De Minimis is still a valid defence in low level noise-induced hearing loss claims

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The judgment of District Judge Morgan in Nicholls -v- Osram Limited and Lamp Metals Limited1  affirms that minimal noise-induced hearing loss (“NIHL”) claims can be successfully defended on the grounds of de minimis.

The de minimis defence

The basis of the de minimis defence is that an accepted physical change to the claimant’s body does not amount to an actionable personal injury.

In 20072 , the Supreme Court extensively examined the principle of de minimis in the context of claims for asymptomatic pleural plaques caused by exposure to asbestos. It held that asymptomatic pleural plaques (accompanied by the usual risk and worry of future asbestos-related diseases) did not constitute ‘personal injury’ and so were not actionable. Lord Hoffmann’s judgment suggests that the success of the claim relies not so much on the injury but upon the resulting disability and whether or not the claimant is ‘appreciably worse off’3 .

In March 2018, in Dryden v Johnson Matthey4 , the Supreme Court held that sensitisation to platinum salt was an actionable personal injury. Lady Black considered that the sensitisation left the claimants worse off than they were before they became sensitised because they no longer had a safety net to protect them from allergy (in the form of the sensitisation stage) which would enhance the prospect of removing them from further exposure before allergy developed. They therefore had lost their capacity to work around platinum salts.

Nicholls -v- Osram Limited and Lamp Metals Limited

Mr Nicholls sought damages for NIHL against Osram Limited (D1) and Lamp Metals Limited (D2). Breach of duty was conceded by D2 but remained in issue between the Claimant and D1. The case came before the County Court at Newcastle-upon-Tyne after Dryden.

The court found in favour of D1 at trial on breach. Causation was not in issue. The medical experts instructed by Mr Nicholls and D1 and D2 agreed that Mr Nicholls had a NIHL of 3.5dB when measured at 1, 2 and 3 kHz across both ears and of 3.3dB in his ‘better’ right ear. The dispute between the parties (and the experts) was whether Mr Nicholls was appreciably worse off because of the minimal hearing loss he had suffered.

District Judge Morgan found in favour of the Defendants in terms of causation, concluding that Mr Nicholls had not established that, with a hearing loss of 3.3dB, he would be appreciably worse off. The District Judge also held that the ‘traditional’ method of assessing disability across 1, 2 and 3 kHz was the preferred method rather than 1, 2 and 4 kHz as proposed by Mr Nicholls’ expert.

Commentary

Some commentators and practitioners suggested after Dryden, that low level NIHL claims could not be defended on de minimis grounds. By analogy, it was suggested that if a claimant has suffered some degree of hearing loss, this is clearly an impairment of a person’s physical condition and any de minimis argument should therefore fail. However, Nicholls confirms that, even after Dryden, judges (at County Court level at least) are still willing to accept that hearing loss in itself may not result in damages and that the claimant must first prove that s/he is appreciable worse off.

Thanks go to AXA Liabilities Managers for sharing the judgment in Dryden.

 

1 The County Court at Newcastle Upon Tyne, 17 April 2018

2 Rothwell v Chemical and Insulating Co [2008] AC 281

3 Rothwell v Chemical and Insulating Co [2008] AC 281, Lord Hoffmann paragraph 19

4 [2018] UKSC 18


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