Jonathan Bevan v Ministry of Defence [2025] EWHC 1145 (KB)

[2025] EWHC 1145 (KB)Case No KB-2022-MAN-000285
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Venue MANCHESTER DISTRICT REGISTRY, The Civil Justice Centre ManchesterDate 14 May 2025
Before
His Honour Judge Bird sitting as a Judge of this Court
Between
JONATHAN BEVANClaimantMINISTRY OF DEFENCEDefendant
Mr Jim Hester and Miss Georgia Banks (instructed by Government Legal Department) for DefendantMr Tim Meakin (instructed by Irwin Mitchell) for ClaimantHearing Hearing dates: 22, 23, 24, 25 and 28 April 2025
Approved JudgmentThis judgment was handed down remotely at 10.30am on 14 May 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................HIS HONOUR JUDGE BIRD SITTING AS A JUDGE OF THIS COURT
[1]Between 2017 and 2020 the Claimant (“Mr Bevan”), then a serving soldier, was negligently exposed to dangerous and unsafe levels of noise by the Defendant. This is Mr Bevan’s claim for damages in respect of a hearing injury said to have been caused by that exposure. It is the first of several similar claims due to be heard in this court over the next months. Breach of duty has been admitted, causation and (to the extent necessary) quantum are in issue. This judgment deals with causation.

Background

[2]The Household Cavalry is divided into two parts. The Household Cavalry Regiment (“HCR”) and the Household Cavalry Mounted Regiment (“HCMR”). The former is an operational unit. It provides an armoured reconnaissance capability. The latter performs ceremonial duties. At the time relevant to this claim, the HCR was introducing and testing Ajax armoured vehicles made by General Dynamics (“GD”). The Ajax family comprises five vehicle types: Aires, Atlas, Apollo, Athena, and Ajax.[3]Mr Bevan joined the HCR in 2002. Between January 2017 and March 2021, he was stationed at GD in Merthyr Tydfil. He was taught how to drive the Ajax vehicles, how to operate their weapons systems and was a vehicle commander. His job was to put the vehicles through their paces, “feeding any issues back up the system” so they could be deployed for the British Army to use. From June 2017, after initial classroom-based work, he spent a good deal time in the vehicles, driving them around the test track and generally testing their performance. This was important work, and he saw it as a gateway to taking on more responsible and demanding tasks.[4]He worked in the vehicles until November 2020. He wore a headset (Bowman combat II) covering his right ear whilst inside the vehicle, which was used for communication with others and to receive alarm warnings from the vehicle. In November 2020 warning notices were issued by the MoD, first limiting use of the headsets and subsequently barring their use. Mr Bevan remained at GD for a further 3 months until 1 March 2021 when he returned to the HCR.

Potential Mechanisms of injury

[5]Before considering the various mechanisms which might have brought about the injury, it is important to make two points.[6]First, Mr Bevan says he suffered 2 types of injury: The primary injury is hearing loss and tinnitus (which are connected). In addition, he suffered psychological damage as a result of the tinnitus in the form of a “conversion disorder” (or functional neurological disorder “FND”) which led to non-organic hearing loss. If the primary injury was not caused by the negligent exposure the relevance of FND falls away.[7]Secondly, hearing loss and tinnitus can (and often do) occur without any injury or fault at all. The cause of these issues may be very difficult to identify. The ENT experts agree that “a significant number of individuals with hearing loss/tinnitus never have an underlying cause diagnosed, even with the very best investigation.” Medical causation[8]If there was an injury, the medical experts (Mr Parker, instructed by the Defendant and Professor Wright instructed by Mr Bevan) suggest that it might have been caused in one of three ways. In other words, there are three routes to establish medical causation.[9]First, what might be described as classic Noise Induced Hearing Loss (“NIHL”). For present purposes, it is sufficient to say that a court is likely to find that a claimant has NIHL if the diagnostic criteria set out in a paper by Coles, Lutman and Buffin published in 2000 entitled “Guidelines on the Diagnosis of noise-induced hearing loss for medicolegal purposes” are met. In summary, it arises when three criteria (R1, R2 and R3) are met: a high frequency impairment, relevant noise exposure, and a relevant audiometric configuration. The relevant configuration shows as an identifiable “notch” or “bulge” on a plotted audiogram. NIHL is caused by “repeated exposure to sounds of an intensity greater than 85 dB”. The noise damage in NIHL cases is cumulative and arises from exposure to “steady state” although possibly variable, noise. The experts agree that Mr Bevan’s audiograms show no relevant notch or bulge. I am satisfied Mr Bevan does not have (nor was it at trial argued that he did have) NIHL.[10]Secondly, acoustic trauma. Again, the experts agree this is not an acoustic trauma case. The mechanism of damage in an acoustic trauma case is different to that in a NIHL case. Mr Parker told me that acoustic trauma can be described as physical damage caused by a very loud noise whereas acoustic shock can arise at much lower levels of noise.[11]Thirdly, and the only remaining possibility, acoustic shock. I describe below how Mr Bevan came to rely on it. The only description of the diagnostic criteria for acoustic shock was published initially in 2014 (“Parker 2014”) and then , by way of update, in 2020 (“Parker 2020”). The latter paper is entitled “acoustic shock: an update review” by Mr Parker, V L Parker, G Parker, and A J Parker. The paper updates a 2014 paper and post-dates the Court of Appeal decision in Royal Opera House Covent Garden Foundation v Goldscheider [2019] EWCA Civ 711. The paper notes (I have added the descriptors of G1 to G4):
“Having accepted acoustic shock as a clinical entity, stock notices based upon the usual rules of engagement in clinical practise, want competing diagnosis are excluded. That is there has to be a defined acoustic incident from which air symptoms should commence straight away or shortly afterwards, and these need to be outside the physiological or startle response. The ear symptoms should be experienced in or arise from the exposed ear(s). Of particular interest are the ancillary and not necessarily ear based symptoms that can accompany acoustic shock and indeed form part of the disorder, bearing in mind the neuro psychiatric component. These are highly relevant in subsequent disability and illness behaviour.”
The criteria are summarised at table 1 as follows. Acoustic shock diagnostic guide – “Grindleford Criteria” - There must be a defined acoustic incident (which need not be negligent) (G1) - Ear symptoms should start straight away or shortly afterwards (G2) - Ear symptoms should be outside physiological or startle responses (G3) - Ear symptoms should be experienced in or arise from the exposed ear(s) (G4) - There may be significant psychological overlay or relationship to illness behaviour

The issued claim and how it has progressed

[12]The claim was issued on 17 October 2022. The claim form (which by CPR 16.2(1) must contain “a concise statement of the nature of the claim”) refers to the development of NIHL and tinnitus. Particulars of Claim dated 4 February 2023 refer (under particulars of injury) to a “hearing loss injury”. They refer to NIHL in one heading but make no substantive reference to NIHL. Professor Wright’s report is dated 2 February 2023 and was served with the Particulars of Claim. Other than a single reference set out in military medical records he cites; it makes no mention of NIHL.[13]On 21 February 2023, after receipt of the Particulars of Claim, the Defendant admitted breach of duty. Causation and quantum were not admitted. In particular the mechanism of any injury was not admitted.[14]The Defence at paragraph 9 refers to Mr Bevan’s “noise induced tinnitus or hearing problems caused …. as a result of exposure to noise” and goes on at paragraphs 10 and 11 to point out that there has been no diagnosis of NIHL (or any mention of it in Professor Wright’s report). The Defence, consistent with the admission referred to above, contains an admission of breach of duty but puts the Claimant to proof in respect of causation and quantum.[15]It seems to me, based on the Defence, that the Defendant clearly understood that Mr Bevan’s case was not based on NIHL. Following the admission of breach, the Defendant simply put Mr Bevan to proof of the mechanism of injury. Professor Wright’s view on causation, recorded in his report was expressed as follows. He expresses the view that Mr Bevan has “non-organic hearing loss.” That is not a physical condition but rather a state of affairs which describes the situation where audiometric tests reveal a level of hearing far below the subject’s true level of hearing. In other words, tests might show very poor hearing, but the subject is in practice able to conduct a conversation which the test results show to be impossible. Professor Wright expresses the view that Mr Bevan has a “conversion disorder” (or FND) caused not directly by exposure to noise but by a “psychological conflict or need.” He goes on to explain:
“I believe the initial noise exposure almost certainly caused the tinnitus. Tinnitus in itself, causes a flight or fight response….. Thus, an initial symptom secondary to exposure can engender anxiety and in Mr Bevan's case it is my firm belief that his subsequent lack of care and medical management along with any appreciation of his stress disorder is causal of the conversion state with a non-organic hearing loss”
[16]Conversion disorder, as the experts agreed, is not a matter for ENT experts. It is a psychiatric condition.[17]Acoustic shock was first raised on or about 25 March 2025 shortly before the Pre-Trial Review and shortly before trial. On that date, a supplemental report written by Professor Wright was produced (it seems, although nothing turns on it, on the basis that it was an “unpublished literature” that would be relied on at trial. Somewhat surprisingly the report makes no reference at all to Mr Bevan). By then the experts had each reported and had prepared their joint report.[18]Professor Wright and Mr Parker took the opportunity on the first day of trial, to discuss this unusual supplemental report. Because it reads like a paper, they have been able to present an agreed version. I am grateful for their industry. The agreed version refers (for the first time and in brief outline) to “acoustic shock.” There is reference to Parker 2014, but not to Parker 2020. The latter was produced at trial. It sets out what appears to be the only diagnostic criteria for acoustic shock.[19]Thus, I think it fair to say that the claim started off as a NIHL case (with the Claim Form) and has morphed into an acoustic shock case over time.

Where the changing course of the case leaves us

[20]In closing, Mr Hester protested that the change of course was prejudicial and unjust. In my view such protestations in closing are too late. I accept, as he submitted, that the position is far from ideal. In particular the experts did not address the Grindleford Criteria and Mr Parker (one of the authors of the criteria) told me he did not address the relevant diagnostic criteria directly with Mr Bevan because he had not thought acoustic shock was an issue. However, there was no application to adjourn the trial. In my view the Defendant had a choice once the intended course of the trial became clear. If it was going to assert prejudice, that was the time to do it. The Defendant elected to continue. It is too late now to complain.

Lay evidence

[21]I heard evidence from Mr Bevan. It is plain that he felt let down by the Army and by his Regiment. He went to GD with high hopes that he would return to his Regiment as the leading instructor on Ajax vehicles. This was a way for him to end his career on a high and as an acknowledged specialist. That was, understandably, important to him. He wanted to be useful. Regrettably, things did not work out as he had hoped. It is plain from the psychiatric evidence that he lived with depression and anxiety brought on, at least in part, by the way the Army sought to deal with his potential hearing issues. He was aggrieved, after being advised that he needed to be in a relatively quiet environment, that he was left to his own devices, exposed to usual levels of noise, and offered no protection.[22]Whilst I formed the view that he was an honest witness, I am also satisfied that his recollection of the timeline of key events was not reliable. In particular his recollection of when tinnitus first set in, was in my view not reliable. He told me in evidence that symptoms began in 2018 or 2019 but then told me that they in fact began in 2020 during covid and probably around Christmas 2020, or at least that he noticed hearing difficulties then. He told me that he had become confused because he had thought that the pandemic (Covid-19) had happened in 2019 rather than 2020. The version of events given to treating clinicians and the experts in this case contradicts that evidence.

A brief outline of Mr Bevan’s relevant military career and health

[23]In 2006, Mr Bevan lost his driving licence after (as I understand it) refusing to provide a specimen for analysis. That made it difficult for him to visit his daughter who was living in North Wales. As a result, Mr Bevan began to suffer from stress.[24]Between October 2007 and April 2008, he was deployed in active service in Afghanistan where he fought with the Gurkha Regiment. The experience was plainly traumatic. He continued to report stress symptoms into 2009.[25]In March 2019 whilst at GD, he discovered he had a 5-year-old daughter he had never met. He worked hard to establish contact with the child and committed to mediation. The move from GD back to his regiment made that process much more difficult and contributed to his stress and unhappiness.[26]On 9 November 2020, a stop notice (SNvE 1052) relating to Ajax headset noise levels was issued by the Defendant. It stopped any activity being conducted “on the vehicles when the engine is running or when using the headsets with the intercom switched on.” On 12 November 2020, a second notice (SNvE 1057) was sent with the subject “ajax headset noise levels update”. It prohibited the use of the headsets. On 25 June 2021, all work on Ajax vehicles was stopped because of excessive noise (SNvE 1199).[27]Mr Bevan was seen at the Queen Elizabeth Hospital Edgbaston on 7 December 2020. He reported no tinnitus at that time. By March 2021 (when he completed an audiometry health questionnaire) Mr Bevan noted that he experienced “ringing or buzzing in the ear”. There is a dispute about the timing of the onset of tinnitus. I return to that issue below.[28]Mr Bevan returned to his Regiment in March 2021. I accept that was a difficult move for him. Not only did the move away mean his attempts to see his daughter were frustrated but promises that he would take on a “significant role” at the Regiment came to nothing. His written evidence was that the return led to him being “lost in the system.” Following his visits to the Queen Elizabeth Hospital, it is plain that he felt abandoned. He told me he had “no care package, nobody was getting in touch with me, and I was getting all my information about what was happening from those I worked with in Merthyr Tydfil. I spoke to the doctor on numerous occasions but felt like I was ignored I really struggled to get in touch with someone who could help me.” He told me in cross examination that he was “given jobs that didn’t exist.” I took that to mean that there was no role for him at the Regiment. He told Mr Parker that at this time he “knew [his] career was over.”[29]His mental health began to deteriorate further. He reported in May 2021 that he had been “bottling up” a lot of issues. He was anxious about his hearing and the difficulties in securing access to his daughter continued. In August 2021 Mr Bevan was signed off work because of mental health issues, namely stress, anxiety, and low mood. He remained at home for nine months.[30]On 30 September 2022 PTSD was diagnosed and attributed to his time in Afghanistan. He was effectively prevented from working. Thereafter, Mr Bevan says he “sat at home until his discharge” on 14 June 2023. In December 2022 he went before a medical board and was discharged.[31]Throughout this time Mr Bevan had issues with alcohol. I accept that sometimes he can control his drinking and sometimes he cannot. I do not regard his drinking as an important part of the claim.[32]I heard from and considered the reports of Professor Morgan and Dr McAllister. Each is a very experienced psychiatrist well accustomed to dealing with those in military service. When he saw Dr McAllister it is clear that Mr Bevan was not in control of his drinking. Dr McAllister said the level of alcohol intake was “one of the highest” he had seen in soldiers in 30 years. There was general agreement that Mr Bevan suffered from depression from the Summer of 2021. Professor McAllister described clinical depression and depressive episodes of varying moderate to mild severity around that time. These lead to flashbacks to his time in Afghanistan and delayed onset PTSD.

Noise exposure at GD

[33]Mr Bevan told me that his Bowman headset was programmed (by him) to receive alarm signals in the right ear. There was no evidence from the Defendant about the frequency, duration, or pitch of these alarms. Instead, the Defendant has made a general admission of breach of duty. The only evidence as to the alarms came from Mr Bevan’s written evidence, cross examination and histories taken from him by others.[34]His written evidence was that alarms were “blaring in [his right] ear” throughout the testing. One alarm in particular (the CBRN alarm designed to identify chemical, biological, radiological, and nuclear incidents) was designed to be the most prominent alarm. It would cut off all other noise and was piercing and “really loud.” It went off “every 15 seconds or so”. It could be silenced by pressing an “acknowledge all alarms” button. Mr Bevan’s evidence was that:
“the CBRN was blaring in my ear so often that I was going round the test track with my thumb hovering over this button, pressing it consistently as the CBRN went off along with the cacophony of other alarms….There were usually only seconds where no alarms were going off, during which the engine noise itself was loud, and whining. This in itself felt unnaturally loud for example, I wasn’t able to talk to the driver when the vehicle was moving, and it was so difficult to communicate. The headsets seemed to amplify this noise as well. However, it was the alarms that were really bad. It felt farcical.”
[35]He also referred to a “pulse jet air system” and (in the Ajax vehicle) a “really loud fan that was constantly whirring loudly” located behind his head.[36]He told Mr Parker there was an alarm every six to seven seconds. Of the CBRN alarm he said it was “so loud and so piercing but it goes off all the time, you acknowledge it you know it's going to come back on within a few seconds. We had a job to do which was to drive round and test these vehicles but because the project was so big we were told to just get on with it. As a driver and the commander, you're in this thing for hours on end sometimes and this alarm going off in your headset it can be very disorientating and quite horrible.” Of the alarms generally he said, “you'd get out of the vehicle and still be able to hear them in your head.”

Findings on exposure

[37]Mr Bevan’s evidence on the extent of exposure was not strongly challenged. This was not surprising. No positive evidence was given by the Defendant as to the operating environment in the Ajax vehicles and the Defendant has admitted breach of duty.[38]I accept Mr Bevan’s evidence on the degree and frequency of exposure. The exposure was regular, and it seems to me from the evidence that it was repetitive and broadly predictable. There were regular loud alarms and regular less intrusive alarms and there was general loud vehicle noise. There was no suggestion of any particular or unusual noise or of any day or days when things were worse than usual. There was no memorable or unusual one-off (or even repeated) acoustic event.[39]I find that exposure of the kind described here ceased in or about November 2020 when the relevant stop notices were issued. Whilst there was some noise exposure thereafter it was different in nature and could be categorised as run-of-the-mill. Mr Bevan deals with this later period at paragraphs 63 to 65 of his witness statement. I accept that after being seen in Birmingham in December 2020, Mr Bevan was sent back to GD and the office he used was “next to a test track which the vehicles rumbled up and down frequently”. He “sometimes worked in the hangar, whilst the tanks were there. Rather than put me into a more suitable office, I had to go into a booth of sorts whilst the tanks were firing up. But I could still hear them clearly.”

When did the Tinnitus begin?

[40]On 12 November 2019, a routine hearing test showed a “mid-frequency dip” for the right ear. Mr Bevan reported at the time no hearing issues and no tinnitus. His medical records show that this dip represented “a significant difference” compared to an audiogram taken on 1 November 2018. The audiogram was repeated 2 weeks later because of the mismatch between his subjective symptoms (none) and the audiogram (one potential example of non-organic hearing loss). On 26 November 2019, an audiogram showed no mid-frequency dip and Mr Bevan again reported “no change in hearing”, and no “ringing or buzzing in the ear”.[41]Mr Bevan was seen at the Queen Elizabeth Hospital Edgbaston on 7 December 2020 by Mr Jameel Muzaffar a Specialist Registrar in ENT and Lt Col Linda Orr a well-respected ENT surgeon. Mr Muzaffar dictated a letter to Mr Bevan’s senior medical officer (with a copy to Miss Orr) and reported that when seen, Mr Bevan “…. denies tinnitus or any subjective change in his hearing.”[42]Hearing tests conducted that day showed the right ear “slightly worse” than the left across 3, 4 and 6 kHz and new changes since 26 November 2019. The plan was for an MRI scan to be carried out that day with Mr Bevan returning to Birmingham a week or so later. As a result of the new changes, oral steroids were prescribed (60mg Prednisolone) for 7 days. The letter notes:
“some new changes on hearing audiometry recently compared with audiogram of November 2019 therefore treat as acute acoustic trauma with oral steroids”
. Mr Bevan was temporarily taken off certain duties (he was graded L5E5 MND, but I was offered no explanation of what that meant) but with a potential upgraded (to E2) if the MRI was normal.[43]On 22 December 2020, Mr Bevan had a further audiogram test at Brecon which (it is agreed) showed “normal hearing thresholds”. A further audiogram was organised March 2021. The December 2020 letter[44]A good deal of emphasis was placed on the December letter by each party. For Mr Bevan it was said the letter showed a diagnosis of “acute acoustic trauma” (which, it was said was to all intents and purposes the same as “acoustic shock” the difference between the two being “a matter of semantics”). For the Defendant it was emphasised that Mr Bevan denied (and therefore was exhibiting no signs of) tinnitus.[45]I do not accept that there was a diagnosis of acute acoustic trauma, and I do not accept that acoustic trauma and acoustic shock are separated only by semantic differences. As to the distinction I accept Mr Parker’s evidence referred to above. Mr Parker pointed out that an MRI scan, which aids diagnosis, would not have been carried out if there was already a clear diagnosis. That coupled with the language used in the letter (a decision to treat a patient as if he has suffered an acoustic shock is not the same as a decision that he has suffered an acoustic shock) in my view makes it clear that there was no diagnosis. March 2021 and the first recording of tinnitus[46]By March 2021 (when he completed an audiometry health questionnaire) Mr Bevan noted that he experienced “ringing or buzzing in the ear”. He told me in evidence that on 22 March 2021 he saw Lt.Col. Orr and told her “About high pitch noises in my ear”. He said that he was then told that that was tinnitus. Mr Bevan’s evidence was that he had tinnitus in December 2020 but did not recognise that he had it and so did not report to Mr Muzaffar.[47]An audiogram conducted on that day again shows “normal hearing thresholds.” There was a Multi-Disciplinary Team meeting in April 2021. Lt. Col. Orr wrote a 10-point management plan noting that Mr Bevan should be gradually re-introduced to noise in accordance with guidance, be given optimal hearing protection and referred back to military ENT if there were new concerns or symptoms relating to hearing health. It was noted that Mr Bevan was MFD (medically fully deployable) and that there was:
“new onset bilateral non-pulsatile tinnitus” but that Mr Bevan was “coping well” with it, and “using YouTube videos to get to sleep.”
[48]On 16 June 2021 Mr Bevan emailed Surgeon Major Simon Foster, the Regimental medical officer to express a degree of frustration at his treatment (in particular that although he should have been in a quiet environment as recommended by Lt. Co. Orr he was in fact being regularly exposed to noise). He expressed a “strong belief” that this was “hindering [his] chances of getting a good, accurate and consistent hearing result.” In the email he noted:
“I've constantly got ringing in my ears which is unbelievably irritating and I'm seven months into military medical care and all I've had is a week’s course of steroids, hearing test after hearing tests and a tinnitus leaflet which included a referral which I'm still waiting for.”
Mr Bevan’s reported symptoms had therefore worsened.[49]On 28 June 2021 Mr Bevan’s audiogram result again gave normal hearing thresholds.[50]Professor Wright reports that Mr Bevan “states that his tinnitus started during the Ajax project sometime early in 2021. It has increased in severity since then and now he says it is “terrible…hate it.”It is more severe in the right ear than left and fluctuates increasing to a level where he really can't hear anyone around him. This lasts about 30 seconds and can occur two to three times each day. The tinnitus stops him sleeping so he plays YouTube videos to help him off to sleep. He does wake during the night but thinks this is more because of his mental health issues and anxiety. On a scale of trivial mild moderate severe very severe Mr Bevan rates his tinnitus as severe.”[51]Mr Bevan told Mr Parker the onset of Tinnitus was after the Ajax Project.

The ENT experts

[52]The experts agree that tinnitus is important in this case. They accept that Mr Bevan has tinnitus and that it is a symptom rather than a disease and agree that “anxiety and depression can enhance an individual's perception of tinnitus.” It usually arises where there is damage to the inner ear and that damage may be subliminal (or “ultra structural” that is, not detectable by testing). It is agreed that evidence of this kind of subliminal damage could only satisfactorily be obtained by invasive techniques and is best done postmortem. The experts agreed that the tinnitus is “severe” although Mr Parker suggested in evidence that might be too high a grading. It is agreed as bilateral. Mr Parker told me that tinnitus would be expected in the exposed ear and would only affect the unexposed (left ear) if “overwhelming.” Mr Parker’s view is that Mr Bevan’s tinnitus is not overwhelming and so he is unable to explain why there is tinnitus in the left ear.[53]Professor Wright says the subliminal damage has caused a reduction or imperfection of the auditory signal reaching the brain which results in the auditory brain responding to improve the signal. The spontaneous firing rate in the auditory nerve increases to improve sensitivity and this is interpreted as tinnitus.[54]It is in my judgment important to note that the tinnitus was first reported at about the time Mr Bevan was returned to his Regiment and worsened as his anxiety and depression developed. At the same time audiometric tests (sometimes repeat tests following poor results) were returning normal results.[55]Dealing with Mr Bevan’s causation argument, Professor Wright, in effect, works back from the presence of tinnitus and postulates, as there is no other obvious cause, that there must be subliminal hearing damage. Mr Parker’s view is that the only possible mechanism of damage is acoustic shock. Applying the Grindleford criteria (which are objective) he says the possibility of acoustic shock injury can be dismissed. Mr Parker’s view is therefore that the tinnitus is not caused by previous acoustic shock and is therefore unconnected to the negligent noise exposure.

Findings on onset of tinnitus

[56]I am satisfied that Mr Bevan’s tinnitus came on after December 2020 and before March 2021. That is consistent with what he reported to clinicians at those times and consistent with Lt. Col. Orr’s note in March that the onset of tinnitus was recent. I think it likely that the onset was in early 2021 as Mr Bevan told Professor Wright. That is in my judgment also broadly consistent with the account he gave to Mr Parker, that the onset was after the Ajax project. It follows that I reject Mr Bevan’s evidence that he had tinnitus in December 2020. If that were the case I would have expected him to explain in March 2021, when on his evidence he understood what tinnitus was, that it had been around for some time.[57]By early 2021 the nature of the Ajax project and Mr Bevan’s role in it, had changed fundamentally. He was no longer in the vehicles and exposed to the alarms and other noises. I have dealt with my finding above, but in summary, after the visit to Birmingham he was mostly based in an office near the test track so could clearly hear the Ajax vehicles that others were testing and sometimes went into the hangar where the vehicles were running. He would be placed in a booth to offer some protection from the sound but could still hear the noise.

The up-to-date position at examination

[58]Mr Bevan told the experts that he has no issues with hearing in a one-to-one, quiet environment. He does however have difficulties hearing against background noise. He told Professor Wright that his right ear feels blocked and full and that it “closed up” in in June 2022. He suffers from dizzy spells but has been told this is linked to eustachian tube dysfunction. All attempts at treatment have failed.[59]Results based on subjective responses reported by Mr Bevan (audiometric thresholds and almost certainly questions answered in respect of tinnitus) pointed to a hearing level that would “make conversation impossible.” Objective hearing tests (including Auditory Steady State Response (“ASSR”) testing and Oto Acoustic Emission Testing) showed “responses consistent with a normal pure tone audiogram.”[60]Broadly speaking, all objective tests reveal normal levels of hearing.

Acoustic Injury?

[61]The progress of the case means that the experts did not consider acoustic shock when examining Mr Bevan. I am grateful to both Professor Wright (who raised the matter as I have described above) and to Mr Parker who applied his mind to it as the trial progressed.[62]I am satisfied that the correct question for me to determine is whether Mr Bevan suffered an injury as a result of acoustic shock. In doing so the best (and only) guidelines I have are the Grindleford Criteria which were set out (in collaboration with his co-authors) by Mr Parker. Mr Parker told me (without challenge) that Parker 2020 was peer reviewed and has never been subjected to published (or indeed private) criticism. Mr Parker told me that he was invited to submit an article on the topic after delivering a lecture at the Royal Society of Medicine. Professor Wright, whose experience in these matters is beyond doubt, raised no criticism of the criteria.[63]I have set out the criteria above.[64]Mr Parker’s firm view was that this is not an acoustic shock case. He accepted that G3 was satisfied but was clear that G1, G2 and G4 were not. In short, there was no defined acoustic incident from which ear symptoms commenced straight away or shortly afterwards. Even if there was, the symptoms (bilateral tinnitus) were not experienced in, and do not arise from (because there is no overwhelming tinnitus), the exposed (right) ear.[65]Mr Parker’s view was that the acoustic event would need to be “a memorable event. Enough to produce a startle and a shock” (G1). There was no suggestion of such an event in this case. An inability to identify a particular event means that it is impossible to satisfy G2.[66]When pressed in cross examination on G2, he accepted that the required temporal link between the event and the symptoms need not be immediate and that there might be an onset of tinnitus some considerable time (perhaps two months later) post the event. However, for that to happen he was clear there would need to be some symptom that arose “straight away or shortly” after the relevant event. The temporal link is a test of causation. It seems to me that it is in the nature of acoustic shock injury that the injury occurs immediately, but the symptoms may take a little longer to be manifest.[67]Asked about G4, Mr Parker told me that acoustic shock experienced in the right ear might possibly result in hearing loss and tinnitus but that if so, the tinnitus would only be experienced in the right (damaged) ear. An exception would arise if the tinnitus was “overwhelming” which he explained to mean tinnitus that was “catastrophic or at the top end of severe.” Whilst the experts have categorised the tinnitus as “severe” it was not suggested that it was “at the top end.”[68]When asked about the importance of “psychological overlay” and in particular to what extent Mr Bevan’s state of mind might impact on the application of the criteria, Mr Parker told me the criteria continue to apply. The psychological state of a victim is not so important that it merits a distinct diagnosis criterion. Mr Parker told me that the psychological state of a victim “does not diminish the diagnosis.” The overlay was more likely to influence the degree of disability that someone exposed to acoustic shock might experience.[69]In my judgment, Mr Parker’s analysis was compelling. Stepping back from the criteria, Mr Parker told me that Mr Bevan comes across as a “complicated individual” who has suffered significant adverse life events. He noted that tinnitus can be caused (for example) by PTSD “regardless of acoustics.”

Conclusion

[70]Because I have found that there was no acoustic shock and there is no suggestion that there was NIHL or acoustic trauma, it follows that Mr Bevan’s tinnitus (and any hearing loss) was not caused by exposure to noise whilst at GD. It follows that any psychological harm (FND) leading to non-organic hearing loss is not attributable to the negligent exposure.[71]It follows that the claim must be dismissed.[72]With the agreement of the parties this judgment has not dealt with quantum or counterfactual findings.[73]I am grateful to all counsel for their assistance.