How are claim companies able to refer to regulations in a hearing loss claim, when at the time of the claimants employment, those regulations did not exist?

The claim references regulations such as the Factories Act 1961, HSAWA 1974, MHSAW 1999, PUWER 1998, PPEW 1992 & NAWR 1989. The period of employment was 1984 - 1985, when only the HSAWA would apply. Surely you can only claim for a breach of the regulations that were in force at that time?

It was rather messy pre-1989; but it was decided by the House of Lords sitting in Appeal [dig out the history if you wish] that 1989 is the definitive date from which all employers were "on notice" that workplace noise is officially recognised as being a prime cause of hearing loss and referred to the specific levels that coincidentally became the original Action Levels in the 1989 Noise @ Work Regs. The Lords decision applied to both the pre-existing Factories Act [as was] and Civil Law; so this decision is the one upon which pretty much all historic claims for WIHL will be founded - this is important in Civil Law as the right to claim is dated from "the date when the claimant knew that they had cause to claim" - that still exists. From the post wording it appears that although the claim may be soundly based, an inadequate reference may be being used if the claim really does stem from that period. I would expect to find a reference to the Lords decision to underline the validity of a Civil claim for WIHL for that period up to the inception of the MHSW 1992 which then contained the [now removed] ability to sue for breach without having to prove fault. I understood that proviso to be based in the Lords decisions for Noise, Miners Lung & a few others. Pre-1989 remains very much a "suck it & see" situation. Frank Hallett

You're quite right Phil - thank you for drawing my attention to a serious lack of attention!! Frank Hallett

In my experience lawyers tend to throw all sorts of bits of legislation into a claim, whether valid or not. Most don't seem to have a clue about legislation and I suspect they assume no one else knows either. If no one challenges the accuracy of their information then I guess they will just go on doing that.

FrankC, There is recent case law to say that the 3 year rule is no longer hard and fast and the courts may allow claims out of time in certain circumstances. It might be worth you seeking legal advice on it. Clairel, I trust that I was not included in your disparaging remark about our lack of any knowledge of legislation. I agree that in claims, some legal advisers are lazy in that they include everything in the pre-action protocol, but that way you cover everything and don't miss anything. Infuriating for those of us who defend, but there is a method behind what appears to be incompetence. As a result of the Jackson reforms, the old system of solicitors success fees have gone for new cases. Finally, what "scam" are you accusing solicitors of running? Very strong words. Best regards. DJ

Re FrankC's comment and subsequent postings... maybe worth just remembering (I'm sure most people know this!) Employers: The date for knowledge is the date after which the reasonable employer should have known of the risk of an occupational disease and been taking suitable action to control the risk/exposure. The dates differ from one disease to another - obviously. But there are cases where the same disease has a different date for different industries - on the basis that the state of knowledge was better developed within that industry and thus they have an earlier date of knowledge. Claimants; Here the date of knowledge is set as or regarded as being the date when the person knows that they have a disease that could have resulted from their employment - usually when informed by a specialist. This is a moot point and can be argued/discussed. This time limit is set down in the Limitation Act and can be amended or set aside by a judge (as already mentioned). But for the time limit to be overturned is a case by case matter and will depend on the specific circumstances. For example the potential claimant may have to establish that although they were given a diagnosis they were clearly informed there was an occupational connection. It can become complex - and is pretty rare! Obviously employers and their insurers do not like to see the time limit overturned. Hope that helps Phil