'700,000 Hearing Loss Award For Former Marine

• Law Firm: Weightmans
• Subject Matter: Employment and HR, Discrimination, Disability & Sexual Harassment, Employee Benefits & Compensation
• Author: Mr Jim Byard
• Published date: 14 April 2023

James Barry was awarded over '700,000 pursuant to his exposure to noise in the course of his employment with the Ministry of Defence.

By way of a judgment handed down by Mr Justice Johnson sitting in the High Court on 3 March 2023, an award of '713,716 was made to a former Marine, James Barry, pursuant to his exposure to noise in the course of his employment with the Ministry of Defence (MOD).

Facts of the case

Mr Barry had joined the Marines in 2013 after successfully completing his initial training and assessment. He alleged that he was exposed to excessive noise on a number of occasions but principally during a military exercise referred to as "Black alligator" where he was exposed to noise and bombs from F16 Fighters and a variety of weaponry noise.

The claimant accepted that he had been supplied with two types of hearing protection, but that on exercises this fell out. That evidence was reinforced by colleagues. Further, the claimant alleged that he could not use hearing protection in his left ear when wearing a personal role radio.

It was common ground that the claimant had been medically discharged from the Marines in 2017 by reason of his hearing loss and tinnitus.

The MOD accepted that the claimant had suffered a hearing loss and tinnitus brought on (at least in part) by occupational noise exposure and that it was primarily liable for the claimant's deafness and tinnitus which was categorised as "moderate" in severity. Several issues, however, remained in dispute between the parties. These included:

• whether the claimant was "guilty" of contributory negligence.
• the extent of the awards for pain, suffering and loss of amenity (general damages) and loss of congenial employment.
• the financial losses which flowed from the claimant's medical discharge. Specifically, whether the claimant's compensation should be assessed by way of a simple Smith v Manchester or Blamire award for disadvantage on the open labour market or by reference to a loss of future earnings calculated on a typical multiplier and multiplicand basis.
• there remained a significant dispute between the parties' respective medical experts on a number of issues:

(a) Against which set of diagnostic guidelines the claimant's hearing loss should be assessed.

(b) Whether the claimant's hearing loss would continue to deteriorate over and above that which would occur through ageing - the so called "latent damage" issue.

(c) Whether the noise exposure had occasioned damage to the claimant's...