Mr M was awarded £4,707.20 following exposure to loud noises while working in the construction for more than 30 years.

The Case

Mr M contracted noise-induced hearing loss after having spent more than 30 years working in the construction industry. He had been employed as a general foreman by one company for 33 years and it was only when he retired in 2008, that the symptoms of his hearing loss and tinnitus became fully apparent. After his family began complaining about Mr M’s deafness and the fact that he would turn the television up too loudly, Mr M became concerned about his hearing. Mr M contacted JMW to make a claim against his previous employers and had his case taken on by Abigail Morrison, an associate specialising in industrial disease claims.

The Claim

We took a witness statement from Mr M in which he stated that he had worked with loud manual equipment, including pneumatic drills, tracker pavers and rollers, for his entire working life. Mr M had worked for four employers in the construction industry, but it was against his most recent employer that we were seeking damages. Despite working in a consistently noisy environment, employees at this firm were only offered protective equipment in the last few years that Mr M had worked there, leaving decades over which Mr M’s hearing had been damaged.

We arranged for a medical expert to assess Mr M. The medical expert said that Mr M’s hearing loss was a combination of ageing and exposure to noise and that his tinnitus was most probably also due to exposure to loud noise. The expert also stated that Mr M would require hearing aids 10 years earlier than he would have done, had he not been exposed to loud noise over the duration of his career.

Approaching the Defendant

In approaching the defendant, we ran into some difficulty. The company’s current insurers had only been acting for the defendant for the last three years and were unable to locate more than one year’s insurance cover for previous years. We applied to the Employers Liability Tracking Office (ELTO) to track down the defendant’s other previous insurers. Eventually, the ELTO was able to trace 58% of insurers for the period of Mr M’s employment.

During this period, our repeated requests for a decision on liability were ignored and the defendant went into voluntary liquidation, meaning that any proceedings would have to be served to the liquidators. Having still received no response to a decision on liability in March 2013, we made a part 36 offer for a settlement of £6,500. This amount was based on a global amount of £17,000. As only some insurers could be traced, we could not expect to receive the full damages.

Part 36 offers have 21 days in which to be responded to, but the defendant neither accepted nor rejected our offer.

Court Proceedings

We decided to issue court proceedings in April 2013 and took witness statements from Mr M’s sons, who had worked with him under his previous employer. The defendant then made a part 36 offer to settle for £2,353, based on a global amount of £4,000, as only 58% of insurers could be traced. We subsequently rejected this offer and were made a second offer of £3,353, based on a total amount of £6,000.

The defendant stated that the claimant was contributory to negligence for not choosing to wear protective equipment and, furthermore, that the costs we had attributed for hearing aids were not necessary, as these aids could be obtained through the NHS.

Resultantly, we obtained the advice of a hearing loss expert in regards to the hearing aid provision. Our expert said that Mr M would be best served by private sector provision of hearing aids, thus backing up our claim.

We again rejected the defendant’s offer and made a counter-offer of £5,884, based on a global amount of £10,000. The defendant returned with a settlement offer of £4,707.20 based on a global offer of £8,000. Mr M accepted this amount and the matter was settled without going to court.

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