Playing It By Ear? Defending Tinnitus Claims Following Road Traffic Accidents

Defending tinnitus claims arising from RTA claims is likely to require defendant solicitors to adapt their usual tactics in PI claims to the particular features of such claims. In particular, a more front-loaded approach to investigation is likely to be required, and much wider use of medical expert evidence than has been usual in lower value PI claims.

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Introduction

The introduction of tariff damages for whiplash claims has led to (what those of us in a positive frame of mind with the advent of spring might refer to as) a burst of creativity among claimants’ solicitors, as they seek to explore (what again a benevolent observer might call) hitherto neglected injuries arising after road accidents. Not least among these has been something of an explosion in claims for RTA-related tinnitus. This is unsurprising, when the lowest bracket for deafness / tinnitus in the JC guidelines suggests a bracket for even “slight” tinnitus (without hearing loss) stretching well above the £5,000.00 small claim limit for road traffic cases.

As HHJ Gosnell observed in Pompova and others v Markerstudy Insurance Company Limited (unreported, 11th August 2023, Bradford County Court):

I feel a generic concern about tinnitus and the fact that this is the third case of tinnitus I have dealt with in the last three weeks. Prior to that, on the Bench for 25 years and prior to that as a specialist personal injury solicitor for 15 years, the only cases I have dealt with involving tinnitus involved noise induced hearing loss. It was extraordinary for someone who suffered a soft tissue injury in a minor road traffic accident to suffer from tinnitus. For reasons, which I am not going to speculate in this judgment, this has suddenly become very popular.

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Strong words, you may think. Although we are talking about a judge on the plain-spoken side: he once described having myself and another Northern Irish member of the bar before him as “like having two Jimmy Nesbitts in me court, slapping each other on the back”.

Welcome as such elevations of the judicial eyebrow may be for defendants, I’m sorry to say that they’re only the starting point for defending RTA tinnitus claims. Not least, because such scepticism is far from universal among judges in what is still a fairly novel area of litigation. In this article, I will examine some of the issues arising in RTA tinnitus claims, and some practical suggestions for defendants on how to deal with them.

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Defendant medical evidence: a bullet to be bitten

First the “bad” news. And I might as well get it out of the way at this stage, as it is something I will return to throughout this article. The prospects of successfully defending an RTA tinnitus claim are much stronger when the defendant instructs their own expert.

Sometimes it can seem almost too easy to attack the ENT experts on whom claimants seek to rely, so obvious are the “kick me” signs which litter their evidence. Failures to consider medical records and histories, properly or at all. Omitting basic questions to eliminate alternative causes for tinnitus. Misinterpretation of audiograms. In some cases, lack of any examination of the claimant, either in person or at all. These and other flaws are commonplace, not least because the pool of ENT experts whom claimants instruct in these sorts of cases seems relatively small.

The difficulty for defendants, however, is as simple as it is profound: Griffiths v TUI Ltd [2023] UKSC 48. There, the Supreme Court restated the principle that, in general, a party is required to challenge on cross-examination the evidence of any witness of the opposing party if it wishes to submit to the court that that evidence should not be accepted.

This seems to have been interpreted by most judges as a rule that unless a defendant puts Part 35 questions to a medical expert (at least), then that expert’s evidence must be treated as beyond all question (and sometimes beyond all common sense).

(It is worth remembering that what Griffiths required was cross-examination of the expert, not just questioning in general, except in a case where an expert has failed to answer Part 35 questions satisfactorily.)

The difficulty is exacerbated by the leeway judges may allow to experts in a relatively novel area of litigation with which they may be unfamiliar. The exceptions to this general rule, as set out in Griffiths, tend to be interpreted so narrowly that they might as well not exist.

Quite how realistic the principle in Griffiths is, in a legal landscape where cutting costs and reducing court times seem to be the only imperative (especially in PI cases), seems not to be a question which has crossed (even the highest) judicial minds.

Let’s turn a problem into an opportunity. Good quality expert evidence can help a defendant in a number of ways.

First, any ENT expert worth their salt will take a detailed history from the claimant — not just in relation to the accident circumstances and injuries said to arise, but in relation to their medical history more generally. The scope for inconsistencies to crawl out of the evidential woodwork is obvious.

Secondly, assuming the defendant’s expert holds their own in their joint discussion with the claimant’s, the likely result is that the scope of the claimant’s claim will at the very least be reduced even before the case reaches trial.

Thirdly, having its own expert will assist a defendant by providing a realistic opinion, well in advance of trial, about the inroads that are likely to be possible into the claimant’s case.

Procedurally speaking, it is my experience that judges are pretty amenable to applications by defendants to rely upon their own experts in RTA tinnitus cases, compared to other PI cases. Mainly this is because of the relatively high value of such claims.

It is worth remembering that CPR 26.9(6)(b) provides that a case should be allocated to the fast track if oral expert evidence at trial is likely to be limited to one expert per party in relation to any expert field, and expert evidence in two expert fields.

There is no reason why a case in which a defendant is permitted to rely on its own ENT expert cannot be allocated to the fast track.

As with any expert evidence, the desire to rely on an expert should be foreshadowed as early as possible (in the defence and DQ). Any application to rely upon them should be made within seven days of receipt of any order providing directions to trial.

Prompt Part 35 questions, tailored to the particular facts of the case, may prove crucial.

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The causes of RTA tinnitus — and their consequences for defendants

The exact processes by which RTAs lead to tinnitus do not seem to be clearly understood. However, it is generally accepted among ENT experts that there are three ways in which an RTA may cause tinnitus.

The whiplash mechanism

The movement of the head and neck typical in a whiplash case, and associated soft tissue damage, can give rise to tinnitus.

When this is alleged, if the claimant cannot prove that they have sustained a whiplash injury (and perhaps a neck injury), they should not be able to prove tinnitus arising from it.

Head injury

Inner ear damage, and therefore tinnitus, can arise from a direct blow to the head during the course of an accident.

When this is alleged, consideration should be given to how plausible the alleged impact is, which requires detailed consideration of the impact mechanics and surrounding accident circumstances.

Acoustic shock

Loud noise (even an isolated instance) can cause tinnitus.

Where some specific effect of the accident, such as the detonation of an airbag, is blamed, it should be fairly easy to prove or disprove whether this has happened.

More difficult arguments arise when the claimant blames the noise of the impact more generally.

In appropriate cases, a defendant might wish to obtain its own engineering evidence to disprove any claim of tinnitus arising from acoustic shock.

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Alternative causes — and how to exploit them

Epidemiological evidence suggests that between 13% and one third of adults experience tinnitus at some point in their lives. Incidence increases substantially with age.

Studies indicate that tinnitus is troublesome for less than 5% of people, and only 0.5% to 1% report significant adverse effects on quality of life.

The relatively high incidence reflects the many potential causes of tinnitus, including:

Ear and ENT conditions

• Inner ear damage
• Excessive earwax
• Eustachian tube issues
• Hearing nerve receptor damage

Neurological conditions

Blood vessel or circulatory disorders

• Atherosclerosis
• High blood pressure

Temporomandibular joint disorder

Head and neck tumours

Osteoporosis

Anaemia

Thyroid conditions

Diabetes

Arthritis

Autoimmune conditions

Medication side effects

Exposure to loud noise

Head injuries

Evidence sources relevant to identifying alternative causes include:

• Medical records
• Claims histories
• Employment histories
• Social media and intelligence searches
• Audiograms

Even where an alternative cause cannot be proven, evidence of potential causes may still reduce claim value by showing tinnitus was exacerbated rather than caused by the accident.

However, alternative causes can sometimes weaken the defence if they show a claimant was more vulnerable to tinnitus following trauma.

More mud to fling on causation

The time lag between an accident and onset of tinnitus may be relevant but there are no hard rules.

Medical records, accident reports, and failure to report tinnitus during early consultations may all be relevant.

Consistency of symptom reporting is also important.

Tinnitus may be described in many ways including:

• buzzing
• roaring
• clicking
• hissing
• humming
• pulsing
• rushing
• ringing

However, different people often describe the same sensation differently.

Another consideration is whether symptoms actually suggest tinnitus at all.

Studies have shown that 94% of adults placed in a soundproof room experience tinnitus-like perception, suggesting some reported symptoms may not indicate pathology.

Because tinnitus is usually subjective, claimant credibility becomes particularly important.

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Quantum in RTA tinnitus cases

Judges sometimes attempt to align tinnitus severity with the McCombe scale and the Judicial College Guidelines.

However, the authors of the McCombe paper expressly stated that the scale should not be used in medico-legal contexts.

Tinnitus damages are often difficult to categorise precisely within JC guidelines.

A further issue is whether tinnitus falls within the whiplash tariff injury regime under the Civil Liability Act 2018.

In Ziemele v Honeysett (2022), a judge accepted that tinnitus caused by whiplash fell within the tariff framework.

However, this argument may only succeed where symptoms last less than two years.

Tinnitus may be permanent but symptoms may improve due to habituation, where the brain adapts to the presence of tinnitus.

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Special damages

Special damages often exceed general damages in tinnitus claims.

Common claims include:

Hearing aids and associated costs
Often claimed on a lifelong basis.

Masking devices or noise generators

Some experts argue cheaper alternatives (apps, radios, fans) achieve similar results.

Tinnitus retraining therapy

Often a form of psychotherapy.

Loss of earning capacity

Rare but possible where tinnitus interferes with hearing-dependent work.

Defendant expert evidence is often crucial in assessing the legitimacy and cost of these claims.

Conclusions

For those used to defending the spinal and other injuries more commonly seen following road accidents, many of the techniques which can assist with defending RTA tinnitus claims will be familiar.

However, the more groundwork the defendant does in preparing expert and other evidence before trial, the more favourable a hearing they are likely to receive.