Following the Supreme Court decision in the appealed case of Baker v Quantum Clothing Group[2], employers are not liable for injuries caused by exposure to noise below 85 dB (A), before the 1^st January 1990.

 Background

Baker brought a claim against her employer, Quantum Clothing Group, having worked in their factory and having been exposed to noise levels between 85 dB (A) and 90 dB (A) lepd.[3]

Although Baker was found to have suffered noise induced hearing loss, it was ruled that Quantum Clothing Group had not breached either their common law duty or their statutory duty.

Employers Statutory Duty

The 1971 / 1972 Code of Practice, known as the Consultative Documents, referred to as the Prevention of damage to Hearing from Noise at Work, led to the 1989 Noise at Work Regulations, which came into force on the 1^st January 1990. The Code of Practice states that a level of 90 dB (A) should not be exceeded, if exposure is continued for 8 hours in any one day and the noise exposure is to a reasonably steady sound.

The 1989 Noise at Work Regulations state the following: –

•  Hearing protection should be provided for those exposed to noise at levels of 85 dB (A).
• Where noise levels are 90 dB (A), hearing protection should be provided and employers need to make sure the hearing protection is worn.

 The 2005 Control of Noise at Work Regulations changed the 1989 Noise at work Regulations as follows: –

•  Hearing protection should be provided for those exposed to noise at levels of 80 dB (A).
• Where noise levels are 85 dB (A), hearing protection should be provided and employers need to make sure the hearing protection is worn.

 Meaning

Employers will only be liable for causing noise induced hearing loss, if they have breached the 2005 Control of Noise at Work Regulations or the 1989 Noise at Work Regulations, which should have been implemented by the 1^st January 1990.

The Supreme Court decided that risks of noise exposure below 90 dB (A) lepd only became generally known in 1988. Employers were given a 2-year grace period in order for them to be able to implement the protective measures. An average employer is therefore not liable for any noise exposure below 90 dB (A) prior to the 1^st January 1990, as average employers were held not to have the requisite knowledge needed.

However, large organisations, companies that are seen to have special knowledge, are not average employers and are therefore liable for exposing employees to noise levels of 85 dB (A), following the 1983 EC Directive, which required implementation by 1985.

Conclusion

The Supreme Court reached its decision in order to avoid opening up the floodgates. What the courts will now need to consider, when deciding the outcome of a noise induced hearing loss claim, in relation to exactly when a Claimant has been exposed to excessive noise, is whether a company is classed as a large organisation, such as Meridian Limited or Pretty Polly and as a result deemed to have special knowledge or whether a company is average, alleviating those companies from any liability of noise exposure of 85 dB (A), prior to the 1^st January 1990.

[2] Baker v Quantum Clothing Group Limited and others (Meridian Limited) [2011] UKSC 17..

[3] dB (A) lepd indicates exposure at a given sound level over a period of 8 hours.