Industrial deafness is a form of industrial disease. If you are suffering from industrial deafness then you may be entitled to make a claim for compensation.
Noise in the workplace is a significant hazard. Historically employers were not aware of the dangers of noise exposure. This led to a cut off date in terms of bringing a claim for industrial deafness. The Courts have ruled that you cannot bring a claim for compensation for industrial deafness where the exposure to noise occurred solely before 1963. Where exposure occurred partly before 1963 and partly after 1963 then may be entitled to bring a claim, however any damages would have to be apportioned accordingly.
To give an example of this consider that Joe Bloggs was exposed to noise between 1960 and 1966. The first period (i.e. between 1960 and 1963) would be classed as non negligent exposure and therefore Joe Bloggs will probably not be able to recover compensation for exposure to noise during this period.
The second period (i.e. between 1963 and 1966) is recoverable and Joe Bloggs can recover compensation for noise exposure during this period. To make the example easy to follow, let’s say that 50% of Joe Bloggs exposure to noise occurred before 1963 and 50% of his exposure occurred after 1963 (in reality you would have to calculate a more accurate percentage taking into account not only the year of employment but also the month and day that employment commenced and finished).
When medical evidence is obtained a Solicitor can put a value to the claim. Say the claim is valued at £5,000 as a full valuation. If pre 1963 employment exists in the case then this would have to be deducted from the value of the claim. In Joe Bloggs case 50% of his exposure occurred before 1963 and therefore he is only entitled to recover 50% of the full value of his claim, i.e. £2,500. This is because Joe Bloggs has still suffered noise damage during the period 1960 to 1963 but as this is none negligent he cannot recover compensation for this period. The period before 1963 is classed as non negligent exposure as companies were held not to be aware of the dangers of noise exposure before that date. In 1963 an article was released highlighting the dangers of noise exposure.
With industrial deafness claims you have to bring a claim against each and every employer which exposed you to excessive levels of noise. Therefore some claims may be against multiple employers. Most employers, as they became aware of the dangers of noise exposure, introduced hearing protection. Hearing protection is not designed to completely block out the noise but ear plugs and muffs do work in reducing the noise to a safer level. Therefore if hearing protection was provided, and in some cases enforced, then the employer may not have been negligent. Sometimes hearing protection may be provided but may not have been compulsory.
In such cases it would depend on the actual noise levels to decide whether an employer had been negligent. Obviously if Joe Bloggs worked in excessive noise for the period 1975 to 1985, and he was given and made to wear hearing protection in 1980, then he is likely to be able to claim for the noise exposure period (i.e. between 1975 and 1980). In this scenario there would be no deduction in terms of the value of his claim as the only damage was caused during the period 1975 to 1980.
Apportionment applies in these cases but your Solicitor would calculate this for you. In terms of confirming your exact dates of employment your Solicitor can request a record of your employment history from the Inland Revenue. This is a free document which lists all the employers that you have worked for in a tax year based on your National Insurance contributions. This document is often referred to as an “Inland Revenue Schedule”.
In terms of the claims process a Solicitor would usually obtain a Statement from you, the Claimant. This Statement would detail your employment history and which companies exposed you to excessive noise. The Statement will also detail the sources of noise and whether any hearing protection was provided. The Statement would also note your onset of symptoms as under the Limitation Act 1980 you must issue proceedings in your claim within 3 years of the date that you first knew, or should have known, that you were suffering from a serious condition caused by your employment.
When the Statement is finalised your Solicitor can submit a formal letter of claim to each and every employer that exposed you to noise. If the company is no longer trading your Solicitor would try to ascertain who insured the company during the period of your exposure. A letter of claim can then be sent directly to the insurance company. The letter of claim is a formal letter detailing the nature and circumstances of the claim. The Defendant has 21 days in which to provide a response to the letter of claim. Following the response the Defendant or the Defendant’s insurers has a period of 3 months in which to investigate the claim and provide a response. If liability is not admitted the Defendant should state why it is not admitted. The Defendant would also be expected to disclose any relevant documentation which may include personnel records, occupational health records, noise surveys, any records or reports regarding hearing protection etc. The disclosure documentation would be reviewed by your Solicitor. This documentation is likely to be key in assessing the prospects of success. Say for example that you had regular hearing tests at work – the hearing test results (or audiograms) should be within your records.
The next step would be to obtain medical evidence from a suitably qualified medical expert. In terms of industrial deafness claims a suitable expert would be an Ear, Nose and Throat (ENT) Surgeon. Usually the ENT Surgeon would arrange for you to have a hearing test which is done by an audiologist. The ENT Surgeon would then interpret the hearing test result (audiogram) and produce a medical report. The medical report, if agreed, can be disclosed to the Defendant or the Defendant’s insurers. This would be your evidence that you are actually suffering from industrial deafness. The expert can say whether you are suffering from industrial deafness, on the balance of probabilities. To decide whether you are suffering from industrial deafness the expert will consider all relevant information including the shape of the audiogram (hearing test result), the nature of your employment, the environment in which you worked in etc. Diagnosing industrial deafness is not an exact science and different experts may come to different conclusions.
Hopefully, when medical evidence is disclosed, the Defendant or the Defendant’s insurers would come back with an offer. Settlement could then be negotiated. We would also consider a claim for special damages which would cover any future purchase of hearing aids. Obviously it is your choice whether you want to make a claim for hearing aids or not. From experience insurers do not like claims for hearing aids as they often argue that you can get them on the NHS free of charge.
However private digital hearing aids are thought to be better than the free NHS hearing aids, especially in terms of appearance. Private digital hearing aids can go in the ear as opposed to NHS hearing aids which are clearly visible. Therefore you can understand why people would prefer the private hearing aids – especially in cases where the Claimant is particularly young to be suffering with hearing loss.
If a claim is not settled through negotiation, and your Solicitor believes that there are strong prospects of success, then Court Proceedings would be issued. Many people are not aware that they are suffering from deafness caused by noise exposure. This is not surprising as many people simply put their hearing loss down to age. If you are suffering from hearing loss and you have been exposed to noise at work, then you may be entitled to make a claim.
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