The estate of a man who suffered hearing loss as a result of his work on steam trains in the 1960s has won one of the first industrial deafness claims of its kind.
His Honour Judge Butler recorded that neither he nor counsel had been able to find a single claim for damages brought by a locomotive fireman – as John Wignall had been – or driver in the 143 years in which steam trains were used for passengers services, from 1825 to 1968, or the 40 or so years after, although there were a couple of similar cases brought in recent times.
Mr Wignall issued proceedings on 31 May 2012, some 46 years after he had last worked as a fireman on the footplate of a steam locomotive. He sued BRB (Residuary) Limited, the body formed after privatisation to handle claims against the now long-defunct nationalised British Rail.
That body has itself now ceased to exist and its responsibilities have been taken over by the Secretary of State for Transport.
Mr Wignall died on 20 May 2014 at the age of 72, from causes unrelated to his hearing loss. He worked as a fireman from 1957 to 1963 and then intermittently until 1968. The judge recorded: “The specific allegation was of exposure to the noise of steam engines with specific particulars given about how he had to ‘shout’ to communicate with colleagues standing more than two feet from him during his shifts of notional eight hours per day five days per week but often allegedly lasting 12 hours…
“The deceased alleged that he had been exposed to excessive noise without provision of personal hearing protection, BR having failed properly or at all to commission or carry out any or any adequate noise surveys and having failed to provide him with suitable and sufficient information or instruction or training in respect of the risk that his hearing might be damaged by exposure to noise.
“He alleged that BR knew or ought to have known that exposure to excessive noise could cause deafness, having regard to the nature of his employment with them.”
BR’s defence was that work on steam locomotives was “not known to be excessively noisy and such measures were not necessary” and in any event that the “use of hearing protection on the footplate would have been unsafe”.
All of the issues in such cases were live. HHJ Butler ruled that Mr Wignall’s date of knowledge for limitation purposes was probably late 2009 or early 2010, and so within three years prior to the commencement of proceedings, while BR’s date of “guilty knowledge or awareness” for the purposes of liability was late 1961 or early 1962.
He said there was ample evidence that BR was not only constructively but actually aware of the risks to the hearing of employees by October 1961 or at the very latest December 1961.
He quoted a letter from the regional medical officer for BR Eastern Region that said the doctor was “satisfied that there is an urgent need for hearing protection for those members of the locomotive staff required to enter the engine compartment of… diesel locomotives”.
Allowing for a “short period of grace to take the steps that in my judgment could and should have been taken”, the earliest date on or from which liability could arise in the claim was mid-1962.
The judge found that the breach of duty had been proved from mid-1962 and that Mr Wignall had suffered noise-induced hearing loss partly attributable to his employment with BR.
In terms of damages, HHJ Butler put the starting point at £10,000 – a sum which “would have been reasonable had I been awarding damages to a living male claimant with a normal life expectancy who had suffered and would for many more years have continued to suffer the effects of NIHL and who would have required two digital hearing aids which he would not otherwise have required”.
A “substantial discount is plainly appropriate” given that Mr Wignall had passed away, which he set at 40%, making an award of general damages for pain, suffering and loss of amenity of £6,000.
This became only £476.18 after apportionment, plus costs, with the judge order payment on account of costs of £10,000.