A female claimant, aged 46, told an Appeal court that she suffered “acoustic shock” and tinnitus as a result of builders using excessively noisy drills at her next door neighbour’s house. The judge ruled that damages would not be awarded as the next door neighbour defendant could “not foresee” that the noise made by the builders would cause the claimant such a traumatic injury.
The building contractors were removing a chimney breast located at a party wall in adjoining properties shared between both the claimant and the defendant. The claimant described the two sudden bursts of very loud noise - reaching up to 101 decibels and well above the statutory 85 decibel level – were “like a jet engine”. Each blast lasted for about ten seconds, which caused her “head to spin to the side to face the opposite wall”, which resulted in a loss of hearing for about an hour each time.
The persistence of ‘hearing’ a ringing noise in her ears led to a diagnosis of tinnitus and a claim for post-traumatic disorder.
Tinnitus could not be “objectively” measured
The court heard that the claimant had received a significant head injury caused by a motorcycle accident eight years earlier. While the claimant was found to suffer from some hearing loss and experienced tinnitus which could not be “objectively” measured, “on the balance of probabilities” the causes of these problems pre-dated the noise caused by the builders using drills to remove the chimneybreast.
The Judge emphasised that “it is not enough to show that an act by an individual has actually caused injury to a second person”, i.e. the claimant, and that there must have been a “reasonable foreseeability of injury occurring as a result of that act”.
Evidence was accepted by an acoustics expert, who said that that the maximum noise level, which could have resulted from the use of power tools, would not have exceeded 101 dB – well below the 135 to 137 dB level at which peak noise becomes unacceptable under the Control of Noise at Work Regulations 2005.
The judge concluded that there was “no foreseeability of injury from the work being carried out” and the claim was dismissed.