Harry Steinberg KC, Rob O’Leary and David Green – instructed by Simon Ellis and Ruth Davies of Hugh James, successfully represented James Barry, a former Royal Marine, in his claim against the Ministry of Defence for noise induced hearing loss. In a judgment handed down today (3 March 2023), after a trial in January, Johnson J awarded him £713,716.
Mr Barry (aged 34 at the time of trial) enlisted in the Royal Marines in 2013 for a 20 year engagement. He was discharged early on medical grounds due to noise induced hearing loss in February 2017. At the time of trial he was working as an HGV driver.
The MOD conceded primary liability. The main issues between the parties were:
- Whether damages should be reduced for contributory negligence;
- The quantum of damage – particularly, whether Mr Barry was disabled, and whether earnings should be compensated using the multiplier/multiplicand method; and
- The correct approach to the diagnosis and quantification of noise-induced hearing loss.
Contributory negligence
The MOD invited the court to reduce damages by 30% for contributory negligence. By the time of trial this had crystallised into a single allegation, namely that Mr Barry ought to have worn a yellow foam ear plug in his left ear when that ear was covered by a Personal Role Radio headset (which did not itself provide any noise protection).
Evidence was given a trial that they were a mix of practices from different Marines to hearing protection whilst wearing a radio. Using earplugs under the radio made it very difficult to hear: some people chose to use earplugs, but “half in, half out”, which Johnson J found was “unlikely to have offered significant protection”. Johnson J also found that Mr Barry was not given a specific instruction that he must wear earplugs in this way when also wearing a radio.
Johnson J rejected the MOD’s case on contributory negligence. He found that Mr Barry wore the hearing protection that was made available to him, when and as best he could. He was reliant on the MOD to provide that equipment. He found that the failure to ensure proper hearing protection was due to the fault of the MOD, not Mr Barry.
Quantum of damage: future earnings
Mr Barry was discharged from the Marines because of his hearing loss. Johnson J accepted his evidence that his hearing loss did have a substantial adverse effect on his day-to-day activities. He therefore found that Mr Barry was disabled within the meaning of the Ogden tables.
The MOD invited the court to award future earnings losses only on a Smith v Manchester basis, because there was no significant difference between Mr Barry’s pre- and post-injury earning capacity. However, Johnson J considered that there was a diminution in his future in capacity as a result of his hearing loss. This led to the conventional multiplier multiplicand basis being used.
Johnson J specifically rejected the submission that Ogden should be disapplied, because the case was analogous to Billett v MOD. He considered that Mr Barry’s case was not at the “outer fringe of the spectrum covered by disability”, but rather, fell squarely within one of the examples given in the guidance because he was not pursuing his chosen career in the military. A further factor was that all of his remaining career options involved the need to communicate to a greater or lesser extent, and were therefore impacted by his hearing loss.
Johnson J then considered the reduction factors for contingencies other than mortality, and the revised Ogden guidance in the 8th edition of the tables. He considered that Mr Barry’s qualifications best met education level 2, which would provide a disabled reduction factor of 0.45, and a non-disabled reduction factor of 0.89.
He was persuaded that the “full” disabled reduction factor was probably not applicable, because Mr Barry’s disability was mild to moderate, and he could obtain some amelioration from hearing aids. He therefore adjusted the reduction factor, but followed the revised Ogden guidance to make an adjustment which was considerably more modest than the traditional “midpoint” (as done in Inglis v Ministry of Defence and a number of cases before and since).
He observed that the revised guidance was critical of this approach, and suggests that any adjustment should be made to the reduction factor for a different education level (on the basis that these more modest adjustments better represent greater employability, without underplaying the effect of disability).
He therefore took an adjusted reduction factor as if Mr Barry was at education level 3, rather than education level 2. This made the disabled reduction factor 0.56.
Causation and quantification
The Court considered the models of Professor Lutman (for the defendant) and Professor Moore (for the claimant), who have competing methods for diagnosing and quantify noise induced hearing loss.
Ultimately, Johnson J decided not resolve these issues. The two professors, despite applying different methods, agreed that Mr Barry suffered noise induced hearing loss as a result of noise exposure during his service in the Royal Marines, and were in broad agreement on the quantification of that loss. Johnson J considered that it was inappropriate to resolve the considerable issues between Professors Lutman and Moore, particularly when there is a large cohort of military noise induced to hearing loss claims in the background in which these scientific issues will be determined on a test case basis.
Johnson J declined to make a finding in the circumstances, although he did remark that he had no doubts as to the scientific integrity of both experts.
Conclusions
The court’s findings on future loss of earnings will be of the greatest relevance to personal injury practitioners more widely.
There is only one case which has considered the adjustment of reduction factors since the eighth edition of the Ogden tables was published in July 2020 (Palmer v Mantas [2022] EWHC 90 (QB)). The judge in that case did not expressly consider, as Johnson J did in Barry, the revised guidance on the adjustment of reduction factors, but instead relied on dicta from cases decided under earlier editions of the Tables.
Johnson J’s clear endorsement of the rationale behind the more recent guidance, and his detailed analysis of the factors going into an appropriate reduction factor, mean that this case is likely to attract wider attention beyond those interested in military and industrial disease claims.
The MOD has sought permission to appeal.
