IN THE COUNTY COURT AT BURNLEYCLAIM NO.B04YP224

BETWEEN:

KEITH JACKSONClaimant

and

THE ROVER COMPANY LIMITEDFirst Defendant

LEYLAND DAF LIMITEDSecond Defendant

LEYLAND TRUCKS (REALISATIONS) LIMITEDThird Defendant

FARINGTON COMPONENTS LIMITEDFourth Defendant

A&A FURNISHINGS LIMITEDFifth Defendant

JUDGMENT

  1. In this action the Claimant claims damages for personal injury in respect of noise-induced hearing loss which he claims that he suffered as a result of employment between 1976 and 2006. In summary, he was employed by the various incarnations of the Leyland Truck & Bus Company in Leyland between 1976 and 1992. The first four Defendants collectively cover that period of employment. The action has been discontinued against the Second and Third Defendants because the Fourth Defendant accepts liability in respect of any injury suffered during employment by the Second and/or Third Defendant as a result of the TUPE transfer of the Claimant's employment to the Fourth Defendant. It is not entirely clear to me from the evidence which I have heard exactly which period is covered by the First and Fourth Defendant out of the 16 years of the Claimant's employment but the First and Fourth Defendant have acted throughout the proceedings and the trial as one. Since the closing submission on behalf of the First and Fourth Defendants suggests that any necessary apportionment be done by agreement between the parties, it must be the case that it can be done, if necessary at all, between the First and Fourth Defendants. Having been made redundant by the Fourth Defendant in 1992 the Claimant secured employment in what might be described as a manufacturing joiners workshop preparing timber to make the frames for furniture. The Fifth Defendant is the successor to North West Furniture Frames Limited and accepts any liability which there may be for itself and its predecessor covering a period from early 2003 until the Claimant's retirement. However, there is an issue as to the period between 1992 and early 2003 when the Claimant was employed by H&B Furniture Frames. The Claimant's case is that North West Furniture Frames Limited took over H&B in a way which resulted in the transfer of his employment and therefore liability. The Fifth Defendant accepts that that applied to the transfer of the North West Furniture Frames Limited business to the Fifth Defendant but not that of H&B Furniture Frames.
  2. The trial took place as a fast-track trial in the County Court sitting at Burnley on 16 November 2017. It was listed for one day. The Claimant was represented by Ms Nadia Whittaker, the First and Fourth Defendants by Mr J R Owen and the Fifth Defendant by Miss Helen Trotter. Each provided opening skeleton arguments and lists and copies of authorities. The first hour and a half of the trial was taken up with the Claimant's submission that the Defendants should not be allowed to rely on the written expert evidence of Mr Jones, consultant ENT surgeon, on the basis that he had not declared that he was non-practising. I rejected that submission and declined to rule that Mr Jones' evidence was inadmissible in a reasoned ex tempore judgment. I then heard the evidence of those witnesses called to give oral evidence, namely Mr Jackson, the Claimant, and Andrea Turner, a witness on behalf of the Fifth Defendant. David Topping, also a witness on behalf of the Fifth Defendant was unavailable to give evidence for reasons which I do not need to set out because it was common ground that his evidence should be admitted under the Civil Evidence Act 1995 subject to the issue of the weight which should be attached to it. I then heard closing submissions on limitation (whether the action was commenced outside the limitation period and whether the limitation period should be disapplied under section 33) and on liability. By then it was after 5:30pm and due to the imminent closure of the court building and the travel requirements of the parties' representatives, I was forced to reserve judgment and invite written submissions on causation and quantum. I have received those written submissions for which I am grateful.
  3. I did not grant permission to the Claimant to appeal my refusal to disallow the evidence of Mr Jones. On the basis that it might be renewed, I agreed to sub-divide the judgment so that, if my decision is not upheld, the parties can re-try the causation and quantum issues without the whole decision falling. I am satisfied, as were the parties, that there are no material overlapping issues, such as credibility, which would make such a division inappropriate.
  4. Subsequently I received an e-mail relating to the running of time for the Claimant to renew his application for permission to appeal. I dealt with that by extending the time for appealing until 21 days after the delivery of this judgment.

The Claimant's employment history

  1. Save for the issue of the Claimant's belief as to the circumstances in which he came to be employed by North West Furniture Frames Limited, the trial was conducted without real challenge to the Claimant's evidence about his employment or the noisy conditions in which he worked. That history is set out at paragraphs 1-121 of his witness statement which runs from page 26 to page 42 of the bundle (hereinafter BP**). The paragraphs after paragraph 121 deal with the circumstances in which he came to realise that he had suffered hearing loss and how he made the alleged connection to his employment. In summary, the Claimant worked as a vehicle assembler in what was known as the Comet shop at Leyland Trucks from 1976 to 1979. He worked on the assembly of axles for buses and trucks. The building was a large single-storey brick building approximately 300 by 200 yards, open plan with a roof at a height of about 25 feet. Doing the axle assembly work involved assembling the basic wheel structure at one end of an axle. There would be a colleague doing the same job at the other end of the axle and approximately 11 other pairs of people doing the same task on different axles. The application of kingpin and stub axle involved hammering and the remaining components were attached by nuts and bolts using a compressed air gun. The air guns generated a whirring noise until the nut tightened at which point they sound more like a hammer. The Claimant estimates that he would be operating the compressed air gun for about 50% of his working time. He was exposed not only to his own hammering and his own use of the compressed air gun but also those of his colleagues. Whilst the Claimant was assembling the front axles, there was a similar production line nearby assembling rear axles. Those employees used larger air guns which were louder and deeper in tone. There was also background noise from other industrial engineering machines operating in the machine shop nearby which included lathes, milling machines and grinding machines. Similarly, at the far end of his assembly line was another one where gearboxes were built, again using air guns to tighten nuts and bolts.
  2. In 1979 he moved to what was known as the BX works, a shorter and narrower brick-built building of similar height which was the main vehicle assembly area with three production lines. Essentially the vehicle build had reached the point where the chassis had axles attached and other components such as brake and clutch assemblies needed to be added. The Claimant again used an air gun for this purpose and estimates that he was using it for about 50% of the time in total, again with background noise, some of it close to him from the five other workers on his immediate section of the assembly line and some from greater distance. In paragraphs 60 and 61 of his witness statement, the Claimant observes that the noise of air guns being used was virtually continuous and that he would always have to raise his voice and shout in order to communicate with colleagues around him. He worked in that building for 11½ years until 1991, whereafter his final year or so was spent in non-noisy work converting the braking systems on London buses. He describes his hours in detail but nothing turns on them. He worked typical industrial weekly hours for the 1970s and 1980s. The Claimant says that he was never provided with hearing protection nor any training, warnings, hearing testing or advice during his time at Leyland.
  3. In 1992 he was made redundant and then spent approximately 11 years at H&B Furniture Frames in Chorley. Beech wood was being cut, planed and drilled in a small workshop around 30 yards square with a roof about 20 feet in height. He describes the whirring noises made by the machines which became a loud screeching and screaming noise when the wood was applied to the blade. The Claimant personally spent most of his time operating one of two panel saws. He again describes having to shout to make himself heard even to a colleague who was standing next to him.
  4. After approximately 3-4 years the business moved to different premises which were slightly larger but with a lower roof and was very similar but with two extra machines. There was also now an extraction system which meant that fan motors were running and a suction noise was generated. In his witness statement the Claimant says very little about the change of his employer from H&B to North West and then to the Fifth Defendant. The Inland Revenue record at BP 95 and 96 confirms the changes but does not describe how they occurred.
  5. In cross-examination on behalf of the Fifth Defendant the Claimant agreed that H&B Furniture Frames had been part-owned by his brother Harry until 1998. Company searches revealed that in the late 1990s the business took on limited liability status. The other partner in H&B was a Mr Fishwick and he was also a director of North West Furniture Frames Limited. The Claimant said that around 2002 his employer became North West Furniture Frames Limited and moved premises at the same time to Leyland. It was common ground between the Claimant and the Fifth Defendant that Mr Fishwick was both involved in H&B and North West Furniture Frames and that the Claimant was not the only person who became an employee of North West Furniture Frames, Mr Topping being another example. That the Fifth Defendant took over the liabilities of North West Furniture Frames Limited and that the staff were transferred under the TUPE Regulations at the same time was not disputed.
  6. The Claimant's evidence was that he was provided with no ear protection, advice or training in relation to avoiding over-exposure to noise or hearing testing by any of his employers until the point when the Fifth Defendant took over his employment from North West Furniture Frames Limited whereafter he recalled being provided with a set of ear defenders which, he says in paragraph 117 of his statement, he wore from the point when they were provided and found them to be effective in reducing the noise. They contained a radio feed. In cross-examination he remained at odds with the Fifth Defendant as to when exactly the ear defenders were first provided and said that he didn't recall the signs about the wearing of ear defenders or reading them. There is a photograph at BP 146 which shows the signs. I also had the benefit of reading the responses to Part 18 Questions provided by the Claimant to both Defendants.
  7. No evidence was called on behalf of the First and Fourth Defendants, either written or oral.
  8. On behalf of the Fifth Defendant I read the witness statement of Mr Topping and of Andrea Turner and heard her give evidence. They both concentrated on two issues. The first was whether A&A Furnishings Limited were liable for the Claimant's employment with H&B. At paragraph 2 of his witness statement Mr Topping says that he was employed by H&B also until 2002 when one of the two men who ran H&B, Mr Fishwick, "set up North West Furniture Frames Limited and moved to a unit in Leyland. 3 My employment as a wood machinist / assembly continued with North West Furniture Frames Limited from April 2002". Mr Topping goes on to say that hearing protection was provided and the policy was for all staff to wear it from the time when North West Furniture Frames Limited came into existence in 2002 and he says that it was when the Fifth Defendant took over that additional warning signs were put up, those signs being additional to those already placed around the premises as he describes in paragraph 11 of his witness statement.
  9. Mrs Turner referred to and produced the photographs of the signs at the premises and produced a copy of the staff handbook of A&A which at BP 92 states that all notices displayed were expected to be read and observed at all times. She says that that would include the requirement to wear hearing protection. She accepted in cross-examination that she could not give direct evidence as to the position under North West Furniture Frames as she joined the business when the Fifth Defendant took over. She had not inspected the premises at the time of takeover. She personally did not spend a lot of time on the shop floor amongst the machinery. The impression I have from her evidence is that she walked through the manufacturing area occasionally and she confirmed specifically that she did not wear hearing protection because she considered it unnecessary when she was only there for such a short time and so infrequently. She confirmed that the signs had been in place when the Fifth Defendant took over and the ear protection was already in existence. A specification for the ear protectors was provided at BP 94.
  10. Permission had been given in directions for a single joint expert engineer and the parties had jointly instructed Timothy Ward whose CV is at BP 201 and whose expertise relates to industrial noise exposure, its measurement, limits and the effect of hearing protection. I have re-read his report since the trial and the answers which he provided to Part 35 Questions from the Claimant and the Fifth Defendant.
  11. Before dealing with limitation, it is necessary to identify the issues which arise in relation to liability. In the event that it is necessary to consider section 33 issues, it will be necessary to determine evidential prejudice, if any, in the context of what the real issues are.
  12. Since there is one single joint expert in relation to the analysis of the Claimant's noise exposure throughout his employment, very little issue was taken during the trial as to levels of noise exposure and all submissions have proceeded on the assumption that Mr Ward's analysis of the likely noise exposure and the extent to which it was ameliorated by the wearing of ear protection is accurate. I will describe his conclusions below when dealing with breach of duty, if any.
  13. The issues in relation to liability therefore appear to be:-
  14. whether the Fifth Defendant is liable in respect of the period when the Claimant was employed by H&B;
  15. whether ear protection was provided and the Claimant wore it during the whole of the time of his employment by the Fifth Defendant and North West Furniture Frames Limited or only, as he says, during his employment by the Fifth Defendant;
  16. what the levels of exposure to noise were during the various stages of the Claimant's career between 1976 and 2006;
  17. whether, in the case of his employment with the First and Fourth Defendants prior to 1 January 1990 his employers can be categorised as employers who would be sufficiently aware to be subject to obligations which exceeded the 90 dBA exposure level identified in the guidance and regulations at that time. It therefore requires determination of whether the First and Fourth Defendants can be classed as employers with enhanced knowledge.

Limitation

  1. Insofar as material I have set out above a chronology of the Claimant's employment. For the purposes of considering limitation it should be supplemented in the following way. The Claimant was born on 12 February 1947 and was therefore 70 years of age at the date of trial and a little short of 60 years of age when he left the Fifth Defendant's employment. He first consulted solicitors in October 2012. HMRC confirmation of employment was issued in November 2012. Dr Iqbal, consultant audiological physician, reported in November 2013. Professor Lutman reported in May 2014. Proceedings were issued on 8 October 2015.
  2. The Defendants all contend that the Claimant's relevant date of knowledge for the purposes of the Limitation Act 1980 was more than three years prior to October 2015 when proceedings were issued and that the Claimant should therefore only be allowed to proceed with the action at all if section 33 is engaged to disapply the limitation period. The Claimant contends that his date of knowledge was not more than three years prior to the issue of proceedings but that, if that argument is not accepted, the limitation period should be disapplied.
  3. There can be no doubt that the Claimant's cause of action accrued more than three years prior to the issue of proceedings because his noise exposure ended in 2006 at which point any noise-induced hearing loss would already have occurred, whether perceived at that point by the Claimant or not.
  4. Section 11 of the Limitation Act 1980 provides that for actions in respect of personal injuries the period applicable is three years from the date on which the cause of action accrued or the date of knowledge (if later) of the person injured (section 11(4)).
  5. In this case therefore I have to determine the date of knowledge. What is the date of knowledge is provided for by section 14(1) of the Act as follows:

"References to a person's date of knowledge are references to the date on which he first had knowledge of the following facts: