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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Inglis v Ministry of Defence [2019] EWHC 1153 (QB) (08 May 2019) URL: https://www.bailii.org/ew/cases/EWHC/QB/2019/1153.html Cite as: [2019] EWHC 1153 (QB) |
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
(sitting as a Deputy High Court Judge)
____________________
ALISTAIR CRAIG INGLIS |
Claimant |
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- and – |
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MINISTRY OF DEFENCE |
Defendant |
____________________
Sam Healy (instructed by Plexus Law) for the Defendant
Hearing dates: 4th, 5th, 6th and 7th March 2019
____________________
Crown Copyright ©
Peter Marquand:
Introduction
The issues
Background
i) physical capacity;
ii) upper limbs;
iii) locomotion;
iv) hearing;
v) eyesight;
vi) mental capacity; and
vii) stability.
Issue 1 - why did the Claimant leave the Royal Marines?
The Claimant's evidence
"career manager reasons – firm offer of civilian employment
pay and allowances
seeking fresh challenges
…
Career manager comments justification: Cpl Inglis has given his request for PVR careful consideration; he has served for 14 years and has a young family and a mortgage. He is applying for employment in maritime security in order to give his family financial security in the short to mid-term and he is then considering employment as an electrician. I am content that he has considered all aspects of his PVR application. He understands that in the current climate it is unlikely that he will be permitted to withdraw his PVR request. Application to PVR supported.
Further info[mation]: Cpl Inglis' application for early termination has been approved with a new FED of 30th May 2012 (12 months minimum from original JPA application)."
"problem: routine medical
history: age 30 no complaints…
He is H2 both ears. Occupational history of noise exposure as platoons weapons. Both eardrums are scarred.…
Comment: he is H2 and borderline H3. He was reviewed at Derriford Hospital two years ago. I have told him he needs an annual audiogram and that his hearing will slowly deteriorate. I also advised him to consider a non-noisy environment when he leaves the Corps. I reminded him to declare his hearing loss at his release medical.
Additional: Hr[right]2 Hl[left]2
fit for full duties within current MES"
"E: hearing loss
D: fit for full duties within current MES
S: as above. Asymptomatic hearing loss in left ear, discovered on routine audiogram. Patient is H3 left ear and H2 right ear with high tone loss.
O: normal tympanic membranes bilaterally, mild retraction bilaterally, no excessive scarring.
P: formal ENT assessment and probable annual audiograms thereafter. For R/V [review] after hospital appointment.
R: referral for further care, ENT, Derriford, military, advice only, non-urgent"
"It has been suggested to me that I left the Royal Marines voluntarily. This is true, to the extent I was not medically discharged. However, had the opportunity to work in maritime security on the earnings then available not presented itself, I would not have looked to leave the Royal Marines at that time. I was on course for promotion within the Royal Marines and was shortly due to undergo a promotion course. My only reason for leaving was due to concerns I had over my deteriorating levels of hearing, which I anticipated were likely to result in me being downgraded or even medical (sic) discharged at some point in the future, coupled with the offer of employment that was time sensitive and would not be held open for any length of time."
Mrs Inglis' evidence
Major Sharland's evidence
Dr Clarke's evidence
"During service any change in the H degree, other than a fall from H1 to H2, must be referred for an ENT opinion. Unilateral hearing loss also required specialist assessment, with investigation as necessary. Those with unilateral or bilateral hearing loss who are considered suitable for continued employment in the services must be subject to appropriate controls and education (both of the individual and their managers) to ensure appropriate protection from exposure to noise and to reduce the risk of any further deterioration in hearing."
"Many thanks for referring this young man to us, who has noticed hearing loss, particularly on the left side. He has had it for several years and it appears to be slowly worsening. He is exposed to noise at work, particularly guns. He is right-handed and this would mean that the noise from the muzzle would hit his left ear. He gets mild bilateral tinnitus but no other otological symptoms.
On examination his ears are normal. His audiogram has shown bilateral noise induced hearing loss. He had an audiogram in this department two years ago almost to the date. This showed the same problem but today he is slightly worse. I have advised him that if he continues to expose his ears to noise his hearing will continue to worsen, otherwise it would be stable. A hearing aid would not help him in this situation at present. I have not arranged to see him back."
"The Claimant is H2 and borderline H3 in the left ear. He was reviewed at Derriford two years ago. I have told him he needs an annual audiogram and that his hearing will slowly deteriorate. I also advised him to consider a non-noisy environment when he leaves the Corps. I reminded him to declare his hearing loss at his release medical."
"This very pleasant 33-year-old has noticed gradual deterioration of his hearing – particularly in the left ear. He finds it difficult in conversation and needs to lip-read in noisy environments and at other times…"
The expert evidence
"As well as the difficulty in hearing properly, research indicates people with hearing difficulties report the following additional problems in the workplace:
loss of confidence;
embarrassment of asking other people to speak up or repeat what they said;
job security fears;
unsupportive and possibly discriminatory attitudes from management, colleagues and prospective employers;
forced early retirement;"
Conclusion on the first issue
i) If the Claimant was concerned about his hearing, he would have looked for alternative jobs or roles that had no noise exposure, but that was not what the Claimant had done;
ii) The Claimant's hearing loss was stable between 2006 and 2011;
iii) The Claimant, as a weapons instructor, would be able to control his exposure to noise including wearing double ear protection – he was not in the field where he would be less able to do so;
iv) The significant financial incentive provided by maritime security was the primary reason for leaving. Joining maritime security was not just a short-term expedient that lead nowhere and was not being used as a vehicle to leave the Royal Marines;
v) He was not at risk of a medical discharge and even if he was, alternative employment could have been found for him in the Royal Marines;
vi) The Claimant did not mention concerns about his hearing at the interview referred to at paragraph 28. If he was concerned, he would have been looking for other jobs;
vii) The evidence the Claimant gave has to be seen in the context of this litigation.
i) On 7 May 2008 that his hearing was slightly worse than two years previously and advised that his hearing will continue to worsen if he remains exposed to noise; and
ii) On 1 May 2010 that his hearing will slowly deteriorate and to consider a non-noisy environment when he leaves the Corps.
Issue 2 - the extent of the Claimant's hearing loss
The Claimant's evidence
"[the Claimant] may hear almost as well as people with normal hearing in noise [with the initial setting of the hearing aid] and may hear better than people with normal hearing in noise with a final hearing aid settings…"
Mrs Inglis' evidence
The expert evidence
"Although I am of the opinion that appropriately fitted premium hearing aids with the features described above would be of benefit to [the Claimant], I do not anticipate the benefit to be very large. Much of his hearing difficulty can be ascribed to a reduced ability to discriminate sounds, even when the sounds are audible (above the detection threshold). Hearing aids will not solve this basic problem. Hearing aids can help by making weak sounds audible, and directional microphone systems can help the user to discriminate speech when background sounds are present. However, even the best hearing aids do not restore hearing to normal. In addition, [the Claimant] may have difficulty getting used to hearing aids; initially the hearing aids may make sounds seem too harsh or too loud."
"[the Claimant] indicates in his statement that his hearing loss has a significant effect on his personal life and employment. I would expect that this would be the case judging from his audiogram; it also matches his description of hearing difficulties given during my conversation with him."
"It was at this point, due to the reluctance to see much benefit from the hearing aids, that I became concerned that the Claimant might be biased in his assessment of the benefit of the hearing aids"
"The results indicate that the Claimant would be at a level where he may hear almost as well as people with normal hearing in noise with the initial NAL–NL2 setting, and may hear better than people with normal hearing in noise with the final hearing aid settings (NAL–NL1 with SoundRecover frequency compression)."
Conclusion on the second issue
Issue 3 - is the Claimant "disabled" within the meaning in the Ogden Tables.
The evidence
"… It is not so much a question of the level of the job [the Claimant] can do with his hearing difficulty (advisor or manager) but the environment in which he may find himself working or choose to work. Accordingly, he would be unsuited to any health and safety role in environments with high levels of noise or background noise (e.g. engineering or manufacturing plants, some parts of construction sites) …"
The Ogden Tables
"A person is classified as being disabled if all 3 of the following conditions in relation to the ill health or disability are met:
(i) the person has an illness or disability which has lasted or is expected to last for over a year or is a progressive illness,
(ii) the person satisfies the Equality Act 2010 definition that the impact of the disability substantially limits the person's ability to carry out normal day-to-day activities, and
(ii) their condition affects either the kind or the amount of paid work they can do.
Not disabled All others."
"(1) A person (P) has a disability if—
(a) P has a physical or mental impairment, and
(b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities."
i) B4 guidance is given on considering the cumulative effect of an impairment;
ii) B3 it is indicated that in considering whether the effect of an impairment is substantial the way in which the person carries out normal day-to-day activity should be considered;
iii) B7 it states that account should be taken of how far a person can reasonably be expected to modify his or her behaviour to reduce the effect of an impairment on normal day-to-day activities;
iv) B11 it refers to the effects of environment that may exacerbate or lessen the effect of an impairment.
i) D3 includes domestic activities such as shopping but also general work-related activities as normal day-to-day activities;
ii) D 20 states that environmental conditions may have an impact on a person's ability to carry out normal day-to-day activities. A specific example of background noise interfering with a person's ability to hold a conversation when most people would not suffer this adverse effect is provided.
"difficulty hearing and understanding another person speaking clearly over the voice telephone (where the telephone is not affected by bad reception)"
"inability to hold a conversation in a very noisy place, such as a factory floor, a pop concert, sporting event or alongside a busy main road"
"They do not mean that if a person can do an activity listed then he or she does not experience any substantial adverse effects: the person may be affected in relation to other activities, and this instead may indicate a substantial effect. Alternatively, the person may be affected in a minor way in a number of different activities, and the cumulative effect could amount to a substantial adverse effect."
Conclusion on the third issue
Issue 4 – how should the Claimant's loss of earnings be calculated?
The Claimant's evidence
The expert evidence
Mr Sephton ('000) | Mr Craggs ('000) | |
Advisor entry level | £23 to £31 | £27 to £30 |
Senior advisor | £37.5 to £52.5 after 3 to 5 years | £30 to £33 after 2-3 years rising to £35 to £36 after 5-8 years |
Manager | £55 to £60 after 10 years | £35 to £36 after 2 to 3 years rising to £40 after 5-8 years and up to £50, depending on opportunities. |
From 2020 to 2024 ('000) | From 2024 and beyond ('000) | Location | |
Advisor | £33 | £35 to £36 | South West |
Senior advisor | £35 to £36 | £36 to £37 | South West |
Manager | - | £40 to £45 | South West |
Manager | - | £45 to £50 | Bristol, Midlands, South East |
The law relevant to the potential earnings uninjured and injured
"In any claim for injury to earning capacity based on long-term disability, the task of the court in assessing a fair figure for future earnings loss can only be affected by forming a view as to the most likely future working career ('the career model') of the Claimant had he not been injured.… If a move of job or change of career at some stage is probable, it need only be allowed for so far as it is likely to increase or decrease the level of the Claimant's earnings at the stage of his career which it is regarded as likely to happen. If such a move or change is unlikely significantly to affect the future level of earnings, it may be ignored in the multiplicand/multiplier exercise…"
"Similarly, it is a truism that the assessment of future loss in this field is in a broad sense the assessment of the chance or, more accurately, a series of chances as to the likely future progress of the Claimant in obtaining, retaining or changing his employment, obtaining promotion, or otherwise increasing his remuneration."
"Provided a fair career model is chosen as the basis for the assessment of loss of future earnings and pension entitlement, the prospects of enhanced or reduced earnings resulting from the ordinary chance of life can be allowed for by adjustments to the multiplicand and multiplier as appropriate. It is only when the court has to consider the possible effects of an unusual turn of events that would have a significant effect on earnings or pension rights that it is necessary to assess the chances of such events occurring and to assess the financial consequences."
Conclusion on potential earnings - uninjured
Claimant | Defendant | |
14-9-2019 to 13-9-2021 | £27,000 as adviser | £28,500 as adviser |
14-9-2021 to 13-9-2024 | £41,250 as senior adviser | £33,000 as adviser/manager |
14-9-2024 to 13-9-2029 | £48,500 as senior adviser | £40,000 as manager |
14-9-2029 to 13-9-2049 | £57,500 as manager | £40,000 as manager |
Conclusion on potential earnings injured
Claimant | Defendant | ||
To 31-5-2022 | £30,000 | To 13-9-2019 | £30,000 |
1-6-2022 to retires | £34,750 | 14-9-2019 to 13-9-2021 | £33,000 |
14-9-2021 to 13-9-2025 | 34,500 | ||
14-9-2025 to 13-9-2047 | £40,000 |
Should the award be on the basis of Smith v Manchester?
"All assessments of future loss of earnings in personal injury cases necessarily involve some degree of uncertainty. As far as possible, the task of the court is to seek to arrive at the best forecast it can make of the scale of such loss, normally on the well-established basis of multiplying an anticipated annual loss by an appropriate multiplier.
Merely because there are uncertainties about the future does not of itself justify a departure from that well-established method."
"Clearly no mathematical calculation is possible. Edmund Davies LJ and Scarman LJ said in Smith v Manchester Corporation, 17 KIR 1, 6, 8, that the multiplier/multiplicand approach was impossible or 'inappropriate', but I do not think that they meant that the court should have no regard to the amount of earnings which a Plaintiff may lose in the future, nor to the period during which he may lose them. What I think they meant was that the multiplier/multiplicand method cannot provide a complete answer to this problem because of the many uncertainties involved. The court must start somewhere, and I think the starting point should be the amount which a Plaintiff is earning at the time of the trial and an estimate of the length of the rest of his working life. This stage of the assessment will not have been reached unless the court has already decided that there is a 'substantial' or 'real' risk that the Plaintiff will lose his present job at some time before the end of his working life, but it will now be necessary to go on and consider – (a) how great this risk is; and (b) when it may materialise – remembering that he may lose a job and be thrown on the labour market more than once (for example, if he takes a job then finds he cannot manage it because of his disabilities). The next stage is to consider how far he would be handicapped by his disability if he was thrown on the labour market – that is, what would be his chances of getting a job, and an equally well-paid job. Again, all sorts of variable factors will, or may, be relevant in particular cases – for example, a Plaintiff's age; his skills; the nature of his disability; whether he is only capable of one type of work, or whether he is, or could become, capable of others; whether he is tied to working in one particular area; the general employment situation in his trade or his area, or both. The court will have to make the usual discounts for the immediate receipt of a lump sum and for the general chances of life."
"[Those factors] involve considering broad bands of educational attainment and broad bands of disability. Therefore, the user may need to adjust the RF in order to reflect were a particular individual falls within those bands."
"In order to bring a sense of reality to the present exercise, it is necessary to make a swingeing increase to the RF shown in Table B (.54). But what should that increase be? Determining an appropriate adjustment to the RF is a matter of broad judgement. In the present case that exercise is no more scientific than the broad-brush judgement which the court makes when carrying out a Smith v Manchester assessment."
"…[is] one method for dealing with contingencies other than mortality…;
…in many cases it will be appropriate to increase or reduce the discount in the Tables to take account of the nature of the particular claimant's disability….;
…[is] a 'ready reckoner which provides an initial adjustment to the multiplier's…';
…cannot take into account all circumstances and it may be appropriate to argue for higher or lower adjustments in particular cases…"
"On the one hand I am sympathetic to Mr Hamill's point that the Ogden Tables are based on detailed actuarial evidence and should not be the subject of impressionistic 'tinkering' by the judge. On the other hand, the introduction to the Tables themselves [the judge refers back to paragraph 64] makes plain that they are not to be taken as inviolable where, on the facts of a particular case, the evidence demonstrates the need for an adjustment."
Submissions on whether a Smith v Manchester award is appropriate
Conclusion on whether a Smith v Manchester award is appropriate
Issue 5 - did damage to the Claimant's hearing stop when exposure to excessive noise ceased?
Issue 6 – assessment of other heads of loss
General damages
"(d) Partial Hearing Loss or/and Tinnitus This category covers the bulk of deafness cases which usually result from exposure to noise at work over a prolonged period. The disability is not to be judged simply by the total measurement of hearing loss; there is often a degree of tinnitus present and age is particularly relevant because impairment of hearing affects most people in the fullness of time and impacts both upon causation and upon valuation, such that the amount of noise-induced hearing loss ('NIHL') is likely to be less than an individual's total hearing loss. |
|
(i) Severe tinnitus and NIHL. | £26,040 to £39,940 |
(ii) Moderate tinnitus and NIHL or moderate to severe tinnitus or NIHL alone. | £13,080 to £26,040" |
Loss of congenial employment
Past loss of earnings
Past loss of benefits
Miscellaneous past losses
Future loss of benefits
"For the Claimant to secure Enhanced Learning Credits he would have needed to serve the 4 years to 12 February 2010 to be eligible to make 3 low threshold claims of £1,000 per year for 3 years. If he had served a further 4 years until 12 February 2014, he would have been eligible to make 3 high threshold claims currently set at £2,000 per annum. Provided length of service requirements have been met personnel may use Enhanced Learning Credits up to 10 years after leaving the service."
"[The Claimant] had enrolled into Enhanced Learning Credit (ELC) scheme but as he had served more than 8 years at the time of his discharge, he was eligible to claim the full amount of ELC's and in my opinion had suffered no loss of ELC due to injury. All service personnel are entitled to claim standard learning credits (SLC) of up to 80% of the cost of courses the personal development up to a maximum of £175 per year and [the Claimant] would have been entitled to this for the remainder of his service career no matter how long he served. However, in my experience less than 10% of service personnel claim this grant each year."
Future loss of pension
Cost of hearing aids
Conclusion
General damages | £25,000 |
Loss of congenial employment | £8,000 |
Loss of earnings to date | -£24,133.30 |
Loss of benefits to date | £7,662.36 |
Miscellaneous past losses | 0 |
Future loss of earnings | £257,518 |
Future loss of benefits | £562.19 |
Future loss of pension | £351,313 |
Future claim for hearing aids | £54,919 |
Peter Marquand:
"(1) Except where rule 52.7 applies, permission to appeal may be given only where—"
(a) the court considers that the appeal would have a real prospect of success; or
(b) there is some other compelling reason for the appeal to be heard.
i) The Court failed to take any account of the Claimant's own evidence that if it had not been for the offer of maritime security work the Claimant would have stayed within the Royal Marines;
ii) The Court treated the fact that the Claimant had not looked for any other jobs other than in maritime security as an example of the Claimant's honesty rather than evidence relevant to the question of why the Claimant left the Royal Marines. That evidence suggesting the Claimant was not at the time of his departure particularly concerned by his noise exposure and its effect on his hearing; and
iii) The Court erred in deciding that the Claimant's failure to mention any concerns about his hearing loss at an interview following his application for Premature Voluntary Release, did not undermine the Claimant's evidence that his principal reason for leaving the Royal Marines was his hearing loss.
i) The Court erred in concluding that a Smith v Manchester assessment should only be adopted if the uncertainties were such as to preclude a conventional multiplier/multiplicand approach. The correct approach was in accordance with Billett v Ministry of Defence [2005] EWCA Civ 773.
ii) If the Court was correct to reject Smith v Manchester, it erred in choosing to apply a reduction factor of 0.7 and ought in light of conclusions at paragraph 215 of the Judgment to have taken a reduction factor much closer to that in Table A of the Ogden Tables, in accordance with Billett.
Note 1 The Simmons v Castle [2013] 1 WLR 1239 10% uplift is applicable [Back]