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Background and First Instance Decision

This case concerned the liability of employers in the Derbyshire and Nottingham knitting industry for hearing loss suffered by employees during the years prior to 1 January 1990. The central issue was whether liability existed at common law in negligence and/or under section 29(1) of the Factories Act 1961 (safe means of access and safe place of employment), towards an employee who had suffered noise-induced hearing loss as a result of exposure to noise levels of between 85 and 90dB(A)lepd.

Mrs. Baker, the Respondent, worked in a Nottinghamshire factory from 1971 to 1989 and was exposed to noise which led to noise-induced hearing loss. Mrs Baker’s case was one of a number of test cases bought against manufacturers including Quantum Clothing Group Ltd (previously known as Taymill), Meridian Ltd, Pretty Polly Ltd and Guy Warwick Ltd.

At first instance it was held that the standard of safety required under section 29(1) was governed by the general standard that ought reasonably to have been adopted by employers at the relevant time and that this standard did not add materially to the common law duty. Neither Taymill nor Guy Warwick, as reasonable employers, were in breach of their duty either at common law or under section 29(1) until the time when the EEC Directive 86/188/EEC, ‘Prevention of Damage to Hearing from Noise at Work, Draft proposals for Regulations and Guidance’ became known as a consultative document in 1988, and led to the Noise at Work Regulations 1989 (SI 1989/1790) in 1990. With regard to Meridian and Pretty Polly, they were considered to have had a greater understanding of the risks associated with noise by the beginning of 1983. Consequently, allowing a two year implementation period, they were deemed potentially liable from the beginning of 1985. Mrs. Baker’s claim was dismissed on the grounds that Taymill had not committed any breach of common law or statutory duty. The other claims were dismissed, despite the potential liability, as no actual hearing loss had been suffered by the claimants.

Court of Appeal

Mrs Baker appealed to the Court of Appeal against Quantum Clothing. Meridian and Pretty Polly were joined to enable issue to be taken with certain conclusions at first instance which potentially affected the other claims.

On appeal, the decision reached was less favourable to the employers. It was held that section 29(1) set a more stringent liability that that of negligence at common law and, if it had been relevant, the liability for negligence arose at earlier dates then adopted at first instance.

This higher test of safety under section 29(1) required the application of an objective test without reference to reasonable foresight. In addition, it was considered what was objectively safe could not change with time. In the alternative, if foresight was relevant it was held that by the early 1970s any employer keeping abreast of developing knowledge would have known that exposure to 85dB(A)lepd was harmful to some people, making the workplace unsafe and consequently an employer should do what was reasonably practicable to make and keep it safe.  In addition, it was considered that the period required to implement the new standard was only six to nine months rather than the two years found at first instance.

In regards to the common law claim, the Court of Appeal upheld the decision at first instance that there was no breach of duty at common law during the period for which a reasonable body of opinion regarded it as acceptable to expose employees to noise in the 85dB(A)lepd range, and that this period ended in 1987 following the second publication of the draft Directive. Again, the period for implementing the change was reduced from two years to six to nine months. The Court held that liability at common law arose in January 1988 for employers with an average degree of knowledge, which included Guy Warwick. Quantum, Meridian and Pretty Polly were found to have a greater degree of knowledge and were liable at common law from late 1983.

Supreme Court

The Supreme Court has now upheld the first instance decision by a majority of 3:2.

Analysis of the common law position

The key question in regard to the common law obligation was what performance would discharge the common law duty of care. In particular the Court considered whether a 1972 Code of Practice published by the Department of Employment, which recommended a noise exposure limit of 90dB(A)lepd, constituted an acceptable standard for average employers to adhere to during the 1970s and 80s until the draft Directive became a consultative document in 1988, or whether the Court of Appeal was correct to find that potential liability existed for some employers before 1988.

The Supreme Court held that the 1972 Code of Practice provided clear guidance acting as both a relevant and appropriate guide to acceptable practice upon which a reasonable employer could legitimately rely in conducting his business until the late 1980s.

It was ruled that the Court of Appeal did not accurately place the position of the first draft of the Directive in the development of legislation at a European level. The draft was only a proposal for legislation and no reliance should have been placed on underlying material which may or may not have been produced in its preparation. Consequently, the first instance decision should not have been disturbed and the Code of Practice was the appropriate standard upon which a reasonable and prudent employer could legitimately rely in conducting his business until the late 1980s.

It was held that the date for all employers when the Code of Practice became no longer the acceptable standard was when the terms of the 1986 directive became generally known in the consultative document of 1988. The Court also endorsed a further two year period beyond 1988 for implementing protective measures, thus meaning that the average employer had no common law liability before 1 January 1990.

However, Meridian and PrettyPolly were held to be in a special position. By the beginning of 1983 they had some understanding of the risk that some employees would suffer damage from exposure to between 85 and 90dB (A)lepd. Allowing two years for implementation, they were potentially liable at common law from the beginning of 1985.

Section 29(1) of the Factories Act 1961

In regard to liability under section 29(1) it was held that, whilst none of the contemporaneous reports or documents suggested that noise was considered as an element of safety in the workplace when drafting the Factories Act in 1961, section 29(1) would apply to noise-induced hearing loss. Noise generated by knitting or other machines was intrinsic to the workplace and therefore fell under the remit of the Factories Act 1961. Furthermore, the section could accommodate attitudes to safety that were not held at the time when it was enacted.

It was held that the extent of the liability under section 29(1) was a relative concept that had to be assessed by reference to the knowledge and standards of the time. It was not, as the Court of Appeal found, an absolute and unchanging standard.

It was ruled that the appeal would be allowed both at common law and under section 29(1). The employers were not in breach of their common law or statutory duty of care. With regard to Meridian and Pretty Polly, the appeal was allowed and the first instance decision restored that they were in breach of their statutory duty by not implementing such measures from 1 January 1985.

Comments

This decision is of particular importance to both insurers and employers as it closes the floodgates opened by the Court of Appeal. The decision effectively eliminates any claims from employees who were exposed to noise levels between 85 and 90 dB(A) between 1 January 1978 and 1 January 1990.

In addition, the decision provides clarity in regards to employers’ liability and the standard of care expected from an employer to employees.