Coffin v Ford Motor Company Limited
Southampton County Court, 18 March 2008, HHJ Iain Hughes QC
‘Coffin v Ford rates’ are still frequently cited on Schedules and Counter-Schedules in NIHL cases when it comes to recovery of the cost of hearing aids. In some circumstances the figures may still be broadly in line with the cost of the recommended aids – and so it would be both a practical and proportionate method of determining the costs. Knowledge of the case itself will assist with identifying situations where it might be a reasonable approximation, and those cases where ‘Coffin v Ford rates’ are not suitable.
A copy of the Judgment is within the NIHL Library.
This case related to two claimants where liability had been admitted and general damages were agreed. The only issues for the court were as to the correct period of acceleration in need for hearing aids and the resulting cost. It was said that there were a large number of other such cases which would be determined by resolution of the matter.
The Judgment starts with a very helpful run-through in relation to some of the features of noise induced hearing loss, which is certainly worth reading for those for whom this is a new subject. The judge records that this was in fact a ten-day trial, and that some of the evidence was introduced in a somewhat unusual fashion.
The first part of the Judgment itself relates to how to calculate the acceleration in need for hearing aids. This involved assessing when the Claimants would otherwise have needed hearing aids (if they did not have NIHL) and when they now needed hearing aids. The judge considered the parties’ experts’ reasons for calculating the period of advancement.
This part of the Judgment is really of little direct relevance to the modern practitioner. From experience, the way that advancement in need for hearing aids is calculated tends to be specific to the views of individual experts. Coffin v Ford does not greatly help in this respect. Also since the date of this judgment (2008) further guidelines and papers have been written as to calculating the degree of NIHL. The Judge commented that, in any case, the way that the evidence was advanced was not suitable for a test case.
Different experts will come up with different theories as to when a claimant now needs hearing aids, and when he or she would have done in any case, had there been no exposure to noise. Perhaps the only matter of interest is that the judge did not seek the need for precise calculation on the same – noting that he had never seen a Consultant Orthopaedic Surgeon (for example) be able to calculate a period of acceleration, but rather base any such period on their experience and judgment.
It was noted by the Judge that Mr Coffin had undertaken a trial of hearing aids and found that they were ‘brilliant, fantastic’ and so found that he would in fact use hearing aids if quantum was awarded for them.
The present reader will be most interested then with the part of the Judgment which begins at paragraph 133 as to the cost of the hearing aids and how it should be calculated.
The judge was assisted by evidence from two hearing aid experts (in addition to the parties’ ENT experts). It turned out that one of the hearing aid experts in fact worked at Specsavers, and prices available where he worked were considerably lower than had been quoted in either of the experts’ hearing aid reports.
The judge found, from the oral evidence, that he could see no reason why the Claimant should receive compensation, assessed by reference to the list price of the most expensive aids available from specialist dispensers, rather than the high street open market price of aids which were reasonably suitable for their hearing deficit. This seems to be little more than a reiteration of the principle of mitigating loss.
For Mr Coffin, a pair of digital aids were assessed in the sum of £1,000 including insurance. Replacements were required every 5 years. The cost of batteries were allowed at £50 per annum, so an extra £250 over five years.
Accordingly, £1,250 was allowed for a five-year period for a pair of hearing aids.
The judge rejected the argument that the claimants would in fact obtain their hearing aids from the NHS, noting that there was a long hearing aid waiting time in Southampton at the time.
As to the assessment of how long they would be required for and whether a strict multiplier/ multiplicand approach should be taken, the judge stated that a broad approach should be taken. The calculation as to acceleration was not precise and so precise calculations could not be made.
He said that the Claimants had proved that they would require a hearing aid for more than five and less than ten years and therefore, require each required two sets of hearing aids and associated costs. For Mr Coffin therefore, he was awarded £2,500.
Mr Tarrant was awarded £1,250 for his hearing aid requirement. Mr Tarrant only needed to wear one hearing aid and therefore, he should buy a pair at the start of the period and then wear one for the first five years and one of the other for the second five years, the aids being interchangeable between the ears.
‘Coffin v Ford rates’ might prove to be a practical and proportionate measure of hearing aids in cases where the prices claimed are broadly similar to this case. It might also suggest that a sum for hearing aids, their insurance and batteries would be reasonable. However, the case is now more than 12 years old and so technology, inflation and the cost of hearing aids have changed since the Judgment. In cases where particular types of hearing aids are required (such as those with relief for tinnitus as a built-in feature of the hearing aids) the Coffin v Ford rates are clearly not applicable. It should also be remembered that the facts of the Coffin v Ford case cannot be brought into a contemporary case. Reliance on the figures in the case should not be a substitute for evidence as to the cost of hearing aids for a particular claimant if there is disagreement as to the rate which should be used.