UK & Europe
Clyde & Co has successfully defended the Defendant in a recent unreported decision, Marian Holloway v Tyne Thames Technology Ltd, in which a UK court considered de minimis issues in a noise induced hearing loss (NIHL) case. This is a significant and positive decision for insurers continuing to face an unprecedented surge in deafness claims.
Mrs. Holloway was employed as a machine operator at the Defendant's premises from 1993 until 2006. During that period she alleged exposure to excessive noise on a continuous basis emanating from the different machines she used had caused her to develop NIHL.
As the Claimant's allegations with regard to noise exposure were not contested, HHJ Freedman found the Defendant was in breach of the Noise at Work Regulations 1989 and their common law duties throughout the Claimant's employment. Both the Claimant's and Defendant's medical experts agreed the audiogram relied upon by the Claimant, who was aged 68 at the time, satisfied the audiological criteria for NIHL, but disagreed as to whether this noise loss made the Claimant appreciably worse off.
HHJ Freedman found the Claimant had suffered no more than a minimal hearing loss as a result of exposure to noise which was not capable of being compensated. The Claimant's claim was therefore dismissed and judgment for the Defendant given.
Neil Miller, the Associate who handled the claim, said:
"This decision indicates an increasing trend that Courts are prepared to accept low level noise induced hearing loss (NIHL) can be classed as de minimis. Claimant solicitors and insurers alike should take note. Claimants should not expect an easy ride to a lucrative payday and insurers should carefully consider each claim on its own merit and should not shy away from challenging low-level loss claims"