The appellant employers in the knitting industry (Q and M) appealed against a decision ((2009) EWCA Civ 499, (2009) PIQR P19) that they were liable for hearing loss sustained by the respondent employees (B) before the entry into force of the Noise at Work Regulations 1989. B had been employed by Q and M in the decades before the Regulations came into force. Q were average-sized employers and M were larger. B had allegedly been subjected to noise levels at work between 85 and 90dB(A)lepd. The Government issued a code of practice in 1972 stating that 90dB(A)lepd was not to be exceeded. In 1983 a Directive had been proposed which would require employers to provide ear protection for workers exposed to noise levels above 85dB(A)lepd. That was enacted as Directive 86/188 and was implemented by the Regulations in 1990. B were given ear protection in the late 1980s. B alleged that the noise levels had induced noise-related hearing loss. The judge rejected their claims on the ground that the employers had been entitled to rely on the code of practice until the terms of the Directive had become generally known and that they had been entitled to two years from then to implement policies. The judge held that M would have had a greater understanding of the risks by 1983 and so should have taken action from 1985, but found that their employees had not been exposed to levels above 85dB(A)lepd. B successfully appealed. The issues before the Supreme Court were whether the judge had been correct to (i) treat M differently to average employers; (ii) find that Q and M had been entitled to rely on the code and had not breached their common law duty; (iii) find that Q and M had not breached their duty under the Factories Act 1961 s.29.

 

HELD: (Lord Kerr J.S.C. and Lord Clarke J.S.C. dissenting; Lord Mance J.S.C. dissenting on different treatment of large and average employers) (1) The judge's assessment that M had had an earlier understanding would not be disturbed. On the basis of their greater resources and research and the discussion generated by the European proposals, larger employers had appreciated by 1983 that the 90dB(A)lepd limit was no longer acceptable. That appreciation was sufficient to found liability (see paras 25, 104 of judgment). (2) There was no reason to disturb the judge's conclusion that the code had been official and clear guidance which set an appropriate standard upon which a reasonable and prudent employer could legitimately rely until the late 1980s. The underlying statistical material did not undermine the code's appropriateness as a guide to acceptable practice. The judge had correctly formed a judgment on the whole of the expert, documentary and factual evidence before him. The date when the 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 judge had allowed two years from the end of the consultation process for the Directive in 1988, meaning that Q had no potential common law liability before 1990, when the Regulations required the provision of protection anyway. The Court of Appeal had not been justified in interfering with that conclusion. As M were in a special position and should have taken steps from 1983, they were liable as from 1985 (paras 30-43). (3) A workplace was unsafe under s.29 if operations constantly and regularly carried out in it made it so, Evans v Sant (1975) QB 626 QBD considered. The noise generated by the knitting machines was a permanent feature of the operations intrinsic to the workplace. That would make the place unsafe if s.29 related to noise. Although s.29 had been enacted without any appreciation that it could cover noise, whether it could cover noise was linked to whether safety was an absolute or relative concept. Although the judgement of whether a place was safe was objective, that was by reference to the knowledge and standards of the time, and the onus was on the employee to show that the workplace was unsafe. There was no such thing as an unchanging concept of safety, R (on the application of Junttan Oy) v Bristol Magistrates Court (2003) UKHL 55, (2004) 2 All ER 555 applied, Larner v British Steel (1993) 4 All ER 102 CA (Civ Div) overruled and Robertson v RB Cowe & Co 1970 SC 29 IH (1 Div) and Mains v Uniroyal Englebert Tyres Ltd (No1) 1995 SC 518 IH (Ex Div) considered. As safety was a relative concept, foreseeability had to play a part in determining whether a place was safe. The judge had been entitled to find that the standard of safety was determined by the code and that judged by that standard, the workplaces had been safe. Had reasonable foreseeability not been imported into the meaning of safety, it would have been imported into reasonable practicability; that meant that some degree of risk was acceptable, and that degree had to depend on current standards (paras 51, 61-68, 76, 82, 123, 127).

Appeal allowed.

 

John Hendy QC led Theodore Huckle and Robert O'Leary, instructed by Chris Fry of Wake Smith & Tofields on behalf of the Respondents.