England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LEEDS COUNTY COURT
His Honour Judge Langan QC
LS350574

		Royal Courts of Justice Strand, London, WC2A 2LL
		18 July 2005

Lord Justice Neuberger :


 


Introductory

1. This is an appeal brought by the claimant, Robert Harris, against the dismissal of his claim against English Welsh and Scottish Railway Limited ("the defendant") for damages in respect of hearing loss caused by exposure to the noise of various types of locomotive between 1974 and 1999, during which period he was employed by the defendant as a train driver (save for the first two years, during which he was a secondman). The case was heard in the Leeds County Court by His Honour Judge Langan QC, who dismissed the claim in a full and careful reserved judgment handed down on 6 August 2004. The claim was put in two ways, namely breach of common law duty of care and breach of statutory duty, and in this court it is submitted on behalf of Mr. Harris that the Judge should have found for him on both grounds.
2. In his judgment, the Judge began by observing that "there is no doubt that [Mr. Harris's] deafness was substantially caused by exposure to the noise made by the engines or locomotives." He then went on to identify the three questions which he had to decide in order to determine whether or not the claimant's case, in so far as it was based on common law, was established. The first question identified by the judge was whether the daily level of noise to which Mr. Harris was frequently subjected on his case, namely between 85dB(A)leq to 90dB(A)leq, was such as to render the defendant under a duty of care to Mr Harris, and therefore potentially negligent (i.e. negligent subject to Mr. Harris satisfying the other two questions). The second question the Judge had to determine is whether "on the limited material which is available" Mr. Harris "was in fact exposed to noise levels above 85dB(A)leq. The third question the Judge identified was whether the defendant had in fact taken, or considered taking, appropriate precautions so as to avoid the liability which it would otherwise have to Mr. Harris.
3. The Judge decided the first two questions in favour of Mr. Harris and the third question in favour of the defendant. In other words, he decided that the defendant was liable in principle in respect of Mr. Harris's exposure to levels of noise above 85dB(A)leq, that Mr. Harris was in fact exposed for substantial periods to levels of noise above that level, but that the defendant was not liable to Mr. Harris in common law, because it had conscientiously considered the possibility of taking precautions, and had reasonably rejected that course. Having dismissed the claim in common law, the Judge dealt more briefly with the claim based on statutory duty, and rejected it essentially for the same reasons, namely on the ground that the proposed precautions advanced on behalf of Mr. Harris were "not practicable".
4. Although he dismissed Mr Harris's claim, the Judge helpfully went on to consider the level of damages he would have awarded if the claim had succeeded. In summary terms, his conclusion was that he would have awarded a total of £10,000, made up of £6,500 for the injury itself and £3,500 for consequent loss of congenial employment. There is no appeal by either side on quantum.
5. Mr. Harris's appeal involves, of course, challenging the Judge's conclusion against him on the third question in relation to his claim in common law, and by the same token, challenging the Judge's finding that the proposed precautions at work were "not practicable" so far as the claim based on statutory duty was concerned. There is a cross-appeal by the defendant, which challenges the answers the Judge gave to the first two questions he identified in relation to the common law claim.
6. In this judgment, I shall first describe the basic facts and technicalities (albeit much more succinctly than the Judge, because he was required to make detailed findings of primary fact and detailed inferences from those facts). I shall then deal with the claim in common law, taking the three questions identified by the Judge in a somewhat different order from that in which he took them, and also dealing with a pleading point. I shall then turn to the claim based on statutory duty, and finally express my conclusions.

The basic facts and technicalities

7. Mr. Harris's employment with the defendant can be divided into six periods. (1) He was employed as a secondman in Willesden between 1974 and 1976. As I have already mentioned, for the remaining periods he was employed as a driver, spending much of his time in the cabs of train engines. Those periods were (2) at Orpington from 1976 to1977, (3) at Tunbridge Wells between 1977 and 1985, (4) at Exeter between 1985 and 1987, (5) at Blyth between 1987 and 1993, and (6) at Dollands Moor between 1993 and 2000. During these periods, Mr. Harris worked in a number of different types of locomotive, each of which was considered by the Judge, and in respect of each of which there was evidence, based on the experience of Mr. Harris and some other railway workers, records kept by the defendant and other train operators, and some expert evidence from either side, which was not agreed and was therefore subject to cross-examination.
8. Working with locomotives, and in particular (for present purposes) working in the cab of a moving train, involves exposure to noise, which in turn can lead to permanent damage to hearing. Unfortunately, Mr Harris suffered in this way. The extent of Mr. Harris's hearing loss was the subject of evidence from different experts, but they were, very sensibly, able to agree their evidence, and accordingly the Judge did not have to make findings as to the extent of Mr. Harris's loss of hearing.
9. In paragraph 28 of his judgment, the Judge very helpfully summarised, albeit in somewhat general terms, how the effect of different frequencies of noise affect the human ear, and how that effect is measured. He said this:

"The constituent elements in assessing the exposure of a person to noise which may be injurious are pressure level, frequency and duration. Pressure level or "loudness" is measured in decibels. Frequency is measured in hertz. The ear is more vulnerable to injury from noise which is transmitted on frequencies between 1kHz and 4kHz. Therefore noise meters attach more weight to noise which is received within this middle range of frequencies than to noise which is received on the less harmful higher and lower bands. A meter will thus produce an overall reading in what are called "A-weighted decibels" or "dB(A)." The concept of "leq" has to do with duration of exposure, and is the "notional sound level which, in the course of an eight-hour period, would cause the same A-weighted sound energy to be recorded as that due to the actual sound over the actual working day." The modern noise meter takes into account all these factors of noise pressure, frequency and duration, and translates them into a formula expressed as so many dB(A)leq."

10. The Judge then referred to a letter written in June 1973 by Dr. Dickerson the assistant to the Chief Medical Officer of British Rail, which contained the following:

"Epidemiological studies in both this country and America have shown that if a population is exposed to noise at a level of 90dB(A) for eight hours a day, five days a week, 48 weeks a year for 30 to 35 years, it can be expected that 15 to 17% of that population will develop noise induced hearing impairment; if the exposure level is 85dB(A) for a similar period, the expected incidence of impairment is 6 to 8%."

11. The Judge then turned to a very useful small book written by His Honour Judge MacDuff QC, Claims for Industrial Deafness: A Practitioner's Guide (1997, reprinted 1999), and quoted a passage on page 7, which was in the following terms:

"It is now well established that the 'watershed' between risk and safety is defined at 90dB(A)leq. As we have seen above, it is known that prolonged exposure to noise in excess of 90dB is liable to result in hearing loss to the average person. In fact, some people are more vulnerable to noise than others. All human ears are not identical. A relatively small number of people may suffer injury from a noise dose of less than 90dB(A)leq. Others may have extra resilience; they may be able to cope with regular noise in excess of 90dB(A). However, the courts have held that 90dB(A)leq is the dividing line between risk and safety. If the worker (plaintiff) proves that the employer (defendant) exposed him to a 'noise dose' of 90dB(A)leq or higher, his claim will succeed. That is to say, the plaintiff must prove that he was exposed to the equivalent of noise in excess of 90 A-weighted decibels for 40 hours per week."

12. In light of those observations, it is scarcely surprising that the defendant's case below, and repeated here, was and is that 90dB(A)leq is the "watershed" or threshold which should be adopted here, and that the 85dB(A)leq threshold for which Mr. Harris contended, and still contends, should be rejected.
13. Before turning to the three questions which arise in relation to the common law claim, I should mention this. For reasons which I shall expand on when discussing the first and third questions, it appears to me to be somewhat artificial and unrealistic to treat them as discrete and unconnected. In my judgment, there is a real danger of reaching a wrong conclusion, or at any rate an unsafe conclusion, if one attempts to identify the minimum sound level at which some sort of duty arises without at the same time bearing in mind the nature of, and evidence relating to, the precautions which it is argued could have been taken, or at least considered, by the defendant in respect of sound at that level. Accordingly, it appears to me appropriate to consider the second of the three questions identified by the Judge in relation to the issue of common law duty, before turning to the first and third questions which I shall consider together.

Common Law Duty: Mr. Harris's Actual Exposure

14. The Judge explained in paragraph 44 of his judgment that "this question produces very real difficulties" because, during the period between 1974 and 1999 Mr. Harris worked in a very large number of locomotives in many different classes, and the problem is compounded by the fact that the noise emitted by different engines in the same class varies from one to another, and the fact that the noise level of a particular engine depends on a large number of factors, including the loading, the rail type, the gradient, the number of stops, the time of day and the duration of the shift (to mention but some variables). Furthermore, it is inevitable that, despite the records kept by the defendant, it is impossible to identify, to any precise degree whatever, the amount of time which Mr. Harris would have spent in each type of locomotive, even if one could specify all the types of locomotive which he actually was driving in the relevant period.
15. In paragraphs 46 and 47 of judgment, the Judge dealt with the evidence given on this topic by the two experts, Mr. Rawlinson for the defendant and Mr. Hill for Mr. Harris. Mr Rawlinson's conclusion was that Mr. Harris's "overall exposure was at 84.3dB(A)leq", but the Judge described his methodology as "so crude" as to "make the conclusion unreliable". Mr. Hill's conclusion that "on the balance of probability the claimant would regularly experience" a daily exposure in excess of 85dB(A)leq was based on material which the Judge described as "more impressive than that selected by Mr. Rawlinson" but he went on to say that it "require[d] close analysis".
16. In paragraphs 48 to 56 of his judgment, the Judge then proceeded to subject the evidence to close analysis by considering what Mr. Harris's likely level of exposure to noise would have been in each of the six periods identified above. He rejected the argument that periods (2) and (3) could be relied on by Mr. Harris, and went on to explain, with impressively detailed reference to specific items of evidence, why he concluded that, albeit to some extent in each case, Mr. Harris had been exposed to a significant extent to sound above the level of 85dB(A)leq during periods (1), (4), (5) and (6), which, as he pointed out in paragraph 56, "add up to 16 years". In those circumstances, he concluded that Mr. Harris was "regularly and over a significant period or periods exposed to noise at a level of 85dB(A)leq or more" (see paragraphs 43 and 56.) He had explained in paragraph 43 why this answer was given to a question which he had formulated using the words "regularly" and "significant".
17. It is clear that exposure to sound above 85dB(A)leq throughout every working day would involve what the Judge called "a particular measurable risk of noise-induced deafness". On the other hand, exposure for merely a few days of the whole of ones working life could not give rise to any increased risk of deafness. The problem for the Judge, as he explained, was that he had "not been referred to anything which indicates where what might be called the risk-line should be drawn." In those circumstances, he concluded that it was "impossible to formulate what is the vital question of fact in this case otherwise from in the broad terms" in which he expressed it.
18. Mr. Leighton Williams QC, who appears on behalf of the defendant, as he did below, contends that the Judge was not entitled to reach the conclusion that he did for a number of reasons. Although those reasons were advanced succinctly and clearly, none of them has caused me to doubt my initial view on first reading the judgment, namely that the Judge had carried out a meticulous exercise in very difficult evidential circumstances, and had reached a conclusion which he was clearly entitled to reach, and with which it would be quite wrong for this court to interfere.
19. The principal ground of attack was on the propriety of the Judge's approach to the issue he was considering. In that connection, the Judge's formulation of the vital question which he had to determine was whether the claimant had "regularly" and "for a significant period" been exposed to sound levels of 85dB(A)leq or above. As he explained, the difficulty he faced on the evidence was the absence of any evidence as to a "risk-line". It has not been suggested that his formulation was wrong in law, or even could be improved on. The only alternative, therefore, would have been for the Judge to reject the claim simply on the basis that he had not been provided with a risk-line. I do not think that would have been the appropriate course to take. Claims for personal injury arising out of exposure to noise, vibration, or other health risks, particularly where the exposure was over a long period of time in different circumstances, notoriously give rise to difficulties. While it may be dangerous to generalise, the cases demonstrate, and common sense and fairness require, that, unless it is clear that decisive evidence would have been relatively easily available, and that there was no good reason why it is not before the court, it is normally wrong for the court simply to shelter behind the burden of proof and dismiss the claim.
20. As to the Judge's assessment of the factual evidence and the expert evidence relating to this issue, Mr. Leighton Williams did not suggest that there had been any errors of fact, merely that the Judge had made inferences which he was not entitled to make, or at any rate should not have made. I intend no disrespect to Mr. Leighton Williams's arguments in this connection in saying that I do not find any of them persuasive. The Judge's conclusion was supported by the evidence of one of the experts, and did not involve a substantial departure from the evidence of the other expert. He approached the question, as I have said, in a manner that can only be described as meticulous, and reached a conclusion which appears to me to be one which, to put it at its lowest, he could reasonably have arrived at.
21. In these circumstances, I consider that the Judge was fully entitled to arrive at the conclusion that he reached on this issue, which he identified as the second question, and I would therefore dismiss the defendant's cross-appeal on that issue.
22. As I have mentioned, it appears to me unrealistic, and indeed wrong in principle, to treat what the Judge identified as the first and third issues as unconnected, at any rate in the present case. The question of whether, on particular facts, a defendant owes a claimant a duty of care may often, of course, be determined quite independently of the question of whether or not the defendant should have considered or adopted, certain precautionary measures. However, particularly in a case such as this, I consider that it would not be right to deal with the two issues as if they are unconnected. There is a dispute both as to the existence of a duty and as to the appropriateness of any precautions, the claimant is alleging a duty on the defendant which is arguably more onerous than it might normally be, and he is also alleging the only way in which the duty required to be satisfied was by the taking of the very precautions which are an issue.
23. As I have already explained, so far as the first issue, namely the existence of a duty of care, is concerned, the normal level of sound which gives rise to a duty of care, in law is 90dB(A)leq, and Mr. Harris's case is based on the proposition that the defendant owed a duty of care to him on the basis that the level of sound was over 85dB(A)leq but below 90dB(A)leq. Furthermore, the only step which he alleges should be taken by the defendant in relation to mitigating or preventing any damage to his hearing was the use of earplugs or other ear protectors, the practicality of which is denied by the defendant. Finally, perhaps most significantly in many ways, the evidence upon which Mr. Harris relies in order to support his case on the first issue appears to be very much connected with the evidence which both parties rely on in relation to the third issue.

Common law duty: a pleading point

24. Before turning to the first and third issues, it is right to deal with one related, if distinct, issue, which, although it raises a pleading point which ultimately turns on what happened at the beginning of the trial, raises a matter of some general significance in cases of this sort. As I have explained, one of the three issues before the Judge, and, indeed, the issue upon which Mr. Harris crucially lost, was whether or not it was reasonable for the defendant not to have provided precautions in the form of earplugs or the like. A preliminary point taken by Mr. Hillier, on behalf of Mr. Harris, is that it was not open to the defendant to contend, and that therefore it was not open to the Judge to hold, that liability was avoided on the grounds that it was impractical to supply protection.
25. So far as the pleadings, or statements of case, are concerned, the position was as follows. In Mr. Harris's statement of case accompanying the claim form, it was specifically contended as one of the particulars of negligence alleged against the defendant, that it should have, and that it failed to, provide protection, in the form of earplugs, to Mr. Harris in order to reduce his exposure to the level of sound to which was exposed. This was put in issue only to the extent that, in defence there was a general denial of liability for negligence, which extended to all the particulars of claim, including the alleged failure to provide protection. In particular, Mr. Hillier points out, there was no positive allegation in the defence to the effect that the provision of protection to Mr. Harris was inappropriate for any particular reason.
26. There was, in the normal way, exchange of expert evidence well before the trial. In his expert evidence, Mr. Rawlinson, the defendant's expert, said nothing about any problem in connection with the provision of protection, and in particular, did not suggest that it would have been impracticable either generally or in the particular case of Mr. Harris. Nor did the witness statements of any of the witnesses of fact to be called on behalf of the defendant contain any such evidence. Following the exchange of expert evidence in May 2004, the parties' respective experts agreed a statement of issues, which did not deal with the question of practicability of precautions.
27. It was only a week before the trial that the defendant produced any document to suggest that it was part of its case that it would have been impracticable to provide ear protectors for Mr. Harris. During that week, Mr. Harris's solicitors received Mr. Leighton Williams's skeleton argument for the hearing, and a supplemental report from Mr. Rawlinson, both of which referred, albeit in pretty short order, to the "potential problem of wearing hearing protection in the cab" and the resistance on the part of some employees to wearing such protection.
28. In my judgment, where an employee, who is suing his employer for personal injury suffered at work, contends in his statement of case that certain precautionary steps should have been taken or considered by the employer, it should normally only be open at trial to the employer to raise a defence of impracticability or the like if it has been fairly and squarely raised on his behalf in his statement of case. Apart from receiving support from the general proposition that each party should come to court knowing the salient features of the other party's case, it appears to me that the point is well made by the provisions of CPR16.5 which, so far as relevant provides as follows:

"Contents of Defence

…

(2) Where the defendant denies an allegation –

(a) he must state his reasons for doing so; and

(b) if he intends to put forward a different version of events from that given by the claimant, he must state his own version.

…

(5) … a defendant who fails to deal with an allegation shall be taken to admit that allegation."

29. While the CPR contains the general rules relating to statements of case, it appears to me that, relating to a case such as this, there is direct judicial authority to support Mr. Hillier's argument. The point was clearly made in Larner –v- British Steel Plc [1993] 4 All ER 102 at 111D, where Peter Gibson LJ said:

"It is now well established that it is for the employer both to plead and to prove that it was not reasonably practicable to make and keep the working place safe… It is important that the employer should plead his case on this so that the employee can know and test the case he has to meet."

30. In support of that proposition, Peter Gibson LJ cited three cases, including Nimmo –v- Alexander Cowan & Sons Ltd [1968] AC 107, where Lord Upjohn made the point very clearly at 125F and 126E. Hirst LJ expressed the same view as Peter Gibson LJ, when he said at 108J that it was a "pre-requisite" that an employer defendant's defence of reasonable practicability "if it is to be raised, should be expressly pleaded".
31. If Mr. Hillier had contended in clear terms before Judge Langan that the defendant should not be entitled to lead evident or argue that it was not practicable to provide Mr. Harris with protectors, then he would have been in a strong position. Unless he would have been unable to show any prejudice as a result of the point being taken so late (and then only in the defendant's skeleton argument and in a short supplemental expert report), it seems to me that it would have been very difficult for the Judge to take any course other than acceding to the application or granting an adjournment at the expense of the defendant. It cannot be right, at least in the absence of special circumstances, to proceed forthwith to hear an action, over a claimant's objection, on the basis that it is open to the defendant to take a potentially determinative point, which ought to have been but was not been, pleaded, which was only raised less than a week before the trial, which reasonably takes the claimant by surprise, and with which the claimant is unable to deal properly without an adjournment. In my judgment, it is almost inevitable in such circumstances that one could not proceed forthwith to hear the case without acceding to the claimant's objection and debarring the defendants from taking the point.
32. However, this was not a case where objection was taken on behalf of the claimant, at least in clear terms, to the defendant taking the point. Rather curiously, it seems to have been Mr. Leighton Williams who raised the point; he took objection to the fact that Mr. Hillier, during his opening, made much of the fact that the defendant had not taken any steps to provide Mr. Harris with ear protection. Not surprisingly the Judge was rather unimpressed with that point, given that Mr. Harris's statement of case had specifically advanced this allegation. However, the Judge raised the possibility of the defendant being granted an adjournment to deal with the point, the question of an adjournment having been in the parties' minds in any event, because an adjournment application, supported by both parties, had been rejected by the District Judge. After the matter had been debated a little, the Judge rose so that the parties could discuss matters, and, when the Judge returned, the transcript shows that the parties indicated that they were both content for the case to continue. Thereafter, both experts dealt in their oral evidence with the question of ear protection.
33. In those circumstances, I consider that it would be wrong if Mr. Harris were now able to run the argument that the defendants should not have been permitted to contend that the provision of ear protection was impracticable on the ground that it was not pleaded, and that, indeed, it was only raised less than a week before trial. If that argument had been raised in clear terms below during Mr. Hillier's opening, for instance during the discussion to which I have made reference, then both the Judge and the defendants would have been able to consider that point. In particular, the Judge could have reached a conclusion on what prejudice would be suffered by Mr. Harris if the question of practicability was permitted to be raised at such short notice (albeit bearing in mind there was a little notice), and both the defendant and the Judge would have been in a position to consider whether to offer or, as the case may be, grant, an adjournment. As I see it, the connected issues of precautions and practicability were both permitted to be argued, albeit in the face of a slightly cheeky objection from the defendant to the claimant raising the issue of precautions, and without any specific objection from the claimant as to the defendant's right to rely on impracticability.
34. Having said that, I think that Mr. Hillier makes a fair point when he says that Mr. Hill's evidence in answer to the point that the provision of ear protection was impracticable has to be assessed in the light of the fact that Mr. Hill did not have as much time to investigate and consider that issue, and to refine his views on it.

The common law claim: duty of care and precautions

35. In this court, as before the Judge, the defendant places heavy and understandable reliance on the proposition that it is commonly accepted that an employer's common law liability to his own employees in respect of damage by sound will only arise where the level exceeds 90dB(A)leq. In this connection, reliance is placed, inter alia, on the passage I have cited from Judge MacDuff's book. The Judge's answer to that was encapsulated in paragraph 41 of his judgement where he said this:

"By setting the threshold at 85bB(A)leq in the claimant's case, the court is doing no more than saying that this is the level at which the risk of injury to him was foreseeable by the defendant..."

36. Mr Leighton Williams says that the defendant has "no quarrel with the conclusion since [it has] always accepted that exposure to 85dB(A)leq gives rise to a foreseeable risk of injury in the broad sense that all excessive noise is potentially injurious to hearing". However, as he goes on to say, the mere fact that a particular level of sound is potentially injurious does not of itself give rise to a duty of care. As he puts it, the existence of a duty of care "depends not merely on foreseeability of injury but whether it is just and equitable to impose the duty".
37. I do not understand Mr. Hillier to quarrel with that formulation, which appears to me to be not only sensible, but correct as a matter of principle. However, once one bears in mind the accepted fact that the 85dB(A)leq level of sound involves a real risk of damage to an employee's hearing, it seems to me plainly to follow that it must, ultimately, be a matter which is capable, on the particular facts of a particular case, of leading to the conclusion that the exposure of an employee to that level of sound can give rise to a duty of care.
38. That observation is not intended to call into question the applicability in the general run of cases of the 90dB(A)leq threshold. While each case must turn very much on its facts, not least because of the "just and equitable" test accepted, indeed advanced, on behalf of the defendant, it is appropriate that there should be a generally applicable standard, albeit that that standard must yield on occasion to the particular facts of a particular case. The existence of a general standard enables employers and employees to know where they stand in most cases, and therefore reduces uncertainty, and the costs and pressures of litigation.
39. Apart from Judge MacDuff's remarks, Mr. Leighton Williams referred to a Code of Practice published in 1972 by the Industrial Health Advisory Committee's Sub-Committee on Noise, and the Health and Safety Commission's Consultative Document, Protection of Hearing at Work, published in 1981, both of which referred to the desirability of not exposing employees to sound levels above 90dB(A)leq, and the Noise at Work Regulations 1989 ("the 1989 regulations") which, while they impose some duty on employers in relation to sound above 85dB(A)leq, require stronger action to be taken at the 90dB(A)leq level. To my mind, these papers reinforce Mr. Leighton Williams's point, at least until the 1989 Regulations came into force, that an employer would not normally be expected to be liable to an employee who was exposed to a level of sound lower than 90dB(A)leq, but this evidence cannot go so far as to negative in all circumstances liability to employees whose health is impaired as a result of exposure to sound below that level.
40. Like the Judge, I derive assistance from what was said by Swanwick J in Stokes –v- Guest, Keen and Nettlefold (Bolts and Nuts) Ltd [1968] 1 WLR 1776 at 1783:

"From these authorities I deduce the principles that the overall test is still the conduct of the reasonable and prudent employer, taking positive thought for the safety of his workers in the light of what he knows or ought to know… [W]here there is developing knowledge, he must keep reasonably abreast of it and not be too slow to apply it; and where he has in fact greater than average knowledge of the risks, he may be thereby obliged to take more than the average or standard precautions. He must weigh up the risk in terms of the likelihood of injury occurring and the potential consequences if it does; and he must balance against this the probable effectiveness of the precautions that can be taken to meet it and the expense and inconvenience they involve. If he is found to have fallen below the standard to be properly expected of a reasonable and prudent employer in these respects, he is negligent."

41. It may well be that a good working approach is that the 90dB(A)leq level gives rise to a presumption: if sound is above that level, the onus shifts to the employer to show why he should not in principle be held to be negligent, whereas if it is below that level, it is for the employee to show why a duty should be imposed at all. I would, however, not wish to be interpreted as laying down any rule or principle: at best, what I have in mind is a rule of thumb, but it should be emphasised that, in even putting it that way, I am proceeding very much on the basis of the evidence and the arguments developed before us.
42. To my mind, therefore, the point which has to be ultimately resolved, in relation to what the Judge identified as the first issue, is whether or not, in light of the evidence and arguments before him, the Judge was entitled to conclude that, on the facts of this particular case, the threshold giving rise to actual, or at least potential, common law liability on the part of the defendant to Mr. Harris was 85dB(A)leq rather than the more usual 90dB(A)leq. In order to answer this question, it is, of course, necessary to turn to the relevant evidence before the Judge. In that connection, there were various different sources of evidence.
43. The first type of evidence available to the Judge on this issue consisted of records of meetings and copies of correspondence kept by the defendant going back to at least 1973 (when the defendant was part of British Rail). On 19 June 1973, as I have already mentioned, the Assistant to British Rail's Chief Medical Officer wrote to the Executive Director of Personnel explaining that there was about a 16% risk of damage by noise at 90dB(A)leq, as compared with the risk of 7% at 85dB(A)leq. He also pointed out that there was a difference of opinion as to which should be taken as the maximum level, and that the US and the UK Governments chose 90dB(A)leq, but that the legal position was difficult because the absolute safety level could not yet be defined. By 30 September 1977 the Head of the Acoustics Section was writing to the Chief Operations Manager agreeing "that it may be preferable to issue personal ear protection rather than to spend money quieting nearly life-expired equipment" and he ended by saying that "it does not seem, in the light of present knowledge, that an 85dB(A)leq limit would be over-protected".
44. An important meeting for present purposes took place on 7 May 1980, where the use of earmuffs by personnel in engine cabs was discussed. Concern was expressed as to whether "a driver with normal hearing would hear detonation etc with earmuffs", as it was regarded as important that he should do so for safety reasons, "and it was agreed that he would". The meeting then went on to discuss the "perception" employees might have; the possible problems were identified as "ear defenders [being] an irritant", possibly upsetting balance, causing the "sense of hearing [to be] muted" and resulting in "a feeling of isolation".
45. A Regional Industrial Safety Officer observed that British Rail "was knowingly exposing people to a situation which would make them deaf" and that he "believed that a trial was necessary to see if drivers would wear the earmuffs"; he added that ear plugs would be a "low cost alternative". The chairman of the meeting "stated that he believed it should be possible to reduce exposure to noise through the use of earplugs". Later in the meeting, he went so far as to suggest that "if a man refused to wear ear protection, he could be warned under the formal disciplinary procedure or by letter" and, if he persisted, "he probably could be sent off the job".
46. On 24 June 1986, British Rail's Director of Operations wrote to the Chief Medical Officer referring to the pressure from the Railway Inspectorate "to provide footplate staff who work on some of the more noisy classes of locomotives with a form of hearing protection to be used in the cabs". The letter went on to refer to British Rail having set their "target of 85dB(A)leq… maximum and this is certainly the figure to which we must, as soon as possible, bring down the noise levels in all cabs…". The letter went on to refer to the uncertainty about the level of noise being suffered by footplate staff and "whether there might be other objections to them wearing some standard form of defenders". The letter mentioned that earplugs were supplied "to be used for limited periods in diesel locomotive engine rooms" but pointed out that British Rail had "always instructed that they should not be worn in cabs". The letter went on immediately to refer to the possibility of using ear muffs, such as those "already worn by drivers on the Netherlands Railways".
47. The Director of Operations went on to say that he was reluctant to issue them for those in the cabs because they were "tiring and uncomfortable", not as efficient as "the normal ear defender… at reducing the level of high frequency sound waves", and because the "total problem is an ever diminishing one as the more noisy classes of locomotives… have been withdrawn". The letter also referred to the fact that those wearing ear muffs "may lose a degree of perception of awareness".
48. The matter was discussed in relation to one class of locomotive by the Director of Operations in a letter of 10 February 1988 written to the Railway Inspectorate. The letter identified the sound readings which had been taken at "typically in the range of 85-90dB(A)leq and went on to suggest that the defendant had "a number of possible courses of action". Apart from sound proofing the cabs, and limiting the number of hours worked, the only proposal was either "passive [or] active ear defenders" which they were reluctant to use.
49. So far as the expert evidence was concerned, Mr. Hill, who was Mr. Harris's expert, concluded that, despite knowing train drivers were being exposed to potentially hazardous level of noise "hearing protection for locomotive drivers was never enforced by the defendant [who] continued to knowingly expose drivers to a daily noise exposure exceeding 85(A)leq". Mr. Rawlinson, the defendant's expert had inevitably taken a different view because he had concluded that the exposure of employees such as Mr. Harris to a level of sound below 85dB(A)leq, which the Judge had rejected. However, he did not really address the point, at least directly, as to whether or not the defendant could or should have provided ear protection. His only, or at least main, point, as put in his supplemental report was that there was "resistance to the wearing of ear protection in industry for a variety of reasons not all of which were valid".
50. In addition, the Judge saw some articles dealing with aural protection. One article, "Design Factors and Use of Ear Protection" by C. G Rice and R. A. A. Coles published in 1966, stated that "resistance of personnel towards using ear protectors is universal though varying in degrees". It then observed that "in some case the objections were "very reasonable but [had] to be weighed against the hazard to hearing" and that in other cases the objections were "less well founded" and could "largely be overcome by discipline, education and example". The disadvantages which were identified were discomfort, (where "persistence is the answer") ear infections (in respect of which " earplugs are contra-indicated"), difficulty with communication, and difficulty in listening to machinery sounds or hearing warning signals.
51. A report by S. D. G Stephens in 1976, "Disorders of Auditory Function" reached certain conclusions, including that "wearing hearing protectors in noise levels above 85dB(A)leq does not degrade the listener's discrimination of speech" but that there was an overall degradation in person-to-person communication" if both wore hearing protection. Such problems were identified in an article published the following year by W. I. Acton, "Problems Associated with the Use of Hearing Protection" as being of significance where a person had "pre-existing noise induced hearing losses", where there would also be difficulties in relation to "missing vital warnings or alarms".
52. In my view, this evidence supports the Judge's conclusion that the defendant owed Mr. Harris a duty of care in relation to exposure to sound at a level above 85dB(A)leq, but, almost for the same reasons, it undermines his conclusion that the defendant satisfied that duty of care.
53. First, it appears to me clear that, from 1973 at the latest, the defendant was well aware of the fact that exposure to a level above 85dB(A)leq gave rise to a real, as opposed to a minimal, risk of damage. Secondly, while different employees of the defendant who were concerned with such matters may have had somewhat different views, the British Rail documentation from which I have quoted establishes that the prevailing view was that 85dB(A)leq was not merely a desirable target but an achievable target. Thirdly, and crucially, there is the evidence revealed by the documentation in relation to the provision and use of ear protection.
54. In this connection, it seems clear that the desirability of encouraging, even requiring, the wearing of some sort of ear protection by employees who were exposed to relatively high volumes of sound, namely above 85dB(A)leq, was flagged up on a number of occasions. Indeed, there was a requirement that employees wore ear protectors in the engine rooms. On the other hand, employees were positively forbidden from wearing ear protectors in cabs. Yet not only was there no evidence that the wearing of ear protectors in cabs would interfere in any significant way with the hearing of essential sounds, such as detonators: the general consensus was that it would not so interfere. Certainly, nothing was done to investigate that issue, let alone to support the proposition that there was, in fact, any significant risk of employees not hearing warning sounds or danger signals such as detonators.
55. As to the notion that employees would resist the use of ear protection, there was significant support for, and no real apparent resistance, and certainly no grounds for resistance, to, the notion of a trial to see whether employees would use ear protectors, or at least the giving of an opportunity to employees to use ear protectors in the cabs. That is particularly remarkable in light of the fact that employees were not merely supplied with the ear protectors, but were positively required to use them, in the engine rooms. Quite apart from this, the Judge unhesitatingly accepted that Mr Harris would have used ear protectors in the cab, if he had been advised of the benefits of doing so, or the risks of not doing so.
56. All in all, it appears to me that the relevant employees of the defendant appreciated the risk to employees of exposure to noise at over 85dB(A)leq, that they believed that limiting the volume of sound to that level was feasible, that they were well aware that this could be achieved with ear protection, and that the possible difficulties involved in providing employees with ear protection should not prove insurmountable. In particular, I can see no answer to the point that given that ear protectors were provided and required to be used in certain circumstances, employees working in the cabs could not be provided with ear protectors with a recommendation, if not a requirement, that they be used. Applying the test laid down by Swanwick J and quoted with approval by the Judge, I can well understand why he concluded that a duty did exist in this case, but I find it a little hard to understand how he concluded that the duty was satisfied in light of the fact that there was a positive requirement by the defendant that its employees working in the cab, such as Mr. Harris, should not be allowed to use the ear protectors.
57. However, it is, of course, essential to remember that this is an appeal in the normal way, namely by way of review, and that the question for us is not whether we would have reached the same conclusion as the Judge, but whether he reached a conclusion that he was entitled to reach. For the reasons already given, I have no difficulty in holding that he was entitled to reach the conclusion that he did on what he identified as the first issue. In light of the totality of the evidence in this case, it appears to me that, while in no way seeking to suggest that, in the normal run of cases, the threshold or watershed should not be regarded as 90dB(A)leq, the Judge was, on the particular facts of this case, entitled to reach the conclusion that the somewhat lower threshold of 85dB(A)leq was appropriate.
58. It is right to mention that, in connection with claims against other companies, the Judge's decision on this point does not stand alone: we have been referred to a number of first instance decisions where the same conclusion was reached. However, in fairness to the defendant, and any other employers against who such claims were brought, it is also right to emphasise that it is inevitable that each case turns on its primary facts and particular inferences, whether agreed between the parties or found by the court, and the documentary evidence put before the court.
59. On the third issue, the question is once again, whether the Judge was entitled to reach the conclusion that he did, namely that the defendant was not in breach of duty in failing at least to provide Mr. Harris with the opportunity to wear ear protection in the cab when driving the noisier trains. On this point, I think the Judge arrived at a conclusion which cannot, in the event, be sustained. In this connection, it is only fair to record that the Judge was in a particular difficulty with regard to this issue. As he explained in paragraph 60, "by the end of the trial the question of ear protection had assumed an importance which had not been reflected in the pleadings or in the reports of the expert witnesses". I have already referred to the defects on the defendant's side, but it is right to add that, as the Judge pointed out in the same paragraph, "the advantages and disadvantages of ear protectors were not addressed in the main report of either expert, and were not addressed by Mr. Hill in writing at all".
60. Having said that, Mr. Hillier is, in my view, justified in making a number of criticisms of the Judge's reasons for reaching his conclusion on this issue. First, the Judge placed significant weight on evidence from non-expert witnesses of fact as to the alleged problems to which the use of ear protectors by employees in cabs might have given rise. He relied on the fact that Mr. Harris, in cross examination, and another driver Mr. Smart (in evidence in chief not included in his witness statement), were prepared to say that they would not have been, or at least thought they would not have been, able to hear certain warning sounds if they had worn ear protectors in the cab. This was no more than speculation on the part of two employees, who were in no way acoustic experts, and who had never used ear protectors in cabs, not least because they were forbidden from doing so. Furthermore, it must be pretty doubtful whether Mr. Harris's evidence on this point really helped the defendant, in light of his statement, which was unreservedly accepted by the Judge, that he would have worn ear protectors if he had been instructed or advised to do so.
61. In my view, therefore, it must be doubtful whether any weight could fairly be given to the evidence of such individuals who had no expertise and no experience on which to base their views. If any weight were to be given to their evidence, it could only be very slight. Yet, I think Mr. Hillier right to say that it is plain from what was said in paragraph 63 of his judgment that the Judge did "place considerable weight on this evidence".
62. Secondly, in the next paragraph of this judgment, paragraph 64, the Judge, after referring in general terms to the British Rail documentation from which I have quoted, made the point that the defendant did not overlook the possibility of providing drivers with ear protectors", and that therefore this was not "a case of a possible precaution being ignored". It is perfectly true that the defendant did not ignore the problem, but the fact that it was considered is scarcely enough to avoid liability. Indeed, the Judge appears to have accepted that, when he concluded his brief consideration of the documentary evidence with this observation:

"Given the seriousness with which the noise problem was dealt with over the years, I infer that the matter was considered with a sense of responsibility and that there appeared to be adequate reasons for not adopting the precaution."

63. With all respect to the Judge, I do not think that that will do. In the absence of any other explanation from a representative of the defendant, and subject, of course, to the expert evidence and literature, it seems to me that one has to draw such inferences as one fairly can from the British Rail documentary evidence dealing with its consideration of the matter.
64. When one considers that documentary evidence, and in particular the passages I have quoted from it, I am of the view that it indicates that the defendant did consider the matter in some detail, but either wholly overlooked the need or desirability of actually doing anything about it, or took the view that it would be easier for the defendant simply to do nothing and to take the risk of claims such as that which was ultimately brought by Mr. Harris in these proceedings. It was quite clear to the defendant, at least by 1980 that it was "knowingly exposing people to a situation which would make them deaf" at a meeting where the Chairman "stated he believed that it should be possible to reduce exposure to noise through the use of earplugs". Yet nothing was done about it. It is true that certain problems were identified at the same meeting, but it was after those problems were identified that the Chairman made that statement.
65. Furthermore, in so far as the problems were operational problems it appears to have been agreed that they would not arise (because detonators would be able to be heard). As to the problems based on resistance from individual employees to the use of earplugs, there were a number of answers. First, they were required to use earplugs in certain circumstances; secondly, disciplinary proceedings were apparently considered to be appropriate; thirdly, there was no reason whatever why earplugs could not be provided to those working in cabs with advice that they should be used without any requirement to that effect.
66. In other words, it seems to me that, as not infrequently happens in many areas of human activity, the defendant, having been aware of the problem and of the possible solution, either failed to translate words and thoughts into action, or took the view that to do so would be more trouble than it was worth, and that it would be better to run the risk of facing the possibility of future claims.
67. The Judge also relied on the literature, and I briefly have referred to the three papers which were before him. To my mind, they really do not take matters any further, not least because, they are, not unreasonably, expressed in pretty general terms. Inevitably, the problems of using ear protectors will depend on the precise nature of the ear protectors involved, the level and nature of the sound involved, and the nature of the job, including the types and importance of warning sounds.
68. However, what can be said about the literature is that it does give some, if limited support to Mr. Hill's evidence, which the Judge said "amounted to little more than unreasoned assertion, with the objection to ear protectors being cavalierly dismissed as 'myths'." In my judgment, the Judge was harsher than he should have been on Mr. Hill.
69. First, as already mentioned, until very shortly indeed before the hearing, Mr. Hill was unaware and reasonably unaware, that he would be giving evidence in a case where it was being alleged that the use of ear protectors by employees would be inconvenient or unacceptable. No allowance appears to have been made by the Judge for the fact that Mr. Hill was, somewhat unfairly from his point of view, having to give evidence virtually "on the hoof" on this issue. Secondly, although it is fair to say that the articles from which I have briefly quoted are not all one way on this issue, it is clear that many of the concerns about the use of ear protection can fairly be characterised as "myths". The point is reinforced by the fact that the Judge considered that Mr. Hill's view in this connection was undermined by the evidence of Mr. Harris and Mr. Smart, but it appears to me that, with all due respect, that observation involves pulling up his conclusion by its own boot straps. Given that Mr. Harris and Mr. Smart had no experience of using ear protection in the cab, their views on the point could equally well have been treated as being supportive of Mr. Hill's opinion that such views were "myths", as calling that opinion into question.
70. An appellate court should be slow to interfere with a conclusion of the trial Judge that the use of a particular precaution suggested by a claimant would not in fact have been appropriate, and all the more so when the decision is contained in a judgment prepared with such conspicuous care. However, in this case, it appears to me that, having written a faultless analysis of the facts and come to faultless conclusions on the first two issues, the Judge did go wrong on this issue. I reach this conclusion with perhaps more confidence that I would otherwise had been able to do because my principal ground is based on the defendant's own contemporaneous documents, which an appellate court is as well able to assess as the trial Judge.

Breach of Statutory Duty

71. The Noise at Work Regulations 1989 ("the 1989 Regulations") came into force on 1st January 1990, and, as the Judge pointed out, they "could therefore only apply to such part of the claimant's noise – induced hearing loss as was attributable to injury sustained between that date and 1999". In paragraph 2 of the 1989 Regulations, the expression "the first action level" and "the second action level" are defined as "daily personal noise exposure" of 85 dB(A) and 90 dB(A) respectively.
72. The relevant duties of an employer for present purposes, are set out in Paragraph 8 (i) and 11 of the 1989 Regulations, which are in the following terms:

"8 Ear protectors

(1) Every employer shall ensure, so far as practicable, that when any of his employees is likely to be exposed to the first action level or above in circumstances where the daily noise exposure of that employee is likely to be less than 90d(B)(A), that employee is provided, at his request, with suitable and efficient personal ear protectors…

11 Provision of information to employees

Every employer shall, in respect of any premises under his control, provide each of his employees who is likely to be exposed to the first action level or above… with adequate information, instruction and training on -

(a) the risk of damage to that employee's hearing that such exposure may cause;

(b) what steps the employee may take to minimise that risk;

(c) the steps that that employee must take in order to obtain the personal ear protectors referred to in regulation 8(1)…."

73. The case for Mr Harris is, as it was below, very simple. The defendant was in breach of its obligations under paragraph 11 of the 1989 Regulations because of its failure to provide Mr Harris with any, and therefore with "adequate", or indeed any, "information, instructions and training" on any of the three matters identified in sub paragraphs (a) to (c), at least so far as working in train cabs was concerned. In particular, there was a failure on the part of the defendant to give Mr Harris advice as to the risk of damage to his hearing as a result of his exposure "to the first action level or above", the appropriate steps being to use personal ear protectors, and what he could do in order to obtain such protectors. If he had been given that advice, runs the argument, Mr Harris would have asked for ear protectors (and that was accepted by the Judge, as I have mentioned), and accordingly there was a breach of paragraph 8 (1) because no such ear protectors were provided, and had they been provided, they would have been worn, and accordingly Mr Harris would not have suffered any deterioration in his hearing from January 1990.
74. In my judgment, there was, on this argument, a breach of the defendant's obligations under paragraph 11, but no direct breach under paragraph 8. A breach under paragraph 8 only arises where the employer fails to provide ear protectors after a "request from the employee", and no request was made by or on behalf of Mr Harris in the present case. However, that would not itself be enough to enable to defendant to avoid liability in this case, because the reason that there was no request, was because there was a breach of the defendant's duty under paragraph 11, in that no "adequate information, instruction (and training)" as required by that paragraph was given to Mr Harris. Had paragraph 11 been compiled with, so that he had received the "adequate information, instruction (and training)", then, as I have mentioned, he would have asked to be provided with ear protectors, to which he would have been entitled, at least provided it was "practicable", and therefore the breach would be established.
75. The Judge identified two grounds for rejecting Mr Harris's case on breach of statutory duty. The first, which does not, with respect, seem to me to be a good reason, even on the face of it, was that "the parties concentrated on the common law claim and gave less attention to the alternative claim which thus came to be dealt with almost as a footnote". That, of itself, is not enough to justify dismissing the claim for breach of statutory duty, any more than it is a reason for accepting it. Of course, given that the onus on a claimant to make out his case on breach of statutory duty, the fact that the issue has been dealt with cursorily, can be said to put his case more at risk than that of the defendant, because the overlooking of an issue is, albeit little more than on balance, more likely to result in a claim being dismissed than a claim being allowed.
76. The second, and more substantial reason the Judge dismissed Mr Harris's claim for breach of statutory duty rested on the qualification in paragraph 8 of the 1989 Regulations embodied in the word "so far as practicable". The Judge said this in paragraph 72 of his judgment:

"This raises the question, whether ear plugs or ear muffs could be used by a driver consistently with his safe operation of the train. The best which I can do on the evidence available is to conclude, on the basis of what was said both by the claimant and by Mr Smart, that this question must be answered in the negative."

77. At first sight, this conclusion is not an answer to the claim based on statutory duty, because, as I mentioned, there was, on the face of it, a plain breach of paragraph 11, rather than paragraph 8, of those regulations. However, on analysis, it seems to me to be a fair point in principle. Although the defendant's primary breach was of its duty under paragraph 11, a claim for damages can only succeed if Mr Harris can show that the breach did indeed result in some loss of hearing. His case is that such breach did lead to loss of hearing, because, had the defendant complied with its obligations under paragraph 11, he would have been properly informed, and accordingly he would have asked the defendant to supply him with ear protectors which he would have used. The defendant's answer to this is that there would have been no duty to provide him with ear protectors, because that duty could only have arisen under paragraph 8, and such a duty was not absolute, but was "so far as practicable", and that the Judge was right to conclude on the evidence that the provision of ear protectors was not "practicable". That line of reasoning appears to me to be right in principle; accordingly the central question is whether the Judge was right to conclude that the provision of ear protection was not "practicable".
78. In reaching that conclusion, the Judge appears pretty clearly to have been proceeding on the basis that it was not practicable for employees in cabs to wear ear protection because of the risk that they would not be able to hear warning sounds, including detonators and the like. His main reason for reaching that conclusion appears to have been the evidence that Mr Harris and Mr Smart gave, which as I have said, appears to me to be of very little, if any, value on this topic. Of far more significance, in my judgment, were the other factors to which I have already referred when discussing what the Judge characterised as the third issue on common law liability, namely the British Rail documents, the lack of any action at all by the defendant, Mr Hill's evidence, and the published papers.
79. As I have also explained, the strength of Mr Harris's case on this issue is reinforced by various factors. First, the onus is on the defendant to establish lack of practicability. Secondly, the defendant had not raised the issue of practicability on the pleadings, or, indeed, in any way until less a week from trial, so that Mr Hill's evidence must not be judged too rigorously. Thirdly, the Judge was satisfied that, had the defendant complied with paragraph 11 of the 1989 regulations, then, as Mr Harris would have asked to have been supplied with the ear protectors, the defendant would have been obliged to provide him with them.
80. Although it may involve covering substantially the same ground as that involved in the third question raised by the common law claim, I should briefly reconsider the evidence in relation to the claim based on breach of statutory duty. This is partly because it is a separate and distinct claim, and partly because I am disposed to come to a different conclusion from the Judge.
81. The evidence of Mr Hill indicated that there were no good reasons for not permitting, indeed encouraging, the use of ear protection in cabs. The only ground upon which the Judge criticised his evidence in relation to the provision of ear protectors was that he "cavalierly" dismissed the disadvantages as "myths". The Judge's first reason for this view was based on the Rice and Coles paper. So far as this identified disadvantages other than the risk of not hearing warning sounds, it seems to me to take matters no further. All those disadvantages related to discomfort and the like which individuals suspect they will feel if they wear ear protection: none of this would have applied to Mr Harris, because as the Judge accepted, he would have worn ear protectors. So far as the risk of not hearing warning sounds is concerned, one cannot, as Rice and Coles make clear, be dogmatic: each case turns on its own facts.
82. In the present case, it would be hard to criticise Mr Hill's dismissal of any problems in this connection, bearing in mind the contents of the defendant's (or, more accurately, British Rail's) own records. As I have indicated, these suggest that there should probably be no concern about ear protection preventing the wearer hearing warning and danger signals; they also suggest that disciplinary procedures could be imposed on those who refused to wear protectors in the cab. These records also refer to the compulsory use of ear protectors in the engine rooms, and leave open, indeed wholly fail to explain, why the defendant did nothing in the way of giving employees the option of using ear protectors in the cab, at least on an experimental basis. On the contrary, the defendant appears simply to have maintained an absolute ban on the use of ear protectors in cabs.
83. Not surprisingly, the Judge rejected Mr Harris's statutory duty claim on effectively the same ground as he dismissed the common law claim. It is therefore scarcely surprising that my conclusion that he should be reversed on the latter decision means that he should also be reversed on the former decision.

A further point on damages

84. Mr Leighton Williams rightly points out, even in light of the conclusions I have reached, namely that the defendant should be liable for breach both of its common law duty and of its statutory duty, it should not follow, as a matter of logic, that Mr. Harris should recover damages in respect of all the deafness he has suffered. Although the Judge concluded, and was plainly right to conclude, in the absence of any evidence to the contrary, that the impairment of hearing in respect of which Mr. Harris claimed was caused by his exposure to noise when employed by the defendant, he is only entitled to damages in respect of the damage caused by the exposure to noise in excess of a level of 85dB(A)leq. It is clear from the evidence that exposure to sound at a level lower than that carries with it some risk of impairment of hearing, albeit a lower risk than the approximately 7% risk in relation to exposure to noise between 85-90dB(A)leq.
85. In principle, it appears to me that is a perfectly fair point. The court has been frequently called upon to assess damages in circumstances where, on the balance of probabilities, damage to health during the course of employment has been caused by exposure to a risk, some of which exposure can be characterised as negligent and some of which cannot. Indeed, in relation to deafness caused by exposure to sound, part of which was negligent and part of which was not-negligent that issue was considered by Mustill J in Thompson –v- Smiths Shiprepairers (North Shields) Ltd [1984] QB 405. More recent discussion of this problem in this court may be found in Holtby v Brigham & Cowan (Hull) Ltd [2000] 3 All ER 421 (and see also Allen and others v British Rail Engineering Ltd [2001] EWCA Civ 242 and Whitfield v Rugby Joinery Ltd [2005] EWCA Civ 561).
86. However, it seems to me that the problem facing Mr. Leighton Williams's argument in this connection in the present case is that it was raised for the first time in this court. The case below was fought by both sides on what one might call an "all or nothing" basis, and, indeed, it was on that basis that the appeal notice, cross-appeal notice, and each parties' skeleton arguments were prepared. In those circumstances, I think it is simply too late for that problem to be raised. There was no evidence from either expert or from any other party upon which the Judge could have reached a sensible basis upon which he could have decided how to apportion the damages which should be awarded to Mr. Harris in light of his exposure to noise below 85dB(A)leq which was non-negligent, in addition to his exposure to noise above 85dB(A)leq, which would have been negligent.
87. In addition, if this point had been taken, it may be that Mr. Hillier would have been able to establish on the evidence that, had he been supplied with ear muffs, as he should have been, while working in the cabs, Mr. Harris would have used the ear protectors all the time, and not merely when he was exposed to what one might call the negligent level of sound, but also when he was being exposed to the non-negligent level.

Conclusion

88. In these circumstances, I would allow Mr. Harris's appeal and dismiss the defendant's cross-appeal. It follows that, in place of the present order dismissing the claim, I would substitute an award of damages of £10,000 in favour of Mr Harris.

Lord Justice Rix

89. I agree.