Matthew Boyle successfully defends deafness claim on the basis that the losses are de minimis

Harbison v The Rover Company Ltd

In a successful judgment for insurers, HHJ Wall accepted that the claimant’s noise-induced hearing loss of 1 dB was de minimis, and thus not compensable. The court concluded that the claimant failed to prove that his loss at frequencies above 1, 2 and 3kHz made him appreciably worse off.

The only expert medical evidence in the case came from the Claimant’s expert (Mr Sharma). Using the averaged results of two audiograms he calculated the claimant’s hearing loss averaged over 1, 2 and 3kHz as 1dB. He also commented that hearing loss above or below these frequencies can have an impact on the claimant’s hearing but did not elaborate further.

In her reserved judgment HHJ Wall stated that establishing a diagnosis of NIHL does not of itself amount to compensable damage. She noted that the burden of proof is on the claimant to show that he meets the threshold for compensable damage; it is not for the defendant to disprove it.

Mr Sharma’s opinion was that the Claimant’s losses across 1, 2 and 3 kHz would not generally give rise to any noticeable subjective effect or material disability. The Claimant was not therefore appreciably worse off due to NIHL across these frequencies. In respect of NIHL at 4kHz, Mr Sharma’s evidence was not sufficient to discharge the burden of proof and the claim therefore failed.

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