AWARE

Keoghs Insight

Author

Stephen Evans

Dryden’s net

AWARE12/12/2018
Keoghs Disease and Abuse Aware 2018

The law does not concern itself with trifling injuries. The question of whether a minor degree of NIHL is an actionable personal injury has been subject to numerous reviews and debates in recent years.

It fell under the spotlight again after the Supreme Court decision in Dryden which is perceived as widening the net of an actionable injury.

Dryden requires insurers to consider carefully whether NIHL is caught in the same net or whether it remains possible to successfully argue de minimis.

This article will review the cases before and after Dryden and concludes that the principle of de minimis injury still applies in NIHL claims, but will be fact-sensitive.

De minimis and NIHL

In Parkes v Meridian [2007] EWCH B1 (QB) HHJ Inglis said that “where the impairment [NIHL] has led or will lead to some level of disability even if only minor” that would be sufficient to amount to actionable damage. It appeared that the bar for the claimant was a relatively low one.

By contrast in Hughes v Rhondda Cynon Taff Borough Council [2012], Mr Recorder Grubb thought that the level of hearing loss at 4kHz was not such as to leave the claimant “appreciably worse off” despite its permanence. This decision appeared to spark wider interest in the relationship between NIHL and de minimis injury. Holloway v Tyne Thames Technology Limited [2015] followed and was much more widely publicised. HHJ Freedman held that a hearing loss at 4kHz might theoretically produce a marginal disability, but wasn’t enough to be actionable.

In Lomas v London Electric Wire Company & Smiths Ltd [2015] and Harbison v The Rover Company Ltd [2016] the courts continued to endorse the viability of de minimis in NIHL claims. The level of NIHL (3dB Lomas and 1db Harbison) in both cases being found as non-actionable. Claimants have had their own successes. Although only recovering very modest damages these cases highlight issues which insurers need to consider.

Hinchcliffe v Six Continents Ltd & Cadbury UK Ltd [2015)

HHJ Gosnell found that the claimant’s need for hearing aids had been brought forward by two to five years. This begged the following question why would that be necessary if the hearing had not been made worse? The binaural average hearing loss (1, 2 and 3kHz) was 1.7dB and 10-15dB at 4kHzm which was also likely to affect intelligibility and discrimination of speech.

Lomas v London Electric Wire Company & Smiths Ltd [2015]

Professor Lloyd for the claimant accepted under cross examination that a hearing loss (1, 2 and 3kHz) of 3dB was not appreciable, but Recorder Hinchcliffe QC found that the claimant did have tinnitus resulting from noise exposure, sufficient to sound in damages.

Briggs v RHM Frozen Foods Ltd [2015]

HHJ Coe QC followed the logic in Hinchcliffe that the claimants need for hearing aids sooner than she would have done made her appreciably worse off.

Childs v Brass & Alloy Pressings (Deritend) Ltd [2015]

Again the claimant would need hearing aids five years earlier than he would have otherwise done. DJ Kelly found that the claimant was appreciably worse off, notwithstanding that the hearing loss attributable to noise 1.7dB was so small.

Evans v Secretary of State for the Department of Energy and Climate Change [2017]

The defendant’s medical expert Professor Lutman accepted the proposition that estimation of NIHL may be distorted if the LCB Guidelines 2016 were strictly applied. HHJ Bidder considered in light of this that
the 2016 paper needed refinement. He rejected the de minimis argument, and emphasised the importance of loss at 3 to 4kHz, which he considered to be responsible for the hearing difficulties described by the claimant.

These decisions show that de minimis was far from straightforward in NIHL even before Dryden. Even with a negligible degree of injury, there were still hurdles to trip both sides. They also show that outcomes were already fact-sensitive.

Along came Dryden…

In Dryden v Johnson Matthey [2018] UKSC 18 the Supreme Court found that actionable personal injury was broad enough to include sensitisation to platinum salts, even though such sensitisation was asymptomatic.

The defendant exposed employees to platinum salts and some had become sensitised. This meant that they produced a particular antibody. In the event of further exposure this could lead to an allergic reaction, producing symptoms such as rhinitis and asthma, as well as irritation to the eyes and skin. Those sensitised were prevented from working in areas where they could be exposed to platinum salts. At first instance, the judge held that the claimants did not have an actionable injury. This was upheld by the Court of Appeal.

The claimant relied on Cartledge v E Jopling & Sons Ltd [1963] AC 758 to argue that sensitisation amounted to a physical change and was thus “material damage.” The defendant said that a person acquiring a new antibody could not be said to have been injured and the changes did not result in physical damage. They compared this to Rothwell (pleural plaques) decision where benign internal scarring was found not to be actionable.

The Supreme Court distinguished pleural plaques on the basis that these were simply an indicator of previous asbestos exposure. They would not produce symptoms, even after further asbestos exposure. Sensitisation to platinum salts could not be described as benign since it was a physiological change which risked allergic reaction in the event of further exposure.

This meant that those sensitised made changes to their everyday lives and the damage suffered was more than negligible. Cartledge established, they said, that the absence of symptoms did not prevent a condition amounting to an actionable injury.

Commentators have asked whether Dryden removes de minimis in NIHL claims. The answer may not be straightforward.

It may be useful to apply the court’s emphasis on the effect of sensitisation on daily life. Trivial hearing loss is unlikely to affect a claimant’s everyday life and as such should remain negligible. A claimant could demonstrate an impact on their daily life by the need to wear hearing aids sooner than would otherwise have been the case – a principle which has already led to awards, as we have seen. An individual may also have a noisy hobby he has to give up so as not to worsen the existing damage.

Also, assuming that a claimant has been removed from high noise levels, his hearing loss will not progress. This may be a point of distinction with Dryden, where the risk of further injury was what prompted a change in job. For now, de minimis continues to be raised in NIHL. The following cases have been decided post Dryden.

Nicholls v Osram Limited and Lamp Metals Limited (unreported).

The medical experts agreed that Mr Nicholls had a binaural average NIHL over 1, 2 and 3kHz of 3.5dB, with 3.3dB in the better hearing right ear. DJ Morgan is reported to have found that this was not an appreciable level of loss.

Wiseman v Tarmac Group Cement & Lime Limited & Tarmac Industrial Products Limited & 1 Other (unreported).

This was heard in Manchester County Court in June 2018 before HHJ Platts. Doug Cooper of Deans Court Chambers represented the defendants. Keoghs LLP acted for the second and third defendants. The central issue was the extent of NIHL caused by the defendants’ breach of duty and whether this would affect the claimant’s day-to-day life.

There were four audiograms which were largely consistent. The experts agreed that the averaging of those audiograms was appropriate. They also agreed there was no other medical reason for the reported hearing loss other than presbyacusis and occupational noise exposure. In 2012 when Mr Hasan produced his initial report he used ISO 7029*.

He adopted the 50th centile to quantify age-related hearing loss, which left a deficit of 18.5dB which he attributed to past noise exposure. By the time Professor Lutman reported for the defendants, his new guidelines had been published (LCB 2016**). He used these to assess the NIHL element of the claimant’s hearing loss at 3.2dB. Within the joint statement Mr Hasan maintained his own approach, with the qualification that he now accepted that the 25th percentile was ‘best fit’. This reduced the level of NIHL he originally calculated to just 5.5db.

At trial, Mr Hasan conceded that the 25th percentile was “too generous” to the claimant and that the use of the 5th percentile would be more appropriate. Adoption of the 25th percentile still led to the underestimation of presbyacusis/overestimation of NIHL. He considered that the claimant’s NIHL was, therefore, close to zero. Mr Hasan also accepted that a hearing loss of 3.2dB would be negligible and would not affect the claimant. Professor Lutman was not called. The judge could not accept that an impairment of 3.2dB was compensable. He found that the claimant was no worse off as a result of his exposure to noise. His ‘injury’ was, therefore, insufficient for an award of damages.

Summary/Conclusions

Whilst Dryden widens the net for claimants’ attempts to establish an actionable injury, NIHL and sensitisation are distinctly different injuries. The NIHL decisions to date have all been at first instance. As these cases are so fact-sensitive it appears unlikely that taking the issue to a higher court will decide the issue. Debates about the precise effect of NIHL on particular individuals will continue to happen in lower courts across the country. The Dryden effect seems likely to be limited.