Legal
A proper hearing for noise claims
There has been a resurgence and rise in value of claims for noise-induced hearing loss and tinnitus in the rail industry, with more requests for hearing aids and future
maintenance.Chris Price shows how to exercise good claims management
U
p to the early 1990’s many claims due to exposure were settled under a BR driver’s deafness scheme. And in general, the rail industry incorporates a wide range of work where employees may have been exposed to noise, e.g. footplate operatives, fitters, carriage/wagon repairers and trackside maintenance.
But employers and their insurers are now facing claims for historic exposure brought by employees who were the subject of TUPE transfers, and there is no recourse to BRB (Residuary)1 expired.
was the decision of Harris v BRB (2005). The court found that in respect of shunters, BR’s own medical officer had knowledge that from the mid 1970’s, injury to hearing could arise at levels of 85dB(A) or above. The court found that where a claimant gave anecdotal evidence that his environment was noisy, by
having to shout to communicate, he would not lose by failing to establish the precise noise level. It is incumbent upon employers who
where indemnities have
Breach of duty Until the introduction of the Control of Noise at Work Regulations 1989 it was accepted that an average noise exposure of up to 90 LEP’d in an eight hour period was not likely to damage hearing and no breach of duty would be established. There was no duty to take preventative measures to provide hearing protection until the noise level exceeded 90dB(A). That level was reduced to 85dB(A) with the introduction of the regulations and further reduced by the Control of Noise at Work Regulations 2005. One of the problems for the rail industry
seek to defend breach of duty to produce the noise surveys to demonstrate these noise levels. An employer may seek to rely upon a defence of ‘reasonable practicability’ in situations where it is neither practicable nor safe to use hearing protection because the employee is working among moving traffic or has to hear AWS horns. The employer must demonstrate that it has taken other measures to reduce the noise exposure such as reduction at source or task rotation, and must cite specific evidence of the measures that it has investigated.
Defence tactics Defending historic exposure claims can be difficult, but there are other tactics which can be employed to defend claims as follows:
Establish a cut-off date: if an effective
system for the provision and enforcement of hearing protection can be established, then with suitable evidence upon attenuation levels, it is possible to demonstrate that noise exposure may not have been causative once PPE was being worn and the claim should be dealt with by other employers. Footplate operatives: it is possible to demonstrate that with improvements in rolling stock, noise abatement programmes and withdrawal of noisy classes of locomotives such as 37’s and 47’s, drivers from the 1990’s onwards may only have had occasional exposure above 85dB(A). Although this may not be enough to establish breach of duty or medical causation for that period (see Harris v BRB). Look for potential co-defendants:
Employers can obtain the full employment history from the Inland Revenue. If there are other noisy employers, they could be culpable, particularly if evidence shows provision of PPE only by a recent employer. If they are not entirely culpable, then a pro- rata apportionment upon time exposed basis is available given that NIHL (Noise Induced Hearing Loss) is a divisible condition – i.e. although most significant damage arises in the early years, all continuing exposure is taken to add to the deterioration.
May 2013 Page 39
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