Alistair Craig Inglis v Ministry of Defence
| Jurisdiction | England & Wales |
| Judge | Peter Marquand |
| Judgment Date | 08 May 2019 |
| Neutral Citation | [2019] EWHC 1153 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ16X04384 |
| Date | 08 May 2019 |
[2019] EWHC 1153 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Peter Marquand
(sitting as a Deputy High Court Judge)
Case No: HQ16X04384
Harry Steinberg QC and Robert O'Leary (instructed by Hugh James) for the Claimant
Sam Healy (instructed by Plexus Law) for the Defendant
Hearing dates: 4 th, 5 th, 6 th and 7 th March 2019
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
The Claimant, Mr Inglis, is a former member of the Royal Marines and he claims damages against the Defendant, his former employer the Ministry of Defence, for hearing loss suffered during his service. This Judgment concerns the amount of damages the Defendant will pay to the Claimant, the parties having agreed to resolve liability on an 80:20 apportionment in the Claimant's favour. Harry Steinberg QC and Robert O'Leary represented the Claimant and Sam Healy, the Defendant.
The issues
The first issue to be determined is whether the Claimant left the Royal Marines because of his hearing loss or in order to take up more lucrative employment in the maritime security industry. The Claimant must prove on the balance of probabilities, that the hearing loss was his reason for leaving in order to establish a causal link to his claim for any future loss of earnings and any future loss of pension.
The second issue is the extent of the Claimant's hearing loss. The Defendant says that the evidence, in particular the expert evidence, indicates that the Claimant's hearing loss is not as extensive as he alleges. This issue goes to the size of the award of general damages and has an impact on the Claimant's future employment prospects and therefore the amount of any damages to compensate him for any diminution in his potential earnings.
The third issue is whether the Claimant is “disabled” within the meaning used in the Ogden Tables. The Ogden Tables contain data compiled by actuaries and are used in assessing future losses. In particular in this case, the relevant tables relate to factors to be applied to future loss of earnings calculations because statistics indicate that where a person is disabled a reduction factor should be applied, as those who are disabled spend longer periods out of work than those who are not disabled.
The fourth issue is related to the third issue. It is whether the Claimant's loss of earnings should be calculated on the basis of a lump sum for a handicap in the labour market (known as a Smith v Manchester award) or on the basis of the annual shortfall in his earnings (the multiplicand) multiplied by a statistically adjusted number reflecting the Claimant's future years in employment (the multiplier).
The Claimant invited me to decide a fifth issue, which was whether or not the damage to the Claimant's hearing stopped when exposure to excessive noise ceased or whether the damaging effect of that noise exposure continued.
The sixth issue is to determine the amount of damages to be awarded for those parts of the claim where a dispute remains between the parties.
Background
The Claimant is now aged 39 (date of birth 13 September 1979) and was aged 17 when he joined the Royal Marines in 1997. He left the Royal Marines at the age of 32 on 30 May 2012, having applied a year earlier for voluntary discharge. When he originally signed up for the Royal Marines it was on an open engagement that would have come to an end after 22 years in September 2019.
Following his basic training, the Claimant joined 40 Commando and was deployed in the rifle troop. He undertook a sniper course. In 1999 the Claimant was sent on exercises in the Mediterranean on HMS Ocean. He was subsequently deployed in Northern Ireland and the Gulf. In 2004 the Claimant was drafted to 42 Commando and took part in an exercise involving HMS Ark Royal. In 2005 the Claimant was drafted as a recruit troop instructor and undertook the platoon weapons 2 course. During 2007 and 2008 the Claimant was drafted to 40 Commando and deployed on a tour of Afghanistan, being involved in a number of engagements. In 2009 the Claimant joined the Naval Military Training Wing and became a weapons instructor at HMS Raleigh. On 9 October 2003 the Claimant was promoted to Lance Corporal and on 31 March 2005 to Corporal. In November 2010 the Claimant was selected for promotion to Sergeant, subject to his completion of the necessary courses, however, that promotion never took place because on 31 May 2011 the Claimant applied for “Premature Voluntary Release” (PVR). In 2012 the Claimant was selected to represent the Royal Marines in the Eastern Division Championship (a shooting competition) held in the United States.
During his service the Claimant was issued with a variety of SA 80 rifles, other rifles, sub-machine guns and handguns. He was exposed to noise from thousands of rounds of ammunition, thunder flash stun grenades, helicopters and other aircraft and explosive devices.
A deterioration in the Claimant's hearing was detected during 2006, 2008 and 2010 although he was medically fit for deployment. At the medical assessment prior to the Claimant's discharge from the Royal Marines in 2012 he was also graded as medically fit. I will deal with the detail of these assessments below.
Having left the Royal Marines, the Claimant secured employment in the maritime security industry. This involved being deployed on merchant ships in various parts of the world to provide on-board security against the threat of pirates. This work also involved the use of firearms. In 2016 the Claimant moved employment to work for a company called Petrofac, providing security during the commissioning of an oil rig and then providing health and safety advice. In May 2017 the Claimant moved to his current employer, Greenlight Safety Ltd (“Greenlight”), as a health and safety officer, which is a role that he continues to perform.
The Armed Forces use a classification of physical and mental capacity for deployment by assessing a number of capacities which are categorised as follows:
i) physical capacity;
ii) upper limbs;
iii) locomotion;
iv) hearing;
v) eyesight;
vi) mental capacity; and
vii) stability.
Those capacities are all known by the acronym “PULHHEEMS” with the “H” representing “hearing” and the first H represents the right ear and the second H the left one. The capacity of a person to hear is given a numerical reference as well: 1, 2, 3, 4 and 8. H1 being the best hearing and H8 being the worst. Hearing which is “H2” is described as “acceptable hearing” but a grading of “H3” is referred to as “impaired hearing.” By way of example, in this Judgment a reference to “H2 H2” means: hearing in the right ear is graded as “2” and in the left as “2”.
The level of sound is measured in decibels, abbreviated in this Judgment to dB. In addition to a loss of hearing, an impact of noise damage can be “tinnitus.” Tinnitus is a ringing or buzzing noise heard by a person in the absence of any external noise.
Issue 1 — why did the Claimant leave the Royal Marines?
The Claimant's evidence
The Claimant has provided three witness statements and was cross-examined by Mr Healy.
In his first statement, the Claimant said that he had to leave the Royal Marines in 2012 due to problems he had experienced with his hearing. It was not something that he planned to do or particularly wanted to do but his hearing problems at the time were becoming such that he did not think he had any choice. He was concerned that he would fail a medical with the Royal Marines and be discharged at short notice. When the opportunity of taking up maritime security work arose, he felt he had to take the opportunity to leave the Royal Marines whilst that alternative work was available and this was the only reason he left the Royal Marines at that time.
The Claimant said that he used the opportunity provided by maritime security to leave the Royal Marines and transition into civilian life. He said it was not all about the pay but it was to be able to leave at his own choosing rather than as a result of a medical discharge. He explained that taking a position in maritime security resulted in him spending less time with his family than as a marine, because as a Royal Marine he could go home every day from his base. He denied Mr Healy's suggestion that he was attracted by the prospect of travel that working in maritime security provided.
In response to Mr Healy's cross examination the Claimant confirmed that he had spent 3 1/2 years in maritime security and during that time had earned approximately £40,000 gross per annum, which was substantially higher than his salary in the Royal Marines. In addition, because of the length of time that he was overseas he did not have to pay tax on any of that income.
The Claimant said he had a former colleague who had been in the special forces and was well thought of in the maritime security industry and he told the Claimant that he could obtain a position for the Claimant on the basis of his recommendation. The Claimant was aware of a handful of his former colleagues working in maritime security. The Claimant applied for a position approximately two months before making his PVR application there was, however, no firm offer of employment, but he believed he would a secure a position. After the recommendation he was asked to attend Marsec's (the maritime security company) headquarters for an interview and following that asked to contact them once he came close to his date for leaving the Royal Marines.
The Claimant confirmed that if he had not had hearing...
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