Hughes v Rhondda Cynon Taff County Borough Council [2012]
Unreported, Case No: 1CF04042,
Cardiff County Court
It is a source of continued frustration for insurers that noise induced hearing loss (NIHL) claims are settled in cases where the claimant has minimal NIHL. At present the generally accepted rule appears to be that a claimant will succeed if they can show a) the defendant negligently exposed the claimant to “excessive noise” b) the “damage” to the claimant was foreseeable and c) the claimant can show that they have some measurable hearing impairment, however low that may be.
Some courts have made awards for damages in cases where there is an established hearing loss of 5dB, whilst many courts are resistant to arguments of de minimus, even where the amount of loss is demonstrably low.
The principle of de minimis non curat lex (the law does not concern itself with trifles) was considered in the House of Lords case of Johnston v NEI International [2007] (also known as Rothwell). Johnston found that negligence requires proof of damage, that ‘damage’ is not to be equated with mere bodily change and that an asymptomatic condition not leading to any other condition is de minimis.
Still, the threshold may not be high. In Cartledge v Jopling HL 1963, a greater risk of infection and a minor deficicency at the extremes of exertion were enough to establish actionable loss. In a deafness claim, the equivalent might be an inability to follow conversation in a crowded room.
In the NIHL claim of Parkes and others v Meridan and others [2007] HHJ Inglis rejected the de minimis argument put forward by the defendants. However, as Hughes indicates, a court may be willing, in the right circumstances, to apply the de minimis principle referred to in Johnston.
The claimant, H, worked as a builder’s labourer for the defendant, RCT, from 1969 to 2006. Breach of duty was conceded. The only remaining issue at trial related to causation and damage. Both parties agreed H had a degree of NIHL at 4kHz. They disagreed as to whether the claimant actually suffered a noise induced hearing disability (NIHD). Consideration was therefore given to the methodology in Kings, Coles, Lutman & Robinson, Guidelines for Medicolegal Practice: Assessment of Hearing Disability (1992), otherwise know as the ‘Black Book’.
H relied upon the medical evidence of Mr Tompkinson, who suggested the Black Book was not the only way in which NIHD could be determined. He argued H suffered a disability by virtue of the presence of a notch at 4kHz on the audiogram i.e. there was evidence of noise damage, which was not disputed. RCT relied upon the medical evidence of Mr Jones who considered H had suffered no disability. The notching seen on the audiogram, whilst possibly the result of noise exposure, did not itself amount to a disability.
Mr Recorder A Grubb found that excessive noise levels at work had caused damage to the cochlea hair cells in H’s ears, the result of which was impairment at the 4kHz level. Mr Grubb preferred the evidence of Mr Jones, noting Mr Tompkinson’s view was not in line with the accepted UK methodology when considering NIHL and that opinion was divided as to whether losses at the 4-6kHz range had any consequence.
On the basis of Mr Jones' evidence, he accepted any effect upon the claimant’s hearing had not been caused or contributed by exposure to excessive noise and the resulting noise induced impairment at 4kHz level. Any effects of the hearing were caused by ageing. H could not establish he had suffered a disability based on the audiograms undertaken as there had not been a significant change for the loss to have been noticed.
Further, Mr Recorder Grubb accepted that any change in the claimant’s hearing (if it could be described as a disability contrary to his earlier finding) was not such as to leave him, “appreciably worse off,” despite its permanence and that it fell within the de minimis principle such as not to be actionable referring to Johnston in this regard. Therefore, the claimant had failed to establish on the balance of probabilities that he had suffered a significant (i.e. greater than de minimus) injury, which would result in an award of damages.
The finding by Recorder Grubb, that the claimant was not appreciably worse off, does raise some interesting considerations. Whilst very much a first instance decision, it does perhaps assist in putting the argument for a low fence back on the agenda.
According to Hunters, “It is the notional point on the continuum of elevation of the hearing threshold at which disability is deemed to commence.” Whilst a claimant will state that any measureable loss caused by excessive noise gives rise to an impairment, that in turn gives rise to an actionable injury (as argued in Hughes), a defendant may wish to consider arguing that the impairment does not arise until hearing function falls outside the range of normal and the impairment is more than de minimus.
In other jurisdictions, this has been considered in some detail. In the United States, the Workers Compensation Scheme has a Low Fence range of 25dB – 35dB, depending on the specific state. Similarly, a number of other countries have a 25dB level incorporated into statutory schemes, including New Zealand, Australia and Denmark. Indeed, the Department of Works and Pensions (DWP) here in England has a low fence of 50dB before benefits can be claimed for hearing loss.
This does not apply to claims for personal injury however. HHJ Inglis commented in Parkes that, “the fact that the effect, or full effect, of hearing loss may only be felt later is, it seems to me, a proper argument against applying a low fence to the snapshot picture of impairment yielded by one audiogram.”
I would however disagree with HHJ Inglis to some extent. In the publication Noise and its Effects [2007], consideration is given to the effects of time or aging on NIHL. It argues that NIHL and presbycusis are not additive but overlap. The prime influence on hearing is age. Where an individual in his early years might have suffered a small measure of hearing loss – say 5 - 10dB, as the person gradually ages, presbycusis will subsume, not add to that hearing loss.
The position advanced in this publication is not a solitary one. Rosenhall et al (Presbycusis and Noise Induced Hearing Loss - 1990) carried out a population study in Gothenburg, Sweden (a city with heavy mechanical industries) to consider the effect of protracted noise exposure on hearing at old age. They compared individuals at the age of 70, some of whom had experienced heavy industrial noise exposure in their youth and others who had not.
The study found that age subsumed any earlier noise damage, meaning that by the age of 70, large percentages of the test groups had little difference in hearing acuity. A similar study by Robinson et al in 1991 reached broadly similar views. The conclusions were that an individual's NIHL (assuming no additional exposure) lessens over time, rather than increasing or remaining static. An audiogram showing minimal additional hearing loss and hearing function still within the normal range, can be very much argued to be de minimus, with little or no discernable impairment.
Hughes might perhaps be the first step in fixing a low fence. To quote HHJ Inglis again, although this time in agreement with his views: “At the bottom end it seems to me that the crucial decision is one of diagnosis, which will not be possible without the application of a robust approach in which real impairment is evidenced.”
Defining what constitutes a, ‘real impairment’ in respect of hearing loss must, within the context of the continued increase in claims of this nature, hold some attraction to insurers. Hughes demonstrates that the question of methodology is key to defining the concept of impairment. Ultimately, the right case needs to be tested in the higher courts, with a clear presentation of the argument. Success could result in significant savings and a reduction in the current amount of litigation.
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