22.5.09
Court of Appeal holds that employer was in breach of duty from January 1978 for exposing Claimant to noise levels of 85d(B)A or above.
Mrs Baker’s claim was one of seven claims which were dismissed by the High Court in Nottingham in 2007. These claims were selected from about 700 outstanding claims of a similar nature. From 1971 until 1991 Mrs Baker had been employed by a knitting company. The ambient noise at her places of work was about 85 to 86d(B)A. Her employer provided her with ear protectors in 1989. At first instance her claim was dismissed because the Judge held the employer had not been in breach of duty during the material time either at common law or under s.29 of the Factories Act 1961.
Held
The process by which liability under s.29 is to be proved is well established. First, the claimant must show that their place of work was not safe. On the evidence before the Judge, places of work where the ambient noise levels were 85d(B)A or above were not safe. The burden then passes to the employer to show that it was not reasonably practicable for them to eliminate the risk of harm. To avoid liability they have to show that the burden of eliminating the risk substantially outweighed the “quantum of risk”. Before the publication of the Code of Practice published by the Department of Employment in 1972, there was no reason why employers in the knitting industry should have been concerned about the problem of noise. However, until the publication of the British Standard BS 5330 in July 1976 it was not easy to assess the quantum of risk from noise in the 85 to 90d(B)A range. By January 1978 any employer of average size in the knitting industry who exposed his employees to 85d(B)A or more should have provided its employees with ear protectors. On this basis Mrs Baker was exposed in breach of duty for 12 years and an award of £3,334 was made.
Comment
This is a disappointing decision for defendants and their insurers. It follows previous unsuccessful attempts by claimants to reduce the pre-1990 actionable noise threshold to 85d(B)A.
It is likely that, as a result, many more claims will be brought for industrial deafness. However, it will still be necessary for claimants to show causation. It will often be the case that such loss can just as readily be attributed to the natural ageing process or to some other cause. It should be noted that six out of seven of the claimants in this case failed to prove causation at first instance.
