In any claim for a noise induced hearing loss injury, it is necessary for the Claimant (the person bringing the claim) to prove their case “on the balance of probabilities”. This means that they must persuade the court that their claims about exposure to noise and the cause of their hearing loss are “more likely than not”. This is called the burden of proof.
In order to satisfy the burden of proof, the Claimant and their lawyer will require evidence.
In an industrial hearing loss claim, there are 3 different types of evidence that will be required:
- Evidence on liability
- Medical Evidence
- Engineering Evidence
Evidence on liability
It is necessary to produce evidence that the workplace was noisy and that the employers failed to comply with the Regulations.
Failure to show satisfactory evidence that the workplace was in breach of the various noise induced hearing loss regulations will be fatal for the claim.
The injured person’s own evidence is vital. They will produce a detailed statement describing the workplace and the noise that was present. They will describe how loud it was and what the noise was like. They will give evidence about the volume that was needed to be heard in certain situations and describe any hearing protection and training that was made available.
The Claimant’s own evidence is among the most important pieces of evidence in the whole case.
As well as the Claimant, evidence from colleagues and witnesses who know the workplace will be useful. They can also describe the noise, training, protection and give some confirmation that the Claimant was present as he has described.
Noise surveys and risk assessments must be provided by the employers when an industrial hearing claim is made and these are of great importance, because they help to show whether or not the workplace had complied with the Regulations or not. They provide useful, contemporaneous evidence for the Judge to consider.
Evidence about the hearing protection available at the site will also be useful. Was it up to date? Was it maintained properly? Was the Claimant trained how to use it properly? All of these are requirements of the various noise induced hearing loss regulations and will help the Claimant prove his case.
Expert medical evidence is needed to confirm that the hearing loss is noise induced hearing loss, rather than caused by another factor like age or constitutional factors. An Ear Nose & Throat surgeon will be asked to prepare a report to confirm whether any hearing loss exists and whether it is noise related.
The medico legal expert is independent and must comply with the requirements of Part 35 Civil Procedure Rules.
They will generally need to review the GP records and Occupational Health records in some detail to consider what treatment and information has been provided. The expert will often require an up to date audiogram so that they can consider the frequency of hearing loss and this will help them understand whether the problem is noise related or caused by another factor.
Once the report is complete, it will stand as very important evidence in relation to the causation of the injury. In some situations, the Court will allow both parties to obtain their own medical evidence, but this can only be permitted with the authority of the Judge.
In many cases of noise induced hearing loss, an acoustic engineer may be asked to provide evidence to assist the Judge in deciding the claim. The engineer will consider noise surveys, the claimant's evidence, witness evidence and any other relevant documents provided to estimate the likely levels of noise exposure in the workplace.
The engineer is likely to visit the workplace if it is still operating and will carry out measurements of the noise by standing next to the machine.
Once the engineer has completed the evidence gathering process, they will prepare a detailed report for the benefit of the Court setting out their opinion about the noise exposure that the Claimant experienced. They will form their own conclusions about whether or not the Noise at Work Regulations have been breached. While the Judge is likely to pay great attention to this evidence, they are not absolutely bound to follow it and it is the Judge who will make the final decision, not the expert engineer.
Evidence in industrial hearing loss cases
The evidence required in a claim for noise induced hearing loss is complicated to obtain and complex to follow. It is important that it is prepared by a specialist noise at work solicitor and we encourage anyone who believes that they are suffering from noise induced hearing loss to get in touch with an expert solicitor without delay.