Expert Witness Journal Issue 67 June/July 2026 - Flipbook - Page 86
Mr Zeitoun, the ENT surgeon instructed by Mr
Craggs, accepted in his evidence that he did not use
the MLP(18) method because he did not understand
it.
In an earlier chapter, the Court had already
concluded that there should be a baseline correction
to the presbycusis data set out in the 2017/2024 ISO
database and it is this data which should be used when
determining both diagnosis and quanti昀椀cation.
Ultimately the Court concluded that:
The Court also concluded that it would not be
necessary as a matter of course in every case to
make the, now customary, 6 dB deduction at 6 kHz
to account for the use of TDH-39 headphones.
356. In my judgment, that inability to understand
how a result was obtained, to interrogate the method
to reveal its workings, makes MLP(18) entirely
unsuitable as a means of establishing a case in
litigation. For a judge to accept a diagnosis on the
basis of MLP (18) would be a complete dereliction
of duty. Unless the Court could be satis昀椀ed, on
evidence, that the method was entirely reliable in
every case, then it has at least to be possible for a
Court to understand how the method produces the
result where the outcome is disputed. The alternative
would, furthermore, make an appeal against the
conclusion impossible on any ground other than the
total absence of underlying analysis, because the
appellate Court would be equally unable to test the
reasoning on which the conclusion was based.
Method for Quanti昀椀cation of Military
Noise-induced hearing loss
The Court was presented with two competing
methodologies for quanti昀椀cation: that proposed
by Prof Moore and the “LCB” methodology which
accompanies the CLB diagnostic paper.
In light of his 昀椀ndings as to diagnostic methodology,
the Learned Judge favoured the quanti昀椀cation
method proposed by Prof Moore with some
important caveats:
The Court was accordingly left to choose between
the CLB method and the rM-NIHL method.
Firstly, as to referent percentile, Prof Moore had
suggested, both the MLC paper and in oral evidence,
that the 50th percentile should be used as a default.
He had suggested that a lower percentile should only
be selected if a BSA complaint audiogram had been
obtained prior to noise exposure and supported
the use of a lower percentile (which would have the
e昀昀ect of reducing the amount of hearing loss which
could be attributed to noise exposure). However he
had supported the use of a higher percentile (which
would give a more favourable result to the Claimant)
where only one frequency in only one ear showed
better than average hearing.
In the course of the expert evidence it had been
argued that the presence of noise damage at 8 kHz
in cases of exposure to impulse noise might disguise
a notch/bulge and lead to a false negative diagnosis
using the CLB method. Conversely the rM-NIHL
method accounted for the potential for loss at 8 kHz.
The Defendant pointed to the potential for rMNIHL to reach a false positive diagnosis in cases
of idiopathic hearing loss. However the Court, in
reliance on its own 昀椀ndings about the reliability
of military audiograms, was satis昀椀ed that cases
of idiopathic hearing loss would be capable of
identi昀椀cation.
The Court held as follows:
474. Mr Platt was also correct in his submissions
in respect of Prof. Moore’s 2022 paper. He said
昀椀rst that by “reliable” Prof. Moore means “BSA
compliant”. It is clear that is what he meant. In crossexamination, Prof. Moore accepted that, in practice,
it is “vanishingly rare” for an individual to have a
BSA compliant audiogram taken prior to the start of
military service, and indeed he had never seen such
a case. But for the reason set out in chapter 6 that
seems to me too stringent a position. Occupational
audiograms should not be discarded and, particularly
when part of a series, can provide good evidence of
hearing ability. They should be so considered when
considering the relevant percentile.
The Learned Judge ultimately concluded as follows
418. I conclude, on the basis of all the evidence I have
heard, that Mr Steinberg is right when he submits that
military NIHL can present without a CLB notch/
bulge and the absence of a notch does not exclude
NIHL, that military noise commonly a昀昀ects hearing
at 8 kHz and this can erase or disguise a notch
or bulge; and that military impulse noise tends
to produce a di昀昀erent and more variable audiometric
pattern than steady state noise.
419. It follows, 昀椀rst, that the original M-NIHL method
and the MLP(18) method should not be relied on in
medico-legal work (see [346] above and following;
second, that CLB is not generally suitable in military
cases and third that the rM-NIHL method is the
method to be preferred. A proper diagnosis of NIHL
depends on the careful application of each element of
the rM-NIHL test.
EXPERT WITNESS JOURNAL
475. Mr Platt also makes a good point when he
submits that the scheme advocated by Prof. Moore in
MLC is unfairly constructed to favour Claimants.
On the one hand, as Mr Platt submits, the likelihood
is that in practice, a user of the Moore method would
never adjust the percentile downwards and every
84
JUNE 2026
