Up to the early 1990’s many claims due to exposure were settled under a BR driver’s deafness scheme. And in general, the rail industry incorporates a wide range of work where employees may have been exposed to noise, e.g. footplate operatives, fitters, carriage/wagon repairers and trackside maintenance.
But employers and their insurers are now facing claims for historic exposure brought by employees who were the subject of TUPE transfers, and there is no recourse to BRB (Residuary)1 where indemnities have expired.
Breach of duty
Until the introduction of the Control of Noise at Work Regulations 1989 it was accepted that an average noise exposure of up to 90 LEP’d in an eight hour period was not likely to damage hearing and no breach of duty would be established. There was no duty to take preventative measures to provide hearing protection until the noise level exceeded 90dB(A). That level was reduced to 85dB(A) with the introduction of the regulations and further reduced by the Control of Noise at Work Regulations 2005.
One of the problems for the rail industry was the decision of Harris v BRB (2005). The court found that in respect of shunters, BR’s own medical officer had knowledge that from the mid 1970’s, injury to hearing could arise at levels of 85dB(A) or above. The court found that where a claimant gave anecdotal evidence that his environment was noisy, by having to shout to communicate, he would not lose by failing to establish the precise noise level.
It is incumbent upon employers who seek to defend breach of duty to produce the noise surveys to demonstrate these noise levels. An employer may seek to rely upon a defence of ‘reasonable practicability’ in situations where it is neither practicable nor safe to use hearing protection because the employee is working among moving traffic or has to hear AWS horns. The employer must demonstrate that it has taken other measures to reduce the noise exposure such as reduction at source or task rotation, and must cite specific evidence of the measures that it has investigated.
Defending historic exposure claims can be difficult, but there are other tactics which can be employed to defend claims as follows:
Establish a cut-off date: if an effective system for the provision and enforcement of hearing protection can be established, then with suitable evidence upon attenuation levels, it is possible to demonstrate that noise exposure may not have been causative once PPE was being worn and the claim should be dealt with by other employers.
Footplate operatives: it is possible to demonstrate that with improvements in rolling stock, noise abatement programmes and withdrawal of noisy classes of locomotives such as 37’s and 47’s, drivers from the 1990’s onwards may only have had occasional exposure above 85dB(A). Although this may not be enough to establish breach of duty or medical causation for that period (see Harris v BRB).
Look for potential co-defendants: Employers can obtain the full employment history from the Inland Revenue. If there are other noisy employers, they could be culpable, particularly if evidence shows provision of PPE only by a recent employer. If they are not entirely culpable, then a pro-rata apportionment upon time exposed basis is available given that NIHL (Noise Induced Hearing Loss) is a divisible condition – i.e. although most significant damage arises in the early years, all continuing exposure is taken to add to the deterioration.
Issues of medical causation: All historic audiograms should be carefully analysed. The rail industry has benefited from health surveillance providing hearing tests. Bilateral noise exposure is taken to cause bilateral hearing loss. If there is an asymmetrical pattern of hearing loss, that would be indicative of some other cause of the hearing loss (Cran v Perkins Engines Ltd 2013).
Bilateral nerve damage: The vast majority of cases of occupational deafness have bilateral nerve damage, producing a certain audiometric profile demonstrated by a ‘notch’ between 3 and 6 kHz, which classically rises at 4khz. This should be repeated over a series of audiograms. There should be a recovery of at least 10dB. If not there could be constitutional causes e.g. age associated loss (vascular disorders, infections), presbyacusis (cellular deterioration of cells in inner ear and auditory nerve) and conductive loss.
Deterioration: Compare the historic audiograms. If there has been no deterioration in recent years it may be possible to fix culpability with an earlier employer. Obtain the service history from BRB (Residuary) as some claimants may already have received compensation for exposure up to the early 1990’s. They must then demonstrate a deterioration caused by noise thereafter, as opposed to presbycusis which is often difficult to establish with improvements in operating conditions and provision of PPE.
Burden of proof
Finally, the rail industry should be aware of limitation and the date of knowledge. The Limitation Act 1980 means claims of this type must be brought within three years of the date of knowledge that the claimant first became aware that the injury was significant and was attributable in whole or in part to workplace exposure. Claimants will attempt to suggest they only recently became aware of the diagnosis for the claim upon receipt of a medico-legal report.
The burden of proof to establish an earlier date of knowledge rests upon the defendant, who should seek disclosure of medical records and O/H (occupational health) files. The key test is to show that the claimant has visited his GP or O/H and has received advice upon hearing loss/tinnitus that symptoms may be attributable to workplace exposure. It is sufficient if the conclusions demonstrate a real possibility that work may be the cause so as to require the claimant as a reasonable man to be curious to seek a further diagnosis. The records may contain a contradictory account to what is advanced by the claimant. If the audiograms show that there has been no deterioration in the hearing for say 10 years and the noise exposure ceased in a similar timeframe, the claimant will struggle to justify why his condition is now ‘significant’ when it wasn’t before.
The claimant may ask the court to exercise discretion under section 33, in which the court has a discretion to disapply the limitation period and allow the claim to proceed. Certain criteria have to be fulfilled and the burden is on the claimant to justify his delay. If there is evidence of forensic or evidential prejudice to the defendant, the discretion will not be exercised. The tactics discussed above can be put forward to the court by defendants to demonstrate evidential prejudice and support a defence that the claim should be statute barred.
While there is a risk of these types of claims increasing, it is possible with good claims management to deter and defend against these claims.
1 The remaining functions of the British Railways Board are now discharged by BRB (Residuary) Ltd. The company is owned by the government and reports to the DfT. As a residuary body, the company is responsible for discharging a variety of functions, including obligations in respect of liabilities acquired by British Rail as a major employer over nearly half a century and as a direct result of the privatisation process.
Chris Price is a partner in the Insurance Division at Langleys solicitors www.langleys.com