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Industrial deafness claim dismissed for lack of credible evidence

At a glance

  • Insurers have reported marked increases in industrial deafness claims in recent years
  • Although this is only a county court judgment, it provides a detailed and useful example of the matters that are scrutinised in a claim alleging occupational noise-induced hearing loss
  • The burden of proof is on the claimant and this claimant was held to have made deliberately misleading statements in his evidence, significantly casting doubt on the court’s ability to regard his evidence as reliable and accurate

The case of: Sutton v British Telecommunications plc, 14.06.13, Cardiff County Court

The claimant worked for the defendant from 1986 and continued to do so at the date of this judgment. He claimed damages from the defendant for hearing loss, tinnitus and hyperacusis (painful sensitivity to sound) which he alleged was caused by the defendant’s negligently exposing him to excessive noise at work. He is now aged 46. The defendant admitted liability but denied causation.

The claimant’s work, as a power maintenance engineer, involved listening to noises, such as beeps, through different types of equipment. He said he could control the rate of beeps but not their level of noise.

Broker Top Tips

  • Gain a thorough understanding of the matters that are scrutinised in industrial deafness claims to help your customers plan risk assessments in relation to noise exposure
  • Claims defensibility advice should include evidence of staff training regarding dangerous noise levels, noise surveys in the areas of work, evidence of hearing tests and documentation proving adequate hearing protection availability and enforcement

Although the defendant provided ear protection for certain jobs, it was not appropriate for the claimant’s work, which required being able to hear clearly while listening for certain tones and sounds. He mainly used his right ear for this task. The claimant suspected he had tinnitus in the mid-1990s and consulted his GP who was allegedly dismissive. The claimant was a motorcyclist and said he always wore fully protective head and ear equipment.

The parties’ medical experts initially agreed the claimant’s hearing problems were not caused or contributed to by motorcycling. However, at trial, it emerged that the claimant’s involvement with motorcycling was far greater than he had initially indicated. The defendant suggested that the claimant tried to mislead the court, fearing his involvement with motorcycling would weaken his case.

Audiogram tests showed the claimant’s hearing in his left ear was slightly worse than his right, despite the claimant mainly using his right ear for the listening element of his work. The claimant said he was given insufficient time to answer the consultant’s questions during the tests, and that he experienced discomfort during them.

The court held that the claimant was attempting to undermine the results of the tests and to discredit the defendant’s expert evidence. The judge held that the claimant had actively misled the court on matters the claimant felt would not have helped his case but which were actually irrelevant. The court regarded the claimant as an unreliable witness. The court held that the defendant’s medical evidence, against the claimant suffering noise-induced hearing loss (NIHL), outweighed the claimant’s.

The court considered relevant case law including Baker v Quantum Clothing Group Ltd (Court Circular, May 2011). In that case, the Supreme Court held the criteria for diagnosing NIHL, on the balance of probabilities, have to be robust. There should be a credible narrative history of noise exposure that could cause identifiable noise damage.

Although the defendant admitted liability, the claimant’s evidence was not credible, tainting the reliability of his evidence as to frequency and duration. Further, the experts agreed the audiogram tests did not indicate NIHL. The claim was dismissed.

Please click here for full judgment.

Image © Getty

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