Judgment is awaited following the hearing in Baker v Quantum Clothing Group and others in November 2010. We attempt to predict the likely outcome.
The issue of an employer’s date of knowledge where an employee was exposed to noise levels above 85dBA before 1 January 1990 was heard by the Supreme Court in November 2010, in the latest instalment of the Nottinghamshire and Derbyshire Textile Industry Deafness Litigation.
For the background to the case and the Court of Appeal decision, see our article in the June 2009 edition of Liability Brief.
Court of Appeal
In summary, the Court of Appeal held that by January 1978, any employer of average size in the knitting industry, which exposed its employees to 85dB(A) or more, should have provided ear protectors. Lady Justice Smith gave the lead judgment in the Court of Appeal. She held that it was wrong to equate s.29 of the Factories Act 1961 with a standard of safety equivalent to the common law. Safety under s.29 was a purely objective matter, to which foresight of risk was irrelevant, and it could be judged with hindsight. In the circumstances strict liability applied to any risk giving rise to injury that existed to employees and not just a reasonably foreseeable one.
We suggest that the Court of Appeal’s interpretation of s.29 was wrong, on the basis that it is too draconian to judge employers’ breach with the benefit of hindsight. Lady Justice Smith said that, from July 1976, employers should have sought advice from an acoustic engineer. However, it was known from hearing the expert engineers’ evidence in the lower court that, if employers had indeed approached experts for advice in 1976, then they would have been advised to comply with the guidance in existence at the time, which was at levels of 90dB(A) and above. Indeed, this was the action level to which the Health and Safety Executive were working at the time.
It should also be remembered that the basis of the finding that the workplace was unsafe at noise levels above 85dB(A) was that an undefined minority of people would suffer harm due to prolonged exposure. This ignores the proposition that the majority of the workforce would not be so affected. We know that the first action level under the 2005 Noise Regulations commences at 80dB(A). However, it cannot be correct to fix employers with the knowledge of risks some 30 years into the future. In the lower court, His Honour Judge Inglis relied on the decision in Taylor v Fazakerley to equate the s.29 standard of safety to that of the common law position, namely that adopted by employers at the relevant time. We consider that this view should be reinstated.
In respect of the common law position, we predict that the Court of Appeal decision will be upheld, and a date of knowledge of 1 January 1988 imposed as to the dangers of noise exposure above 85dB(A). The large scale employers who had “greater than average knowledge” were fixed with a date of knowledge in 1985 at first instance, whereas the small scale employers, such as Guy Warwick, were not under such a duty until 1989. Guy Warwick had failed to keep abreast of health and safety issues, and we suggest it is not equitable that it should be in a better position than those employers who at least attempted to acquaint themselves with the dangers of noise exposure. It is an established legal principle that ignorance of the law is no defence. This point has already been upheld in the field of hand arm vibration, in the decision of Doherty v Rugby Joinery UK Ltd , where the Court of Appeal was critical of an employer which took no action to address the risk of vibration exposure and imposed an action level which was more stringent than normally required.
Judgment is eagerly awaited by insurers wanting to know the basis on which deafness claims should be reserved. We anticipate that the decision will also have wider implications for all employers’ liability claims.