Jason Bleasdale, partner at solicitor Hill Dickinson LLP, answers some of the questions posed during the Workplace Noise webinar last month
If a claim is brought after 30th July 2013, does this now enter the Claims Portal and if so what difficulties does this present for Insurers to respond within the timescales to serve medical evidence and consider causation properly?
If the claim is brought after 30th July 2013 then it may enter the Claims Portal. This will be the case even if the exposure to noise pre€ﾑdates 30th July 2013.
However there are a number of exceptions which apply to all disease cases (including Noise Induced Hearing Loss claims) which would mean that the claim would either not enter the Portal in the first place or alternatively would fall out of the Portal. The most pertinent of these for Noise Induced Hearing Loss claims would be where a Claimant brings a claim against more than one employer. The Portal is only used for disease claims where the claim is against one Defendant only. However if the claim is against one Defendant only, the claim could fall outside the Portal if limitation is raised as an issue or medical causation, rather than just liability as would be the case in a simple accident claim. Clearly if causation is an issue then there will be no timescales for Defendants/Insurers to serve their medical evidence (as would also be the case with Claimants). However, if causation is not raised as an issue then the Claimant must serve the medical evidence in accordance with the timescales set down by the Portal.
How is liability determined if a Claimant has a multi-employer work history?
Noise Induced Hearing Loss is a divisible disease such that all exposure to noise will have contributed to the hearing loss. It would therefore be important to obtain a Claimant’s employment history (usually by way of an Inland Revenue Schedule of Employers) to determine when the Claimant would have been exposed to excessive noise in the workplace.
If a Claimant has been exposed to noise in more than one workplace then an apportionment table is calculated on the basis of the Claimant’s different periods of employment with employers who have excessively exposed him negligently to noise.
If noise and PPE issue records from years ago are incomplete or absent, does this automatically mean that a claim in relation to hearing loss referring to this period will be successful? If not, what other factors may be considered?
Although it would be beneficial to have the noise surveys and records of issue of hearing protection at the relevant time, it may be that a noise survey can be carried out in the same workplace now on the basis that the work processes have not changed over the years. If the noise survey reveals an acceptable level of daily noise exposure for the relevant period (i.e. pre€ﾑ1989 less 90dB(A)) then the current noise survey could be used as evidence. In order to back this up further a witness statement could be obtained from an individual who has worked in the workplace for a number of years to confirm that the processes have not changed and that the levels of noise are roughly the same.
The claim could also be defended on medical causation grounds and there should be a close analysis of the medical report the Claimant relies on to establish whether the audiogram performed has the classical “notch” indicative of Noise Induced Hearing Loss.
Why are ear defenders better than ear plugs?
An ear defender will normally cup the whole of the ear if worn correctly and therefore this will prevent any noise entering the ear. However reference must always be made to the manufacturer’s comments on the standard noise reduction which can be achieved by the wearing of hearing protection whether they be ear plugs or ear defenders.
How does TUPE affect Noise Induced Hearing Loss claims? Does the incumbent owner become fully liable or can the previous business owners still be brought into these claims?
If a Claimant has been subject to a TUPE transfer then the liabilities will pass from the previous company to the current employer such that the Claimant only needs to bring his claim against the current employer. However the current employer can utilise the insurance policies in place for the previous employer and the claim can be apportioned between these previous Insurers and the current employers/current Insurers.
Click here for a video replay of the webinar
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