Fernando v Bilton

SIR DAVID KEENE: This is a renewed application for permission to appeal from a decision of His Honour Judge Hand, sitting at the Central London County Court, by which decision he dismissed a claim by the present applicant, Ms Fernando, who has appeared this morning on her own behalf. Permission to appeal was refused on the papers by Laws LJ.

The claim that Ms Fernando brought was for damages resulting from the claimant's exposure to noise. The parties to this litigation occupied adjoining properties in north London. The defendant below, Mr Bilton, together with his wife, had engaged a building contractor to do certain work to their property, including the removal of a chimneybreast. That chimneybreast was located on a party wall shared with Ms Fernando. Her case was that on 19 November 2009 there were two sudden bursts of very loud noise, each lasting for about ten seconds, described by her as being like a jet engine, causing her to lose her hearing for about an hour or maybe more each time. When her hearing returned she was aware of a ringing sensation in her ears. When that persisted she sought medical advice and in March 2010 she was diagnosed with tinnitus. She also said that she suffered post-traumatic stress disorder, hence the claim which she brought.

Single joint experts were appointed by the parties, one medical and one to deal with acoustic issues. There was a dispute about whether power tools had been used in the removal of the chimneybreast, but the judge concluded that issue in the applicant's favour: he concluded that power tools had been used.

The claim was brought on grounds of negligence, nuisance and breach of statutory duty. The last of those was dismissed by the judge on legal grounds, in my view rightly so, and I take no more time on it. The medical evidence from Dr Yeoh, the joint expert, recorded that Ms Fernando had a previous history of significant head injury resulting from a motorcycle accident in 1981. He found that she did suffer from tinnitus, although he observed that it was a subjective condition which could not be objectively measured. He noted some hearing loss but concluded that, on the balance of probabilities, the applicant had pre-existing hearing loss (ie before the removal of the chimneybreast), a loss due to several factors including the head injury and the ageing process. He associated the tinnitus with the hearing loss, quoting a study which had found evidence that whatever factors caused hearing loss probably caused tinnitus too. But his evidence, I have to say, was somewhat confused, because he also took the view that it was likely that the tinnitus would not have developed without the events of 10 November. He seems to have left the issue at the end of the exercise very much to the acoustics expert to determine whether that had happened.

It is to be noted that Dr Yeoh did not give evidence in person because he had, he said, been advised to withdraw from all existing cases, and so he never commented on the acoustic evidence. The judge consequently described the medical evidence as being incomplete.

When the judge dealt with the claims in negligence and nuisance, he properly emphasised the importance of the question of foreseeability of injury. By that, he was emphasising that it is not enough to show that an act by A has actually caused injury to B (in this case clearly the claimant), but that there must have been a reasonable foreseeability of injury occurring as a result of that act.

On that issue, he accepted the evidence of the joint acoustics expert, Mr Jarman, that the maximum noise level that could have resulted from the use of power tools would not have exceeded 101 dB. That, he noted, is a long way below the level at which peak noise becomes unacceptable under the Control of Noise at Work Regulations 2005. That level would be around 135 to 137 dB. As a result of that, the judge concluded that there was no foreseeability of injury from the work being carried out and he dismissed her claim with costs. He does not seem to have determined the causation issue in any clear fashion.

Ms Fernando now seeks permission to appeal. She needs a small extension of time to do that, but I would grant that if I concluded that she had a good appeal on the merits. She was only slightly out of time.

She challenges the judge's decision, and inevitably that has to be on the foreseeability of injury. She refers, amongst other things, to the Party Wall etc Act 1996, which requires notice to be served if works are to be carried out to a party wall. She has returned to that in her oral submissions this morning. She records that there is no doubt that the defendant was actually advised in advance to give her some warning.

The trouble with that argument is that it has nothing directly to do with the issue of foreseeability of injury. The Party Wall etc Act does not have as its purpose in that particular provision anything to do with personal injury. As the applicant accepts in her skeleton argument, failure to give notice under the Act gives rise to no remedy. Ms Fernando also refers to other reasons why she should have been warned in advance of the work. I can well see that it may be, as a matter of courtesy and prudence between neighbours, such a warning would have been a good idea, but it cannot make an injury foreseeable if it was not otherwise foreseeable.

On that, the judge accepted the evidence of the joint acoustics expert, Mr Jarman, that the peak noise possible from these works with a power drill was well below the maximum permitted level under the 2005 Regulations. Those Regulations, I accept, do not apply as such to the position of the applicant, but they do give good guidance as to acceptable noise levels, and, in my judgment, the judge below was entitled to use them as a guide.

This morning Ms Fernando has been emphasising that there was a drill being used and that the respondent below had been resisting that. That unfortunately does not get her anywhere, because the judge found that there was a drill, and indeed the evidence then proceeded on that basis. (When I say the evidence, I mean in particular the acoustics expert.) She has submitted that there must have been a foreign object in the hearth; something, in other words, beyond just the brickwork of which the hearth was principally composed. The difficulty with that submission is that the acoustics evidence effectively took account of that. I look at paragraph 50 of the judgment and the judge says this towards the end of it:

So there the evidence is actually reflecting the possibility of some foreign object of that kind being present.

In all those circumstances, I can see no way in which the judge's finding on foreseeability could be overturned by this court. That is fundamental. Even if fresh evidence on the medical side were adduced to show that the noise did in fact cause the applicant to suffer from tinnitus, that would not be enough. Causation is one thing, foreseeability is another, and it was principally on the foreseeability issue that Ms Fernando lost.

In those circumstances, I have no alternative but to dismiss this renewed application.