What is Noise Induced Hearing Loss and Tinnitus?
Noise Induced Hearing Loss is the destruction of hair cells within the ears which transmit electrical signals to the brain, enabling us to hear and understand sound.
Noise Induced Hearing Loss may be caused by continuous loud noise exposure over an extended period, or a “one-off” exposure such as an explosion.
The symptoms of Noise Induced Hearing Loss can include the following:-
- Difficulty hearing in the presence of background noise or in a group conversation;
- Difficulty hearing someone talking to you from a different room;
- Having to ask people to repeat themselves and mishearing what people are saying;
- Difficulty hearing on the telephone;
- Difficulty hearing the doorbell;
- Difficulty hearing the tv/radio and requiring the volume to be turned up loud.
Noise Induced Hearing Loss may also be accompanied by Tinnitus; or alternatively Tinnitus may exist on its own.
Tinnitus is frequently described as the experiencing of a noise in the ears which is commonly referred to as a whooshing, ringing, humming or buzzing sound. Tinnitus is often more intrusive in quiet environments and can disturb sleep or prevent sufferers from getting to sleep. Tinnitus can be experienced either constantly or intermittently.
Claiming for Noise Induced Hearing Loss and Tinnitus:
In order to be successful in a claim for Noise Induced Hearing Loss, you must satisfy the following 3 criteria:
- Limitation
- Breach of Duty
- Causation
Limitation
There is a 3 year time limit in which Court Proceedings must be commenced. This 3 year time limit does not however run from the date on which you were last exposed to excessive noise; The 3 year time limit runs from your Date of Knowledge i.e. the first date you considered that you were suffering from a “significant” hearing problem and first attributed this, or ought reasonably to have attributed this to noise at work.
The law is currently such that it deems that a sufferer of a “significant” hearing problem should be “sufficiently curious” to ascertain the cause, and therefore allows a period of “thinking time” of up to approximately 9 months from first noticing a significant hearing problem, in order to seek advice from a GP as to the cause, before the 3 year limitation clock begins to tick.
What constitutes a “significant hearing problem” is sometimes a difficult concept to determine, however the Court has given some guidance on the issue as follows:
- “…. It is to be decided objectively by the Judge applying the standards of the ordinary reasonable man”;
- More than a “minor inconvenience”.
It is also more regularly accepted that a sufferer should ask the open question to their GP: “what is the cause of my symptoms?”, and in the absence of asking this, it is generally assumed that had the question been asked, then the reasonable GP would have enquired as to whether the sufferer had been exposed to loud noise in their employment.
However, frequently sufferers of Noise Induced Hearing Loss will have attended their GP for wax removal procedures, particularly as noisy working environments are often also dirty and dusty working environments causing the ears to become blocked.
If it appears that a claim has been brought outside the 3 year time limit, a Judge may exercise their discretion and allow the claim to proceed, only if they view that in all the circumstances it would be reasonable and just to do so.
Breach of Duty
In order to satisfy Breach of Duty, the Claimant must show that the noise levels they were exposed to breached the Regulations in force at the time of their employment, and that no or insufficient hearing protection, and training and advice regarding the dangers of noise exposure at work, were given.
The main Regulations are as follows:
- Noise at the Worker Publication 1963;
- Code of Practice 1972;
- Health & Safety at Work Act 1974;
- Noise at Work Regulations 1989;
- Control of Noise at Work Regulations 2005.
In a nutshell, prior to the Noise at Work Regulations 1989 coming into force on 1st January 1990, the Claimant had to show exposure to noise levels of a daily average of 90 decibels or above; Since these Regulations were introduced a lower action level of a daily average exposure of 85 decibels at which hearing protection must be available and training and instruction given, and an upper action level of a daily average exposure of 90 decibels at which level hearing protection must be made compulsory to wear and its use actively enforced, have come into effect. The Control of Noise at Work Regulations 2005 which came into effect on 6th April 2006, reduced the first action level to 80 decibels and the second action level to 85 decibels.
Furthermore, if you moved around in your employment i.e. your work station did not remain stagnant for long periods of time, you may be deemed a “peripatetic” worker, and the 1972 Code of Practice introduced specific Regulations to cover workers who were exposed to loud noise which fluctuated and / or on a more intermittent basis.
In order to prove that noise levels breached the relevant Regulations, we will instruct an Acoustic Engineering Expert to prepare a Report confirming the noise levels to which the Claimant was exposed, and whether they constituted a breach of the Regulations in force at the time of the Claimant’s employment.
To give some guidance of what Engineering Experts generally assess noise levels to be by way of a subjective description:
- If you were required to shout at arm’s length distance to be heard, noise levels are generally considered to be 90 decibels or above;
- If you were required to raise your voice at arm’s length distance to be heard, noise levels are generally considered to have been between 85 – 90 decibels.
Causation:
We will instruct an Audiologist and ENT Medical Expert to examine you and prepare a Medical Report in your case, in order to prove that you are suffering from Noise Induced Hearing Loss and / or Tinnitus. Noise Induced Hearing Loss tends to affect certain frequencies of sound and tends to produce a recognisable pattern on the audiogram. Furthermore the Coles Lutman & Buffin Guidelines 2000 and the Lutman Coles & Buffin Guidelines 2016 give guidance to the Expert with regard to concluding the degree of Noise Induced Hearing Loss to which you are suffering from. The ENT Medical Expert will also comment upon whether any treatment is required which can include Hearing Aids and Tinnitus Retraining Therapy.
The second element of Causation is establishing you were exposed to sufficient levels of noise for a sufficiently long period (the period being dependant on the level of noise you were exposed to), in order for the noise exposure to have caused you damage. This element is addressed by both the ENT Medical Expert and Acoustic Engineering Expert from their respective areas of expertise.
How much compensation will I receive if I am successful?
If you are successful in pursuing your claim, you will receive compensation for the following heads of damage / loss:
- General Damages: This is compensation for your actual injuries suffered i.e. pain, suffering and loss of amenity;
- Losses & Expenses: The main head of loss tends to be the future cost of hearing aids. While this head of loss is generally contested by the Defendants, as hearing aids are generally available free of charge through the NHS, we can advance that there can be long waiting lists and that hearing aids through the NHS can be less advanced than those obtained privately, as well as advancing other arguments in support of your claim for hearing aids.
The level of compensation which your claim for General Damages attracts, is determined by the severity of your hearing loss and / or tinnitus, and taking into account your age. Thereafter reference is made to the Judicial Counsel guidelines and case law.
In advising you whether to accept an offer put forward by the Defendant, or the level of an offer to put forward to the Defendant, your Solicitor will also factor in the litigation risks in your case and advise you accordingly.
FAQs
- Can I claim for Noise Induced Hearing Loss if the company I worked for no longer exists?
Yes, providing we are able to identify the company’s insurers by undertaking an Association of British Insurers search.
- What if I have been exposed to loud noise with more than one employer?
We are able to pursue what are known as “multi-Defendant” claims i.e. claims with more than one Defendant employer. However it is advisable to keep this to a reasonable number for reasons of proportionality i.e. generally a maximum of 5 Defendants.
- Will I be charged if I lose the case?
No, providing you have fully co-operated with us and provided us with your honest instructions throughout.
- Will I be charged if I win my case?
If you win your case, we will deduct an amount from your compensation for an ATE Insurance Premium which is a policy taken out by us at the outset of your case to guard you against any adverse costs and disbursements. We will also take up to a 25% success fee in accordance with the Jackson Reforms which affect all claims pursued after 1st April 2013.
- How long will the whole process take?
While litigation can take on average up to 2-3 years to conclude, at Versus Law we pride ourselves on making the process as expeditious and streamlined as possible, setting in place strict time frames by which we will endeavour to meet certain landmarks in your claim, so that you receive the maximum compensation in a short a time as possible.
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