Military Deafness Claims: Partial Settlement in Test Cases

The trial of six Test Cases began this week in the High Court, which were intended to determine outstanding issues on causation and quantum.

No sooner had it begun, however, than it was revealed that two of the six cases had settled: https://www.hughjames.com/blog/ministry-of-defence-military-hearing-loss-claims-2.

Media reports suggest that the two other cases referred to in the title of Hugh James’s blog took the total to £1.5m for the four cases alone.

The four cases still to be tried will address the generic issues identified in earlier orders, or at least so it is hoped by those with a close interest in these Test Cases.

Those issues include:

1. Whether the CLB/LCB Guidelines are the appropriate means of assessing loss, or the M-NIHL Guidelines (also known as the MLC Guidelines) should be preferred. This is the headline issue which will usually determine PSLA, the period of advancement of aiding, and whether there is any handicap on the open labour market, and will allow progress towards settlement to be made in many tens of thousands of the more straightforward claims which do not feature material claims for past or future loss of income.
2. Whether hearing loss accrues at the date of termination of exposure to noise, or whether deterioration can occur subsequent to exposure, namely the latency issue, which has been a source of great controversy in NIHL litigation for decades.
3. Whether age-associated hearing loss can itself be accelerated by military noise exposure.
4. The significance of asymmetric hearing loss, which is relevant to the firing of SA80 rifles (the standard British Armed Forces weapon), which must be fired from the right shoulder regardless of dominance. 
5. Whether there is “hidden hearing loss”, namely that creating subjectively appreciated hearing difficulties which are not revealed by objective testing, namely the synaptopathy issue.
6. The reliability of military audiograms, which is particularly important given that many show reasonable hearing at cessation of service (and before), with some claimants contending they were given a “nod and a wink” as to when to respond, in order that test failure did not imperil their livelihood.
7. The appropriate frequencies which should be assessed for loss.
8. The role of idiopathic or non-organic hearing loss or other causative agents or conditions.
9. Whether the de minimis principle has a proper role to play.
10. The causation and assessment of tinnitus, and in particular whether there is a need for temporal causality, and whether masking devices can mitigate its effects.
11. The shortcomings in hearing still experienced when using hearing aids.
12. Assessment of loss of earnings and handicap on the open labour market.

This summarised list of generic issues is a pale shadow of the list of issues originally to be determined by the Test Cases, which included matters relating to limitation (in particular in relation to overseas service), the duty of care as varied over time, the efficacy of personal protective equipment, combat immunity and whether there was a sufficient career Noise Immission Level to cause injury, all of which were compromised on 8 July 2024 by the agreement of the so-called Matrix Order, which allowed those accepting the same to recover between 70-90% of the value of their claim as assessed or agreed, subject to the date of termination of service (those terminating before 2000 receiving 70% of their damages, and those after 2019 some 90%, with those in-between receiving something in between those two figures).

Counsel for the claimants’ opening note – which is hyperlinked within the Hugh James blog above – repays close reading for what remains outstanding in the four Test Cases still standing (as I write).

That opening note also reveals that Mr Davies, who settled for £182,250, had claimed £377,666 before interest, or £305,909 after agreed discounts, and so recovered about 60% of his finally pleaded claim.

Mr Hambridge had sought £862,473, or £698,603 after his agreed discount, and recovered by agreement £550,000, or about 79% of his claim.

The four outstanding Test Cases feature three in which causation is entirely denied by the Ministry of Defence.

Their pleaded claims vary in size, being approximately £58,000, £59,000, £190,000 and £405,000.

Whether they will make it as far as judgment – which has been widely expected in the New Year, after a listed trial of nine weeks (with a fortnight’s hiatus built in) – remains to be seen.