James Barry v Ministry of Defence

In a noise-induced hearing-loss claim, contributory negligence requires proof of the claimant’s fault, causation, and a just and equitable reduction assessed by reference to relative blameworthiness and causative potency. A serviceman was not at fault where the hearing protection supplied was inadequate or incompatible with operational equipment, and the evidence did not establish precise instructions or a reasonable opportunity to replace dislodged protection.

Courts should avoid resolving generic scientific disputes that are unnecessary to determine the individual claim. Future deterioration may be reflected in damages on expert evidence even without population-level epidemiological certainty. Disability and future earning capacity must be assessed without taking account of hearing aids when applying the Disability Discrimination Act 1995, although their practical benefits may inform the adjustment of Ogden reduction factors.

Mr James Barry claimed damages from the Ministry of Defence for noise-induced hearing loss and tinnitus sustained during service in the Royal Marines. The MoD admitted negligence and breach of statutory duty, but alleged contributory negligence and disputed the extent of his counterfactual military career and future earning loss.

The court also considered competing expert methodologies for diagnosing military noise-induced hearing loss, synaptopathy, post-exposure deterioration, disability, hearing-aid costs and general damages. The central issues were whether Mr Barry was contributorily negligent, how his future loss should be assessed, and whether generic scientific questions required determination in this individual claim.

1. Contributory negligence. Under section 1(1) of the Law Reform (Contributory Negligence) Act 1945, the MoD had to establish fault, causation and a just and equitable reduction. The applicable assessment required consideration of relative blameworthiness and causative potency. The MoD failed to prove fault. Mr Barry generally used the protection available to him; earplugs fell out during vigorous exercises, there was no clear evidence of training on insertion or replacement, and the personal role radio often could not be heard if an earplug was worn in the left ear. His decision to leave that ear unprotected was reasonable in the circumstances. No reduction was made.
2. Scientific methodology. It was unnecessary to decide whether the CLB/LCB guidelines or Professor Moore’s military methodology was preferable. Both methods supported the diagnosis, and the experts agreed that there was no meaningful difference in the present case. Diagnostic criteria were tools for expert evidence, not algorithms that displaced the court’s assessment of causation and loss on all the evidence. The court also declined to determine the controversial issue of primary synaptopathy without measurable audiometric abnormality.
3. Future deterioration. A lump-sum award need not depend on precise proof of the future development of hearing loss. Age-related deterioration was inevitable, and the court could also take account of a possible post-exposure effect supported by expert evidence, even though epidemiological research had not established the precise relative risk. The risk was relevant to general damages and future earning capacity.
4. Career and earnings. Mr Barry would probably have completed his 20-year engagement, achieved promotion broadly in line with an average Marine, and then undertaken around five years as an offshore medic. His post-injury earning capacity was materially lower. The conventional multiplier/multiplicand approach therefore applied rather than an award limited to handicap on the labour market.
5. Disability and reduction factor. Applying section 1(1), Schedule 1 and the relevant guidance under the Disability Discrimination Act 1995, Mr Barry had a substantial and long-term adverse effect on normal day-to-day activities. Hearing aids had to be disregarded when determining disability. Their practical ameliorating effect, together with his employment history and determination, justified using the level 3 disabled reduction factor of 0.56 rather than the unadjusted level 2 factor of 0.45.
6. The total award was £713,716, with no deduction for contributory negligence.

First-instance judgment. The court awarded Mr Barry £713,716 against the Ministry of Defence.