Hearing Loss and Tinnitus claims procedure

Tinnitus and hearing loss can be as a result of working in loud environments. Is it possible to recover damages against a past employer if this link can be proven? To make a claim it would be under the form of negligence.

Like any such claim, you need to prove 3 separate parts to succeed in the claim. These are as follows:

• That your employer owed you a duty of care
• That the employer has breached the duty owed
• The breach has caused the damage

It is worth looking at each of these parts in turn:

• That your employer owed you a duty of care

Generally, it is accepted as common law that an employer has a duty to employees. They have duties to ensure that a safe place of work and to ensure they take reasonable care of their employees.

An employer will also have statutory duties set down by legislation in order to protect working conditions. Therefore, if you believe that noise exposure was during past employment, it is a long-established principle that there would be a duty of care in existence.

But what if you were self-employed or a contract worker would you still be owed a duty? Although the duties may not be as high as with an employer/employee relationship, the duty will still be there as you will be seen as a neighbour in law, which was a principle laid down in the case of Donogue v Stevenson ( 1932).

In the matter of Magerson and Hancock v JW Roberts limited, it was held that people who lived close to an asbestos factory satisfied this ‘neighbour in law’ test.

• That the employer has breached the duty owed

The extent of the duty will be what is reasonably foreseeable.  In essence, this means that a duty will only be breached if at the time the alleged breach took place, it should have been known that such breach could cause damage. If, it can be argued that it could not have been known that damage could occur, then breach may not have occurred.

In respect of noise exposure claims, it is commonly accepted that with the publication of ‘Noise and the Worker’  in 1963, knowledge of foreseeability would attach and as such breach would occur from 1963 onwards.  In the case of Thompson v Smiths Ship Repairers (North Shields) Limited, it was held that after 1963 employers should have acted.

It is not uncommon in these type of actions that the alleged noise exposure occurred many decades before the problem becomes noticeable. Generally, therefore – to prove that the levels of noise exceeded the required levels, an Acoustic Engineer will be instructed to produce a report of the likely noise levels.

The Acoustic Engineer will consider all evidence and information that is available to produce his report. The report and the instruction of the same is something that your instructed solicitor would deal with to assist with your claim.

• The Breach has caused the Damage

Once you have established the above, the final hurdle to succeed in a negligence claim for noise exposure is to show that the symptoms suffered (tinnitus and hearing loss) are as a result of the breach.

The link to noise exposure is only required to be shown on the balance of probabilities, which means it only has to be shown that it is more likely than not due to noise exposure. If it can be shown therefore being at least 51% likely that the loss is due to noise, this burden will have been proven.

To prove this burden, a medical expert would be instructed (normally an ENT consultant) who after considering the exposure described and the results of a hearing test, would give their diagnosis as to whether the loss is due to noise exposure. If they believe that the tinnitus and hearing loss is as a result of noise exposure, you have proven this part of your claim.

So,  if you can satisfy all the parts of the claim as above, what can you actually seek to recover damages for? Briefly, the common types of heads of damages you can recover in these types of cases are as follows:

• General Damages (Pain, suffering, loss and amenity) – this is the element of compensation for the tinnitus and hearing loss itself. The value of this part of the claim will highly depend on the medical experts’ diagnosis, and can vary from a few thousand pounds to a maximum of £20,000-£35,000. This figure will depend on how severe your tinnitus symptoms are and the level of hearing loss you are suffering.
• Cost of Hearing Aids – it is not uncommon in these types of claims for medical experts to find that the need for hearing aids has been increased. Generally, a cycle of hearing aids will last 5 years, so if for example a medical expert says that you would benefit from hearing aids 10 years earlier than you otherwise would, then you can potentially claim for 2 cycles of hearing aids.

If you believe your tinnitus and hearing loss result from exposure to noise at a previous employer, get in touch today.

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For a free initial consultation, call our expert team on 0113 200 9787, or contact us via webchat or the form on this page to discuss how we can help you.

Article by: Tim Fieldhouse