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NOISE-INDUCED HEARING LOSS: QUANTUMOCCUPATIONAL DISEASE GUIDE 1A

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Noise-induced Hearing Loss: Quantum

CONTENTS

1. General damages (Pain, Suffering, Loss of Amenity) 2. Special damages (Medical expenses and hearing aids)3. Table of NIHL general damages awards based on the JC guidelines4. NIHL judgments: PSLA Awards5. Unilateral hearing loss 6. Tinnitus only

Occupational disease guide 1A

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1 GENERAL DAMAGES (PSLA) 1.1 Claims for Noise-induced Hearing Loss (“NIHL”) attract fairly modest compensation awards (general damages) for

Pain, Suffering and loss of Amenity (“PSLA”). Claims for NIHL, which can be highly complex and require technical expertise, are modest, as experiencing deafness is slow and incremental, and as such it can be difficult if not impossible for the sufferer to notice until the loss is quite advanced as it is generally accepted that hearing loss of less than around 25 decibels (dB) is not readily noticed.

1.2 Despite the relatively low value of general damages awards in NIHL claims, their assessment can be difficult and the factors involved can make the figures vary greatly.

1.3 The Judicial College (“JC”) is a panel of experts which sets down the guidelines that act as the starting point for determining what level of compensation injuries attract. They are usually a good starting point for Pain Suffering Loss of Amenity (“PSLA”) assessments, however they provide general brackets which are very broad. In the 13th edition of the JC Guidelines, Chapter 5, Injuries affecting the senses, section (B) Deafness/Tinnitus (i)-(vi) provides some explanation of the method of assessing the loss when it states:

“In assessing awards for hearing loss regard must be had to the following:

i. whether the injury is one that has an immediate effect, allowing no opportunity to adapt, or whether it occurred over a period of time, as in noise exposure cases;

ii. whether the injury or disability is one which the injured person suffered at an early age so that it has had or will have an effect on his or her speech (and will be suffered for a longer period), or is one that is suffered in later life;

iii. whether the injury or disability affects balance;

iv. the impact of the hearing loss on occupation;

v. in cases of noise-induced hearing loss (NIHL) age is of particular relevance as noted in paragraph (d) below.

vi. tinnitus may be suffered alone, rather than associated with NIHL.

Note also that the cases which form the basis of these brackets were decided before recent advances in medical science, such as cochlear implants which can in some cases restore total deafness to almost full hearing when worn.”

1.4 The disability may not be judged simply by the degree of hearing loss; as there is often a degree of tinnitus present, and tinnitus can attract higher awards than hearing loss.

1.5 Cases which were issued after April 2013 are subject to 10% uplift on general damages.

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Including 10% uplift

(b) Total Deafness

The lower end of the bracket is appropriate for cases where there is no speech deficit or tinnitus. The higher end is appropriate for cases involving both of these.

£69,000 to £83,325 £75,900 to £91,660

(c) Total Loss of Hearing in One Ear

Cases will tend towards the higher end of the bracket where there are associated problems, such as tinnitus, dizziness or headaches.

£23,800 to £34,600 £26,180 to £38,060

(d) Partial Hearing Loss or/and Tinnitus

This category covers the bulk of deafness cases which usually result from exposure to noise at work over a prolonged period. The disability is not to be judged simply by the total measurement of hearing loss; there is often a degree of tinnitus present and age is particularly relevant because impairment of hearing affects most people in the fullness of time and impacts both upon causation and upon valuation, such that the amount of noise-induced hearing loss (‘NIHL’) is likely to be less than an individual’s total hearing loss.

i. Severe tinnitus and NIHL £22,600 to £34,600 £24,860 to £38,060

ii. Moderate tinnitus and NIHL or moderate to severe tinnitus or NIHL alone

£11,300 to £22,600 £12,430 to £24,860

iii. Mild tinnitus with some NIHL £9,575 to £11,300 £10,530 to £12,430

iv. Slight or occasional tinnitus with slight NIHL £5,600 to £9,575 £6,160 to £10,530

v. Slight NIHL without tinnitus or slight tinnitus without NIHL

Up to £5,325 Up to £5,860

1.6 The relevant JC guidelines are as follows:

1.7 The descriptions given by the Judicial College in the JC Guidelines in relation to noise claims are ambiguous. For example does the category 4B(d)(i) Severe tinnitus/hearing loss apply only to cases of either severe tinnitus alone or severe hearing loss alone or do both need to be present? Is this a category for all cases of severe tinnitus or does the range within the bracket depend on the extent of hearing loss or age?

1.8 It’s important to note that awards can be highly variable, and case law is often very old.

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Interpreting the JC Guidelines 1.9 Classifying the severity of hearing loss/tinnitus requires an understanding of how hearing loss occurs: There is a

‘reservoir’ of hearing which can be lost before subjective disability arises. The level at which disability occurs is sometimes referred to as the ‘low-fence threshold’ and is generally thought to arise at around 20-25dB, depending on individual variability. Be aware that in some cases it can be at a lower figure.

1.10 Medical classifications of deafness are related to disability and not simply the degree of hearing loss and only start to categorise the loss once subjective disability arises.

1.11 The World Health organisation (“WHO”) defines a ‘slight impairment’ at between 26 and 40dB (in the better ear and averaged over 0.5, 1, 2, 4kHz). The Royal National Institute for Deaf People (“RNID”) describes ‘mild deafness’ at between 25 and 39dB; and the British Society of Audiology suggests ‘mild hearing loss’ at between 21 and 40dB..

1.12 There is an ongoing dispute on the issue of minimal (‘de minimis’) hearing loss, and at what level someone experiences loss, and the courts have on several occasions awarded damages for minimal hearing losses which are well below this threshold of disability. This causes one to ask ‘what is meant by the JC categories described as ‘slight’, ‘some’, ‘modest’ or ‘severe’ hearing loss?’ For a more detailed discussion see the disease guide on NIHL. However, for a simplified version the table below is a good starting point:

1.13 These last three categories follow the WHO classification of disability.

1.14 There are various classifications for tinnitus. There are five grades of tinnitus according to guidelines from the British Association of Otolarngologists (Head & Neck Surgeons, 1999. McCombe A et al. (2001) Clin. Otolaryngol. 26, 388-393). The majority of people suffering tinnitus should fall into grades 2 and 3.

1 (Slight) Only heard in a quiet environment, and is very easily masked. No interference with sleep or daily activities. 2 (Mild) Easily masked by environmental sounds and easily forgotten with activities. May occasionally interfere with sleep but not with daily activities. 3 (Moderate) May be noticed, even in the presence of background or environmental noise, although daily activities may be still be performed. Less noticeable when concentrating. Not infrequently interferes with sleep and quiet activities. 4 (Severe) Almost always heard; rarely, if ever masked. Leads to disturbed sleep patterns and can interfere with the ability to carry out normal daily activities. Quiet activities are adversely affected. There should be documentary evidence of the complaint having been brought to the general (or some other) practitioner (prior to the medicolegal claim). Hearing loss is likely to be present but its presence is not essential. Grading in this group should be uncommon. 5 (Catastrophic) All tinnitus symptoms at level of severe or worse. There should be documented evidence of medical consultation. Hearing loss is likely to be present but its presence is not essential. Associated psychological problems are likely to be found in the hospital or general practitioner records. Grading in this group should be extremely rare.

Level of loss (not only NIHL) Impairment

Up to 25dB Slight hearing loss, ie likely to be below the low-fence threshold

25 – 39dB Some hearing loss

40 – 60dB Moderate hearing loss

61dB or more Severe hearing loss

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Tariff table of awards

1.15 At Section 3 of this guide is a tariff table of likely general damages awards based on these JC classifications (and BLM’s interpretation of them). Awards are dependent on a claimant’s age, degree of NIHL/disability and the presence/severity of tinnitus.

Case law

1.16 At Section 4 of this guide are tables of NIHL case law showing that damages awards are highly variable and have little consistency. There are relatively few reported awards.

1.17 It has also been argued by claimants that many historic damages awards do not take account of the true disabling effects of tinnitus.

1.18 Many of the reported cases do not say whether any account is taken of hearing loss due to the natural ageing process. This could also have an inflationary effect on the reported figures.

1.19 The tables at appendices 1 and 2 can be used together to provide a valuation bracket.

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2 SPECIAL DAMAGES: MEDICAL EXPENSES AND HEARING AIDS 2.1 In principle, a claimant is able to recover damages for the cost of medical care and treatment (past and future)

arising as a result of the defendant’s tort.

Evidential hurdles

2.2 The claimant has to show that: • the need for treatment is reasonable and necessary (and supported by medical evidence); • the extent, duration and costs of the same are reasonable; • the expense will actually be incurred on the balance of probability.

2.3 The costs of any treatment should be discounted to take account of uncertainty as to whether the claimant will need the suggested treatment (Thomas v Bath District Health Authority, 1995 P1QR Q19).

The Law Reform (Personal Injuries) Act 1948

2.4 When considering whether any medical treatment is reasonable, it is not open to the defendant to argue that the availability of NHS treatment precludes the recovery of the costs of private treatment.

2.5 The claimant has the choice to select either NHS or private care – as they had before any injury was suffered. Section 2 (4) of the Law Reform (Personal Injuries) Act 1948 states:

“In any action for damages for personal injuries there shall be disregarded, in determining the reasonableness of any expenses or part of them by taking advantage of facilities available under the National Health Services Act 1977.”

2.6 However, where treatment is available on the NHS, then the court has to consider on the balance of probabilities whether the claimant will actually obtain treatment privately and incur the associated costs.

2.7 If the claimant will not in fact incur medical expenses, either because they are not necessary or he will take advantage of NHS facilities, there is no right of recovery for private expenses (Harris v Bright Asphalt Contractors Limited [1953] 1 QB 617). In Cunningham v Harrison [1973] QB 942, Lawton LJ noted that while s2(4) forbids the argument that the claimant could avoid private expenses by falling back on the NHS, the defendant could nonetheless submit that because the claimant would be unable to obtain the private care sought and would be required to use services provided by the NHS, private expenses would probably not be incurred.

2.8 The private costs of treatment are not recoverable where they will never be incurred as this would lead to double recovery to the claimant (Woodrup v Nicol [1991] EWCA Civ). Russell LJ explained the effect of section 2(4):

“… if, on the balance of probabilities, a plaintiff is going to use private medicine in the future as a matter of choice, the defendant cannot contend that the claim should be disallowed because National Health Service facilities are available. On the other hand, if, on the balance of probabilities, private facilities are not going to be used, for whatever reason, the plaintiff is not entitled to claim for an expense which he is not going to incur.”

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2.9 In Lim Poh Choo v Camden and Islington Area Health Authority [1980] 2 All ER (and considered in Sowden v Lodge [2005] I All ER 581), the Court of Appeal affirmed that the Law Reform (Personal Injuries) Act 1948 does not prevent a submission by a defendant that the claimant will probably not incur the expenses.

2.10 As noted by Waller LJ in Eagle v Chambers [2004] EWCA Civ 1033, the question is whether on a balance of probabilities the claimant will obtain services from the NHS. The burden is on the defendant to show that the claimant will probably not incur the private expenses sought. In Sowden v Lodge [2004] EWCA Civ 1370, Pill LJ noted that Lim Poh Choo confirmed that s.2(4) does not prevent a defendant submitting that a claimant will probably not incur expenses where he would only be able to receive the care needed through the NHS.

The basis of hearing aid claims

2.11 Whilst claims for the cost of private hearing aids have always been associated with NIHL claims, in recent years it seems that such claims are more common and robustly pursued.

2.12 Claims were initially made on the basis of a claimant obtaining greater clinical benefit from digital as opposed to analogue aids. Before 2005 only analogue hearing aids were available on the NHS and the technology had developed little from the 1970s.

2.13 However, since April 2005 all NHS hearing-aid centres in England have provided modern behind-the-ear (BTE) digital aids.

2.14 The focus of claims for privately funded hearing aids has therefore evolved. Claims are now made on the basis of the following: i. Waiting time on the NHS for digital BTE hearing aids being too long. ii. The claimant obtaining greater benefit and improved cosmetics from in-the-ear (ITE), in-the-canal (ITC) or completely-in-the-canal (CIC) hearing aids. 2.15 Government-published data shows audiology waiting times within 18 weeks. The average waiting time between

referral and treatment (usually a hearing aid) within audiology in June 2013 was 4.6 weeks and 98.8% of patients were seen within 18 weeks, according to the latest NHS England statistics (November 2016).

2.16 Any argument that private aids are clinically better than NHS aids is weak. The NHS has all types of aids which have the following:

• Multi-channel ‘wide dynamic range compression’. This means the aid can be set so the patient can hear a wide variety of sounds, without any of them being uncomfortably loud;

• Suppression of annoying background noise; • Suppression or cancellation of feedback, making the aid much less likely to whistle; • Multiple listening programmes, which allow a patient to switch to different settings for different listening conditions; • Dual microphone systems which allow a patient to pick up sound from all around or mainly from the front

(directional setting); • Programmable settings to fine-tune the patient’s needs.

2.17 With a referral from a GP any individual is able to attend at private healthcare companies such as Specsavers to be provided with an NHS supplied digital hearing aid.

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2.18 The benefits of ITE as opposed to BTE aids have been researched. There does not appear to be any advantage in terms of speech recognition (Speech recognition with ITE and BTE dual microphone hearing instruments, Journal of the American Academy of Audiology 2000; 11:23-35, Pumford JM et al.) or ability to locate sound (Effects of long term bilateral and unilateral fitting of different hearing aid types on the ability to locate sounds, Journal of the American Academy of Audiology, 1992; 3:369-82, Byrne D et al.).

2.19 The additional benefits of obtaining aids on the NHS include: • free initial and replacement aids; • free repairs and help with using the aids; • free batteries; • easily arranged medical treatment for ears or hearing arranged by the audiology department.

Types of hearing aid

2.20 All digital aids work in the same way and have three basic parts: a microphone, amplifier and speaker. The aid receives sound through the microphone and then converts the sound wave to electrical signals which are amplified and then relayed to the ear via the speaker.

2.21 BTE (behind-the-ear): These have an ear mould or a soft tip that fits snugly inside the ear. The hearing aid rests behind the ear and a soft plastic tube connects it to the ear mould/soft tip and channels sound from the aid into the ear. Some models have twin microphones which allow a user to switch between all-round sound and a more directional setting that helps focus on wanted sound in a noisy environment. They can be programmed in a precise way to suit the hearing loss and everyday needs. The aids generally have a lifespan of around five years.

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2.22 These fit entirely into the ear. The working parts are either in a small compartment clipped to the ear mould or inside the mould itself. ITE aids tend to need repairing more often than BTE aids.

2.23 ITC (in-the-canal): These are even smaller than ITE aids and less visible. They are unsuitable for severe hearing losses.

2.24 The advantages and disadvantages of the different types of aid are summarised in the following table. The main reason for using ITE and ITC aids is cosmetic.

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Hearing disability and hearing aids in the UK

Type of aid Advantages Disadvantages

BTE (Behind the ear) Suitable for mild-profound hearing lossesMore amplification than ITE and ITC aids. A must for profound lossSize permits complex circuitry with numerous optionsCan be less visible than ITE aids if an ‘open fit’ aid is used. This is a small BTE aid with a narrow tube inserted into the ear canalOpen fit is good for people with build-up of ear wax and are less occlusive so sound not ‘plugged up’Longest battery life

Visible although with normal length hair often covered

BTE (Behind the ear) Suitable for mild to severe hearing lossEasy to insert and remove

Not suitable for profound hearing lossLess reliable than BTE aidsShorter battery lifeMore visible than ITC aids and sometimes BTE aidsProne to damage by ear wax

ITC (In The Canal) Very good cosmetically Circuit selection, amplification, options and battery life all reducedNot suitable for severe-profound hearing lossesCan be fiddly to use and less suitable for those with poor manual dexterityProne to damage by ear waxLess reliable than BTE aidsMay be unsuitable for those with small ear canals

CIC (Completely In The Canal)

Best cosmetically Circuit selection, amplification, options and battery life all reducedNot suitable if you have severe hearing loss or frequent ear infections.Can be fiddly to use and less suitable for those with poor manual dexterityProne to damage by ear waxLess reliable than BTE aidsMay be unsuitable for those with small ear canals

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2.25 The extent of hearing disability in the UK appears to be increasing. Between 1979 and 2002 there was an increase in the percentage of adults reporting hearing difficulties from 13 to 16%. The percentage of people wearing a hearing aid over the same period increased from 2 to 4% (National Statistics Online: Hearing and hearing aids, published April 2004).

2.26 Hearing difficulties are strongly related to age and sex (males worse than females). Today there are thought to be around nine million adults in the UK with hearing disability (over 20% of the population) – see figures below.

Figure: Estimated percentages of the UK population with hearing difficulties, 2009

Figure: Estimated number of the UK population with hearing difficulties, 2009

2.27 About two million people in the UK have hearing aids but only about 1.4 million use them regularly. See: www.rnid.org.uk/information_resources/factsheets/deaf_awareness/factsheets_1.

2.28 About 75% of aids are obtained on the NHS and 25% privately. The reasons for not wearing them include poor aiding of hearing, cosmetic/stigma, poor fitting, magnifying background noise and causing infections.

2.29 About 62% of people who wear aids report continuing problems with hearing (Living in Britain, General Household Survey, 2002, chapter 11: Hearing & Hearing Aids). In addition to the two million people with aids there are a further four million who would probably derive clinical benefit from them. The 1.4 million regular users of aids therefore represent only 23% of hearing impaired adults who would benefit from aiding.

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2.30 Figure: Percentage of men and women in UK with hearing difficulty who wear aids.

2.31 In the UK, most hearing aid users have an average hearing loss ranging between 25 and 65dB. The average loss at which someone starts to wear a hearing aid is 40 - 45dB (averaged over 0.5, 1, 2, 4kHz). The level of referral and use increases with the severity of hearing loss and age. The perception of stigma associated with hearing aids is a powerful deterrent to acceptance and use. Use increases when the clinical benefits start to significantly outweigh the bother/inertia of using the aid/stigma/cosmetic concerns.

Establishing a clinical need for hearing aids

2.32 NHS trusts and audiology centres use 25dB as the criteria for assessing individuals as suitable candidates for hearing aids. However this does not reflect scientific investigations by Haggard and Gatehouse who suggest the correct threshold for hearing aids should be 35dB.

2.33 Research on the degree of hearing loss that warrants a hearing aid is limited and manufacturers claim that aids can assist users with the smallest hearing losses.

2.34 The most substantial UK study was published by Professors Haggard and Gatehouse in 1993: Candidature for hearing aids: justification for the concept and a two part audiometric criterion, British Journal of Audiology, 1993; 27:303-18, Haggard MP and Gatehouse S. This study suggested that most individuals would derive benefit from aids where the hearing loss in the ‘better ear’ was at least 35dB (averaged again over 0.5, 1, 2, 4kHz), although it accepted that benefit could be achieved in some individuals with lower loss. If the binaural loss is less than 30dB than arguably no real clinical benefit is achieved by aiding. The lower the loss the stronger this argument. Any clinical benefit becomes less a probability and more just a possibility. For losses below 25dB it is unlikely that aids offer any material benefit.

2.35 The most important frequencies for speech recognition are in the range 0.5 - 3kHz. If hearing is ‘normal’ at all frequencies up to 3kHz there will be little benefit from aiding frequencies at 4kHz and above. NIHL predominantly affects hearing at 4kHz and to a lesser extent 3 and 6kHz. If there are significant losses over the ‘speech frequencies’ of 0.5 - 3kHz then this probably arises from causes other than noise. There is then an argument open that any clinical requirement for aiding does not arise from the NIHL.

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Acceleration and ‘cut-off’ for claims

2.36 The median age of people in the UK who start to refer themselves to their GP regarding hearing loss is around 75 and the median hearing loss at the time of first fitting of an aid is in the region of 40 - 45dB (over 0.5, 1, 2, 4kHz in the ‘better ear’). Just over 70% of over 70-year-olds (this includes people exposed and not exposed to noise) will have some kind of hearing loss and just under half of these will have moderate hearing loss which would probably benefit from aiding. Claims for hearing aids may therefore be made on the basis that any NIHL has accelerated the need for hearing aids which would not have been required until later in the claimant’s life.

2.37 The effects on hearing of age-related loss and NIHL are additive, though less than the sum of the two causes. Excessive noise damages the same hair cells in the cochlea that degenerate with advancing age, and there is only a finite number of these. If the hair cells have been damaged by one of these causes they cannot be re-damaged by the other. The effect of the noise component of overall hearing loss progressively diminishes with time. At the age of 80 years, it makes virtually no difference to an individual’s hearing ability what his/her noise exposure has been Impairment and disability in noise-induced hearing loss, Advances in Audiology, vol 5, Karger, Basel, 71-81) (Robinson DW (1988). This could act as a ‘cut-off ’ for any claim for hearing aids.

Will a claimant incur private expenditure?

2.38 The lower the level of hearing loss the less likely the claimant would achieve any clinical benefit from aiding. In such circumstances it is less likely the claimant would incur significant expenditure on private aids which may be of no use at all.

2.39 In many cases the first recommendation for aiding is made by a medico-legal report associated with the claim. If a number of years has passed since the onset of a hearing disability and the claim being made (which is often the case) and a claimant has made no attempt to see his GP and/or be referred for aiding on the NHS, then where is his clinical need/motivation for private aids?

2.40 If the claimant is already in receipt of NHS aids which are beneficial then again where is the motivation to incur private expenditure for private aids? This is particularly so where a claimant is older/no longer working/has less manual dexterity such that cosmetics are likely to be of less importance and the disadvantages of non-BTE aids outweigh the benefits.

When are aids inappropriate?

2.41 The ear canal must be healthy. Contraindications are otitis externa and otitis media (inflammation/infections of outer and middle ears).

2.42 Where there is a severely deformed pinna or ear canal then BTE/ITE type aids are not appropriate – amplification of the cochlea is possible through bone conduction devices.

2.43 Elderly diabetics should be fitted with hearing aids with caution owing to their increased susceptibility to otologic infections.

2.44 When there is normal or slightly elevated thresholds in the low frequency band with nearly total deafness in the high frequencies, the individual is beyond the scope of effective treatment with hearing aids only.

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2.45 Loss of hearing for just a small portion of the frequency range may not cause any noticeable reduction in speech recognition ability, therefore eliminating the need for hearing aids. For example, where there is a hearing loss at 4kHz but where hearing thresholds are in the normal range from 0.5 to 3kHz, speech recognition is likely to be unaffected and hearing aids are unlikely to be of benefit.

2.46 Individuals with profound hearing loss (defined by the World Health Organisation as being in excess of 81dB – unable to hear and understand even in a shouted voice) do not usually have good word-recognition skills which reduces the benefit of amplification with hearing aids.

2.47 If the individual is profoundly deaf cochlea implants are a more effective method of treatment.

2.48 If an individual suffers from recruitment amplification then a hearing aid may be uncomfortable. Similarly if there is hyperacusis (abnormal discomfort caused by sounds that are tolerable to listeners with normal hearing) it may be aggravated by the use of a hearing aid.

2.49 Hearing aids should not be worn with ear defenders as they can occlude the hearing aid microphone and cause acoustic feedback.

One or two aids?

2.50 Generally where there is largely symmetrical hearing loss then binaural amplification is recommended by audiologists.

2.51 A case for monoaural fitting may be justified if one ear has hearing loss that is too mild to warrant aiding or too great to achieve useful benefit compared to the other ear.

2.52 In 2008 the first instance decision of Coffin v. Ford Motor Co Limited (unreported) set out ‘when a claimant can demonstrate a need for hearing aids they may recover for the aids but they must ‘shop around’, and look for reasonably priced hearing aids’. Simply picking the most expensive aids will not be looked favourably upon without very good reason. Since that judgment, technology has advanced and the price of hearing aids has dropped substantially, as will be seen from companies such as Specsavers and the like. Hearing aids can now be bought for far less than the £1000 pounds envisaged in Coffin.

Extent, duration and cost of treatments – what is reasonable?

2.53 The cost of private aids from private hearing-aid dispensers varies from around £300 - £3,000 per aid. The annual cost of batteries is around £50 - £100.

2.54 The cost of private aids is falling with the introduction of greater competition from high-street retailers such as Specsavers who usually provide good digital aids of all types for as little as £495 a pair, including batteries and servicing.

2.55 The standard of training, fitting and customer care for all private hearing-aid dispensers is the same and governed by the Hearing Aid Council. There is no good reason why the value of a hearing aid claim should be based on expensive quotes from private dispensers rather than costs of high-street retailers.

2.56 Aids generally last for around five years before they need replacement. What is the cost of initial and replacement aids during the claimant’s lifetime? Does the claimant have a reduced life expectancy? Are there other causes of hearing loss which would have given rise to aiding now or in the future and act as a ‘cut-off ’. Arguably after the age of 80 any NIHL becomes irrelevant to the overall disability and should apply as a cut-off.

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Example: Defending a claim for hearing aids

2.57 The claimant is 53 years old who has minimal NIHL of 5dB together with age-associated loss (over frequencies 1, 2, 3kHz) of 10dB.

2.58 The claimant’s loss was identified by workplace audiometry. He had not perceived any subjective loss at the time. The claimant has never seen his GP or been referred to an ENT or audiology centre. He instead seeks legal advice to pursue a claim for compensation for NIHL and is seen by a medical expert for the purpose of a report for litigation. The expert says that the claimant might benefit from a hearing aid and a claim for the costs of a private aid is made for say £12,000 with an initial purchase cost of £4,000 for binaural aids.

• Is this a claim which the defendant should reasonably be expected to pay for? • The first question to ask is whether the claimant would derive clinical benefit from using the aid. • There is a ‘reservoir’ of hearing which may be lost before any subjective disability arises – also known as the ‘low

fence’ of noticeable or measurable auditory disability. Generally a hearing loss of 20dB - 25dB is described as a slight hearing loss which results in minimal difficulty with soft speech. An average hearing loss of 25dB (in the ‘better ear’ and averaged over frequencies 0.5 kHz - 4.0kHz) is often used as a general classification boundary for material hearing impairment.

• In the UK, most hearing-aid users have an overall hearing loss between 25 and 65dB. The average loss at which someone starts to wear a hearing aid is 40 and 45dB. The level of referral increases with the severity of hearing loss and age. This reflects the force of stigma and inertia of wearing aids.

• The claimant’s overall hearing loss can only be classified as very minor loss. Arguably, it does not give rise to any subjective disability or difficulty in communication. The claimant has never sought medical advice or assistance; is he likely to spend £4,000 on private hearing aids today? Bearing in mind the minimal NIHL of 5dB, would the claimant not have required hearing aids in the future in any event as a result of ageing? Would the 5dB loss really mean that the need for hearing aids is accelerated?

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Example: Assessing quantum

2.59 If there is a valid claim then the example below shows how to value this. • 55-year-old male. • Binaural aids costing £2,000. • Replacement aids required every five years. • Annual running costs of £100 (batteries/servicing).

2.60 The life expectancy for 55-year-old male is 30.58 years to age 85 (Ogden 2011/12 Table 1; 0% rate of return).

2.61 Based on a five-year life expectancy of the hearing aid, we are looking at initial purchase costs and four subsequent replacements.

2.62 For expenditure occurring at regular fixed periods, then use Ogden Table A5 (multipliers at 2.5% discount).

2.63 The multiplier for expenditure at five-yearly intervals over 30 years is 3.98. The table does not take into account mortality risk. The multiplier must be discounted to reflect this. To do this compare the multiplier both for the fixed term period of loss of 30 years (Table 28, 2.5%, for which there is no discount for mortality) with the multiplier for life (which does discount for mortality). The respective multipliers are 21.19 and 20.56 (Table 1, 2.5%). The fixed term multiplier of 3.98 therefore needs to be reduced by a factor of 20.56/21.19 = 0.97.

• The reduced multiplier is 3.98 x 0.97 = 3.86 • The claim for future hearing aids is £2,000 x 3.86 = £7,720 • The cost of initial purchase of £2,000 must be added to this, i.e., a total claim of £9,720 • The multiplier for annual costs for a lifetime is -0.75% (Ogden Table A1; male aged 55; -0.75% rate of return) • The total running costs are £100 x 20.56 = £2,056 • The overall hearing aid claim would be valued at £7,720 + £2,000 + £2,056 = £11,776

Age Purchase

55 Initial

60 2nd

65 3rd

70 4th

75 5th

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3 NIHL GENERAL DAMAGES AWARDS (JC GUIDELINES WITHOUT 10% UPLIFT)

Hearing Loss

Age in years Tinnitus

Up to 30 31-35 36-40 41-45 46-50 51-55 56-60 61-65 66-70 Over 70

Slight

Up to 15 dB

£5,150 £5,000 £4,850 £4,700 £4,550 £4,400 £4,250 £4,100 £3,950 £3,800 None

£9,250 £8,820 £8,395 £7,965 £7,540 £7,110 £6,685 £6,255 £5,830 £5,400 Slight

£11,000 £10,705 £10,410 £10,115 £9,820 £9,520 £9,225 £8,930 £8,635 £8,340 Mild

£20,890 £19,690 £18,490 £17,290 £16,090 £14,890 £13,690 £12,490 £11,290 £10,090 Moderate

£33,500 £32,200 £30,900 £29,600 £28,300 £27,000 £25,700 £24,400 £23,100 £21,800 Severe

Some

16 to 30 dB

£6,970 £6,810 £6,650 £6,490 £6,330 £6,170 £6,010 £5,850 £5,690 £5,530 None

£10,160 £9,835 £9,505 £9,180 £8,855 £8,525 £8,200 £7,875 £7,545 £7,220 Slight

£11,000 £10,805 £10,610 £10,415 £10,220 £10,030 £9,835 £9,640 £9,445 £9,250 Mild

£21,800 £20,600 £19,400 £18,200 £17,000 £15,800 £14,600 £13,400 £12,200 £11,000 Moderate

£33,500 £32,300 £31,100 £29,905 £28,705 £27,505 £26,305 £25,110 £23,910 £22,710 Severe

Moderate

31 to 45 dB

£17,255 £16,460 £15,665 £14,865 £14,070 £13,275 £12,480 £11,680 £10,885 £10,090 None

£18,770 £17,840 £16,910 £15,975 £15,045 £14,115 £13,185 £12,250 £11,320 £10,390 Slight

£20,280 £19,215 £18,150 £17,085 £16,020 £14,955 £13,890 £12,825 £11,760 £10,695 Mild

£21,800 £20,600 £19,400 £18,200 £17,000 £15,800 £14,600 £13,400 £12,200 £11,000 Moderate

£33,500 £32,400 £31,305 £30,205 £29,110 £28,010 £26,915 £25,815 £24,720 £23,620 Severe

Severe

Above 45 dB

£21,800 £21,295 £20,790 £20,285 £19,780 £19,275 £18,770 £18,265 £17,760 £17,255 None

£24,730 £24,100 £23,475 £22,845 £22,215 £21,590 £20,960 £20,330 £19,705 £19,075 Slight

£37,655 £35,790 £33,930 £32,065 £30,205 £28,340 £26,480 £24,615 £22,755 £20,890 Mild

£30,580 £29,705 £28,830 £27,955 £27,080 £26,210 £25,335 £24,460 £23,585 £22,710 Moderate

£33,500 £32,505 £31,505 £30,510 £29,515 £28,515 £27,520 £26,525 £25,525 £24,530 Severe

18

4 NIHL JUDGMENTS: PSLA AWARDS

Average Binaural Loss dB (1,2,3 khz)

TinnitusAge of

Claimant (at trial)

CaseGeneral Damages

Updated Award

To

Date

Comments

7.5 Mild 45 Ward v Jeld Wen UK Limited April 2004

£6,500 £8,460 Tinnitus occurred 2/3 times a day and lasted 20/25 minutes each time

8.6 Moderate 29 Kay v IW Cook (Wivenhoe) Ltd June 1987

£4,500 £10,680 Judge took into account age of claimant and future presbycusis in any event

9 Moderate 56 Jones v Calsonic Llanelli Radiators Limited July 1995

£6,500 £10,540 Intermittent tinnitus

9.3 Mild 54 Kearney v Calsonic Llanelli Radiators Limited November 1998

£3,500 £5,150

10 Mild 49 Harry v Ford Motor Co. November 1994

£5,250 £8,740 Intermittent tinnitus affecting sleep

12 Mild 52 Puxley v Ford Motor Co. March 1995

£5,000 £8,200 Constant tinnitus in left ear but not a dramatic effect on life

12.5 None 43 Faulkner v British Rail Eng Ltd June 1983

£2,250 £6,410 Future presbyacusis taken into account

12.7 Moderate 46 Evans v Calsonic Llanelli Radiators Limited July 1995

£7,500 £12,160 Constant tinnitus but insufficient to prevent sleep

13 Moderate 66 Morris v Calsonic Llanelli Radiators Limited July 1995

£8,500 £13,780 Tinnitus constantly intrusive

13 Mild 60 Davies (D.T.W) v Ford Motor Co. September 1995

£6,250 £10,030 Intermittent tinnitus

13 Mild 43 Truman v Ford Motor Co. March 1995

£3,750 £6,150

13.3 None 42 Lewis v B.T.R. Plc May 1999

£5,500 £8,030 The claimant complained of occasional “high pitched whines”

14 None 33 Brent v Ford Motor Co. April 1989

£4,250 £8,990

14 Moderate 56 Radford v Ford Motor Co. March 1995

£9,000 £14,760 Constant tinnitus with severe effect

14.6 Mild 63 Picton v Southfield Engineering Ltd.

July 2007

£8,000 £9,390 Noise exposure for period of 11 yrs accelerated need for hearing aid

by 10 years.

Claimant experienced temporary buzzing noise for one hour after finishing

a day’s work

BILATERAL HEARING LOSS

19

15 Mild 50Thomas v Ford Motor Co.

April 1989£2,200 £4,650 Very occasional mild tinnitus

15 Moderate 49 Pugh (RP) v Ford Motor Co. February 1995

£7,500 £12,350 Constant right sided

15 Mild 48 Tucker v Ford Motor Co. February 1996

£7,000 £11,220 Slight hearing loss and slight tinnitus

15 Very Mild 44 Blaize v Ford Motor Co. June 1988

£3,500 £7,940 Periodic tinnitus of no concern to the claimant

15 None 54 Davies v Calsonic Llanelli Radiators Limited May 1997

£3,750 £5,780 Minor disability only at home

15 Mild 54 Greenidge v Ford Motor Co. January 1989

£2,650 £5,770 Occasional Tinnitus

15.3 None 53 Fry v Ford Motor Co June 1996

£4,500 £7,110 Court thought case was comparable to Faulkner (above) but there was additional

loss of hearing at high frequency

16 Mild 47 Holmes v Ford Motor co. February 1996

£4,250 £6,810 Intermittent tinnitus. Causes sleep disturbances at times

16 Mild 58 Honeychurch v Ford Motor Co September 1996

£4,161 £6,540 Tinnitus occurring every 2/3 weeks

16 Mild 52 Bygraves v Ford Motor Co. January 1989

£2,750 £5,990 Occasional Tinnitus

16 None 48 Mustafa v Ford Motor Co. January 1989

£2,500 £5,450

17 Moderate 46 Withers v Ford Motor Co. March 1995

£7,500 £12,290 Tinnitus had some effect on sleep

15-18 Severe 35 Bailey v ICI Ltd June 1979

£7,000 £31,210 Permanent tinnitus

17 None 46 Cardy v Ford Motor Co. April 1989

£2,700 £5,710

17 None 60 Lindo v Ford Motor Co. January 1989

£2,750 £5,990 Hearing aid recommended

17 Moderate 51 Read v British Rail Board October 1997

£8,500 £12,890 Tinnitus was obtrusive and affected sleep

18 None 36 Pybis v Liverpool Corp June 1987

£3,500 £8,310

18 Moderate 48 Meyrick v Austin Rover Group July 1995

£11,000 £17,940 Tinnitus affected sleep and concentration

19 Moderate 57 Hayes v Ford Motor Co. November 1995

£5,000 £8,070 Continuous bilateral tinnitus. Damages reduced by one third for exposure in other

employment

20

19 None 56Phillips v Ford Motor Co.

December 1994£3,375 £5,590

6% loss due to aging process. Damages reduced by 10% for exposure in other

employment

20 None 56 Abraham v Ford Motor Co. April 1989

£3,000 £6,350

20 None 58 Brown v Ford Motor Co. January 1989

£3,250 £7,100 Occasional use of a hearing aid

20 Mild 49 Buller v Austin Rover Group July 1995

£5,750 £9,320 Intermittent tinnitus

20 None 48 Clark v Ford Motor Co. April 1989

£2,800 £5,920

20 None 58 Green v Ford Motor Co. April 1989

£4,500 £9,520 Occasional use of a hearing aid

20 None 62 Dew v. British Telecommunications January 2012

£7,950 £8,090

20 Mild 33 Powell v Ford Motor Co. September 1995

£5,000 £8,030 Mild tinnitus and disability enhanced award due to claimant’s age

20 Mild 50 Barnett v Ford Motor Co. March 1995

£5,750 £9,430 Intermittent tinnitus

20 Mild 61 Richards v Ford Motor Co. September 1996

£4,680 £7,360 Intermittent in left ear only. 10% reduction of damages for exposure

in other employment

21 None 45 Jenkins v Ford Motor Co. October 1996

£4,000 £6,290

20 Moderate 49 Stephens v Calsonic Llanelli Radiators Limited 1995

£6,500 £10,490 Intermittent tinnitus

22 Mild 61 Driscoll v Ford Motor Co. January 1989

£3,500 £7,620 Slight tinnitus but most was not noise induced

22 None 53 Joseph v Ford Motor Co. January 1989

£3,000 £6,540

22 None 64 Brooks v Ford Motor Co. December 1994

£3,750 £6,210 Background noise caused difficulties

22 Mild/Moderate

54 Mayers v Ford Motor Co. December 1995

£6,000 £9,630 Tinnitus in both ears

23 Moderate 54 Jones v Ford Motor Co. February 1995

£8,000 £13,170 Continuous moderate tinnitus. Getting to sleep badly affected

23 Moderate 59 Davies (TB) v Ford Motor Co. February 1996

£6,000 £9,610 Tinnitus 10/12 times per day. Affected hobby because of hearing difficulty

21

23 Mild 51Dubar v Ford Motor Co.

January 1989£3,500 £7,620 Occasional Tinnitus

23.3 None 55 Hobson v Tanqueray Gordon Ltd March 1983

£3,500 £10,180 Liability admitted. Judge referred to 50% effective hearing loss

24 Severe 54 Edwards (Alfred) v MOD June 1982

£6,500 £19,360 Intermittent tinnitus, unbearable at times. No Smith & Manchester award

24 Mild 56 Owens v Express Group January 1991

£10,125 £18,940 Award of £13,500 discounted by 25% for exposure in other employment. Tinnitus disturbed sleep. Suggestion by Drake J

that awards made against the Ford Motor Company in Jan/April 1989 “appear generally to be on the low side.”

24 None 62 Fellows v Ford Motor Co. December 1994

£3,750 £6,210

24 None 55 Tong v Ford Motor Co. March 1996

£3,750 £5,990

25 Mild 63 Wright v Ford Motor Co. January 1989

£4,250 £9,260 Slight but constant tinnitus

25 Mild 52 Wade v Ford Motor Co. September 1995

£6,500 £10,440 Intermittent tinnitus

25.6 None 46 Earlam v Hepworth Heating Limited June 1996

£5,500 £8,700 50% risk of needing a hearing aid at an earlier age, claim for hearing aid reduced by

75% to include discount for early receipt

26 Moderate 53 Pugh (R) v Ford Motor Co. May 1995

£9,750 £15,800 Constant tinnitus. Sleep disturbed from time to time. Significant loss in

higher frequencies

26.6 Moderate 67 Neil v UEC Industries June 2000

£7,000 £9,890 Discount of 25% for exposure in other employment. Tinnitus constant, some sleep disturbance. Mixed hearing loss made this

more severe

27 Mild 47 Barnes v Ford Motor Co. April 1989

£3,500 £7,400 Occasional Tinnitus

27 Moderate 62 Pritchard v Ford Motor Co. November 1994

£4,750 £7,900 Tinnitus continuous in left ear and intermittent in right ear disturbing sleep.

27.5 Severe 54Heslop v Metalock

June 1981£7,750 £25,430

Includes £750 (now £2,000) for the Smith & Manchester element

28.8 Mild 63 Elliott v Ford Motor Co June 1990

£6,500 £12,400

28.85 Mild 63 Squires v Corus October 2006

£8,750 £10,560 Tinnitus caused intermittent insomnia. Claimant also awarded £7,000 for the

future cost of digital hearing aids

22

29 Mild 57 Field v Ford Motor Co. April 1989

£3,800 £8,040 Very occasional mild Tinnitus

29 Moderate 54 Roach v Ford Motor Co. November 1994

£10,000 £16,700 Constant tinnitus with significant effect on enjoyment of life

29.33 Severe 56 Hill v ARC (South Wales) Ltd July 1998

£19,500 £29,630 Constant severe tinnitus which caused depression, affected concentration and

30 Mild 62 Swarbrick v Ford Motor Co. December 1994

£3,500 £5,800 Tinnitus ceased after that claimant stopped working

30.4 Moderate 52 Holland v Hoechst Trespaphan March 2001

£12,500 £17,550 Digital hearing aids required for both ears as NHS aids were inadequate.

19% disability of which 5% was due to presbyacusis. Permanent and

constant tinnitus

31.4 Mild 51 Kellett v British Rail Eng June 1984

£3,200 £8,670 Defendant found to be in breach of duty from 1955. No Smith & Manchester award

31.77 Mild 65 Munro v MOD June 1985

£3,250 £8,240

32 Mild 61 McCafferty v Receiver for Metropolitan Police District

June 1975

£850 £5,910

32 None 57 Mathews v Ford Motor Co. November 1994

£4,250 £7,070 Fairly severe hearing loss

32 None 48 Davies (DL) v Ford Motor Co. February 1996

£4,250 £6,820 Enhanced award for age and claimant’s recreation of classical music

32 None 61 Davies (AJ) v Ford Motor Co. July 1997

£3,440 £5,290 Claimant had tinnitus but it was not noise induced

32.7 None 55 Case v Ford Motor Co June 1996

£6,000 £9,490 Gave up umpiring at cricket matches due to increased deafness. Award included future

need for hearing aids and ceefax TV

33 Mild 53 St Romaine v Ford Motor Co. January 1989

£3,800 £8,290 Slight intermittent Tinnitus

33 Mild 55 Mason v Ford Motor Co. November 1994

£6,750 £11,250 Continuous tinnitus affecting sleep. Not disabling but severe inconvenience

to enjoyment of life

33 None 51 Thomas v Ford Motor Co. September 1995

£4,250 £6,830

35 Mild 33 Rollinson v Thomas C Wild Ltd June 1979

£2,750 £11,960

35 Moderate 55 Brookes v Ford Motor Co. April 1989

£8,000 £17,020 Constant Tinnitus. Sleep disturbed about twice a week

23

36 None 62 Gallagher v Ford Motor Co. December 1994

£3,000 £4,970 Mild hearing loss. Damages reduced by 25% for exposure in other employment

38 None 68 Amos v Calor Gas Limited September 1997

£5,000 £7,600 Deafness was significant handicap from the late 1980s

38 Moderate 61 Richards v Ford Motor Co. January 1989

£7,500 £16,410 Sleep disturbed by intermittent but frequent tinnitus

39.74 None 58 Bixby v Ford Motor Co June 1996

£7,500 £11,870 No useful hearing in right ear but this was not due to noise exposure. This made the

effect on left ear more severe

40 None 55 Robinson v British Rail June 1981

£5,750 £18,690 Claimant had a keen interest in music

43 Mild 52 Hurlow v Ford Motor Co. September 1995

£8,850 £14,230 Constant tinnitus causes some sleeping problems. Deduction made for exposure in

other employment

48.98 Severe 42 Robinson v British Gas November 1989

£10,000 £20,640 Hearing likely to deteriorate

49 None 50 Berry v Stone Manganese June 1972

£2,500 £28,610 Unspecified Smith v Manchester award

55.4 Mild 61 Irons v MOD June 1984

£7,500 £20,560 Some conductive loss in left ear, wore hearing aid at times. No Smith &

Manchester award

55.5 Severe 68 Warne v Octavius Hunt Ltd January 2002

£10,000 £13,970 Pre-existing hearing loss increased by one half because of the accident. Tinnitus also increased. Main problem was inability to

distinguish sounds

76.6 Severe 65 Abramowicz v Casborundum Co Ltd

June 1981

£15,000 £51,160 Judge said claimant very close to deafness in left ear and not far short in right.

Tinnitus constant

78.3 None 66 Smith v British Rail June 1980

£4,500 £16,220 Court of Appeal increased award from £3,250

17 - 35 None 61 Mitchell v Vickers Armstrong Limited & Another November 1983

£900 £2,510 Enjoyed music which was reduced because of deafness

20 - 42 None 59 Blacklock v Swan Hunter Shipbuilders Limited

November 1983

£850 £2,370 Did not wear a hearing aid

23 - 30 Mild 55 Waggott v Swan Hunter Shipbuilders Limited

November 1983

£600 £1,680

27 - 42 None 69 Nicholson v Smith’s Ship repairers (North Shields) Limited

November 1983

£850 £2,370

52 - 57 None 62 Thompson v Smith’s Ship Repairers (North Shields) Limited

November 1983

£1,350 £3,770

24

56-60 Moderate 65 Tripp v MOD December 1982

£7,500 £22,280 Expected increase in disability within 10 years

57 - 68 Mild 63 Gray Smith’s Ship Repairers (North Shields) Limited

£1,250 £3,490

4khz 35 Mild 50 Edwards v MOD June 1982

£2,500 £7,390

4khz 40-45 Mild 51 Fitchett v MOD June 1982

£2,750 £8,130 Tinnitus - occasional

4khz 52 Moderate 46 Johnson v MOD June 1982

£3,750 £11,090 Loss of sleep

None 59 McLeod v Wiggins Teape (Stationery) Limited

August 1990

£1,750 £3,310 Permanent dullness of hearing

25

5 UNILATERAL HEARING LOSS Average

Unilateral Loss dB (1,2,3 khz)

TinnitusAge of

Claimant (at trial)

CaseGeneral Damages

Updated Award

Comments

Left - 44 None 8 Lane v Evans February 1995

£8,000 £13,180 Risk of tinnitus. Damages included future cost of operation in mid-teens which had a 70-85% chance of returning hearing to

near normal

Left -15 (1,2,4

kHz)

Moderate 29 Lovatt v Linde Gas UK February 1995

Textile Industry Deafness Claims

£10,000 £16,540 Permanent tinnitus. Sleep affected. 25% chance of deterioration over next

25-30 years

26

6 TINNITUS ONLY

TinnitusAge of

Claimant (at trial)

CaseGeneral Damages

Updated Award

Comments

Mild 55 Blackwood v Ford Motors July 1989

£1,000 £2,100

Moderate 30 Moffat v Babcock Thorn Ltd February 1993

£1,750 £3,050 Tinnitus significant for six months with gradual improvement over the next six months. Residual minor hearing deficiency

Mild 49 Vaughan v Moogan April 1994

£2,250 £3,780 Permanent intermittent tinnitus. No loss of hearing

Severe 48 Allen v Sheridan September 2002

£11,000 £14,990 Permanent. Sleep disturbance was mainly caused by back injury

Severe 52 Hurst v Home Office June 1983

£5,000 £14,270 Binaural dB loss not known, but not very serious. Traumatic deafness through repairing wireless receivers

Moderate 48 Dyer v Met Police October 1998

£10,000 £14,730 Permanent tinnitus, sleep disturbed

Moderate 32 Cole v MOD March 1999

£12,000 £17,800 Hearing loss and tinnitus due to explosive device going off near his ear in training exercise. Unable to continue in the Army

Moderate 47 Bragg v Ford Motor Co. February 1992

£11,00 £19,710 Constant, permanent tinnitus but still able to work. Unknown hearing loss

Severe 58 Re Pomares October 2001

£17,500 £24,310 Permanent tinnitus inducing depression

In the Nottingham Textile Industry Claims, seven test cases were tried at the Nottingham High Court. Judgment was handed down in February 2007 and all claims were unsuccessful. However, in Stephanie Baker v Taymil Ltd, NIHL was established, and Judge Inglis stated that if liability had been established he would have awarded £5,000 (£5,960 in August 2012) for ‘slight hearing loss and slight contribution to the [mild] tinnitus’. She was 51 at age of trial. (Experts disagreed as to extent, but hearing worse in left ear). The figure of £5,000 was approved by the Court of Appeal in Baker v. Quantum Clothing [2009] EWCA Civ 499.

27

CONTACTS

HEAD OF DISEASE PRACTICE Nick Pargeter 020 7865 3361 nick.pargeter@blmlaw.com

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Birmingham Val Hughes 0121 633 6625 val.hughes@blmlaw.com

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Liverpool Tanya Cross 0151 471 5454 tanya.cross@blmlaw.com

London Michelle Penn 020 7865 8541 michelle.penn@blmlaw.com

Nigel Lock 020 7865 3352 nigel.lock@blmlaw.com

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