A former Royal Marine is seeking damages of £1,275,899 million from the Ministry of Defence (MoD) for noise-induced hearing loss and tinnitus.[i] Given the abnormally high level of compensation sought, the trial of liability is scheduled to be heard in the High Court next month. It is considered to be a landmark case – the first of its kind and a potential test case for future military deafness claims.
Mr Alistair Inglis, who now uses a hearing aid, alleges that his hearing impairment was caused by prolonged exposure to the noise of weapons and vehicles during 14 years of military service, eventually forcing him to leave in 2012. Somewhat ironically, Mr Inglis currently works in health and safety.
The claimant’s submissions on breach of duty have been summarised by Mr Simon Ellis, his solicitor at Hugh James, as follows:
‘Essentially, we say he was not given the right protective equipment to mitigate against noise exposure. We also say that hearing tests he had in the Marines did not pick up the level of hearing loss from which he now suffers’.
The question of when military personnel are owed a duty of care is a much-debated topic.
High ranking military officials are of the opinion that combat activity should be immune from legal action, while claimant lawyers argue that the MoD’s duty to safeguard its servicemen and women does not cease after troops leave the training ground.
In editions 257 (here) and 259 (here) of BC Disease News, respectively, we reported on a non-freezing cold injury claim and a Q fever claim, both of which were brought by former servicemen. In the former claim, the soldier argues that his condition was developed as a result of cold conditions in UK-based training exercises, while success in the latter claim relies on the Central London County Court finding that the soldier was infected with Helmand-fever bacteria in Helmand province – a war zone.
In this particular claim, the 39-year-old pleads that his injurious exposure ‘was a combination of both training and combat exposure’, as inadequate hearing protection was supplied both in and out of action in Afghanistan.
The MoD disputes the ‘extent’ and ‘precise cause’ of the claimant’s hearing loss. From this limited snippet of information, it could be implied that audiometric testing has produced audiogram(s) which are not consistent with NIHL and are therefore not diagnostic of NIHL.
In the financial year 2016/17 alone, the cost of service-related employers’ liability (EL) claims was £60 million.
The latest Government figures show that service-related NIHL claims are the most common type of claim, although the number of claims is generally falling. Between 2014 and 2015, there were 1,838 NIHL claims, which is more than double the number of claims between 2016 and 2017 (914).
Nonetheless, claimant counsel, Ronald Walker QC, has stated that 210 veterans are in the process of bringing legal action against the MoD, from all three branches of the armed forces. Mr Ellis described that these army, navy and air force personnel have ‘all been exposed to excessive noise, either from weapons systems ranging from pistols and rifles to the big artillery pieces, or from items such as military vehicles, tanks, ships and aircraft’.
Each of these 210 claimants is pleading that personal protective equipment (PPE), supplied in training and in combat, was ineffective. Mr Ellis further explained:
‘There is protection available which is specifically designed for combat situations. The problem is that the military was not always very good at getting it’.
This may soon change, however. In edition 257, we announced that the Defence and Security Accelerator (DASA) is funding trials and demonstrations of new noise-induced hearing loss (NIHL) technology, which could become standard combat equipment in the near future.[ii]
Will the parties in Mr Inglis’ case reach settlement before trial? We will continue to provide updates if and when more information is made available.
It is worth bearing in mind that under the Judicial College Guidelines (14th edition) bracket, labelled ‘Severe tinnitus and hearing loss’, the upper limit of general damages is £39,940 (with the 10% uplift). A significant proportion of this claim is therefore made up of special damages, most likely future loss of earnings and pension, pertaining to a relatively young claimant.
[i] Dominic Nicholls, ‘Former Royal Marine sues MoD for hearing loss, in case that could cost millions’ (12 February 2019 The Telegraph) <https://www.telegraph.co.uk/news/2019/02/12/former-royal-marine-sues-mod-hearing-loss-case-could-cost-millions/> accessed 13 February 2019.
[ii] Defence and Security Accelerator, ‘Wearable technology for injury prevention’ (17 December 2018 GOV.UK) <https://www.gov.uk/government/news/wearable-technology-for-injury-prevention> accessed 9 January 2019.