How can we protect ourselves from industrial deafness claims?
Can we be held liable for an employee’s industrial deafness even if they sustained the injury in their previous role?
Even if a worker’s injury was due to previous employment, a new employer may still be liable to compensate that worker if their work with the new employer is a significant contributing factor to the aggravation, exacerbation or deterioration of their injury.
In the case of industrial deafness, determining whether a new employer is the last employer for the purpose of a compensation claim turns on whether the tendencies, incidents or characteristics of that employment were the type to cause the injury. In other words, a worker does not have to prove that their new employment in fact caused, aggravated or exacerbated their hearing loss. Rather, all that needs to be established is that the last possible day that damage to the worker’s hearing could have occurred happened in their new employment.
A new employer may protect itself from an industrial deafness claim by keeping records of pre- and post-employment medicals. Where a new employer has a pre-employment audiogram confirming the extent of hearing loss before the worker commenced employment, this will be taken into account in deciding liability of that new employer. When a post-employment medical has taken place, this can help an employer demonstrate that the worker’s hearing loss, or exacerbation or aggravation of deafness, was not caused by employment with them.