News Category 3
Noise Immission Level (NIL) Part 2: NIL and the Coles Guidelines - Jim Hester, Parklane Plowden Chambers
03/05/21. This article considers how the NIL is used within the Coles guidelines.
This is the second article in this series in relation to NIL. The first article looked at the basics of the Noise Immission Level (NIL).
Prior to the Coles guidelines.
Prior to the Coles Guidelines being widely adopted individual experts may have had different views as to the NIL needed for a NIHL diagnosis. For example, in the ‘Nottinghamshire Textiles’ litigation, one view that a NIL ‘approaching 100’ would be required.
The Coles guidelines
The Coles guidelines set out to apply common standards to both audiometry and NIL requirements.
Coles needs three requirements for a diagnosis of NIHL.
Requirements 1 and 3 (R1 and R3) relate to the audiometry.
Requirement 2 (R2) is the requirement in relation to NIL.
So, if the audiology shows complies with R1 and R3, and there is a 10+ dB notch/ bulge then a NIL of 100 dB (A) NIL, or higher, is required (Requirement 2 (a) or R2(a)).
If the audiology complies with R1 and R3 with a 20+ dB notch/ bulge then the NIL need only be 90 dB (A) NIL or higher (Requirement 2 (b) or R2(b)).
Accordingly, whether a case is a R2(a) case or a R2(b) case may be significant. A NIL of 90 dB (A) NIL equates to 1/10th of the total noise exposure of 100 dB (A) NIL.
As such, the main requirement is fairly straightforward in relation to NIL. What is required is a NIL of either 90 or 100 dB (A) NIL, depending on the audiometry.
However, there is also detail in the Notes, which is relevant to the Noise Immission Level.
This is perhaps more related to audiograms than the NIL, though it is really a combination of the two.
This note sets out that if two or more audiograms are available and are capable of being averaged then the 10 dB requirement for a Coles compliant notch or bulge can be reduced to 7 dB. So a 7+ dB notch/ bulge from an averaged audiogram will require a NIL of 100 dB (A) NIL.
The circumstances when averaging can be done is often itself a source of dispute though.
Note 7 – Daily noise levels to be excluded
This states that daily noise levels below 85 dB (A) lep,d, are considered to cause very little NIHL.
Indeed, it is considered that with such low noise levels, the NIL calculations tend to overestimate the potential hazard.
The example given is that a virtually safe noise of 80 dB (A) lep,d for 20 years would yield what could be on unsafe NIL of 93 dB (A) NIL.
The recommendation is that daily noise levels below 85 dB (A) lep,d should not be taken into account when calculating the NIL.
This sets out that noise levels in general are rounded to the nearest whole decibel.
This applies equally to daily noise levels and NIL levels.
The result being that in a R2(a) case requiring a NIL of 100 dB (A) NIL can in fact be achieved by a NIL of 99.5 being rounded to 100.
The effect of this can be significant in that for a daily noise level of 90 dB (A) lep,d, a period of 10 years is required to reach 100 dB (A) NIL. However, a little less than nine years is required to reach 99.5 dB (A) NIL.
Although it may be obvious, all the above features in relation to NIL may alter the outcome of a case.
For example, an engineering expert if asked to calculate the daily noise level needed to achieve a NIL of 100 dB (A) NIL is likely to return with a different answer than if he/ she is asked to calculate the daily noise level to reach 99.5 dB (A) NIL. The effect on the duration of exposure to meet the R2(a) or R2(b) levels has already been seen.
Likewise, although engineers tend to be aware of Note 7, occasionally they do include noise levels below 85 dB (A) lep,d in calculations. This may have the effect of invalidating the overall NIL calculation.
This article and the previous one have set out the building blocks in relation to the Noise Immission Level.
However, as is the way for NIHL cases, is is often not that simple. There are a number of matters relating to NIL which are more complex/ controversial.
The next article will look at some of the more controversial and complex features of NIL.
This article was originally published at https://jimhester.me
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Noise Immission Level (NIL): Part 1, the Basics - Jim Hester, Parklane Plowden Chambers
26/04/21. The basic requirements for a diagnosis of Noise Induced Hearing Loss consist of 2 elements: audiology which is consistent with NIHL and a history of exposure to a sufficient amount of noise. One without the other is not sufficient. The Noise Immersion Level (NIL) is a way of calculating the second part – an individual’s overall noise exposure.
This article is the first of 3 articles on this topic:
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The Basics.
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NIL and the Coles guidelines.
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More complicated aspects of NIL.
What is the Noise Immission Level (NIL)?
In simple terms this is an individual’s lifetime exposure to noise.
It is calculated by considering two elements. Firstly, the daily noise level to which an individual was exposed. Secondly, the amount of time that someone is exposed to that level of daily noise.
To make a diagnosis of NIHL the noise exposure is sometimes described as needing to be ‘noisy enough for long enough’.
In very many cases the daily noise levels will vary over time. If roles or equipment changed, or if employed by different employers. The overall NIL calculation is likely to consist, therefore, of adding up figures for a number of different periods/ exposures. Calculating this is not for the faint-hearted. At trial expert engineering evidence will be required to prove the NIL.
It follows that the louder noise and /or the longer of duration, then the higher the NIL will be.
I have already drafted an article in relation to the different definitions of ‘noise’ (instantaneous, daily, weighting etc). This touched on NIL, but may be referencing if necessary.
I have also written an article in relation to calculation of the NIL here.
Whilst there is a connection between a sufficient NIL to cause NIHL and breach of duty, these are different features. There may be one without the other. NIL goes towards medical causation, and not breach of duty.
For example, an individual may have been exposed to daily noise levels of 91 dB (A) lep,d, but only for a period of 6 months in the 1980s. Breach of duty is likely to be established. However, the resulting NIL is not at a level which would conventionally be considered to cause NIHL. Breach would be established, but not causation.
Conversely, there could be a period of exposure, prior to 1990, where the daily noise levels was 89 dB (A) lep,d. Breach of duty would be not be likely to be proved. However, if there was an exposure of about 11 years or more, this would produce a NIL sufficient to cause NIHL. Causation would be established, but not breach.
What noise exposure should be included in the NIL calculation?
It needs to be remembered that the NIL calculation seeks to establish an individual’s lifetime exposure to noise. To consider whether someone has damage to his/ her hearing due to exposure to noise, it does not matter what the source of the noise is.
So for the purposes of coming up with an overall NIL figure, all types of noise exposure should be included.
As well as periods of employment believed to be in breach of duty, this might include:
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Periods of noise which were capable of causing NIHL but not a breach of duty. For example noise exposure of 85 – 89 dB (A) lep,d prior to 1990;
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Exposure prior to the date of ‘guilty knowledge’ – likely to be 1963.
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Any non-employment exposure – this could include motorcycle use, any shooting which has been undertaken, and any other noisy hobbies – if the exposure was such that it was high enough to cause NIHL.
Once the overall NIL is known, this can then be apportioned between the various sources. The expert should calculate what percentage of the overall noise level is due to each period/ source of exposure. This will include the proportion any one employer/ defendant may be liable for.
The effect of including all types of exposure can be twofold.
In some cases, a claimant’s noise exposure in his/ her employment may not be sufficient by itself to cause Noise Induced Hearing Loss. However, with the inclusion of all sources of noise exposure, the NIL might be high enough to cause NIHL.
In other circumstances, inclusion of all sources of noise exposure may reduce the apportioned percentage which any one employer/ defendant may be liable to pay if NIHL is established.
As with all areas of industrial disease, it is necessary for a claimant to be as accurate as possible in relation to his/ her exposure.
For example, if a claimant’s evidence was that he worked by a particular machine for a 10-year period, that is the basis on which the expert engineer will set out whether breach of duty is established and what the NIL is.
If in actual fact, the employment turns out to be only 8 or 9 years, although breach of duty may still be established, then the resulting NIL becomes unknown and so the claimant will struggle to prove his/ her case.
Therefore, it is important that not only is the daily noise exposure accurate and based upon a claimant’s evidence which he/ she is able to prove, but also the period of employment needs to be accurate. If either these are reduced then the resulting NIL is reduced. Although the NIL may in factbe sufficient in such cases, it is likely that it is simply unknown and the claim likely to fail.
In the next article, I shall look at the NIL levels in relation to the Coles guidelines. What are the levels required (and how they vary depend upon the audiology), what daily noise levels should be included in the calculations, and what approximation is allowed when considering NIL levels.
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How falling ill with COVID may be a good reason for failure to comply with an unless order: Finvest Holdings Sarl v Lovering [2021] 3 WLUK 579 - Paul Erdunast, Temple Garden Chambers
21/04/21. Where a party contracts COVID and is therefore unable to work, that may be a good reason for the failure to comply with an order - even an unless order. Furthermore, there may be no need to obtain a medical report to prove it so long as there is a detailed account in a witness statement signed with a statement of truth.
Facts
The essentials of this case, so far as is relevant to this article, are that an order was made in “unless” terms for the Second Claimant to provide further information. He did not do so and therefore his case was automatically struck out. He required relief from sanctions. He was successful only once the “all the circumstances of the case” were considered. The reason for the matter getting past the “good reason” stage is that while his COVID was good reason for delay, it was not good reason for the failure to transfer funding to his solicitors for the litigation in circumstances where he had the support of both employees and professional advisors.
Judge’s remarks on COVID as justifying the delay
There was an argument on what the second Claimant need to do in order to demonstrate to the court that he had COVID as he said he did. Was an account in the witness statement enough or did he need to submit a medical report? Here is what HHJ Pelling (sitting as a Deputy High Court Judge) said:
“40. The second issue which is identified occurred in January 2021, when the second claimant says he, himself, contracted Covid. The defendant submits however that the effect of the condition on the second claimant as described would have come to an end by the end of January at the latest and could not have affected the ability of the second claimant to comply with the orders thereafter, particularly where, as here, the second claimant has the support of employees and professional advisors. It is also said on behalf of the defendant that there is no objective evidence available which supports what is asserted.
41. Where one is concerned with an allegation of Covid infection, a court will...
Image: free use from pixabay.com/photos/covid-coronavirus-test-swab-5027031/
Practitioner's Update: Mustard v Flower & Ors [2021] EWHC 846 (QB) - Harry Peto, Temple Garden Chambers
19/04/21. This case arose out of a road traffic accident. One of the Defendants (“the Defendant”) applied to amend its Defence to allege fundamental dishonesty (“FD”) and that the Claimant consciously or subconsciously was exaggerating her injuries.
The Claimant opposed this amendment on the grounds that this amounted to an allegation of fraud which was not properly particularised and for which there was no basis in evidence, contrary to Rule 9 of the BSB Code of Conduct. The Defendant’s response was that there was no positive averment of dishonesty but a mere alerting of the nature of the Defendant’s case at trial: it intended to explore in cross-examination whether the claimant was consciously exaggerating her symptoms for gain.
The Law
s.57 of the Criminal Justice and Courts Act 2015 provides that, where a claimant claiming for personal injury is fundamentally dishonest in relation to the primary claim or a related claim, the court must dismiss the primary claim unless the claimant would suffer substantial injustice if the claim were dismissed. The dismissal includes any...
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Case Summary: B v HH - Stephanie Robinson, Spencers Solicitors
02/04/21. Case Name : B v HH
Accident Date : 14/09/2019
Settlement Date : 21/10/2020
TOTAL GROSS SETTLEMENT : £8000.00
Background and Liability
Public Liability
The Claimant, a pedestrian at the time, entered a field to walk the public footpath with her dogs. The field had inadequate fencing around its perimeter when she was attacked by cows. The Claimant was repeatedly pushed into a stone wall by the cows, forcing her to the ground, whilst also attacking her dogs.
The Defendant failed to install fencing which permitted livestock to enter the public right of way which was dangerous to pedestrians.
Liability for the accident was admitted by the Defendant.
Injury
The Claimant attended hospital and her dogs were taken to the vets. She was given an X-ray to ensure she had not suffered any breaks or internal injuries.
The Claimant suffered severe pain and bruising to her left shoulder, arm, left leg, back and buttocks along with cuts and abrasions to her face, arms and chest.
The Claimant limped heavily for several days and the pain to her arm, shoulder, knee and buttocks resolved in approximately 4 weeks. During these 4 weeks, the Claimant had difficulties with lifting, personal care and shopping and required help from her partner.
The Claimant suffered with disturbed sleep and situational anxiety. The Claimant became terrified of cows, and experienced anxiety even when the cows were in a field and she was driving past. These symptoms were ongoing.
The pain to her left leg and back continued and the Claimant was left with a feint scar to her left arm, which would fade with time.
Further medical evidence was required in respect of her ongoing symptoms; however the Defendant made an offer to settle which the Claimant accepted.
Quantum
£7500.00 for personal injury and £500.00 for other losses
Solicitors for the Claimant : Stephanie Robinson of Spencers Solicitors Limited
Image © Garry Wright
More Articles...
- FREE CHAPTER from 'A Practical Guide to Psychiatric Claims in Personal Injury - 2nd Edition' by Liam Ryan
- 'Unconvincing and unreliable' witnesses vs dishonest ones: relevant factors and lessons to learn for litigation: Brint v Barking, Havering and Redbridge University Hospitals NHS Trust [2021] EWHC 290 (QB) - Paul Erdunast, Temple Garden Chambers
- Case Summary: P v C - Steven Barke, Spencers Solicitors
- Practitioner's Update: Kumar v Hellard [2021] EWHC 181 (Ch) - Harry Peto, Temple Garden Chambers
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