The High Court has applied the new Ogden Tables’ reduction factor guidance for contingencies other than mortality in Barry v The Secretary of State for Defence  EWHC 459 (KB) for future loss.
Hugh James was instructed by James Barry, a former Royal Marine, in his claim against the Ministry of defence for noise induced hearing loss. Our associate solicitor, Ruth Davies, who specialises in Military Claims worked with Mr Barry throughout his claim and instructed Harry Steinberg KC, Robert O’Leary and David Green to represent Mr Barry at his trial which took place in the High Court in January 2023.
Mr Barry enlisted in the Royal Marines in 2013 for a 20-year engagement. Mr Barry began noticing hearing problems towards the end of 2014 after Exercise Black Alligator in Twenty Nine Palms in California. The hearing problems were acknowledged by the MoD in subsequent hearing tests, but they continued to send him on exercises and pre-deployment training subjected him to further unprotected noise exposure.
Mr Barry pursued a claim against the Ministry of Defence (MoD) for failing to provide adequate hearing protection and training.
The MoD denied they were at fault throughout the five years of Mr Barry’s claim, but less than four weeks before trial, conceded primary liability. However, they alleged Mr Barry was partly to blame for his hearing loss for failing to use the hearing protection provided.
The three remaining issues between the parties were:
- Whether damages should be reduced for contributory negligence;
- The appropriate methodology for diagnosing and quantifying noise induced hearing loss; and
- Quantum, in particular, whether Mr Barry was disabled within the meaning of the Ogden tables and, if so, the appropriate reduction factor to be applied.
The MoD invited the court to reduce Mr Barry’s damages by 30% for contributory negligence.
The MoD alleged that hearing protection known as “yellow foamies” were always available so Mr Barry was partly to blame for his hearing loss because:
- he didn’t replace them as soon as they fell out;
- he didn’t insert them prior to firing his weapon during an attack; and
- he ought to have worn a yellow foam ear plug in his left ear, underneath his Personal Role Radio (PRR).
Mr Barry admitted that he wore yellow foamies in both ears when he could but there were often occasions where it was not practical to do so and often, he didn’t have time to insert them prior to an attack. Mr Barry also confirmed that he didn’t wear a yellow foamy in his left ear when using his personal role radio (PRR).
Johnson J heard evidence from Mr Barry, two of his former colleagues and six witnesses on behalf of the MoD. It was generally accepted by the witnesses for both sides that there were often occasions during exercises where they didn’t have time to put hearing protection in place before an attack and they often fell out, but they would have the opportunity to replace them during a re-organisation. There were a mix of practices from the different Marines to hearing protection whilst wearing the PRR but it was generally accepted that wearing plugs in the left ear made it difficult to hear the radio. Some Marines choose to not use an ear plug at all and others choose to, but “half in, half out”. J Johnson found that wearing the earplugs in this way was “unlikely to have offered significant protection” and that Mr Barry was not given specific instructions on how to wear the ear plugs when wearing his PRR.
Johnson J rejected the MoD’s arguments on contributory negligence and accepted that Mr Barry wore the hearing protection that was made available to him, when it was practical to do so. He found that the responsibility to provide hearing protection was down to the MoD, and Mr Barry was not at fault in any way. Johnson J noted “the problems were well known by the MoD (as demonstrated by the evidence of the witness, and also documentation from 2012) but, lamentably, it appears that nothing was done by the MoD to address the obvious and serious problem”.
The Methodology for diagnosing and quantifying Noise Induced Hearing Loss
The court heard evidence from Professor Moore and Professor Lutman regarding the appropriate method to be used for diagnosing and quantifying noise induced hearing loss in military cases. The experts each have competing methods but in this case Johnson J decided not to resolve this issue as both methods proved that Mr Barry suffered noise induced hearing loss and that the quantification of Mr Barry’s NHL was similar regardless of which method used.
Johnson J acknowledged that this was a considerable issue between the experts and it would be inappropriate to decide this issue in this case when there is a large cohort of military NIHL claims proceeding to trial in a group of test cases.
Quantum: Future earnings and whether Mr Barry is disabled for the purposes of Ogden
Mr Barry was medically downgraded by the MoD in May 2015 and was medically discharged early due to noise induced hearing loss in February 2017. Johnson J heard evidence from Mr Barry, employment experts and one of the MoD’s witnesses regarding his likely military and civilian career had he not suffered this injury.
The MoD invited the court to make an award of future loss of earnings on a Smith via Manchester basis because there was no significant difference between Mr Barry’s pre-and post-injury earnings. However, Johnson J concluded that Mr Barry had shown that he was committed to his career and there was no suggestion that he would have left service early. Johnson J ruled that it was likely that Mr Barry would have completed a 20 year service and the job opportunities available to him after such service would have paid more than what he is actually likely to earn.
The key issue was whether Mr Barry was disabled within the meaning of the Ogden tables and, if so, the appropriate reduction factor to apply.
Paragraph 68 of the introduction to the Ogden Tables (8th Edition) provides that a person is classified as being disabled for these purposes if:
- he has a disability which has lasted for more than a year, and
- the effects of the impairment limit the kind of paid work that he can do, and
- he satisfies the definition of disability in the Disability Discrimination Act 1995, i.e. if he has a physical impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.
There was no issue between the parties that Mr Barry’s hearing loss had lasted for more than a year.
Johnson J heard evidence from medical and employment experts from both parties and concluded “he cannot serve in the military (as his medical discharge demonstrates). It is common ground that he cannot be a police or fire officer”. Johnson J therefore rejected the MoD’s argument that his hearing loss did not limit the kind of paid work that he can do.
Johnson J also rejected the MoD’s argument that Mr Barry was not disabled within the meaning of the DDA 1995 as his hearing loss did not have a substantive adverse effect on normal day-to-day activities and that, in any event, his hearing loss is ameliorated by the use of hearing aids. Johnson J reached this decision by considering the wording of the DDA 1995 and the statutory guidance sets out considerations to be taken into account when determining if a person has a disability. Johnson J, having heard all of the witness, medical and employment evidence, concluded that Mr Barry’s hearing loss had a substantial effect on his day-to-day activities and would be considered disabled within the meaning of the DDA 1995. This led to the conventional multiplier/multiplicand basis being used.
Johnson J considered the revised Ogden guidance (8th Edition) of the tables to determine the appropriate reduction factor to be applied. In terms of the appropriate education level to be used, Johnson J decided that Mr Barry’s qualifications best met level 2 which would provide a disabled reduction factor of 0.45 and a non-disabled reduction factor of 0.89.
The MoD argued that because Mr Barry’s disability was mild to moderate and that he had some amelioration from hearing aids, a full disabled reduction factor should not be applied. Johnson J agreed with this as applying a full reduction factor of 0.45 would assume that Mr Barry will spend more than half of his remaining working life out of work. However, Johnson J was critical of using the approach that had been adopted in past cases such as in Inglis v Ministry of Defence where the court used the ‘midpoint’. Johnson J noted that the revised guidance was critical of this “midpoint” approach and therefore preferred to adjust the reduction factor based upon the revised Ogden guidance.
Johnson J concluded that the appropriate reduction factor wasn’t to adjust Mr Barry’s education level to level 3, rather than level 2. As a result, a reduction factor of 0.56 was applied which resulted in Mr Barry being awarded over £600,000 in past and future loss of earnings.
However, the MoD have submitted an application to appeal Johnson J’s application of Ogden and his approach in deciding the appropriate reduction factor to be used. Mr Barry is now waiting for a Court of Appeal Judge to decide whether this issue should proceed to a full hearing in the Court of Appeal.
In Military NIHL claims it is now difficult to see in what circumstances the MoD would succeed in a contributory negligence argument as there is a plethora of documents showing that the MoD were well aware of the problems with your protection for many years and continued with the same practices. It follows that in cases where there is sufficient noise exposure, breach is likely to be established.
This is the first case since the Ogden tables (8th Edition) was published in July 2020 where the revised guidance on the adjustment of reduction factors for contingencies other than mortality have been applied.
This case provides useful guidance when considering the appropriate reduction factor to be applied, namely that statutory guidance is helpful and should be read whenever considering whether an individual is disabled within the meaning of DDA 1995; If an adjustment to the reduction factor should be made then it should be modest and should be made on the basis of adjusting the education level; and finally that amelioration to reduce the extent of the disability should be taken into account.