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Industrial deafness claims: the clock is ticking

A recent decision of the Court of Appeal in the claim of Johnson v Ministry of Defence and Hobourn Eaton Ltd [21.11.12]  3 May 2013 has made life more difficult for claimants.  Mr Johnson, the claimant, was exposed to very loud noise in his employment from 1965 to 1970.  He was provided with hearing protection from time to time and admitted that he knew about the dangers of exposure to excessive noise during his employment.  Mr Johnson claimed that he began to notice hearing loss symptoms in 2001 but it was not until he was approached by a claims company in 2007 that he decided to make a claim. He was examined by a consultant ENT surgeon in April 2009 and was diagnosed with severe deafness.  The Court of Appeal decided that a claimant cannot not rely on his ignorance of a medical condition if a reasonable person, faced with the same symptoms, would have sought advice at an earlier date.

In this case the Court of Appeal decided that a reasonable man would have been sufficiently curious about the cause of his hearing loss and would have consulted his GP by about the end of 2002. This allows around a year for "thinking time" between the time when he realised that he had a significant condition and the date on which he ought reasonably to have taken expert advice. The time to be allowed must depend on the nature of the condition. With a condition such as deafness which presents in an insidious way, about a year should be allowed for consideration.

The Court of Appeal also came to the conclusion that, if Mr Johnson had consulted his GP, then the GP would probably have raised the issue of his employment with him and Mr Johnson would probably have been aware at that time that his hearing loss was caused by his previous exposure to excessive noise. 

Under the Limitation Act 1980, a claimant only has 3 years from the date on which they became aware that they had suffered an injury and the cause of that injury in which to bring a claim to the attention of the Court.  Mr Johnson’s claim failed because it was out of time by the end of 2005.

This decision creates a difficult scenario for claimants for Noise Induced Hearing Loss.  NIHL is a slowly developing condition which many people tend to get accustomed to or to brush aside as being unimportant in the larger scheme of things.  Claimants must now be “on the ball” in bringing a claim as soon as they notice any hearing loss or tinnitus if they have previously been provided with hearing protection.   Typical symptoms of noise induced hearing loss are:

1. Difficulty in hearing conversations in a crowded place such as a pub or family gathering,

2. Difficulty in hearing women’s voices which resonate at a higher frequency than men’s voices for example – does your wife or partner accuse you of selective deafness,

3. Difficulty in hearing doorbells or telephones where the ring tone is at a high pitch,

4. Difficulty in hearing small children with high voices,

5. Difficulty in following conversations in television programmes when there is music in the background.

6. Any noises in their ears even if it is intermittent or perhaps only noticeable at quiet times such as bedtime.  This may be a ringing noise but also can be a whooshing, crackling or whistling noise.

If anyone who has been exposed to loud noise in their employment without protection at first but having been provided with hearing protection at any time during the remainder of their employment notices any of the above symptoms, it is vital that they consult our specialist team as soon as possible to avoid their claim being struck out on limitation grounds.

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