Baker v Quantum Clothing Group and Others (No 3)
| Jurisdiction | England & Wales |
| Judge | Lady Justice Smith,Lord Justice Jacob,Lord Justice Sedley |
| Judgment Date | 22 May 2009 |
| Neutral Citation | [2009] EWCA Civ 499 |
| Docket Number | Case No: B3/2007/0795 |
| Court | Court of Appeal (Civil Division) |
| Date | 22 May 2009 |
[2009] EWCA Civ 499
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM NOTTINGHAM
HIS HONOUR JUDGE INGLIS
4NG15127
Before: Lord Justice Sedley
Lady Justice Smith and
Lord Justice Jacob
Case No: B3/2007/0795
John Hendy QC, Theodore Huckle & Robert O'Leary (instructed by Messrs Wake Smith) for the Appellant
Robert Owen QC & Simon Beard (instructed by Weightmans LLP) for 1 st Respondent
Christopher Purchas QC & Catherine Foster (instructed by Hill Hofstetter) for 2 nd Respondent
Toby Stewart (instructed by Halliwells) for 3 rd Respondent
Hearing dates: 16–18 March 2009
Lady Justice Smith
This appeal concerns the liability of employers in the knitting industry of Derbyshire and Nottinghamshire for their employees' hearing loss due to exposure to noise at a lower level than that which has in the past generally been recognised as giving rise to liability.
Historical Background
For well over a hundred years, it has been known that prolonged exposure to loud noise causes deafness. Such deafness was long regarded as an unavoidable occupational hazard. In the early 20 th century, ear protectors were developed and were supplied to some members of the armed forces during both world wars. But it was not until the second half of the century that any real interest was taken in preventing noise-induced deafness in industrial workers.
In April 1960, the government of the day instructed Sir Richard Wilson to chair a committee to report on the problems of noise. The committee's first report was published in 1963. In the same year, in reliance on that report, a Ministry of Labour publication entitled 'Noise and the Worker' drew the attention of employers to the need to protect their workers from excessive noise. At that time, scientific knowledge was not such that it could be said with confidence at what noise level harm was likely to occur. A rough guide was given that workers who were regularly exposed to noise of 85 decibels (dB) at any frequency for 8 hours a day should be protected.
Further research was carried out during the 1960s, in particular by a team led by Professor W. Burns, Professor of Physiology at the University of London and Dr D. W. Robinson, then head of the acoustics section of the National Physical Laboratory. In 1970, the result of their work was published as 'Hearing and Noise in Industry'. By that time, a method had been developed of measuring noise levels by reference to the weighted average for all frequencies (expressed as dB(A)) and for assessing the equivalent noise exposure over an 8 hour working day (expressed as dB(A)leq or more recently dB(A)lepd). Burns and Robinson explained that they were now in a position to predict the degree of risk of hearing loss to groups of an exposed population of varying susceptibility from various levels of noise exposure. Their work would make it possible to prepare a code of practice for employers. They discussed the possibility of establishing a limit of maximum exposure as follows:
“The limit can be set at a variety of levels according to the ultimate risk judged to be acceptable and we suggest that it should not be set higher than 90dB(A) for normal continuous daily exposure which is likely to persist for many years.”
In 1968 and 1971 two further editions of 'Noise and the Worker' were published. The gist of the advice given in the third edition was that, if employees were exposed to noise in excess of 90dB(A), there should be a programme of noise reduction or hearing conservation. That level of noise exposure corresponded approximately to the 85dB which had been the level at which action was recommended in the first edition of 'Noise and the Worker'. The third edition encouraged employers to reduce noise exposure below the maximum permitted level in order to avoid risk to the hearing of 'the minority of people who are exceptionally susceptible to hearing damage'.
A Code of Practice, based on the work of Burns and Robinson was published by the Department of Employment in 1972. Its main messages were that employers must measure the noise in their premises and, if the noise level was 90dB(A)leq or above, must take steps to reduce the noise at source and, if that was not practicable, to provide ear protectors. The Code of Practice also explained that protection from noise of 90dB(A)leq would not protect all workers from hearing damage; some harm was likely to be caused to some susceptible workers by noise below that level.
A set of tables first published in 1973 by the National Physical Laboratory (the NPL tables) showed the relationship between noise dose and the expected extent of hearing loss of persons with different degrees of susceptibility. Noise dose was based upon the daily exposure adjusted for the number of days' exposure in the year and the number of years' exposure. These tables were based on the work of Burns and Robinson. They were republished in 1977 in a more user-friendly form but the underlying science was the same as before and indeed it remains valid today. The tables demonstrated the harmful effect of prolonged exposure to noise below 90dB(A)leq but, because they were based on empirical data and because the data available for these lower noise levels was limited, there was some dependence on extrapolation. The degree of predicted risk arising from exposure to these lower levels of noise is therefore less certain than that caused by noise over 90dB(A)leq. That is of significance in the context of this appeal which raises the issue of when employers ought to have taken steps to protect their employees from exposure to such lower levels of noise.
Until 1989, the Government of the United Kingdom made no attempt of general application to regulate noise exposure in industry. In 1974, regulations were made to control noise in the woodworking industry and in tractor cabs. The regulations required employers to reduce noise to the greatest extent practicable and to provide ear protectors where persons were likely to be exposed to noise at or above 90dB(A)leq.
In 1975, a sub-committee of the Industrial Health Advisory Committee, set up after publication of the Code of Practice in 1972, reported on the problems of framing protective legislation. The gist of this report was that the noise limit recommended by the 1972 Code had widespread acceptance although it did not eliminate all risk of harm. 90dB(A)leq was the most practicable standard although a lower limit should be considered at regular intervals.
In 1975 an international standard was published (ISO1999). This proposed a formula by which hearing loss could be predicted from various levels of noise exposure. It was not easy for a lay person to use. ISO1999 did not suggest limits of tolerable exposure. It said that that was the province of 'competent authorities' who would demand the institution of hearing conservation programmes if limits were exceeded. It mentioned that 'in many cases', 85 to 90dB(A) equivalent continuous sound level had been chosen.
In 1976, a British Standard was published (BS 5330:1976). This was based on the work of Burns and Robinson and explained the relationship between noise exposure and the expected incidence of hearing disability. The foreword stated that determination of a maximum tolerable noise exposure was outside the scope of the standard and referred the reader to the 1972 Code of Practice.
In 1981, the Health and Safety Executive (HSE) issued a consultative document 'Protection of Hearing at Work' which included draft regulations and a draft approved code of practice. The proposed level of protection was at or above 90dB(A)lepd. These draft regulations were not promulgated.
In 1982, a draft directive was published by the European Commission, proposing a general limit of 85dB(A)lepd with ear protection to be provided at or above that level with medical surveillance and routine audiometry for all employees exposed at or above that level. This was greeted with some dismay by industry and was withdrawn in 1984. A further draft directive was published and was promulgated in 1986. This required member states to enact legislation which would, inter alia, require employers to provide ear protectors and information as to risks where employees were exposed to noise likely to exceed 85dB(A)lepd. Medical surveillance was to be made available to all exposed employees by means of access to a doctor. Thus, the only change of significance between the 1982 draft and the 1986 directive was that responsibility for medical surveillance would not fall on the employer but (at any rate in this country) would be satisfied through the provisions of the National Health Service. The Noise at Work Regulations 1989 (SI 1989 No 1970) implementing the directive came into effect on 1 January 1990.
For the sake of completeness, although not relevant to this appeal, I mention that, in 2003, the European Commission issued a further directive imposing more stringent requirements. The Control of Noise at Work Regulations 2005 (SI 2005 No 1643) gave effect to that directive. Inter alia, they introduced a maximum permitted noise level of 87dB(A) and required employers to provide ear protectors to workers exposed to 85dB(A) and to make them available on request to workers exposed to 80dB(A).
The litigation below
This appeal arises out of a group of seven claims heard by His Honour Judge...
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