In the recent case of Holloway -v- Tyne Thames Technology Ltd, His Honour Judge Freedman gave some guidance on medical causation in deafness claims. Lisa Fletcher takes a look at the decision and considers the level of loss that needs to be established for an injury to be compensable.

Background

The claimant was a 71-year-old lady who had worked at the defendant’s premises as a machine operator from 1992 until 2006. The claimant alleged that in or around 2010 she developed noticeable hearing loss, which she alleged was a result of exposure to loud noise on a continuous basis throughout her employment. The claimant also alleged that the defendant had failed to take any steps to protect her from the potentially injurious effects of noise for the majority of that employment period. While ear muffs were introduced in about 2003 or 2004, the claimant advised that they were inadequate and their use was not enforced.

The defendant did not contest that the claimant had been exposed to noise and had breached their duty of care, and the court accepted that the noise levels were in excess of 90dB. The defendant was therefore found to be in breach of the Noise at Work Regulations 1989 and the common law duties owed to the claimant.

The defendant also accepted that the claimant had diagnostic signs of noise induced hearing loss of 40-45 dB at 4 kHz, although argued that 30dB of that loss was due to age, and only the balance due to the defendant’s breach of duty.

Issue

The main issue to be decided was one of medical causation, namely whether the diminution in the claimant’s hearing attributable to the defendant’s breach, being 10-15 dB over 4kHz, was significant enough to entitle her to damages or whether the loss was de minimis.

The test

The court referred to the decision in Johnston –v- NEI International Combustion Ltd [2007] UKHL 39 which, although concerned with pleural plaques, held that the appropriate test was whether the damage caused by the defendant’s breach of duty was sufficient to make the claimant appreciably worse off. The application of the test is a matter of fact and degree for the court to determine in each case.

The decision

In reliance on the expert evidence available before the court, and favouring that submitted by the defendant, the judge accepted that speech in the range of 30-45 dB amounts to no more than a whisper, with the average volume of a conversation 60-65db.

As a result, the claimant’s loss would have no impact on her ability to hold a conversation and did not give rise to a disability which would cause the claimant to be appreciably worse off. The accepted  loss of 10-15dB at 4kHz was de minimis and insufficient to give rise to an award of damages.

Comment

In the judgment, the judge emphasised that disability has to be looked at in the context of the real world… while the loss would make some… theoretical difference to her hearing… I cannot be satisfied that she would be appreciably worse off.’

The court drew a distinction based on whether the loss in question had a real impact on the claimant. Even if a claimant suffers a measurable loss, this does not guarantee compensation unless that loss causes the claimant to be ‘appreciably worse off’.

The decision will be welcomed by defendants who will be justified in contending appropriate low level deafness claims, emphasising the need for claimants to prove an appreciable level of loss.

While this is an unreported, county court decision, the judgment reminds us of the test set out by the House of Lords inJohnson and affirms its application to deafness claims. From a practical perspective, parties in lower value deafness claims will need to ensure that their experts are instructed to consider the precise extent of loss and what effect it would have on the claimant’s day to day activities.