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April 12, 2011

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Employers win occupational-deafness appeal

In what could be a benchmark case on employers’ liability, a panel of judges has ruled that ‘ordinary or average employers’ are not liable for injury caused by exposure to noise below 90 dB(A) before 1 January 1990.

In the first noise-induced hearing-loss claim to reach the Supreme Court, the five judges overturned a decision by the Court of Appeal by a tight majority.

The Court had to decide whether liability existed at common law in negligence and/or under s29(1) of the Factories Act 1961 towards an employee who suffered noise-induced hearing loss due to exposure to noise levels between 85 and 90dB(A).

Mrs Baker – one of seven original claimants – worked in a factory in Sutton-in-Ashfield, Nottinghamshire, for 30 years until 2001. From 1971 to 1989 she was exposed to noise between 85 and 90dB(A) lepd, which led her to sustain some loss of hearing.

Mrs Baker brought a claim against her employer, Quantum Clothing Group Ltd. Several other individuals brought similar claims against Meridian Ltd, Pretty Polly Ltd and Guy Warwick Ltd. In the first instance, all the claims, bar that of Mrs Baker, were dismissed because there was no evidence that the claimants had suffered hearing loss due to noise exposure at work.

Although Mrs Baker was found to have suffered noise-induced hearing loss, it was ruled that Quantum had not breached its common law or statutory duty. She appealed the decision and, in 2009, the Court of Appeal ruled that employers were liable for any risk that would give rise to injuries that existed, not just a reasonably-foreseeable risk, as was previously held. By virtue of this, the Court held that liability under the Factories Act arose from January 1978.

The Court also found that liability at common law arose in January 1988 for employers with an average degree of knowledge, which included Guy Warwick Ltd. Quantum, Meridian and Pretty Polly were found to have greater-than-average knowledge and so were liable at common law from late 1983.

Deciding an appeal brought by the employers, the Supreme Court restored the original decision by a three-to-two majority. The Court upheld the original decision that the risks of noise exposure below 90dB(A) lepd only became generally known in 1988 through consultation on a draft European directive. Endorsing a further two-year grace period for employers to implement protective measures, the Court ruled that the average employer had no common-law liability before 1 January 1990.

Quantum and Guy Warwick were therefore found to be in the position of ‘average employers’ to whom the 1990 date applied. Meridian and Pretty Polly were found to have special knowledge of the risks from 1983 and were therefore found to be liable from 1985, allowing for two years to put in place protective measures.

The Supreme Court also ruled that s29(1) of the Factories Act did not impose a more stringent liability than at common law. It held that, since safety is a relative concept, foreseeability must play a part in determining whether a workplace is or was safe.

Since January 1990, employers have been required to provide hearing protection for all employees exposed to daily noise levels of 85 dB(A) and above and, where noise levels are 90 dB(A) or above, ensure that such equipment is worn. These levels were adjusted to 80 dB(A) and 85 dB(A), respectively, following the introduction of the Control of Noise at Work Regulations 2005.

According to Darren Smith, a partner at Hill Hofstetter LLP, which acted for one of the defendant employers and its insurers during the litigation, employers will be liable for noise-induced deafness if it can be shown that they failed to comply with either set of regulations.

Added Smith: “The Supreme Court’s decision includes a detailed analysis of the law on employers’ liability generally and, as a result, will be a benchmark decision in the years to come. While it applies immediately to industrial deafness, it is also likely to have broader application in relation to employers’ liability claims. If the Supreme Court had dismissed the appeal it would potentially have opened the floodgates for thousands of other claimants, particularly those with long working histories in the industrial, leisure and retail sectors.” 

SHP published a feature article on the Court of Appeal’s decision in the October 2009 issue, which can be found on our website.

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