The Court of Appeal has refused the Claimant permission to appeal in the case of Mark Ross v Lyjon Co Limited.
The appellate court found there was no arguable basis on which the court could interfere with the first instance conclusions of His Honour Judge Wood; that Noise Induced Hearing Loss (NIHL) is not a progressive condition that can deteriorate even after exposure to noise has come to an end.
The grounds for appeal were that the learned judge had wrongly distinguished Keefe v The Isle of Man Steam Packet Co. Ltd (2010) EWCA Civ 683 and not followed comments in Harris v BRB (2005) EWCA Civ 900.
The Defendant had admitted breach of duty. The Claimant argued that the learned judge should have followed the reasoning in both these cases and reversed the burden of proof, when deciding the issue of causation, on the basis that the Defendant had evidence available to them to challenge the Claimant’s allegations regarding the extent of his exposure. The Claimant suggested that the learned judge could infer the causation of the NIHL, as there was no other cause for the hearing loss put forward by the medical experts, and the audiogram result was consistent with NIHL.
However, the grounds for appeal did not challenge the learned judge's conclusions that the audiogram was accurate or that the Claimant had failed to prove latent damage was a probability, rather than a possibility. Therefore it was hard to see how the Court of Appeal would have been persuaded to intervene in these decisions of fact to allow the appeal to proceed.
What can we learn?
- The decision is good news for insurers. The proposition that there is possible latent damage to hearing caused by noise exposure would have been a departure from the received wisdom and the way in which NIHL litigation has been conducted for many years.
- As the first instance Judge noted, "An argument of latent damage, that is hearing loss without audiometric threshold measurement, has the potential to send shockwaves through the insurance industry if successful. The fear would be that the conventional method for diagnosing occupational deafness and assessing disability would be cast aside, with the possibility of an avalanche of claims based upon the simple premise that an individual had worked in a noisy environment and now has difficulty in discriminating some speech where there was a background of noise."
- Had this appeal not been refused and the decision overturned by the Court of Appeal, it is likely that insurers would have seen an increase in the number of claims presented. A Defendant’s ability to defend claims on the basis of limitation and de minimis would have been undermined, leading to a significant drop in repudiations rates.
- Limitation: If the Claimant had been successful, defendants' ability to argue that a claimant is statute barred would be compromised. The defences of "date of knowledge" of "significant" symptoms under Section 14 and "length and reasons for the delay" under Section 33(3) of the Limitation Act 1980 would be largely negated. Given the difficulties encountered in mounting arguments on breach of duty and the increasing reluctance of courts to allow defendants to have their own medical evidence, limitation remains one of the most powerful tools available to insurers. Any weakening of the present position would be very damaging and likely to lead to injustice.
- De minimis: Claimants would also be able to argue that lower levels of loss would be actionable on the basis that the noise element of the hearing loss will or might deteriorate.
- Claimants would also be able to argue that clear audiometry results completed during the period of employment are not representative of whether noise damage had actually occurred. Cases which would otherwise be defended on the basis of no breach of duty may no longer be so defended.
- The conventional approach to apportionment between defendants would also be undermined. Defendants responsible for earlier periods of exposure, prior to the manifestation of symptoms may argue that symptoms would not have developed but for the later noise exposure, as has been seen in HAVS litigation.
- It should be noted that the case is fact specific and a decision has to be made upon the evidence presented, of which general scientific research is only a small part. An appellate court judgment on the applicability of latency issues more generally would clarify this issue and further test cases on the issue of latency cannot be ruled out. However this is a significant setback for claimants and it is hoped ATE insurers asked to back such costly cases in the future will be further deterred by this decision.