Claims for noise induced hearing loss (NIHL) can often seem intimidating and Kafkaesque to those unfamiliar with the issues involved, especially when the case involves a claim for special damages. This is my ‘quick and crafty’ guide to special damages in NIHL, to help those who need a little guidance.
Damages, as most know, is the term for money recovered when a claim is successful. The majority of attention in personal injury claims is given to claims for ‘pain, suffering and loss of amenity’ i.e. losses which can’t be mathematically calculated and which are called ‘General Damages’. What we’re interested in here is ‘Special Damages’, that is, money claimed for losses which can be mathematically calculated, for example, lost earnings, damaged clothes or the cost of a carer.
In certain claims, such as a major casualty claim, special damages can add a hefty sum onto a defendant’s total claims spend, particularly in light of the new discount rate, a subject which is receiving a lot of attention in the press, but which is less likely to impact on NIHL claims.
While in NIHL claims the special damages may not be as extensive as in casualty claims, the sums can get quite high if unchecked: claimant’s schedules are regularly excessive; it is not unusual that they run to the thousands of pounds. However with a bit of insight there are several practical ways to successfully minimise any such award, while ensuring a claimant is properly compensated and treated.
Failure to launch: no schedule
When bringing a claim, if a claimant wishes to recover special damages for money they have spent, or will spend as a result of their loss, they must include a schedule of loss, setting out their losses along with the proceedings, as per CPR PD16(4.2), which states:
“The claimant must attach to his particulars of claim a schedule of details of any past and future expenses and losses which he claims”.
If a claimant does not include a schedule of loss, as it often happens in NIHL claims, (there is usually reference to the same being attached within the Particulars of Claim, but then the schedule is omitted, apparently having been overlooked) the defendant may apply to strike out any claim for special damages (or deny the claim for special damages). Or else, a claimant serves a document titled ‘schedule of loss/schedule of special damage’ which either contains no details save to say ‘will be further particularised in due course’ or else the schedule is unsigned. In either of these events, it can be tactically advantageous to serve a counter schedule, with the defence acknowledging that the claimant has brought no claim for special damages and the defendant will not reserve any sum accordingly, and then to later object to any provision in the directions for an updated schedule or counter schedule.
Hearing aids: public or private?
In claims for NIHL the bulk of special damages claims relate to (perhaps unsurprisingly) the need for and cost of hearing aids.
Where a claimant’s medical expert says that hearing loss and the subsequent need for hearing aids has been accelerated as a result of damage caused by noise, you can be sure a claim for hearing aids will follow. These claims usually run into thousands of pounds for privately provided technologically advanced hearing aids. The claims also feature annual maintenance costs and the cost of a new pair every two-five years. This can seem very daunting when reserving for damages.
Before you even consider the type of hearing aids to be provided for, you should bear in mind the most important sound in speech is in the frequency range 0.5-3kHz. If these frequencies are largely unaffected, a claimant is not likely to get any clinical benefit from hearing aids. Aiding also has no benefit for loss of hearing at 6khz. Conversely, if a claimant has low frequency loss, then that would arguably accelerate the need for hearing aids (subject to the level of loss @ 3 or 4khz). It will also be useful to consider the study by Haggard and Gatehouse which states that ‘in most individuals, clinical benefit from aids is only derived where the hearing loss in the ‘better ear’ is at least 35dB (over 0.5, 1 ,2, 4 kHz)’. So anyone with less than 35dB does not have a clinical need for aiding (though you should bear in mind the NHS continues to prescribe hearing aids for hearing losses of 25 dB).
As a last preliminary point check on what the claimant’s expert has to say about the sort of tasks the claimant needs hearing aids for: Watching TV? Listening on the telephone?
If the hearing aids are just for social and recreational use, any claim for hearing aids should be “necessary” and “reasonable”. A claimant can’t reasonably argue that they need £2000 hearing aids to hear the TV or phone.
Once you have satisfied yourself of the need for hearing aids, you can then consider the type of hearing aids and the tasks they will be used for. Before you begin calculating the yearly cost of those special damages, let’s take a look at a claim for expensive hearing aids. Of course, hearing aids are available on the NHS; and the courts have been clear that while a claimant is not to be prevented from obtaining hearing aids privately, claimants do have a duty to mitigate any loss.
Often, claimants will seek private hearing aids, citing cosmetic concerns for not wanting to utilise free hearing aids provided by the national health service, as they are ungainly, stick out and are embarrassing. While this may have been true in years gone by, today’s NHS provisions are much more discreet and just as advanced as private hearing aids. So it is important to highlight for a a claimant they may not need private hearing aids as they can get high quality ones form the NHS.
With the above being said, it is important to highlight that while claimants are under a duty to mitigate their losses, this argument cannot be applied to insist that a claimant seek treatment on the NHS rather than privately: the Law Reform (Personal Injuries) Act 1948, s. 2(4) (as amended) which states:
“In an action for damages for personal injuries (including any such action arising out of a contract), there shall be disregarded, in determining the reasonableness of any expenses, the possibility of avoiding those expenses or part of them by taking advantage of facilities available under [the National Health Service Act 2006 or the National Health Service (Wales) Act 2006]”
So be aware that claimants can’t be compelled to use the NHS to get hearing aids, if they choose private providers.
Case law has favoured common sense in recent years and the court is alive to the world outside of litigation. In Coffin & Tarrant v Ford an award was made for special damages. However, this was limited to reflect the market at the time and the amount for each ‘cycle’ of hearing aids was limited to what was reasonably required. Current special offers are quick and easy to locate, and can be quoted and evidenced to support a counter schedule that offers a lower value for an item claimed.
In some areas of the country, NHS hearing aids can now be obtained via Specsavers; all that is required is a referral from the GP, which avoids the previously lengthy and inconvenient waiting lists and hospital visits. This service, according to the Specsavers website, is currently available across half of England and is being rolled out regionally. All that is needed to establish if this is something a claimant can make use of is their postcode, which is of course cited on the claim form.
Together with the availability of cheaper or free hearings aids, a reduction should be calculated as per Ogden table 27 for advanced receipt of the money for the hearing aids, however since the alteration of the discount rate to -.75% on 20 March 2017 the calculation for accelerated receipt will now increase the amount claimants are entitled to. It’s also useful to bear in mind that hearing aids have a lifespan of between three and five years, so that where there is a claim for replacement hearing aids more frequently than five years this should be investigated and opposed without good expert evidence in support of the point.
As with all areas of a claim, special damages should not be considered in isolation. Information provided during litigation can assist in considering what is being claimed pragmatically. In the event that a claimant already wears hearing aids (as will usually be evident from the medical evidence, medical records and/or witness evidence) and should the claimant seek to recover special damages for provision of the same, he should be required either to:
evidence the cost incurred (the hearing aids will be a past loss) with an invoice or receipt;
evidence why those he currently utilises (if obtained for free) are insufficient for his needs.
It should also be considered whether the claimant would have needed hearing aids in any event; special damages should only be used to cover costs arising as a result of the injury. Therefore, had the claimant needed hearing aids by their current age, or if it is likely the claimant would obtain hearing aids as a result of age-associated hearing loss anyway, then special damages may again be avoidable.
In NIHL claims it is usually alleged that the claimant is suffering alongside the hearing loss, with tinnitus, a subjective phenomenon which can occur naturally or be noise induced. Special damages should only be considered where the tinnitus is sufficiently serious to warrant treatment.
Tinnitus can have a detrimental impact on someone’s life, in the worst cases causing depression or suicidal thoughts. At the other end of the scale, however, it may represent a little more than a minor annoyance.
Where a claimant seeks to recover for costs relating to tinnitus, make sure to put a Part 18 Request for Further Information, so as to establish the claimant’s description of the symptoms and the responses used to establish either the severity or grading of tinnitus (if for instance the claimant does indeed report a minor inconvenience for a few minutes several times per month compared with, for example, someone who suffers constant tinnitus that impacts their ability to sleep without the use of medication) or even the cause of the tinnitus (pulsatile tinnitus, for example, that could be described as similar to the beating of a heart in the ears, is often considered by medical experts to be the result of something other than noise). If the grading or cause of tinnitus is subjectively challenged, then it is reasonable to offer nil by way of special damages, should the claimant be seeking a payment for tinnitus retraining therapy, which in some areas is also available for free on the NHS.
Claims for special damages in NIHL claims can include tinnitus retraining therapy or masking devices, both of which can be extremely expensive. If these losses are sought, be sure that the claimant’s medical expert has expressed the view that these are required or will help the claimant. If not, when it then comes to your counter schedule, make sure to deny and cite the lack of expert support for the devices.
In the event that a claimant seeks to claim for the old chestnut of ‘miscellaneous expenses’, a catch-all, usually estimated arbitrarily by the claimant’s solicitor (in multiples of £25, to include postage costs, telephone calls and other expenses incurred) the claim should be denied if these are not evidenced with receipts and proof, as they very rarely are.
Special damages might also include ‘travelling expenses’. You should take a moment to consider carefully, travelling expenses. Are the expenses for travelling to see the claimant’s medical expert, the site inspection or to court? These are not special damages, rather, these are costs attributable to the running of litigation and should be denied on that basis.
If however, travelling expenses to and from work are claimed, for example, because the claimant cannot safely drive due to the level of hearing loss, this may recoverable. Make sure to check if the rate per mile for petrol is reasonable. HMRC publishes its mileage rates for fuel usage and these are a good starting point.
It’s becoming increasingly common for claimants to request travel expenses upfront or during the course of the claim. While there is nothing wrong with this per se, if a claimant is amenable to payment at the end of the claim, this may be preferable. This is particularly because the cost may be avoided altogether should the claimant ultimately discontinue. If any such reimbursement is agreed and paid, it is vital then not to agree special damages to include that amount which would equate to double recovery for the claimant, and mean that the defendant would find itself paying twice. Usually, travel expenses will not be excessive (depending on where the claimant is required to travel to and from and how many times) but even if the amount is small, erroneously paying twice must be avoided.
A vital question to consider in relation to claims for special damages, is whether the claim is actually justified, either at all or to the value claimed. It may well be that in fact the item being sought is not required nor is due to any injury, or it might be that, while some claim could be justified, the amount claimed is excessive. While it remains important that justice is delivered, of course, it is also vital that, in your client’s best interests, payments for special damages are not unduly agreed or awarded.
Here endeth the lesson
To recap, special damages in NIHL claims can seem daunting, but taking each item at a time to consider whether there is really a need for the item sought and whether there is evidence in support of the claim, can save defendants increasingly large sums of money. Also, remember to always challenge a claimant who fails, at the start of proceedings, to serve a Schedule of Loss.