With the seemingly insatiable appetite of Claimant solicitors firms to pursue Noise-Induced Hearing Loss (NIHL) claims how can companies/employers defend these claims?
The obvious denial is to allege that the workplace where employees were based was not noisy. But it is one thing saying the workplace was not noisy and another proving it!
Firstly, Employers should check their Health and Safety files to try and locate historic Noise Surveys undertaken in their workplace. It was not until the Noise at Work Regulations (1989), which came into force on the 1st January 1990, that it became a statutory requirement to carry out a Noise Survey if the noise was likely to exceed 85dB(A) (Regulation 4).
The 1989 Regulations were replaced by The Control of Noise at Work Regulations (2005). These came into effect for all industry sectors on 6 April 2006 (except for the music and entertainment sectors where they came into force on 6 April 2008). Importantly, in the new 2005 Regulations, the level for companies to carry out a Noise Survey was reduced to 80dB(A). Saying that, many workplaces would have carried out Noise Surveys dating as far back as the 1960s as it was during this decade that the link between exposure to noise at work and damage to hearing was first made.
Rather unhelpfully, Regulation 5 of the Noise at Work Regulations (1989) states that a copy of the Noise Survey must be kept only until a new one is made. A new survey would be carried out when there were changes to the workplace such as the introduction of new or more machines or different processes. A new survey should also have been conducted at the time the 2005 Regulations came into effect. This is to take into effect the new reduction in the levels of daily noise exposure in order to show that the employer had considered the new Regulations.
Once a thorough search has been made for Noise Surveys, these should be scanned and saved to a hard disc rather than risk the paper surveys being lost/destroyed. They will not only help to defend a single claim but will help to defend a number of claims. This is because the same survey can be used to defend claims of a similar nature. It is all too apparent that floodgate scenarios are very common with regards to Noise-Induced Hearing Loss claims given their nature.
If there are gaps in the Noise Survey history what can be done to fill those gaps?
Attempts should be made to see what machines (including make and model numbers) were positioned in different parts of the workplace and what processes were being carried out. This will involve speaking to employees who may well recall the layout of the factory. With such information, an assessment of the noise which would have been present can be made.
What other data/documents are needed to defend these claims?
Regulation 7 of the Noise at Work Regulations (1989) required employers to take steps to reduce noise if the same is above 90dB(A) (this value now stands at 85dB(A) in the 2005 Regulations). So if a Noise Survey shows the noise to be above these figures, in order to defend a claim, there should be a record of the steps taken. This may include a rotation policy to ensure that staff did not work too long in the noisy area or purchasing new equipment which is less noisy. The employer will need to produce this documentation to show the introduction of such a policy or invoices to prove the purchase of new and quieter equipment.
Regulation 8 of the 1989 Regulations required an employer to make hearing protection available to his employees if the noise was above 85dB(A) (now above 80dB(A) under the 2005 Regulations). It also needed to ensure the wearing of such protection if the noise was above 90dB(A) (now 85dB(A) under the new 2005 Regulations). Again, invoices are useful documents to prove that hearing protection was available. Also, if it was mandatory for such protection to be worn, a sheet showing that employees signed for the hearing protection will be beneficial. There may well be a written policy about the wearing of hearing protection which will help comply with Regulation 9 of the 1989 Regulations with regards to ear protection zones. Similarly, there may be a copy of a sign showing where the ear protection zone was and where the mandatory wearing of hearing protection was/is required.
Finally, Regulation 11 of the 1989 Regulations required an employer to provide information to employees if the noise in the workplace exceeded 85dB(A) (now applicable if the noise exceeds 80dB(A) under the 2005 Regulations). This will normally involve staff training which should also include how to wear any hearing protection provided correctly. Training records and a copy of the contents of the course will be useful data to show compliance.
If no Noise Surveys or other documents have been kept can anything be done retrospectively?
If the process and machines have not altered significantly then there is nothing to stop a Company/employer obtaining the latest Noise Level Testing Equipment to determine the levels of noise in the workplace. This, coupled with witness statements from employees/managers to confirm that nothing has altered, “could” be enough to defend successfully a claim if the noise levels obtained now are shown not to be excessive and below the appropriate action levels. All this is dependent upon when the exposure allegedly took place.
However, the way to secure a more certain guarantee of a successful Defence to a Noise-Induced Hearing Loss claim, would be to obtain the historical noise data to show there was no exposure to excessive noise.
Pulsar Instruments have produced a FREE summary guide for employers on Controlling Workplace Noise which sets out duties under the Regulations. Download your copy here.
About the author. Jason Bleasdale is a Partner at international law firm Clyde & Co LLP, in the Casualty and Healthcare group. He has undertaken large loss, disease and regulatory work for the best part of 25 years, with particular focus upon latent disease and legacy solutions. He undertakes employers’ liability, environmental, industrial disease, disciplinary and regulatory work for major multinational corporates, insureds and professionals. Jason has undertaken work for the majority of composite and Lloyds market insurers (including Aviva, NFU Mutual, QBE, RSA, XL and Mitsui) as well as a variety of global multinationals, FTSE 100 companies and a wide range of SMEs.
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