Baker v Quantum Clothing Group and Others (No 3)

JurisdictionEngland & Wales
CourtSupreme Court
JudgeLORD MANCE
Judgment Date13 April 2011
Neutral Citation[2011] UKSC 17
Date13 April 2011

[2011] UKSC 17

THE SUPREME COURT

Hilary Term

On appeal from: [2009] EWCA Civ 499

before

Lord Mance

Lord Kerr

Lord Clarke

Lord Dyson

Lord Saville

Baker
(Respondent)
and
Quantum Clothing Group Limited and Others
(Appellants)
Baker
(Respondent)
and
Quantum Clothing Group Limited and Others (Pretty Polly Limited)
(Appellant)
Baker
(Respondent)
and
Quantum Clothing Group Limited and Others (Meridian Limited)
(Appellants)

Appellant

Michael Beloff QC

Dominic Nolan QC

Simon Beard

(Instructed by Weightmans LLP)

Respondent

John Hendy QC

Theodore Huckle

Robert O'Leary

(Instructed by Wake Smith & Tofields)

Appellant

Patrick Limb QC

Toby Stewart

(Instructed by Berrymans Lace Mawer LLP)

Respondent

John Hendy QC

Theodore Huckle

Robert O'Leary

(Instructed by Wake Smith & Tofields)

Appellant

Christopher Purchas QC

Catherine Foster

Nadia Whittaker

(Instructed by Hill Hofstetter LLP)

Respondent

John Hendy QC

Theodore Huckle

Robert O'Leary

(Instructed by Wake Smith & Tofields)

Intervener (Guy Warwick Limited)

Michael Kent QC

A John Williams

(Instructed by Keoghs LLP)

Heard on 22, 23 and 24 November 2010

LORD MANCE
Introduction
1

This appeal concerns the liability of employers in the knitting industry of Derbyshire and Nottingham for hearing loss shown by employees to have been suffered during the years prior to 1 January 1990, the date when the Noise at Work Regulations 1989 (SI 1989/1790) came into force. The central issue is whether liability exists at common law and/or under section 29(1) of the Factories Act 1961, towards an employee who can establish noise-induced hearing loss resulting from exposure to noise levels between 85 and 90dB(A)lepd.

2

Noise is generated by pressure levels in the air. The loudness of a noise depends on the sound pressure level of the energy producing it, measured in decibels (dB). The decibel scale is logarithmic, so that each 3dB increase involves a doubling of the sound energy, even though a hearer will not actually perceive a doubled sound pressure as involving much, if any, increase in sound. Noise is rarely pure, it usually consists of a "broadband" combination of sounds at different frequencies, and the human ear is more sensitive to noise at some (particularly middle) frequencies than at others. The sound pressure level across a range of frequencies is in a general industrial context commonly expressed by a weighted measurement described as dB(A). Apart from very loud, immediately damaging noise, with which this case is not concerned, damage to the human ear by noise exposure depends upon both the sound pressure level from time to time and the length of exposure, as well the individual susceptibility of the particular individual. Sound pressure level averaged over a period is described as dB(A)leq. Exposure at a given dB(A)leq for 8 hours is described as dB(A)lepd. Exposure at a given dB(A)lepd for a year gives a Noise Immission Level (NIL), which will build up slowly with further years exposure.

3

Sound is perceived by the hearer as a result of the conversion by the ear drum of the sound pressure variations in the air into mechanical vibrations. These are conveyed by the middle ear to the cochlea, which, by a process of analysis and amplification, translates these vibrations into nerve impulses which are then transmitted to the brain's auditory nerve. Hair cells in the cochlea play a vital part in the process, and noise-induced hearing loss (described as sensorineural) is the result of damage to such hair cells resulting from exposure to noise over time. Other causes of hearing loss include decline in the conductive function of the outer and/or inner ear, due for example to disease, infection, excess wax or very loud traumatic noise, as well as loss due to simple ageing (presbyacusis). Hearing loss is commonly measured by ascertaining the average threshold below which hearing is affected and comparing it with a normal threshold. Both the rate at which any individual will suffer ageing loss and the susceptibility of any individual to damage as a result of noise exposure are, as between different individuals, very variable as well as unpredictable. Statistics, produced as will appear in the 1970s, do no more than attempt to indicate what percentage of a particular population may be predicted to suffer a particular level of hearing loss by a particular time in their lives by these different causes depending upon their circumstances.

4

In 1971 a Code of Practice was prepared by the Industrial Health Advisory Committee's Sub-Committee on Noise, and in 1972 it was published by the Department of Employment "as a blueprint for action". This Code remained in issue at the material times thereafter, and it said that a level of 90dB(A) should not be exceeded "[i]f exposure is continued for eight hours in any one day, and is to a reasonably steady sound" (para 4.3.1).

5

On 14 February 2007, His Honour Judge Inglis decided test cases, involving seven claims against four different companies: Taymil Ltd (successors to the liabilities of several employing companies and now known as Quantum Clothing Group Ltd), Meridian Ltd, Pretty Polly Ltd and Guy Warwick Ltd. The cases were all brought on the basis that there had been exposure to noise levels between 80 and 90dB(A)lepd.

6

Mrs Baker's claim was against Taymil. She had worked in Simpson Wright & Lowe's factory in Huthwaite Road, Sutton in Ashfield from 1971 (when she was 15) to 2001. The judge found that for 18 years, from 1971 to 1989, she "is likely to have been exposed to a noise level that attained 85dB(A)lepd, but did not at any time substantially exceed that level by more than 1db" (para 182). He also found that some other condition was affecting her left ear, but that her "years of exposure at or slightly above 85dB(A)lepd" had led to her sustaining a degree of noise-induced hearing loss and had played a small part in her suffering tinnitus. But Mrs Baker's claim failed on the ground that her employers had not committed any breach of common law or statutory duty. Had liability been established, the judge would have awarded her £5,000 for "this slight hearing loss and slight contribution to the tinnitus" (paras 192–193).

7

All the other employees' claims failed. In none of their cases was any noise-induced hearing loss shown to have occurred due to the relevant employment. Only for a few months in the 1960s in the case of Mrs Moss claiming against Taymil and for about two years (1985–1986) in the case of Mrs Grabowski claiming against Pretty Polly was there shown to have been any exposure to noise levels of or over 85dB(A)lepd in the relevant defendants' employment. However, in the case of Meridian (employers of Mr Parkes and Mrs Baxter and a subsidiary of Courtaulds plc) and Pretty Polly (employers of Mrs Grabowski and a subsidiary of Thomas Tilling Ltd until 1982 and of BTR plc until 1994) the judge would have held liability to exist from the beginning of 1985, had noise-induced hearing loss been shown to have been incurred due to exposure to noise exceeding 85dB(A) in such defendants' employment.

8

Mrs Baker appealed to the Court of Appeal as against Quantum, and Meridian and Pretty Polly were joined to enable issue to be taken with certain of the judge's conclusions potentially affecting other claims. Guy Warwick was a respondent to an appeal brought only on costs. The Court of Appeal (Sedley, Smith and Jacob LJJ) allowed Mrs Baker's appeal on 22 May 2009, and reached conclusions less favourable to all four employers than those arrived at by the judge. The present appeal is brought by Quantum, Meridian and Pretty Polly, with Guy Warwick intervening by permission of the Supreme Court given on 30 June 2010.

9

The test of an employer's liability for common law negligence is common ground. In Stokes v Guest, Keen and Nettlefold (Bolts and Nuts) Ltd [1968] 1 WLR 1776, 1783, Swanwick J described the position as follows:

"From these authorities I deduce the principles, that the overall test is still the conduct of the reasonable and prudent employer, taking positive thought for the safety of his workers in the light of what he knows or ought to know; where there is a recognised and general practice which has been followed for a substantial period in similar circumstances without mishap, he is entitled to follow it, unless in the light of common sense or newer knowledge it is clearly bad; but, where there is developing knowledge, he must keep reasonably abreast of it and not be too slow to apply it; and where he has in fact greater than average knowledge of the risks, he may be thereby obliged to take more than the average or standard precautions. He must weigh up the risk in terms of the likelihood· of injury occurring and the potential consequences if it does; and he must balance against this the probable effectiveness of the precautions that can be taken to meet it and the expense and inconvenience they involve. If he is found to have fallen below the standard to be properly expected of a reasonable and prudent employer in these respects, he is negligent."

10

Mustill J adopted and developed this statement in another well-known judgment in Thompson v Smiths Shiprepairers (North Shields) Ltd [1984] QB 405, when he said (at pp 415F-416C):

"I shall direct myself in accordance with this succinct and helpful statement of the law, and will make only one additional comment. In the passage just cited, Swanwick J drew a distinction between a recognised practice followed without mishap, and one which in the light of common sense or increased knowledge is clearly bad. The distinction is indeed valid and sufficient for many cases. The two categories are not, however, exhaustive: as the present actions demonstrate. The practice of leaving employees unprotected against excessive noise had never been followed 'without mishap.' Yet even the plaintiffs have not suggested...

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