In Baker v. Quantum [2009] EWCA Civ 499, the Court of Appeal reaffirmed that whether a place of work is "safe" is an objective test and is not be judged by whether any risk ought to have been foreseeable. It also reaffirmed the marked difference between what is “reasonably practicable” in a statutory duty case and what is “reasonable” in a case of common law negligence.

 

As a result the threshold for deafness claims under the Factories Acts has now been reduced to 85 dB(A) L_EP,d for all employers as from January 1978. A large number of deafness claims by former factory workers now have significantly greater prospects of success as few employers took steps to prevent exposure below 90 dB(A) L_EP,d.

 

It is well known, and has been for a number of decades, that prolonged exposure to noise exceeding 90 dB(A) L_EP,d creates a risk to the hearing of a majority of those so exposed. Only a minority, albeit a large minority, of people are at risk to exposure to levels below 90 dB(A) L_EP,d.

 

The Nottinghamshire and Derbyshire Deafness Litigation and the consequent appeal in Baker v. Quantum [2009] EWCA Civ 499 concerned the question of from what date employers in the textile industry were under a duty to protect employees against the risk of injury arising out of exposure to noise levels below 90 dB(A) L_EP,d. The Defendants argued that there was no such duty until the Noise at Work Regulations 1989 came into force in 1990. The Claimants argued that as there is a risk arising from exposure to in excess of 80 dB(A) L_EP,d, then the duty was to protect against that exposure. This duty was imposed by section 29 of the Factories Act 1961 which required the employer to make the place of work “safe” so far as reasonably practicable. The duty was also imposed at common law as from the date that such risks were, or ought reasonably to have been, foreseen by and guarded against by the employer.

 

The trial judge (relying on the unreported first instance decision of Rose J in Taylor v. Fazakerley) held that the 1961 Act did not impose a duty on an employer in respect of noise levels which he did not know and could not reasonably have known created a risk at the time. Therefore a place of work was safe so long as it was free from risks which were or ought to have been known.

 

As to what was reasonably foreseeable, the Judge found that the risk of injury below 85 dB(A) L_EP,d, is minimal and thus no statutory or common law duty ever arose in respect of such exposure. This part of the judgement was not appealed.

 

The Judge found that the common law and statutory duties to protect from noise only arose when exposure reached 85 dB(A) L_EP,d, because, above that level, “given long enough exposure, significant hearing loss may be expected in at least a substantial minority of individuals”.

 

The judge found that it was neither difficult nor expensive to provide hearing protection, but that the duty to do so only arose when it became reasonable for the employer to do so, which was when the employer knew, or ought to have known, of the risks and ought reasonably have acted upon them.

 

On the facts he found that one of the larger employers, as well as one of the smaller employers who had greater than average knowledge, were aware of the risks above 85 dB(A) L_EP,d by early 1983 and ought to have commenced protection (namely the provision of hearing protection, information and instruction) by 1985.

 

He also held that medium and small sized employers who did not know of the risks, ought to have known by 1987 and to have instituted protection by 1989.

 

One of the Claimants (who had been employed by one of the larger employers) appealed on two grounds. First, whether a place is “safe” is to be considered objectively and cannot turn upon when it was that the employer first discovered, or ought to have discovered, the risks. Second, if foreseeability is the test, then the risk was or ought to have been known since the early 1970s.

 

The Court of Appeal allowed the Claimant’s appeal on both grounds.

 

“Safe”

 

The statutory duty so far as reasonably practicable to make the place of work safe is imposed by section 29 of the Factories Act 1961. A place of work cannot be safe at one time and unsafe at another if all that changes is what was, or ought to have been, known about the risks. To introduce the concept of reasonably foreseeability is to equate the statutory duty with that at common law. Although foreseeability of the risk is relevant to whether it was reasonably practicable to have made the place safe, it is not relevant to whether it was in fact safe. This was the effect of Larner v. British Steel [1993] ICR 551 (CA) as well as two decisions of the Scottish Inner House of the Court of Session ( Robertson v. RB Cowe & Co [1970] SLT 122 and Mains v. Uniroyal Englebert Tyres Ltd [1995] IRLR 544). A contrary remark by Lord Upjohn in the House of Lords in Nimmo v. Alexander Cowan & Sons Ltd [1968] AC 107 was entirely obiter.

 

In the alternative, if foresight is relevant to safety, any employer who kept abreast of developing knowledge would have known by the early 1970s that exposure to 85 dB(A) L_EP,d created an appreciable risk of significant injury to a sizeable portion of those exposed to it. Where such risk was routinely present was therefore not “safe”.

 

“Reasonably practicable”

 

The remaining question regarding the claim under the 1961 Act was as to when it became reasonably practicable to make the place of work safe. Rather than refer this back to the trial judge, who had not considered it, the Court of Appeal decided the matter for itself.

 

The classic statement of what is meant by “reasonably practicable” is to be found in Asquith LJ’s judgment in Edwards v. National Coal Board [1949] 1 KB 704 CA at 712:

 

‘Reasonably practicable’ is a narrower term than ‘physically possible’ and seems to me to imply that a computation must be made by the owner in which the quantum of risk is placed on one scale and the sacrifice involved in the measures necessary for averting the risk (whether in money, time or trouble) is placed in the other, and that, if it be shown that there is a gross disproportion between them – the risk being insignificant in relation to the sacrifice – the defendants discharge the onus on them.

 

In the Court of Appeal, Lady Justice Smith (with whom Sedley and Jacob LLJ agreed) expanded on this. First, where an employer did not know but ought to have known of the risks, the burden is on him to show that it would not have been reasonably practicable to have made the place safe even if he had known of the risks and made the required computation. Second, just because the sacrifice (in money, time or trouble) of making a place safe may be disproportionate to the quantum of risk does not mean that it is not reasonably practicable to do so. The disproportion has to be sufficiently substantial as to amount to a “gross disproportion”. Third, “quantum of risk” refers to the severity of harm as well as its likelihood.

 

The combination of the burden of proof being on the employer and the substantial disproportion required makes the statutory duty much stricter than the common law duty. The common law duty is pervaded throughout by considerations of reasonableness. Is the risk reasonably foreseeable? If so, ought the employer reasonably to be expected to combat the risk? If so, what steps ought he reasonably to take? On the other hand, for the statutory duty, reasonableness serves only to qualify the concept of practicability. It does not qualify the level of risk required before prevention is required. A risk which renders a place not safe may be reasonably acceptable and thus not subject to the common law duty; however it still gives rise to the statutory duty to make the place safe. The fact that the Department of Employment’s 1972 Code of Practice for Reducing the Exposure of Employed Persons to Noise warned of the risks below 90 dB(A) L_EP,d but only advised that protection be provided where exposure exceeded that level may have meant that exposure below 90 dB(A) L_EP,d was reasonably acceptable, but it did not mean it was safe nor that it was not reasonably practicable to make it safe.

 

Although the Claimants’ places of work, where they were exposed to 85 dB(A) L_EP,d or higher were not safe, it was not reasonably practicable for the employer to have made them safe before the risk should first have become known. The knitting industry was not one, like shipbuilding, where deafness amongst the workforce was always known to be widespread. However, like all employers who had any noisy processes, the knitting industry employers ought to have been aware of the Department of Employment’s Code of Practice within a few months of its publication in 1972 and they ought to have been turning their minds to its application to their workplaces by mid-1973. This would have involved measuring the noise levels which would have taken until about mid-1974. Then consideration had to be given as to how great was the quantum of risk, namely how many people were at risk and how severe might the damage be. A suitably qualified expert, which the employer ought to have consulted, would have been able to answer this from mid-1976 following publication of British Standard BS 5330:1976. By January 1978, hearing protection ought to have been provided if it was not grossly disproportionate to have done so.

 

As the quantum of risk was that a substantial number of employees exposed for many years to 85 dB(A) L_EP,d or more would suffer significant hearing loss and it was known that employees in the industry tended to stay for many years and as it was neither difficult nor expensive to provide hearing protection to those exposed to 85 dB(A) L_EP,d or more, the employers had not succeeded in establishing that it was not reasonably practicable to have provided such protection.

 

The date by which an employer ought to have been aware of the risks and the degree of risk of which it ought to have been aware will depend upon what the employer would have discovered if he had sought suitably qualified expert opinion. He ought to have sought such expert opinion following publication of the Code of Practice in 1972.

 

 

As the claimant succeeded on the question of breach of statutory duty, the issue of common law negligence did not need to be decided. However, the Court dealt with it briefly. The Court of Appeal upheld the judge’s decision that, on the evidence before him, the risk of injury at between 85 and 90 dB(A) L_EP,d was, for the employer with the ordinary or average degree of knowledge, a reasonably acceptable risk until 1987 following publication in 1986 of a second draft of a proposed European directive suggesting prevention of 85 dB(A) L_EP,d and above. However Lady Justice Smith (with whom Sedley and Jacob LLJ agreed) remarked “although, left to myself, I would have said that the publication of the first draft directive in 1982 would have put all employers on notice that it could no longer be regarded as acceptable or reasonable to leave this group of employees exposed.”

 

The Court went on to find that the employer ought to have acted within 6 months of being on such notice (instead of the 2 years which the judge had allowed). Therefore the common law duty of care for the average employer to provide hearing protection to those exposed to between 85 and 90 dB(A) L_EP,d arose as from 1988 (cf the statutory duty which arose 10 years earlier).

 

It was not right that employers who failed to keep abreast of what was known about the risks from noise should not have been under a common law duty until after similar employers who did keep abreast of developments.

 

The court apportioned the Claimant’s loss on a time basis which was the basis agreed by the parties.

 

COMMENT: Employers of factory workers exposed over many years to noise levels exceeding 85 dB(A) L_EP,d will be liable for failure to provide hearing protection after 1977.

 

The lesser common duty will have required all employers to have provided hearing protection against such levels as from, at the latest 1988. The Court left open the possibility that such duty may have arisen in 1984.

 

The insurers for the Defendants in this litigation spent vast sums (thought to be in the region of £4 million) in defending the claim and the appeal over the course of some 6 years. Such funding was not available to the Claimants whose solicitors and barristers all acted on conditional fee agreements. After the event insurance was provided by LAMP.

 

John Hendy QC led the legal team instructed by Chris Fry of Wake Smith.

 

(Note prepared by Jonathan Clarke).