Defending Hearing Loss Claims

Is your firm facing a hearing loss or deafness claim in Kent or East Sussex? Are you unable to locate your liability insurers? Our specialist hearing loss defendant solicitors can help.

Many businesses can be taken by surprise by a historic hearing loss or deafness claim and often they have to defend these claims without insurers. Not all of these claims are genuine. However, many, but not all, of these deafness claims can be defended. Hearing loss and deafness claims have often involved workers in the traditional heavy industries, but can also extend to many other business, including manufacturing and building trades.

Is your firm negligent?

In heavier industries employers have been expected to prevent excessive noise to avoid deafness and hearing loss since the early 1960s. However, all employers were required to follow quite strict standards since 1990. If noise levels exceeded certain action levels, potentially there would be liability for any resulting hearing loss. This can be confirmed by engineering evidence. However, as a rule of thumb, if a worker needed to shout or use a loud voice to be heard within about 4 feet, noise levels were probably excessive. If no protection was provided, the employer would probably be found negligent.

Is the claim time-barred?

A worker may have suffered hearing loss or deafness from noise at work decades earlier. This would not necessarily prevent a noise induced hearing loss claim. The three year limitation period for making such a claim does not start until the worker ought to have known he had suffered deafness or hearing loss due to his work.

Is the loss of hearing due to noise at work?

Hearing loss and deafness can be partly or fully due to age rather than noise. This can normally be confirmed by an audiogram. However, even noise-induced hearing loss might be partially or fully due to other jobs or even noisy hobbies.

Can hearing loss claims be defended?

Occasionally, noise-induced deafness claims can be defended on the grounds that the noise was not excessive for the time. However, the two more common defences are:

• Causation defence; the Claimant cannot prove any deafness or hearing loss was noise or work-related. This is where your own medical expert may help.
• Limitation defence; the Claimant knew or ought to have known of a connection between his hearing loss/deafness and noise at work exposure several years earlier and the claim is time-barred. (However the court still has a discretion).

Can we find our insurers?

Through our contacts within the insurance industry our solicitors are often able to find insurers which the business cannot trace for themselves.

Get in touch with our experienced hearing loss defence solicitors

If your business is facing a hearing loss claim without insurance, contact one of our industrial disease defence solicitors, based in Maidstone and Canterbury, who are ready to help with any legal advice you may require.

To get started you can book a free 30 minute appointment with one of our friendly team. Alternatively, call us on 01622 690691 or fill out our online contact form.

• Case study - defending an international pharmaceutical and food manufacturer

  We successfully resisted a Noise Induced Hearing Loss (NIHL) claim for  an international pharmaceutical and food manufacturer.

  The claim was from an ex-employee of a north-western food processing factory for alleged noise exposure in the mid-1970s to mid-80s.

  We insisted that the claimant disclose his full medical records and carefully examined them as well as the occupational health records. As a result, we identified references to hearing problems six years earlier. Our enquiries of our client established their factory had closed a few years earlier, meaning that potential witnesses were lost.

  We raised a limitation defence, arguing they were three years out of time and evidential prejudice resulted. The claim was dropped.

  Case study - defending an international paper manufacturer

  We acted for the UK division of an international paper manufacturer in a multi-party NIHL claim, achieving a good settlement for them in limiting their contribution to only 3% damages and costs.

  The claim against our client was from an ex-employee of their south-eastern paper mill in 1964/65, for six months out of 20 years’ total noisy employments.

  We advised on evidence of likely breach and no limitation argument but queried causation and apportionment.

  We prepared and served a defence, not admitting breach and arguing causation apportionment and quantum issues. Our joint defendants’ expert advised some NIHL/tinnitus. The defendants then agreed a joint settlement. In the settlement, we succeeded in limiting our client’s contribution to just 3%.

  Case study - resisting a claim for an international oil and chemical manufacturer

  We successfully resisted a NIHL claim for the UK division of an international oil and chemical manufacturer.

  The claim was from an ex-engineer employed in their south-eastern factory. The alleged noise exposure was from 1989 to 2012.

  We obtained occupational health records from which we identified references to alternative noise exposure from motorcycling and loud music, as well as hearing problems several years earlier.

  We raised potential defences of causation and limitation and insisted the claimant must disclose his full medical records before we considered further. The claim was dropped.

  Case study - defending a claim for an international shipping company

  We successfully resisted a NIHL claim for the UK division of an international shipping company and obtained reimbursement of most of the client’s legal costs.

  The claimant, a dock worker at Plymouth docks, alleged noise exposure in early 1990s.

  We were instructed shortly after proceedings were served and secured a stay whilst we investigated.

  From the records we raised a query over causation (a hearing loss pattern untypical for NIHL).

  Our enquiries of our client also established serious doubt as to whether they had ever employed the dock worker. Despite a similarity of name in the HMRC employment history, it seemed his employment may have never been transferred to our client as the claimant assumed. We required the claimant provide proof that he was their employee. The claimant’s solicitors were unable to do so and proposed we discontinue the case, with each side bearing their own costs. As they had started acting pre-2014, costs rules allowed the losing claimant to pay the defendant’s costs. We insisted these were paid by the claimant’s legal expenses insurers.

  The claim was discontinued, with our clients recovering most of their legal costs.