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Occupational Deafness as a Prescribed Disease
- Feb 9, 2021
- Latest Journal
By Jim Hester - specialist in Personal Injury litigation. The majority of his practice involves Industrial Disease work whilst he also maintains a very busy Employer’s Liability practice.
Occupational Deafness has been a prescribed disease since 1975. However, this rarely features in litigated personal injury NIHL claims. This is mainly due to the constraints set out below. A useful feature of the Regulations, though, is a list of known noisy equipment. Such equipment is considered sufficiently noisy to meet even the stringent criteria of Prescribed Disease A10.
The Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985
The 1985 Regulations can be pretty hard to satisfy in relation to Occupational Deafness. Requirements include:
1, Sensorineural hearing loss amounting to at least 50 dB in each ear, being the average of hearing losses at 1, 2 and 3 kHz frequencies, and being due in the case of at least one ear to occupational noise (r 34 and Schedule 3);
2, That the claim be brought within 5 years of exposure (r 25);
3, That the period(s) of exposure can be aggregated to at least 10 years (r 2).
Schedule 1 – a use in civil claims?
The list of tools and machinery appears at Schedule 1. Although this is not an exclusive list, it is a list of ‘known offenders’. Those tools/machinery areconsidered to be sufficiently noisy so as to meet the criteria for the Regulations.
This list can be useful for both sides in assessing the merits of a case. Of course, other open-source material can also be considered. With a credible history of working with such items, there may be a reasonable chance of the Claimant establishing breach of duty. A long history of exposure would also suggest that a sufficient NIL might also be established.
This might assist both sides when considering the merits of the claim. It would also focus minds when considering whether to instruct an expert engineer with the resulting cost and delay.
Of course, the list below can only be used to inform practitioners. If the matter remains in dispute in any particular case, expert engineering evidence will be required. That particular tools/ machinery feature in the Schedule when considering NIHL as a prescribed disease, it is not going to be sufficient in itself to satisfy a court on breach of duty.
Schedule 1 – Occupations/ tools/ machinery:
The use of, or work wholly or mainly in the immediate vicinity of the use of, a–
(a) band saw, circular saw or cutting disc to cut metal in the metal founding or forging industries, circular saw to cut products in the manufacture of steel, powered (other than hand powered) grinding tool on metal (other than sheet metal or plate metal), pneumatic percussive tool on metal, pressurised air arc tool to gouge metal, burner or torch to cut or dress steel based products, skid transfer bank, knock out and shake out grid in a foundry, machine (other than a power press machine) to forge metal including a machine used to drop stamp metal by means of closed or open dies or drop hammers, machine to cut or shape or clean metal nails, or plasma spray gun to spray molten metal;
(b) pneumatic percussive tool:– to drill rock in a quarry, on stone in a quarry works, underground, for mining coal, for sinking a shaft, or for tunnelling in civil engineering works;
(c) vibrating metal moulding box in the concrete products industry, or circular saw to cut concrete masonry blocks;
(d) machine in the manufacture of textiles for:– weaving man-made or natural fibres (including mineral fibres), high speed false twisting of fibres, or the mechanical cleaning of bobbins;
(e) multi-cutter moulding machine on wood, planing machine on wood, automatic or semi-automatic lathe on wood, multiple cross-cut machine on wood, automatic shaping machine on wood, double-end tenoning machine on wood, vertical spindle moulding machine (including a high speed routing machine) on wood, edge banding machine on wood, bandsawing machine (with a blade width of not less than 75 millimetres) on wood, circular sawing machine on wood including one operated by moving the blade towards the material being cut, or chain saw on wood;
(f) jet of water (or a mixture of water and abrasive material) at a pressure above 680 bar, or jet channelling process to burn stone in a quarry;
(g) machine in a ship’s engine room, or gas turbine for:– performance testing on a test bed, installation testing of a replacement engine in an aircraft, or acceptance testing of an Armed Service fixed wing combat aircraft;
(h) machine in the manufacture of glass containers or hollow ware for:– automatic moulding, automatic blow moulding, or automatic glass pressing and forming;
(i) spinning machine using compressed air to produce glass wool or mineral wool;
(j) continuous glass toughening furnace;
(k) firearm by a police firearms training officer; or
(l) shot-blaster to carry abrasives in air for cleaning.
Barrister, Parklane Plowden Chambers
Jim regularly writes Industrial Disease Updates and also provide a Library of useful documents.
Website www.jimhester.me, primarily assists solicitors who are involved in Industrial Disease litigation. Busy practitioners can be up-to-date with Industrial Disease matters. They can also it as a source for useful documents. Others with an interest in Industrial Disease litigation may also find it useful.