In the case of Baker v Quantum Clothing Group & Others, the Supreme Court allowed the appeal of the
defendant employers following a Court of Appeal ruling which held them liable to compensate an employee
who suffered noise induced hearing loss as a result of exposure to levels between 85 – 90 decibels. This ruling
has clarified the interpretation of section 29(1) Factories Act 1961 which required employers to ensure, as far as
reasonably practicable, a safe means of access to every place of work and for every such workplace to be kept
safe for those who work there. Whilst the relevant Code of Practice in force at the time of the alleged exposure
made reference to a limit of 90 decibels where protection must be used, the claimants argued that employers
should have been on notice of other published articles which required the need for steps to be taken where
noise levels were above 85 decibels.

One of the points addressed by the Supreme Court considered what information can be used by a court in
determining the average employer’s knowledge as to potential risks to their employees. This was key in light of
the fact that Noise at Work Regulations 1989, which highlighted the need for protection below 90 decibels, did
not come into force until 1 January 1990. The Supreme Court held that the foreseeability of the injury was
relevant to both the question of what was considered “safe” and what the limits of reasonable practicability
would require. Importantly, the key standards to be considered were the ones that prevailed at the time of
exposure and not ones which subsequently came into force at a later date. This has led to a sigh of relief for
many employers as the Court of Appeal ruling suggested the ambit of determining what evidence could be relied upon to establish an employer’s date of knowledge was far wider, which could have led to an increase in
similar cases succeeding. The ruling is also likely to impact on the issue of foreseeability of risk in health and
safety prosecutions and has already been referenced by the Court of Appeal in the cases of Tangerine and
Veolia.