Legal Issues of medical causation: All historic
audiograms should be carefully analysed. The rail industry has benefited from health surveillance providing hearing tests. Bilateral noise exposure is taken to cause bilateral hearing loss. If there is an asymmetrical pattern of hearing loss, that would be indicative of some other cause of the hearing loss (Cran v Perkins Engines Ltd 2013).
Bilateral nerve damage: The vast majority of cases of occupational deafness have bilateral nerve damage, producing a certain audiometric profile demonstrated by a ‘notch’ between 3 and 6 kHz, which classically rises at 4khz. This should be repeated over a series of audiograms. There should be a recovery of at least 10dB. If not there could be constitutional causes e.g. age associated loss (vascular disorders, infections), presbyacusis (cellular deterioration of cells in inner ear and auditory nerve) and conductive loss. Deterioration: Compare the historic
audiograms. If there has been no deterioration in recent years it may be possible to fix culpability with an earlier employer. Obtain the service history from BRB (Residuary) as some claimants may already have received compensation for exposure up to the early 1990’s. They must then demonstrate a deterioration caused by noise thereafter, as opposed to presbycusis
which is often difficult to establish with improvements in operating conditions and provision of PPE.
Burden of proof Finally, the rail industry should be aware of limitation and the date of knowledge. The Limitation Act 1980 means claims of this type must be brought within three years of the date of knowledge that the claimant first became aware that the injury was significant and was attributable in whole or in part to workplace exposure. Claimants will attempt to suggest they only recently became aware of the diagnosis for the claim upon receipt of a medico-legal report. The burden of proof to establish an
earlier date of knowledge rests upon the defendant, who should seek disclosure of medical records and O/H (occupational health) files. The key test is to show that the claimant has visited his GP or O/H and has received advice upon hearing loss/ tinnitus that symptoms may be attributable to workplace exposure. It is sufficient if the conclusions demonstrate a real possibility that work may be the cause so as to require the claimant as a reasonable man to be curious to seek a further diagnosis. The records may contain a contradictory account to what is advanced by the claimant. If the audiograms show that there has been no deterioration in the hearing for say 10 years
and the noise exposure ceased in a similar timeframe, the claimant will struggle to justify why his condition is now ‘significant’ when it wasn’t before. The claimant may ask the court to
exercise discretion under section 33, in which the court has a discretion to disapply the limitation period and allow the claim to proceed. Certain criteria have to be fulfilled and the burden is on the claimant to justify his delay. If there is evidence of forensic or evidential prejudice to the defendant, the discretion will not be exercised. The tactics discussed above can be put forward to the court by defendants to demonstrate evidential prejudice and support a defence that the claim should be statute barred. While there is a risk of these types of
claims increasing, it is possible with good claims management to deter and defend against these claims. 1 The remaining functions of the British Railways Board are now discharged by BRB (Residuary) Ltd. The company is owned by the government and reports to the DfT. As a residuary body, the company is responsible for discharging a variety of functions, including obligations in respect of liabilities acquired by British Rail as a major employer over nearly half a century and as a direct result of the privatisation process. Chris Price is a partner in the Insurance Division at Langleys solicitors
www.langleys.com
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May 2013 Page 41
Railcar Lifting Jacks
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