A second bite of the cherry - claims for noise exposure below 85dB

Date published

18/07/2018

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‘Occam’s razor’ is the logic of the 14th century Franciscan Friar, William of Occam. It means that the more assumptions you have to make, the more unlikely an explanation is. It is doubtful that William had the defence of low level exposure noise induced hearing loss claims in mind during his studies, but it captures perfectly the difficulties claimants still face when pursuing such claims.

As the current wave of NIHL claims continue to dwindle, is it likely that claimant solicitors shall look towards claims of noise exposure below 85dB as a new revenue stream? I believe not, having acted for one of the defendants in the 2007 Nottinghamshire & Derbyshire Group Deafness Litigation (Group Litigation). In those cases the claimants failed to establish liability in cases of noise exposure below 85 decibels (dB (A)). As will be shown, the common law rules that it established and the principles arising from that litigation still hold good.

Background

700 cases were litigated by former textile workers, employed before 1990, allegedly deafened by noise from sewing machines operated in factories. The noise levels were below 85dB (A). It was the claimant’s case that although the 1963 Noise and the Worker publication and the 1972 Code of Practice recommends a limit on noise exposure in the workplace of 90dB(A), this could not guarantee the absolute safety of every individual due to the wide variations in individual susceptibility.

A risk was alleged to have arisen from noise levels at or above 80dB (A) based on the 1973 National Physical Laboratory Tables. These statistical tables predict the level of age related hearing loss for the population by age and sex. It was clear however from the findings in the Group Litigation, that the incidence of hearing damage from exposures below 85dB was based solely upon a statistical extrapolation from higher levels of noise exposure. There was no evidence available to show actual damage being caused by noise exposure between 80 to 85dB (A).

The claimant’s cases were dismissed at trial. Upon breach of duty Judge Inglis, found that the risk of any identifiable hearing loss from noise below 85dB was very low. The duty of care owed by an employer in an industrial deafness claim was not absolute, it was not to eliminate all risk, but limited to that which was a real risk of injury. Since the risk of injury from exposure to noise below 85dB (A) was only identifiable in a statistical sense, no liability at common law arose. Of course under the Control of Noise at Work Regulations 2005, the first action level now commences at 80dB(A). However the findings in the Group litigation highlight that there appears no logical basis for the action level being so low.

In respect of causation Inglis J stated that the criteria for the diagnosis of NIHL in low level exposure cases had to be robust. Noise exposure between 80 and 85dB (A) did not prevent a finding of NIHL, because such loss was possible in the most sensitive percentiles of the population, but the more exposure fell below 85dB the less likely a diagnosis could be made.

Only one of the test cases within the Group Litigation, Baker v Quantum Clothing [2011] found that the claimant had suffered hearing loss due to noise exposure. The claim was still dismissed albeit on a different basis, being that her employer had not committed any breach of the common law or statutory duty.

Comment

If a floodgate of noise claims for exposure below 85dB does materialise then William's theology may yet come to the defendant’s rescue. The risk of injury from exposure below 85dB (A) is a mere statistical extrapolation. Although a breach may now attach under the 2005 Regulations, the claim should still fail upon causation, since the assumptions required to make a diagnosis of NIHL are too great.

Read other items in the Occupational Disease Brief - September 2018