Factory fit

In the first industrial deafness case to reach the Supreme Court, Baker v Quantum Clothing, the justices found in favour of the appellant employers by a majority of three to two. This marked quite a departure from the unanimous Court of Appeal decision '“ [2009] EWCA Civ 49 '“ which was overturned.

In the process, the Supreme Court also overruled the long-standing Court of Appeal authority on the interpretation of section 29 of the Factories Act 1961, Larner v British Steel [1993] ICR 551. While Baker has been welcomed by employers and insurers as a victory for common sense, it remains unsatisfactory in some crucial areas '“ and not only from a claimant's perspective.

The justices agreed that the statement of an employer's common law duty was that classically set out in Stokes v Guest, Keen and Nettlefold (Bolts and Nuts) Limited [1968] 1 WLR 1776. There, however, the consensus ended.

The majority held that the Code of Practice for Reducing Exposure of Employed Persons to Noise (DoE, 1972) constituted official, clear guidance setting an appropriate standard on which a reasonable and prudent employer could rely; that on a fair reading it recommended a noise exposure limit of 90dB and that for an average employer there was no liability for exposing employees to noise below that level before 1 January 1990. It was not until 1988, when a draft European directive of 1986 suggesting a lower threshold at 85dB came to be accepted, that the average employer could no longer rely on the code.

The majority upheld the trial judge's finding that a further two-year period should be allowed for implementing protective measures at the lower noise level, thereby ensuring, in effect, that the date by which the average employer was required to act to protect its workforce for levels of 85dB and above coincided with the date on which the Noise at Work Regulations 1989 came into force. The Court of Appeal's nine-month period for implementation was rejected.

Employers with above average knowledge (or those with an above average appreciation of the publicly available knowledge) can be liable for injury caused by noise levels below 90dB and above 85dB before 1 January 1990, depending on what and when they knew or appreciated.

Upholding the trial judge, Meridian and Pretty Polly knew by the beginning of 1983 that a significant minority of their employees would suffer some hearing loss from such noise exposure. Allowing a further two years for them to implement protective measures, they were in breach of duty at common law from the beginning of 1985.

The minority disagreed. The knowledge of risk from noise levels below 90dB was unchanged since the early 1970s. The code read with other material available by 1976 meant that employers should have been aware of such risk and reduced it by the provision of ear protection. Common law liability therefore arose on the minority view by the late 1970s.

Section 29 of the 1961 Act states: 'Every place at which any person has at any time to work'¦ shall, so far as is reasonably practicable, be made and kept safe for any person working there.'

The appellants argued that section 29 applied only to the structure and fabric of factory premises and not to processes carried on there. Noise, it was argued, required someone to be exposed for many years to suffer material injury. It was wrong to introduce a temporal element into section 29 when considering safety.

All the justices rejected that approach, agreeing that section 29 was 'always speaking'. Even if a risk was not contemplated at the time of the introduction of section 29, it could come within it when later recognised '“ this was the case with noise. They further held that the section applied to processes regularly carried on within factories, including noise generated by them.

Reasonable foreseeability

The Court of Appeal had held, following and agreeing with Larner, that 'safe' meant absolutely safe. It was an unchanging concept to be viewed with hindsight '“ thus if someone was injured at their workplace by reason of its condition, the workplace was not 'safe'. Whether or not the workplace was reasonably foreseeably unsafe at the time when injury occurred was irrelevant.

The majority rejected that approach and overruled Larner '“ whether or not the workplace was 'safe' is to be considered objectively. However, safety is not an absolute standard, but a relative concept to be judged by the standards of the day, not with hindsight. Reasonable foreseeability, the majority stated, is also relevant to the question of safety. Thus, in order to establish a prima facie breach of section 29, claimants must prove that their workplace was reasonably foreseeably unsafe by the standards of the day.

All justices agreed that the burden of proving the defence of reasonable practicability lies on employers and that foreseeability is relevant when considering that defence. Deciding the issue of reasonable practicability involves weighing the risk against the measures required to meet it. There must be a disproportion between the risk and the measures taken to eliminate or reduce it, but the disproportion need not be gross.

The minority dissented. Whether or not a place of work was in fact safe could properly be viewed in hindsight. Foreseeability of risk was relevant only to the question of whether or not it was reasonably practicable to deal with the risk. In order for an employer not to take measures to reduce a risk, there had to be a gross disproportion between such measures and the level of risk itself. On the facts, the workplaces were unsafe and it would have been reasonably practicable for the appellants to have provided ear protection, and thus render them safe, by 1978.

The majority held that section 29 is no more stringent than the common law. The only difference is the reversal of the burden of proof on the defence of reasonable practicability, along with the fact that breach of the statutory duty gives rise to potential or theoretical criminal liability.

For average employers, exposing workers to noise below 90dB did not constitute a breach of section 29 in the 1970s and 80s '“ the workplaces were safe according to the standards of the day, notwithstanding that it was, in fact, reasonably foreseeable by 1976 at the latest that injury would be caused to a significant minority of workers at noise levels of 85-90dB.

In terms of noise-induced hearing loss cases, then, the position now is as it was following the judgment of HHJ Inglis in Parkes: for exposures at or above 90dB, in the absence of above average knowledge, liability will run from 1963, the date when Noise and the Worker was first published by the Ministry of Labour (see Thompson v Smiths Ship Repairers [1984] QB 405); for exposures at or above 85dB and below 90dB, in the absence of above average knowledge, liability will run from 1990.

Close call

Baker was difficult and close run. Nothing, perhaps, illustrates this better than the fact that of the nine judges who considered the parties' arguments at first instance and on appeal, five would have found in favour of Miss Baker. But the decision has been cast nonetheless, and arguably leaves us in a tighter spot than before.

At common law, it treats the good employer who does more than the average to find out about the risks to his employees more harshly than the employer who does nothing. Employers might be well advised to keep their heads buried in the sand.

It leaves the thousands of employees damaged by noise levels which presented a reasonably foreseeable risk of injury to a significant minority of the workforce from 1976 to 1990 without redress. It denudes section 29 of all but academic value. The reversal of the burden of proof on reasonable practicability is unlikely to have any relevance in practice.

In placing the onus on the claimant to prove that his or her workplace was unsafe according to the standards of the day, the court will now require lay or expert evidence in many cases to establish what the standards of the day were. It may well reopen what were thought to be settled areas of personal injury and health and safety law.

Can an employer who exposes an employee to vibration below the relevant guidance or action levels still be held liable? How has the overruling of Larner affected the approach to other statutory provisions in which it was used to justify a strict interpretation?

The Supreme Court's decision is likely to have far wider implications than for noise-induced hearing loss claims alone.