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Hearing Loss Claim: Appeal Upheld Fourteen Years After Diagnosis

Hearing loss
15th December 2014

An appeal court recently ruled in favour of a former British Rail (BR) engineer who only entered a personal injury claim for significant noise induced hearing loss fourteen years after being diagnosed with the condition.

The former engineer, aged 76, was employed at the BR Crewe works between 1953 and 1988, but after reading an article on noise induced hearing loss claims nine years later, began to question whether his profound deafness was likely the result of 35 years of working in a noisy industrial environment. However, following a diagnosis in 1997 it wasn’t until 2011, that a claim was entered against his former employers.

A key difficulty of the case involved the limitation period for making a claim for noise induced hearing loss, which is three years from either the date on which the cause of action became evident or the “date of knowledge” (if later) of the person with an injury.

Suffering repeated problems with his hearing the retired engineer had made at least a dozen medical visits between 1982 and 2011, and following a complaint of tinnitus in 1997 was referred to an Ear, Nose and Throat specialist. When asked at the consultation whether he had worked in a noisy environment the retired engineer replied that he had, but “he did not ask whether his problems were caused by exposure to noise and his doctors did not volunteer that information.”

“Unreasonable to expect him to be curious about the cause...”

At the initial hearing the judge found that the 'date of knowledge' was 2011 because the claimant “did not have actual knowledge that the hearing loss was noise induced until he read a newspaper article on the topic in 1997. However, at the court of appeal, the judge considered “whether it would have been reasonable for the claimant to have asked his doctor about the cause of his tinnitus and deafness in 1997”, especially as it was shortly expected to be confirmed that his tinnitus and deafness were at least partly noise induced at that time.

The court of appeal also took into consideration that the claimant had consulted the medical profession with the relevant knowledge of his condition on no less than twelve occasions and had not specifically questioned their judgment.

Consequently, the court decided that the claimant “did not have knowledge of the attributable cause of his condition until less than 3 years before he commenced proceedings”. The judge ruled that neither the fact that the claimant had been “retired nine years or had suffered multiple ear and hearing problems over the previous years suggested that the circumstances made it unreasonable to expect him to be curious about the cause of these unpleasant symptoms.”

Stress In The Workplace: Employers Fail In Their Duty Of Care

Nearly a half of employee illnesses in the workplace are related to “stress, depression or anxiety”, according to new research by the Health and Safety Executive(HSE). Employers are being reminded that they also have a ’duty of care’ to safeguard the mental health of their workforce as HSE also reveal that more than 1.2 million employees suffered from some form of illness during the last 12 months.

Recognised as a potential killer, stress is also known as one of the underlying causes for accidents and injuries, which occur in the workplace. In 2014, more than half a million workers developed a new ailment, of which just over a third were ‘musculoskeletal’, such as back, shoulder or neck injuries.

15 days off work

Of the 77,593 non-fatal injuries reported by the HSE survey, nearly 30 per cent of the most common type of accident were ‘slips and trips’ and nearly 25 per cent resulted from handling, lifting or carrying. The average time an employee was off work due to of injury or illness was just over 15 days. While 4.7 million days were lost as a result of injury, five times more (23.5 million days) were lost due to illness.

In the latest TUC survey, conducted every two years, stress has also been cited as the top concern in the workplace, similarly followed by related problems including, overwork, back strains, slips and trips and falls. A recent YouGov poll found that two in three people admitted that their workloads had increased over the last 12 months or more and one in three said they are expected to do unpaid overtime.

A seven per cent rise in the annual number of admissions to hospitals of those aged 18 to 60 for work-related stress was reported in September 2012, the latest available figures from Health and Social Care Information Centre (HSCIC).