A claimant who worked as a ‘tunneller’ for 37 years (from 1987 to 2006), brought a claim for noise induced hearing loss. He alleged that during his employment, working at sites throughout the UK with jobs lasting from two to three months to two to three years, he had been exposed to excessive noise. The claim was issued against 19 defendants.

After an initial assessment of the claim and its prospects, BLM took the view that limitation was a serious issue which needed to be addressed first and foremost. Following resistance from the claimant, BLM succeeded in persuading the court to determine at a preliminary hearing:

  • Whether the claim was statute-barred on the grounds that it has been brought outside the limitation period under section 11 of the Limitation Act 1980;

  • Whether there should be an order under section 33 of the Limitation Act 1980 to disapply section 11.

Following the directions the field of defendants quickly whittled down to eight; some defendants received discontinuances and others made low economical offers to dispose of the matter swiftly.

BLM’s case on limitation was that:

  1. Employment was from 1994-1997;

  2. Following Part 18 Requests the claimant conceded that he had been provided with hearing protection when employed by the client (albeit only for a short period); this had been inconsistent with evidence elsewhere and went to the heart of cogency of the claimant’s own evidence;

  3. BLM had documentation showing that a noise conservation programme was in place throughout the claimant’s employment with them. It was also evident that further documentation (such as occupational health records and noise surveys) was no longer available but had existed.

Given this, there was a clear dispute of fact as to whether and to what extent the claimant was exposed to noise and/or the extent to which the employer took any steps to either measure the levels of noise, or otherwise thereafter to provide their employees with appropriate hearing protection. Further, the overwhelming likelihood was that the passage of time had affected the availability of evidence.

The claimant’s medicolegal expert, Mr. Martin suggested a NIHL element of 39.33dB. This is a significant level of hearing loss, well above the 20-25dB which might be argued a level at which someone could start to notice hearing loss. While the age-associated hearing loss would have been marginally less in 2006, when the claimant stopped the alleged noisy work, it was overwhelmingly likely that by that date he would have been aware of hearing impairment. It was also noted that the claimant was aware that he had worked in loud noise without protection.

Specifically in terms of knowledge, BLM argued that the claimant knew:

  • he had worked in excessive levels of noise;

  • he had been provided at various points of his employment with ear defenders to protect his hearing from that noise, but not (on his evidence) for most of that time;

  • he had experienced temporary hearing threshold shift at the end of a day’s work;

  • his hearing had been tested by employers; and

  • that there was no other obvious cause for hearing impairment at a comparatively young age.

In his Part 18 responses, the claimant also accepted that he had undergone audiometry with a co-defendant in 2002 (who was initially involved in the proceedings, but the claimant subsequently discontinued those proceedings). The claimant stated that “he was advised he was fit to work and there was no problem with his hearing”. If that was correct and that is what that audiogram showed, then his claim against employers prior to 2003 would be hopeless. That audiometry was deemed to be destroyed in circa 2013. It was argued by BLM that this was a significant prejudice, in that it would have been the most crucial audiogram being closest to cessation of the alleged exposure.

The trial took place in March 2017 and the court considered evidence from the claimant and eight defendants.

A lengthy judgment was handed down, but in summary:

  1. The court accepted that by July 2013 the limitation period had expired. Therefore, in the absence of section 33 the claim was statute-barred;

  2. In considering discretion, the trial judge considered various factors, namely:

    • Proportionality: it was noted that considerations of proportionality included the potential size of the claim, costs of running it and strength of the claim. On the other hand, where a claim is small, the costs may show it less likely to be proportionate to grant discretion

    • The statutory checklist under Section 33 of the Limitation Act. To that end, the trial judge felt that the overall delay and cogency of the claimant’s own evidence had been wholly undermined. He considered the absence of the 2002 audiogram one stand-out item of particular prejudice. There was no doubt, in the court’s mind, that there had been prejudice to the defendants.

The trial judge held that it would not be just and equitable to disapply the limitation period in the circumstances. As the matter was funded by a pre-QOCs agreement, costs were awarded to the defendants.

What this means for you

Limitation remains a useful tool in a defendant’s kitbag when dealing with claims for NIHL. However, it requires careful investigations and analysis of the evidence, as well as a detailed understanding of how to apply the law to that evidence. Investigations do not just relate to what evidence the insured has, but also to potential evidence that has been lost/destroyed elsewhere.