Personal injury claims for noise-induced hearing loss are on the increase. DMA Law’s personal injury expert Ian Wanstall examines the issue.
Where a person is exposed to excessive levels of noise in the course of their employment over a long period of time they may well suffer damage to their hearing.
The noise exposure has to be significant and prolonged, as the human ear will recover from a brief exposure to even a very high volume of noise. It is the repeating of the exposure day-in, day-out that causes damage to a person’s hearing.
It is interesting that there has been a dramatic rise in claims for damaged hearing due to exposure to noise at work. The reason that this surprises me is that in the 80s and 90s huge numbers of claims were made, particularly with regard to those who worked in industries that were known to be noisy such as mining, steel production and ship building.
In January 1990 the Noise at Work Regulations 1989 came into force and these were followed by the more stringent Control of Noise Regulations 2005 which came into force in April 2006.
If the regulations had been followed then the instances of exposure to excessive levels of noise at work without adequate hearing protection should have dramatically reduced. This coupled with the sheer volume of claims made for earlier exposure made me think that the number of claims would fall off dramatically and would then be relatively few in the future.
For whatever reason, the number of noise induced hearing loss (NIHL) claims has grown dramatically of late. It seems appropriate, therefore, to consider what needs to be proved to have a successful claim.
There are three main elements to a noise induced hearing loss claim and the evidence to prove each element can be characterised as engineering evidence, medical evidence and legal considerations.
What evidence is required for a claim?
The first question is: “Has there been exposure to a sufficient level of noise over a sufficient period?” This is the ‘engineering’ element of the evidence. It will be necessary to be able to prove that the person bringing the claim has been exposed to a level of noise over a long enough period for their hearing to possibly be damaged.
Even if the person no longer works in the industry that it is thought caused their hearing loss, an engineer will usually be able to construct an idea of their “noise dose”. The engineer will work from the details that the claimant is able to give them together with information available in text books and papers on the levels of noise produced by certain types of machinery and industrial activities.
An engineer will also look at the availability of hearing protection and if it would have been effective in protecting the person’s hearing. There are of course some occupations where the noise levels are such that an engineer will not be need to prove exposure to excessive noise.
Medical considerations
The next element is to prove that the claimant’s exposure to noise has caused their hearing loss. This is very much a medical question based on the results of a hearing test (audiogram) and a person’s medical history.
There are many causes for hearing loss but the pattern of a noise induced hearing loss is quite distinct, therefore a lot can be gleaned from simply the results of a hearing test. Hearing tests are readily available these days from people like Boots and Specsavers. Any solicitor doing this type of work will know what to look out for in an audiogram.
A starting point for a potential claim will often be the solicitor taking details of the persons work history and reviewing their audiogram. Engineering evidence and full medical evidence can come later.
The two elements of the claim that have been so far discussed above are “has there been exposure to excessive noise at work?” and “has the exposure to excessive noise caused a hearing loss?”
Limitation
The next element of a noise induced hearing loss claim that has to be considered is limitation which is very much a legal issue.
There is a three year time limit to bring a claim for personal injury. If a claim is not settled or proceedings commenced within three years then the claim is likely to fail as it will be “statute barred”.
How long do I have to claim?
The starting point for an accident claim is very easy as it is almost invariably the date of the accident (unless the clamant is a child or under a disability). Industrial disease claims, such as those linked to asbestos exposure, are far more complicated as the three years starts to run from the date that the person knows that a) they have suffered a significant injury (i.e. more than trivial) b) that the injury may have been caused by the act omission of another party (in this instance the employer) and c) that the other party can be identified.
Why do cases fail?
Many potential noise induced hearing loss claims fail because there are problems with limitation. It is often the case that the person has had occupational health screening many years ago in the course of their employment. If the person has been told, as a result of that screening, that they have a hearing loss that could well be due to their exposure to noise at work then this will generally be enough to start the three years running.
It is possible to ask the court to disapply the limitation period if the claim is brought outside the three year limitation period. There are criteria that the court apply when deciding whether or not to disapply the three year rule but generally the further you are from the end of the three year period the less likely the court are to be persuaded to waive the three year limit.
The above is a very rough outline of what needs to be proved in order to have a successful noise induced hearing loss claim. If you have worked in a noisy environment and think you may have a loss of hearing then it is important to seek legal advice as soon as possible to avoid limitation problems.
How can I make a claim?
If you think you might have a claim for noise induced hearing loss then give Ian Wanstall at DMA Law a call on 0191 375 3938. Ian will be more than happy to discuss your potential claim with you at no cost and without obligation.
