Deafness claims – the rise in exaggerated special damage hearing aid claims

The recent rise in deafness claims has been accompanied by a similar rise in special damages claims for hearing aids.

These are easy claims for a claimant to bring. A medical expert will almost always suggest hearing aids are required. They are often high in value if not appropriately resisted; claims for hearing aids often outweigh the claim for general damages by 3:1.

Defendants and their insurers must adopt a proactive and robust strategy in handling such claims to prevent high sums being paid out on what are usually modest hearing loss claims.

Is there a genuine claim to be made?

The first step any defendant must consider in a claim for hearing aids is whether it is genuinely valid. A medical expert will no doubt recommend the use of hearing aids but this does not necessarily mean that their cost is recoverable in law. It is commonly acknowledged that an individual does not require hearing aids until they reach a level of loss of approximately 25dB - 30dB averaged over 1, 2 and 3kHz. If we assume they have natural loss due to ageing alone, this is usually around the age of 75 for men and 80 for women.

Some individuals may be more susceptible to natural hearing loss, and reach the levels far earlier. Consequently defendants should always ask whether the claimant may have required hearing aids in any event - due to a greater level of age associated loss (i.e. 25th percentile) than usually expected.

If a claimant is displaying modest NIHL, and has not reached the level of requirement for aiding, a defendant should always ask whether the hearing aids are essential, or whether they would merely assist.

This may not reduce the claim entirely - the need for hearing aids may have been brought forward, or accelerated by some years - but it will reduce the number of hearing aids that can be claimed due to noise exposure. In addition, if the hearing aids will not be required for some years, their cost will be heavily discounted.

If the claimant's age related loss is such that they would require hearing aids regardless of any exposure to noise, then the claim can be disputed by the defendant.

If a medical expert considers there to have been an acceleration in the requirement of hearing aids due to exposure to noise, defendants should still consider whether the claimant has sufficient life expectancy to reach any such acceleration.

Certain illnesses can also lead to the requirement of hearing aids; diabetics for example, are usually recommended for hearing aids at an early stage.

Once a claimant reaches the age of 80, the effects of any NIHL are said to be inconsequential as they would require hearing aids in any event. Any claims for hearing aids brought by claimants over the age of 80 should always be resisted.

Are NHS hearing aids sufficient?

Defendents often ask if hearing aids could be obtained free of charge through the NHS? Defendants cannot take account of NHS provision at all due to s2 (4) Law Reform (Personal Injury) Act 1948. The effect of this provision has been mitigated by Woodrup v Nicol, but much will depend on the likelihood of the claimant to seek private healthcare. In this context, recent studies have suggested that the NHS is currently unable to service the needs of patients, a situation unlikely to improve.

Cuts within the NHS have seen services scaled back, waiting times increase and a general failure to provide the relevant aids. Some reports have suggested that people are being provided with only one hearing aid, when two had been recommended. It follows that NHS provision is not the insurers' silver bullet here.

Are expensive private hearing aids the only option?

If a claim for hearing aids can be substantiated, a defendant can contest assertions that the most expensive, private aids are required. Claimants will often seek these, arguing for the more cosmetically and aesthetically pleasing models.

There are 3 main varieties of hearing aid:

1. Behind the Ear (BTE) aids.

These rest behind the ear, with the mould fitting inside the ear. The lifespan is around five years; they are suitable for mild hearing loss; and, as they are larger, have more technology options (programmes, directional setting etc). Because of this, however, they are also more visible.

2. In the Ear (ITE) aids.

These fit entirely inside the ear. They require repairing more often than BTE aids; do not last as long; are suitable for mild to severe hearing loss; and are easy to insert and remove. As they are smaller in size, they have a shorter battery life and are less reliable than BTE aids.

3. In the Canal (ITC) aids.

These are even smaller and less visible than ITE aids. They are unsuitable for severe hearing loss; are the best aids cosmetically as they are discreet; and have a short battery life. They may not fit all ears (canals must be clear and not constricted in order to fit) and have fewer options due to the small size.

Defendants would argue for BTE hearing aids if possible. They are the type of hearing aids provided by the NHS, and are more than suitable for most claimants' needs.

The argument most commonly raised in response relates to cosmetics, rather than suitability. Many high street retailers offer suitable and considerably cheaper BTE style hearing aids than those usually claimed for. They will often sell pairs of hearing aids in the region of £500, often saving up to 90% on those claimed. Defendants should note Specsavers recent innovation of providing the NHS BTE style hearing aids for free. This should see a reduced waiting time, and reduce the need and cost for private aids. The service is not yet available across all of the UK, and is largely restricted to certain areas and age groups (usually over 55 and above). Defendants should check whether the claimant’s area is covered, in which case a claim for hearing aids could be defeated.

Case law

Coffin, Tarrant v Ford Motor Company confirms that claimants cannot successfully claim the most expensive pair of hearing aids available. They must shop around, and look for reasonably priced hearing aids.

Other steps to take

If the claimant still seeks the most expensive private hearing aids available, the defendant can obtain a report from a hearing aid consultant, or audiologist.

The consultant will consider:

• Whether the claimant actually requires hearing aids, or would benefit from them.
• What sort of hearing aids would be suitable and appropriate? Is there a need to deviate from the BTE style hearing aid, which is considered suitable for most of the population through the NHS?
• What the likely cost of such hearing aids will be.
• How long the hearing aids will last, and what maintenance will be required. This option should really only be used in cases where the claimant maintains their claim for expensive, digital hearing aids, as reports will obviously add an additional cost to the defendant.

Defendants can also make an issue based Part 36 offer. If a claimant pursues an exaggerated claim, it would be at his own risk. Exaggerated claims should fall on deaf ears. As deafness claims continue to rise, we can expect exaggerated special damage claims to rise with them.

Defendants and their insurers can make huge savings, if a proactive, zero tolerance approach is maintained. The claimant must prove their claim. Taking a firm approach often results in claims either being dropped entirely, or dramatically reduced.

In summary, when dealing with exaggerated claims for hearing aids, we would suggest the following checklist:

• Does the claimant’s level of loss actually require hearing aids? If the loss is below 25dB, claims can generally be disputed.
• Does the claimant fall on a lower percentile, with a greater level of age loss than is to be expected, which would warrant the need for hearing aids regardless of NIHL?
• Does the claimant require the number of hearing aids claimed for?
• Has the claimant claimed for reasonably priced hearing aids (as per Coffin v Ford)?
• Can the claimant legitimately substantiate a claim for non-BTE style aids?
• Does the claimant suffer from any illnesses (diabetes) which would lead to hearing aids being required in any event?
• Will the Claimant reach the age to require the hearing aids? Or in the alternative, is the claimant above 80, and beyond the stage of NIHL effects?
• Is there a benefit to obtaining a report from a hearing aid dispenser or audiologist?