Industrial Deafness – Court Rejects De Minimus Defence

As those practising industrial deafness/noise induced hearing loss law know, a defence raised by Defendant solicitors from time to time is that of “De Minimus” – the injuries are too minor to deserve compensation.

 

In the recent case of Childs v Brass & Alloy Pressings (Deritend) Limited  (2015) the Court rejected a De Minimis defence raised in circumstances whereby the Claimant had suffered just over 2 decibels of hearing loss over his 1,000 Hz – 3,000 Hz hearing frequencies.

 

The Court had to consider the test set out in the case of Johnston v NEI International Combustion Limited [2007] UKHL 39: was the Claimant “appreciably worse off”?  This test has been applied a number of times in recent years in the courts, with varying results depending upon the specific facts of each case and the Court considered those various decisions in an effort to determine how best “appreciably worse off” should be determined in a noise induced hearing loss case.

 

One case the court considered was that of Briggs v RHM Frozen Foods Limited, 30^th July 2015, in which in deciding this issue the Court had regard to the fact the difficulties the claimant in that case would face included the need for hearing aids sooner than she would have otherwise required – on that basis the claimant was in fact “appreciably worse off.”

 

In this case, similarly, the expert’s opinion was that Mr Childs would need hearing aids approximately 5 years earlier than he would have done had it not been for the work related damage to his hearing.  The Defendant’s solicitors had not put any questions to the expert, nor sought permission for their own expert evidence, so the Claimant’s expert evidence regarding the advanced need for hearing aids was effectively unchallenged.

 

In accepting therefore that Mr Childs would need hearing aids 5 years earlier than he otherwise would have done, the Court concluded he was in fact “appreciably worse off”.

 

The Court then went on to determine the value of the injuries at £4,000 and then went on to award £750.00 for hearing aids.

 

Side Point – Hearing Aids – Onus on the Claimant to properly quantify losses

 

The Court reduced the hearing aid claim by 50% on the basis the Claimant’s representatives had failed to clarify with the expert when the Claimant would require hearing aids.  They of course knew the need would be brought forwards by 5 years but without knowing when that would be the Court could not properly apply the discount for accelerated receipt of damages (the discount to reflect the fact receiving money earlier than when needed would allow someone to invest the money and therefore end up with a greater amount than they would have had if received later in time).  To avoid over-compensating the Claimant the Court applied what appears to be a fairly harsh reduction of 50% though it is worth noting the Court did allow private hearing aids at typical commercial cost whereas some courts have not.

 

Conclusion – The medical evidence is key and needs to be considered as a whole

 

Each case will turn upon its own facts with different people being affected in different ways; this decision after all is only another county court decision in a lengthening list of varying decisions but it does underline a logical approach by the Court in considering the medical evidence as a whole and the fact having to wear hearing aids years earlier than otherwise required should quite rightly be seen as leaving an injured person “appreciably worse off”.

 

By James Winterbottom, Solicitor