A former Royal Marine is embroiled in a High Court damages fight with the Ministry of Defence after complaining about “noise-induced hearing loss”.
James Barry, 34, of Nottingham, has told a judge that his “hearing loss and tinnitus” were caused by his “exposure to noise during his service in the Royal Marines” between 2013 and 2017.
Lawyers representing the Ministry of Defence (MoD) have outlined “allegations of contributory negligence”.
Mr Justice Johnson is considering evidence at a High Court trial in London.
Harry Steinberg KC, who is leading Mr Barry’s legal team, outlined details of the claim in a written argument given to the judge.
The claimant describes exercises during basic training where hearing protection was not worn (and could not be worn) at all— Harry Steinberg KC
He said Mr Barry had noticed a hearing problem after returning from an exercise in the United States in 2014.
“The claimant seeks damages for noise-induced hearing loss and tinnitus caused by his exposure to noise during his service in the Royal Marines,” said Mr Steinberg.
“The claimant first noticed a problem with his hearing following his return from the Black Alligator Exercise in the United States which took place between August and October 2014 for a period of about two and a half months.”
He added: “The claimant describes exercises during basic training where hearing protection was not worn (and could not be worn) at all.”
Mr Steinberg said the MoD had “admitted primary liability”.
He said the judge would have to consider a number of “core issues”: whether, and to what extent, Mr Barry was “contributorily negligent”; the “ongoing effect” of the noise-induced hearing loss and tinnitus; Mr Barry’s “likely career path and length of service” but for his “noise-induced hearing loss and tinnitus”; and whether or not Mr Barry was “disabled”.
Mr Steinberg said the case gave rise to “some issues” relevant to other “noise-induced hearing loss” claims being pursued against the MoD.
“The claimant’s evidence is that he was provided with both foam ear plugs and earmuffs,” he said.
“The defendant is critical of the claimant’s practice of not wearing a foam ear plug in his left ear beneath his personal role radio headset and of his failure to re-insert ear plugs, which routinely fell out.”
Lawyers representing Mr Barry said outside court that he was claiming about £1.5 million in total – and the MoD was arguing that the figure should be about £250,000.
Barrister Andrew Ward, who represented the MoD, told the judge in a written argument that Mr Barry had been medically discharged “for noise induced hearing loss”.
Mr Ward highlighted Mr Barry’s “practice” relating to the use of ear plugs.
He said “primary liability” was “admitted” but told the judge that the MoD “pursues the defence of contributory negligence”.
“The claimant’s usual practice during his service with the Royal Marines was not to wear yellow foam ear plugs in his left ear underneath his personal role radio,” said Mr Ward.
“The claimant’s practice was contrary to his training.”
Mr Ward added: “The claimant’s evidence is that his yellow foam ear plugs repeatedly fell out. If so, then he was also contributorily negligent in failing properly to insert them.”
He said Mr Barry had “worse hearing in his left ear than his right”, and went on: “The reality is that his unauthorised practice of failing to wear a yellow foam ear plug under his left ear when using his personal role radio has contributed to ‘the damage’ in terms of noise induced hearing loss and tinnitus.”
The hearing is due to end later this month.
