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October 7, 2009

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Noise- Minority report

Cameron Clark considers a recent court case that could increase employers’ liability by imposing a stricter duty on organisations to provide and maintain a safe workplace.

The issue of noise-induced hearing loss remains prevalent for many health and safety professionals in the UK, and the courts are still seeing their fair share of compensation cases being brought by employees, or former employees, for injuries or hearing loss caused by the noise levels in their workplace.

One such case was that of Baker v Quantum Clothing, which was heard in the Court of Appeal in May this year. The case was especially significant because it 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.

This is a worrying ruling for employers, as it means that safety professionals could have to consider risks they may not even be able to foresee. In the above case, it was held that, by virtue of section 29 of the Factories Act 1961, safe means safe, and the fact that the risk was minimal and affected only a small minority of employees was not an adequate defence by the employer for not taking action to remove it, where reasonably practicable. The judgement therefore upsets the balancing exercise that employers and safety professionals undertake in deciding what resource must be allocated to a particular risk, and comes at a time when funding for implementing health and safety laws and directives is particularly tight.

Common law upheld

In 2007, seven claimant noise-at-work test cases were dismissed by Nottingham High Court. The claimants alleged that they had suffered noise-induced hearing loss further to exposure to noise levels between 80dB(A) and 90dB(A), while working in textile factories prior to the introduction of The Noise at Work Regulations 1989. Stephanie Baker was the only claimant to appeal against the court’s decision.

It had been held in the lower court that, in the absence of “greater than average knowledge” by an employer or safety professional as to the dangers of noise exposure at levels below 90dB(A), the existing common-law action level was reaffirmed — i.e. employers could remain reliant on the defence of reasonable foreseeability, and thus escape liability for such conditions.

Small-scale textile manufacturers were set a 90dB(A) level at which they were required to take action to protect their employees from hearing damage, while large-scale producers were set an action level of 85dB(A), owing to their “greater knowledge” of what constituted unsafe levels of noise.

A new notion of safe

When the Baker case was heard in the Court of Appeal, the common-law position was effectively upheld. However, the key issue relating to the application of section 29 of the Factories Act — the need to keep a place of work safe — went against the defendant, Quantum Clothing.

The judge in the lower court had used a decision in a previous case, Taylor v Fazakerley (unreported) to equate the section-29 standard of safety to the common-law position — meaning that an employer only had to ensure that its workplace was safe as far as was reasonably foreseeable. However, the Appeal Court judge, Lady Justice Smith, disagreed and, relying on the decision in Larner v British Steel [1993], held that safe ultimately means safe, not reasonably foreseeably safe.

She contended that under section 29 it was wrong to apply the criterion of foreseeability, as this then eliminates the distinction between duties under case law and those under statute, such as the Factories Act. Safety under section 29 was a purely objective matter to which foresight of risk was irrelevant and it could be judged with hindsight.

It was held that from the introduction in 1972 of the Department of Employment’s Code of Practice on noise in the workplace, employers should have appreciated that noise levels slightly below 90dB(A) were still inherently unsafe. Under section 29, once it was established that a workplace was unsafe, the burden fell on the shoulders of the employer to show that it had done all that was reasonably practicable to make and keep the workplace safe.

Lady Justice Smith concluded that from early 1977, further to the publication of the British Standard BS 5330 in July 1976, an average-sized employer should have sought advice from an acoustic engineer as to the amount or apportionment of risk arising from exposure to 85dB(A), and that the absence of hearing protection was in breach of section 29. A period of six to nine months was allowed to implement the provision of hearing protection and therefore the action date commenced from 1 January 1978.

The claimant, Mrs Baker, had been exposed to noise levels between 85 and 86 dB(A). Since she had established causation in the court below the Court of Appeal, she had succeeded in proving that her employer was liable for her noise-induced hearing loss.

Twenty years ago today

The judgement will have considerable adverse consequences for those employers facing industrial deafness claims, especially as it may open the floodgates for individuals to bring forward historic claims for any deafness sustained 20 years ago. It imposes a strict duty upon companies and their safety professionals in all sectors — even though HSE guidance and the general consensus at the time as to what was considered safe was different. It also means that firms may face historic claims holding them liable for medical conditions, such as occupational deafness, even though they may have obeyed the guidance on noise levels at the time. Moreover, the cost of defending such claims will make it difficult for those companies that are already struggling to control their cash flow in the recession.

There are currently around 700 deafness cases on hold, pending the outcome of the Baker case, and if permission to appeal to the House of Lords is given these will most likely remain on hold. However, it will be impossible to apply this stay to other employers’ liability claims.

Significantly, this decision now extends beyond the issue of noise-induced hearing loss, and every person with an employers’ liability claim will be able to rely on this decision until, and unless, it is overturned. Although section 29 has been repealed, the decision is guidance as to how our leading judiciary interprets the meaning of safety when applied to other EL legislation, and will doubtless raise the barrier for what is considered acceptable in terms of health and safety planning.

Cameron Clark is a partner at law firm Halliwells.

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