Often, a personal injury through hearing loss case can be sometimes notoriously difficult to completely resolve due to many factors, not least due to producing hard evidence of a direct and sustained cause of hearing damage.
However, in a recent UK noise induced hearing loss claim, it was stated at the Court of Appeal, that a Defendant’s rebuttal could no longer be dependent on having no records of noise levels within the Claimant’s place of work.
A Defendant who ventures to use this form of defence may now run the risk of drawing an adverse conclusion from an absence of records.
The original claim was initially dismissed because it had not been proven that the Claimant had been exposed to a sufficient amount of noise over a significant period to incur industrial deafness, as neither party was able to provide engineering evidence of the workplace noise levels.
However, the employer had provided ear defenders for their employees, which clearly indicates that the Defendants had shown that they were aware of noise problems.
The Judge’s appeal statement said that, “ It is a defendant’s duty to measure noise levels in places where his employees work and if he does not do so, he can hardly have a claim to assert that the noise levels were not, in fact, excessive.
In such circumstances, the court should judge a claimant’s evidence benevolently and the defendant’s evidence critically. If a defendant fails to call witnesses at his disposal who could have evidence relevant to an issue in the case, that defendant runs the risk of relevant adverse findings. Similarly a defendant who has, in breach of duty, made it difficult or impossible for a claimant to offer reasonable, relevant evidence, must run the risk of adverse factual findings. To my mind this is just such a case.”