655655New Law Journal | 13 May 2011 | www.newlawjournal.co.uk

Personal injury

Back to the future?

The Supreme Court allowed the defendants’ appeals in Baker v Quantum Clothing Group Ltd

and others [2011] UKSC 17, [2011] All ER (D) 137 (Apr) last month, the fi rst noise-induced hearing loss (NIHL) case decided at this level. In largely restoring the judge’s 2007 judgment, the Supreme Court has returned NIHL practice back to the position prior to the Court of Appeal’s decision. But Baker’s consequences arguably go further. Potentially, it has ramifi cations for occupational illness litigation in general and for statutory interpretation—both in relation to the provision under consideration in Baker (s 29 of the Factories Act 1961 (FaA 1961)), and in relation to duties in other legislation passed many years ago.

Th e claim was one of seven test cases brought against four diff erent employers in the textile industry known as the Nottinghamshire and Derbyshire Deafness Litigation (unreported, High Court, Nottingham District Registry, 14 February 2007). Between 1971 and 1989, the claimant, Mrs Baker, was exposed to noise at work between 85 and 90 dB(A) Lep,d (dB(A) Lep,d is a person’s daily noise exposure level—the average dose of exposure over an eight hour day). She developed NIHL. But her employer, Quantum, was not liable because it had not breached its duties at common law or under FaA 1961, s 29(1) to keep the workplace safe. Th e other six claimants failed too—but because none could show NIHL.

A guidance document published in 1972, and widely followed in industry, was key. Th e judge considered that this guidance document, the Code of Practice for Reducing

the Exposure of Employed Persons to Noise, constituted an acceptable standard for the reasonable and prudent average employer to follow until the late 1980s. Th e code specifi ed that exposure should not exceed 90 dB(A) Lep,d. Th e judge, HHJ Inglis, considered that “the 90dB(A)Lep,d level was regarded…in industry as the touchstone of reasonable standards that should be attained”. By about the end of 1987, however, the code had been overtaken by new guidance. By then, the average employer should have been aware of the risk of NIHL from exposure below 90dB(A) Lep,d. (Th is was due to publication in 1987 of a consultative document on a draft EEC directive which led to the Noise at Work Regulations 1989 (SI 1989/1790) (the 1989 regs).) HHJ Inglis then gave two years to implement a hearing conservation programme. And he considered that the duty to keep the workplace safe under s 29(1) did not add materially to the common law duty of care. Th us, at common law and under FaA 1961, the average employer would not be liable in relation to exposure below 90 dB(A) Lep,d before 1 January 1990.

An employer with greater than average knowledge of risks to hearing below 90dB(A)

Lep,d, however, could be liable earlier. Th is applied to two of the defendant employers in Baker: Meridian and Pretty Polly. Th ey had a greater understanding of the risks of noise by early 1983. Allowing a two-year implementation period, they would have been liable from the beginning of 1985.

Court of AppealTh e Court of Appeal found that s 29(1) involved a more stringent standard of liability than did common law negligence. Common law(i) For the average employer, in relation to

85dB(A) Lep,d, the date of knowledge was 1987. Th e implementation period was six to nine months (rather than the judge’s two years). Breach for unprotected exposure would attach from January 1988.

(ii) As the judge had found, Meridian and Pretty Polly had relevant knowledge by early 1983. A six- to nine-month implementation period replaced the judge’s two years: breach would have attached from late 1983.

(iii) Quantum possessed, like Meridian and Pretty Polly, special knowledge by early 1983; like them, it would be liable from late 1983.

Section 29(i) Th e interpretation “safe” under

s 29(1) was absolute—it did not involve consideration of whether the risk of injury was reasonably foreseeable. What is objectively safe cannot change with time. Th us, later knowledge could be retrospectively applied to decide whether a workplace

Boris Cetnik & Malcolm Keen refl ect on the ramifi cations of Baker v Quantum

IN BRIEF The Supreme Court’s decision in Baker has returned noise-induced hearing loss

practice to the position prior to the Court of Appeal’s judgment.

The Factories Act 1961Section 29

“(1) There shall, so far as is reasonably practicable, be provided and maintained safe means of access to every place at which any person has at any time to work, and every such place shall, so far as is reasonably practicable, be made and kept safe for any person working there.”

Liability under s 29(1) thus has two elements: (a) the claimant must show that the workplace was not safe. If he does, (b) the burden shifts to the defendant to show that it was not reasonably practicable to make and keep the workplace safe.

SPECIALIST LEGAL UPDATE

www.newlawjournal.co.uk | 13 May 2011 | New Law Journal656 LEGAL UPDATE SPECIALIST

was safe or not. Here the workplace was not safe because a minority of people would suffer appreciable harm from prolonged exposure to 85dB(A) Lep,d.

(ii) The duty to keep the workplace safe was qualified by the second element of s 29(1)—employers only had to take steps which were reasonably practicable—this did import foreseeability.

By late 1976/early 1977, the average employer in the textile industry could have assessed the risk of NIHL from exposure below 90dB(A) Lep,d using a British Standard (BS 5330) published in 1976. Once that assessment was made, employers again had six to nine months to implement a hearing protection policy—liability arose from January 1978.

Supreme Court The Supreme Court (by a majority of 3 to 2) allowed the defendant employers’ appeals and restored the judge’s findings.Common law(i) The judge’s view of the 1972 Code of

Practice was correct. Lord Mance (who gave the lead judgment) said: “…there is, in my opinion, no basis for the court to disturb the judge’s conclusion…that the Code of Practice was an official and clear guidance which set an appropriate standard upon which a reasonable and prudent employer could legitimately rely in conducting his business until the late 1980s.” An average employer had two years to implement protective measures. The judge was entitled to find that the average reasonable and prudent employer was not in breach of its duty of care to its employees before 1990 in relying on the 90dB(A) Lep,d limit.

(ii) Quantum was an average employer, without greater knowledge. Its date of knowledge returned to around late 1987 plus a two-year implementation period (and thus not liable for Mrs Baker’s NIHL).

(iii) Meridian and Pretty Polly had their original dates of knowledge restored—they had special knowledge by early 1983. Adding the two-year implementation period they were in breach of duty from early 1985.

Section 29(i) Section 29(1) can apply to activities

carried on in the workplace.(ii) Section 29(1) is “always speaking”. It

was enacted without any appreciation

that it would cover noise or NIHL. But, as an “always speaking” provision, it can apply to noise since it can accommodate working methods and technological developments that were not foreseeable at the time when the statute was enacted.

(iii) There is no such thing as an unchanging concept of safety. Safety is not an eternal absolute, independent of any judgment based on current standards and attitudes. Whether a place is safe involves a judgment, which is objectively assessed, by reference to the knowledge and standards of the time. Applying the Court of Appeal’s approach would mean that any court determining an issue of safety would be retrospectively applying whatever happened to be the current view of safety at the time the matter came before the court. Since safety is a relative concept, then foreseeability must play a part in determining whether a workplace is or was safe.

(iv) Lord Mance considered that “reasonably practicable” allowed general knowledge and standards to be taken into account. The criteria relevant to reasonable practicability very largely reflect the criteria relevant to satisfying the common law duty to take care. Both require consideration of the nature, gravity and imminence of the risk and its consequences, and the nature and proportionality of the steps which might address the risk, and a balancing of one against the other. The Court of Appeal’s suggestion that there must be a substantial disproportion before the desirability of taking precautions can be outweighed by other considerations was “an unjustified gloss” on the words of the section.

(v) The average employer (including Quantum) will not be in breach of duty under s 29 (or at common law) in respect of noise exposure below 90dB(A) Lep,d prior to 1 January 1990.

(vi) An employer with greater than average knowledge can be in breach of duty in relation to exposure below 90dB(A) Lep,d before 1990. (Meridian and Pretty Polly were in this category, and were in breach of duty from 1985.)

ImplicationsWhat is arguably Baker’s motif is summed up by Lord Saville: “To my mind the contrary views [ie, those of the minority, who would have dismissed the appeal] depend to a significant degree on hindsight

and consequently place an undue burden on employers.” Baker shows that duties under statute and at common law can mirror one another—a statutory duty need not be more stringent. The Supreme Court also replaced the Court of Appeal’s six to nine month implementation period with the judge’s two years: actual knowledge does not instantly metamorphose into guilty knowledge. This principle might also extend beyond NIHL claims.

In its examination of s 29(1), the Supreme Court has established that safety is not an absolute, immutable concept: what is considered “safe” changes with time as knowledge develops and society’s mores change. Foreseeability is thus relevant to the determination of safety.

While an absolute approach to the definition of “safe” might at first appear attractive, a number of perhaps unexpected consequences could result. The state of knowledge, and the view of what is or is not safe at the time of the trial can, like knowledge at the time of the breach, also change. Advances in knowledge could prove that the assessment of safety at the time of the trial was also wrong, though unknowably so at the time.

An absolute approach to safety would also mean that no employer could ever say his factory was safe because he could never know what future knowledge might reveal. Aside from the unfairness that such a retrospective approach suggests, could this be what Parliament intended in passing section 29(1)? That an employer could never affirmatively say that his factory was safe because he could never know what future knowledge might reveal.

Also, if the Court of Appeal had been correct, then the employer’s duty would have been more onerous in 1978, based on a 1961 Act, than the duty under the 1989 regs, and would have not been equalled until 2006, when the Control of Noise at Work Regulations 2005 (SI 2005/1643) came into force. Would Parliament have intended to provide less protection in 1990 than that already provided by FaA 1961?

Baker also explains the approach to interpreting an “always speaking” statute. A risk not addressed at the time of enactment can be encompassed by the statute as knowledge develops. NLJ

Boris Cetnik is a partner & Malcolm Keen is a solicitor in the occupational disease team at national law firm, Berrymans Lace Mawer LLP. E-mail: Boris.Cetnik@blm-law.com & Malcolm.Keen@blm-law.com