Deafness: An expanding area of PI law

More and more people are making claims against their employers for noise-induced hearing loss. Marcus Weatherby, partner at Pattinson & Brewer, considers the reasons behind the increase and predicts more changes to come.

Is deafness an expanding area of personal injury, and if so, why?

Deafness does appear to be an expanding area of personal injury. It is not difficult to see why.

Noise is one of the most common causes of hearing loss. It can occur through a single traumatic incident such as a gunshot. However, more commonly the onset is insidious—repeated exposures to loud noise may, over an extended period of time, cause noise-induced hearing loss (NIHL).

The problem has become widespread in part because the effects of noise are often underestimated. Whether it is a worker near heavy machinery, an HGV driver with the radio at a dangerous level to mask the noise of the engine, or noise through headphones at an inappropriate level, we simply fail to appreciate the dangers of noise.

Relaxation of the rules on health and safety regulation and the introduction of RIDDOR (Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013, SI 2013/1471) over the last year are, in my view, likely to lead to greater complacency and more of a problem.

What are the commonly encountered issues when dealing with this type of work?

Usually the damage takes place gradually, and there are no externally-visible physical changes. As a result, people have traditionally not appreciated the serious impact of NIHL on their daily lives until they’re frustrated by a permanent communication problem or ongoing ringing in their ears.

For that reason there can be a delay between exposure to noise and knowledge of the problem. This can mean that by the time we see a case the evidence is often stale and requires good recall on the part of the claimant and his or her witnesses. It can also mean that date of knowledge and limitation issues are common.

Do you have any practical tips for lawyers advising in this area of law?

The main issues are those of breach and causation. Evidence of assessment of the problem, such as noise mapping and provision of ear defenders or protective equipment, is only part of the problem. Often these are released in order to support a denial of liability. What is needed is a deeper examination of the day-to-day issues for the worker involved:

Were defenders always available?
Were they appropriate for the environment?
Was training in their importance given and need to wear enforced?
Did the Union need to make representations about the noise?
Was the equipment involved regularly maintained and, if not, did it get noisier when it was not?

It is worth making a careful check of the client’s work history and medical records to avoid limitation and causation problems.

It is also important to consider whether he or she has any noisy hobbies which might suggest an alternative source of the problem.

Where are firms getting this work source from?

A glance on the internet will show that the ‘silver surfer’ is a target for this type of work. Some firms appear to have paid for advertising on medical sites designed for the hard of hearing. There is also evidence that Facebook is being utilised to locate clients.

Due to the nature of the work, chains of clients come together. Usually in a noisy workplace many people are affected—in doing a good job for one client you are likely to uncover others.

What are your predictions for the future in this area?

The type of client we are likely to see in future will change. The fall in manufacturing in the UK, particularly in jobs requiring machinery, will have an effect.

Up to now the pre-April 2013 claims have been going through. However, over time the changes to the Civil Procedure Rules 1998, SI 1998/3132 introduced by Jackson will take effect and there will be a reduction in profitability in this area. Insurers clearly believe this will reduce the number of claims but this remains to be seen.

Medical advances to alleviate the effects of NIHL will occur. Our compensatory system means that we will be able to include the cost of any such treatments to help our clients in future.

Interviewed by Jenny Rayner. The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

This article was first published on Lexis®PSL Personal Injury on 28 May 2014. Click here for a free trial of Lexis®PSL.