... the employer in those circumstances should have been put on notice that harm might ensue to the Claimant if he, the employer, did not do something about it."

35.          In terms of noise-induced hearing loss, the accepted position is that for exposures at or above 90 dB(A) Lep,d (terminology used, as I understand it, to indicate or describe average exposure over notional eight hour working days or shifts) in the absence of greater than average knowledge, liability at common law in industry generally will run from 1963, the date when Noise and the Worker was first published and for exposures at or above 85 dB(A) Lep,d and below 90 dB(A) Lep,d, in the absence of above average knowledge, liability will only run from 1990: see Baker v Quantum Clothing Group [2011] UKSC 17.

36.          In this case, the Claimant seeks to prove that he was regularly exposed to a level of noise at or above 90 dB(A) during the course of his employment with BR. If, subject to proof that he did suffer noise-induced hearing loss and that it was attributable at least in part to his work with BR, if he is to recover any damages for exposure before 1963 he must prove that BR had "above average knowledge" at an earlier date. In order to do so, as I understood Mr Rigby's submissions, he relies firstly on the decision of Popplewell J. in Kellett v British Rail Engineering Limited (QBD, unreported, 3 rd May 1984) in support of the proposition that BR had "guilty knowledge" as far back as 1956 or alternatively, on the correspondence disclosed by the Defendant, in support of the proposition that BR had such knowledge at some later point in time but before 1963.

37.          This point as to "date of guilty knowledge" was argued before Miss Recorder Ashworth in Tibbs v BRB (Residuary) Limited (Burnley County Court, claim number 1IR25884, unreported, 4 th July 2014) and before Mr Recorder Tilbury in Moss v Secretary of State for Transport (Worcester County Court, claim number 0IR00419, unreported, 8 th September 2015). It does not appear that the decision in Tibbs was cited to the recorder in the later case of Moss. Indeed Tibbs was only cited before me because the Claimant's medical expert, Mr Zeitoun, had been a witness in that case and mentioned it to the claimant's solicitors in response to the apparent suggestion that this would be the first case of its kind to come to trial, the Claimant's solicitors and counsel having apparently been previously unaware of them. It will be noted that the defendants were the same in those trials as the Defendant in the present case although I am not sure that the defence solicitors were the same in both of them. It would appear from both judgments that the two recorders had essentially the same documentation before them as each other and essentially the same documentation as I have before me. The Kellett case was relied upon by the claimants in both those cases. In Tibbs the recorder found as a fact that in October 1961 BR had appreciated that men who were working on the locomotives were exposed to levels of noise which potentially could cause damage to hearing and held that BR knew or should have known at that point that there was a risk of injury. Mr Tibbs had been employed as a footplate fireman on steam locomotives but in his case only between 1961 and 1964.

38.          Interestingly, in that case it had been conceded that Mr Tibbs had been exposed during the course of his employment with BR to levels of noise in excess of 90 dB(A), but there was a joint statement by engineers on both sides (Mr Hill and Mr Worthington) who had apparently reached that agreement. Mr Jackson was not an expert witness in that case. No such concession is made in the present case before me. The decision of Miss Recorder Ashworth in Tibbs was, so far as I am aware, not appealed. However, in Moss, Mr Recorder Tilbury, having noted that, as in the present case, the defendant admitted that it possessed sufficient knowledge of the risk of damage to the human ear caused by exposure to high levels of noise to render it subject to a relevant duty from 1963 and that, much as in the present case, the claimant asserted that BR had the requisite knowledge from 1955 relying on Kellett, found that he was prepared to accept that BR had knowledge at an earlier date than 1963, but not before " the diesel reports were obtained in 1962" (see paragraph 58 of his judgment). It may be that Mr Recorder Tilbury saw other or different documents to those before me, because the disclosed documents before me indicate that there were diesel reports in 1961 and steam reports in 1962. Mr Jackson was the single joint engineering expert in Moss and in paragraph 53(6) of his judgment the recorder noted that Mr Jackson had seen documents relating to problems with diesel locomotives dating from 1961 but that these had not been produced before him. At all events, the recorder held that Kellett was a case dealing with "boilermaker's deafness", that is to say affecting employees working in the engineering workshops, whereas Mr Moss complained of noise exposure whilst working as a fireman between 1956 and 1964. The recorder appears to have held (see paragraph 61 of his judgment) that Mr Moss had not satisfied him that BR had "actual knowledge" before 1963.

39.          In my judgment the decision of Popplewell J. in Kellett is not directly applicable to the present case. Mr Kellett had worked in the engineering workshops at Crewe, Cheshire, as a fitter from 1955 to 1966. The judge was aware of the decision in Thompson and said (see page 3H of his judgment) that if " ... the plaintiff's case depended solely on the published literature produced I would have been inclined to adopt the view of Mr Justice Mustill ... that 1963 was about the date when the defendant should be found liable and for the same reasons." However, documentary disclosure in that case showed, in his judgment, that the particular defendant, BRE Limited, had the means of knowledge from about 1951 and actual knowledge from 1955. In the present case, the Claimant relies upon the documents referred to in the judgment in Kellett, which are in the public domain having regard to that judgment, given in public albeit unreported, although no such documents were disclosed in the present case because they appear no longer to exist. Mr Rigby pointed out that correspondence relating to BRE Limited's workshops included letters from " the Chief Medical Officer of British Rail" and from " the Railway Executive" and argued that the knowledge gained in relation to the workshop should have been applied to the locomotives, that is to say not just to the manufacture and repair of the locomotives but to their actual use on the rails. Popplewell J. found that BRE Limited had actual knowledge which was demonstrated by a series of documents starting in November 1955, including documents in which there was reference to the " British Rail Transport Commission" although in fact I believe that the strictly correct title of that public body was simpl the "British Transport Commission". In any event, nowhere in the documents to which Popplewell J. made reference and upon which he relied in support of his finding of actual knowledge, turning the 'innocent' period into the 'guilty' period in 1955, is there any reference to noise exposure generated by the running in service of BR's steam locomotives. It is a remarkable fact that no claim appears to have been made or, if made, succeeded, prior to the three recent claims of which I am aware which were issued nearly 30 years after the Kellett judgment.

40.          Essentially, I take the view that Kellett is a decision on its own facts relating to noise exposure of those working within engineering workshops at BRE Limited and to that particular employer's knowledge of the risks in that case. I am prepared to infer that the risks to that type of employee may have been or even were known in general terms to BR as the state monopoly responsible for the running of the railways at that time, but that does not justify the proposition that BR should have investigated the position with regard to another "particular type of work within the industry", that is to say the work of its footplate firemen employees or "the tools used by" those employees, that is to say steam locomotives, to adopt the wording of Auld L.J. in Doherty. Accordingly, I do not accept that BR's "date of knowledge" in relation to the risks of knowledge of exposure to firemen working on steam locomotives in general passenger and goods service was as early as 1955.

41.          Therefore, I turn to the alternative case presented by Mr Rigby, based on the documents actually disclosed in this case. I do not propose to overburden an already lengthy judgment with detailed citation from those documents. In summary, the Defendant in this case has disclosed documents (pages 91 to 194) which in my judgment amply demonstrate that BR was not only constructively but actually aware of the risks to the hearing of employees such as the deceased by October 1961 or at the very latest December 1961. It appears that during summer 1961 a complaint had been made about the levels of noise produced by diesel locomotives which appear to have been introduced at about that time. It is a matter of historical fact of which I take judicial notice that steam locomotives were finally withdrawn from service by BR in August 1968. On 19 th October 1961 Dr Grant, who was regional medical officer for BR Eastern Region, wrote to the line traffic manager at King's Cross, London, to say that he was " satisfied that there is an urgent need for hearing protection for those members of the locomotive staff required to enter the engine compartment of ... diesel locomotives" (page 91). On 21 st December 1961 Dr Grant and Professor Burns of Charing Cross Hospital Medical School wrote to the general manager of BR's Eastern Region, and others, to recommend, among other things, that ear protection be instituted for footplate staff working in engine compartments of diesel locomotives and, importantly, that " noise surveys of the remaining types of 'diesel' locomotives should be performed and similar data be obtained for comparison on a number of steam locomotives" (page 95). Clearly, in my judgment the medical investigators were satisfied that the results of the investigation into diesel locomotives led inevitably to a need to consider the same issues in relation to steam locomotives and they informed BR's managerial and technical staff accordingly. It is also interesting that, at that time, those working in the engine compartments of diesel locomotives were, just like those working on steam locomotives, described in contemporaneous documents as " footplate staff".

42.          On 26 th March 1962, Dr McIntosh, one of BR's area medical officers, produced a report on investigation of noise in steam locomotives. Mr Stewart made the point that only three types of locomotives were selected, namely A1, A2 and A4, and that there is no direct evidence before me to establish that the deceased ever worked on those types of locomotives. However, the Defendant has not sought to adduce any evidence to demonstrate how representative or otherwise those three types of locomotive were of BR's stock of locomotives at that time and in my judgment it is reasonable to infer that those types of locomotives were selected as being sufficiently representative to enable the investigation to be of practical use. It is to be noted that " the purpose of this investigation was to measure and analyse the noise to which the firemen and drivers of express steam locomotives have been exposed for many years" (page 135). The purpose of the investigation was accordingly to measure and analyse the noise to which employees such as the deceased, a fireman, had been exposed. The summary conclusion of the investigation included the stark result that " noise produced even at low speeds is liable to produce permanent deafness" (page 136).

43.          In my judgment, BR's "date of knowledge" in relation to their awareness of the risk to the hearing of employees such as the Claimant was probably between October 1961 and December 1961. The risk was simply underscored and knowledge made certain in March 1962.

44.          The fact that BR had sufficient knowledge by December 1961 at the latest to give rise to the duty of care does not, however, automatically mean that they can be held to have been in breach of their duty of care to the deceased from that date. Although no period of grace appears to have been allowed in Thompson and, having regard to the way in which the defence is pleaded in this case (and indeed the way in which this Defendant defended the claims of Mr Tibbs and Mr Moss) there should in my judgment certainly be no period of grace extending beyond 1 st January 1963. However, since I am not, in this case, applying the "conventional" starting date of 1 st January 1963 but have held that this particular employer had more than average knowledge at an earlier date, indeed a full year earlier, the question arises whether any period of grace should be allowed thereafter for BR as a reasonable employer to take effective steps.

45.          In fact, it appears to be common ground that no direct communication of the relevant risks was made to the workforce, that insofar as there was communication it was through their union representatives and that no ear defenders were provided to firemen working on steam locomotives up to 1968 or to those working on diesel locomotives even beyond that date. It is clear that BR's medical advisors in 1961 and 1962 considered that urgent action should be taken. Mr Stewart refers to documents dating from 1965 to show that the position was not as straightforward as it might seem and that the simple immediate provision of ear protection was not practicable. This is in effect the evidence in support of what is pleaded at paragraph 4.4(b) of the defence. However, all the extracts from the memorandum of a meeting between BR and ASLEF dated 11 th March 1965 (page 134) show is that a decision made by BR to provide ear protection for second men who had to enter the engine compartment was supported by the union but that the union was concerned about safety risks in relation to the provision of ear defenders for drivers of diesel locomotives. The documentary evidence is limited but it seems to me that I can properly find and accept the Defendant's case that there were potential safety issues surrounding the actual provision and enforcement of wearing of ear defenders by footplate crews, both drivers and firemen, and that BR was not accordingly in a position urgently to impose ear defenders. However, in my judgment, it was as a reasonable and prudent employer in a position urgently if not immediately to take the step of communicating to their employees, and in particular those directly affected including footplate firemen, the results of the noise survey which had been reported by March 1962. Further, in my judgment, a reasonable and prudent employer would, if in fact the three types of locomotive were not representative, have acted upon the result of that investigation immediately to commission noise surveys covering their whole stock or fleet of steam locomotives of all types. Mr Stewart submitted that the deceased bore the burden of proving that the risk complained of by him was of such magnitude that it was, judged by the knowledge and standards of the day at any given date for which the duty contended for was triggered, properly to be treated as a real risk which would clearly have influenced the mind of the reasonable man. In my judgment, the risk that the noise on the footplate of express steam locomotives was, even at low speeds, liable to produce permanent deafness, as revealed and reported by the investigation report dated 26 th March 1962 (page 136) was obviously such a risk.

46.          Mr Stewart submits that BR should be allowed a period of grace, that is to say a reaction time between the acquisition of knowledge and the point at which a failure to take any reasonable steps would become tortious. By reference to the decision of the Supreme Court in Baker he submitted that a period of up to two years should be allowed. However, the fact that such a period was allowed by does not in my judgment mean that such a period must be allowed in all cases or in particular in those cases where the date of knowledge predates rather than postdates 1963.

47.          It is my judgment that BR should be held to have been in breach of duty not for failure to provide the deceased with personal hearing protection but for failure to carry out further noise surveys (if necessary) and in any event failure to provide the deceased and their other steam footplate employees, owed by them a personal duty as individuals, with information, instruction or training in respect of the relevant risk. Given the urgency with which those advising BR in 1961 and 1962 expressed themselves, I am satisfied that it has been proved on the balance of probabilities that even if BR could not reasonably have been expected to provide and enforce the wearing of ear defenders in 1962 or even as far ahead as 1965, it could and should have carried out further noise surveys and/or provided information to its employees within a further three months after March 1962, that is to say by the end of June 1962. Accordingly I find that the earliest date on which liability could arise in this claim (adopting the words pleaded in paragraph 4.5 of the defence) was 30 th June 1962.

BREACH OF DUTY

48.          I propose to deal with this issue briefly, having already analysed it in the course of deciding BR's date of knowledge and the reasonable period of grace or reaction time. In my judgment, the evidence in this case taken as a whole does discharge the burden of proof, which is on the Claimant, of proving that BR was in breach of its duty to the deceased from 30 th June 1962 by failing, if it was necessary to do so, to commission or carry out further noise surveys relating to all steam locomotives including those on and around which the deceased worked and in any event by failing to provide the deceased with suitable and sufficient information, instruction and training in respect of the risk that his hearing might be damaged by exposure to noise including the information of which they were aware as a result of the noise surveys in fact undertaken.

49.          Accordingly, the Claimant has discharged the burden of proving a breach of duty essentially in the terms pleaded at paragraph 6(d) and 6(f) of the particulars of claim (page 8) on the basis that BR knew that exposure to excessive noise could cause deafness, as alleged in paragraph 6(g) of the amended particulars of claim. To the extent that the deceased was exposed to excessive and hazardous levels of noise after 30 th June 1962, I find that BR was in breach of duty.

50.          Was the deceased so exposed? I bear in mind the limited contemporaneous evidence and also that, as Mr Jackson confirms, the methodology of the noise surveys was not that which would have been used in more recent years and accordingly the results have had to be analysed or interpreted by him. However, I bear in mind what was said by Lord Justice Neuberger in Harris v BRB (Residuary) Limited [2005] EWCA Civ 900 at paragraph [19] as follows:-

"Claims for personal injury arising out of exposure to noise ... particularly where the exposure was over a long period of time in different circumstances, notoriously give rise to difficulties. While it may be dangerous to generalise, the cases demonstrate and commonsense and fairness require that unless it is clear that decisive evidence would have been relatively easily available and that there was no good reason why it is not before the court, it is normally wrong for the court simply to shelter behind the burden of proof and dismiss the claim."

51.          There is, in this case, no suggestion that other evidence, decisive or otherwise, would have been available, relatively easily or otherwise, and in my judgment it is appropriate to take a robust approach on the evidence that is in fact available. Mr David Jackson, consulting forensic engineer, is plainly a suitably experienced expert in this field. I have already referred to the fact that he was the single joint expert in Moss. In paragraph 12.10 of his report in this case (page 339) he expresses the following opinion:-

" There is a survey document on file giving noise levels in three classes of steam locomotive ... This dates from March 1962 which is towards the end of Mr Wignall's first period of employment. The dB(A) figures that I have calculated from the octave band readings given in the survey are in the range 91-110 dB(A). The midpoint of this range is about 100 dB(A). Other disclosed documents ... give further consideration to steam engine cabs in general having been noisy. Therefore it seems reasonable to conclude that average noise levels in the cabs of the steam locomotives that Mr Wignall rode in would also have been well in excess of 90 dB(A). The Defendant clearly knew this by 1962 at the latest as their 1962 survey stated that there was a definite risk of occupational deafness."

52.          I accept the opinion of Mr Jackson and accordingly, without the benefit of ear defenders, the deceased was on the balance of probabilities exposed to noise levels at or in excess of 90 dB(A) during his daily shifts. In my judgment, such a level of noise exposure, by the standards applicable to such cases so far as concerns exposure during the 1960s was capable of causing noise-induced hearing loss. For the avoidance of doubt, I have left entirely out of account that a lower action level would come to apply in later decades under regulations concerning noise at work not brought into force until 1 st January 1990.

53.          Mr Stewart drew attention to the fact that it may fairly be said that the deceased had not been consistent in his description of the practical effect of the noise on the footplate. Mr Jackson in paragraph 12.11 of his report referred to the statement of the deceased that when working as a fireman he would struggle to converse even when " shouting at a distance of two feet", expressing the opinion that the need to "shout" at such close quarters would suggest noise levels in excess of 90 dB(A). Mr Jackson also noted that when interviewed and examined by Mr Jones, the Defendant's medical expert, he had only said something to the effect that " a raised voice" was sufficient to communicate at a distance of " four feet" which, in the opinion of Mr Jackson, would be suggestive of a noise level lower than 90 dB(A). However, as he pointed out, that would be at odds with the higher noise levels revealed by the Defendant's own disclosed documents. In my judgment, it is the evidence disclosed by the Defendant's disclosed documents that is the most important evidential factor. On the evidence of Mr Jackson, the survey data supports a finding of average daily exposure in excess of 90 dB(A) and indeed probably substantially in excess of that level at least on occasion. Oddly, perhaps, what Mr Jones records (page 221) was apparently understood by him to have been said in relation to work rated by the deceased at " 100%", in which context a raised voice was needed to communicate at three to four feet, but he had rated his work with BR at " 90%". The possible unreliability of the deceased's account on matters of detail of this kind in conversation, rather than in writing, at a point only three months before his death, has already been noted in relation to his perception of the onset of noticeable symptoms. In paragraph 12 of his witness statement, verified by a statement of truth, the deceased said that the noise was such that he would " struggle to communicate to a colleague standing no more than two feet away from me even if I was shouting" (page 70). Of course, the fact that the deceased had died meant that he could not be cross-examined as to the nuances of what he had said in his witness statement as compared with what Mr Jones understood him to have said. However, it seems to me that Mr Jackson is entitled to express his primary opinion on the basis of the evidence of the deceased, albeit that it is (first-hand) hearsay evidence, which is verified by a statement of truth

54.          On the balance of probabilities, doing the best I can on the evidence before me, taking on board the guidance in Harris, and bearing in mind that Mr Jackson is the single joint expert, I am satisfied on the balance of probabilities that the effect of the noise generated by the steam engines on the deceased during his work as a fireman was such as to support in practical terms the finding that is supported in theoretical terms by Mr Jackson's analysis and interpretation of the historic survey results, namely that he was indeed exposed to hazardous levels of noise on a daily basis during his employment with BR from July 1962 until April 1966 (see paragraph 18 above for the reason for this cut-off date) which levels of noise were capable of causing hearing loss.

55.          I should add that, although the evidence is necessarily limited, there is nothing to contradict the evidence of the deceased in his witness statement to the effect that when working from Blackburn depot he was regularly required to work the footplate on journeys of at least one hour at a time and sometimes four hours at a time and when based at the London depot to work journeys of between one and two hours, all day, every working day. His shifts were normally eight hour shifts but there is, again, nothing to contradict his evidence in the Part 18 replies (page 24) that sometimes he worked shifts of up to twelve hours and that in any event he was exposed to noise for the entire duration of the time he was on the locomotives and also when in the engine shed.

56.          Accordingly, if the Claimant can also establish, the burden being upon him on the balance of probabilities, (a) that the deceased did in fact suffer noise-induced hearing loss (rather than hearing loss which was simply age-associated or from some idiopathic cause) and (b) that such noise-induced hearing loss was caused or materially contributed to (in other words at least partially related to) his employment as a fireman by BR, he would be entitled to recover damages against the Defendant on behalf of the estate.

57.          I will turn finally to those issues, but for the sake of completeness, before doing so, I should say that whilst I am satisfied that the deceased was exposed to excessive industrial noise during the course of his employment as a fireman I am not satisfied that he was so exposed during his employment in 1968 as a trackman. There is in my judgment simply insufficient evidence to establish that fact. In this respect, I consider that I have no option to apply the burden of proof and to find that the claimant has not discharged the burden of proving that he was so exposed. This means that if the deceased's hearing loss is noise-induced and if it was partly but materially attributable to exposure to noise in the employment of BR, damages can only be assessed and apportioned on the basis of damage caused during the period of just under four years between July 1962 and April 1966 when he worked for BR rather than other employers. In this context I was greatly assisted by the efforts of both counsel who prepared and agreed schedules of employment indicating the approximate number of days on which the deceased worked for BR during various alternative periods. I shall return to those details briefly, as they apply to the relevant period, in the context of apportionment of damages.

CAUSATION

58.          The first question is whether the deceased's hearing loss, revealed by the audiograms taken in October 2012 and February 2014 was "noise-induced". The second question is whether, if so, such loss was attributable to BR's breach of duty. Both these questions are essentially matters for the medical experts, who were significantly in dispute. The Claimant relied upon the opinion of Mr Hisham Zeitoun, Consultant Otolaryngologist, Head and Neck surgeon, who produced a report dated 28 th October 2012 (page 195) following two interviews and examinations of the deceased on 16 th August 2012 and 18 th October 2012. The Defendant relied upon Mr Philip Jones, a Consultant ENT Surgeon, whose report dated 7 th March 2014 was prepared after interview and examination of the deceased on 18 th February 2014. Both experts later participated in the preparation of a joint medical report, or perhaps more accurately a statement of disagreement (page 261), which is undated but which Mr Zeitoun said was prepared in about May 2014.

59.          Mr Zeitoun and Mr Jones are experienced ENT surgeons who have given forensic evidence in many such cases in the past. Although now retired, Mr Jones, as his report indicates (page 212) has been giving evidence in such cases since the 1990s if not before. Mr Zeitoun is still in clinical practice within the NHS and although his forensic experience does not stretch back so far I am satisfied that he has equivalent relevant experience. However, the fact is that they have a very different approach to such cases. It is not simply a matter of two equally eminent experts applying the same methodology in general but applying it to the specific audiograms in this case with different results, but of two experts who differ as to the methodology to use. Mr Zeitoun accepts the efficacy of what are commonly called the 'Coles, Lutman and Buffin' guidelines (page 281). The guidelines are conventionally named after their authors but are more properly " Guidelines on the diagnosis of noise-induced hearing loss for medicolegal purposes" published in 2000 in the Journal of Clinical Laryngology, (2000) Clin. Otolaryngol. 25, 264-273. I will simply refer to them as "the guidelines".

60.          Mr Zeitoun's evidence before me was to the effect that he had applied those guidelines in an orthodox manner, albeit taking into account certain atypical features of the audiogram taken for his purposes in October 2012. On the other hand, to put it mildly, Mr Jones does not "rate" those guidelines. This is demonstrated by the fact that his report contains a three page critique of what he describes as the " Coles, Lutman and Buffin test" (page 238), expressing the opinion that there are " a number of problems" with that test which in his opinion has been " shown to over diagnose noise-induced hearing loss". He criticises the tables used for age-associated hearing loss by the authors of those guidelines, saying that the same are " inaccurate" (see pages 238-241). In his oral evidence he told me that he did not in fact " dismiss" the guidelines " in their entirety". He recognised that a number of other medico-legal experts in this field do accept those guidelines although he mentioned the names of a number of other experts who, he says, would agree with him. Asked in cross-examination by Mr Rigby whether he had applied the guidelines to the audiogram taken for his purposes in February 2014, he replied by saying that he had not done so, that he did not agree with a lot that was in the guidelines, that many people took the same view but, remarkably, he added that " I am the only one who applies it (the test) properly".

61.          Mr Zeitoun and Mr Jones also gave evidence before Miss Recorder Ashworth in Tibbs and I note that at paragraph 18 of her judgment she said that the two experts " had very different styles". Her view was that Mr Zeitoun gave his evidence in a more measured way than Mr Jones and, with a certain degree of diplomacy, she said that " Mr Jones could not in any way be accused of being reluctant to express his forthright opinion". She preferred the evidence of Mr Zeitoun in that case although it is fair to say that she considered the difference between them to be more a matter of presentation than quality. I regret to say that I do not feel able to be quite so diplomatic. Before me, Mr Jones gave evidence in a way that can only be described as self-reverential and occasionally arrogant, of which latter characteristic his assertion that he was the only expert who actually applies the guidelines properly (notwithstanding that in large measure he did not agree with them and considered them to have no authority beyond the authors themselves) was the starkest example.

62.          Where two experts apply the same general methodology but simply come to a different opinion on the facts of a given case, a judge often faces great difficulty in preferring one to the other. In such cases, albeit rarely, a judge may be forced to decide the case on the balance of proof and, taking the view that it is for a claimant to prove on the balance of probabilities that he did suffer noise-induced hearing loss, to apply the burden of proof where the court is unable to choose between the experts. I do not find myself in that position in this case. Where two experts apply different methods of approach and where indeed one of the experts (a) dismisses significant parts of the guidelines applied by the other expert and (b) alternatively asserts that the other expert has not applied the guidelines in an orthodox fashion, it seems to me that I can and should decide between those experts, express a preference for one or the other and make a finding both as to the nature of the deceased's hearing loss and as to causation accordingly. In doing so, I have had regard to the well-known principles stated by the Court of Appeal in Loveday v Renton [1990] 1 Med LR 117 at 125 (per Stuart-Smith L.J.) and Transco PLC v Griggs [2003] EWCA Civ 564 at [24] - [26] (per Hale L.J. ) and having done so I unhesitatingly prefer and accept the evidence, opinion and conclusions of Mr Zeitoun. In my judgment he has reasonably applied the guidelines, taking proper account of atypical features and expressing his opinion in what was, after exploration in cross-examination by Mr Stewart and in re-examination by Mr Rigby, a measured, cogent and persuasive manner. In explanation of my preference I will refer to the nature of the technical dispute between the two experts and the application of the guidelines to this case.

63.          For the purposes of Mr Zeitoun's report a pure tone audiogram was performed for him by an audiologist on 18 th October 2012 (page 268). It appears at more than one place in the bundle (e.g. page 207). For the purpose of Mr Jones' report a further pure tone audiogram was taken by an audiologist or technician on 18 th February 2014 (page 271). As I understood the evidence of both experts, the appearances of those audiograms are quite similar, both demonstrating a hearing loss at the 2 kHz frequency, particularly in the right ear, greater than that at the 3 kHz and 4 kHz frequencies. It appeared to be agreed that this was an atypical appearance. Mr Zeitoun expressed the opinion that it was something he would expect to see and indeed had seen in perhaps 5 to 15% of cases but Mr Jones expressed the opinion that the audiograms simply did not show evidence of noise-induced hearing loss at all because, as an invariable point of principle on his part, hearing losses most marked at 2 kHz are not evidence of NIHL. His opinion was that even if the guidelines were used they could not be used to apply to such losses because they would result in a false diagnosis, this being " one of many flaws" in those guidelines (page 262). This dispute appears to have been the very same issue argued by the same experts in Tibbs where, as in this case, the claimant's loss at 2 kHz was greater than would have been expected for someone of his age. In that case, as in the present case, Mr Zeitoun pointed to the chapter on noise-induced hearing loss in a recognised textbook, Scott-Brown's Otolaryngology (6 th Edition) (page 274), the editor of the relevant chapter apparently being one Dr Alberti. In the present case, the first part of the crucial passage at page 2/11/11 of the textbook (page 278) relied upon by Mr Zeitoun states:-

" Noise-induced permanent threshold shift usually commences between 3 and 6 kHz, often around 4 kHz, and gradually worsens at that frequency and spreads into neighbouring frequencies. At first it may be asymptomatic but if it spreads into the lower frequencies of 3 and 2 kHz complaints begin."

Pausing there, Mr Zeitoun's opinion is that it is accordingly recognised that noise-induced hearing loss can affect the 2 kHz frequency. As will be seen, he also points out that the guidelines also refer to involvement at 2 kHz in some cases. If this is correct, then Mr Jones' opinion that a loss (or "excess loss") greatest at 2 kHz rather than 3 kHz is not a feature of noise-induced hearing loss and that the audiograms demonstrate that this deceased did not have such loss, cannot be correct or, at the very least, is seriously overstated. The passage from the textbook continues on pages 2/11/11 to 2/11/12 (pages 278, 280 and 279 of the trial bundle in that order, pages 279 and 280 having plainly been inserted in the wrong order):-

" 'Typical' audiograms are frequently found in texts but they are typical only of the group to which they apply. The 'typical' audiogram shown in Figure 11.12 is quite different from the audiogram shown in Figure 11.7....... It should be remembered that loss from noise is not the total hearing loss in an otherwise otologically normal person. It is the difference between the normal hearing corrected for presbyacusis" (age-associated hearing loss ) "and the observed hearing loss. Individual susceptibility varies enormously and unfortunately there is no good way of predicting this."

64.          The guidelines do indeed indicate that the normal or typical presentation is of a measurement of hearing threshold level at 3, 4 or 6 kHz which is at least 10 decibels greater than that at 1 or 2 kHz. It is in my judgment important to bear in mind that guidelines are just that. They are guidelines not a straightjacket. The express purpose of the guidelines is said (page 281) to be:-

"... to assist in the diagnosis of noise-induced hearing loss (NIHL) in medico-legal settings. The task is to distinguish between possibility and probability, the legal criterion being more probable than not. It is argued that the amount of NIHL needed to qualify for that diagnosis is that which is reliably measurable and identifiable on the audiogram. The three main requirements for the diagnosis of NIHL are defined: R1, high frequency hearing impairment; R2, potentially hazardous amount of noise exposure; R3 identifiable high frequency audiometric notch or bulge." (Emphasis mine)

It is also correct that the guidelines refer, for the most part, to "uncomplicated cases of NIHL", that is to say "typical" NIHL together with presumed "normal" age-associated hearing loss (AAHL): see paragraph 2.1 of the guidelines (page 282). In my judgment, this plainly does not mean that the guidelines cannot be applied to complicated cases where the NIHL is atypical or the AAHL is abnormal, merely that the expert using the guidelines should recognise the atypicality or abnormality. No doubt in some cases the atypicality and the degree of abnormality would be such as to prevent an expert using the guidelines but I am satisfied on the balance of probabilities that Mr Zeitoun did not find himself in that position. In my judgment he has interpreted the guidelines as a guide not a rigid rule: see paragraph 3.1 (page 282). It is to be noted that the authors of the guidelines considered that they had " been derived after careful consideration of the data available".

65.          I note with interest that in the Moss case, where the defendant (this same Defendant) had no medical expert, leading counsel for the Secretary of State, Mr Limb QC, actually deployed the guidelines against the claimant's expert in an attempt to demonstrate that he had not applied them properly and in the course of that case leading counsel specifically described the guidelines as being " the definitive report in these cases for diagnosis" (see judgment of Mr Recorder Tilbury at paragraph 50). I find it difficult to understand how the Defendant can, in the very next trial on the same point, seek to persuade the court to accept the evidence of an expert who does not accept the efficacy or accuracy of guidelines, far less their definitive nature, when this same Defendant has previously put them forward before a different court on similar facts as being the definitive basis for diagnosis in such cases.

66.          In my judgment and experience, categorisation of the guidelines as being the definitive basis for such diagnosis in the medico-legal context (whatever might be the case in clinical practice) is justifiable and correct. Requirement 3 (audiometric configuration) paragraph 7.2 (page 283) states that " evidence for NIHL is also provided on the audiogram by a sufficiently large relative bulge downwards and to the left in the 3 to 6 kHz range", it being noted that a notch or a bulge may suffice. In this case Mr Zeitoun expresses the opinion that there is a bulge in the audiogram (page 268) at 3 kHz: see paragraph 3.2.4 of his report (page 200). To the contrary Mr Jones expresses the opinion, certainly by reference to the later audiogram (page 271) that the bulge is not at 3 kHz but at 2 kHz. In cross-examination Mr Zeitoun appeared to modify his opinion at least to the extent of accepting that the bulge might include 2 kHz. As was said in Griggs the willingness of an expert to reconsider or modify an opinion may well support his credibility rather than damage it. He did not agree with Mr Jones that excess loss at 2 kHz, greater than that at 3 or 4 kHz, contraindicated NIHL or prevented a diagnosis of NIHL, saying that the audiogram was atypical but still within the methodology of the guidelines. He accepted that if the atypicality had included the 1 kHz frequency he would then not have diagnosed NIHL.

67.          For the sake of completeness I should record that the tabular representation of the appearances of the October 2012 audiogram are set out on pages 269 (right ear) and 270 (left ear) in the bundle. The statistically predicted average for the general population of a man of the deceased's then age (70 years) appears at line c, the deceased's actual hearing levels at line a, the adjusted calculation for the loss attributable to age association at line f and the calculation as to the relevant audiometric bulge at line g. I pause to say that Mr Zeitoun's calculation is made by reference to the guidelines and therefore by the use of tables which Mr Jones does not consider to be accurate. The tabular presentation of the audiogram result shows that there is no loss attributable to noise at 4 or 6 kHz on the right side, that there is a loss (13.6 decibels) at 3 kHz but a greater loss (25.8 decibels) at 2 kHz. In the left ear, the pattern is similar although the difference perhaps less marked, there being a small loss (5.4 decibels) at 4 kHz, a large loss (21.6 decibels) at 3 kHz and an even larger loss (29.8 decibels) at 2 kHz. It is, as both experts say, atypical. However, rejecting as I do Mr Jones' opinion that the guidelines are not accurate, efficacious, definitive or applicable to this case the question still remains whether Mr Zeitoun's opinion that the atypical result at 2 kHz is sufficiently within the scope of the guidelines to enable him properly to diagnose NIHL by reference to that methodology. Mr Jones, using tables different to those in the guidelines (derived he said from the National Study of Hearing published in 1991 but which tables were not included in the bundle) made his own calculation which also showed that the greatest loss was at the 2 kHz frequency (14.8 decibels) although it was pointed out that there was at least one, admittedly small, error in his calculations (the excess loss at 3 kHz in the left ear on the 2014 audiogram having been wrongly recorded by him as "45" rather than "55" (page 231).

68.          I have not overlooked the fact that Mr Jones was able to refer (page 242) to a sentence from a publication with which he does agree, that is to say a position paper of the American College of Occupational Medicine (ACOM, 2002). That paper, summarising " the typical features of NIHL" states eight principal characteristics of occupational NIHL, the sixth of which includes the words, " there is always far more loss at 3, 4 and 6 kHz than at 0.5, 1 and 2 kHz" and " the greatest loss usually occurs at 4 kHz". He also referred (page 243) to a publication called Advances in Noise Research (1998) and in particular Chapter 8 thereof on " The clinical diagnosis of noise-induced hearing loss" written by Dr (now Professor) Luxon, which he said endorsed the American criteria, although I note that it does so in slightly different terms, perhaps because it was quoting the 1989 version of the ACOM criteria (see pages 727 - 728) to the same general effect. Mr Jones seizes on the use of the word " always". That is his own opinion and it is unsurprising that he quotes a position paper with which he agrees and which agrees with him (a circular argument worthy of the criticism to the same effect made of Mr Zeitoun about considering the deceased's atypicality to be within the acceptable range because in previous cases in which he had himself diagnosed NIHL such atypicality had been seen). However, Dr Luxon also accepts that NIHL " can begin in frequencies other than the 3 - 6 kHz region" albeit that " this is rare" and should only be accepted in certain circumstances. By necessary implication there could in such cases be a greater loss at 2 kHz. The evidence of Mr Jones before me was that it could never be diagnosed where there was more loss at 2 kHz in any circumstances so his reliance on this reference seems to be somewhat selective.

69.          In any event, if the UK guidelines from 2000 are to be regarded as the " definitive" approach in the medico-legal context in English courts, as in my experience is usually the case and as was this same Defendant's position in Moss, then whatever might be the position in a non-forensic clinical diagnostic context in the USA (or even in England), the word "always" cannot be justified in the medico-legal context because the guidelines support the opinion that sometimes, albeit in a small proportion of cases, there can be more loss at 2 kHz.

70.          For all the foregoing reasons, I found the opinion of Mr Zeitoun to be logically consistent and his use of the guidelines and his approach to the audiogram results to accord with the orthodox medico-legal approach. Each case depends on its own facts and the quality of the evidence adduced. In the context of this present case, on the evidence presented to me, I reject Mr Jones' opinion that where the greatest loss is at 2 kHz, NIHL cannot ever properly be diagnosed. I accept the opinion of Mr Zeitoun that although the deceased was atypical and his, NIHL in his case could properly be diagnosed, albeit as a rare or minority cases, subject to proof of hazardous noise exposure has been proved. The position is that, on the facts of this case, such exposure has been found proved.

71.          On the balance of probabilities, having regard to the main area of dispute between the experts, Mr Jones' residual alternative argument that this deceased's hearing loss could be explained by reference to some idiopathic or genetic cause, currently beyond scientific explanation, does not dissuade me from finding that on the balance of probabilities the hazardous noise exposure in the deceased's employment was causative or materially contributory of part of his noise-induced hearing loss. Accordingly, he is entitled to an award of general damages for pain, suffering and loss of amenity to be assessed initially by reference to the totality of NIHL but then apportioned to reflect the portion that can be attributed to this Defendant's breach of duty.

QUANTUM

72.          On evidence of Mr Zeitoun, the deceased suffered bilateral mild to moderate high frequency sensori-neural hearing loss with a degree of tinnitus. I have already recorded the nature of the deceased's own evidence about the symptoms of hearing loss. His grade of handicap on the conventionally applicable Coles-Worgan assessment (with which Mr Jones appears to have no problem) would have been borderline group II/group III in 2012 and group III in 2014. This represents a slight handicap with the disability of the order of 20%, ability to understand normal speech but moderate difficulty understanding faint speech and distinct difficulty in a noisy background. Mr Rigby submitted that the total NIHL fell within category 5(B)(d)(iii) of the Judicial College Guidelines for the Assessment of General Damages in Personal Injury Cases (13 th Edition), that is to say a range between £9,575 and £11,300. He submitted that a reasonable figure before apportionment would be £10,000. Mr Stewart did not seriously disagree but urged me to make a substantial discount to reflect the fact that, unlike most cases of this kind where the claimant is still alive, the award in this case is to compensate for a finite period of pain, suffering and loss of immunity which ended with the death of the deceased and which, on his own case, in terms of noticeable symptoms, may have lasted no more than at most four and a half years. He submitted that a figure of £5,000 (after a 50% discount) would be appropriate. Mr Rigby countered that although some discount would be reasonable there is nevertheless the point to be made that the deceased was caused to "suffer" noise-induced hearing loss, even if unaware of it, over many more years.

73.          In my judgment, the starting point figure of £10,000 would have been reasonable had I been awarding damages to a living male claimant with a normal life expectancy who had suffered and would for many more years have continued to suffer the effects of NIHL and who would have required two digital hearing aids which he would not otherwise have required, as was the opinion of Mr Zeitoun about the deceased before his death (page 203). A substantial discount is plainly appropriate but not in my assessment one that is quite as substantial as is suggested on behalf of the Defendant. Taking what is admittedly but necessarily a broad-brush approach, my assessment is that a discount of 40% would be reasonable.

74.          In my judgment, the appropriate award of general damages for pain, suffering and loss of amenity, before apportionment, would be £6,000.

75.          I record with gratitude that Mr Rigby and Mr Stewart were able to agree the method of calculating the apportionment based on my findings. The various calculations prepared before judgment all assumed the starting point for exposure of 12 th January 1957 (the deceased's 15 th birthday) and produced figures for damages for breach of duty based on various "dates of guilty knowledge" on the part of BR. On the basis of my finding that such date should be taken to be 30 th June 1962, the apportioned award, inclusive of interest, is arithmetically agreed in the sum of £476.18.

CONCLUSION

76.          The Claimant is accordingly entitled to an award in favour of the deceased's estate in the sum of £476.18 inclusive of interest. As I recorded early in this reserved judgment, the judgment for that sum with costs was formally entered on 26 th May 2016 and an Order has been drawn and sealed accordingly.

77.          For the avoidance of doubt, the extension of time granted to both parties for seeking permission to appeal (if so advised) will expire at 4.00pm on 15 th July 2016, that is to say 14 days after formal handing down of my reserved judgment. If either party were to be so advised, and if any such application were to be made to me rather than directly to the appellate court which would be the Court of Appeal (Civil Division), it may be made in writing with a request for its determination without a hearing. I stress that I do not intend to encourage such an application by either party but simply to confirm the timescale and procedure having regard to the time that has elapsed since my decision was announced orally.

 

 

 

 

 

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