Recent hearing loss and tinnitus developments from Northern Ireland

Defence lawyers, especially those working in the area of industrial disease, are patiently waiting for the imminent changes to the Green Book (Northern Ireland’s jurisdiction equivalent to the JSB guidelines). There was a recent update from the local judiciary indicating that one of the areas likely to see change is hearing loss and tinnitus. Plaintiff counsel have already been referring to this in negotiations.

It is now our understanding that there was a High Court judgment on 12 October 2023 where Justice McAlinden awarded the plaintiff £30,000 for moderate tinnitus without hearing loss arising from a road traffic accident. The case was run by a highly experienced barrister who deals with many hearing loss and tinnitus cases in this jurisdiction. It is also our understanding that the plaintiff had sought medical assistance in respect of her tinnitus and has been referred for treatment. This ruling represents intent as to where awards are heading for tinnitus claims and an increase in hearing loss claims is likely to follow.

Defence solicitors in this jurisdiction will still rigorously protect their client’s position with regard to quantum and will seek to negotiate on a case-by-case basis. However, it is anticipated valuations will increase and this is already making settlement at previous levels challenging.   

There has also been an appeal court ruling in James Moore v Harland & Wolff PLC & Somewatch Ltd. The appellant developed pleural plaques as a secondary victim having been exposed to asbestos from his father who worked as a pipe lagger at the Harland & Wolff shipyard from 1948–1983. The appeal was brought against the decision of Mr Justice McAlinden who had dismissed the appellant’s action and awarded costs to the first and second named respondents. Two grounds of appeal were brought. Firstly, that the judge erred in law in concluding that the appellant had not proven his case to the court on the balance of probabilities and secondly, the judge erred in law in awarding costs without affording the appellant any opportunity to make submissions to the court on the issue.

The Court of Appeal held that this first instance judgment was a rare case where the judge has erred in decision. On the basis that Justice McAlinden acknowledged that the appellant had developed pleural plaques as a result of his exposure to asbestos dust and fibres in a domestic setting, the Court of Appeal did believe that Justice McAlinden had in fact made a finding in favour of the appellant. The Court of Appeal raised concerns as to whether Justice McAlinden had diverged from the agreed approach in these types of cases. Justice McAlinden had found that the appellant had failed to satisfy on the balance of probabilities that exposure to asbestos dust and fibres in the domestic environment after 1965 made a contribution to the risk of developing pleural plaques due to contradictions in the medical evidence presented by Professor McGarvey and noted that the 14-year period prior to 1965 was of more intensive exposure.

The Court of Appeal concluded that the judge had erred and was incorrect to dismiss the appellant’s claim on the basis of inadequate medical evidence without further explanation and given the fact that the medical evidence was admitted without objection, it should not have been dismissed. The Court of Appeal did not believe that the medical evidence was as limited as suggested by the respondents and some inadequacies in histories given by elderly plaintiffs would be expected.

Concerns were raised as to whether the judge strayed beyond the agreed legal principles without the citation of authorities where the law had not been contentious between the parties. There had been a consensus among counsel that the case should have been assessed on a time basis, and it was felt that this was what would be considered by Justice McAlinden following his discussion with Mr O’Donoghue KC in closing submissions. The Court of Appeal determined that the period of exposure was to be assessed on a time-based period, the judge should have considered whether the fraction 9/23 should be reduced further for the fact that post-1965 the appellant was a teenager and potentially had less exposure.

The appeal was allowed on the first ground and found in favour of the appellant. It was directed that it was unnecessary to decide on the second group of appeals given that the court had found in favour of the appellant on the first ground of appeal.

It was a busy week for an industrial disease solicitor in this jurisdiction and we still await the Green Book changes. An update will follow that development.

For more information, please contact:

Will Gibson - Lead Lawyer, Disease, Belfast

Email: WRGibson@keoghs.co.uk