“Are you entitled to compensation for Noise Induced Hearing Loss?” There has been a significant rise in marketing activity from firms of solicitors and claims management companies promoting a ‘no win no fee’ approach to claims for industrial deafness. “How much for Tinnitus?” “What’s my claim worth?” “Can I get compensation?” are all strap lines designed to draw potential claimants towards firms who will act on their behalf and guide them through the process of claiming.
What does this mean for your clients receiving solicitors’ letters alleging Noise Induced Hearing Loss (NIHL)? Businesses being targeted by claims management companies and solicitors include:
- Steel industry
It is often the case that one successful NIHL claim will lead to others as the word spreads. A run of these on a claims experience will have an adverse effect on your clients’ insurance premiums in the future. Whilst the claims are often historic, there is a job to do in tracing the insurer who was the Employers Liability insurer for the business at the time. If your client is unable to trace the historic records or insurers then it may ultimately be their responsibility to handle the claim. Also, if the claimant is still insured, there will be a case to answer for your client.
What advice can you offer your clients facing such claims against them? These claims can and should be defended. The Supreme Court decision in Baker v Quantum Clothing Ltd (2011) is seen as having prevented the floodgates being opened to industrial deafness claims http://ukscblog.com/case-comment-baker-v-quantum-clothing-group-ltd-ors-2011-uksc-17/
In the insurance trade press recently, Aviva are quoted as saying that 85% of NIHL claims fail. There is a suggestion that these claims can succeed because many of them are against companies no longer trading or no documents are able to be traced. Your client should, at the very least:
- Make a full search of their archives to identify their brokers and insurers at the time the claimant was employed and to demonstrate their workplace practices at the time
- Have a solicitor on standby who is well versed in handling NIHL claims to ensure that a robust defence can be deployed
- Question the claimant’s history of exposure to noise
- Challenge the results of noise testing if there is any doubt as to its reliability
- Instruct an engineer to forensically calculate noise levels if similar machinery can be inspected. Historic noise surveys can also be used to ascertain what noise levels may have been in a factory which has since closed down or where machinery has been sold or disposed of.
Use the Employers Liability database to help your clients to trace prior insurers http://www.elto.org.uk/
And of course, today’s risk management will play a major part in preventing losses and showing your client, when placed under scrutiny, as a business which takes its responsibility for the standard of care to its employees seriously. Advise your clients to:
- Assess the risk to employees
- Take action to reduce exposure
- Provide personal protective equipment (PPE) to employees
- Provide training and information to employees
- Maintain records of training, information provided and PPE provided
- Carry out regular health checks
- Understand and manage the legal noise limits
For lots more useful information and advice for your clients on this subject, take a look at the HSE website http://www.hse.gov.uk/NOISE/advice.htm