Agnew v Harland & Wolff Plc & Ors [2002] NIQB 60 (11 October 2002)

Ref: WEAD 3240

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND

QUEEN’S BENCH DIVISION 

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IN THE MATTER:

JOHN FORBES AGNEW
Plaintiff

-v-

HARLAND & WOLFF PLC & OTHERS
Respondents

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WEATHERUP J

[1] This is the case of John Forbes Agnew versus Harland & Wolff Plc & Others.  This is an appeal by the plaintiff from an order of Master Wilson remitting this action to the County Court.  The plaintiff claims as an employee of the defendants in respect of hearing loss sustained in the course of his employment.  The plaintiff is now 73 years old and is a retired joiner.  Between 1945 and 1973 he was employed by the various defendants in trades where he was exposed to noise, from as he puts it, in his Statement of Claim, corkers, riveters, drillers and other tradesmen, and he received no or adequate ear protection.  
[2] As a result of this, he claims to have suffered in two respects.  One marked suppressed hearing with difficulty hearing a domestic conversation or listening to the television or radio and two, bi-lateral tinnitus.  The medical report produced on his behalf by Mr Gibson in which he deals with those two elements, he notes that he has complained that his hearing is poor and that he had the difficulty that has been outlined.  Mr Gibson carried out audiograms, which show that within the hearing range of decibel levels, he had in the right ear loss measured at 32 decibels and in the left ear 35 decibels.  In relation to the tinnitus it was described as a ringing noise, which is present in either ear and has been present for some years’.  The plaintiff expands on this in an affidavit, which he has filed in the Remittal Application in which he indicates that he finds conversations difficult, especially when there is background noise and that he has difficulties with television and the telephone.  In relation to tinnitus, he describes this as a ringing noise in both ears which is most irritating at night when he is trying to sleep and he experiences difficulty getting off to sleep most nights.  The problem is quite marked two nights a week.  On a scale of one to ten he estimated a degree of upset at seven and he finds that his disturbed sleep makes him frustrated and irritable.  
[3] Applying the scale of damages that applies in these cases, the defendant has, and it is agreed on the scale measured the hearing loss at £3,979.00 and tinnitus at £1,162.00 giving a total £5,141.00.  On the other hand, the plaintiff’s approach is to indicate that the scale should no longer apply and that a more general and generous assessment should be made of damages.
[4] It is necessary to consider the history of this scale and I have looked at first of all, the case of Nichol against Harland and Wolff (1982), which is reported in Northern Ireland page one.  In that case the scale is set out by Mr Justice McDermott in the judgment and the method of assessing the degree of hearing loss is set out in that case.  Mr Justice McDermott endorses the scale on the basis that fairness requires uniformed levels of award in respect of large numbers of settlements which were being undertaking at that time (twenty years ago) and he sets out something of the history of the matter.  Also in 1982 Northern Ireland (371) the case of Holyoak against Short Brothers and Harland and Wolff was considered, that case twenty years ago, was raising the same issue that is raised today.  Namely whether the scale should be adjusted in some manner to reflect inflation and upgrade the levels of awards that are made.  Again Mr Justice McDermott considered the approach and he again endorsed the scale on the basis that it had the virtues of uniformity and comparability which he felt would be lost if the scale was abandoned.  However, he did say, that at the same time comparability matters but the conventional must become contemptible.  In order upgrade the levels of awards in that case of Holyoak against Short Brothers and Harland and Wolff what he did was to increase the percentage points that are assessed by 3% and that was how matters were dealt with from that time on.
[5] On the issue of tinnitus, Mr Justice McDermott refers to that at page 375(h) where he says that three of individuals who were in that group of seven plaintiff’s, Holyoak, Millar and possibly Sherwin and he says suffer tinnitus.  He says that it is a marked additional affliction; I do not consider scale caters for the presence of tinnitus and so were satisfied of its existence.  I shall seek to award an appropriate additional sum.  I have looked at the judgment, which appears in the blue books at 1982 (16) Northern Ireland Judgment Bulletins, which is the original Holyoak decision and he does consider the tinnitus position in respect of each of those cases.  So that in respect of Holyoak himself he describes a 63 year old riveter who had a hearing loss measured at 25%, he said of him there remains the probable problem of tinnitus.  Mr Gibson would not say if it is severe enough to prevent sleep loss.  Mr Burns says in 1979 the plaintiff said the noise was constant and that he was used to it.  The plaintiff did not make a big complaint about it, but Mr Justice McDermott found it a distressing condition and awarded £2,500.00.  Millar was a 60 year old corker with 33% hearing loss and in respect of him, Mr Justice McDermott said that he complained of tinnitus from the outset of the doctors, he described it as bell like noise.  He said it was present as he gave evidence, like a cogging noise and Mr Justice McDermott awarded him £1,500.00.  In the third case of Sherwin, he was a 62 year old welder and he had a hearing loss measured at 33% on the hearing scale and he had a noise in ears like a bell or a hissing sound.  It lasts for an hour or two and has been present for a year or so.  Sherwin did not mention this to Mr Millar when he had seen him earlier and he was awarded £750.00.  
[6] So one can see there that there is a variation in the awards that are made depending upon the degree depending on the degree of tinnitus and not related to the degree of hearing loss in each particular case.  However what seems to have followed from that is that there was a scale produced in September 1982.  The scale on the hearing loss upgraded matters to allow the addition of 3% and it provided for a scale on the tinnitus level.  It is described as basic scale, which on the loss of 21-30 decibels was £500.00, and it had increasing awards up to £1,500.00 where the decibel level was 51-60.  There was also a caution because it says, any person with “serious tinnitus” which was defined as tinnitus, which produces considerable social upset, or interference with work or which necessitates medical treatment would be outside the scale.  Applying that to this case, I would have considered that in the man’s case, which I think must be more serious than Holyoak because he defines sleep disturbance that produces considerable social upset given the degree of disturbance that he describes.  Of course it has yet to be assessed whether or not his evidence on that would be adopted.  However, I take it at its reasonable height for present purposes and I would regard it as falling within what as described as serious tinnitus, namely that which produces serious or considerable social upset.
[6] The next step along the way heard in 1990 when the decision Baxter was made and it is reported in 1990 Northern Ireland (147) and again Lord Justice McDermott, as he had then become discusses the question of damages in these cases at page 167.  Again he was facing the same issue that we are facing today, and which was faced in Holyoak namely how to upgrade if necessary the scale in respect of these cases.  In that regard Lord Justice McDermott said that the tables are useful but not determinative, this scale devised and operated for over a decade has never been considered mathematically precise.  It was decided to ensure overall fairness, we are now left with the residue of claims against these defendants, some 800, and it seems to me that it would be considered unfair by those who settled promptly that the latecomers should appear to do better.  So he refused to uplift the scale, or vary it, save that, at that time he thought that awards of general damages should attract the interest at 2% from the date of the Writ which was then standard in respect of personal injury claims, generally.  
[7] On the more the general question, tinnitus, while he awarded £1,500.00 for the hearing loss he did in that case note that there was tinnitus for which he allowed £500.00.  The final step along the way, I am told by Counsel, occurred in the year 2000 when Lord Justice McCollum heard an appeal against a remittal.  Again, the issue was raised about upgrading the scale and Lord Justice McCollum applied the Retail Price Index or endorsed the application of the Retail Price Index to the scale, as a means of keeping the matter up to date.  Accordingly, the measurement of the damages in hearing loss cases takes a number of steps in its modern form.  It starts first of all, with the Nicholl appendix, which is subject to amendments by the amalgamation of bands 1-6 to the sum of £1,00.00.  Secondly, it adds 3% to that scale in accordance with the decision of Holyoak.  Thirdly it applies the Retail Price Index to bring the matter up to date as endorsed by Lord Justice McCollum.  Fourthly, it adds 2% interest from the date of the Writ in accordance with the decision in Baxter.  Accordingly in the present case, the calculation has been made on that basis with the hearing loss measured at 10%.  The Nicholl scale being adopted plus 3% points and the Retail Price Index to date producing the figure of £3,979.00.  The tinnitus scale has been adopted at the relevant level which is 21-30 decibels producing a figure of £500.00 to which the Retail Price Index is applied to produce the figure of £1,162.00 making a total of £5,142.00 to which interest will then be applied.  
[8] So on that basis that the matter clearly falls within the County Court level.  First of all, I have to consider whether or not the hearing scale could continue to apply.  I say first of all that I am dealing with a case involving industrial deafness at Harland and Wolff and that scale has been applied in the past as Lord Justice McDermott has indicated from time to time in the interests of fairness to achieve uniformity and comparability.  Twenty years’ have now passed, and I think it is long past the time when it was thought that all the Harland and Wolff cases would be completed but apparently we are now hearing the last few of those cases.  I adhered to the comments made by Lord Justice McDermott in relation to the requirement for fairness on the basis of uniformity and comparability and also in relation to his comments on fairness and latecomers which he made in Baxter.  
[9] Accordingly I propose in this application to retain the application of the scale to the hearing loss in this case that produces the figure of £4,000.00 for these purposes.  There is an issue as to then as to whether or not that scale ought to modified.  It is a clumsy method in the various stages that I have just outlined but that is of necessity the product of 20 years of development.  Overall I like it would be best to retain the present approach rather than to alter it at this late stage where a limited number of latecomers claiming against Harland and Wolff.  I think the Retail Price Index operates as reasonable updating method even though it is not generally adopted in general damages assessments.  The scale is of course a guideline only and it is not to be applied rigidly, but insofar as there is any flexibility it produces a figure of about £4,000.00 in the present case.  
[10] I then look to the tinnitus scale.  Now that scale has been applied, as I have indicated at £500.00.  I think today there is a much greater appreciation of the impact of tinnitus and that, which may have formerly been the case.  It produces for present purposes a figure of £1,000.00, which in my view is out of proportion to the reasonable value of the plaintiff’s condition.  To use the words of Mr Justice McDermott, it is contemptible as a measure of the loss for the degree of tinnitus that this man describes, involving as it does, the impact upon his sleep.  So I would not apply the scale for that reason.  In any event, there is an exemption from the scale in the cases of what are defined as serious tinnitus, which I have earlier referred to.  As I have indicated I would have regarded the degree of social upset that arises in this case through sleep disturbance as placing this case in the level of serious tinnitus and therefore being outside the scale that was adopted in 1982 in any event.  So for either reason I think I am free to assess the measure of tinnitus in this case, I remind myself of the exercise I am engaged in is actually determining whether or not this action should be remitted and for that purpose I must take the case as it reasonable height having adopted some £4,000.00 as the value of the hearing, therefore to determine whether or not £11,000.00 or more represents the reasonable assessment at height of the damages for tinnitus.  
[11] In looking at this reading on the scale I refer to the green book and one sees on pages 13/14 discussions of partial hearing loss and tinnitus.  It gives as a number of bands, but band two is relevant as it refer to moderate tinnitus and hearing loss with a band of £12,500.00 to £25,000.00 and band three, mild tinnitus with some hearing loss, measured up to £12.500.00.  In this case I would describe the hearing loss as slight as it is measured at 10% and I think at best this case is at bottom of band two in the green book at £12,500.00 for hearing and tinnitus.  This tinnitus is significant, as I have said it is not to be valued on the scale and in my view the reasonable height of the case for tinnitus and hearing falls outside the High Court jurisdiction.  
[12] Accordingly I am proposing to affirm the decision of the Master to remit the case to the County Court and the appeal is dismissed.