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The NIHL problem: a personal perspective

Andrew Parker is Head of Strategic Litigation at DAC Beachcroft.

Soon after I qualified in the 1980s, there was a defining court decision in NIHL claims: Thompson v Smiths Shiprepairers, courtesy of Mr Justice Mustill, later Lord Mustill and who sadly died only recently. Following that decision, a compensation scheme was developed between unions and insurers to deal with thousands of claims, by men who had worked in heavy industry and who had exposure to excessive noise after 1963.

As a young lawyer handling both claimant and defendant work, I acted for claimants in these cases for one of the major unions. We saw the claimant, took instructions on a detailed working history and obtained a medical report from a local ENT surgeon. The source of damage was usually obvious, a local shiprepairers' yard tended to feature heavily. Settlement of damages was fairly routine and costs were determined on a scale under the scheme.

Thirty years later, much has changed. We didn’t have computers or case management systems, although I remember creating some precedent letters we could re-use. Few solicitors handle cases for both claimant and defendant in the market generally and it doesn't happen on NIHL claims at all. Unions rarely feature as the source of referral for legal advice.

That union involvement was important. There was a strong focus on acting for the individual; usually you were answerable to the local shop-steward as well as the Legal Department if you didn't provide them with a good service, as these claimants were still working. Bad cases were dropped early on.

The lack of computerised systems did not create any difficulty, even though we worked on a fixed scale of costs. You learned to work efficiently and effectively.

There's one thing that oddly doesn't seem to have changed. The cases I see now for defendants still involve men working in heavy industry in the 1960s and 1970s. If these men really had damage to their hearing at that time, they would surely have made claims in the 1980s and 1990s with their colleagues and former colleagues.

The firms handling the current explosion of cases are nothing like the union firms previously used. Their systems are completely automated (there's at least one firm who have only ever sent me three differently worded letters) and their expertise is minimal. The claimant appears to provide little input into the process and any request for further details of exposure is met either with silence or with a series of long-winded justifications for not providing any details.

What has led these firms into the NIHL arena is the lure of hourly rate costs and substantial success fees. That could be cured in large part by completing Lord Justice Jackson's commitment to introduce fixed costs across all fast track PI claims – which doesn't need primary legislation.

More worryingly, those firms have brought other questionable practices with them into NIHL claims. Nowhere is this more apparent than in the world of medical reporting. The traditional arms-length referrals to local ENT surgeons have been replaced by experts willing to produce reports on an industrial scale, often seeing dozens of claimants in a day and using audiograms carried out in far from ideal conditions. Often these reports lack objectivity, sometimes they obscure the true facts.

A single panel of trusted experts might be the answer. Certainly something is needed to verify certain aspects of the claim as true: every time I read in a letter of claim that the claimant didn't know he had NIHL until his solicitors told him so, I lose a little more of the trust I used to have in my fellow professionals.

Andrew Parker is Head of Strategic Litigation at DAC Beachcroft.

Last updated 29/06/2016