Nigel Askew Solicitors were contacted by a client in February 2014 in relation to bringing a claim for compensation for military related deafness as a result of his exposure to excessive noise during his employment with HM Army between 1997 and 2013.
The client joined the Army as an infantryman in 1997 straight from school. His Army career milestones progressed in line with expectation and by 2008 he had signed on for a 24 year Versatile Engagement (due to conclude February 2022 by which time he would have been around 40 years old). By April 2012 he had attained the rank of Sergeant and had every expectation of reaching Warrant Officer 2 by the end of his service.
Unfortunately problems with his hearing lead to the client being discharged from the Army in March 2013, after only 15 years and 5 months in service.
The client was exposed to significant weapon noise throughout his Army service.
Throughout his time in the Army he was trained on the ins and outs of being an infantry soldier which included firing weapons. After initial training, he continued to attend training courses throughout his career which courses lasted anywhere from 1 week to several months.
Around 90% of the weapons he fired were rifles. There was also some live grenade firing and explosives (C4) training, and later on he was also around armoured vehicles with 30mm cannons.
On several occasions he participated in “arduous” training courses in Canada and in the Brecon Beacons which involved manoeuvres and weapons firing for weeks at a time.
He also deployed abroad on 5 occasions (Northern Ireland in the late 1990s, Kosovo twice during peacekeeping in the early 2000s, Iraq in 2003, and Afghanistan in 2009).
Soldiers were provided with ear muffs for use on the static firing ranges, and ear plugs if they preferred. However there was little will on part of the Army to enforce the use of hearing protection that was provided, or to provide suitable hearing protection for soldiers to use in live-fire training and combat situations.
The client wore the hearing protection provided as much as he could while on static firing ranges. However the hearing protection provided did not meet his need for situational awareness and communication during exercises and deployment.
Military Hearing Loss
As part of the Army’s medical monitoring procedures the client had regular hearing tests throughout his career.
Concerns about his hearing were first raised by the Army in July 2010 (when an ENT consultant having reviewed his hearing warned the Army that he needed to use “double” hearing protection i.e. plugs and ear muffs together when exposed to weapons fire). Thereafter, heeding the ENT consultant’s warning, he duly wore double protection on the static firing ranges. However the ENT Consultant’s warning was not heeded by the Army itself, since the client was still sent on training exercises in situations where use of “double” hearing protection was impossible. Nor did the Army undertake any steps to resource the client with hearing protection suitable to protect his already damaged hearing.
In November 2011 he had started to experience an intermittent buzzing tinnitus.
However it wasn’t until April 2012 that the client’s hearing led to him being medically downgraded and removed from any activities where he might have been exposed to further excessive noise.
By late 2012 he was further downgraded to P7 MLD i.e. permanently restricted from carrying out a large part of his usual infantry duties since they typically involved exposure to excessive noise. The Army also arranged for him to be fitted with a hearing aid to his left ear and he was given a sound pillow to help with the tinnitus at night.
Having investigated his options for remaining in the Army with the significant restriction on his fitness for service, a decision was reached to medically discharge him in March 2013.
In or about 2014 he was fitted with a pair of NHS hearing aids.
Without aiding, the Claimant’s hearing difficulties were somewhere in the magnitude of those expected of someone more than twice his age. He experienced difficulty having conversations or speaking on the phone, especially when there was background noise, and frequently asked colleagues and family members to repeat themselves.
The Compensation Claim for Military Deafness
Upon his discharge in 2013, the Claimant applied to the Armed Forces Compensation Scheme for compensation from the Army for his hearing loss and tinnitus. The AFCS accepted the Claimant suffered NIHL and tinnitus as a result of his time in service, but did not consider the injury significant enough to warrant an award under the AFCS scheme.
The client contacted several solicitors with a view to making a claim for compensation for military deafness but was turned away on the basis his claim was already out of time.
We noted there was a risk of his claim being out of time and that the issue could be hard-fought by the Army. However after exploring the matter in full with the client and having discussed the matter with Counsel, we were confident the Claimant had reasonable prospects of proving his military deafness claim had merit and that a Defendant such as the Ministry of Defence (being an excellent record-keeper) was unlikely to suffer prejudice by the minimal delay.
We expected a strong defence arguing the claim had been brought too late and was out of time and also a strong defence against the amount being claimed. It was expected that the army would admit that it had exposed him to excessive levels of noise. However despite the medical evidence being straightforward in this case, it was disputed.
The Defendant was formally notified of the military deafness claim by way of a letter of claim on 15 April 2014.
Disclosure of the soldier’s service records was difficult to obtain, as was disclosure from the Army of any records relating to its compliance with its duties to adequately protect soldier’s hearing from excessive noise exposure.
Upon service of the claim form we sought agreement to a stay, to allow the Army to comply with its pre-action disclosure obligations.
By the end of the stay the Army filed a defence denying breach of duty, alleging that many of the UK regulations giving rise to an employer’s duty of care did not apply to the Claimant’s service undertaken abroad, alleging combat immunity, contributory negligence by the Claimant (because he failed to use the hearing protection provided to him). And the Army failed to supply any of the requested disclosure.
Therefore at an Allocation Hearing in December 2014 we specifically sought directions that the Army do to give full disclosure before further directions be put in place. The Court gave directions in those terms, ordering the Army to give full disclosure by 01 April 2015.
The Army was late in complying with that deadline but eventually in April it handed over the Claimant’s service records with “generic disclosure” of over 2000 individual items regarding the Army’s provision of hearing protection.
The considerable volume of disclosure required many man-hours to review but during that review it became clear the Army had little prospects of defending the allegation of breach of duty, and that there was documentary proof the Army accepted the Claimant had suffered NIHL and tinnitus due to his time in service.
We invited the Army to admit breach of duty. It initially maintained the issue remained in dispute. However after a hard-fought battle the Army finally saw the error of its ways and conceded breach of duty in mid-2016.
Prior to that, the Court had given permission for a number of additional expert reports to be obtained in order to assist in the determination and quantification of the claim. Each party was entitled to instruct their own:
- ENT Consultant
- Employment Consultant
By mid-2015 the Claimant was examined by the Army’s medical expert, who agreed with the Claimant’s medical expert that the client had suffered tinnitus and significant noise damage from his time in service, which injury considerably accelerated his need for hearing aids.
Due to the Army’s concession of breach of duty given in mid-2016, engineers were not instructed.
However the claim for damages remained in dispute.
Case Value and Quantum
The value of the claim was provisionally limited to general damages for pain loss and suffering and special damages for hearing and tinnitus aids. The hearing aid claim was revised upon receipt of advice from the hearing aid expert, and a claim for loss of earnings was fully plead upon receipt of the Claimant’s service records and advice from the employment experts.
The client’s discharge occurred so quickly that he little time to consider his options for income upon entering the civilian world. Having a young family to support he undertook work in the fitness industry but his income is considerably lower than it was as a soldier and would remain so for some time into the future due to his loss of opportunity to develop further managerial skills while in service which would later be very valuable in civilian life (due to his service having abruptly ended prematurely).
He claimed past and future loss of earnings.
He claimed for lost pension and benefits as a result of leaving service.
The parties instructed their respective employment experts who, after individually meeting with the client and reporting, agreed he had completed 15 years and 5 months service; that in the absence of injury the client was unlikely to have been compulsorily discharged; and that, in the absence of injury, he had planned to complete a minimum of 24 years’ service (exiting in February 2022) by which time he could reasonably have expected to have attained the rank of Warrant Officer 2.
Disagreement between the employment experts existed as to their assessment of the Claimant’s possible earnings.
The Army then agreed an application for permission to instruct a hearing aid expert, and the necessary permission was obtained. A hearing aid expert was duly instructed to undertake a trial with the client of a set of hearing aids suitable to his needs. The hearing aid expert recommended a pair of Phonac Audeo V19 10 specifically set for tinnitus management, which were trialled by the client. The aids retail on the private market for roughly £4,400 per set and are not available on the NHS.
The Phonac aids improved the client’s hearing and management of his tinnitus, and were comfortable to wear as they caused him no pain, while the NHS ones caused him pain by the end of a day’s wear.
The client was so impressed by the Phonac’s improvement to his hearing and management of his tinnitus, and physical comfort, that he was minded to purchase them regardless of the outcome of his claim.
Trial was fixed for a 2-day hearing in April 2017, but it was hoped the weight of evidence in his favour would encourage settlement of the claim without the need for trial.
However settlement of the claim did not take place until a Joint Settlement Meeting held in February 2017. Negotiations to settle the claim at the JSM took the most part of a day. The client had the benefit of representation by skilled Counsel at the Joint Settlement Meeting and by late afternoon a binding agreement of compensation in the sum of £300,000 was reached.
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