FUNDAMENTALLY DISHONEST DEAFNESS CLAIM PENALISED WITH COSTS

24th February 2016 

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A claim for noise induced hearing loss has been dismissed against a diamond drilling company with costs.

The claimant alleged he had been exposed to excessive noise whilst employed by Diamanttek between 2003 and 2013. He also alleged that, until 2013:

  • he had not received training on the correct use of hearing protection and

  • the wearing of hearing protection had not been enforced and

  • he had not been warned about the dangers of noise exposure.

However, his employer was able to evidence that the Claimant had been supplied with hearing protection throughout his employment and the claim was repudiated by the employer’s insurer, Allianz. 

The claim was subject to Qualified One Way Costs Shifting (QOCS) and therefore, even if it successfully defended the claim, the employer could not secure an order for its costs against the claimant unless the Court accepted that the claim was ‘fundamentally dishonest’. The trial judge dismissed the claim but refused to find that it was fundamentally dishonest and thus allow the employer its costs.

The employer made a successful appeal and was granted permission to recover its costs from the Claimant.

This is clearly a very valuable decision for employers and their insurers and underlines the importance of documenting the issue of PPE and training to employees and the preservation of employment records.

Further information and legal support

If you would like more information on this or any other advice, please do not hesitate to contact any member of the Corporate Risk and Insurance Team.

RELATED: CORPORATE RISK AND INSURANCE >>EMPLOYER LIABILITY >>


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