Noise induced hearing loss insufficient to sound in damages: de minimis non curat lex

Industrial Disease - Deafness Claim

Doug Cooper recently appeared in Holloway -v-Tyne Thames Technology Limited:

The only issue before the court was whether the Claimant’s noise induced hearing loss was sufficient to sound in damages. Exposure, that such exposure was in breach of duty, limitation and causation were not in issue.

The court was asked to decide if a hearing loss of between 0.8dB and 1.3dB (measured at the conventional speech frequencies of 1, 2 and 3kHz) or the diminution of the Claimant’s ability to hear sounds at 4kHz by about 10-15dB, was sufficient to sound in damages.

His Honour Judge Freedman heard evidence from Professor Homer for the Claimant and Professor Lutman for the Defendant and made the following findings:

1. A hearing loss at the conventional speech frequencies of 1, 2 and 3kHz of 3dB or less would not cause sufficient disability for the same to sound in damages.

2. The /f/, /th/ and /t/ sounds were heard over a range of frequencies and therefore a hearing loss of 10-15dB at 4kHz was insufficient to cause disability, given they would be perceived at other unaffected frequencies.

3. Although the sound /s/ may be frequency specific to 4kHz when made by some people, the Claimant’s hearing loss of 10-15dB at 4kHz would only cause her perception of such sounds to be diminished between about 40 and 55dB (she would have had similar disability as a consequence of age anyway between 30 and 45dB) but would have been unchanged at the level at which quiet conversational speech was perceived. Such a narrow ‘window of opportunity’ within which any theoretical disability may be manifest was insufficient to give rise to a claim for damages: de minimis non curat lex.