In last week’s edition of BC Disease News (edition 156  here ), we reported on personal injury lawyers warnings that the Solicitors Regulation Authority’s (SRA) plans to lift a ban on cold-calling may encourage the seedier sides of the profession and have adverse effects on the reputation of personal injury solicitors. These fears have now been dispelled by the SRA, which confirmed the ban will remain intact.[i]

The Association of Personal Injury Lawyers (APIL) spoke out last week, after the latest draft of the SRA Handbook was published, and it was noted that the current rule banning solicitors from cold-calling was omitted. A spokesperson from the SRA commented:

‘We have no intention of lifting the ban for solicitors working in personal injury and will make that clear in the final codes’.

In last week’s edition of BCDN, we reported on the Ministry of Justice consultation paperwhich has been described as a ‘vision statement’ for the future of the justice system.[i]

It was confirmed in this report that the Government is planning to invest more than £700 million to modernise courts and tribunals with their ultimate goal being cited as ‘a courts and tribunal system that is just, and proportionate and accessible to everyone – a system that will continue to lead and inspire the world’.

There was an entire chapter of the report dedicated to the civil courts in which the main proposal outlined was the intention to extend fixed fees ‘to as many civil cases as possible’.

The report states:

‘More needs to be done to control the costs of civil cases so they are proportionate to the case, and legal costs are more certain from the start. Building on earlier reforms, we will look at options to extend fixed recoverable costs much more widely, so the costs of going to court will be clearer and more appropriate. Our aim is that losing parties should not be hit with disproportionately high legal costs, and people will be able to make more informed decisions on whether to take or defend legal action’.

These proposals follow calls from the senior judiciary, such as Lord Jackson, to impose fixed fees across the fast-track and ‘lower reaches’ of the multi-track. Lord Jackson in particular recommended earlier this year that fixed costs should apply to all claims valued up to £250,000. Further details on these proposals can be found in edition 126 of BC Disease News here.

Since this report, the Law Society has hit out at the Government stating that these plans are ‘totally inappropriate’ as limiting recoverable costs on more complex cases would threaten access to justice.[ii] In particular, Law Society president Robert Bourns stated that ‘…fixed costs for higher value claims can be prejudicial and disproportionately disadvantage those on lower incomes and the vulnerable’.

However, he did agree that fixed costs for low-value claims could be appropriate if set at the right level as they can provide certainty for both sides in litigation and avoid protracted disputes about the level of costs.

Alongside these proposals for fixed costs were plans to digitise the courts. The report states:

‘We will speed up resolution as we replace paper and post with digital working: currently, a “fast track” claim with a value between £10,000 and £25,000 takes 11 months to be resolved. Under our new digital model, cases will be handled faster and in a more convenient way, improving the experience for everyone making and defending claims in the civil courts.’

Both the Law Society and the Bar Council have indicated their discontent with these plans and have said they should be treated with caution. It has been suggested that plans to bring courts online would create a two tier justice system that may result in a system providing a different type of justice to claimants and defendants, depending on the size of the claims.

It was said within the report that there would be further consultation on these proposals. We will continue to stay abreast of any developments.

The full report can be accessed here.

Last week, a new study bythe Scripps Institution of Oceanography at the University of California, San Diego, showed how asbestos fibres can move through sand and soil.[i]

The first phase of the study tested the long-held belief that asbestos waste piles are locked in place when topped with soil. The studydiscovered that when organic acids,from plants, fungi and bacteria,coat asbestos fibres, they tcan travel and move through sand and soil..

This obviously raises issues around the safety of asbestos waste piles within soil. Further research continues.

This week, it has been reported that courts have the power to apply costs management to litigants in person(LiP). [i]

The decision of Chief Master Marsh in Campbell v Campbell [2016] EWHC 2237 (Ch), which was handed down last week, deals with some important issues in relation to the costs incurred by a LiP and the nature of costs budgeting in general.

The case involved commercial dispute between two brothers relating to jointly owned companies.

The claimant in Campbell was instructing solicitors when the costs management hearing was ordered, but by the time the hearing took place on 21^st July 2016, he had become a LiP. His counsel continued to represent him on a direct access basis. He also had assistance from a firm of solicitors and intended to obtain assistance from junior counsel.

The claimant’s costs budget of 5^th August 2016 provided for future expenditure up to the end of trial of slightly in excess of £315,000, having already incurred costs of £547,621. Both sides asked the court to make a costs management order in respect of the claimant’s costs.

In paragraph 1 of his judgment, Chief Master Marsh addressed two issues. Firstly, the extent to which the costs management regime under CPR 3.12 – 3.18 applies to the costs of a LiP, and, secondly, the scope of LiP costs recoverable under CPR 46.5 where a LiP obtains legal assistance from a solicitor and a member of the bar.

Master Marsh initially stated that the court’s jurisdiction to costs manage a LiP was unclear. After examining several provisions of the CPR, he concluded, however, that he had the power to do so.

Marsh used CPR 3.12(2) as a starting point. CPR 3.12(2) explains the purpose of costs management as:

“The purpose of costs management is that the court should manage both the steps to be taken and the costs to be incurred by the parties to any proceedings so as to further the overriding objective.”

He noted that the objective is expressed in general terms and in no way indicates that a claim involving LiP’s may not benefit from costs management.

Whilst CPR 3.13 expressly exempts LiP’s from the requirement to file and serve a budget, the editors of the White Book 2016 suggest that in spite of this exemption it is open to a LiP to file and exchange a budget if they wish.

CPR 3.15(2) provides that “…the court may manage the costs to be incurred by any party in any proceedings” which, again, gives no indication that different provisions should apply to LiP’s.

The claimant also sought a declaration from the court that the cost of solicitors from whom he intended to seek advice, but not instruct to have conduct of the case, would be recoverable, along with the fees of junior counsel the solicitors would instruct. It was not disputed that the direct access QC’s fees would be recoverable.

Marsh said there was no reason to construe CPR 46.5(3) narrowly so as to prevent a LiP recovering the cost of assistance in the course of their conducting the claim. In paragraph 32 of his judgment, he says:

“The direct access scheme, whether it is used for advocacy or other assistance, provides a litigant in person with expertise which may be essential to be able to progress a claim in an orderly manner and is likely to be of assistance to the court for that reason. Similarly, it is clearly contemplated that a litigant in person may pay for and recover the cost of ‘legal services’ relating to the conduct of the proceedings. In a complex claim, the litigant in person may wish, for example, to obtain assistance with disclosure or the drafting of witness statements. This is part of the unbundling of legal services contemplated by Lord Woolf.”

This judgement has affirmed that in appropriate cases, courts have the power to costs budget the costs of LiP’s. This is most likely to apply where the case is complex/the costs are large and the LiP was previously using legal assistance. Courts can make a costs management order in relation to LiP’s costs, and LiPs can recover costs where they obtain assistance from lawyers short of them having conduct of the case.

Essex County Council and Trading Standards are in the process of leading a ‘crackdown’ on traders selling counterfeit cigarettes.

The crackdown comes at a time where councils across the country are warning against the dangers of counterfeit cigarettes, which have been found to contain asbestos, remains of dead flies, mould and even excrement. The Local Government Association has said that fake cigarettes pose a fire risk, as well as several risks to health.

Mark Flewitt, Executive Councillor for Housing, Planning and Public Protection Services in Southend-on-Sea said:

“Some people view selling under-the-counter cigarettes as a victimless crime but Trading Standards teams have previously found counterfeit cigarettes containing asbestos and human excrement in the past, posing a massive risk to anyone smoking them.”

This week, the National Accident Helpline Group Plc (NAHL) has told how it expects to play a more pro-active role in the conduct and financing of personal injury cases.

Following the next round of government reforms, which we  reported on in edition 153 of BC Disease News (click here to read), NAHL told the stock exchange of its plans to expand its role in the handling of PI cases on 21^st September 2016.

Steve Halbert, chairman of NAHL, has told the stock exchange that NAHL has ‘purposefully reduced case volumes’ whilst the current uncertainty in the market (caused by the much anticipated outcome of the Ministry of Justice’s consultation paper) is causing law firms to more carefully consider how much they invest in new personal injury cases.

Mr Halbert has said that, in anticipation of the next round of reforms, NAHL is building closer relationships with its panel law firms, which it expects will give them the opportunity to play a more ‘pro-active’ role in the entire conduct and financing of PI cases.

A judgment handed down today in the case of Ross v Lyjon Company Limited (23^rd September 2016 Liverpool County Court) raised important causation issues in relation to NIHL and reaffirmed the basic tenant of tort law, that it is for the claimant to prove damage.  

The case run by Roberts Jackson solicitors saw evidence from Professor Moore and Mr Zeitoun for the claimant and Professor Lutman for the defendant on the subject of latency in NIHL and the advancement on behalf of the claimant of a phenomenon which has previously been described as ‘hidden hearing loss’, that is, damage which cannot be seen on standard audiometric testing. 

Background

The claimant alleged exposure to excessive noise during employment with the defendant as an Electrician between 1979 and 1992 at various large scale industrial sites including chemical plants and oil refineries in the North West.  The claimant alleged that he would regularly work 12 hours a day in constant noise.   He alleged exposure to noise from the operation of turbines, drill towers, presses, compressors and general heavy industry.  

The claimant had alleged similar exposure which 2 other employers between 1974 and 1979 and 1993 and 1998. The claims against these employers were compromised at an earlier stage of litigation.

The remaining defendant admitted breach of duty. An audiogram in 2011, obtained as part of Mr Zeitoun’s medical report, showed NIHL. The primary issue in dispute was causation which centred upon the discovery of an audiogram dated 28.10.1993,undertaken as part of a BUPA health screening, soon after the claimant’s employment with the defendant had ended.  The 1993 test showed no audiometric evidence of NIHL. 

As well as the audiogram from 1993, there was reference in the claimant’s medical records to a further hearing test undertaken by BUPA as part of an earlier screening in 1987.  Although no 1987 audiogram was located, the records relating to the 1987 test referred to the claimant having ‘normal hearing’.   

In view of the audiometric evidence from 1987 and 1993, the remaining defendant denied causation.

Expert Evidence

The claimant’s expert, Mr Hisham Zeitoun, Consultant Otolaryngologist Head & Neck Surgeon, had not referred to the BUPA health records or 1993 audiometry in his initial report and had relied solely upon an audiogram undertaken at the time of his examination of the claimant in February 2011 which was compliant with the ‘Coles guidelines’ for diagnosis of NIHL. 

When questioned by the defendant on the BUPA records, Mr Zeitoun initially agreed that ‘if the audiogram of 1993 is a true representation of Mr Ross’ hearing at the time, Mr Ross has not suffered noise induced hearing loss prior to that audiogram’.

Subsequently, Mr Zeitoun questioned the accuracy of the 1993 BUPA hearing test and opened the door for the claimant’s ensuing argument that even if the audiogram were accurate, the claimant had nevertheless sustained some damage to his hearing as a result of alleged exposure with the defendant notwithstanding the fact that it was not revealed on the 1993 audiometry.

The claimant was granted permission to reply upon further medical evidence from Professor Brian Moore, Emeritus Professor of Auditory Perception in the Department of Psychology at the University of Cambridge. 

Professor Moore’s evidence was summarised by the judge, HHJ Wood QC, as follows:

‘His evidence was that whilst the obvious effect of noise exposure would be damage to the outer hair cells within the cochlea where such damage was usually identifiable by the thresholds revealed on audiometry, it did not necessarily follow that hair cell damage would give rise to a noticeable loss when detecting sound.   He relied upon a number of animal studies to demonstrate that mild changes could be caused to the outer hair cells without any measureable change in the thresholds.  Because damage to the auditory system built up gradually, reflecting the cumulative energy received by the ears, there will be a time before the damage is evident’.

The defendant relied upon the medical opinion of Professor Mark Lutman, Professor of Audiology at the Institute of Sound and Vibration Research in Southampton.  Professor Lutman observed that the 1993 audiogram showed more or less normal hearing which led him to conclude that any NIHL which might have been present on the 2011 audiogram must have occurred after 1993 or alternatively any loss was due to idiopathic (unknown) causes. He saw no reason to doubt the accuracy of the 1993 audiogram. On the question of whether or not there could be latent effects of noise exposure, Professor Lutman referred to the received wisdom from expert and consensus groups that there were no such measureable latent effects.  

Put simply, if the loss had not occurred as a result of alleged exposure with the defendant (in light of the 1993 audiogram demonstrating normal thresholds), then the 2011 test could only be explained by subsequent exposure or it was idiopathic, insofar as sensorineural hearing loss of unknown origin was common in the general population and could mimic NIHL.

There was an agreement between Professor Moore and Professor Lutman regarding the theoretical scientific arguments on the hidden effects of noise exposure based on various animal studies but disagreement as to how they could be applied in the claimant’s case particularly as pointed out by Professor Lutman, in view of the physiological differences between species.  In the joint statement Professor Moore and Professor Lutman agreed:

“…there are theoretical arguments and limited data that there might be certain latent effects.   It is well established from animal studies that noise exposure may cause quite substantial damage to the hair cells in the inner ear without causing any hearing loss as gauged by the audiogram.   It has also been shown in recent animal studies (mice) that exposure to high levels of noise can damage the synapses between inner hair cells and neurons directly; it can lead to degeneration of neurons in the auditory nerve without measurable effects as gauged by the audiogram.  Such degeneration of neurons may continue for months or years after noise exposure has ceased’.

In summarising the issues to be determined, HHJ Wood identified that the first question for the Court was whether or not the 1993 audiogram was an accurate representation of the claimant’s hearing loss at that time.  

The accuracy of the 1993 audiogram

Mr Zeitoun gave evidence that he was concerned about the efficacy of the 1993 audiogram on the basis that it had been confirmed by BUPA that the test would not have been conducted in a soundproof booth. 

Professor Lutman took the view that the 1993 test was entirely plausible and stated that the usual concerns about testing conditions and in particular, ambient noise would serve to make thresholds worse than they actually were.   As the claimant’s 1993 audiogram showed some thresholds recorded down to zero, there was no evidence that ambient noise would have been a problem, and no evidence that the audiometry had been obtained other than in an entirely proper fashion.

Mr Zeitoun accepted under cross examination that ambient noise would make thresholds worse and not better but advance a number of factors he considered could make a recorded threshold better than was actually heard.   These included:

-          Visual signals from the operator who may be within sight of the subject;

-          An audible click from the testing machine if it had mechanical components;

-          The absence of irregular intervals between the sounds tested.

Such factors, Mr Zeitoun asserted could make the subject predict when a sound was being emitted which in turn would lead to a belief that he had heard the sound when he had not.

HHJ Wood QC found that there was no shifting the burden of proof and that it was not incumbent on the defendant to satisfy the court that the 1993 audiogram was accurate.  He stated:

‘The audiogram is included in a compendium of the medical records, the accuracy of which would normally be self-proving, in the absence of any significant contradictory material’.

He went on to say:

‘There is simply no evidence that the audiogram carried out by BUPA….did not properly measure hearing thresholds. By referring to audible clicks from the audiometry mechanism, visual signals, or the lack of variation in the spacing of the sound pulses, the claimant is indulging in speculation without real evidence’.

Additionally, he stated that the fact the claimant did not complain of hearing difficulties in 1993 was a further factor which undermined the claimant’s challenge to the efficacy of the 1993 test.   On the subject of Mr Zeitoun’s position he remarked:

‘Insofar as Mr Zeitoun has called the audiogram into question, he has lost objectivity because of his shifting position and has indulged in litigation bias, whereby his position became harder as the issues crystalized’.

Latency of damage

Having found that the 1993 audiogram was accurate, the second question for consideration was whether the claimant had established, on the balance of probabilities, that notwithstanding the absence of any hearing loss in 1993 at the end of his employment with the defendant, he had nevertheless sustained some damage to his hearing which became evident in later years and which was not related to the ordinary ageing process.  

HHJ QC declined to be drawn into making a decision which answers a generic question about occupational deafness litigation.  He stated:

‘This is especially so because on the face of it the question depends upon the non-expert interpretation of a complex medical/scientific debate which is ongoing based on a plethora of epidemiological studies in both humans and animals, and where there is yet to be any consensus’.  It is axiomatic that every case is fact specific and a decision has to be made upon the evidence presented, of which scientific research is but a small part’. 

In considering the argument advanced on behalf of the claimant by Professor Moore, HHJ Wood QC noted that Professor Moore had accepted that it was unusual that there was no recorded loss on the 1993 audiogram given the claimant’s alleged history of exposure and agreement by Professor Moore than in general, NIHL progresses more rapidly earlier on.  Professor Moore had speculated that the claimant may have had an usually large cochlear reserve however the Judge preferred the evidence of Professor Lutman that such was unlikely.

In finding for the defendant, HHJ Wood found that Professor Moore’s conclusions were fundamentally flawed because they were based on the assumption that the claimant was exposed to the same constant noise levels throughout his entire working history.  There was no engineering evidence in the case and the argument presented by Professor Moore would flounder if noise levels after 1993 were greater than those prior to this date.  

Notwithstanding the absence of compelling engineering evidence, the Judge held that the claimant would still have faced a difficulty because there was no evidence that underlying synaptic damage not revealed on threshold had actually taken place prior to 1993 in the claimant’s case.   The Judge found that in the absence of any reported difficulties prior to 1993, the court would be embarking on a highly speculative exercise were it to conclude that synaptic damage had been occurring, which meant that the claimant was more vulnerable to hair cell damage in later years.  

HHJ Wood concluded:

‘It seems to me that both Professor Lutman and Professor Moore have been engaged in an honest intellectual interpretation of the research literature and it is unnecessary for this court to determine which of the theories is preferred.    I conclude that whilst there was a possibility of latent damage occurring to the nerve structures in the cochlea not detectable on the 1993 audiogram, this falls significantly below being a probability in the light of all the evidence which has been made available to this court.    It is unnecessary to make any further determination, or to provide any generic ruling on the scientific question although it does appear unlikely that there will be any sufficient consensus on that question, or means by which such damage could be measured for some time to come’.

New LCB Guidelines on disability considered

In previous editions of BC Disease News (124 and 129) we have considered the new LCB Guidelines on assessment of NIHL & disability in NIHL claims.

The issue of the appropriate method for evaluating hearing disability was briefly considered by HHJ Wood who said:

‘The issue arises from a determination as to which of the centiles is appropriate to the Claimant. Professor Lutman has adopted a less than generous approach in the sense that he has followed newly published guidelines (to which he is a significant contributor) which are intended to incorporate ‘best fit’ by reference to certain anchor points. I accept his evidence that previous assessment guidelines (again to which he has contributed) provided a rough and ready approach taking an individual Claimant as averagely susceptible at the 50th centile.

It is correct in this respect that if one were to take 1 and 8 kHz the Claimant is far closer to the 25^th percentile for ageing, and this would have the effect of reducing the measured thresholds at 1, 2 and 3 kHz. However, it is noteworthy that Mr Zeitoun, and indeed Mr Welsh who provided the initial report [for the defendant] had taken a more traditional line which appears to be founded on the Black Book guidance over 20 years ago, and there is some substance to Mr Zeitoun’s argument that the 2016 guidelines themselves provide scope for some flexible interpretation allowing individual variability. As I remarked in court, the issue as to whether or not the 4 kHz threshold should be taken into account remains a controversial one, because in some respects it has an effect on the disability. It remains to be seen whether or not those involved in medico-legal work adopt the potentially less generous interpretation without applying the exceptions which appear to emanate from the more recent guidelines.

However, this particular case I would have had some sympathy with the approach of Mr Zeitoun if it had been necessary to assess the disability, and to have compensated the Claimant on the basis of an approximate 10 decibel threshold hearing loss over 1,2 and 3 kHz, which was indeed the preferred approach of Mr Welsh.’

Comment and conclusion

The judgement supports the conventional view that NIHL occurs at the time of exposure and underlines the value of contemporaneous audiometry in determining issues of causation in NIHL claims.    The burden is on the claimant in every case to prove that he has sustained a compensable injury as a result of alleged exposure, on the balance of probabilities.  Where standard audiometric evidence does not support a finding on NIHL and the claimant does not report any contemporaneous hearing difficulties, a claimant is unlikely to discharge the burden on the basis of hypothetical scientific principles.

Some of the important issues raised in this case will be considered in further features of BC Disease News.

We outlined in edition 131 of BC Disease News how the acquisition of Quindell’s professional services division by Slater and Gordon (S&G) in early 2015, significantly contributed to its reported £577m loss and a nosedive in its shares from a high of $7.85AUD per share to its current $0.40AUD. Not long after this acquisition, Quindell, was placed under investigation by the UK's Serious Fraud Office over its past accounting practices. S&G was also hit in November 2015 when the UK government announced plans to limit volumes of personal injury claims.

It has now been reported that S&G intend to sue Quindell, now known as Watchstone Group.[i] In an announcement made to the Australian Stock Exchange earlier this week, S&G advised that it intends to bring claims against Watchstone Group Plc, arising from the purchase of Quindell’s Professional Services Division. The share purchase agreement requires S&G to notify Watchstone as soon as reasonably practicable after it has formed the view that it may have a claim, according to the announcement.

In response, Watchstone Plc made an announcement to the London Stock Exchange stating that, ‘[it] does not believe that there are grounds for a claim to be brought and will defend it robustly’.

Watchstone also said it ‘conducted a professional and transparent disposal process’ and allowed S&G the chance to complete an ‘extensive and detailed due diligence process’ on the acquisition.

Elsewhere, S&G is being sued in Australia by investors hit by the fall in the share price, while Your Legal Friend, also known as Camps Solicitors, is putting together a similar group action on behalf of investors in Quindell in the UK.

In the judgment of Allen Tod Architecture Ltd v Capita Property & Infrastructure Ltd [2016] EWHC 2171 (TCC), the court ordered a claimant to disclose its original expert’s notes, preliminary report and other documents setting out his opinion on the issues, as a condition for granting permission to the claimant to rely on a new expert.

The parties had been given permission to call an expert structural engineer. The claimant instructed an expert but lost confidence in him after delays in the production of his report. The claimant instructed a new expert. The defendant sought disclosure of the claimant's letters of instruction to the original expert and to the new expert, and any report, document and/or correspondence setting out the substance of the original expert's opinion, whether in draft or final form. The claimant had disclosed the letters of instruction and the original expert's report, which was supportive of the claimant's claim. 

The claimant submitted that the documents sought by the defendant were privileged and should therefore not be the subject of an order for disclosure. It also argued that it had already disclosed sufficient material, and it had not been guilty of ‘expert shopping’.

In considering this argument His Honour Judge David Grant outlined the following principles he felt were relevant: 

1.  the court had a wide and general power to exercise its discretion whether to impose terms when granting permission to a party to adduce expert opinion evidence;
2. on evidence; (b) the court could give permission for a party to rely on a replacement expert, but such discretion was usually exercised on condition that the report of the original expert was disclosed. The party seeking permission would therefore have to waive privilege in the first expert's report; 
3. once the parties had engaged in a relevant preaction protocol process, and an expert had prepared a report in the context of such process, that expert owed a duty to the court irrespective of his instruction by one of the parties. Accordingly, there was no justification for not disclosing such a report;
4.  the court's power to impose a condition for the disclosure of the first expert's report arose irrespective of the occurrence of any "expert shopping". It was a power to be exercised reasonably on a case-by-case basis, having regard to all the circumstances; 
5. the court would require strong evidence of expert shopping before imposing a term that a party disclose documents other than the report of the first expert (such as attendance notes and memoranda made by a party's solicitor of discussions with the expert) as a condition of giving permission to rely on a second expert

He did however state that whilst this was only a mild case of ‘expert shopping’ the court could still direct disclosure of material produced by the original expert, in which he expressed his opinion, as a condition of permitting the party to rely on a new expert. Accordingly, the court's power was reasonably exercised by ordering disclosure of those documents, along PAGE | 5 with any document in which the expert provided his opinion on the case prior to April 2016, as a condition for the claimant calling the second expert as its witness. To the extent that other material was contained within such documents, it was to be redacted. 

In edition 153 of BC Disease News we considered the recent NIHL judgment of Wignall and discussed the implications this had for common law dates of knowledge and implementation periods in NIHL claims. This week we look again at the judgment in relation to the court’s findings on causation. 

NIHL has a characteristic audiometric pattern consisting of bilateral ‘notches’ or ‘bulges’ in hearing thresholds at 4 kHz – or 3 or 6 kHz4 (or any combination of these frequencies). If the noise exposure continues the notches/bulges deepen and spreads to affect the adjoining frequencies.5 It is generally accepted that NIHL usually begins around 4 kHz. At first it may be asymptomatic but if it spreads into the lower frequencies of 3 and 2 kHz, individuals begin to complain of hearing disability.6 In Scott-Brown’s Otolaryngology,7 Dr Alberti states that the loss at 4kHz usually begins to progress at a steady rate for about 10 years and then slows greatly. However, the loss eventually spreads into other frequencies and it may take up to 30 years to involve frequencies of 1kHz and below to any great extent. This will lead to a notched sensorineural hearing loss centred about 4kHz, gradually becoming a steeply sloping loss starting at about 0.5 kHz. This is illustrated in the following audiogram: 

The effect of noise and the differing noise induced threshold shift by frequency is neatly demonstrated in the figure below reproduced from Noise and Man by W.Burns, 1968. 

ISO 1999: Acoustics-Determination of occupational noise exposure and estimation of noise-induced hearing impairment, also demonstrates the maximal damaging effects of noise at 4 kHz. The table below shows the estimated (median) noise damage at differing frequencies as a function of exposure time (in years) and a daily noise exposure dose of 95 dB(A), LEP,d.

The 2012 Guidance Statement on the principle characteristics of occupational NIHL authored by the American College of Occupational and Environmental Medicine provides a useful outline of what NIHL typically looks like. 1 In relation to the frequencies affected, it states: 

• It is always sensorineural, primarily affecting the cochlear hair cells in the inner ear;
• Its first sign is a ‘notching’ of the audiogram at the high frequencies of 3, 4 or 6 kHz with recovery at 8kHz; 
• In early NIHL, the average hearing thresholds at the lower frequencies of 0.5kHz, 1 and 2 kHz are better than the average thresholds at 3, 4 and 6kHz, and the hearing level at 8 kHz is usually better than the deepest part of the notch.

 This approach is also propounded in the Report of the Expert Hearing Group,9 entitled ‘Hearing Disability Assessment’, in which it states NIHL has a recognisable audiometric pattern with the maximum damage usually occurring at 4,000Hz, but occasionally it may occur at 3,000Hz or 6,000Hz.

Moreover, the CLB Guidelines,10 for the diagnosis of NIHL, have, as one of the requirements that must be met for a diagnosis of NIHL , that there be evidence of a high frequency sensorineural hearing impairment i.e. that the HTL at 3, 4 or 6kHz is at least 10 dB greater than the HTL at 1 kHz or 2 kHz. 

Conversely, when an individual is showing maximal losses at 1 kHz and 2 kHz, this may indicate that the individual is suffering from what is known as ‘cookie bite’ hearing loss. The condition affects the mid-frequency sounds but in most cases does not affect high and low frequencies. The condition derives its name from the specific form of the hearing curve in the audiogram of a person suffering from this particular kind of sensorineural hearing loss. An audiogram carried out on a person thought to have cookie bite hearing loss can be seen below: 

This condition is relatively rare and is thought to have a genetic cause rather than indicative of NIHL. It is very rare for cookie bite hearing loss to be caused by damage to hearing. Those suffering from this condition will experience difficulty hearing the mid frequencies but not the low and high frequencies.  

As such, it is established medical convention that where hearing loss has been caused by exposure to excessive noise there will be maximal damage at the frequencies of 3, 4 and 6 kHz. Where an audiogram is showing maximal loss at 1 or 2 kHz, this kind of loss is very rarely caused by damage and is more likely a genetic condition idiopathic to the individual.

However, in the recent decision of Wignall, the contrary was found. 

Wignall v Secretary of State for Transport 

We outlined, in detail, the facts of the case in Wignall in edition 153 of BC Disease News and as such for the sake of brevity we will not repeat those in any great detail, except to remind readers that the parties in this case were in dispute as to limitation, breach of duty, causation, quantum and apportionment of damages. The exposure in this case was said to be between 1957-1968.

The court posed two questions, firstly was the deceased’s hearing loss, revealed in 2 audiograms taken in October 2012 and February 2014, noise induced? Secondly, if it was, was the loss attributable to the defendant’s breach of duty? 

The claimant relied upon the medical opinion of Mr Zeitoun, Consultant Otolaryngologist, Head & Neck Surgeon and the defendant relied upon that of Mr Jones, Consultant Surgeon formerly of the Department of Otolaryngology, Head & Neck Surgery. For the purposes of Mr Zeitoun’s medical report a pure tone audiogram was obtained on 18th October 2012 and for the purposes of Mr Jones’ report a further pure tone audiogram was obtained on 18th October 2012 and for the purposes of Mr Jones’ report a further pure tone audiogram was obtained on 18th February 2014. The appearance of these audiograms were similar and both demonstrated a hearing loss at the 2 kHz frequency which was greater than that at the 3 kHz and 4 kHz frequenciesparticularly in the right ear.

Both experts agreed that this was an unusual appearance for NIHL, however, Mr Zeitoun claimed that he would expect to see and had seen such a presentation in 5 to 15% of NIHL cases. In order to show that NIHL can affect the 2 kHz frequency Mr Zeitoun relied on the text book, ScottBrown’s Otolaryngology, as mentioned above, which states: 

‘Noise-induced permanent threshold shift usually commences between 3 and 6 kHz, often around 4 kHz, and gradually worsens at that frequency and spreads into neighbouring frequencies. At first it may be asymptomatic but if it spreads into the lower frequencies of 3 and 2 kHz complaints begin’. 

He also pointed out that the CLB Guidelines also refer to involvement at 2 kHz in some cases. 

Mr Jones disagreed and expressed the opinion that the audiograms did not show evidence of NIHL at all because, as a point of principle, hearing losses most marked at 2 kHz are not evidence of NIHL. In doing so, he relied upon the position paper, also mentioned above, of the American College of Occupational Medicine, which summarises the typical features of NIHL and emphasised the sentence ‘there is always far more loss at 3, 4 and 6 kHz than at 0.5, 1 and 2 kHz’ and ‘the greatest loss usually occurs at 4 kHz’. 

Mr Jones also relied upon the publication called ‘Advances in Noise Research ‘(1998), written by Dr Luxon, which he claimed endorsed the American criteria to the same general effect. However, HHJ Butler pointed out that Dr Luxon also accepts that NIHL ‘can begin in frequencies other than the 3-6 kHz region’ albeit ‘this is rare’.  

Additionally, Mr Jones claimed that if one was to use the CLB Guidelines on such an atypical loss that it would result in a ‘false diagnosis’. 

Mr Zeitoun did not agree with Mr Jones and insisted that whilst the audiogram was atypical it was still within the methodology of the Guidelines. However, he did accept that if the atypicality had included the 1 kHz frequency he would then not have diagnosed NIHL. 

His Honour Judge Butler did recognise that the Guidelines indicated that the normal or typical presentation is of a measurement of hearing threshold level at 3, 4 or 6 kHz which is at least 10 decibels greater than that at 1 or 2 kHz. However, he emphasised at para 64 that: 

‘It is in my judgment important to bear in mind that guidelines are just that. They are guidelines not a straightjacket. The express purpose of the guidelines is said (page 281) to be: 

“…to assist in the diagnosis of noiseinduced hearing loss (NIHL) in medicolegal settings. The task is to distinguish between possibility and probability, the legal criterion being more probable than not. It is argued that the amount of NIHL needed to qualify for that diagnosis is that which is reliably measurable and identifiable on the audiogram. The three main requirements for the diagnosis of NIHL are defined: R1, high frequency hearing impairment; R2, potentially hazardous amount of noise exposure; R3 identifiable high frequency audiometric notch or bulge”’.  

HHJ Butler also acknowledged that the guidelines mainly referred to ‘uncomplicated cases of NIHL’, or ‘typical’ NIHL alongside ‘normal’ ageassociated hearing loss (AAHL). However, he concluded that: 

‘In my judgment, this plainly does not mean that the guidelines cannot be applied to complicated cases where the NIHL is atypical or the AAHL is abnormal, merely that the expert using the guidelines should recognise the atypicality or abnormality’.

He went on to say:

‘No doubt in some cases the atypicality and the degree of abnormality would be such as to prevent an expert using the guidelines but I am satisfied on the balance of probabilities that Mr Zeitoun did not find himself in that position. In my judgment he has interpreted the guidelines as a guide not a rigid rule’. 

In conclusion, HHJ Butler pointed out that Mr Jones’ position that NIHL could never be diagnosed where there was maximal loss at 2 kHz in any circumstances, did not accord with the publications. He noted that in the CLB Guidelines, Dr Luxon’s publication and Scott-Brown’s Otolaryngology text book, it had been said that maximal loss at 2 kHz in NIHL claims was rare.

 Additionally he stated that if the CLB Guidelines were to be accepted as the definitive approach in the medico-legal context of NIHL claims then it had to be accepted that whilst atypical, maximal loss at 2 kHz can sometimes, in a small proportion of cases, lead to a finding of NIHL.

As such, HHJ Butler found that Mr Zeitoun’s evidence was preferred stating at para 70 that: 

‘For all the foregoing reasons, I found the opinion of Mr Zeitoun to be logically consistent and his use of the guidelines and his approach to the audiogram results to accord with the orthodox medico-legal approach. Each case depends on its own facts and the quality of the evidence adduced. In the context of this present case, on the evidence presented to me, I reject Mr Jones’ opinion that where the greatest loss is at 2 kHz, NIHL cannot ever properly be diagnosed. I accept the opinion of Mr Zeitoun that although the deceased was atypical and his, NIHL in his case could properly be diagnosed, albeit as a rare or minority cases, subject to proof of hazardous noise exposure has been proved. The position is that, on the facts of this case, such exposure has been found proved.’

HHJ Butler, also rejected Mr Jones’ alternative argument that the cause of the hearing loss in both audiograms was idiopathic or had a genetic cause which was currently beyond scientific explanation. As such it was found that on the balance of probabilities the deceased’s employment was causative or materially contributory of part of his NIHL.

Conclusion and Comment

Most, if not all, of the medical and scientific literature on NIHL concurs that where typical occupational noise exposure gives rise to NIHL, then such losses are maximal at 4 or 3 or 6 kHz. However some of the literature also acknowledges a possibility, in exceptional circumstances, of maximal loss at 2 kHz. Although generally for the hearing at 2kHz to be affected by NIHL it would take over twenty year’s exposure, high noise levels and a sensitive ear for this to happen. As this was not the case in Wignall, it would seem more logical that the loss at 2 kHz was therefore not due to noise exposure but instead idiopathic i.e. of unknown origin.

As was recognised in Wignall, such a dispute as this is often determined on the evidence before the court. As such it is important that when faced with such a dispute, there is a focus on providing evidence to show that the individual does not fall into the ‘rare’ category and a specific alternative causative explanation for the hearing loss is put forward. 

It has been reported that the NHS Litigation Authority (NHSLA), has set up its own in-house litigation team in an attempt to reduce its £120.1m external legal costs. 1 Notwithstanding, defence costs comprising only 8% of the total costs run up by the NHSLA in 2015/16, this was a 17% increase compared to the 2014/15 period.

The new team has not long been established and will have to pass a 12- month pilot with an analysis of the costs saving effect of the service before a longer term commitment can be made.

The NHSLA have said: ‘The litigation team has been established to enable some of the NHS Litigation Authority’s legally qualified staff to act in cases where court proceedings are served. Currently, these cases need to be outsourced to our legal panel’.

This outsourced legal panel consists of 11 law firms and this will not be reduced during the pilot period.

These cost saving measures come at a time when the Government’s proposals on fixed costs in clinical negligence claims are still awaited and claims received by the NHSLA decreased by 5% compared to the period in 2014/15.

In the recent judgment of Price v Egbert H Taylor & Company Limited (Birmingham County Court 6 July 2016), the County Court refused to apply the costs protection of QOCS to a claimant after his solicitors wrongly informed the defendants that a CFA was in place three years earlier.

The letter sent by the claimant to the defendant stated:

‘Please be advised that out Client's claim is being funded by way of a conditional fee agreement which provides for a success fee’.

The claimant, bringing an action against his employer, lost, and contended that QOCS should apply as the reference to the CFA was made in error in a letter to the defendants. However, the defendants submitted that the claimant should not be allowed to walk away unscathed from this mistake with costs protection as this was a ‘clear and unequivocal representation’ which the defendants had relied upon.

In doing so the defendant outlined the definition of estoppel by representation at Halsbury’s Laws at 47[307] which states:

‘Where a person has by words or conduct made a clear and unequivocal representation of fact to another, either knowing of its falsehood or with the intention that it should be acted upon, or having conducted himself so that another would, as a reasonable person, understand that a certain representation of fact was intended to be acted upon, and the other person has acted upon such representation and thereby altered his position, an estoppel arises against the party who made the representation, and he is not allowed to .state that the fact is otherwise than he represented it to be’.

It was submitted that this is precisely what had happened in this case. The claimant asserted that there was a precommencement funding arrangement in place and the defendant, as a reasonable person, understood that to be a representation to be acted upon and, inevitably, altered its position based on the representation. As such, the defendant contended that the claimant should not be allowed to subsequently assert that QOCS applied. His Honour Judge Lopez accepted this argument and found that:

‘I accept the submissions made by Mr White in respect of the issue of estoppel. It is, I find, clear that by the letter of the 30th October 2012 the Claimant's solicitor made a clear and unequivocal representation to the Defendant and its solicitors that the Claimant had the benefit of a conditional fee agreement, even giving the additional detail in the letter that the agreement provided for a success fee. Further, it is clear that the Defendant and his solicitors relied upon that representation. Therefore, I find that the Claimant is now estopped from asserting that Qualified One-Way Costs Shifting does not apply’.

The claimant was ordered to pay £5,533 costs of the first hearing and the £8,806 costs of the appeal.

The full judgment can be accessed here.

In the recent decision of Billington v Davies [2016] EWHC 1919 (Ch), Deputy Master Pickering illustrated two important principles in relation to the late filing of defences.

Firstly, where a claimant has applied for default judgment in default of the defence they are still entitled to default judgment even if the defence is filed between the date of the application and the date of the hearing. Secondly, an application for an extension of time for filing a defence is dealt with on the basis of CPR 3.9 and Denton principles. 

The facts of Billington, were that the First Defendant filed an acknowledgment of service. The defence was due on the 4th January 2016. No defence was served PAGE | 4 and, on the 11th April 2016, the claimant issued an application for judgment in default of filing a defence. The defendant then served a defence the day before the hearing was due to be heard and at the same time made an application for an extension of time to file the defence.

The defendant submitted that the claimant was not entitled to default judgment once the defence had been filed by virtue of the wording of CPR 12.3(2) which states that:

Judgment in default of defence may be obtained only -

1. where an acknowledgement of service has been filed but a defence has not been filed; 
2. in a counterclaim made under rule 20.4, where a defence has not been filed, and, in either case, the relevant time limit for doing so has expired. 

The Deputy Master rejected this argument on the grounds that to accept it would bean that an application for judgment in default of a defence will automatically be defeated whenever a defendant files a defence – however late. It was also said that: 

‘…the reference to ‘a defence’ in CPR 12.3(2)(a) must be a reference to a defence which has either been served within the time permitted by the Rules or in respect of which an extension of time has beene granted. Where a defence is served late, unless and until an extension has been granted, a document purporting to be a defence is not in fact a defence for the purposes of CPR 12.3(2)(a). To this extent, the note at 15.4.2 of the 2016 edition of the White Book is, in my judgment, wrong’. 

The note at para 15.4.2 of the White Book states: 

‘Filing a defence late will prevent the claimant obtaining a default judgment (see r.12.3). However, the claimant may instead apply for an order striking out the defence under r.3.4(2)(c).’

The Deputy Master also rejected the defendant’s application for an extension of time.