Can claimants who have 0dB of identifiable NIHL have a measurable claim in damages?

Over my years in practice, I have dealt with hundreds of noise claims, but recently one landed on my desk that surprised me. The Claimant’s medical expert confirms that the Claimant has 0dB of NIHL and indeed that the Claimant’s hearing is better than to be expected for a man of his age. Notwithstanding both these factors, the Claimant’s expert concludes that the Claimant’s tinnitus is noise induced. The claim is being pursued on the premise that the Claimant’s hearing has deteriorated from “excellent” to “normal”.

Whilst it is the first such case Kennedys has handled, I understand from contacts in the insurance industry that this is not the only claim to have been presented on this basis.

Causation

From a causation perspective, these cases are fraught with difficulty for claimants:

  • His Honour Judge Inglis in Baker v Quantum Clothing [2007] indicated that, where it is shown that a claimant is not suffering from any identifiable NIHL, then any tinnitus cannot be noise induced either.
  • There are a number of respected ENT surgeons who also subscribe to this school of thought.  

On the tinnitus point, recent research, which is still ongoing, indicates that there is a correlation between people who develop tinnitus and people who have regularly been using a mobile phone for over four years. Further research is being undertaken in this area and may well prove to be a useful weapon in defendants’ armoury, particularly when challenging these types of cases.

Comment

Causation defences will be central in these cases and defendants will wish to obtain their own medical evidence. Given the range of medical opinion, defendants should seek to persuade the courts they are entitled to their own evidence following the Court of Appeal decision in Oxley v Penwarden [2000], which supports this where there is a respected alternative school of medical thought on a particular issue.

In terms of quantum, how do you measure damages when even the claimant’s own medical expert accepts that there is 0dB of NIHL, and indeed in some cases a claimant’s hearing is better than to be expected for his age? We anticipate that cases where there is tinnitus, but no NIHL, will only attract awards around £5,000.

It will be interesting to see whether these cases turn out to be the new cause celebre for claimants’ solicitors in deafness cases.