In 2009, a Court Of Appeal ruled in a case concerning noise induced hearing loss and safety in the workplace. It contended employers were liable for any risk that would give rise to injuries, such as hearing damage that existed, not just for a reasonably-foreseeable risk, as was previously held.
This ruling has implication for employers, as it means that risks would have to be considered that they may not even be able to foresee. In the above case, it was held, in accordance with section 29 of the Factories Act 1961, that even though the risk of industrial deafness was minimal and affected only a small minority of employees, it was not an adequate defence by the employer for not taking action to remove it, where reasonably practicable.
Two year earlier, the original excessive noise level case was dismissed at the High Court. The claimants alleged that they had suffered noise-induced hearing loss as a result of exposure to noise levels between 80dB 90dB, while working in textile factories prior to the introduction of ‘The Noise at Work Regulations 1989’. Only one claimant appealed against the court’s decision.
It had been held in the lower court that, in the absence of “greater than average knowledge” by an employer or safety professional as to the dangers of noise exposure at levels below 90dB, the existing common-law action level was reaffirmed – i.e. employers could remain reliant on the defence of reasonable foreseeability, and thus escape liability for such conditions.
Small-scale textile manufacturers were set at 90dB level, at which they were required to take action to protect their employees from hearing damage, while large-scale producers were set an action level of 85dB, owing to their “greater knowledge” of what constituted unsafe levels of noise.
When the case was heard in the Court of Appeal, the common-law position was effectively upheld. The judge in the lower court had used a decision in a previous case, to equate the section 29 standard of safety to the common-law position – meaning that an employer only had to ensure that his workplace was safe as far as was reasonably foreseeable. However, the key issue relating to the application of section 29 of the Factories Act – the need to keep a place of work safe – went against the defendant.
It was concluded that, an average-sized employer should have sought advice from an acoustic engineer as to the proportion of risk arising from exposure to 85dB, and that the absence of hearing protection was in breach of section 29.
The claimant had been exposed to noise levels between 85 and 86 dB. Since she had established cause resulting in effect at the court below the Court of Appeal, she had succeeded in proving that her employer was liable for her noise-induced hearing loss.