In low value Noise Induced Hearing Loss (NIHL) claims, the issue of proportionality is a key area of contention for defendants seeking the court’s permission to rely on their own medical evidence. Recently, DWF’s Occupational Health team has successfully appealed two decisions in which permission was originally refused. In this article Emma Woollard examines the issues and considers the practical steps to be taken when they arise. 

Background

Often in low value NIHL claims defendants will want to challenge the claimant’s medical evidence by obtaining their own expert evidence. Experience suggests there that county courts around the country are taking an inconsistent approach to the question of whether to grant permission. In some areas the court will allocate this type of claim to the multi-track and grant the defendant permission to rely on its own medical evidence.

In other areas, however, permission is routinely refused. Damages in NIHL claims are often limited to £10,000 and the judges who refuse permission tend to focus on the value of the claim when determining whether the cost of a further medical report is proportionate. They allocate the case to the fast track based on value alone and challenges to the claimant’s medical evidence are restricted to Part 35 questions to the expert.

This approach takes little or no consideration of the overall cost of meeting the claim once the legal costs are taken into account. These are regularly over £20,000 and can be as much as £100,000 in certain claims. Further, this approach displays a lack of understanding of the complexity of the issues that arise in NIHL claims and ignores the fact that there is a range of medical opinion which could ultimately determine whether there is a positive or negative diagnosis. As a result, defendants can be severely prejudiced when trying to challenge the contents of the claimant’s medical evidence without expert evidence of their own. 

These matters were considered on appeal in the case of Maplesden v Sarek Joinery Limited by Her Honour Judge Matthews QC sitting at Middlesbrough County Court.

Maplesden v Sarek Joinery Limited (2015)

Maplesden v Sarek Joinery Limited

Middlesbrough County Court

14 October 2015

This was an NIHL claim where the defendant was said to have employed the claimant between 1976 and 1992. The claimant relied on a medical report from Mr Showkat Mirza who, using a less conventional approach to calculating hearing loss proposed in a paper published by Robert Dobie, stated the claimant suffered a 2dB hearing loss averaged over 1, 2 and 3kHz.

The claimant’s expert however made no reference to the minimal impact a 2dB loss and slight tinnitus would have. Further when Mr Mirza adopted the more conventional DWP formula for calculating the claimant’s hearing loss over 1, 2 and 3 kHz as used to determine eligibility for Industrial Injuries Disablement Benefit, he concluded that there was a 0dB NIHL, and that the claimant’s Age-Associated Hearing Loss (AAHL) was actually better than one would expect it to be for a female of her age, at the 75th percentile. The claimant’s total hearing loss was only 7dB, which is better than the average 62 year old, and certainly not consistent with her claim to have worked around excessive noise levels for a considerable period of her working life.

DWF argued on behalf of the defendant that the claimant’s hearing loss did not give rise to a ‘material disability’ and that the claimant was not ‘appreciably worse off’. The issue was whether the diminution in the claimant’s hearing was significant enough to sound in damages and whether it fell within the legal maxim, ‘de minimis’. There is a range of opinion amongst medical experts about the level of hearing loss that gives rise to a noticeable loss. This of course continues to be the subject of lengthy debate

The defendant’s application to obtain and rely upon its own medical expert evidence was refused by the district judge on the basis that this was a fast track matter and the cost of a further report was disproportionate to the value of the claim and not ‘reasonably required’.

The defendant sought permission to appeal the order on the ground that the district judge was manifestly wrong to refuse permission. It was submitted that the defendant had an arguable case and that the judge had erred by failing to take into account the whole cost of the proceedings, not simply the level of damages, when determining whether further medical evidence was proportionate to the value of the claim. Additionally the defendant would be unable to advance arguments on de minimis without the input from their own medical expert, presenting a real risk that the case could not be dealt with justly in accordance with the overriding objective.

Her Honour Judge Matthews allowed the appeal concluding that it would be:

a denial of justice and entirely contrary to the overriding objective to simply say that he who instructs first effectively wins

In her judgment,

“a further expert report was ‘necessary’ and ‘reasonably required’ to assist the judge at trial to resolve the proceedings fairly and justly rather than simply cheaply

Langley v Caterham Marble & Granite Limited (2014)

Langley v Caterham Marble & Granite Limited

Stoke-on-Trent County Court

21 March 2014

Notwithstanding their low value it is widely recognised that complex issues such as causation can arise in NIHL claims, often requiring medical experts to give evidence at trial. This recognition can be seen in the dicta of His Honour Judge Main QC in Langley v Caterham Marble & Granite (2014)where DWF also successfully challenged the decision of the district judge to refuse the defendant permission to obtain their own medical evidence.

HHJ Main concluded that where the audiology is unusual and,

there is very good reason for supposing that there is a respectable contrary opinion on the audiograms, which will have a significant impact upon whether this is more likely age related and therefore goes to whether liability is established and/or loss or damage, they should generally be tried in the multi-track. The defendants should not be deprived of their defence nor railroaded into accepting the opinions and interpretation of the claimant’s expert, whose answers to their questions they find deficient, the appointment of whom they were neither consulted or informed.”

In addition to these two DWF cases, another recently reported case, Daglish v Forest Gardens (Property) Ltd & Ors (2 October 2015), reached the same decision as in Langley. HHJ Pearce-Higgins QC sitting in Worcester County Court concluded that although the costs might well be disproportionate to the level of damages, justice demanded that there be “equality of arms” and that both parties should have permission for their own expert evidence.

Comment

There are several steps that defendants can take to improve their chances of being granted permission to obtain their own medical evidence in an appropriate case. Part 35 questions should be put to the claimant’s medical expert at an early stage and consideration should be given to obtaining a desktop report from a reputable ENT Surgeon. Copies of the judgments in Maplesden, Langley and Daglish should also be filed at court prior to any case management hearings so that district judges are aware of the stance that certain circuit judges are now taking. It should be noted that these three decisions are spread across the country so whilst some district judges may be reluctant to grant permission, more experienced circuit judges countrywide appear not to share their views. Although these decisions do not bind district judges, they should be seen as persuasive authority.

The message we can take from the decisions in Maplesden, Langley and Daglish is that considerations of matters such as the value of the claim and proportionality ought not to trump the overriding objective and principles of fairness. The point will need to be argued persuasively at those courts which take a standard line of refusing the defendants permission in this type of claim. Hopefully those courts may take what we would see as a more enlightened approach to the issue in the future.

Case management decisions such as these will be well received by insurers currently fighting a surge in low value NIHL claims that are often without merit, and where claimant solicitors’ costs routinely outweigh the damages claimed. This issue will remain an important one while we await the recommendations from the Civil Justice Council committee reviewing the range of process and costs issues which surround this type of claim.