Expert witnesses – ditch that ‘black book’!

10th, September 2008

The injured could lose their claims if expert witnesses don’t ditch ‘black book’ methods.

Following a recent case, Kumaben A Patel v Akzo Nobel, defendant lawyers are suggesting once again that ‘black book’ assessment of hearing loss in industrial deafness cases should be ditched by expert witnesses in favour of NPL tables, to improve accuracy and avoid disputes in court.

The Assessment of Hearing Disability. Guidelines for medico-legal practice known as the ‘black book’ was published in 1992 but has long been refuted for inaccuracy. The ‘NPL tables’ were developed by the National Physical Laboratory, the UK's National Measurement Institute.

Claire Hamm, associate at Reed Smith LLP, speaking to Legal & Medical, said: “I you’ve got two methods of assessing hearing loss available to you and the ‘black book’ gives you a more favourable result, that persuades a lot of claimant experts that it is the method they should use.”

Recently judges have not looked favourably on claimant cases based on an expert assessing hearing using the black book, but standardisation has not been definitively decided in court, which is leading to disputes.

Speaking to Legal & Medical partner at Reed Smith LLP, Darren Smith said: “If a medical report uses a black book method calculation it’s an immediate flag to the insurers or the lawyers that we’re not going to be in a position to accept that medical report.

“I am working on a case at the moment and the medical expert for the claimant has used ‘black book’ calculations. I will be going in front off the Judge saying in light of this I want to get my own medical report from someone who is going to use NPL,” he added.

In Kumaben A Patel v Akzo Nobel the judge supported comments by Judge Inglis in 2007. Judge Inglis said: “Applying the Black Book approach to the quantification of noise induced loss where the percentage of disability as worked out in accordance with it is low, under 10 percent or so seems to me to lack usefulness.

“The result of applying the Black Book formula may give a spurious impression of mathematical certainty in a very uncertain area, where statistics are being applied to individual cases of at most modest hearing loss.

“Where the losses are greater the Black Book approach is no doubt useful in helping to identify the proportion of the disability that may be referable to age.”

Expert witnesses – ditch that ‘black book’!

The injured could lose their claims if expert witnesses don’t ditch ‘black book’ methods.

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