Retired boiler fitter fails to prove noise-induced hearing loss case against former employer

About this case:

• Citation:
  [2026] SC EDIN 61
• Judgment:
  External link
• Court:
  Sheriff Court
• Judge:
  Sheriff D R G Keir

John Pollock raised an action against Marshall & Anderson Ltd and Tata Steel UK Ltd, as the successors to the rights and liabilities of his former employees Alexander Anderson and Sons and British Steel, seeking £25,500 plus interest in damages. However, the pursuer abandoned his claim against the second defender on the third day of the proof, leaving only his case against the first defender.

The case was heard in the All-Scotland Sheriff Personal Injury Court by Sheriff Douglas Keir, with McQuade, advocate, appearing for the pursuer and Oliver, advocate, for the defenders.

Significant inconsistencies

From 1964 to 1971 the pursuer was employed as a boiler fitter for various companies, including two years with the first defender’s predecessor at their factory in Carfin, Lanarkshire. He was exposed to noise for around 75 per cent of his working day, requiring to shout to communicate with his colleagues and regularly work alongside people using pneumatic tools. From tax year 1970/1 to 1983/4 he was employed by the second defender’s predecessors as a shift engineer and then shift foreman, during which time he was provided with hearing protection.

In his evidence, the pursuer categorised his hearing as “terrible”, although he had not taken any steps to address the problem. He said that the first defender had not provided him with ear protection and, while he wore ear defenders for most of his time with the second defender, there were times when it was impracticable to wear them when working on smaller machines. The pursuer also accepted that he had undergone a hearing assessment around 10 years ago and was told at the time that his hearing loss was age-related.

For the pursuer it was submitted that it was clear from the evidence that the pursuer had been exposed to average weekly noise in excess of 95 decibels while employed by the first defender, which had not taken any steps to reduce noise in its factory. The evidence of acoustic consultant Gary Percival, who prepared a report based on information provided by the pursuer’s agents but did not interview him personally, estimated the pursuer’s average daily noise exposure to be in the range 98.2 dB LEPd to 107.5 dB LEPd.

Counsel for the first defender submitted that there were significant inconsistencies in the pursuer’s evidence and that of the experts instructed for his claim, which had a fatal impact on the calculations carried out by Mr Percival in relation to noise exposure. Furthermore, Mr Percival had failed to produce the pursuer’s precognition and questionnaire upon which he had based his calculations and to include the workings for those calculations, and in any event the pursuer had not proved that any breach of duty on the part of the first defender had caused him to develop noise-induced hearing loss.

Undermined the reliability

In his decision, Sheriff Keir said of the pursuer’s evidence: “I consider that the pursuer made a reasonable impression in court and appeared to be doing his best to assist the court. Standing the nature of his employment with the first defender, it cannot be reasonably disputed that he was exposed to high levels of noise. However, it was clear that there were material discrepancies between what he told the court and what he had told his solicitors and the experts involved in the case prior to that time in relation to key issues to be determined by the court.”

He continued: “I accept that the pursuer was giving evidence about events that occurred over 55 years ago and he should be afforded some latitude in that regard. I also accept that a witness will not necessarily give the same answer to a question asked by a different person at a different time, particularly in the unfamiliar confines of a witness box in court. However, I consider these discrepancies on critical issues to be significant and undermine the reliability of key elements of his evidence. Moreover, insofar as Mr Percival’s opinion is reliant on certain facts being established, the weight to be given to his evidence is similarly weakened.”

Considering expert views on three audiograms prepared for the purposes of the claim, Sheriff Keir said: “Taking the pursuer’s case at its highest, a potential diagnosis of NIHL was borderline standing Mr Newton’s quantification of NIHL in the right ear of only 2 dB based on the Paterson audiogram (the most recent of the three). Notwithstanding his acceptance that such a bulge was small, Mr Newton considered that it was still sufficient to satisfy Note 11(i) for a diagnosis of NIHL where there was a bulge of at least 10 dB in the left ear. His assertion that such a small bulge should be viewed as decisive was at odds with his evidence that a bulge would have to be 5 dB to be clinically significant. It was also at odds with Mr Robertson’s unchallenged evidence that a noise differential of 2 dB would be imperceptible to the listener.”

He concluded: “I therefore prefer the evidence of Mr Robertson to Mr Newton with particular regard to their key areas of dispute. It follows that I accept Mr Robertson’s evidence that any NIHL in the pursuer’s right ear sits squarely in the Note 11(iv) category and should be classified as ‘little or no trace’.”

Decree of absolvitor was therefore granted in favour of the first defender.