The defendant had admitted negligent exposure to excessive noise for 245 months before 1990. Both experts in this hearing-loss claim agreed the claimant had the earliest signs of noise induced hearing loss (NIHL). However they also both agreed, when looking at the National Physical Laboratory (NPL) tables, that his hearing was within the “normal” or even better range than was typical for men of his age.
The clever and logical argument was that, even though his hearing was now average by normal standards, it was subjectively worse for him , for example he had found radio and TV broadcasts more difficult to listen to
The defendant said the damage was so minute that it did not give rise to a disability.
The Judge did not accept that, and found for the claimant.
Leeds CC, 23 January 2008.
Defect below “attention” level still actionable
The claimant broke his ankle as a result of a defect in the pavement of only 17mm. The council only reported defects of 20mm or more under their Code of Practice and had inspected in the last three months, as per their system.
However, the crucial point was that the defect was 30mm at its highest point. The inspector admitted he would have reported that, had he seen it.
As the claimant had tripped at the “non- actionable” level, the defendant argued s.41 Highways Act did not arise. We argued the defect had to be taken as a whole (as well as a hole) – it was dangerous in their own terms from the other direction and had been missed and the “ minor “ defect would have been repaired if the major actionable one had been spotted . The Judge accepted that.
Then, on the point of whether there was a valid defence given their regular quarterly inspection, they argued they could not be expected to pick up on every defect.
It was agreed this defect could not have arisen in the few months since the inspection. It had thus been missed and the defendant lost.
Leeds CC, 19 November 2007.