Our Glasgow Casualty team, acting on behalf of a local authority, successfully defends a litigated claim for noise-induced hearing loss.
The pursuer raised a claim for noise induced hearing loss (NIHL) and tinnitus against the local authority, alleging exposure to excessive noise whilst working as a joiner from 1976/77 until 2015/16. The claim was raised in the All-Scotland Sheriff Personal Injury Court in Edinburgh and the sum sued for was £40,000 (+ judicial interest).
The pursuer’s agents had obtained a report from their medical expert (“the pursuer’s expert”) which diagnosed bilateral high frequency sensorineural hearing loss. The pursuer’s expert’s view was that the majority of the pursuer’s hearing loss was due to occupational noise exposure. Weightmans had reservations regarding this medical report as it was not clear that the associated audiogram was conducted within relevant British Society of Audiology standards.
Weightmans subsequently instructed their own nominated medical expert (the defender’s expert) to examine the pursuer and produce a report. The defender’s expert’s view was that the audiometry obtained for the purposes of his report was not consistent with an underlying diagnosis of NIHL. Rather, the pursuer’s hearing function was within the normal range for a man of his age and the pattern was typical of age associated hearing loss, thus not directly related to historical noise exposure. The defender’s expert also concluded that the pursuer’s intermittent, mild tinnitus was most likely to be causally related to his underlying age associated hearing loss. Further to this, the defender’s expert was also critical of the pursuer’s medical report and associated audiogram.
In light of the strong medical evidence obtained, Weightmans offered the pursuer a chance to abandon the action on a no expenses due to or by basis. However, this offer was rejected by the pursuer’s agents.
The pursuer’s agents subsequently introduced a fresh audiogram (“the third audiogram”) and supplementary medical report from their expert late in the day. Whilst the pursuer’s expert again diagnosed NIHL from the third audiogram, this time he specifically described the loss as “de minimis”. The defender’s expert also analysed the third audiogram and again concluded that it did not meet the published criteria to support a probable diagnosis of NIHL. He also commented that based on the decibel NIHL levels proposed by the pursuer’s expert in his supplementary report, the overall extent of the pursuer’s NIHL would clearly be de minimis and, as such, not even noticeable by the pursuer in relation to his daily activities in any event. Therefore, the defender’s expert’s supplementary report further bolstered the defender’s position.
In spite of the updated medical evidence, the pursuer’s agents continued to pursue the action. Weightmans put the pursuer’s agents on notice that, should the claim not be abandoned, it was their intention to seek for the protection of QOCS to be disapplied in this case and to pursue their expenses due to the pursuer’s agents’ manifestly unreasonable conduct and their actions amounting to an abuse of process by continuing to pursue this case in light of their medical evidence.
Despite a low value pursuer’s offer being intimated very late in the day from the pursuer’s agents, Weightmans stood firm in their position and the pursuer’s agents agreed to abandon the claim a few days before the Proof was due to commence and meet the relevant expenses incurred by Weightmans in the lead up to said Proof.
This successful result justifies Weightmans taking a robust approach on the basis of the medical evidence obtained.
This article was authored by Solicitor, Ross McIntyre: ross.mcintyre@weightmans.com, +44(0)141 404 9306.
Ross joined Weightmans in 2015 as a Trainee Solicitor. He is currently a Solicitor in the Glasgow Casualty Team. Ross has specialised in insurance liability claims, with particular experience in the personal injury field. He has advised a wide range of organisations, including insurers, employers, and public bodies. He manages a diverse caseload including all types of employers’ liability, public liability, disease and motor claims. He has extensive experience in defending industrial disease claims, including noise-induced hearing loss, asbestos lung conditions, hand-arm vibration syndrome and carpal tunnel syndrome.
For further assistance on claims arising from occupational hearing loss, contact our defendant catastrophic injury solicitors.
