0370 270 6000

already registered?

Please sign in with your existing account details.

need to register?

Register to access exclusive content, sign up to receive our updates and personalise your experience on brownejacobson.com.

Privacy statement - Terms and conditions

Baker v Quantum Clothing Group Ltd, Supreme Court, 13 April 2011

20 April 2011
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 seven claims on which judgment had been handed down in February 2007. The seven claimants had been employed by four 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 seven claims had been selected from about 700 outstanding claims of a similar nature. The judge dismissed all seven claims. In six 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 matter went before the Court of Appeal which allowed the claimant’s appeal from the decision of the Trial Judge.

The employer appealed to the Supreme Court.

The decision

The judge at first instance had concluded that the Code of Practice constituted an acceptable standard for average employers to adhere to during the 1970s and 1980s. Examination of the underlying statistical material did not undermine either the appropriateness or the relevance of the Code of Practice as a guide to acceptable practice. There was no basis for the court to disturb the judge’s conclusion that the Code was official and clear guidance which set an appropriate standard upon which a reasonable and prudent employer could legitimately rely in conducting his business until the late 1980s.

The date when employers should have been aware that it was no longer acceptable simply to comply with the Code was when the terms of the 1986 Directive became generally known. The Trial Judge had allowed two years as the appropriate period for reacting and responding on the part of employers. The Court of Appeal had been incorrect to replace that period with a period of six to nine months. On the facts, Quantum and Guy Warwick were in the position of average employers to whom the 1st of January 1990 date therefore applied. Courtaulds and Pretty Polly however were in a special position since, by the beginning of 1983 they had an understanding of the risk that some workers would suffer damage from exposure to between 85 – 90dB(A)lepd which distinguished their position from that of the average employer. Allowing them a similar two year reaction and response period to implement protective measures meant they were potentially liable at common law from the beginning of 1985.

With regard to the scope and application of Section 29(1) of the Factories Act 1961 (see appendix below). The appeal disagreed substantially from the judge, holding that the Section involved a significantly more stringent standard of liability than any arising at common law. A number of important issues arose:

  1. Whether Section 29(1) applied at all where the claim related not to the workplace but to activities carried on in the workplace.
  2. Whether it applied to risks of noise induced hearing loss arising from such activities in relation to long-term employees working in the place.
  3. Whether the safety of the place was an absolute and unchanging concept or a relative concept, the practical implications of which might change with time.
  4. What was meant by “so far as is reasonably practicable” and how did that relate to the concept of safety.

Issue one – lack of safety arising from activities

A workplace might be unsafe because of some feature which was neither structural nor permanent. It seemed sensible to describe a workplace as unsafe if operations constantly and regularly carried on in it made it so. In this case, the noise generated by knitting and other machines was a permanent feature of the operations which were intrinsic to the workplace. If the Section was directed to noise at all then such noise must make the place unsafe. This would be to follow the ‘middle way’ approach taken in Evans v Sant [1975] in which Lord Widgery had held that the safety of the workplace might be dependant to some degree upon the nature of the operations carried on therein and insofar as they were constant, regular and recurring.

Issue two – was Section 29 directed to noise?

Section 29(1) was part of the statutory provisions dealing with safety and was enacted without any appreciation that it could cover noise or noise induced hearing loss. None of the contemporary reports or documents considered suggested that the possibility of noise was in anyone’s mind or would have been conceived of as an element of safety of the workplace in 1959 or 1961. The question depended on whether Section 29 imposed an absolute liability, irrespective in particular of current attitudes or standards from time to time, or whether liability under Section 29 was relative, depending in particular on knowledge about and attitudes to safety from time to time. On the latter basis it would be right to impose a liability under Section 29 such that the safety of a workplace might embrace matters which were previously disregarded but had, with time, become central or relevant to reasonable employers and employees view of safety.

Issue three – was the concept of safety absolute or relative in nature?

Safety had to be judged according to the general knowledge and standards of the time. The onus was on the employee to show that the workplace was unsafe in this basic sense. What was unsafe was a relative concept that had to be judged having regard to general knowledge and standards at the time of the alleged breach of duty.

Issue four – the meaning of reasonable practicability

The qualification was wide enough to allow current general knowledge and standards to be taken into account. Even the Court of Appeal had acknowledged the quantum of risk involved as material in the balancing exercise. This could only mean that some degree of risk might be acceptable and what degree could only depend on current standards. The criteria relevant to reasonable practicability had to largely reflect the criteria relevant to satisfaction of the common law duty to take care. Both required consideration of the nature, gravity and imminence of the risk and its consequences, as well as of the nature and proportionality of the steps by which it might be addressed, and the balancing of the one against the other.

Appeals allowed, both at common law and under Section 29(1).

Comments

Lords Kerr and Clarke dissented holding that liability at common law would arise from the late 1970s onwards and also that as to liability under Section 29(1) that the concept of safety, unlike the qualification of reasonable practicability, did not include an assessment of what was foreseeable at the time.

Appendix

Section 29 Factories Act 1961 provides:

“1. There shall, so far as is reasonably practicable, be provided and maintained safe means of access to every place at which any person has at any time to work, and every such place shall, so far as is reasonably practicable, be made and kept safe for any person working there.

2. Where any person has to work at a place from which he will be liable to fall a distance more than 6 feet 6 inches, then, unless the place is one which affords secure foothold and, where necessary, secure handhold, means shall be provided, so far as is reasonably practicable by fencing or otherwise, for ensuring his safety.”

focus on...

Legal updates

Assessing the scope of employers liability – Chell v Tarmac

These were the opening remarks of Mr Justice Martin Spencer when handing down his Judgment in the recent case of Andrew Chell v Tarmac Cement and Lime Limited [2020] EWHC 2613, the latest in a series of appeals dealing with the scope of vicarious liability.

View

Legal updates

Non-payment of insurance premiums during the Coronavirus pandemic

The forced closure of many businesses as a result of the Coronavirus pandemic has had a huge impact on the nation’s Gross Domestic Product (GDP). Recent reports from the Office for National Statistics state that the economy was 25% smaller in April than it was in February this year.

View

Legal updates

Reinstatement for property damage losses – when does it apply?

The Court of Appeal has recently considered the correct test for measuring the indemnity for property damage losses and has provided useful guidance on whether an insured needs to intend to reinstate the property to its pre-loss condition.

View

Legal updates

Coronavirus (COVID-19) insurance considerations

With instances of COVID-19 rapidly increasing throughout the UK, many businesses are considering the options available to limit staff and customer exposure to Coronavirus.

View

The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

mailing list sign up



Select which mailings you would like to receive from us.

Sign up