UK: NIHL - Is The Tide Turning?

Neil Miller, Associate in the Manchester Disease team at Clyde & Co, reports on this recent NIHL de minimis success which is a significant decision for insurers who continue to face an unprecedented surge in deafness claims. Marian Holloway v Tyne Thames Technology Ltd, Newcastle County Court, May 2015.

Summary

HHJ Freedman sitting at Newcastle County Court accepted the Defendant's argument that whilst the Claimant had noise induced hearing loss (NIHL) her injury was de minimis and did not make her appreciably worse off. Despite finding that the Defendant had been in breach of common law duties the Claimant's claim was dismissed.

Facts

HHJ Freedman found the Defendant was in breach of its common law duty of care during the entire period of the Claimant's employment from 1993 to 2006.

Both medical experts, Professor Homer for the Claimant and Professor Lutman for the Defendant, agreed the Claimant's audiogram satisfied the audiological criteria for the diagnosis of Noise Induced Hearing Loss. Excessive noise exposure was found and coupled with the medical experts' views, HHJ Freedman was satisfied the Claimant had sustained NIHL as a result of her employment with the Defendant.

The main and ultimately only issue in dispute between the parties related to whether the Claimant's disability should sound in damages or fall within the maxim de minimis non curat lex. HHJ Freedman accepted the relevant legal test to determine whether the Claimant's injury was de minimis was addressed in Johnston v NEI International plc i.e. a Claimant must show they are appreciably worse off as a consequence of an injury.

The medical experts disagreed on two key points (1) quantification of the noise loss and (2) whether the Claimant noticed her additional noise loss at 4 kHz.

With regard to quantification, Professor Homer stated the Claimant had either a 6 dB (binaural 1, 2, 3 kHz average) or 9 dB (binaural 1, 2, 4 kHz average) noise loss, by using statistics for age 60 from the Modified ISO 7029 (1984) tables. Professor Lutman contended the noise loss to be 1.3 dB (binaural 1, 2, 3 kHz average) using age 70 (nb Claimant age 68 yrs 5 months at time of examination) and did not consider this loss to be significant or have a material affect on the Claimant. If Professor Lutman's approach was preferred by the Court, Professor Homer agreed the Claimant's loss over 1, 2, 3 kHz would not be noticeably different over those frequencies. HHJ Freedman was persuaded by Professor Lutman's evidence on this point.

In his judgment the circuit judge also stated he was not satisfied that even a noise loss of 3 dB was an appreciable loss.

In relation to the additional loss at 4 kHz, but for the noise exposure, the judge accepted the Claimant would have had a 30 dB loss in each ear, but noted she had a 40 and 45 dB loss in the right and left ears respectively. Essentially Professor Homer contended this loss was sufficient to show a measurable loss. Professor Lutman did not agree; whilst she may notice the loss it would be on such a rare occasions he could not accept that she was materially affected. Professor Lutman's evidence was again preferred on this point.

Points for defendants

This judgment (hot off the press and presently unreported) coupled with the case of Hughes v Rhondda Cynon Taff County Borough Council, (June 2012), indicates an increasing trend that Courts are prepared to accept low level noise induced hearing loss can be classed as de minimis. Hitherto it has been the mind-set for many Claimants that all they have to prove is that there has been an additional hearing loss (albeit minimal) attributable to noise exposure to succeed.

In this case the Claimant did not place reliance upon Parkes v Meridien plc. It was the Defendant's case that this decision could not survive the House of Lords judgment in Johnston handed down subsequently.

Insurers continue to be plagued by swathes of NIHL claims and so far there has been little comfort from the judiciary for insurers and defendants. This decision is significant and may just suggest that the tide is starting to turn in cases where there is minimal NIHL.

Claimant solicitors and insurers alike should take note. Claimants should not expect an easy ride and pay out and insurers should carefully consider each claim on its own merits and should not shy away from challenging low level loss claims, even when there has been negligence/breach.

This decision encourages a more considered approach to those firms responsible for vast numbers of these claims so that we may see less litigation for low level loss. The principles successfully applied by the Defendant in this case could be equally argued in other types of cases where the level of injury in the context of unrelated comorbidities may give rise to similar arguments of de minimis.

This claim was handled by Neil Miller at Clyde & Co on behalf of AXA Liabilities Managers UK for AXA Insurance UK plc, the Defendant's insurers.

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