James Pickering summarises the main issues decided by the judge in Abbott and Others v Ministry of Defence [2026] EWHC 941 (KB).
Judgment was handed down by Garnham J in the Military Deafness Litigation (Abbott and Others v Ministry of Defence [2026] EWHC 941 (KB)) on 24 April 2026.
Liability
At the beginning of the litigation, liability was robustly and comprehensively denied by the Defendant, with every possible defence being raised.
However, the Defendant’s position collapsed after exchange of Statements of Case and the Claimants’ answers to (very lengthy) Part 18 Requests for Further Information concerning limitation and the nature and extent of their exposure to noise.
In the spring of 2024, the parties reached an agreement disposing of the issues of Crown immunity, combat immunity, breach of duty, contributory negligence, apportionment, Noise Immission Levels, and limitation. The vehicle devised for the implementation of this agreement was termed the ‘Matrix’. That Matrix was annexed to an order of the Court made in July 2024, the effect of which was to leave only causation and quantum in issue in return for a structured discount on any damages. It is open to solicitors’ firms to join the Matrix should they wish.
The Trial
The litigation proceeded to a trial before Mr Justice Garnham in October to December 2025 on a number of agreed generic issues and on six individual Lead Cases (three chosen by each party).
Shortly before the trial, after the cut-off date for their replacement with Reserve Cases, the Defendant settled two of the Claimants’ Lead Cases for substantial sums. This meant that there remained three Defendant Lead Cases and only one Claimant Lead Case. The reader will form their own view about whether the decision to compromise was motivated by a belated appreciation of the merits of ADR or whether it represented a cynical attempt to manipulate the selection of individual Lead Cases placed before the judge for determination.
In the event, two of the Defendant Lead Cases were discontinued before those Claimants gave evidence. This meant that there remained one Defendant Lead Case (Jack Craggs) and one Claimant Lead Case (Christopher Lambie) to be decided by the judge.
The decisions on the main issues, and why they mattered, are explained below.
Military Audiograms
The parties disagreed about the reliability and role of military screening audiograms.
Broadly accepting the Defendant’s position, the judge found that, although they are less reliable than BSA-compliant Pure-Tone Audiometry, military audiograms which reveal a relatively consistent pattern are sufficiently reliable to be used for both diagnosis and quantification.
Military audiograms should only be disregarded if there are such obvious issues that they clearly cannot be relied upon. It is important for the medical expert to look at all of the audiograms in a case and form an overall view. Audiograms should be assessed by the medical expert in context and not taken in isolation.
TDH 39 Headphones
The Defendant argued that, when an audiogram has been taken with TDH 39 headphones, any reading at 6 kHz needs to be improved by 6 dB (reflecting a recommendation in the ‘CLB’ paper). The Claimants argued that there should be no automatic deduction at 6 kHz.
This issue seems very niche, but it was important for two reasons.
First, TDH 39 headphones have historically been the most commonly used form of headphones in occupational audiometry in the UK. So, many military audiograms going back over the years will have been taken with these headphones. Many modern medico-legal audiograms still make use of them too.
Second, the evidence at trial revealed, and the judge found, that, on average, threshold losses in military cases tend to be maximal around 6 kHz. The consequence is that the large automatic adjustment of 6 dB at 6 kHz would in some military cases mean the difference between a positive and a negative diagnosis. The judge rejected the Defendant’s argument and accepted the Claimants’ argument. Whenever the precise 6 kHz measurement could make a difference to the diagnosis or quantification of NIHL, ‘the ENT expert should approach the measurement with caution and assess it in the context of the audiometric series of which it forms part.’
Comparator Dataset
An important overarching point was the appropriate comparator dataset that should be used to establish the expected level of hearing for a person of the claimant’s age.
The Defendants argued that the appropriate dataset was the old ISO 7029 (1984). The Claimants argued that it was the new ISO 7029 (2017).
The judge accepted the Claimants’ argument that the new dataset, ISO 7029 (2017), should be preferred for the purposes of both the diagnosis and quantification of noise-induced hearing loss (NIHL).
However, to all of the hearing threshold values in ISO 7024 (2017), the expert must apply a ‘baseline correction’ (i.e., an increase from the stated values) of 2.4 dB.
This appears like yet another dry issue, but the impact on the issues of both diagnosis and quantification is significant. This is because the old dataset contained much worse hearing levels than the new one. The effect of continuing to use the old dataset with the worse hearing levels would be to significantly downplay the impact of any NIHL, risking it being either undiagnosed or undervalued.
Diagnosis
The Defendant argued that the appropriate diagnostic method was the ‘CLB method’. This test was developed for use in industrial deafness claims.
The Claimants argued that it was not suitable for military cases. They argued that military claims should instead be diagnosed by reference to the revised M-NIHL method (rM-NIHL) described in Moore et al (2022) ‘Modification of a Method for Diagnosing Noise-Induced Hearing Loss Sustained During Military Service’, Trends in Hearing.
The judge decided that the rM-NIHL method is to be preferred to the CLB method in military cases. This is significant because more military claimants are likely to satisfy the rM-NIHL test than the CLB test.
Quantification
The Defendant argued that the appropriate quantification method for NIHL was the ‘LCB method’. This is an add-on to the CLB diagnostic test. It is also intended for use in industrial deafness claims.
The Claimants again argued that this was not suitable for military cases. They argued that military claims should be quantified by reference to the method described by Moore, Lowe, and Cox in ‘Guidelines for Diagnosing and Quantifying Noise-Induced Hearing Loss’(2022), also known as the ‘MLC Guidelines’.
The judge decided that the MLC Guidelines quantification method is to be preferred to the LCB method in military cases. This is significant because the MLC Guidelines will generally generate higher NIHL quantifications than the LCB method.
Which Frequencies?
The Defendant argued that only the threshold average over 1, 2, and 3 kHz should be taken into account when quantifying a claimant’s NIHL. The Claimants argued that an ENT expert should also be entitled to take into account the average over 1, 2, and 4 kHz, on the basis that losses at 4 kHz have an impact on the ability to understand speech.
The judge accepted the Claimants argument. He found that, while the conventional 1, 2, and 3 kHz average should continue to serve as a ‘baseline descriptor’, it is ‘entirely legitimate to consider supplementary metrics that incorporate 4 kHz, particularly where speech‑in‑noise difficulty is a prominent feature.’
This conclusion has particular significance for industrial deafness cases, where the losses tend to be maximal at 4 kHz.
Progression of Hearing Loss After Service
The Claimants argued that the scientific evidence showed that it was possible for NIHL to develop or to accelerate after exposure to military noise had ceased. The Defendant argued that this was not possible.
The judge decided that the Claimants had not proven that it was possible for NIHL to develop or to accelerate after exposure to military noise had ceased. This meant that the ‘orthodox view’ that hearing loss does not progress after exposure ceases had not been displaced.
However, the judge explicitly left open the door for this argument to be established in later litigation as the science develops. This conclusion means that it may be appropriate for a medical expert to pay particular attention to the audiograms from around the time the claimant left service (and in particular whether they show evidence of NIHL).
Cochlear Synaptopathy
The Claimants argued that a specific form of damage to the ear following exposure to military noise known as ‘cochlear synaptopathy’ could explain some of the issues reported by veterans in understanding speech which went above and beyond what would be expected from the hearing thresholds measured on their audiograms.
The judge accepted the Defendant’s argument that, on the current science, this form of injury cannot definitively be demonstrated or quantified in humans before death.
Tinnitus
The Claimants argued that tinnitus can arise in the absence of NIHL and it can still be attributed to military noise even if it starts after the cessation of exposure to military noise. The Defendant that any delay in onset would mean that the claim for tinnitus could not be proven.
The judge accepted the Claimants’ arguments. He accepted that noise-induced tinnitus can arise without any hearing loss. In respect of the question of delayed onset, he found that tinnitus normally begins during exposure to noise or shortly after the cessation of noise, but it can also start after a longer period. In one case, the Defendant’s ENT expert had accepted causation despite a gap of several years. Overall, the closer the onset of tinnitus is in time to the exposure to dangerous noise, the more likely it is to be caused by it.
De Minimis
The Defendant argued that a binaural loss of under 4 dB should automatically be regarded as ‘de minimis’ (i.e., not a material loss). The Claimants argued that materiality is a case-by-case factual question, and no universal dB threshold marked the line between material and de minimis.
The judge considered that an overall hearing loss of less than 4 dB without other consequences should be regarded as ‘de minimis’ (i.e., not a material loss). However, he accepted the Claimants’ argument that is not an absolute cut-off. It will be a matter to be determined on a case-by-case basis whether exposure to noise which causes loss below that level nonetheless causes material damage.
General Damages
The judge declined to give generic guidance and ruled that these are to be assessed on a case-by-case basis by reference to the Judicial College Guidelines.
Hearing Aids
The judge held that, depending on the evidence in a particular case, a claimant may be able to justify the cost of private, high-performance, rechargeable hearing aids with such advanced features as are recommended by a reputable hearing aid expert. The precise costing will have to be determined on a case-by-case basis. The judge commented that the current cost of a 5-year cycle of premium hearing aids is roughly between £4,200 and £5,000.
Loss of Future Earnings
These claims are fact sensitive and will need to be dealt with on a case-by-case basis.
Individual Lead Cases
There were two individual Lead Cases. What follows is a summary of the key points.
First Individual Lead Case: Christopher Lambie
Mr Lambie had enlisted in the Royal Marines in 1999 before moving into combat intelligence. He promoted through the ranks to Lieutenant Commander before being voluntarily discharged in 2021. He then moved immediately into a highly paid consultancy role specialising in Defence and Security.
The agreed medical evidence based on his most recent audiogram was that he had suffered NIHL of 34 dB right and 38 dB left (at 1, 2, and 3 kHz) or 34 dB right and 42 dB left (at 1, 2, and 4 kHz). There was no tinnitus.
It is worth noting that this quantification was only agreed a couple of days before Mr Lambie gave evidence, with the Defendant capitulating on the issue and declining to call its medical experts in his case despite up until that point having robustly and vociferously denied the Claimants’ quantification figures.
The first issue was the quantification of general damages for pain, suffering, and loss of amenity. The Defendant argued that his binaural hearing loss of roughly 40 dB would only be classified as borderline mild to moderate. This was explicitly based on the WHO’s classification of hearing loss: mild (26 to 40 dB), moderate (41 to 70 dB), moderate to severe (71 to 95 dB), or severe to profound (over 95 dB).
The judge rejected this argument: ‘In my judgment, viewed in the round, Mr Lambie has suffered what should be classed as severe hearing loss within the Judicial College Guidelines.’ He went on to make an award of £39,000, at the very top of the relevant Guideline for ‘moderate to severe tinnitus or NIHL alone.’
The second issue was the cost of premium hearing aids. The judge accepted the Claimants’ figures of £27,350.
The third issue was the claim for loss of future earning capacity.
The Claimants argued that Mr Lambie, then aged 46, was ‘Ogden disabled’. They claimed a loss of income on the basis of a full disabled reduction factor applied to his future 14 years of working life up until a planned retirement age at 60. This generated a loss of about £370,000. In the alternative, they claimed a Smith v Manchester award equivalent to a multiple of his net income.
The Defendant denied this claim in its entirety. It argued that there was no loss.
The judge considered that the key factors were as follows. First, not only had Mr Lambie never experienced any previous loss of income due to his hearing loss, but he had in fact promoted through the ranks over the course of a highly successful military career at a faster than average rate, reaching the pinnacle of what was possible for him. He was now earning precisely what he would have been earning without any hearing loss. The judge, who considered him to be an extremely impressive witness, found that ‘the overwhelming likelihood is that he will remain at PA Consulting until retirement at 60, as he wishes to do.’ The Claimants even accepted an injured career model involving promotion to Partner before his retirement in an identical way to how he would have been but for his NIHL.
The judge found on the basis of all this that an Ogden disabled claim of £370,000 was unreal on the facts of Mr Lambie’s case, applying Billett v Ministry of Defence [2015] EWCA Civ 773. Making such an award would be ‘unconscionable’. He declined to make an award for loss of earning capacity on that basis.
Although Mr Lambie was Ogden disabled, ‘his case is far from the average, even an “adjusted” average.’ The judge then drew a contrast with the claimant in Barry v MOD [2023] EWHC 49 (KB):
‘Unlike, for example, Mr Barry, Mr Lambie has been able to pursue his chosen career throughout and will, in all probability, be able to do so until retirement. His disability has not, thus far, affected the career choices open to him or the earnings he has been able to make. His hearing loss is serious and progressive with age but, as things currently stand, he is not suffering any loss of earnings, nor will he if, as seems likely, he remains in his current employment until retirement.’
However, going on to reject the Defendant’s position that there was no loss, he made an award of a Smith v Manchester claim of one year’s loss of income, equivalent to £64,800.
Mr Lambie was therefore awarded £39,000 for general damages, £27,350 for hearing aids, and a £64,800 Smith v Manchester award, plus interest.
Second Individual Lead Case: Jack Craggs
Mr Craggs had served in the British Army as an infantry soldier between 1998 and 2002. He brought a claim for NIHL and noise-induced tinnitus.
The judge found that the signs of NIHL only first appeared on his audiometry many years after he left service (the first such audiogram was about 16 years later). Due to the judge’s conclusion on the generic issue of post-service progression of NIHL, it followed that the claim for NIHL was dismissed.
However, in respect of the tinnitus, despite being ‘firmly of the view that he was not a witness of truth on whom I could rely’, the judge nonetheless accepted that Mr Craggs had started to suffer from tinnitus during service following an incident in Kosovo.
The claim therefore succeeded. Before the Matrix discount, Mr Craggs was awarded general damages of £19,000 plus £445 for tinnitus therapy plus interest.
James Pickering of 12KBW, instructed by Simon Ellis of Hugh James, represented the successful Claimants at the trial. Harry Steinberg KC, Aliyah Akram and Elliott Courcha of Outer Temple Chambers were also instructed by Hugh James.
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