Year-end wins for the Belfast disease team

The disease team in our Belfast office has won two industrial disease cases this week, one on the papers and the other on the doorstep to trial, resulting in significant savings on reserves.

The first case concerned a Plaintiff who issued a Civil Bill in the sum of £20,000.00, alleging noise-induced hearing loss (NIHL) as a result of his employment at two call centres over two distinct periods of time.

The Plaintiff worked at the insured’s call centre from 2006 until 2013, and at a second call centre for a different employer from 2016 until 2020. We were instructed on behalf of the first call centre’s insurer in respect of the Plaintiff’s first term of employment. 

The Plaintiff’s case was that during these two periods of employment, he wore a noisy headset for eight hours a day. The Plaintiff relied on medical evidence from Mr Ullah, an ENT consultant, who did not have sight of the Plaintiff’s medical records or occupational notes at the time of his examination. The Plaintiff told Mr Ullah that he had experienced a ringing type of noise in both ears for a period of some three years prior to the examination. A later review of his medical records revealed that he had attended hospital, complaining of vertigo and tinnitus arising from natural causes, but not hearing loss arising from his employment.

We confirmed the model of the headset with our insured, and instructed our ENT consultant, Mr Adair, to expressly comment on this in his report. Mr Adair also took into account a Health & Safety Executive (HSE) backed project carried out in 2002, which specifically assessed the impact of noise levels in 150 call centres. The project determined that the daily personal noise exposure of call centre operators was unlikely to exceed the 85 dB (A) action level defined in the Noise at Work Regulations 1989.  

Mr Adair noted the Plaintiff had very slight high frequency sensorineural hearing loss affecting the left ear more than the right. A notch was evident in the left ear at 4kHz and the right ear had a small dip at this frequency. He concluded that the Plaintiff was experiencing minimal day-to-day hearing loss and mild tinnitus; however, although such notches can be indicative of NIHL, they can also occur naturally. On the basis of the HSE-funded project, as well as evidence that the headset noise levels fell within the normal range in the large majority of cases, there was no evidence that the Plaintiff had been exposed to damaging noise levels during the course of his employment. Therefore, our defence was that the Plaintiff’s hearing loss and tinnitus must have arisen naturally and could not have resulted from his employment at either call centre.

The Plaintiff’s solicitors did obtain a further medical opinion, but the report was not served and they instead made a drop hands offer which we accepted. This resulted in a drastically reduced cycle time and an overall saving of £11,750.00. 

On Monday, 4th December 2023 we appeared at the Royal Courts of Justice to defend a claim brought against four different employers for hand-arm vibration syndrome (HAVS).  The Plaintiff contended that this had been caused by continued use of air pressure/vibration tools throughout his employment as a fabricator.

We were instructed to act for the Plaintiff’s first employers who had subsequently been taken over by the Fourth-Named Defendant; as there was no difference in discovery and insureds, we agreed to share the costs of counsel and expert engineering evidence.

The Plaintiff’s role had remained unchanged throughout his many years of employment, but was extremely varied and consisted of stripping, adapting and rebuilding vehicles. Part of his role involved the fitting of armour plating to standard road going vehicles; this required the use of power equipment which could exceed the vibration threshold detailed in the 1994 HSE guidance, as well as the exposure action value (EAV) implemented in the Control of Vibration at Work Regulations 2005. 

It was noted that the Plaintiff would have used this equipment for between one and one and a half hours within any given eight-hour period. Mr Megarry, our jointly instructed engineer, was of the view that the Plaintiff’s alleged exposure to both vibrating tools and welding equipment would have been compressed over a relatively short time frame. The concern with our defence was that, for the duration of his employment with our insured, from 1997 to 2006, our insured had failed to carry out any risk assessments in relation to the dangers of vibration/air pressure tools.   

Upon review of health and safety discovery provided by the Third-Named Defendant, we noted that the Plaintiff’s health questionnaire, completed by him at commencement of his employment with the Third-Named Defendant in 2015, explicitly declared “no medical conditions”. We considered this to be persuasive evidence that he did not have any injuries following his term of employment with our insured. Regardless of the absence of risk assessments, our view was that the Plaintiff’s own admission in his health questionnaire was indisputable proof that our insured was not liable for any personal injuries. Mr Megarry supported this argument and pointed out that the onset of symptoms post-dated the commencement of the Plaintiff’s employment with the Third-Named Defendant, which was nine years after the end of his period of employment with our insured.   

We informed our Co-Defendants that we intended to rely on this contemporaneous declaration and would ask the Court to make a finding that our insured was non-negligible, as well as an order that our Co-Defendants paid our trial costs. Our Co-Defendants subsequently offered to release us from proceedings on the basis that we stood our own costs. Our insured attended court and provided their consent to this offer. Through comprehensive review of occupational records, as well as considered instructions to our expert, we achieved an overall saving of £11,750.00 for our instructing insurer. 

Tara McSorley, Legal Director at Clyde & Co in Belfast, said: “As we approach the end of 2023, insurers are currently experiencing tough challenges in Northern Ireland as we wait for the new edition of the Green Book and face an all-time high in occupational deafness claims.  In spite of this, it is great to see our disease team pushing back in the correct cases and achieving the right results. Well done to Edel in our Belfast office for producing these wonderful results in both of these claims.”