The insurance industry seems completely unable to accept that a higher number of industrial deafness claims is simply that. Instead, insurers are crying out that there must be an injustice (to them) and reforms must be made to stop their profits from dwindling.
Industrial deafness is a preventable disability: from the 1960s, steps were taken by the Government to warn employers and insurers that excessive noise causes injury. In 2006 further regulations came in to provide greater protection. Clearly the problem had not gone away.
There is no doubt that there has been an increase in the number of these claims. In 2005 the Health and Safety Executive published figures showing that more than a million people were exposed to noise levels above what is recommended. Insurers’ own statistics show that by 2012 over six million people had suffered hearing loss, and this is predicted to increase to over seven million by 2020.
There is no single reason for this increase, but a combination of factors should be taken into account.
- The increase in job mobility in the last 30 years means that claims are now more often brought against more than one former employer whereas previously cases were more likely to be brought against a single employer.
- Those born in the baby boomer years are just getting to the age of mid-60s when typically industrial deafness is noticed.
- Furthermore, they all entered employment in the 1960s just as the industry was fixed with culpable knowledge that excessive noise lead to this injury.
A claim is always put to a former employer, but it is actually the insurer at the time of exposure who pays compensation. Insurers would have assessed the risk of claims being made at the time and collected a premium. It is these same insurers who are now criticising people who come forward to find out if their employers caused their industrial deafness.
The suggestion that lawyers’ fees are out of proportion to the work done on these cases is a total disregard of the complexities of these claims.
A lot of work is needed to get cases off the ground and this must be done before the three year time limit prevents a claim from succeeding. That’s three years from when the injured person ought to have known he has industrial deafness, not three years from making a claim. On taking a client on it is necessary to obtain and review medical records, occupational health and personnel records (once you’ve ascertained if they are or are not available) an audiogram and medical report. You need to find the insurers of all former employers at the time of employment, obtain witness statements and then an engineer’s report. All this has to be done virtually at the same time.
Co-operation from defendants is required if you are to get documents from them, or indeed just confirmation there are documents at all. This can be difficult, especially when there are several defendants involved, and proceedings will inevitably result when there is a lack of communication from the defendants or a reluctance to deal with the issues.
The Association of British Insurers says that many claims are fraudulent. How likely is this, given it is extremely difficult to fake an audiogram test and no claimant solicitor wants to run or can afford to run a case that is not likely to succeed let alone where the claimant appears untrustworthy?
And even if a claim fails, it does not mean that there wasn’t good reason for seeking legal advice. As I said, these claims are complicated. It takes a medical opinion to confirm you have industrial deafness as there are other factors that can play a part in hearing loss, such as age. Liability issues are difficult to prove given the passage of time which has often elapsed and it is still necessary for the claimant to prove his case and this burden weighs heavily on the claimant’s legal representative. Trying to prove exposure to noise from years ago is not an easy task.
The insurers need to shoulder the responsibility that they took on when they were paid handsomely by employers for the risk of these claims. The risk of industrial deafness is as real today as ever before.