BLM deafness de minimis victory at Birmingham County Court

14 Oct 2016

Harbison v The Rover Company Ltd

In a successful judgment for insurers handed down yesterday, the court accepted that the claimant’s noise-induced hearing loss was de minimis, and thus not compensable. The court also found that the claimant failed to prove that his loss at frequencies above 1, 2 and 3kHz did not make him appreciably worse off. BLM’s Charlotte Holt acted for the defendant and its insurers, Zurich and Resolute.

Facts and evidence

The claimant, born in 1953, worked as a welder for the defendant car manufacturer between 1975 and 2006. He alleged that as a result of this work he suffered noise-induced hearing loss (NIHL). Breach of duty was admitted. The issues for the judge (HHJ Wall at Birmingham County Court) concerned causation:

(i) Does the claimant have a hearing loss caused by noise (i.e. diagnosis of NIHL), and if so -

(ii) Is the NIHL sufficient to be compensable.

The case was fast track. There was no oral evidence at trial. The only expert evidence was the claimant’s medical expert’s (an ENT surgeon) report.

The claimant underwent two audiograms. Based on the first audiogram, and applying the Coles Criteria, the claimant’s medical expert diagnosed NIHL with a bilateral qualifying notch at 4kHz. At the time of the second audiogram, carried out at the defendant’s request, the claimant’s left ear was blocked with wax during testing – so only the results for the right ear could be used. The second audiogram did not replicate the notch at 4 kHz present in the first audiogram. The second audiogram did not show NIHL under the Coles Criteria. Moreover, the hearing threshold level at 4kHz had improved from 40dB in the first audiogram to 20dB in the second audiogram.

However, to diagnose NIHL, the claimant’s medical expert, Mr Sharma averaged the results for the right ear of both audiograms. After doing this, NIHL was found per Coles with a 12dB audiometric bulge at 6kHz satisfying R3.

Using the averaged results of both audiogram of the right ear, Mr Sharma calculated the claimant’s hearing loss averaged over 1, 2 and 3kHz as 1dB. He also stated that hearing loss above or below these frequencies had an impact on the claimant’s hearing.

The decision

(i) Diagnosis of NIHL

The defendant argued that the claimant did not have NIHL. The second audiogram did not show NIHL. And, given the 20dB improvement at 4kHz between the two audiograms, it cannot be correct to rely on the first one, nor to average them. The margin of error is 10dB. An improvement of 20dB was not consistent with NIHL.

In respect of averaging the audiograms, the judge concluded that "I should be slow to reject the claimant’s medical expert’s approach where there is no expert evidence to suggest that he was wrong to take that approach in this case." The judge accepted that averaging here was correct and in accordance with good practice.

The judge found that the bulge at 6kHz after averaging was sufficient to satisfy Coles. The equivalent requirement for the left ear was satisfied by the 4kHz notch in the first audiogram. Thus the judge found that the claimant had proven he had NIHL on the balance of probabilities.

(ii) Is the NIHL here compensable?

The judge accepted that the test to be applied when considering whether or not NIHL is so minimal as not to be compensable ("de minimis") is whether the claimant is "appreciably worse off". The judge stated that "establishing a diagnosis of NIHL does not of itself amount to compensable damage." The burden of proof is on the claimant to show that he meets the threshold for compensable damage; it is not for the defendant to disprove it.

Based on averaging the two audiograms, when measured across 1, 2 and 3kHz the claimant’s NIHL was 1dB. Mr Sharma’s opinion was that when looking across these frequencies there would generally be no noticeable subjective effect or material disability due to that level of additional hearing loss attributable to the NIHL. The judge concluded that when the claimant’s hearing was considered across 1, 2 and 3 kHz, he was not appreciably worse off due to NIHL.

In respect of NIHL at 4kHz (calculated at 19dB in the right ear and 29dB in the left ear on the first audiogram), the Judge accepted the defendant’s argument that Mr Sharma had suggested the possibility that hearing loss at high frequency could be subjectively noticeable or have a material effect but that that this fell short of discharging the claimant’s burden of showing that he was appreciably worse off as a consequence. It was for the claimant to provide evidence of the effect on him of the 4kHz hearing loss.

The claimant could only report his overall difficulties. He could not attribute them to any particular cause. The claimant’s medical expert’s report did not say what proportion (if any) of the claimant’s hearing impairment (as distinct from measurable hearing loss) was due to NIHL. In his Part 35 responses Mr Sharma first suggested that loss in frequencies above 1, 2 and 3 kHz "can" lead to difficulty in hearing especially with background noise. He did not say that it has actually or probably occurred or played any material part in the present case.

After saying that loss above 3kHz would have "some impact on how patient feels (sic)", the claimant’s medical expert did not explain what "some impact" meant for this claimant. Without that evidence the claimant could not show he was appreciably worse off due to high frequency hearing loss.

The judge concluded that the claimant did not prove he had suffered a compensable injury and the claim failed.

What this means for you

Harbison shows that a diagnosis of NIHL (albeit a marginal and disputed diagnosis) does not automatically lead to a successful claim for damages. The court requires the claimant to prove he has suffered compensable loss. In Harbison a loss of 1dB was held to be de minimis, and thus did not attract damages.

Similarly, loss at 4kHz was not compensable – principally because the claimant and his medical expert did not show how this loss made him appreciably worse off.

As is often the case with NIHL de minimis decisions, whichever way they go, the judgment is very fact-specific, and it is difficult to distinguish points of general application. In addition, Harbison is of course a first instance decision but it confirms that diagnosis does not equal compensation. It does not establish a specific level of dB loss averaged over 1, 2 and 3kHz below the loss will be considered de minimis. But it does show that marginal loss NIHL cases can be won – even where breach has been admitted and diagnosis of NIHL has been proven.

A slight wrinkle in the judgment is HHJ Wall’s acceptance of the averaging of audiograms with widely disparate thresholds at 4kHz. However, as the judge made clear, she was probably unable to do anything else given that the claimant’s medical expert’s view was unopposed by any other expert.

Charlotte Holt

Malcolm Keen

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Disclaimer: This document does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to customers of BLM. Specialist legal advice should always be sought in any particular case.

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