Noise induced hearing loss Rise in claims | Risk info | Large | Business | Zurich Insurance

Noise induced hearing loss: A history of the rise in claims

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The Jackson Reforms, which removed the recoverability of success fees and ATE insurance premiums from personal injury claims and introduced the Low Value Protocol for Employers' Liability and Public Liability claims, also fixed costs for claimants' solicitors' handling lower value injury claims.

It should be no surprise that, when faced with a significant reduction in fee income from injury claims, many claimants' solicitors have turned their attention to areas of injury work which do not fall within the fixed costs regimes, and for which they can seek to recover higher levels of legal fees.

Multi-defendant disease claims fall outside the scope of the Low Value Protocols and attract costs calculated on the hours spent x hourly rate basis. Noise induced hearing loss (NIHL) claims fall within this area, and the recent increase in claims in this field illustrates the change of focus for claimant firms.

Examples of cases

By way of example, the average costs recovered by claimants' solicitors for an industrial deafness claim last year was £10,500, compared with £500 for a whiplash claim settled through the Claims Portal. As the average compensation award for an industrial deafness claim was £3,100, for every £1 an insurer pays out in compensation to the claimant, they pay out just over £3 in legal fees to the claimant’s lawyers.

As the graph below illustrates, the number of new NIHL claims notified to insurers in 2013 hit a staggering 90,000, and despite a fall to 70,000 in 2014, future levels are anticipated to rise again.

GIRO Stats

The Health and Safety Executive has indicated that there may be 1,000,000 – 2,000,000 potential claimants who have developed noise induced hearing loss. By 2031, it is predicted that 14,500,000 people in the United Kingdom will have developed loss, which begs the question as to how many of them suffer it as a result of exposure to noise?

Whilst the level of claims presented is significant, how many claimants have been lured in by cold calling and the marketing campaigns of the claims management companies and claimants' solicitors? How many have developed hearing loss as a consequence of exposure to noise, rather than due to the natural ageing process, presbyacusis?

Over the last four years, alongside the significant spike in claims volumes, the level of claims repudiated and closed with no payment of damages or costs to the claimant has been in the region of 80%.

Analysis of evidence

Through analysis of the medical evidence on which claimants rely, and the retention of data on the solicitors who represent them (and the audiologists and experts who prepare the medical reports on which they rely), insurers and their solicitors can challenge claims at an early stage, enabling a significant proportion to be defeated.

With the availability of records including historic noise surveys, occupational health records and other documents such as memos on the issuing and use of hearing protection, claims can be defeated on the basis that employees were not exposed to excessive noise, even where employment with other businesses has caused noise induced hearing loss.

Whilst the receipt of a claim for noise induced hearing loss may be a nuisance, and there is often a temptation to settle the claim through paying a limited sum (although the costs payable will often increase the total sum paid significantly), we must bear in mind the fact that the claims management companies and solicitors pursuing claims will often target their marketing at potential claims against 'soft touch' employers which have paid claims in the past.

The retention of documents including noise surveys, risk assessments, records of the provision of PPE and enforcement of its use, minutes of meetings at which noise levels were discussed, training, personnel and occupational health records, can prove vital in defending claims which, without the records, would otherwise be paid.

Whilst the TUC and Association of Personal Injury Lawyers assert that there is no compensation culture, instead it being a myth of perception (The Compensation Myth, March 2014), the behaviour of claimants' solicitors and their clients in the pursuit of claims for noise induced hearing loss supports the view that the claims culture exists, a belief reinforced by the fining of The Hearing Clinic for speculative cold calling. However, through the careful retention of evidence, employers should be well placed to defend and defeat these claims.

For further information please contact:

David Williams
T: +44 (0) 113 251 4844