£700,000 hearing loss award for former marine

By way of a judgment handed down by Mr Justice Johnson sitting in the High Court on 3 March 2023, an award of £713,716 was made to a former Marine, James Barry, pursuant to his exposure to noise in the course of his employment with the Ministry of Defence (MOD).

Facts of the case   

Mr Barry had joined the Marines in 2013 after successfully completing his initial training and assessment. He alleged that he was exposed to excessive noise on a number of occasions but principally during a military exercise referred to as “Black alligator” where he was exposed to noise and bombs from F16 Fighters and a variety of weaponry noise.

The claimant accepted that he had been supplied with two types of hearing protection, but that on exercises this fell out. That evidence was reinforced by colleagues. Further, the claimant alleged that he could not use hearing protection in his left ear when wearing a personal role radio.

It was common ground that the claimant had been medically discharged from the Marines in 2017 by reason of his hearing loss and tinnitus.   

The MOD accepted that the claimant had suffered a hearing loss and tinnitus brought on (at least in part) by occupational noise exposure and that it was primarily liable for the claimant’s deafness and tinnitus which was categorised as “moderate” in severity. Several issues, however, remained in dispute between the parties. These included:

• whether the claimant was “guilty” of contributory negligence.
• the extent of the awards for pain, suffering and loss of amenity (general damages) and loss of congenial employment.
• the financial losses which flowed from the claimant’s medical discharge. Specifically, whether the claimant’s compensation should be assessed by way of a simple Smith v Manchester or Blamire award for disadvantage on the open labour market or by reference to a loss of future earnings calculated on a typical multiplier and multiplicand basis.
• there remained a significant dispute between the parties’ respective medical experts on a number of issues:

(a) Against which set of diagnostic guidelines the claimant’s hearing loss should be assessed.

(b) Whether the claimant’s hearing loss would continue to deteriorate over and above that which would occur through ageing – the so called “latent damage” issue.

(c) Whether the noise exposure had occasioned damage to the claimant’s synaptopathy (loss of synapses that connect the inner ear to the auditory nerve) and consequent neuropathy.

The judgment 

The court heard expert testimony principally from Professor Brian Moore (claimant) and Professor Mark Lutman (defendant) on the medical issues in dispute. The judge noted that a group of similar cases were pending against the MOD but was at pains to stress that Mr Barry’s case would not be treated as a lead or test case to determine those wider issues. 

For a number of reasons, Mr Justice Johnson declined in his judgment to resolve the competing medical arguments over which diagnostic guidelines should be preferred and whether “military noise” could lead to further hearing loss after the occupational exposure had ceased and how that could be quantified.

Mr Justice Johnson felt satisfied that it was not necessary for him to do so given that it was established that the claimant had a hearing loss which was both significant and would constitute a “disability” under the terms of the Disability Discrimination Act [1995]. Additionally, there remained only a very small difference between the experts on the quantification of the claimant’s hearing loss. The judge expressed the view that in future, the medical issues may be best resolved by way of a single, jointly instructed epidemiologist.

As to the claimant’s current and future employment prospects, the judge noted that the claimant was currently earning above the median pay scales as a driver, although unhappily for all parties, the claimant had received notice of dismissal at or shortly after the trial. He dismissed the defendant’s arguments that future loss of earnings should be compensated by way of a Smith v Manchester Corporation or Blamire type award in the light of future uncertainties.

He concluded that the claimant would (but for his hearing loss) have served his full 20 year contract but not beyond and would have achieved the rank of corporal. The claimant would then have worked as an offshore medic for a period of five years and then in alternative employment grossing £50,000 per annum.

The appropriate multiplier for loss of earnings to pension age 68 years prior to adjustment amounted to 33.59, with projected earnings totaling £1,057,047. Whilst the appropriate discount for “disabled contingencies” was 0.45, the judge felt that, to reflect both the ameliorating impact of hearing aids and the claimant’s high drive and determination, this should be increased to 0.56. He calculated post-injury future earnings would amount to £604,800, leaving a deficit of £452,247.

The claimant was awarded both the capital costs and annual running costs of hearing aids as claimed in the sum of £44,201.

Breakdown of the award 

The overall award of damages to the claimant was broken down as follows:-

• General Damages (PSLA) - £27,500.00 less £6,000.00 - Armed Forces Compensation payment | £21,500.00
• Loss of congenial employment - £8,000,00
• Past loss of earnings - £32,840.00
• Future loss of earnings - £452,247.00
• Loss of pension - £152,424.00
• Provision for hearing aids - £44,201.00
• Miscellaneous Special Damages and interest - £2,504.00
• TOTAL AWARD | £713,716.00 

Commentary

The level of damages awarded to the claimant for hearing loss may surprise some compensators given that the majority of ‘deafness’ awards commonly sound below £10,000. This, however, was a claimant who had been medically discharged from service by reason of his hearing loss – having originally signed on a 20-year military contract. His hearing loss was also sufficiently severe to constitute a disability which the judge found would preclude the claimant from securing several alternative and financially rewarding careers which, absent his disability, would have been open to him.

 The judgment also exemplifies how the new Ogden 8 guidelines will be treated in practice. Cases which involve future loss of earnings will be assessed by reference to a multiplier and multiplicand discounted for contingencies. The ‘Blamire type’ lump sums will become the exception.

The issues surrounding noise and latency were aired (once again) in this case, though despite fierce argument, they were not resolved. Whilst it is noted that a group of similar cases are likely to follow the outcome of this case, we caution that any future judicial finding on latency is likely to be restricted to “military noise” as distinct from noise generated in a factory of typical occupational setting.