Hearing loss - it’s complex, but certain of the law’s fundamental principles help to unravel, then deal with, the complexities.

Recent reported case law in both Scotland and England shows that the complexities of hearing loss litigation can only be unravelled by close analysis of highly technical, expert, evidence.

Stepping back from the complexities, one fundamental default rule of civil claims in both Scotland and England also shines through - it is ordinarily incumbent on the pursuer, or claimant, to prove their case on the balance of probabilities, meaning more likely than not. Failure to meet this standard of proof, where the default burden of proof applies, means that the claim fails. 

A Scottish case

Let’s look first at a recently reported Scottish case, in which we acted for the two defenders, neither of whom are, on the first instance outcome, required to pay anything to the pursuer. On the third day of evidence being heard in this case, the pursuer abandoned their claim against the second defender. After six days of evidence and legal submissions, and the court’s consideration of that, the first instance decision is that the first defender does not need to pay anything to the pursuer either. 

The case is Pollock v Marshall & Anderson Ltd and Tata Steel UK Ltd, Sheriff Keir, All-Scotland Sheriff Personal Injury Court, 15 May 2026, link here. The point that hearing loss claims are complex is made out by the number of technical witnesses in this case, namely three audiologists, one acoustic engineer, and two consultant ENT surgeons. 

The court’s reasoning on why the first defender should not be held liable to the pursuer reveals itself in the following passages - 

• “I consider that the pursuer made a reasonable impression in court and appeared to be doing his best to assist the court. Standing the nature of his employment with the first defender, it cannot be reasonably disputed that he was exposed to high levels of noise. However, it was clear that there were material discrepancies between what he told the court and what he had told his solicitors and the experts involved in the case prior to that time in relation to key issues to be determined by the court.”
• “I accept that the pursuer was giving evidence about events that occurred over 55 years ago and he should be afforded some latitude in that regard. I also accept that a witness will not necessarily give the same answer to a question asked by a different person at a different time, particularly in the unfamiliar confines of a witness box in court. However, I consider these discrepancies on critical issues to be significant and undermine the reliability of key elements of his evidence. Moreover, insofar as (the acoustic engineer’s) opinion is reliant on certain facts being established, the weight to be given to his evidence is similarly weakened.”
• “… taking the pursuer’s case at its highest, a potential diagnosis of NIHL (noise-induced hearing loss) was borderline standing (the consultant ENT surgeon engaged by the pursuer’s) quantification of NIHL in the right ear of only 2 dB … Notwithstanding his acceptance that such a bulge was small, (this surgeon) considered that it was still sufficient to satisfy … a diagnosis of NIHL where there was a bulge of at least 10 dB in the left ear. His assertion that such a small bulge should be viewed as decisive was at odds with his evidence that a bulge would have to be 5 dB to be clinically significant. It was also at odds with (the consultant ENT surgeon engaged by the defender’s) unchallenged evidence that a noise differential of 2 dB would be imperceptible to the listener.”
• “… I therefore prefer the evidence of (the consultant ENT surgeon engaged by the defender) to (the consultant ENT surgeon engaged by the pursuer) with particular regard to their key areas of dispute. It follows that I accept (the former’s) evidence that any NIHL in the pursuer’s right ear sits squarely in the … category … ‘little or no trace’.”

In summary, there were two problems with the pursuer’s case - (1) he did not establish a sufficient factual bedrock on the nature and extent of his exposure to excessive noise, and (2) he did not establish that he was suffering from NIHL. We see, in both respects, the fundamental default rule of civil claims in both Scotland and England shining through - it is ordinarily incumbent on the pursuer, or claimant, to prove their case on the balance of probabilities, meaning more likely than not. Failure to meet this standard of proof, where the default burden of proof applies, means that the claim fails. 

If the pursuer had proven that his mild to moderate hearing loss was NIHL, he would have been awarded £8,000 solatium for that. Solatium is the Scottish word for what, in England, is called “general damages” or a “PSLA award”, an award for the pain, suffering and loss of amenity of the injury itself. 

An English case

Damages were awarded by the court to two NIHL claimants in Abbott and others v Ministry of Defence, Mr Justice Garnham, King’s Bench Division, High Court of Justice, 26 April 2026, link here.  

This table shows an explanation, and quantification, of the damages, and interest, for one of the two claimants -

This table shows an explanation, and quantification, of the damages, and interest, for the other of the two claimants -

The real significance of the detailed, lengthy and considered decision, though, is how it impacts other claims, especially military hearing loss ones. Points of note include the recognition of distinct military hearing loss patterns and the endorsement of military-specific analysis of those. Other more generic points of interest in this litigation are explored in our insight here.  

Conclusion 

Despite the long-standing and emerging complexities of hearing loss cases, long-standing on the nature of the technical evidence involved, and emerging in the context of different touchpoints for different cases, it is reassuring to reflect on the continuing fundamental default rule on the burden, and standard, of proof. Breaking that down, for a claim to be successful, there needs to be proof of hazardous exposure to noise, backed where necessary by reliable engineering evidence and sufficient to constitute breach of duty. In addition, audiometry must, on the balance of probabilities and as properly interpreted, support NIHL, with a causal link also having to be established between sued-for exposure and the NIHL. Where tinnitus is claimed for, that too must be causally linked to the noise exposure.