Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION
	[2013] CSOH 164
PD1860/12	OPINION OF LORD DOHERTY in the cause THOMAS DOYLE Pursuer; against THE ADVOCATE GENERAL FOR SCOTLAND Defender: ________________

Pursuer: Christine; Thompsons

Defender: Olson; Morton Fraser WS

16 October 2013

Introduction

[1] The pursuer was born on 12 August 1953. He was employed by the Ministry of Defence as a police officer between 1985 and his retirement in March 2012. He achieved the rank of sergeant. His duties required him to be proficient in the use of firearms. He claims to have suffered noise induced hearing loss as a result of exposure to high peak level noise from gunfire. The relevant exposure is said to have occurred during shoots between July 2007 and his retirement, when he and colleagues were firing Heckler and Koch MP7 carbine rifles. He seeks damages from the defender. I heard the proof, which took place over a period of four days.

[2] It is common ground that, without ear protection, the firer of an MP7 rifle would be exposed to a peak sound pressure of 164dB(C); that such exposure would exceed the statutory peak exposure limit value of 140dB(C) (Control of Noise at Work Regulations 2005, reg. 4(3)(b)); and that exposure which exceeds the exposure limit value is liable to cause damage to hearing.

[3] Parties were also at one that between July 2007 and about 2010 the pursuer was provided with conventional ear muffs/defenders and ear plugs; and that both ear plugs and ear defenders were to be worn ("double plugging") on shoots using MP7s. From about 2010 active ear defenders were provided for such shoots. These had radio receivers enabling radio communication to and from the wearer. The pursuer's recollection was that double plugging was optional when active ear defenders were worn; but that, in any event, he always double plugged. The defender maintains that double plugging was mandatory with active ear defenders as it had been with conventional ear defenders.

[4] The pursuer's case is that during shoots the ear defenders regularly became dislodged causing him to be exposed to excessive noise; that dislodgement occurred because the short length of the MP7 meant that a head position close to the butt of the weapon and the pursuer's shoulder had to be adopted in order for him to see through the sight, causing the ear defenders to come into contact with the butt; and that, especially in prone and kneeling firing positions, his body armour tended to be pushed up dislodging the ear defenders. The pursuer maintains that as a result he was regularly exposed to noise levels in excess of the 140dB(C) exposure limit value causing him to suffer noise induced hearing loss.

The evidence
The pursuer's case
The pursuer

[5] The pursuer spoke to firing an MP7 on qualification shoots and development shoots between July 2007 and his retirement. Each year he took part in three or four shoots. Each shoot lasted about an hour. He and colleagues fired MP7s in relatively close proximity to each other. Between 1997 and about 2010 he wore conventional ear muffs. From about 2010 he was provided with active ear defenders. These had the facility for interactive radio communication. Double plugging was mandatory when conventional defenders were used. He believed that it had been optional with active ear defenders, but he had always double plugged. He had worn ear defenders over his spectacles. During shoots the ear defenders regularly became dislodged causing him to be exposed to excessive noise. Dislodgement had occurred because the short length of the MP7 meant that a head position close to the butt of the weapon and his shoulder had to be adopted in order to see through the sight. Ear defenders had come into contact with the butt and had been dislodged. In addition, particularly in prone and kneeling firing positions, the pursuer's bulky body armour had tended to rise up and dislodge the ear defenders. When defenders were dislodged he could be exposed to the noise of his own shooting and the noise of others shooting. The active ear defenders were a snugger fit than the conventional ear defenders and were less easily dislodged, but there were instances when they too had been dislodged. On occasions when he had realised this had occurred he had readjusted them. On one occasion he recalled not being able to, and having to put up his hand to stop the shoot. During timed qualification shoots his concentration had often been more focussed on firing within the time allowed. Sometimes he was unaware of dislodgement until he fired. Dislodgement happened regularly. Colleagues experienced the same problems. He knew that the purpose of the ear defenders and plugs was to protect his hearing from being damaged. He assumed that the reason for using ear plugs was that they would provide protection in the event of accidental dislodgement of the ear defenders.

[6] The pursuer spoke to having had audiometric tests at work on 29 August 2007, 22 September 2009 and 26 November 2009. He attended Monklands Hospital on 8 December 2009. On that occasion suction clearance was performed on both ears after which audiometric testing was carried out. In around 2009 he had begun to notice difficulties hearing conversation where there was background noise. His wife began to complain that he had the volume on the television turned up too loud. He had occasional whistling, ringing and other sounds in his ears. These problems had continued to date. The biggest problem was focussing on speech where there was background noise. There had been times he had had to leave bars and restaurants because he could not cope with background noise.

[7] In cross-examination it was put to the pursuer that both Mr Bowdler and Professor Browning had noted him as saying that he had not double plugged when using active ear defenders. The pursuer indicated that he had double plugged; for whatever reason these witnesses must have been confused or misunderstood him.

Mrs Patricia Doyle

[8] The pursuer's wife spoke to their moving home in 2008. Sometime after that she noticed that the pursuer had begun to turn the volume on the television up too loud. She confirmed he complained to her of hearing whining or whistling noises. He appeared to have difficulty hearing where there was background noise, and on several occasions he had had to leave busy places because he could not cope with the noise.

Graham Ball

[9] Mr Ball was a work colleague of the pursuer. He spoke to double plugging being required with the MP7. The requirement continued when active ear defenders were introduced - use of double plugging was not optional. He wore spectacles. The ear defenders sat on top of the spectacle legs - there was therefore a slight break in the seal. Body armour was worn during shoots. It was very rigid, stiff and uncomfortable especially when moving or changing positions. His ear defenders were often partially dislodged during shoots through coming into contact with the rifle butt or his body armour. When he became aware this had happened he had quickly readjusted them and carried on.

Alan Ferguson

[10] Mr Ferguson had also worked alongside the pursuer. His recollection was that when the MP7 was first introduced double plugging might have been optional, but that very soon after that it became mandatory. He had double plugged. He had experienced ear defenders becoming dislodged as a result of contact with his rifle butt and contact with his body armour. Because of its rigidity the armour tended to move up towards the ears especially when moving to a kneeling or prone position. If he realised it had happened he readjusted the defenders, but on occasions he hadn't realised until he had fired a shot. Sometimes, when he was under pressure on timed shoots, he would finish the shooting exposure and adjust the defenders when he stood up.

Richard Bowdler

[11] Mr Bowdler is an acoustic consultant. Without ear protection the peak instantaneous noise level (or peak sound pressure) which the firer of an MP7 would be exposed to was 164dB(C-weighted). With ear defenders worn properly, but no ear plugs, he would expect that exposure level to be reduced to 144dB(C). Where only ear plugs were providing protection (where defenders were not worn or were dislodged) he would expect the peak exposure level to be 144dB(C). That was 4dB in excess of the peak exposure limit value set by the Control of Noise at Work Regulations 2005. Where there was dual protection - ear plugs and ear defenders were worn properly - the exposure level would be reduced from 164dB(C) by about 32 or 33dB. Where spectacles were worn the protection provided by ear defenders was reduced by about 3dB. The performance of muffs and plugs in actual use was poorer than performance in laboratory conditions. Mr Bowdler had not been provided with details or specifications of the earplugs or defenders which the pursuer had actually worn. However he was familiar with the normal specifications of such equipment used by police forces and had used that as the basis for his calculations. He had not actually met the pursuer. He had spoken to him by telephone. He had understood the pursuer's position to be that between about 2010 and 2012 he had worn special radio muffs and no plugs.

Professor George Browning

[12] Professor Browning was Professor of Otolaryngology at the University of Glasgow until 1998. He is currently a Professor of Otolaryngology at the MRC Institute of Hearing Research in Glasgow. He edits an international periodical on otolaryngology. In addition to his research he continues a medico-legal practice, seeing persons with suspected hearing loss.

[13] Professor Browning examined the pursuer and prepared reports. Audiometric testing on him was carried out at the MRC Institute of Hearing Research on 12 January 2012. In addition to these results Professor Browning also had the results of the three audiograms performed at work (on 28 September 2007, 22 October 2009 and 26 November 2009) and the results of an audiogram carried out at Monklands Hospital on 8 December 2009. The pursuer had given him his work history. Professor Browning had understood the pursuer to say that he had not worn ear plugs when wearing active defenders. He recalled the pursuer telling him that there were at least two occasions when his noise exposure with ear muffs displaced caused temporary dulling of his hearing (temporary threshold shift) which recovered after a few minutes. Professor Browning opined that this indicated that the levels of noise were sufficiently traumatic to damage his hearing. (When told in cross-examination that the pursuer had not mentioned this in evidence Professor Browning queried whether he had been asked about it. His experience was that it was not uncommon for people who had suffered temporary threshold shift not to mention it spontaneously). The pursuer's four frequency average ("4FA") over 0.5, 1, 2 and 4 kHz was compared with normal population values by reference to MRC tables published in Adrian Davis,"Hearing in Adults". The most relevant tables were those on p.799 for the right ear and p.793 for the left ear. The 4FA was the best, and the medically recognised, means of assessing disability. It was the one used by clinicians. The three frequency average ("3FA") (over 1, 2 and 3KHz) was not the medically recognised means of measuring disability, nor was it the one used by clinicians in practice. Rather, it was the method of assessing disability which insurers preferred to use in order to settle claims. It was less likely to detect disability. It could understate hearing loss. The 4FA gave a much better spread for the frequencies which were useful for hearing speech. Using the 4FA there was less chance of underestimating disability than there was using the 3FA. In 2007 the pursuer's 4FA was on the best 5^th - 10^th percentile of the non-noise exposed population for his age and sex (in the top 5 per cent for the left ear and the top 5-10 per cent for the right ear). By 2012 his hearing had deteriorated to between the 50^th and 75^th percentile of the non-noise exposed population for his age and sex. The deterioration was much greater than would normally be expected to have occurred because of ageing. In 2007 the pursuer's high frequency average (HFA) over 4, 6 and 8 KHz in 2007 was between the best 5^th and 10^th percentile for the right ear and was on the 20^th percentile for the left ear. In 2012 his HFA was between the 25^th and 50^th percentile in each ear. Whereas in the 2007 audiogram there was no evidence of a notch with recovery at the higher frequencies, in the 2012 audiogram there was a notch with recovery above 6Hz in the left ear and a notch at 3 KHz with recovery at 4 and 6 KHz in the right ear. While the notches were not diagnostic of noise exposure they were consistent with the hearing loss having been caused by noise exposure. Exposure to levels of noise in excess of 140dB(C) could cause such damage. Having regard to the pursuer's history and the whole circumstances Professor Browning's opinion was that such noise exposure between 2007 and 2012 was likely to have damaged the pursuer's hearing and to have caused the deterioration to have been as marked as it was. The pursuer's symptoms of having difficulty hearing where there was background noise, and requiring to have the volume on the television turned up, were consistent with the MRC audiogram. He now had mild high frequency hearing loss. He had hearing difficulties which he would not have had but for the noise exposure. He had had extremely good hearing before. He now occupied a poor position towards the bottom of the spectrum of those classed as having normal hearing for their age. He was now likely to require a hearing aid as his hearing further deteriorated with age. But for damage caused by the noise exposure it was unlikely he would have needed one. Generally speaking, in the absence of other causes, Professor Browning expected people to remain in roughly the same hearing loss percentile as they aged. In any event, the pursuer's hearing loss between 2007 and 2012 had been atypical. The natural (ageing) progression of hearing loss of the generality of those in the 5^th -10^th percentile would be a modest deterioration between the ages of 54 and 58. In the vast majority of cases in clinical practice where results such as the pursuer's were apparent, and there was a relevant history of noise exposure, noise exposure would be regarded as providing the likely explanation. It was much less likely to be attributable solely to the effects of ageing.

The defender's case
Mr Brian O'Reilly

[14] Mr O'Reilly is a consultant ENT surgeon at Gartnavel Hospital and a consultant neuro-otologist at the Institute of Neurological Sciences at the Southern General Hospital. He examined the pursuer on behalf of the defenders on 19 December 2012. A colleague carried out audiometry tests at that time. Those tests showed slightly less hearing impairment on 3FA than was found on testing on 12 January 2012. He found the pursuer to have normal hearing in the low and middle frequencies, and very slight high tone sensorineural hearing loss at 4 KHz, slightly worse in the left ear than in the right ear. While the ear could hear at frequencies up to about 8 KHz, the more important frequencies for speech and understanding were 1, 2 and 3 KHz. He accepted that frequencies above that are useful and contribute towards some aspects of speech understanding. For example, they are associated with consonant sounds which give structure to words. Nonetheless, he maintained that 1, 2 and 3 KHz were the frequencies most critical to the understanding of speech and to the assessment of hearing impairment. Those were the frequencies he found of most assistance in clinical practice. He accepted that normally audiometric testing was of 1, 2, 4 and 8 KHz. He suggested that was a throwback to the way testing methods had developed. He agreed with Professor Browning's evidence that notches were detectable in the pursuer's case and that this was consistent with hearing loss having been caused by noise exposure: but per se it was not diagnostic of that aetiology. The MRC tables in Davis showed hearing loss for different age groups. From them one could obtain a general picture of how hearing loss affected an age group as compared with another age group. It was fair to say that they provided general evidence of the natural rate of deterioration in hearing with age. However, it was not possible to use them to predict how a particular individual's hearing would deteriorate with age. Professor Browning's view that people generally remained in the same percentile as they aged was an attractive hypothesis, but no more than that. So far as Mr O'Reilly was aware there was no scientific evidence which supported it, and his experience of the deterioration in his own hearing with age ran counter to it. Even with the sensorineural hearing loss the audiograms demonstrated, the pursuer remained within the normal range for hearing loss. Indeed, on the basis of the test results of 19 December 2012 he was still in the better half of the normal range. It was a very mild deficit. It was not a significant hearing loss.

Submissions for the pursuer

[15] Mr Christine submitted that I should accept the evidence of the pursuer as being credible and reliable. There was substantial support for it in the evidence of his wife, Mr Ball and Mr Ferguson. On the basis of Mr Bowdler's evidence I should find that the noise the firer of an MP7 would have been be exposed to in the absence of protection was 164dB(C); that wearing ear plugs would have reduced that to 144dB(C); and that with ear plugs and defenders worn properly it would have been further reduced to about 132dB(C). The pursuer wore ear plugs and ear defenders but the defenders were often dislodged. Accordingly he had been exposed regularly to noise in excess of 140dB(C). The defender had been in breach of reg. 5(1) of the Personal Protective Equipment Regulations 1992 and also of reg. 6(4)(a) of the Control of Noise at Work Regulations 2005.

[16] Both medical experts accepted that exposure to noise in excess of 140dB(C) was liable to damage hearing. Mr O'Reilly accepted that the audiograms were consistent with impairment having been caused by noise exposure. In 2007 the pursuer had had excellent hearing. Yet on testing in 2009 and 2012 he had suffered rapid hearing loss. In the circumstances disclosed in the evidence this could not be dismissed as nothing more than the effects of ageing. That would be to ignore the facts that the pursuer previously had very good hearing; that he had moved from one of the top percentiles to near the bottom of the normal range for his age; that during the period the deterioration occurred he was exposed to excessive noise levels; and that his hearing loss was consistent with having been caused by that exposure to noise.

[17] Mr Christine suggested, under reference to the Judicial College Guidelines (11^th ed.) for "(d) Partial Hearing Loss and/or Tinnitus" subheadings (iv) and(v), that an appropriate award for solatium would be £6,000. He attributed half that sum to the past.

Submissions for the defender

[18] Mr Olson submitted that the defender should be assoilzied, failing which there should be a very substantial finding of contributory negligence.

[19] Mr Olson maintained that I should find the pursuer's evidence that he double plugged to be credible and reliable, notwithstanding the suggestions in the reports prepared by Professor Browning and Mr Bowden that he had not used ear plugs with active defenders.

[20] He further submitted that, on the basis of Mr Bowdler's evidence, I should not be satisfied that the pursuer was exposed to noise in excess of 140dB(C). He suggested that it had not been demonstrated that the ear plugs the pursuer wore provided inadequate protection at times when his ear defenders were dislodged.

[21] He argued - faintly - that, even if the pursuer did establish exposure to noise in excess of 140dB(C), a breach of reg. 6(4)(a) of the Personal Protective Equipment Regulations 1992 had not been established. He suggested that the word "or" where it occurred at the end of that reg. 6(4)(b) was disjunctive rather than conjunctive.

[22] Ultimately, however, I understood Mr Olson to concede that if the pursuer did establish exposure to noise in excess of 140dB(C) the defender would have been in breach of both of the regulations Mr Christine founded upon: but he claimed that in failing to report the incidents of dislodgement the pursuer had been in breach of the statutory duty incumbent upon him in terms of reg. 8(2)(b) of the Control of Noise at Work Regulations 2005, and in breach of his common law duty to take reasonable care for his own safety. Under reference to George McEwan v Lothian Buses Plc [2006] CSOH 56 and Winn-Pope v ES Access Platforms Ltd 2012 SLT 929 he went so far as to suggest that any breach by the defender of his statutory duties had occurred solely because of these breaches by the pursuer; and that for that reason the pursuer's breaches ought to provide a complete defence to liability. His fall-back position was that there should be a very substantial finding of contributory negligence.

[23] Further, Mr Olson contended that the pursuer had not established that his hearing loss was caused by exposure to noise. Mr O'Reilly's opinion should be preferred to Professor Browning's. There was nothing in the medical literature to support Professor Browning's assertion that as people aged they tended to remain in the same hearing ability percentile. I should find that the pursuer's hearing loss was not significant, and that it was attributable to ageing rather than to noise exposure.

[24] If, contrary to his submissions, the pursuer succeeded in establishing liability and causation, an appropriate award for solatium (on a full liability basis) would be less than the award in Rooney (£4,470 when updated for inflation). The hearing loss there had been more severe. The award should be within sub-heading (v) of the Judicial College Guidelines for "Partial Hearing Loss and/or Tinnitus" (ie "Slight hearing loss without tinnitus or slight tinnitus without hearing loss - up to £5,000"). One-quarter of the award should be allocated to the past and three-quarters to the future.

Discussion
Liability

[25] The pursuer gave his evidence with moderation and care. I believe that his account in the witness box does accord with his recollection of events, and I accept his evidence as being credible and reliable in all material respects. I find very substantial support for him in the evidence of Mr Ball and Mr Ferguson. I do not ignore the fact that in discussions with the pursuer Professor Browning and Mr Bowdler had obtained the impression that he had not worn ear plugs when wearing active ear defenders: but I accept the pursuer's evidence that he did in fact wear ear plugs on such occasions. Indeed, in his submissions Mr Olson did not challenge the credibility and reliability of the pursuer's evidence in that regard.

[26] I find it established that the pursuer's ear defenders did regularly become dislodged when on shoots using the MP7; and that on some occasions this happened when his ear defenders came into contact with the rifle butt, and on some occasions this happened when his body armour moved up and came into contact with the ear defenders.

[27] Mr Bowdler's expertise in the field of acoustics was unchallenged, and I accept that he is qualified to give skilled opinion evidence on the measurement and assessment of noise levels that people are likely to have been exposed to. I accept his evidence. On the basis of his evidence I am satisfied that when the pursuer's ear defenders were dislodged (wholly or partially) the pursuer was likely to have been exposed to peak noise levels of the order of 144dB(C). I reject the criticisms of Mr Bowdler's evidence made by Mr Olson. Mr Bowdler did not accept that when the pursuer's ear defenders were dislodged his ear plugs would still provide him with sufficient protection to prevent the 140dB(C) exposure limit value being exceeded. Further, in my opinion it ill behoves the defender to criticise Mr Bowdler because he did not have the actual specifications of the ear plugs and ear defenders worn by the pursuer. Mr Bowdler was very familiar with the normal specifications of such equipment used by police forces and had used them as the basis for his calculations. In my opinion, in the circumstances of this case, that was a wholly reasonable basis upon which to proceed. If the defender wished to challenge that basis, and put forward a different one reliant on the actual specification of the ear plugs worn, he had ample opportunity to do so. He did not avail himself of that opportunity.

[28] Mr Christine submitted that on the evidence I should hold that the defender had been in breach of reg. 5(1) of the Personal Protective Equipment Regulations 1992 and of reg. 6(4)(a) of the Control of Noise at Work Regulations 2005.

[29] Reg. 5(1) of the 1992 Regulations provides:

"5.- Compatibility of personal protective equipment

(1) Every employer shall ensure that where the presence of more than one risk to health or safety makes it necessary for his employee to wear or use simultaneously more than one item of personal protective equipment, such equipment is compatible and continues to be effective against the risk or risks in question."

[30] On the basis of the evidence of the pursuer, Mr Ball, Mr Ferguson and Mr Bowdler I have no difficulty in finding that at the material times the defender was in breach of this regulation. It is clear that body armour worn by the pursuer and his colleagues tended to rise up and dislodge ear defenders worn by them. The pursuer's body armour and the ear defenders were personal protective equipment. On the occasions when they came into contact and his ear defenders were dislodged the ear defenders did not continue to be effective against the risk of exposure to excessive noise levels.

[31 Reg. 6(4) of the 2005 regulations provides:

"6.- Elimination or control of exposure to noise at the workplace

...

(4) The employer shall-

(a) ensure that his employees are not exposed to noise above an exposure limit value; or

(b) if an exposure limit value is exceeded forthwith-

(i) reduce exposure to noise to below the exposure limit value;

(ii) identify the reason for that exposure limit value being exceeded; and

(iii) modify the organisational and technical measures taken in accordance with paragraphs (1) and (2) and regulations 7 and 8(1) to prevent it being exceeded again."

[32] The pursuer was exposed to noise above the peak sound pressure 140dB(C-weighted) exposure limit value (reg. 4(3)(b)). It follows that at the material times the defender was in breach of reg. 6(4)(a).

[33] I did not understand Mr Olson to insist on his initial argument that the word "or" at the end of reg. 6(4) (a) was disjunctive rather than conjunctive. He was wise not to.

[34] Reg. 6(4) implements Article 7 of Directive 2003/10/EC of the European Parliament and of the Council of 6 February 2003. Art. 7 is in the following terms:

"Article 7

Limitation of exposure

1. Under no circumstances shall the exposure of the worker

as determined in accordance with Article 3(2) exceed the exposure

limit values.

2. If, despite the measures taken to implement this Directive,

exposures above the exposure limit values are detected, the

employer shall:

(a) take immediate action to reduce the exposure to below the

exposure limit values;

(b) identify the reasons why overexposure has occurred; and

(c) amend the protection and prevention measures in order to

avoid any recurrence."

Art. 3(2) provides for a peak exposure limit value of 140dB(C). Reg. 6(4)(a) gives effect to Art. 7.1 and reg. 6(4)(b) gives effect to Art. 7.2. It is plain that neither of the obligations set out in Art. 7.1 and Art 7.2 of the Directive is optional. Construing reg. 6(4) in the way Mr Olsen had suggested would have the result that it did not properly implement the Directive. Since the purpose of the regulation was to implement Art. 7, the suggested construction cannot be correct.

[35] I turn then to Mr Olson's argument that the pursuer was in breach of reg. 8(2)(b) of the Control of Noise at Work Regulations 2005, and in breach of his common law duty to take reasonable care for his own safety; and that these breaches were the sole effective cause of the pursuer's exposure to excessive noise (failing which, that they were a substantial contributory factor to any hearing loss which he suffered, and that damages ought to be reduced accordingly).

[36] Reg. 8 of the 2005 Regulations states:

"8.- Maintenance and use of equipment

(1) The employer shall-

(a) ensure so far as is practicable that anything provided by him in compliance with his duties under these Regulations to or for the benefit of an employee, other than personal hearing protectors provided under regulation 7(1), is fully and properly used; and

(b) ensure that anything provided by him in compliance with his duties under these Regulations is maintained in an efficient state, in efficient working order and in good repair.

(2) Every employee shall-

(a) make full and proper use of personal hearing protectors provided to him by his employer in compliance with regulation 7(2) and of any other control measures provided by his employer in compliance with his duties under these Regulations; and

(b) if he discovers any defect in any personal hearing protectors or other control measures as specified in sub-paragraph (a) report it to his employer as soon as is practicable."

[37] I accept (i) that the pursuer was aware that exposure to excessive levels of noise might damage his hearing and that was why ear protection required to be worn; and (ii) that the pursuer did not report the problems with dislodgement to his employers. I recognise that in failing to do so the pursuer was indeed in breach of the duty incumbent upon him in terms of reg. 8(2) and in breach of his common law duty to take reasonable care for his own safety. I also accept that those breaches made more than a negligible contribution to his exposure to excessive noise. However, the case is not, for example, one where it can be said that the defender was placed in breach of statutory obligations imposing absolute liability solely because of the pursuer's fault. The pursuer's fault was not completely coterminous with the statutory breaches founded on by him. Nor can it be said that his failure to report the problems was an act of gross folly. He was aware of the instruction to double plug, and complied with it; but he assumed that one of the reasons ear plugs were worn was to provide protection in the event of dislodgement of ear defenders. It is plain from the evidence of the pursuer, Mr Ball and Mr Ferguson that dislodgement was a regular occurrence: yet they all seemed to simply accept that it was part and parcel of a shoot, and none of them appears to have considered it necessary or appropriate to report the matter to a superior. In my opinion the pursuer's omission to report the problems was not the most substantial cause of his exposure, nor was it highly blameworthy. Much more responsibility lies with the defender. In the circumstances a finding of contributory negligence of 25 per cent appears to me to be just.

Causation and diagnosis

[38] Both Professor Browning and Mr O'Reilly agreed that exposure to noise above 140dB(C) could result in damage to hearing. Both agreed that on testing there was evidence of the pursuer having suffered hearing loss between 2007 and 2012. Both agreed that the pattern of his hearing loss was consistent with it being noise-induced. Both agreed that the hearing loss which the pursuer had suffered was relatively mild. Professor Browning attributed most of the pursuer's hearing loss in that period to damage caused by noise exposure. Mr O'Reilly was not prepared to accept that diagnosis. In his view the hearing loss was consistent with its having been caused by ageing.

[39] I accept Professor Browning's evidence that the 4FA is more useful in detecting disability in this case than the 3FA. I understood Mr O'Reilly to accept that the 4FA was indeed more widely used in clinical practice than the 3FA. An illustration of its use in clinical practice is the pursuer's audiogram at Monklands Hospital. I also note that while Mr O'Reilly's view was that the most useful three frequencies for hearing speech were 1, 2 and 3 KHz, he accepted that 4KHz was useful for a number of aspects of hearing speech.

[40] The audiogram carried out on 29 August 2007 (when the pursuer was aged 54) showed that at that time he had exceptionally good hearing. The 4FA hearing loss in each ear was only 4dB. That placed him in the top 5 per cent. of his year group for the left ear and the top 5-10 per cent. for the right ear .

[41] By the time of his audiogram at Monklands Hospital on 8 December 2009 the pursuer was aged 56. He had been carrying out MP7 shoots for just over two years. His 4FA hearing loss was 15dB in the right ear and 14dB in the left ear, an average hearing loss of 14.5dB. That placed him in the 50^th -75^th percentile of his year group.

[42] The results of the MRC audiogram on 12 January 2012 showed his 4FA hearing loss to be 18dB in the right ear and 16dB in the left ear, and average hearing loss of 17dB. That placed him in 50^th to 75^th percentile of his year group. He was then aged 58 and had been engaged in MP7 shoots for over 4 years.

[43] The audiogram of 19 December 2012 carried out on Mr O'Reilly's instructions showed the pursuer's 4FA hearing loss to be 11dB in the right ear and 14dB in the left ear, an average hearing loss of 12.5dB. If accurate, that would have placed him in the 25^th -50^th percentile of his year group. He was then aged 59.

[44] Both Professor Browning and Mr O'Reilly accepted that it was possible there was a degree of test variability. Both accepted that a more reliable picture might be obtained from looking at more than one test result. The results of 19 December 2012 (12.5dBHL) appear to me to be out of kilter with the results of the audiograms of 8 December 2009 (14.5DBHL) and 12 January 2012 (17dBHL). That inclines me to treat the audiogram of 12 January 2012 as a more reliable indication of the pursuer's hearing loss than the audiogram of 19 December 2012. (Even if the latest audiogram is not discarded, an averaging of all three results would give an average hearing loss of 15dB).

[45] The critical issue is whether exposure to excessive noise was a material cause of the pursuer's hearing loss. On this issue I found Professor Browning's evidence to be more persuasive and compelling than Mr O'Reilly's.

[46] Mr O'Reilly emphasised (i) that the pursuer's hearing loss was in the normal range for his age, and therefore it was unremarkable; (ii) that looking at the test results, and making allowance for test variability, the deterioration was not significant; and (iii) that ageing ought not to be ruled out as a possible cause of the pursuer's hearing loss.

[47] In the circumstances of the present case the fact that the pursuer's hearing loss could be described as remaining within the normal range appeared to me to be neither decisive, nor particularly illuminating. The normal range is very wide - covering all those between the 5^th and the 95^th percentiles. A person may suffer a significant hearing loss yet still remain within those parameters.

[48] I do not accept that the deterioration between 2007 and 2012 can be explained by test variability. Nor do I consider it can be dismissed as insignificant. On the evidence which I accept, between the ages of 54 and 58 the pursuer moved from the 5^th - 10^th percentile to the 50^th -75^th percentile. Ageing was a possible cause of the hearing loss: but on the evidence it can reasonably be concluded that deterioration of the extent and rapidity noted would, at the very least, have been out of the ordinary.

[49] The pursuer had had exceptionally good hearing when tested very shortly before the use of the MP7 began. It had deteriorated very markedly during the period when he was engaged in MP7 shoots. The pattern of hearing loss was consistent with it being noise induced. While I agree with Mr O'Reilly that the MRC Tables do not provide a good basis for asserting that a particular individual will remain in the same hearing loss percentile (within their age cohort) as he ages, it was common ground (and I accept) that the Tables do provide some indication of the natural progression of age-related hearing loss within the general population. I accept Professor Browning's evidence that the rapid hearing loss which the pursuer suffered was marked, and atypical, and cried out for examination of the possible causes. I agree with him that the history of the pursuer's exposure to excessive noise provides the most obvious, and the most likely, explanation for the marked and rapid deterioration in his hearing. I am satisfied on the balance of probabilities that the pursuer's exposure to excessive noise made a material contribution to that deterioration. I arrive at that conclusion without placing any reliance on the unchallenged evidence from Professor Browning that the pursuer reported suffering temporary threshold shifts on at least two occasions when ear defenders had become dislodged, and that this indicated that on those occasions the levels of noise were sufficiently traumatic to potentially damage his hearing. It is, of course, unfortunate (and rather unsatisfactory) that the pursuer was not asked about this when he gave evidence. For that reason it would not be right to attach great weight to it: but it does provide a further adminicle of evidence which tends to support Professor Browning's diagnosis.

[50] I am satisfied that the pursuer has suffered noise induced hearing loss as a result of his exposure to excessive noise levels caused by the firing of MP7 rifles.

Damages

[51] Between the ages of 54 and 58 the pursuer suffered a 4FA hearing loss of the order of 15-17dB averaged over both ears. Some allowance has to be made for the hearing loss the pursuer would have suffered by age 58 even if he had not been exposed to excessive noise levels. By age 58 such persons in the 5^th -10^th percentile have average hearing loss of between 4 and 6 dB in the right ear and between 5 and 7 dB in the left ear: for present purposes I shall take that to represent an average hearing loss over both ears of about 5.5dB. For quantification purposes I proceed on the basis that the remainder of the pursuer's hearing loss is attributable to his exposure to excessive noise levels.

[52] The pursuer has mild sensorineural hearing loss. His major difficulty is with conversation when there is background noise, but he also has difficulty with his hearing in other situations. He requires, eg, to have the television turned up to a volume which those with better hearing regard as too loud. I am not satisfied that his symptoms of tinnitus are out of the ordinary, or that they are attributable to his exposure to excessive noise.

[53] While the hearing loss attributable to noise exposure is mild, its effects will become more significant as the pursuer experiences further natural deterioration in his hearing as he grows older. He is now likely to need a hearing aid in the future; but for the noise damage he would have been unlikely to require one.

[54] In the circumstances I assess solatium at £5,000. I consider that the case falls at the very top of category (d) (v) of the Judicial College Guidelines. I do not accept that solatium ought to be less that the figure discussed in Rooney, once allowance is made for inflation. While the average hearing loss attributable to noise exposure appears to have been higher there, Mrs Rooney also had significant hearing loss which was attributable to congenital factors. Unlike the pursuer here, she did not start from a position of excellent hearing. Even if she had not been exposed to excessive noise it seems she could not have expected to enjoy relatively good hearing for the remainder of her life. The pursuer is now 60 years of age. He has already suffered hearing loss for several years. That hearing loss is likely to have increasing effects as the pursuer's hearing continues to deteriorate naturally with age. I attribute forty per cent. of the award to the past. I shall allow interest thereon at the rate of 4 per cent. per annum from 1 January 2009 to the date of decree. Damages fall to be reduced by 25% because of the pursuer's contributory fault.

Disposal

[55] I shall pronounce decree for payment by the defender to the pursuer of the sum of £4,038. I shall reserve meantime all questions of expenses.