>£700k noise claim settlement. The new normal - unless you...?
The medical and legal landscapes for noise claims have changed.
In a recent court case (Barry v Ministry of Defence), the judge awarded the claimant a settlement of £713,716. This very substantial sum was awarded as a consequence of the changing legal and medical landscape surrounding hearing damage claims. These meant that he included the effects of synaptic damage (not just pure tone audiometry results) and all forms of future disability.
This case is the canary in the Noise Induced Hearing Loss (NIHL) costs mine, a canary that will soon be visiting any organisation that hasn't implemented the newly revised risk reduction best practices. The combination of the HSE noise focus, new research on damage to health plus the legal framework changes form the perfect storm that is dramatically increasing the costs of not taking urgent action to cut NIHL.
£700k+ represents the step-change in the costs associated with the insufficiently effective noise risk management processes almost universally practiced as highlighted by the results from the current HSE noise inspection focus. The factors responsible for the cost increases are:
- new research showing that the health consequences of NIHL are radically worse than previously thought
- new research showing the effects of NIHL on life opportunities are worse than previously thought
- changes in the legal landscape due to new guidance
Higher cost causes
4 mitigation actions
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1 HSE inspection noise focus - 300% increase in enforcement actions
The initial results provide further ammunition in the form of a 300% increase in enforcement actions, overreliance on PPE, little or no noise control and poor report quality. These all demonstrate the current general lack of knowledge and understanding of how best to manage noise risk. This is not a good look if it comes to a court case for a claim or when negotiating substantial increases in liability insurance premiums...
2 Medical research - seriously underestimated health effects of NIHL
Recent research has shown that the risk to health from NIHL are dramatically higher than previously thought. In addition to the immediate effects of loss of hearing and tinnitus, these increased risks include:
- dementia risk is increased by up to 500%. NIHL is the single highest modifiable dementia risk
- up to 57% increased risk of developing Parkinson's for every 10dB increase in hearing loss - a high correlation between the conditions
3 Previously underestimated effects on quality of life
NIHL also has dramatic effects on life opportunities. These effects include:
- up to 42% higher rate of unemployment and 200% increased likelihood of having an accident
- 8% higher rate of early retirement - household income decreases with severity of hearing loss
- mental health - depression and loneliness, increased mortality exceeds that of obesity or physical inactivity
4 Legal changes affecting hearing damage claim settlement costs
Under the previous legal guidelines (CLB, 2000), the basis for NIHL settlements was the loss of hearing as measured using classical Pure Tone Audiometry (PTA) coupled with evaluations of any noise induced tinnitus. This was combined with the impact on the daily life of the claimant plus any direct costs to arrive at a final figure. Any noise exposure below 85dB(A) was discounted.
The new guidelines (MLC, 2022) presage a dramatic change in the outlook of courts. In addition to setting no lower limit on noise exposure, they can now take into account not just PTA results, but also:
- the previously ignored synaptic damage e.g. data from otoacoustic emission (OAE) hearing tests that provide rapid and early feedback re this form of damage
- the recently proven huge increase in the statistical risks to health (dementia, Parkinson's etc) as described above
- the recently updated data on the effects on earnings (past and future), general damages (suffering past and future) and other costs
Consequently, settlement costs are set for a dramatic increase that will also be reflected in a rise in insurance premiums for organisations with personnel who have noise exposures that could perhaps be as low as 75dB(A).
It is estimated that hearing damage due to noise exposure at work costs the UK economy around £25 billion pa.
The 5 urgent actions required to mitigate risk and cost increases
This is a "perfect storm", combining the HSE noise focus, the new discovered increased risks posed by NIHL to health and to quality of life with the changes to the legal framework. Given that current typical hearing damage risk programmes have not worked well enough, urgent actions are necessary to reduce the risks and thereby the potential dramatic rise in future costs. The objective is Nil NIHL.
Fortunately, the following are the 4 areas where implementing the recent updates to best practices can reduce NIHL risk by up to c 90% with little or no effect on current expenditure.
- PPE performance: the attenuation is much less than you think. You need to understand why to improve protection
- Assessment and report quality: develop/acquire a high quality template for use in-house or by consultants
- Noise Control Audit (NCA): invest in a cost/benefit analysis of your noise control options
- Health surveillance: switch from placebo audiometry to otoacoustic emission testing
- Return On Investment (ROI): calculate how effectively your resources are being spent
More details and resources on how to implement each of these elements are provided below. Online resources covering all these topics.
PPE performance
Most organisations have little or no idea of the field attenuation that is actually being achieved by users. Our rule of thumb is:
- up to 90dB(A): conventional PPE can be effective when properly used
- 90dB(A) - 95dB(A): difficult to guarantee adequate protection
- 95dB(A) - 100dB(A): very difficult to guarantee adequate protection
- 100dB(A)+: impossible to guarantee adequate protection?
Action
Understand the shortcomings of PPE programmes, evaluate the actual performance being achieved and update policies, training and PPE choice etc to ensure provably adequate protection is being achieved.
Resources
- real-world hearing protection performance evaluation
- HSE PPE performance video
- Online noise competency update workshop
We can provide both online training and guidance on how best to ensure that PPE attenuation is adequate.
Assessment and report quality
HSE research and the initial noise inspection focus results have shown (and will show again) that the general standard of noise assessments and reports, both in-house and via noise consultants is very poor. Common failings include:
- Poor PPE advice
- Poor noise measurement practices
- None or very limited generic noise control advice
- Lack of knowledge re new best practices
- No practical action plan
Actions
- Develop or acquire a high quality report format that must be used for all future in-house or consultant assessments. This makes risk tracking over time simple and sets a quality benchmark
- Determine the level of expertise needed for the required risk assessment
Resources
- What should you expect from a noise risk assessment + HSE noise assessment report checklist
- Template noise assessment reports
- Online noise competency update workshop
The online noise competency update linked above covers all these issues in detail. Contact us if you would to discuss the development and provision of a high quality bespoke template report.
Noise Control Audit - cost/benefit analysis
Practical and useful advice on noise control following noise risk assessments is vanishingly rare due to lack of knowledge about modern engineering noise control technology. A Noise Control Audit (NCA) is regulatory requirement. It is a review of the noise control options for noise hazard areas that provides the cost/benefit information necessary to make an informed decision about the optimum risk management programme.
Noise control programmes can be self-financing surprisingly often...
Action
Carry out or commission an NCA.
Resources
- Noise control audit details - what is involved?
- Top 10 solutions to the most common noise control problems
- Noise control workshops
Contact us if you would like to discuss the Noise Control Audit options.
Health surveillance
Data provided by traditional PT Audiometry (PTA) is of little use in risk management. It simply catalogues failures in risk reduction strategies years after the event. As up to 50% of outer hair cells can be destroyed before hearing loss is measurable using PTA, it is largely a placebo checkbox exercise implemented to comply with the regulatory requirements, not a useful risk management tool.
The only significant risk management benefit is as a motivational exercise i.e. talking 1-to-1 about hearing every few years. Ask yourself, "Have the results ever been used to guide risk reduction?" And yet audiometry is mandatory.
Quoting the HSE, conventional audiometry is “a tax on the failure to control risk”. It is not a risk management tool.
PT audiometry is a useful tool to assess existing significant audiometric hearing loss – well after the event. However, Otoacoustic Emission (OAE) audiometry (this has been used on infants since the 70s) is an effective risk manage tool as it provides an objective evaluation of the very early signs of hearing damage. This information can then be used to update hearing conservation programmes to prevent further damage.
Action
Ask your occupational health supplier to investigate switching from PTA to OAE.
Resources
Return On Investment (ROI)
Do you know your ROI? Almost certainly not. The following are the key elements that should form the basis for your calculations.
- Realistic PPE field performance: what is the actual daily wear rate in Noise Hazard Zones? What is the actual employee field protection achieved? (typically, only 3dB - 10dB). How much do you spend on PPE p.a.?
- Noise assessment and health surveillance: do past reports include a defined and prioritised Action Plan to reduce risk with timescales and responsibilities? How much do you spend on placebo noise reports and audiometry?
- Noise control: has anyone ever carried out an audit to generate a noise control cost/benefit analysis?
Actions
Put realistic financial and resource numbers to these factors as the basis for an optimal revision to a hearing conservation programme. We can provide tools and technical support to aid the process.
