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Terry Zindi

Terry Zindi

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Challenging the ‘date of guilty knowledge’ results in another NIHL trial success

Blogs22/01/2019

Claims in respect of noise-induced hearing loss (NIHL) are still regularly heard in our courts. Expert evidence is often pivotal to consideration of the issues of both breach of duty and noise exposure. Keoghs’ partner Terry Zindi provides some useful insight from the case of John Moran v G Thompson (Provision Merchants) Limited and three others (C81YM894) Wigan County Court, where the county court’s approach to the ‘date of guilty knowledge’ has again demonstrated that practitioners should be wary of a ‘one size fits all’ approach.

The background

Mr Moran was employed as an HGV driver by the first defendant. He alleged that throughout the 1960s and 1970s, he was exposed to excessive levels of noise, in excess of 90 dB(A) Daily Personal Noise Exposure (LEP,d).

Mr Moran obtained supportive engineering evidence in respect of his allegations of excessive noise exposure. The engineer considered that whilst exposure was intermittent and varied, overall, it was likely that during the 1960s and early 1970s, the noise levels would have been in excess of 90 dB(A) LEP,d. The engineer considered however that by the mid-1970s, the HGV vehicles driven by the claimant would not have resulted in exposure at or above 90 dB(A) LEP,d.

The claimant’s representatives also submitted that 1963 should be the date of knowledge applicable. Further, they claimed the first defendant should have taken steps to protect the claimant from such significant levels of noise.

The first defendant contested liability, arguing that the facts and circumstances of the claimant’s exposure meant that the date of guilty knowledge should not be imputed. The first defendant contended that the Noise and the Worker Edition 1962 applied to constant and regular exposure i.e. in a factory environment, and that knowledge (and any subsequent duty) should only arise after the publication of the 1972 Code of Practice.

Preliminary Issue Trial

The matter was listed for trial on the question of the appropriate date of guilty knowledge, before District Judge Gordon at Wigan County Court.

District Judge Gordon agreed with the submissions of the first defendant. The engineering evidence showed that the noise levels would vary immensely, depending on whether the vehicle was:

  • Idling
  • Moving slowly in traffic or moving at greater speeds, or
  • Travelling on ‘A’ roads or the motorway.

In addition, there were occasions of no exposure, when the claimant was loading/unloading.

The judge considered that The Noise and the Worker publication would not have been directed at, or should reasonably have come to the attention of, the first defendant.

The judge considered that the appropriate date of knowledge applicable in this claim was 1972, with a further two-year period to allow sufficient time to implement changes. The duty to protect the employees from vehicle noise was therefore 1974. The claimant’s claim was dismissed against the first defendant.

Keoghs’ comment

This case highlights the importance of considering the relevant industry, together with the type and circumstances of exposure, before determining the likely date of knowledge. Whilst such considerations are common in claims for HAVS, they are not always given the same importance in NIHL claims.

Remember, there is no such thing as a universal date of knowledge. Every defendant should be assessed individually on the basis of what it should have known at the time.