The recent decision of the Court of Appeal in Baker v Quantum Clothing Group and others has opened the way for what could be a flood of successful historic industrial deafness claims.
The claimant in this case had been provided with ear protectors by her employers in 1989. However, during the previous 18 years since 1971 she had been exposed to ambient noise of between 80 and 90 decibels in the knitting factory where she worked. As a consequence she developed high frequency hearing loss and claimed her employers had breached the common law and S29 of the Factories Act 1961 (“the Act”).
In the 1970s and 1980s it was established by case law that a common law duty was owed by employers to provide ear protection where noise exposure was over 90 decibels. The question posed by the Baker case was whether the same duty was owed where the exposure was in the 80-90 decibels bracket.
The case was initially dismissed, but on appeal the claimant’s employers were found liable in terms of the Act for damage to Mrs Baker's hearing sustained from January 1978.
The Court of Appeal found the publication of the British Standard BS 5330 in 1976 persuasive in coming to its conclusion. The Standard set out clear levels for assessing the degree of risk from noise in the range of 85 to 90 decibels. The court considered that any employer of an average size in the knitting industry ought to have been measuring the noise in their workshops by this time and should have protected their employees by providing them with ear protectors within 8-9 months of this publication. The Claimant’s employer had not taken this safeguard until 1989. Accordingly they were found to be in breach of their duties to Miss Baker over a 12 year period and ordered to pay her £3,334 in damages.
As a result of the unanimous decision in this test case it is anticipated that more historic claims will be brought for industrial deafness. Claimants must still prove that their hearing loss is a result of their employment and cannot be attributed to any other cause, but now the pre-1990 actionable noise threshold has been reduced to 85 decibels. Previously 90 decibels had been recognised as giving rise to liability. Of course, claimants will also have to show that their cases are not time-barred, even though they are being brought to Court many years after the event.
An appeal to the House of Lords in the Baker case is anticipated.