The Sound of Injustice?

For many years workers have been exposed to excessive levels of noise from their employers, resulting in permanent and lasting damage to their hearing. By means of recourse, claimants are able to recover damages for that exposure, subject to establishing Liability against their former employer(s) (responsibility for any hearing loss), Limitation (the three years within which to bring their claim) and medical causation.

The latter has become increasing relied upon by defendants as a means of defending such cases. A diagnosis of noise induced hearing loss
is often made by medical experts based upon the “Guidelines on the Diagnosis of Noise-Induced Hearing Loss for Medicolegal Purpose Coles”, R.R.A., Lutman, M.E. and Buffin, J.T. (2000) (‘the Guidelines’). These Guidelines were intended to be introduced not a strict means of diagnosis but as a diagnostic tool used to assist with such a diagnosis.

The Guidelines comprise of a number of typical characteristics one might expect to see where noise damage has occurred. In brief, these are;

• Demonstrating a high frequency hearing impairment;
• Exposure to hazardous levels of noise;
• An identifiable high frequency audiometric notch or bulge within the claimant’s audiogram.

It is increasingly the case that were the claimant does not demonstrate a “textbook” case of noise damage as set out in the Guidelines, defendants are simply not willing to consider settlement. This absolute reliance upon these Guidelines by defendants is now seemingly denying many claimant’s from recovering the compensation owed to them from their former employer(s).

As human beings, we are all different is almost every respect. One’s hearing is no different. Exposure to excessive noise affects each person differently and no audiogram is likely to mimic another, despite potentially working alongside a colleague for many years. An individual’s susceptibility to excessive noise levels is not dealt with by the Guidelines.

The Courts are also now placing a similar reliance upon the Guidelines which in turn means that medical experts are increasingly bound to do so. Should experts fail to consider and apply the Guidelines, they are placing their professional reputations on the line. In practical terms this means that there is a risk that an even stricter approach to the application of the Guidelines being applied in future case law.

The current application of the Guidelines is having a significant impact on claimants’ potential claims against their former employers. Claims that appear to have a strong basis for noise induced hearing loss are failing as medical causation cannot be established owing simply to the defendants’ absolute reliance upon the application of the Guidelines and their confidence in the Court to uphold their views.

The claimants’ recovery of damages for their loss of hearing must be the paramount concern and not inadvertently assisting insurers from paying damages in respect of perfectly legitimate claims. With this in mind, we consider that this arbitrary reliance on the Guidelines by both the defendants and the Court needs to be relaxed.

Only time will allow us to assess whether this is an area in which developments will continue, seemingly, to favour defendants or if an alternative approach can be adopted.

We continue to pursue such claims and work towards convincing defendants, and the Court, that claimants have indeed suffered a noise induced hearing loss even in cases where the Guidelines have not been met.