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FREE SAMPLE from 'A Practical Guide to Noise Induced Hearing Loss Claims' by Andrew Mckie, Ian Skeate, Gareth McAloon

08/04/19.Generally this book covers issues in relation to NIHL and hearing loss claims, and in particular focuses on the day-to-day issues in practice that one encounters with such cases including spotting the ‘winners’ and ‘losers’ quickly and efficiently, practical tips for investigation, litigation tactics, as well as a summary of the law, the important cases, and how to run these claims efficiently...

CHAPTER ONE

NOISE INDUCED HEARING
LOSS CLAIMS: THE LAW

LEGAL PRINCIPLES

To found a claim in negligence and/or breach of statutory duty, the claimant has to prove:

  1. His hearing loss was caused by occupational exposure to hazardous noise in breach of duty;

  2. He is within the limitation period;

  3. A defendant can be readily identified who is worth suing, i.e., solvent and/or insured even if they are no longer operating or on the register of companies.

The Draft Pre-Action Protocol for Disease and Illness Claims should be followed and full disclosure obtained, as soon as possible. The most common failing of employers which leads to a finding of breach of duty is failure to conduct a risk and/or a noise survey where workers are obviously exposed to noisy environments. The absence of such documentation puts the Defendant in a very difficult position.

Great care should be taken initially when taking the claimant’s employment history, both to identify other potential sources of exposure to noise such as firing ranges during national service and to identify other employers who may be potential defendants. This will enable an assessment to be done not only of all the potential defendants but also of apportionment of hearing loss between exposure at the defendant’s premises and other sources whether these be negligent or non-negligent sources.

The following sections of the Factories Act 1961 are likely to apply for pre 1990 claims:-

29 Safe means of access and safe place of employment.

(1) There shall, so far as is reasonably practicable, be provided and maintained safe means of access to every place at which any person has at any time to work, and every such place shall, so far as is reasonably practicable, be made and kept safe for any person working there.

(2) Where any person has to work at a place from which he will be liable to fall a distance more than [F22 metres]], then, unless the place is one which affords secure foothold and, where necessary, secure hand-hold, means shall be provided, so far as is reasonably practicable, by fencing or otherwise, for ensuring his safety.

The pre 1990 Law was helpfully summarised in a case of Baird and Latham Farms Limited (2005) which said:-

There is no dispute between the parties as to the applicable law. The relevant period was before any relevant statutory regulations and thus the common law duty of care provides the only route to any liability. This has recently been considered by the supreme Court in Baker v Quantum Clothing [2011] UKSC 17 and confirms the position as described by Swanwick J in Stokes v Guest, Keen & Nettlefold (Bolts and Nuts) Ltd [1968] 1 WLR 1776 @ 1783.

...the overall test is still the conduct of the reasonable and prudent employer, taking positive thought for the safety of his workers in the light of what he knows or ought to know; where there is a recognised and general practice which has been followed for a substantial period without mishap, he is entitled to follow it, unless in the light of common sense or newer knowledge it is clearly bad; but where there is developing knowledge, he must keep reasonably abreast of it and not be too slow to apply it; and where he has in fact greater than average knowledge of the risks, he may be thereby obliged to take more than the average or standard precautions. He must weigh up the risk in terms of the likelihood of injury occurring and the potential consequences if it does; and he must balance against this the probable effectiveness of the precautions that can be taken to meet it and the expense and inconvenience they involve. If he is found to have fallen below the standard to be properly expected of a reasonable and prudent employer in these respects, he is negligent.”

At paragraph 23 of his speech in Baker Lord Mance put it thus:-
The primary inquiry, when considering whether an employer has acted with due care to avoid injury from noise induced hearing loss, is whether there is a recognised and established practice to that end; if there is, the next question is whether the employer knows or ought to know that the practice is “clearly bad” or alternatively, if the area is one where there is developing knowledge about the risks involved in some location or operation, whether the employer has acquired “greater than average knowledge of the risks”.

Whilst Mr Williams for the defendant focused on this passage to a degree, in my judgment it does not say anything different to the test propounded by Swanwick J.

The case also considered the factual matrix of past reports/ investigations prior to 1990 which said:-

  1. Mr Hill for the Claimant and Mr Lawton for the Defendant gave evidence as to the general state of occupational health knowledge at the material time by reference to publications and ministerial guidance. Mr Hill pointed to the 1963 publication of “Noise and the Worker” by the Ministry of Labour as a landmark for knowledge within industry of the dangers of industrial noise. That is not to say that “Noise and the Worker” was revolutionary. It had been known for many years that noise could cause injury and the Wilson report (1963) considered in some detail the hazards of occupational noise. It was the presentation of the Wilson Report to Parliament in 1963 which led to the publication of the booklet “Noise and the Worker”.

  2. It is evident that “Noise and the Worker” contained sufficient information to alert any employer reading it to indications of a potential occupational noise hazard. The section headed “Have you a Noise Problem?” highlights four considerations for a convenient test:-

    a) Do workers find it difficult to hear each other speak while they are at work in a noisy environment?

    b) Have workers complained of head noises or ringing in the ears after working in noise for several hours?

    c) Have workers who have been exposed to very high noise levels for short periods experienced temporary deafness, severe enough for them to seek medical advice?

    d) Have workers exposed for longer periods complained of a loss of hearing that has had the effect of muffling speech and certain other sounds?

  1. Mr. Hill regarded 1963 as the year in which the hazards of occupational noise became widely known in industry and should have been in the mind of a prudent employer. In cross- examination he accepted that 1963 was not a fixed date of knowledge for all industry and that in some industries it took longer before it became recognised that noise (or a particular type of noise) was a hazard within that industry. He accepted that “Noise and the Worker” was published by the Ministry of Labour and directed more at factory conditions than agriculture. Indeed the Wilson report which preceded “Noise and the Worker” considered noise from agricultural machinery solely in an environmental context rather than an occupational health hazard.

  2. Mr Lawton conducted something of an historical literature review as part of his report. He identified the...

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