Former marine awarded £700,000 for noise induced hearing loss

A former marine has been awarded £700,000 for hearing loss and tinnitus caused by the Ministry of Defence (MOD) failing to provide suitable hearing protection.

Mr Barry enlisted in the Royal Marines in February 2013 at the age of 24 for a 20 year engagement. Prior to his enlistment there was no evidence of any hearing deficit.

During his basic training, he was issued with ear defenders and foam ear plugs. Before firing weapons at a static range, a thorough safety brief was given, which covered the need to use hearing protection. Mr Barry wore his ear defenders when attending the static range, however in the course of live fire exercises lasting several days, and involving surprise attacks, it was not always possible to wear hearing protection.

He was also issued with a personal role radio which comprised a headset which fitted over the left ear. When wearing the radio, he would wear an ear plug in the right ear, but not the left ear. He was not given any instruction about the use of ear plugs in the left ear, under the radio. On occasion, he tried to wear an ear plug under the radio earpiece, but he found that he could not hear the radio. He also found that the ear plugs would stay in place if he was static, but would tend to fall out during more vigorous military exercises. As a result, on many occasions, Mr Barry did not have hearing protection in place in both ears when weapons were fired.

It was found that it was likely that the noise exposure that resulted in much of Mr Barry’s hearing loss was sustained during large scale exercises between August and October 2014. This involved the live fire use of many weapons, and F16 fighter jets flying low overhead. The exercise included a dummy town to practice urban warfare. The dummy town was fabricated from metal shipping containers. This meant that the noise from the gunfire and other weaponry reverberated within the containers and was incredibly loud.

When Mr Barry returned from the exercise he started to notice tinnitus in his left ear. A constant high-pitched noise which was intrusive, particularly at night. In October 2016 he was medically discharged due to noise induced hearing loss.

The MOD admitted that it had breached its statutory duties to Mr Barry, and that it was negligent, including by failing to provide Mr Barry with suitable hearing protection. However, they argued that Mr Barry was in part himself to blame for his hearing loss. They asserted he failed to always to use such hearing protection as was provided, therefore the compensation payable to him should be reduced on the grounds of contributory negligence.

Witnesses called by the MOD were confident Mr Barry would have been trained in the use of hearing protection. However, none of them were able to give direct evidence as to the training he had been given. Nor did any witness point to any written documentation to show what training he had been given, or what training was generally given, despite the bundle of material that was given in evidence exceeding 8,000 pages.

The Law Reform (Contributory Negligence) Act 1945 provides that where a claimant’s injury results in part from their own fault, the damages recoverable must be reduced to the extent that it is just and equitable having regard to their share in the responsibility for the losses.

The court found that Mr Barry did generally wear hearing protection when undertaking planned exercises involving firing. The exceptions were during surprise attacks, when the ear plugs fell out mid-exercise, and when using the personal radio.

At trial, the MOD did not criticise Mr Barry for not wearing hearing protection during surprise attacks, or when the ear plugs fell out of his ears during exercises. However, they asserted that Mr Barry ought to have worn a yellow foam ear plug in his left ear when that ear was covered by his personal role radio headset.

The evidence of Mr Barry and his witnesses was that it was impossible to hear radio transmissions if an ear plug was worn in the left ear. For the MOD, senior officers asserted that it was possible to operate the radio while wearing ear plugs in both ears, but they conceded that not all radio sets were equally serviceable and recognised that with some radio sets it might not be possible to hear.

The trial judge found that Mr Barry was not given a specific instruction to wear an ear plug in his left ear when using the radio. In the absence of a specific instruction, in light of the defective equipment, he found that Mr Barry’s decision to do without an ear plug in his left ear was not unreasonable. He found that Mr Barry did seek to comply with the general instruction to use hearing protection. To the extent that his ear plugs fell out and that he only protected his right ear when using the radio, “that was not his fault and did not amount to a failure to comply with the training or instructions he was given”. He was reliant on the equipment provided by the MOD. The failure to ensure proper hearing protection was due to the fault of the MOD, not Mr Barry.

The court accordingly found the MOD had not established that Mr Barry was at fault in the meaning of the 1945 Act, and no deduction in the award was therefore appropriate.

This decision serves to illustrate the importance of carefully scrutinising specific instructions and training provided by employers relating to the use of hearing protection, and how effective those measures are in the actual working environment.

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