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Baker v Quantum Clothing, Meridian Ltd and Pretty Polly Ltd (Nottinghamshire and Derbyshire Deafness Litigation) Group Test Case Litigation [2009] EWCA Civ 499

Christopher Purchas QC and Catherine Foster represent Meridian Ltd (formerly Courtaulds PLC) in this landmark case dealing with the date of knowledge for NIHL claims in the textile industry and the interpretation of 29 Factories Act 1961.

Main Issues

  • The application of s 29(1) of the Factories Act to cases involving NIHL (noise induced hearing loss).
  • Whether an employer is liable for exposure at levels of noise between 85 and 90dB(A)

Decision of the Trial Judge (Judge Inglis)

  • No duty on employer at common law to provide hearing protection at such levels of noise until January 1989 for an average employer and January 1985 for employers with more than average knowledge such as Courtaulds.
  • The duty under the Factories Act 1961 did not add materially to the duty at common law.

Decision of the Court of Appeal (Sedley, Janet Smith and Jacob LJJ)

  • The duty at common law to provide hearing protection on an employer with ordinary or average knowledge at such levels would be January 1988 and for employers with more than average knowledge such as Courtaulds January 1985.
  • The duty under the s 29(1) of the Factories Act is far more stringent than that at common law. Under the statute the safety of the place of work is to be judged objectively and without reference to reasonable foresight of injury and without reference to what at the time was considered by employers or others to be an acceptable risk.
  • If an employee exposed to noise of 85 dB(A) suffers deafness, it follows that his place of work was not safe. It matters not that the place would have been safe for other employees. If it is known by the employer that a minority of people will suffer appreciable harm as a result of exposure to 85 dB(A), the workforce as a whole is not safe because they are all at risk of injury. Accordingly such workplaces are not safe for the purposes of s29(1) of the Factories Act.
  • An employer in those circumstances is liable unless he can establish that it was not reasonably practicable for him to eliminate or reduce the risk. To succeed the employer would need to show that the time, trouble and expense of providing appropriate protection would substantially outweigh the risk involved.
  • Whereas at common law the duty is governed by reasonableness and acceptable standards, the question of acceptable risk is not relevant to what is reasonably practicable.
  • All employers in the knitting industry should have been aware of the 1972 Code of Practice within a few months of its publication and by mid 1973 should have turned their minds to the problem of noise, should then have arranged for measurements to be taken and by mid 1974 should have realised that unidentified susceptible employees exposed to levels between 85 and 89 dB(A) were at risk of harm. They thereby became under a duty to do what was reasonably practicable to reduce or eliminate the risk.
  • Quantifying the risk would have been easy until the publication of BS 5330 in July 1976 which should have enabled the average sized employer in the knitting industry to have made an informed assessment of the quantum of risk by early 1977.
  • Adequate protection could have been provided by ear protectors which were neither difficult nor expensive to provide. Allowing a further 9 months for the appropriate procedures to be put in place means that hearing protectors should have been provided by all employers in the knitting industry by January 1978.

Comment

An application for leave to appeal to the House of Lords will probably be made. Further news will be posted as and when available.


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