Indigo Sun Retail’s appeal against a court finding it liable for damages over a former employee’s hearing loss and tinnitus has been dismissed.
The employee, Haesel McDonald, 19, had made a claim after suffering prolonged exposure to a fire alarm. On 12 December 2015, she was working at the Indigo Sun salon in Dundee, Scotland. Just after 9am, the alarm sounded, and rang until 12.55pm. This single noise exposure gave Ms McDonald a headache and ringing in her ears for the day. Management were aware the alarm had sounded unnecessarily on several previous occasions. Although fire alarms in nearby premises also sounded, staff could turn them off or were sent home. Ms McDonald endured the noise until a manager arrived at 11am, when the alarm was taped over in an attempt to muffle it.
Ms McDonald suffered subsequent hearing problems and in 2016 was diagnosed with bilateral sensorineural hearing loss and advised to obtain hearing aids. Her doctor’s diagnosis was that her condition had mainly been caused by exposure to noise, particularly the fire alarm.
The All-Scotland Sheriff Personal Injury Court applied the Control of Noise at Work Regulations 2005 and found that Ms McDonald’s employer was liable at common law. It was ordered to pay her £241,277 in damages.
At the appeal hearing, Indigo Sun argued that because the noise exposure was a single incident, it did not justify application of the daily personal exposure level (LEPd) measurement that the sheriff used at trial. It said the weekly personal noise exposure level (LEPw) should have been used instead.
Steps taken by the manager to reduce the fire alarm’s noise did not eliminate the risk
Evidence showed that Ms McDonald had been exposed to an average noise level of 82.3dB(A), exceeding the lower exposure action value of 80dB(A) in the regulations. If the exposure in this case was adjusted to calculate it over the course of a week, the result would be 75.8dB(LEPw) – below the action value. On appeal it was ruled that, as Ms McDonald was employed part-time and not normally exposed to significant noise, the sheriff was right to apply the daily measure as the default, as using the LEPw would distort any evaluation of the noise to which she was exposed.
Steps taken by the manager to reduce the noise did not eliminate the risk. It was ruled that Indigo Sun had breached its duty. Indigo Sun also argued that the evidence could not be used to establish
a connection between the noise from that single exposure event and any subsequent hearing loss. However, Ms McDonald showed a connection between the incident and her symptoms, as she immediately had symptoms of tinnitus and associated hearing problems, having had no previous problems.
At the original trial, William McKerrow, a retired consultant otolaryngologist of 36 years’ experience, said that Ms McDonald’s hearing loss and tinnitus was caused by the incident in question.
Indigo Sun argued that his evidence should not be admissible, but this was rejected by the appeal sheriff.
On its final ground of appeal, Indigo Sun said the sheriff had based his assessment of damages on the provision of privately purchased hearing aids for Ms McDonald without showing evidence of a comparison of privately bought hearing aids to those available on the NHS. The company also argued that damages for solatium should be nominal, as Ms McDonald had only suffered from headache and tinnitus for a short time after the incident. The court rejected both arguments and the original decision was upheld.
