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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Hawksworth v Chief Constable of Staffordshire & Anor [2012] EWCA Civ 293 (16 February 2012) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2012/293.html Cite as: [2012] EWCA Civ 293

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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM STOKE ON TRENT COUNTY COURT
HIS HONOUR JUDGE MAIN QC

		Royal Courts of Justice Strand, London, WC2A 2LL
		16th February 2012

Lord Justice Tomlinson:

1. This appeal arises from the dismissal of the appellant's claim for injury sustained during the course of her employment by the respondents as a communications officer in the control room at Hanley Police Station in Staffordshire. The facts giving rise to her claim are not and never have been in dispute.
2. On 26 May 2005, just after 8.51 in the evening, the appellant was in radio communication with a police officer when a fire alarm sounded at the location from which the officer was speaking. The noise of that alarm was transmitted through the radio system to a single earpiece headset worn by the appellant, as a result of which it was accepted at trial that she developed right-sided tinnitus. Proceedings were issued on 19 May 2008. The matter proceeded to trial and was tried by HHJ Main QC sitting at the Telford County Court, and at the conclusion of a two day trial in January of 2011 the judge invited written closing submissions and reserved his judgment. By a reserved judgment, which although dated 17 February 2011 was in fact delivered on 24 March 2011, the judge dismissed the claim.
3. An application was made for permission to appeal on three grounds. Firstly, it was said that the judge had been incorrect to refuse an application at the outset of the trial to allow the claimant to adduce in evidence certain accident logs which were disclosed by the defendant police authority only very shortly before trial. The second ground of appeal, which is the only ground of appeal with which we are here concerned, was that the judge erred in allowing evidence concerning sound attenuation software to inform his findings, even though the defendants had not specifically stated in their pleading that they were relying upon this evidence. It was said that the claimant's expert, who was a Dr Holliday, had to the detriment of the claimant not commented on the software used, in consequence of his understanding as to the pleaded case.
4. The third ground was that the judge had erred in allowing certain test results to be adduced in evidence, the evidence as to which test results was given by a third party who was not in fact an expert in the proceedings: that was a Mr Lovell. The application for permission to appeal was considered on the papers by Dame Janet Smith and she refused permission to appeal. The application was renewed before Lewison LJ and he gave permission to appeal on ground 2 alone, which has therefore formed the only ground upon which we have heard argument this morning. In order to understand the point which is made by Mr Pratt on behalf of the appellant I must deal with the history of the pleadings and the evidence.
5. The Particulars of Claim allege that the claimant was in consequence of the incident to which I have referred exposed to a sound which was of sufficient intensity to give rise to a foreseeable risk of injury. It was alleged by the claimant at trial that the defendant was in breach of a number of regulations, including the Noise at Work Regulations 1989 and the Health and Safety at Work Regulations 1999, on the footing that it is alleged that the defendants failed to undertake appropriate and suitable safety assessments of the risks the claimant faced in using the equipment, failed to reduce the risk of damage to the hearing of the claimant to its lowest practicable level, and failed to ensure that she was given adequate safety information instruction and training. Furthermore, there was reliance upon regulations 4, 5 and 6 of the Provision of Use and Work Equipment Regulations 1992 and upon provisions of the Employer's Liability (Defective Equipment) Act 1969. Underlying all that, however, was a simple allegation of negligence on the part of the defendants in what the judge described as a broad-based attack along the lines that they negligently provided the claimant with unsafe equipment but failed to protect her against incidents of the sort which I have described and that they negligently permitted her to be exposed to such an increased pressure of sound that she was put at risk of suffering the injury which indeed she did.
6. The judge describes in his judgment that the appellant was employed to work in the defendants' control room and that that room accommodated some 30 to 40 control officer consoles or work stations at which communications officers, such as the appellant, worked. The respondent authority had an integrated communication control system to which the judge referred, as will I, as the ICCS. As the judge sets out at paragraph two of his judgment, through the ICCS the claimant had access to a host of information systems -- that is to say radio messaging to and from officers in the field, telephone communications, video communications and written or screen information of command and control. It was accepted at trial that the claimant had been suitably trained in the operation of that equipment. The use of the equipment depended in part upon the use by the appellant, as I will call her, of an audio headset; that was an earpiece which covered her right ear and was sometimes called the mono-aural unit. That headset comprised a speaker and a mouthpiece, which in turn was connected into an interface box which was located just beneath the operator's work console, which in turn was connected to what was known as an enhanced digital audio interface unit, to which the judge referred, as will I, as the EDAIU. That, in layman's terms, assimilated all the information coming into it, both transmission calls from officers in the field as well as other incoming calls.
7. The Particulars of Claim to which I have referred asserted that the claimant's injury had been caused in consequence of the negligence or breach of statutory duty of the defendants in a generalised manner. In particular, however, it was suggested -- although not explicitly -- that the equipment was simply insufficient to ensure that a noise of this intensity did not reach and injure her ear.
8. The defence originally pleaded in October 2008 on behalf of the defendants, between whom I need draw no distinction, alleged at paragraph 5:

"Without prejudice to the generality of the foregoing, it is averred that at the time of the incident about which the Claimant complains at paragraph 2 the Defendants operated an integrated telecommunications system known as the DS2000 in their control rooms including the control room at Hanley Police Station. The system was supplied by a market leading telecommunications company called Vivistar now called Sunguard Vivista who supplied similar systems to a number of police forces in England. The system had been installed approximately 12 months before the incident complained of. As part of that system an EDAIU amplifier box ensured that the maximum noise capable of being emitted by the headsets was 95dB. Therefore the maximum noise level that a control room operator including the Claimant could be exposed to was 95dB."

9. Pausing there, I should mention that in broad terms it was common ground at the trial that any noise reaching the appellant's ear which was in excess of 118 decibels -- usually rendered dB(a) -- would be outside acceptable limits. The pleading therefore to the effect that the maximum noise level that a control room operator, including the claimant, could be exposed was 95 decibels would obviously have been relevant to the matters to be debated at trial because if that case could be made out then it was not possible that a noise of intensity 118 decibels could have reached the claimant.
10. That pleading was, however, amended during the course of the proceedings on 26 February 2010. On that date the last two sentences of paragraph 5 were deleted, including therefore the allegation that the maximum noise level to which a control room operator could be exposed was 95 decibels, and those last two sentences were replaced by the following:

"This system that could operate both analogue and digital radio systems was set up between 4 November 2003 and 22 March 2004. As part of that system, radio operators were provided with personal headsets. In the Claimant's case this was a Clement Clarke TC 1 headset. This headset was fitted with an acoustic diode that limited the maximum output noise level to 115 dB(a), below the damage level for short term exposure, even on the Claimant's own expert evidence. For the avoidance of doubt the Defendant does not allege that the telecommunications system contained any internal noise limiter. Noise level protection was provided by the Claimant's headset as aforesaid."

11. It is immediately apparent to me that there was some ambiguity in this amended pleading. The amended pleading refers at the outset to this system which is, as I understand it, a reference to the entire ICCS, including therefore the EDAIU. It records that as part of that system radio operators were provided with a headset and it then goes on to describe the noise-limiting features which are contained within the headset. So far it might be thought that the headset is being regarded as part of the system and that what is being described is the noise-limiting arrangements inherent within the system; as it happens within the headset forming part of the system. But the penultimate sentence of the amended pleading reads:

"For the avoidance of doubt the Defendant does not allege that the telecommunications system contained any internal noise limiter."

12. That, to my mind, is potentially inconsistent with what had gone before, in that there had been a description of the internal noise limiter within the telecommunications system; that is to say that which was contained within the headset. It seems to me that one possible reading of this pleading is that the point that was sought to be made was that the communications control system, or possibly the enhanced digital audio interface unit as a self-standing piece of equipment, did not itself contain any internal noise limiter, but that the headset which was to be used by the appellant did contain such noise limitation capacity and that that was something that was separate from the system itself which was said not to have any internal noise limiter.
13. The difficulty which has arisen in the case in fact concerns not any reference to the internal noise limiter within the headset, nor yet to any internal noise limiter within the EDAIU part of the ICCS, but rather to the internal noise limiter software which, it transpired, was in fact installed within the radio handsets that were supplied to officers who were out fulfilling their duties in Staffordshire, one of whom made the call which gave rise to the injury to the appellant. And that arose in this way. In the course of the preparation of witness statements for the trial a witness statement was made on behalf of the defendants in June 2009 - that is to say before service of the amended pleading - by a Mr Lovell. He was employed by the Staffordshire police authority as head of technology services. In his witness statement he describes in very considerable detail the ICCS system and its attributes, and then at paragraph 14 of his witness statement he turns to the handsets supplied to the officers in the field and he says this:

"Staffordshire Police use the Sepura SRP2000 and SRP3500 radio handsets to transmit and receive on the Airwave radio services. This particular radio terminal has two software settings that are available in order to process the audio, the first of these is called Noise Cancellation Threshold (NCT). When the NCT parameter is set to the 'on' position, it operates when the terminal presents to the user any half duplex voice call. This setting will reduce the background noise so that transmitted speech can be heard clearly and the background noise is reduced. The second software setting is called the Voice Operated Gain Adjustable Device (VOGAD). This is a piece of software that automatically amplifies or attenuates a radio signal to achieve a constant output, a quiet signal will be amplified and a loud signal will be automatically attenuated. This software is operated on the microphone circuit and I can state that all of the Sepura SR2000 and SR3500 hand portable radios that Staffordshire Police operate have both the NCT and VOGAD software systems switched to 'on' setting in line with the manufacturer's recommendations."

14. Mr Lovell went on to deal in a later part of his statement with the first report that had been served upon the defendants by the claimant from her expert in these matters, a Dr Holliday. Dr Holliday is a consulting engineer whose specialist field is applied microwave and radio frequency physics including communications. His first report was made in 2008 and evidently by June 2009 had been served upon the defendants. At paragraph 12 of his report Dr Holliday said this:

"The transmission of the fire alarm sound via the radio would in all probability provide maximum volume throughout the transmission path. It would drive the transmitter to maximum volume and subsequently drive the receiver also to saturation. This would mean that the volume that Miss Hawksworth was subjected to was far higher than a bystander would experience. Bear in mind that fire alarms must be loud to be effective and so this sound with amplification and directly sent to the ear canal will be dangerously loud."

15. Mr Lovell in his witness statement joined issue with this conclusion at paragraph 18, saying this:

"I disagree with Mr Holliday's conclusion at paragraph 11 of his report [I interpose that that is obviously an error for paragraph 12 as is apparent from the content]. The system can only transmit at a differing level when the NCT and VOGAD settings operates, that is it will enhance the voice and lessen the background noise. To state that 'the fire alarm sound via the radio would in all probability provide maximum volume throughout the transmission path' appears at odds with the actual radio recording and the NCT and VOGAD settings. The male officer's voice can be heard very clearly against the background high pitched noise and therefore it appears to me that all noises in the transmission are being transmitted in line with the NCT and VOGAD settings. I also find the rest of paragraph 12 totally subjective with no evidential value."

16. I would just interpose to point out that Mr Lovell there refers to the fact that there existed a recording of the message which had been received by the claimant. This obviously was of considerable value at the trial, although as described in an expert report of Dr Nelson for the defendants, to which I will refer in due course, by using this recording alone it was not possible to determine in absolute terms the sound pressure level which had reached the appellant's ear during the noisy event, the sounding of the fire alarm.
17. Reverting to Mr Lovell's witness statement, it is quite apparent that what is there being relied upon is the fact that the handsets used by the officers out in the field contain the described sound attenuation software and, furthermore, that Mr Lovell was able to point to features of the radio recording of the message in question which demonstrated to his mind that the NCT and VOGAD software must have been both in place and operating as it was designed to do.
18. Chronologically, the next relevant event was that the pleading was amended in the manner I have described. I think it unlikely that any reasonable person could have formed the view on the basis of that amendment that the defendants were abandoning all reliance upon the circumstance that the officer's handset contained the sound attenuation software and its implication for the case. But the matter does not stop there. Dr Holliday responded to Mr Lovell's evidence in his second report which was made in May 2010. He was dismissive of Mr Lovell and his views, saying at paragraph 6.2 of his witness statement in response to paragraph 18 of Mr Lovell's witness statement:

"I am not sure if Mr Lovell has fully grasped the action of compression systems such as VOGAD in relation to the intelligibility of speech and noise. He also dismisses my para. 12 in total: this does in my opinion show a limited appreciation of electronic systems."

19. In August 2010 Dr Nelson, instructed by the defendants, put in his report, which is a substantial document. At the outset he summarises his views, and in particular he refutes the thesis which had been put forward by Dr Holliday without making any reference to the sound attenuation software in the officer's handset. He regarded the tests which Dr Holliday had conducted as being wholly unreliable and not in conformity with industry standards and, so far as Dr Nelson was concerned, he was not satisfied that the noise which could have reached the claimant could have been more than 109 decibels. However, for present purposes what is of particular relevance is that in the body of his report he turns to the evidence as to the sound attenuation software in the handsets. It is interesting to note that at page 50 of his report at the end of paragraph 3.36 he records that it is stated in the defendants' pleadings that the telecommunications system did not contain any internal noise limiter, but averred that noise level protection was provided by the claimant's headset. Only two or three pages further on, however, at paragraph 3.44 he proceeded to recite without comment Mr Lovell's evidence as to the presence of the NCT and VOGAD software systems in the handsets used by the officers, and it seems unlikely that Dr Nelson saw any inconsistency between that description and what was contained in the pleading. I do recognise that there is scope for confusion and misunderstanding so far as concerns references to systems headsets and handsets, and indeed I see that that confusion is perpetuated even in the appellant's grounds of appeal at paragraph 2 itself where it is alleged by way of complaint that the claimant's expert, to her detriment, did not comment on the software used to attenuate the sound through the headset, whereas in fact it is of course the software that attenuated the sound transmitted by the handset which is the matter of complaint.
20. But reverting to Dr Nelson's report, having set out what was said by Mr Lovell as to the nature of the software in the handsets, Dr Nelson then proceeded in the discussion part of his report to refer to the audio recording of the message in question to which I have already referred, and at paragraph 4.19 of his report he recounted how he had carried out a simple analysis of the digital recordings. He says this:

"The recordings are 16-bit uncompressed mono WAV files, recorded with a sample rate of 8 kHz; this recording format limits the upper limit of the frequency range to about 4 kHz, which is sufficient for recording telephone conversations. The fire alarm tone has a frequency of 2.8 kHz. The peaks of the waveform during all transmissions (whether by the caller or the Claimant) are at the same level, suggesting that the signal has been limited or heavily compressed. At the start of the 6 ½ second transmission, the alarm is sounding and the waveform peak is at its maximum level. When the caller starts to speak over the alarm, the level of the alarm drops, and the caller's voice then causes the maximum peaks in the waveform, at the same level as before. This suggests that an automatic level control is operating (and I note Mr Lovell's description of the NCT and VOGAD systems used in the Defendants' Airwave radio handsets)."

Dr Nelson was therefore, on the basis of his own analysis of the digital recordings, making precisely the point which Mr Lovell had made in paragraph 18 of his witness statement.

21. I should add that reading Dr Nelson's report as a whole it is a comprehensive rebuttal of Dr Holliday's case, of which the existence of sound attenuation software in the officer's handset is not an integral part. That notwithstanding, Dr Nelson did, as I have indicated, find that a characteristic of the digital recording of the conversation in question indicated that the sound attenuation software described by Mr Lovell must indeed have been present and operating as it should have done. It is at paragraph 4.21 that Dr Nelson explains why it is not possible from the recording to determine in absolute terms the sound pressure level at the claimant's ear during the noisy event with any accuracy because no reference signal of known sound pressure level is available to calibrate the recording. That is why it was necessary for the evidence at trial to range beyond the evidence of the recording itself.
22. The next relevant event was that the experts met and drew up a joint statement of agreement and disagreement. It is worthy of note only that at paragraph 3.1, at the fourth bullet point in that paragraph, it is recorded that:

"Dr Holliday will say that:

…It is stated by the Defendants that they do not allege that the telecommunications system contained any noise limiter. This allows the possibility that the headset could be supplied with the signal strong enough to exceed the recommended sound safe levels."

23. As to that, I would only note that it must by now have been apparent to Dr Holliday that, whatever the defendants' pleaded case might indicate, the fact was being relied upon that the handsets did contain noise-limiting software and, furthermore, that Dr Nelson had observed the characteristic of the audio recording which was consistent only with that software being in place and operating effectively.
24. The matter then went to trial. We do not have a transcript of the proceedings at trial, but Mr Ashley Pratt who appears for the appellant and who appeared before the judge below has drawn to our attention both his own opening skeleton argument prepared before the trial and the skeleton argument prepared by his opponent Mr Rankin, neither of which makes any reference to the sound attenuation software in the handsets.
25. That notwithstanding, it is apparent from the judge's judgment -- and indeed Mr Pratt has accepted -- that discussion of the existence and effect of that software played a prominent part at the trial. It seems that the evidence of Mr Lovell contained in his witness statement was led without objection, save only that Mr Pratt tells us -- and I of course entirely accept -- that he did suggest to the judge that the reference to the sound attenuation software in the handsets was irrelevant because of what was said at paragraph 5 of the amended defence.
26. But looking at the judge's judgment in an effort to obtain some picture of the shape of the trial in the absence of a transcript, it is, as I have said, apparent that the attenuation software in the handsets and its possible implications was a matter which must have been referred to on many occasions during the evidence and argument. Thus one finds, first of all in paragraph 21 of the judgment, a description by the judge of the officer's handset, including the description of the NCT and VOGAD systems, together with the telling remark by the judge at the end of paragraph 21 to the effect that there was no challenge to Mr Lovell's evidence that all these handsets were supplied with this equipment and that they would be in operation at the relevant time and that no rebuttal evidence had been called.
27. The judge records at paragraph 22 that the approach of the claimant had been scepticism as to whether there was any system of attenuation of the pressure of sound in operation:

"…whether through the operation of any diodes in the headset itself, or in any other software more distally in the handset such as NCT or VOGAD or if there was, they did not work."

Then again, in paragraph 24, in setting out the defendants' case the judge records that the defendants had been entirely dismissive of the claimant's case, and he continues:

"The tests performed by Dr Holliday are seriously flawed and prove nothing."

I should interpose to emphasise that this is a description of the defendants' case. He continues:

"The tests undertaken by the headset manufacturers show that this headset specifically is limited and sound wave pressure of over 118 db[A]rms passing into the earpiece would not be possible in any event. Moreover, they state that the sound pressure in any event will have been attenuated by either NCT or VOGAD -- this is well demonstrated by the recording itself by reason of the fact that the officer's voice could still be heard by the operator notwithstanding the fire alarm sound."

28. The judge returns to this theme in paragraph 28 of his judgment. At paragraph 28 he sets out a number of criticisms made by the defendants of the evidence given by Dr Holliday, and in particular the judge records at paragraph 28E the defendants' reliance upon the fact that nowhere in his reports does Dr Holliday recognise the effects of the software systems of NCT and of VOGAD, the very purpose of which was to attenuate the pressure of sound, and at 28F the judge records the defendants' reliance on the fact that Dr Nelson in his own analysis of the sound recordings had reached the conclusion that there was a characteristic which indicated that the NCT and VOGAD systems were in fact in operation. The judge returns to these points when making his own findings as to the reliability of Dr Holliday's evidence, which he found to be less than satisfactory. At paragraph 30b the judge records as criticism that Dr Holliday even when he was expressing his final opinions was still not taking into account the software attenuation systems which were available to the handset operator, and at paragraph 31 the judge gives as one reason for his preference of the evidence of Dr Nelson the fact that Dr Nelson was well aware of the sound attenuation software and its effect as well as the industry standard for the testing of such equipment. The judge refers again to the NCT and VOGAD systems at paragraph 33 of his judgment, to which I will revert a little later in my judgment.
29. I have referred to those passages in order to obtain some flavour of the debate which plainly occurred at trial, some further indication of which is to be derived from the closing submissions put in by both parties in response to the judge's indication. Mr Pratt relies upon the circumstance that in his own written closing submissions, at paragraph 19, he had said this:

"It is accepted that the only form of acoustic protection that the Claimant would have had was inbuilt within the headset, as per the statement of Phil Lovell paragraph 10 pg 43 of TB1 which states, 'It is important to note that all acoustic protection must be placed after the last point of amplification'."

30. Mr Pratt says that although perhaps he might have spelt it out a little more explicitly, he was intending thereby to refer to paragraph 5 of the amended points of defence and to remind the judge of his point that he had made earlier in the trial to the effect that any reliance upon any form of internal noise limiter other than in the headset in the shape of the acoustic diode must be regarded as irrelevant as falling outside the pleaded case.
31. The defendants, however, in their closing submissions referred expressly to the sound attenuation software in the handsets; thus we find in Mr Rankin's closing submission, at paragraph 29, this:

"On the balance of probability, the VOGAD and NCT software were both working -- as evidenced by Dr Nelson and Mr Lovell and conceded by Dr Holliday and by the absence of any expert or subjective evidence that the sound heard by the Claimant was distorted."

Then a little further on, in paragraph 31, where Mr Rankin is making his detailed criticisms of the evidence of Dr Holliday, he relies at paragraph 31h) third bullet point:

"His assertion that the VOGAD and NCT software may have been ineffective despite not having examined either component or requested examination facilities."

32. From those two passages in the closing submissions of Mr Rankin it is apparent, as Mr Pratt accepts, that in the course of cross-examination Dr Holliday had conceded that on the balance of probability the VOGAD and NCT software were in place and operating and that his only point in relation thereto had been his assertion that they may have been ineffective, an assertion which he made despite the fact that he had not examined either component or asked to be permitted to make an examination.
33. The judge, as I have indicated, circulated his judgment in draft on 17 February 2011, from which it was obviously apparent to the appellant or to her advisors that the judge had placed considerable reliance upon the sound attenuation software in the handsets.
34. On the 7 March 2011, before the judge had delivered his judgment, the appellant's solicitor, Mr Jones, made a very substantial witness statement. The witness statement itself is some thirteen or fourteen pages in length, and then has annexed to it another seventy-odd pages of materials upon which Mr Jones sought to rely.
35. The bulk of the witness statement of Mr Jones is irrelevant for present purposes, although I note that it contains a comprehensive attempt to reopen points that the judge had already ruled upon, concerning the late disclosure by the defendants and the ability of the claimant to rely upon it at trial.
36. Mr Jones also goes on to deal with a very great number of other points, including what he says are points in respect of which clarification was sought. I should add by way of background that Mr Jones had been one of the solicitors involved in the case of English v Emery Reimold & Strick Ltd [2002] EWCA Civ 605, a case in which this court had given guidance as to the duty upon advocates to raise with the judge any points of concern arising out of a judgment distributed in draft before formal handing down. Mr Jones apologised for making representations to the court in what he described as the terminal stage of the litigation, and apologised if the court felt that some or all of the points were points which were inappropriate now to be raised. However, at paragraph 15.1 Mr Jones says this:

"The Court has come to place apparently heavy reliance upon NCT and VOGAD systems (see, for example, paragraphs 21, 22, 24, 28e, 28f and 33 of the Draft Judgment). It is respectfully suggested that the court may have overlooked the Defendants expressly pleaded case 'For the avoidance of doubt, the Defendant does not allege that the telecommunication system contained any internal noise limiter. Noise level protection was provided by the Claimant's headset as aforesaid'. This was of course the line of defence which the Claimant expected to deal with at Trial."

The judge was evidently unimpressed by that, or at any event he did not consider that any further clarification was required, because on 24 March 2011 he proceeded to hand down his judgment in (so far as I can judge) the same form as it had appeared in draft.

37. On that occasion the judge also dealt with an application for leave to appeal on the basis of the three grounds to which I have already referred. Dealing with ground 2, which is the ground with which we are now concerned, the judge said this:

"Ground 2 relies on an assertion that the sound attenuation software relied on by the defendants is irrelevant – self-evidently it had significant importance, even though it was largely ignored by the Claimant's expert."

38. In his skeleton argument prepared for the purpose of this appeal Mr Pratt says:

"It is submitted that the trial judge erred in allowing evidence to be used at trial concerning the sound attenuating software, as the appellant did not have specific notice of the fact and as such did not receive a fair trial in accordance with CPR 1.11 and 2. Had the appellant's nominated expert had been put on notice to pass comment upon the sound attenuation software could have, it is submitted, have a material effect on the outcome of the case." [sic]

39. Mr Pratt has, as I have indicated, told us that he made clear to the judge at the outset, or when it first became relevant, his objection that the evidence concerning the sound attenuation software was irrelevant. He said that he thought that the judge had taken that point on board, and furthermore he said that paragraph 19 of his written closing submissions was written with that point expressly in mind and that his approach therefore throughout was that the defendants' pleading simply did not permit the judge to place any reliance upon anything that was said concerning the sound attenuation software. Mr Pratt considered that it was sufficient to make it clear to the judge that the evidence being deployed by the defendant on that score was irrelevant as falling outside the confines of the pleaded case.
40. Some guidance as to how counsel should react in circumstances of this sort was given by Lawton LJ in this court in Rolled Steel Products Holdings Limited v British Steel Corportation & Others [1986] 1 (Ch) at page 246, in a passage which is to be found at pages 309 to 310. Lawton LJ said this:

"Page 309f. I wish however to add a comment about the pleading points which have had to be considered in this appeal. From the way they were raised by counsel and dealt with by the trial judge, I was left with the impression that neither the judge nor defending counsel appreciated as fully as they should have done the need for precision and expedition when dealing with pleading points.

My recent experience in this court shows that some counsel and judges are not giving pleadings the attention which they should. Pleadings are formal documents which have to be prepared at the beginning of litigation, they are essential for the fair trial of an action and the saving of time at trial. The saving of time keeps down the costs of litigation. A plaintiff is entitled to know what defences he has to meet and the defendant what claims are being made against him. If the parties do not know, unnecessary evidence may be got together and led or, even worse, necessary evidence may not be led.

Pleadings regulate what questions may be asked of witnesses in cross-examination. When counsel raises an objection to a question or a line of questioning, as Mr Morritt did on a number of occasions, the trial judge should rule on it at once. He should not regard the objection as a critical commentary on what the other side is doing. If the judge does not rule, counsel should ask him to do so. If a line of questioning is stopped because it does not relate to an issue on the pleadings, counsel should at once consider whether his pleadings should be amended. If he decides that they should, he should forthwith apply for an amendment and should specify precisely what he wants and the judge should at once give a ruling on the application. The principles upon which amendments should be allowed are well known and are set out in the current edition of the Supreme Court practice."

41. From that passage in the judgment of Lawton LJ it is apparent that the approach taken by Mr Pratt at the trial was simply insufficient. If Mr Pratt was concerned that the defendants were adducing evidence and seeking to rely upon it in a manner which departed from their pleaded case, it was plain that it was incumbent upon him to invite the judge to rule upon his objection. Had that course been taken, then it would have been incumbent upon Mr Rankin in turn to apply for an amendment to the pleadings if that was thought necessary. I have to say for my own part that I am very doubtful whether the judge would in fact have upheld Mr Pratt's objection or acquired an amendment to the pleadings. I have already referred to the form of the defence which is not a model of clarity, but from which it is certainly possible in my judgment to deduce that the point that was being made by the defendants was that the EDAIU, or the fixed parts of the integrated communication control system, did not contain any internal noise limiter and that did not prevent them from pointing out that there were other pieces of noise limitation equipment inherent both in the headset -- to which specific reference was made in paragraph 5 of the pleading -- and in the handset, about which evidence was given by Mr Lovell and which formed a very significant part of the debate at trial. I doubt therefore whether the objection would have been successful, but, even so, if the line which Mr Pratt wished to take on behalf of the appellant was that this evidence should not be permitted or that its giving was prejudicial, he should have insisted on the judge making a ruling on it. Had that been done, and had the judge been prepared to accede to the application, there would have been an opportunity for Dr Holliday to test the sound attenuation software, if he thought that necessary.
42. That being the case, it seems to me that the objection which Mr Pratt has put forward which forms the sole ground of appeal is really unsustainable, because it is simply too late to complain of the course taken at trial. Mr Pratt had the opportunity at trial to deal with it and he failed to take it. However, as I have indicated, I very much doubt if Mr Pratt's objection would have been upheld at the trial. The evidence concerning the second attenuation software was plainly in play.
43. I would however go a little further. In order to succeed in her claim the claimant had to prove that the sound that reached her headset from the police officer's handset was sufficient to give rise to a foreseeable risk of injury which, as I have indicated in the context of this case, meant that she had to prove that she was exposed to a sound in excess of 118 decibels. The manner in which the appellant sought to prove that essential part of her case was essentially by reliance upon the expert evidence of Dr Holliday. The judge rejected Dr Holliday's evidence more or less in its entirety, and the judge records at paragraph 32 that the only area where he had any measure of concern as to the reliability of the defendants' evidence was over the practical operation of the diodes as a current limiter in the claimant's headpiece. But the judge records his conclusion in paragraph 32 that he found that there was:

"…no getting away from the fact that whilst Dr Holliday was extremely sceptical about the working efficiency of any diode current limiters, this headset had been specifically tested twice in 2006 and 2011, with its diodes in location and within the circuit, and it was found to work properly and to limit the input sound waves. As the Claimant bears the onus of establishing a malfunction, I cannot be satisfied, notwithstanding my misgivings as I have set them out above that she has discharged it."

44. Pausing there, that, as I understand it, is a freestanding conclusion of the judge to the effect that the evidence of Dr Holliday had simply been insufficient to satisfy him that the claimant could make good that essential part of her case. It is true that the judge goes on to say, in a perhaps slightly inelegantly expressed paragraph 33:

"Notwithstanding the above and in any event, I still find myself satisfied, because of the operation of the NCT and VOGAD systems, that there was appropriate sound attenuation protection to the wearer of this headset."

45. I still read paragraph 32 as a freestanding conclusion which was not informed by the evidence concerning the NCT and VOGAD systems. Mr Pratt has suggested that had the judge completely removed from his consideration the evidence which he had heard about the NCT and VOGAD systems then he might have reached more favourable view as to the reliability of Dr Holliday's evidence as a whole. That seems to me, with respect to Mr Pratt, to be a somewhat fanciful submission. It is plain that the judge regarded Dr Holliday as a wholly unreliable witness, whereas he regarded the evidence given by Dr Nelson as soundly based and evidence upon which he could have complete confidence.
46. It seems to me therefore that, quite irrespective of the part played by the evidence to which Mr Pratt objects, the judge has reached an independent conclusion, which was in any event fatal to the claimant's claim.
47. For all these reasons therefore I would dismiss this appeal.

Lord Justice Toulson:

48. I agree. In view of the history of the service of witness statements and experts' reports which Tomlinson LJ has detailed, in my view any attempt by Mr Pratt at trial to have prevented the defendants from relying on the evidence of Mr Lovell and Dr Nelson about the VOGAD and NCT software on the grounds that this was some form of ambush would have been hopeless. Whether the judge would have required a clarification of the defendant's pleadings is another matter, but I am quite certain that he would not have prevented the evidence from being given; therefore I do not think that Mr Pratt has done his clients any harm by not making an application which would have been doomed to failure.
49. For the reasons given by Tomlinson LJ I agree that this appeal should be dismissed.

The Chancellor:

50. I agree with both my Lords that this appeal should be dismissed for the reasons they have each given.

Order: Appeal dismissed