Duty of Care
Firstly, when assessing a case, it is necessary to assess if a legal duty of care was owed between the parties. In an industrial deafness claim* an employer will owe an employee a duty of care.
Employers must take reasonable care to avoid acts/ommissions one could foresee would likely injure the employee.
Negligence consists of the failure of an employer to reasonably fulfil their duties to employees and the employee suffers as a result. Employers have obligations regarding employee safety and the employee also has a duty regarding their safety & wellbeing.
Employers found liable for negligence will face legal consequences for the injury sustained by the employee. Some examples of negligence by employers can include:
- Negligent hiring: Which may involve hiring of a worker who lacks the credentials, training and experience in manual handling tasks.
- Negligent retention: Involves retaining an employee who has violated the codes of practice in manual handling activities.
- Negligent supervision: Failure by the employer to fulfil their duty in providing proper supervision is regarded as negligent supervision
- Negligent training: Training methods that are haphazard and incomplete can compromise the safety, health and welfare of the employees.
An employer has legal common law duties and statutory duties to their employees in respect of their safety, health, and well-being while at the workplace. Employers should ensure, as far as is reasonably practicable, the safety, health and welfare at work of his or her employees.
Duties of Employers
The general employer duties as provided under Sections 8, 10, 17, and 18 of Safety, Health & Welfare at Work Act 2005 include to:
- Ensure the safety, health and welfare of employees at work.
- Avert any improper workplace conduct or habits that are likely to endanger worker safety, health or welfare.
- Ensure the design, provision and upkeep of a safe workplace that is devoid of health risks.
- Ensure the design, planning and upkeep of safe workplace egress means.
- Ensure the design, arrangement and maintenance of safe equipment, plant and other articles.
- Ensure the safety and prevention of health risks relating to article use, noise exposure, vibrations, ionising agents and radiation.
- Offer planned, organised, tested, maintained and updated systems of work.
- Give access to and maintain facilities and arrangements at work for employee welfare.
- Provide instructions, training, and supervision required for ensuring employee safety, health, and welfare.
- Determine and uphold safety, health and welfare procedures when identifying hazardous conditions and performing a risk assessment.
- Have regard to the overall prevention principles in situations where it’s impossible to eliminate or sufficiently control risks.
- Prepare and revise enough arrangements and measures to be complied with and procedures to be enforced in emergency cases.
- Inform the relevant authority about workplace accidents and dangerous incidents.
- Obtain, where applicable, the services of a skilled person in order to ensure safety, health and welfare of all workers.
- Ensure instructions, training and supervision is delivered in an appropriate manner and language.
- Ensure employees get enough safety, health and welfare training.
- Ensure an employee’s capabilities are considered in relation to specific tasks.
Industrial Deafness Claim* Form
Form A is the application form to the Injuries Board. This is a four-page application form. It is not a complicated form to complete, but it must be completed correctly. The correct factual details must be specified on the form with the correct legal title of the party responsible for the accident. Searches should be conducted to ensure one has the correct legal title of the respondent.
The application to the Injures Board can be submitted by post or online with the applications administration fees being €90 or €45 depending on whether it has been submitted by post or online.
Industrial Deafness Claims* Procedure
An initial step for any injured party who wishes to initiate a personal injury* claim is to make an application to the Board. The Personal Injuries Assessment Board is a statutory body that carries out its own private, independent assessment of a persons personal injury* claim. It will not assess claims regarding the provision of any medical or surgical procedure in relation to a person, or the provision of any medical advice or treatment to a person.
A purely paper-based system, it never carries out oral hearings but assesses claims with regard to medical evidence, such as the medical report furnished by the injured party to the Board.
If the person who caused the injury consents to the Injuries Board assessing the application, or if they fail to state in writing whether they consent to the assessment or not, the Injuries Board will proceed to carry out the assessment.
If the person who causes the accident states in writing that they do not consent to the Injuries Board making an assessment, the Injuries Board will issue whats termed an authorisation, which permits the applicant (injured party) to bring legal proceedings.
The injured party must serve notice in writing, before the expiration of one month from the date of the cause of action, or as soon as is practicable thereafter, to the person who caused the accident outlining the nature of the wrong involved etc.
An injured party must apply to the Personal Injuries Assessment Board by filling out an Injuries Board Assessment form called Form A.
The applicant starts the process by first getting a medical assessment form completed by their doctor and then filling out an Injuries Board Assessment application form. It’s usually available online.
If any costs have been incurred, remember to attach receipts for any financial losses related to the personal injury* with the application to the Injuries Board. Include a copy of correspondence from the person you deem responsible for the injury, and send the application fee. The Board will write back to acknowledge receiving your documents and to give you your application number.
Noise Induced Hearing Loss (NIHL)
Certain workplaces are exposed to high noise levels, such as, a timber manufacturer or a construction site.
Both employers and employees have obligations in terms of ear protection.
Employers have obligations under the Safety, Health & Welfare at Work Regulations 2007 in terms of PPE – Personal Protective Equipment which can be seen here.
Employers have obligations in terms of ‘daily noise exposure levels’ which can been seen at Part 5, Section 120 of the 2007 Safety Act in terms of Control of Noise in a Work Environment.
Risk Assessments at work should be conducted which assess risks, then eliminate or reduce risk exposure as is reasonably possible.
Frequently Asked Questions
What is Tinnitus ?
Our understanding of it is that there is a defect in the perception of noise or sound that it is out of sync with our normal auditory faculties. It is commonly described as a ringing in the ear, but can also be a clicking sound, and its severity depends on if it is acute or not.
How to make an Industrial Deafness Claim* ?
This is answered in the paragraphs above.
Can I claim for Industrial Deafness ?
If you have been injured as a result of the actions of someone else, you will have suffered what is termed a Tort, which is a civil wrong, which means you will have a right to seek a legal remedy for this wrong.
Please be advised that the above-mentioned material is intended as an overview and as a broad out-line of the topic discussed. It should not be considered as complete and comprehensive legal advice, nor act as an appropriate substitute.
Due care has been taken in the publication of this article and we do not accept legal liability as a result of reliance on any material covered in the above article.
Personal Injuries * In contentious business, a Solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement.