An insight into the De Minimis defence in NIHL claims (1)
15 August 2019
De Minimis Non Curat Lex is a legal maxim which means “the law does not concern itself with trifles”. This means that “trivial” matters which are so insignificant will not receive attention from the court. In NIHL cases, this signifies that a very low level of hearing loss which has been caused by noise will be deemed insignificant, or De Minimis, and is therefore is unworthy of compensation, even if breach of duty has been established or even admitted. In this issue, we will attempt to dissect some of the case law and highlight where the wind is blowing in relation to the Courts’ view of De Minimis.
In recent years, we have seen a multitude of NIHL cases where De Minimis is raised as a defence. The issue is simple: does the injury see the Claimant “appreciably worse off”? However, as simple as this issue appears, the fact remains that De Minimis case law and its interpretation can addle even the soundest of legal minds.
In recent years, there have been a number cases where De Minimis has been argued, more of which were successful for the Claimant. However, it is right to point out that each case was different in fact, which ultimately had a bearing on the judgement.
The cases for the Defendant include Hughes v Rhondda , Holloway & Tyne  and Wiseman v Overhead Doors (Great Britain) Limited , in which it was found that even though the Defendant had in fact been in breach of duty, there was no “appreciable injury” over 1, 2 and 3kHz, which are the key frequencies for calculating NIHL. In fact, the Claimant in Holloway had suffered 1.6dB NIHL over those frequencies, and more at 4kHz. Despite this, the judge found the Claimant to have no appreciable injury. The Claimant’s solicitors in this case perhaps should have put forward an argument that any loss is compensable under Parkes v Meridian . The fact that they did not gave rise to the strongest case the Defendant can rely upon in regards to De Minimis.
However, recent developments have seen a more Claimant-friendly attitude to assessing whether De Minimis applies, the most recent being Lomas v London Electrical Wire Company & Smiths Limited , Briggs v RHM Frozen Food Limited , Roberts v Prysmian Cables and Systems Limited  and Childs v Brass & Alloy Pressings (Deritend) Limited . In this issue we will look at one case for each the Claimant and Defendant for an insight on what it means for current and future NIHL Claimants.
First of all, it is important when De Minimis is raised by the Defendant is to dispute it. The history of De Minimis case law is mired by evidence that could have been successfully disputed but was not. The first point to make is that in order to detect signs of NIHL, a “substantial amount of NIHL” must have occurred. Note 7.3 of the Coles’ Guidelines states that a Claimant who has had a history of noise exposure and has a notch or a bulge, means that there is a “high probability” of substantial NIHL.
In Childs v Brass & Alloy Pressings (Deritend) Limited , the Claimant suffered from 2.02dB of NIHL over 1, 2 and 3 kHz as a result of noise exposure between 1969 and 1979. The Defendant argued that this did not leave the Claimant “appreciably worse off” applying the judgment in Holloway v Tyne . In that case HHJ Freeman did not even accept a 3dB loss would justify an award of damages. DJ Emma Kelly did not accept that the principle of De Minimis applied to the Claimant despite his low level of noise induced hearing loss. The main reason for this was that the Claimant would require hearing aids five years sooner than would otherwise have been the case, and therefore his injury was found not to be De Minimis.
The important thing coming out of Childs v Brass is that DJ Kelly gave regard to the fact that the Claimant’s need for hearing aids had in fact been accelerated by 5 years, as a result of his exposure to noise at the Defendant. Something to bear in mind for Claimant solicitors is to ensure the period of acceleration for hearing aids is clearly made out in the medical evidence, and that this is made clear to Defendants.
The question of whether hearing loss was de minimis was also considered in the recent case of Wiseman v Overhead Doors (Great Britain) Limited  in the County Court at Manchester.
In that case, the Claimant pursued three Defendants for noise induced hearing loss, alleging that he was exposed to excessive levels of noise when employed as a sheet metalworker in the 1970s and 1980s. The Court found the Defendants to have been in breach of duty and that a proportion of the claimant's hearing loss had been caused by his exposure to noise, leaving only the question of whether the level of hearing loss suffered was compensable.
Whilst the Claimant's medical expert had found the claimant's noise-induced hearing loss to be 8.3dB, at trial he agreed with the Defendants' expert and conceded that the hearing loss suffered was 3.2dB.
The concessions made by the Claimant's expert led him to concede that the Claimant's noise-induced hearing loss was negligible, the Defendants' expert advising that the loss was too small to be noticeable.
His Honour Judge Platts concluded that whilst the Claimant had suffered damage to his ears, his perception of his hearing is no worse due to his exposure to noise than it would have been due to his constitutional hearing loss, he was not materially worse off than he would have been if he had not been exposed to noise.
As the Claimant had not suffered a noticeable loss of hearing through his being exposed to noise, his entire claim was dismissed.
On balance, it seems recent cases are shifting the tide in the Claimant’s favour but it has to be said that each of these cases are decided on the facts, and therefore the De Minimis defence should not be applied as a blanket rule by the Defendants.