For the majority of us, hearing loss is a natural occurrence that develops with age. For those who work in environments involving prolonged exposure to high noise levels, hearing loss becomes a far more serious issue.
The severity of the Noise Induced Hearing Loss (henceforth NIHL) can be life-changing, and therefore individuals are entitled to Employers’ Liability.
The first major UK publication on hearing loss in the work place was released in 1963 by the Minister of Labour, titled Noise and the Worker1. This made employers aware of the dangers of excessive noise, and advised on what procedures were needed to protect workers from this exposure, but it wasn’t until 1989 that legislation was implemented. This legislation enforced two levels, measured in decibel exposure, at which employers must take action:
- 1st action level: Exposure to 85-90dB – It is the employer’s duty to reduce the noise risk.
- 2nd action level: Exposure to 90+dB – It is the employer’s duty to ensure workers wear protection and signs must be up.
These levels were adjusted in 2005:
- 1st action level: Exposure to 80-85dB – It is the employer’s duty to reduce the noise risk.
- 2nd action level: Exposure to 85+dB – It is the employer’s duty to ensure workers wear protection and signs must be up.
The severity of sound exposure differs depending on the circumstances. A typical nightclub experiences 110dB of noise, whereas a loud pub and normal conversation bear 90dB and 50dB respectively. A profession in which severe exposure to loud noise is endured is the armed forces, with peak levels from jet engines and weapons systems reaching over 140dB.
NIHL claims are the most abundant of the disease claims received by insurers. These are latent claims because they become apparent around the age of 60-65. The UK insurance industry is currently paying £70 million2 per year in deafness related claims. The average cost per claim is approximately £12,000, of which £9,000 goes to solicitors’ fees, and only £3,000 is paid in damages to the claimant. A recent reform in UK legislation is in part inspired by the huge proportion of claims that are paid in legal expenses.
Reforms were implemented on 1 st April 2013 to address the issue of disproportionate costs in civil litigation. The aim was to rebalance the cost liabilities between claimants and defendants without reducing access to justice. The Legal Aid Sentencing and Punishment of Offenders (LASPO) Act is one of the implemented reforms. It applies to all new hearing loss claims that are accepted by claims management companies after the 1 st April 2013 and enforces that success fees are no longer recoverable from losing defendants, which for deafness claims are typically 62.5%. Solicitors’ fees are now paid through claimants’ compensation, with general damages pay-outs being uplifted by 10% to help fund the cost. Resulting expenses incurred by insurers are expected to fall, because the saving from third party success fees is predicted to outweigh the 10% uplift on pay-outs.
Future of NIHL
Eventually claims management companies may find this line of business unprofitable, but currently many claims are still being dealt with that were notified prior to the new legislation. The number of claims can be influenced by other organisations too, such as trade unions, through their networking ability to make their members aware together with support and encouragement to file a claim. The future NIHL claim trend is still uncertain and will need to be monitored carefully.
1Noise and the Worker published in 1963 by the Health and Safety Executive
2Source: UK Deafness Working Party Update