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On appeal from: [2009] EWCA Civ 499

This appeal concerned the liability of the appellant employers in the knitting industry of Derbyshire and Nottinghamshire for hearing loss suffered by employees prior to 1 January 1990. The central issue was whether liability existed at common law in negligence and/or under the Factories Act 1961, s 29(1) towards an employee who suffered noise-induced hearing loss due to exposure to noise levels between 85 and 90dB(A)lepd.

The Supreme Court allowed the appeal by a majority of 3:2 and restores the judge’s decision at first instance. The court found that the 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 1980s. The Court also endorsed a further two year period beyond 1988 allowed by the judge for implementing protective measures, thus meaning that the average employer had no common law liability before 1 January 1990. Additionally, the Factories Act 1961, s 29 did not impose a more stringent liability than at common law. The employers by complying with the Code of Practice were not in breach of the statutory duty before like dates as those from which they were potentially liable at common law.

For judgment, please download: [2011] UKSC 17
For the Court’s press summary, please download: Press Summary
For a non-PDF version of the judgment, please visit: BAILII