Indigo Sun fails in bid to avoid paying worker from Inverness £240k
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TANNING salon bosses who were ordered to pay a worker £241,277 after she contracted tinnitus have failed to overturn the damages award.
Haesel McDonald (24) was forced to quit a promising dance career after she sustained serious hearing loss while working at Indigo Sun in Dundee’s Strathmartine Road.
Her ears were permanently damaged after a fire alarm at the premises started ringing on December 12, 2015 and her managers were unable to turn the device off.
Bosses at the shop told Ms McDonald to stay at her post and she was scared she would lose her job if she didn’t follow their order.
Meanwhile, managers could only stop the ringing noise by applying tape to the device which only muffled the piercing sound.
The alarm started ringing when she started her shift at 8.50am and continued to sound until 12.55pm.
Doctors told Ms McDonald, of Inverness, her hearing was permanently damaged and she would have to use hearing aids for the rest of her life.
The standard NHS models keep slipping out of her ears and the nature of her job require her to buy models which cost around £3999 and need to be replaced every three years.
This prompted Ms McDonald to instruct lawyers to raise an action against Indigo Sun Retail Limited at the All Scotland Sheriff Personal Injury Court in Edinburgh.
They argued that Haesel was entitled to compensation from the firm.
In a written judgement published last year, Sheriff John Mundy agreed with submissions made by Ms McDonald’s lawyers concluding the firm didn’t do enough to protect her hearing.
This prompted lawyers for the firm to go to the Sheriff Appeal Court in Edinburgh to argue that Sheriff Mundy didn’t properly apply the law in the case.
They argued that the decision should be overturned.
However, in a judgment issued at the court today, Sheriff Principal Mhairi Stephen QC upheld the decision made by her colleague.
She wrote: “We are satisfied that the sheriff fulfilled his function to assess what was fair and reasonable compensation given Ms McDonald's age, loss and circumstances leading to an award of damages which can be justified on the material available to him.
“The appeal has been refused on all grounds advanced by the appellant who shall be liable to the respondent in expenses of the appeal as taxed. The appeal merits sanction for the employment of counsel.”
Sheriff Mundy’s judgement tells of how Ms McDonald was studying contemporary dance at Dundee and Angus College at the time of the incident.
Her job at the tanning salon involved serving customers, cleaning and banking the takings.
Sheriff Mundy said Ms McDonald described the noise of the ringing as being “excessively loud” and was “painful to her ears”.
After around five to 10 minutes of it going off, she phoned her manager Steven Campbell looking for help.
She made it clear how loud the noise was and Sheriff Mundy said it would have been apparent to Mr Campbell that Ms McDonald was distressed.
But Mr Campbell told her to stay at her post and she was afraid she would lose her job if she left the shop.
The court heard the noise continued for another two hours until Mr Campbell arrived and put tape over two alarms in the shop.
He said that an engineer would be coming to turn the alarm off and that she should stay in the shop.
However, the alarm kept ringing and the sound was only muffled.
Doctors later found that Ms McDonald had suffered permanent hearing damage. The medics also concluded that her hearing would deteriorate with age.
Sheriff Mundy said that in all the circumstances, the firm should pay a total of £241,277.
