The importance of defendants obtaining robust medical evidence in NIHL claims
In the case of Michael Hobson v Birmal Components Limited (1) and JFL Automotive Limited (2) Jagtar Phagura of Keoghs acted for the second defendant. Permission to appeal was dismissed. This matter once again highlights the importance of defendants obtaining robust medical evidence.
The claimant claimed damages for noise induced hearing loss arising out of his employment with both defendants. The claimant was employed by the first defendant from 1965 to the tax year 1972/73 at its foundry in Smethwick - and by the second defendant from 1985 to 1987, in Droitwich. The second defendant undertook jet fitting work and it was alleged the claimant came into close proximity to noisy equipment, including guillotines. It was the claimant’s case that the defendants were in breach of statutory duty and negligent in exposing him to excessive noise - which damaged his hearing and that they failed to provide information and training on the dangers of noise, and any methods to avoid or reduce it.
The defendants put the claimant to strict proof and argued the claim was statute barred on the basis the claimant had the relevant knowledge to bring the claim in 2005. Neither defendant was trading at the date of the trial.
The Limitation Act 1980 Section 11 provides a claim for personal injuries cannot be brought after the expiry of three years from the date of the cause of action or the date of knowledge (if later) of the person injured. The date of knowledge is defined in Section 14 of the Limitation Act 1980 as the date on which the person concerned first had knowledge of the following facts:
- the injury in question was significant; and
- that it was attributable in whole or part to the act or omission which has alleged to constitute negligence; or breach of duty and
- the identity of the defendant.
The defendants relied on the fact the claimant visited a hearing aid salesman in 2005 who advised the claimant he required a hearing aid. The claimant took the matter no further.
The claimant’s position was that his date of knowledge was when he received the diagnosis of noise induced hearing loss from his medical expert, Mr Lancer, in July 2013. In the alternative, his date of knowledge was around September 2012 when he first sought legal advice.
Deputy District Judge Phillips commented in relation to the visit to the hearing aid salesman ‘at that time the claimant clearly did consider that he had issues with his hearing which he considered sufficiently serious to go ahead with the hearing test’. Despite that, the court found there was no reason to say that a reasonable man in the claimant’s position would have realised the link between hearing loss and noise exposure. The court accepted a date of knowledge of around September 2012, and the claim was ‘in time’.
The defendants were unable to present any evidence to counter the claimant’s allegations in relation to the issue of breach of duty and the court accepted the claimant’s evidence in relation to lack of protection and training. The parties also relied on the evidence of Dr de Salis, who considered noise levels at the defendants’ premises would have exceeded recommended levels at the time of employment.
The case therefore turned on the issue of medical causation. The claimant relied on the evidence of Mr Lancer who supported a diagnosis of bilateral sensorineural hearing loss following a Coles’ bulge analysis. Mr Lancer was of the view the claimant suffered from noise induced hearing loss of 11.25db over the 1, 2 and 3kHz frequencies and mild tinnitus.
The defendants relied on the evidence of Mr Parker. He argued it was highly unlikely the claimant was noise deafened as a result of his work with the defendants, given the claimant’s audiometric history. The court was referred to audiograms from 1996, 1999 and 2005 which were taken before audiograms performed in 2013 for the purpose of the proceedings.
The earlier audiograms were criticised by the claimant as being incomplete screening audiograms which did not have thresholds determined at the 3 and 6kHz frequencies. The claimant argued they were of limited evidential value and not Coles compliant.
The court agreed the experts had diverging views but there was no reason to discount the earlier audiograms – they helped create part of an overall picture. Further, there was no evidence to suggest they had been carried out incorrectly – the 1996 audiogram was within normal range and there had been a significant deterioration after that time.
The court found Mr Parker’s evidence more persuasive and as a result the claim was dismissed.
In December 2016, the case came before the court once more in relation to the claimant’s application to seek permission to appeal the court’s decision at first instance. This was dismissed by the court. At that hearing the court held the burden of proving medical causation rested with the claimant and there was no burden on the defendant to prove otherwise. The claimant had failed to discharge the burden and although the court at first instance’s reasoning was brief, there was no criticism of her conclusion.
Costs were successfully recovered from the claimant’s solicitors after the first instance hearing. Costs incurred in relation to the application to appeal are currently being sought from the claimant’s solicitors.
The decision in Hobson ties in with the recent Keoghs blog - published in the case of Watson v Edstrem of Sweden Limited in January 2017 - expert evidence is opinion evidence and there to assist the court only. Ultimately, it is for the judge to decide the case.
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