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Baker v Quantum Clothing Group & 2 Others, Court of Appeal, 22nd May 2009

15 June 2009
The issues

Hearing loss – deafness – Section 29 Factories Act 1961 – duty to ensure safe place of work.

The facts

The Appeal arose out of a group of 7 claims on which Judgment had been handed down in February 2007. The 7 Claimants had been employed by 4 different employers in the knitting industries and factors in Nottinghamshire and Derbyshire. All had been exposed to noise in excess of 80dB(A)lepd but less than 90dB(A)lepd. The 7 claims had been selected from about 700 outstanding claims of a similar nature. The Judge dismissed all 7 claims. In 6 cases he held that the Claimant had failed to prove that they had been suffering from noise induced hearing loss. In the case of Stephanie Baker, he found that she had suffered noise induced hearing loss. In 1971 and 1979 she had been employed by a knitting company which was part of a group known as Nottingham Manufacturing Ltd. At the time of Judgment the company was known as Taymil and was now known as Quantum Clothing Ltd. The ambient noise at her places of work was about 85 – 86dB(A)lepd. She had been provided with ear protectors in 1989 and had worn them thereafter. She had been exposed to noise at or above 85dB(A)lepd for about 18 years. The claim was dismissed because the Judge found that the employer had not been in breach of duty during the material time, either at common law or under Section 29 of the Factories Act 1961.

The Claimant Appealed arguing that the employer had been under a duty to provide ear protectors from about 1972 or from some later date but in any event before 1989.

The decision

The Judge had relied on the Judgment of Rose, J in Taylor v Fazakerley in which he had said that although Section 29 had been relied on, the essential question relating to the statute in common law negligence was the same. The question was whether the Defendants, by reference to the standards which ought reasonably to have been adopted by them at the relevant time, exposed the Appellant to noise which they ought reasonably to have anticipated would or might, by reason of its level and duration, damage the Plaintiff’s hearing. This statement of the law should not be taken as a correct one. The reasoning of the Court of Appeal in Larner v British Steel (1993) was binding. The obligation under Section 29 to ensure that a place of work was safe was absolute and subject only to the defence of reasonable practicability, which defence had to be pleaded and supported by evidence. Since the test applied by the Judge had been incorrect it followed that his consideration as to whether the place of work was in fact made and kept safe had to be revisited, applying the objective test without reference to reasonable foresight.

What was objectively safe could not change with time. If 85dB(A)lepd caused deafness to a particular Claimant, that Claimant’s place of work was not safe for him or her. It is known that a minority of people suffer appreciable harm as a result of prolonged exposure to 85dB(A)lepd. It can therefore be said that the place of work is not safe for the work force because there is a risk of injury to all of them. Some of them will be injured, but not all and no-one knows which of them will not be injured. On the evidence before the Judge therefore the places of work where the ambient noise levels were 85dB(A)lepd or above were not safe. If that was wrong then in any event by the early 1970’s any employer who kept abreast of developing knowledge would have known that prolonged exposure to 85dB(A)lepd was harmful to some people and so would have known that the place of work was unsafe for an undefined section of his work force and that he had to do what was reasonably practicable to make and keep it safe.

The burden of proving what was reasonably practicable lies on the employer. On the authorities the Defendant employer has to show that the burden of eliminating the risks substantially outweighed the “quantum of risk”. (See Edwards v National Coal Board (1949) and Austin Rover Group Ltd v HM Inspector of Factories (1990)). The difference between the position at common law under Section 29 was that whilst at common law the burden remained on the Claimant throughout and he had to show that the employer had failed to take reasonable care to avoid the risks of harm which he ought reasonably to have foreseen might arise in the circumstances, under the statute, the adjective “reasonably” served only to qualify the concept of practicability. Under the statute the employer had first to consider whether the employees place of work was safe. If it was not safe, the employer’s duty was then to what was reasonably practicable to eliminate the risk.

All employers who had any noisy processes should have been aware of the 1972 Code of Practice within a few months of its publication. This included employers in the knitting industry. By mid-1973 employers such as these Defendants should have been turning their minds to the problems of noise, using the Code of Practice as a guide. However, the Code of Practice was plainly inadequate as an assessment tool. The Code advised only that there was some risk to susceptible individuals from exposure below 90dB(A)lepd. It did not attempt to discuss the size of the minority which would be affected or the extent to which they would be affected. Further information was required. Until the publication of the British Standard BS5330 in July 1976 it was not easy to assess the quantum of risk from noise in the 85 – 90dB(A)lepd range. From July 1976 there was a method available which could have been used by anyone with a modest degree of mathematical skill and certainly any consultant acoustic engineer. Therefore, from between late 1976 or early 1977, the average sized employer in the knitting industry could and should have been able to make an informed assessment of the quantum of risk arising from the below 90dB(A)lepd noise in his workshops. That assessment would have led the employer to broadly the same conclusion that was reached by the Judge and once that assessment had been made it could not be said that it would have not been reasonably practicable to provide ear protectors. Allowing, say, 6 to 9 months for the provision of ear protectors, once the decision had been taken that they should be provided, the date by which action should have been taken would be, fixed for the sake of simplicity, as January 1978.

Appeal allowed.

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