AWARE

Keoghs Insight

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Peter Kenworthy

Peter Kenworthy

Partner

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Pitfalls and Banana (skins)

AWARE08/12/2015
Disease Aware Issue 7

The current flood of deafness claims shows little sign of abating and the quality of claims show an inverse relationship to the volume. Minds have reasonably moved on to consider the potential challenges to the growing number of claims.

One of the battlegrounds has been in the pursuit of a threshold for de minimis claims. HHJ Inglis in Parkes v Meridian Ltd & Ors [2007] EWHC B1 (QB) held that once causation is established, the threshold of significance has been crossed. This has perhaps given succour to claimants, as evidenced by the larger and larger number of claims for increasingly marginal hearing deficiencies.

Since Parkes, there have been a number of cases, starting with Hughes v Rhondda CynonTaf Council and currently resting with a batch of claims including the decision in Holloway v Tyne where the court has been asked to consider the extent of the noise induced hearing loss and whether it results in any material disability.

This article considers the recent cases and the variables that have determined the differing outcomes on what can be regarded as very similar facts (see the table below).

Before the court is required to consider whether the Noise Induced Hearing Loss (NIHL) is de minimis, it of course has to find that there is in fact any NIHL. The causation argument in the majority of NIHL claims now centres on whether the audiogram (and preferably audiograms) support a diagnosis of NIHL when applying the criteria in the Coles guidelines.

Points to Note

All four of the cases listed below are county court decisions. Until we have a binding appeal decision, all of these issues should be regarded as open for argument in every case with minimal losses at 1, 2 and 3 kHz. The differing outcomes in claims with very similar facts show that preparation and presentation of the claim can have a significant impact on the outcome.

When contesting a minimal disability claim, it is important to ensure that all evidence is before the court.

In addition, some research may be worthwhile into the views previously espoused by the opposing medical expert to ascertain any possible inconsistency.

For example, an expert, when defending his views on constructive knowledge in limitation, may put forward a number of arguments to argue that a hearing loss of 25 db or less is neither noticeable nor significant, with supportive research, before subsequently and forcefully arguing that a loss of 3 db represents a material and noticeable disability.

Banana skin table

What would have been the claimant’s age associated hearing loss?

In determining if there is a hearing loss above what would have been expected due to age, it is of course necessary to determine the expected age-associated loss. This often involves placing the claimant on a statistical percentile. This may require medical input and may also prove to be an area of contention.

In two cases Holloway and Briggs, Professor Homer for the claimants argued that a base line younger than the claimants’ actual ages should be used to reflect what was said to be better than expected hearing. In Holloway this was rejected but in Briggs this was accepted.

In Holloway, Professor Lutman gave evidence on the merits of this approach and as one of the co-authors of the Coles, Lutman & Buffin (CLB) Guidelines, his evidence was accepted. The extent of the argument in Briggs is unclear from the judgment.

Loss at 1, 2 and 3 kHz is less than 3 dB?

It is worthwhile looking at the four recent cases in the table opposite, in greater detail.

In all four of the judgments considered the court held that the losses at 1, 2 and 3 kHz did not themselves entitle the claimant to an award of compensation.

Both judges in Lomas and Holloway considered that a loss of 3 db would not make an appreciable difference or represent an appreciable loss. In Briggs, the experts agreed there was little or no loss at such frequencies and in Hinchliffe, the court held that a loss of 1.7 db would be neither noticeable nor compensatable.

Yet in three of the decisions, the court either went on to make an award of damages (Briggs and Lomas) or would have done if causation had been established (Hinchliffe).

Loss at 4 kHz

In Lomas there was also a claim for tinnitus. Despite there being no compensatable hearing loss due to noise, the judge held that the tinnitus complained of by the claimant was caused by noise exposure when employed by the defendant (causation of tinnitus and the issues therein have been discussed in an earlier edition of Disease Aware and are beyond the scope of this article).

In Hinchliffe and Briggs there was discussion of the effect of losses at 4 kHz. In both cases the courts held that the losses at 4 kHz represented an appreciable loss sufficient to sound in damages.

Discussion centred on the now (in) famous ‘speech banana’ and the frequencies at which vocal sounds in human speech are perceived. In Holloway, the loss at 4 kHz was addressed by Professor Lutman by referring to loudness recruitment, an issue that does not appear to have been raised in the other cases. As a result, a 15 db loss at 4 kHz still fell within a finding of de minimis, because of the effects of age.

On the basis of the judgments, it seems that matters were put to the court in Holloway, which were not in the other two cases.

That may have had some bearing on the decisions reached.

Summary

Some insurers may wish to balance the cost of litigation against the value of an individual claim, although the increasing volumes of deafness claims must also be taken into account.

At present, there is general consensus amongst the cases heard, that a 3db loss will not sound in damages, alone. Matters are complicated by the extent of loss at the 4 kHz frequency and the presence and extent of tinnitus.

A scattergun approach to litigation on this issue would be counter-productive. When testing the bounds of de miminis in NIHL claims, it is important to pick the right cases to contest, to lessen the risk of an adverse finding that the claimant community will seize upon.

It should also be noted that the Coles guidelines are being revisited. Further revised guidelines are expected shortly. We wait to see what impact any revision of the guidelines may have not only as to the ease with which NIHL may be diagnosed but also the extent of that NIHL. These important developments will be further addressed by Keoghs, when the guidelines are issued.