New regulations on noise came into force on 6 April 2006 and introduced more stringent obligations on employers. The Noise at Work Regulations (2005) detailed a duty to carry out a thorough risk assessment, to provide health surveillance, to provide hearing protection and inform, educate and train employees on the dangers of noise and on how to wear hearing protection if the lower limit is exceeded. But four months on, many employers in the construction  industry are still not complying.

What we have noticed particularly is how “heavy” industry appears to be clued up on the new regulations but lighter industry and manufacturing have not yet come to grips with them even though they are most likely to be affected.
Businesses may be issued with improvement notices by the Health and Safety Executive and contractors and employers will be exposed to increased claims by employees both past and present, forcing them to pay increased employers liability insurance premiums.

The Health and Safety Executive estimates that an extra 400,000 workers will now be caught by the new regulations. The total number of workers affected by the regulations now stands at 1.1m. The idea behind the new regulations is to reduce the first action level set out in the 1989 regulations from 85dB to 80dB, and to reduce the second action level from 90dB to 85dB – both are significant shifts. Looking to the past can often give us a good idea of what the future holds. So how did employers cope with the new regulations in 1989 and are we seeing a repeat of the same problems? In my opinion, it looks like we will repeat the situation that occurred after the introduction of the 1989 regulations. This  could cause a rise in claims in future years, particularly as these are the first set of regulations since 1989 to deal epecifically with noise.

Based on the large number of claims intimated back then it quickly became clear that employers were slow to react to the new regulations. This meant a dramatic increase in deafness claims four to five years after. The most recent anecdotal evidence from visiting sites and factories suggest that many employers are similarly slow off the mark this time. Deafness claims and those for Vibration White Finger were considered by insurers to have peaked in the mid-to-late 1980s.

However, due to a large reduction in the number of workers employed in manufacturing and a decline in the number of casualty claims, claims farmers and claimant lawyers are now targeting disease claims. This has meant that   occupational disease claims such as deafness have seen a significant increase in the last five years, which I think is a trend that may continue. These claims, known as “long tail” claims, are by nature difficult to defend since the evidence is usually at least five to ten years and often up to 40 years old. Many firms failed to keep records of noise surveys and other evidence of proof of compliance after contracts had finished. This has made “long tail” claims easier to pursue for claimants and conversely more difficult to defend on the aprt of employers.

A potential problem is that companies tend to store documents onsite. This is not a bad policy while the project is ongoing, but we often find the documents are thrown out when the product is finished. They should be kept centrally for many years.

The key advice to the construction industry is to ensure compliance with the new regulations and of equal importance to document everything. To reduce any uncertainty and risk of potential claims, risk managers within the construction industry need to ensure that all employees are given advice, instruction and training on the dangers of noise and of the availability and how to wear hearing protection.

The vast majority of blue collar construction workers are likely to be exposed to levels which exceed the second action level which is now 85dB, and as a consequence they should be subject to a mandatory system of hearing protection. If necessary, disciplinary action should be taken against employees for non-compliance. They should ensure that the steps are documented and that the documents are retained.

With average deafness claims tending to occur from around four to five years after exposure, if contractors do not take these new regulations seriously they can expect a boom  in claims from around 2010.