Employer’s Liability for hearing loss has been in the news of late following the decision in Royal Opera House Covent Garden Foundation v Goldscheider and whilst this case concerned injury caused to the hearing of a member of the orchestra, claims for loss of hearing are an issue that affects the construction industry.
In the workplace, particularly a construction site, there will be many visible hazards such as dangerous tools and machinery. However, an ever-present hazard which may not be immediately obvious will be the noise levels that the workers are subject to. Noise levels on a construction site can vary greatly throughout the day dependent on the activities going on however high levels of noise over long periods of time can cause significant damage to workers’ hearing. Based on statistics released by the Health and Safety Executive in 2017 there were 70 new claims for work related deafness, this is a reduction compared to 2008 where over 200 claims were made that year. Whilst there appears to be a downward trend in claims, there is still a significant risk to workers if safe working methods are not followed.
The problem with noise induced hearing loss is that the effects of working in loud environments are not immediately apparent and so it can be easier for workers to take a more blasé attitude in respect of wearing appropriate hearing protection when working in the vicinity of loud equipment/machinery. Workers can sometimes not wear provided hearing protection or they wear the equipment incorrectly. Workers may find hearing protection a nuisance particularly in hot weather, find that it effects their ability to hear colleagues or simply not be aware of the risk to their hearing should they not use the hearing protection provided on site.
The Control of Noise at Work Regulations 2005 (Noise Regulations 2005) places a duty on employers to reduce the risk to their employees by controlling the level of noise they are exposed to while working. The Regulations require an employer to undertake a risk assessment, which must consider the level, type and duration of noise exposure and the effects of this on employees. In addition to undertaking a risk assessment employers must take action to reduce the noise exposure where possible and provide their employees with hearing protection if the noise level cannot be reduced to a safe level. Employers will also be required to provide training regarding the risks of noise in the workplace and it would be prudent that a record of this training is kept to evidence that it was provided to workers on site.
The Regulations require employers to take action when noise levels reach a certain point and they set out the values for this. The Regulations set out a daily/weekly exposure value and a peak sound pressure value and also set out the limit for exposure levels. The Regulations do allow that if workers are subject to significantly different levels of noise on a day to day basis, the employer should consider the weekly personal noise exposure rather than the daily personal noise exposure.
Once the risk assessment has been undertaken either by a person within the employer’s company or an external provider as required, the employer will need to put in place the safe system of work to ensure they meet their duty to their workers. Given noise induced hearing loss can take a long time to present itself, the hearing damage may not become apparent to the worker until decades later. Therefore in noisy work environments the better the records that are kept of the working processes in place will mean that should claims be forthcoming in the future from workers the company will be better placed to deal with them and reduce their potential lability for a successful claim.
Consistency in following safe working methods is key. The HSE guidance highlights if a worker is to wear 25dB protection and they remove the protection for just 5 mins of the hour they wear it, the level of protection is reduced to 11dB. Therefore it is important to highlight to workers that removing the hearing protection for just 5 minutes can reduce the protection by over 50% and so consistency is key for them to receive the full benefit of the hearing protection provided. Furthermore should they not wear the hearing protection for 20 minutes of the hour then the protection would be reduced to just 5dB.
Ample guidance is available from the HSE website, click here to see more: http://www.hse.gov.uk/noise/index.htm.