The High Court has applied the new Ogden Tables’ reduction factor guidance for contingencies other than mortality in Barry v Ministry of Defence  EWHC 459 (KB) for future loss. Further, the court considered the appropriate methodology for diagnosis and quantification of noise induced hearing loss and whether an individual could be held to have contributed to his hearing loss if he did not wear the hearing protection provided, appropriately. The claimant was awarded somewhat over £700,000 for noise induced hearing loss due to noise exposure during his service as a Royal Marine; this was inclusive of a significant future loss of earnings and future loss of pension.
The claimant enlisted in the Royal Marines in 2013 for 18 years; he was medically discharged in 2017 due to bilateral hearing loss and tinnitus. The claimant pursued a claim against the Ministry of Defence for failing to provide and ensure the use of hearing protection.
The defendant conceded primary liability, but alleged that the claimant was partly to blame for his hearing loss for failing to use the hearing protection provided and that a reduction should be made to his damages for contributory negligence. The court was invited to consider three main areas:
- Whether the claimant was indeed partially at fault for his injury;
- The appropriate methodology for diagnosis and quantification of noise induced hearing loss; and
- Whether the claimant was disabled within the meaning of the Ogden tables and the appropriate reduction to apply.
The defendant invited the court to reduce the claimant’s damages by 30% for contributory negligence. The claimant admitted that when he was using a personal radio, he did not use an ear plug in his left ear as he was unable to hear the radio. Upon hearing evidence from various witnesses, where it was generally accepted that wearing ear plugs made it difficult to hear the radio and that the ear plugs were rarely used correctly when using the radio, the court found that the ear plugs were unlikely to provide any significant protection and specific instruction on how to wear the earplugs when wearing a radio was not given. The court found that the failure to provide sufficient hearing protection was solely down to the defendant and that the defendant failed to establish that the claimant was at fault for failing to wear his hearing protection, but even if he had been found at fault, any reduction would have been small.
Diagnosis and quantification of loss
With regards to the causation and quantification of the claimant’s loss, the court considered the approaches adopted by the expert witnesses for both sides, Professors Lutman and Moore. However, as the two methods agreed that the claimant had noise induced hearing loss due to exposure whilst in service in the Royal Marines and the experts were largely in agreement on quantification, the court declined to make a finding on which approach should be preferred, though the court did confirm that there were no doubts as to the scientific integrity of both experts.
The court considered that the hearing loss had a substantial effect on the claimant’s day to day activities and that the claimant would be considered disabled within the definition set out in the Disability Discrimination Act 1995: Ogden tables. When considering the claimant’s claim for future loss of earnings, the defendant argued that as the claimant’s earning capacity prior to and post injury was largely the same, the claimant’s hearing loss did not impact this and the appropriate award for damages should be a modest Smith v Manchester award (i.e. an award of general damages for disadvantage on the labour market) rather than calculating the difference between pre- and post-injury earnings and applying a multiplier. The court disagreed and found that there was a significant reduction on the claimant’s future earning capacity as a result of his hearing loss, and in order to fully compensate the claimant’s future loss of earnings, the multiplier/multiplicand approach should be adopted.
The court considered the revised Ogden guidance, set down in the 8th edition of the tables, to determine the appropriate reduction factor. It was recognised that the claimant had been in employment since his discharge from the Marines and that he had some school level qualifications as well as numerous skills and competencies that he achieved during his service in the Marines, meaning that the claimant would be considered to be at education level 2. The court also found that the Ogden tables should be applied, as the claimant’s hearing loss fell squarely within the examples of disability within the guidance. The court did not apply the full reduction factor, however, as the claimant’s disability was mild to moderate, and it recognised that the claimant’s hearing would improve with the use of hearing aids. As such a modest reduction to the award was made. The court was critical of using a “mid-point” approach and found that in this case, as the claimant had managed to remain in employment following his discharge and as hearing aids improved his hearing, the appropriate consideration for the reduction factor should be his education level, duly changed to a higher level (from education level 2 to 3) to recognise the claimant’s drive and determination.
The Ministry of Defence has sought permission to appeal.
This is the first case where the revised guidance on the adjustment of reduction factors has been considered since the publication of the Ogden tables in July 2020. The analysis of the factors regarding the appropriate reduction factor will be of interest to all parties in personal injury actions where significant special damages are claimed for future loss of earnings.
The debate as to the correct methodology to apply for diagnosis and quantification of loss in noise induced hearing loss cases continues, with Professor Lutman and Professor Moore expected to be before the court on this issue again in the near future.
In noise induced hearing loss cases, it is now difficult to see in what circumstances a contributory negligence defence would be successful; if there was a hearing preservation programme in place, the defendant is likely to defend in full on breach, and if there was no such programme, but there was noise exposure, breach is likely to be established.
However, although the claimant was not considered to have contributed to his own injury in this case, that is not to say that a claim for contributory negligence would not be successful in other cases under the new guidance, and this should be considered on a case-by-case basis.