Government Defends ‘Fundamentally Dishonest’ Acoustic Trauma Claim

A few months ago, it was reported that the Government had successfully defended an acoustic trauma claim, on the grounds of ‘fundamental dishonesty’.[i]

The claimant in this case, a former British soldier, alleged that whilst undertaking training exercises in Germany, in 2011, he sustained acute acoustic trauma when a practice grenade ricocheted off his face and detonated upon landing on the ground.

It was purported that the hearing impairment caused by this specific incident had resulted in the claimant being declared ‘medically non-deployable’ and subsequently discharged from military services.

In 2014, the claimant issued and served proceedings against the Ministry of Defence (MoD), valued in excess of £270,000.

From the outset, the parties’ medical experts disagreed on the issue of causation, with the defendant’s expert concluding that any hearing loss suffered had been idiopathic.

This lack of consensus was, however, obscured by a gap in evidence. It was not until May 2018 that the claimant disclosed information about an audiogram, dated March 2013 (18-months after the alleged injurious exposure), which showed that his hearing was in fact ‘normal’.

Despite having claimed, in a 2nd witness statement, that the audiogram had been falsified to facilitate his aspiration for military redeployment, the defendant pleaded, in an amended defence, that the claimant had been ‘fundamentally dishonest’, by way of his belated admission. Further, that the intention of this dishonesty was to either deliberately obstruct the evidential presentation of the case without good reason, or to fabricate false evidence that contravened the defendant’s stance on medical causation.

The 2013 audiogram was plainly crucial to the claimant’s case and had been withheld throughout 3-years of litigation (the audiogram was not attached to the original Particulars of Claim) until severe doubt had been cast on the legitimacy of the claim.

At trial, the claimant faced cross-examination over both the training incident and the concealed audiogram.

With regards to the former, the judge accepted that there was evidence of the grenade colliding with the claimant’s face, but did not accept that there was evidence of the grenade exploding, as averred.

With respect to the latter, the judge deemed that it would have been ‘impossible’ for the claimant to fabricate the results of audiometric testing to suit his concocted narrative (that the audiogram was a better reflection of his actual hearing threshold levels).

Thus, the claimant was held, in an unreported judgment, to have been ‘fundamentally dishonest’, under s.57 of the Criminal Justice and Courts Act 2015 and the primary claim was dismissed, accordingly.

At the time of first reporting, in February 2020, the MoD was seeking to recover its defence costs.

Purely for the sake of intrigue, what if the claimant’s acute acoustic trauma had not been disputed in this case? How might the incident have led to the otological injuries claimed?

In September 2008, the Ministry of Justice published a guidance document, called: Synopsis of Causation – Blast Trauma of the Ear.

Within this document, authors, Dr Tony Fisher and Kevin Gibbin, explain the basic aetiology of acute acoustic trauma, which may be attributed to ‘blast’ injury [due to explosive (e.g. grenades, bombs, missiles) and non-explosive forces (e.g. a slap or a punch to the ear)], or ‘ear’ injury (due to impulse noise).

As an ‘air-filled’ organ, the ear is susceptible to acoustic trauma through a wave of ‘overpressure’, created by a blast incident.

Equally, the ear is also susceptible to acoustic trauma by way of ‘… a single-pulse sound or a burst of sound with a duration of between 0.001 and 1 second … typified by a sound, typically equal to or greater than 140 dB, which rapidly rises to a sharp peak and then quickly fades [but not impulses that occur in rapid succession, which would be regarded as ‘chronic noise’] – N.B. this was corroborated by McFerran & Baguley (2007),[ii] whose paper was cited in the landmark acoustic shock case of Goldscheider v The Royal Opera House Covent Garden Foundation [2018] EWHC 687 (QB).

However, Rezaee et al (2012), in a study of military personnel, found that even exposure lower than ‘permissible levels’ can lead to acoustic trauma.[iii] During army practice drills, use of dummy grenades, which contain less high explosive material and are quieter than standard issue combat grenades, can still surpass 150 dB (peak levels of reduced load stun grenades, or ‘flashbangs’, was measured at 151.1–168.8 dB[iv]).

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[Source: US Department of Defense – Robbin Cresswell (18 June 2009): ‘U.S. Air Force Staff Sgt. John Plemons lectures to students from the Basic Officers Course on how to employ an M-67 hand grenade on Camp Bullis, Texas. Plemons is an instructor assigned to the 343rd Training Squadron. U.S. Air Force’]

Blast trauma and impulse noise can cause physical damage to the structure of the ear, e.g. perforation of the tympanic membrane (eardrum) and structural distortion of the middle and inner ear (ossicles and cochlea).[v] Hearing loss [temporary threshold shift (TTS) and permanent threshold shift (PTS)] and tinnitus may follow,[vi] with PTS occurring in up to 50% of those exposed to explosive blast trauma. Unlike noise-induced sensorineural hearing loss (NIHL), losses at 4 kHz are not characteristic of typical audiometry in acoustic trauma victims.[vii]

As was identified in the case of Goode v Morgannwg (Cardiff County Court, 2013), ‘the results of acoustic trauma are normally immediate in effect’, though no further auditory deterioration is expected 1-year after an episode of acute acoustic trauma.[viii] In fact, in around 50 to 80% of cases, perforations of the tympanic membrane will heal spontaneously.[ix]

 

[i] Vicky Mallard, ‘Fundamental dishonesty finding in acoustic trauma claim’ (BLM) <https://sites-blm.vuturevx.com/93/2917/compose-email/fundamental-dishonesty-finding-in-acoustic-trauma-claim.asp> accessed 17 April 2020.

[ii] McFerran DJ and Baguley DM, Acoustic Shock. J Laryngol Otol. 2007 Apr;121(4):301-5. Epub 2007 Feb 19. <https://www.cambridge.org/core/services/aop-cambridge-core/content/view/E74A174BB4647C93F64C3961EE1AAA50/S0022215107006111a.pdf/acoustic_shock.pdf> accessed 17 April 2020.

[iii] Rezaee M et al., Assessment of Impulse Noise Level and Acoustic Trauma in Military Personnel. Trauma Mon. 2012 Winter; 16(4): 182–187. <https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3989570/pdf/traumamon-16-182.pdf> accessed 10 June 2020.

[iv] Brueck SE et al, Measurement of Exposure to Impulsive Noise at Indoor and Outdoor Firing Ranges during Tactical Training Exercises – Report No. 2013-0124-3208 (June 2014 US DoH, CDC and NIOSH) <https://www.cdc.gov/niosh/hhe/reports/pdfs/2013-0124-3208.pdf> accessed 17 April 2020.

[v] Raju G, Disability evaluation in acoustic blast trauma. Indian J Occup Environ Med. 2015 Sep-Dec; 19(3): 138–140. <https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4765251/epub/> accessed 17 April 2020.

[vi]  Mrena R et al., Characteristics of tinnitus induced by acute acoustic trauma: a long-term follow-up. Audiol Neurootol 2002;7(2):122-30. <https://www.karger.com/Article/Abstract/57660> accessed 12 June 2020.

[vii] Persaud R et al., Otological trauma resulting from the Soho nail bomb in London, April 1999. Clin Otolaryngol 2003;28:203-6. <https://onlinelibrary.wiley.com/doi/abs/10.1046/j.1365-2273.2003.00688.x?sid=nlm%3Apubmed> accessed 12 June 2020.

[viii] Segal S et al. Acute acoustic trauma: dynamics of hearing loss following cessation of exposure. Am J Otol 1988;9(4):293-8. <https://pubmed.ncbi.nlm.nih.gov/3177612/> accessed 12 June 2020.

[ix] Kerr AG and Byrne JE, Concussive effects of bomb blast on the ear. J Laryngol Otol 1975;89(2):131-43.

Walsh RM et al., Bomb blast injuries to the ear: the London Bridge incident series. J Accid Emerg Med 1995;12(3):194-8. https://www.cambridge.org/core/services/aop-cambridge-core/content/view/D64B1FB12AACB078AC002163A1CB6CE2/S002221510008018Xa.pdf/div-class-title-concussive-effects-of-bomb-blast-on-the-ear-a-href-fn01-ref-type-fn-a-div.pdf> accessed 12 June 2020.

Cohen JT et al., Blast injury of the ear in a confined space explosion: auditory and vestibular evaluation. Isr Med Assoc J. 2002;4(7):559-62. <https://www.researchgate.net/profile/Mordechai_Himmelfarb/publication/11259351_Blast_injury_of_the_ear_in_a_confined_space_explosion_Auditory_and_vestibular_evaluation/links/55f8769f08aec948c47e2e20/Blast-injury-of-the-ear-in-a-confined-space-explosion-Auditory-and-vestibular-evaluation.pdf> accessed 15 June 2020.

Wolf M et al., Blast injury of the ear. Mil Med 1991;156(12):651-3. <https://academic.oup.com/milmed/article-abstract/156/12/651/4849166?redirectedFrom=fulltext> accessed 15 June 2020.