Baker v Quantum Clothing Group Ltd (Ver 2) [2011] UKSC 17 (13 April 2011)

Employees in the knitting industry claimed compensation for noise-induced hearing loss from exposure to noise levels between 85-90dB(A) before 1990. The Supreme Court examined employer liability under common law negligence and the Factories Act 1961, determining that compliance with the 1972 Code of Practice provided a defence for average employers until the late 1980s.

Facts

Mrs Baker and other employees in the Derbyshire and Nottingham knitting industry brought claims against their employers for noise-induced hearing loss suffered during employment prior to 1 January 1990, when the Noise at Work Regulations 1989 came into force. The central issue was whether employers were liable at common law for negligence and/or under section 29(1) of the Factories Act 1961 for exposing employees to noise levels between 85 and 90dB(A)lepd.

Mrs Baker had worked in a factory from 1971 to 2001 and was exposed to noise levels of approximately 85dB(A)lepd for 18 years. The trial judge found she had sustained some degree of noise-induced hearing loss but dismissed her claim on the grounds that her employers had not breached their duty of care.

Issues

Common Law Negligence

Whether employers who complied with the 1972 Code of Practice (which set 90dB(A) as the maximum acceptable exposure level) were in breach of their common law duty of care to employees exposed to lower noise levels.

Section 29(1) of the Factories Act 1961

Whether section 29(1), requiring workplaces to be kept safe so far as reasonably practicable, applied to noise exposure and, if so, whether safety was an absolute or relative concept.

Judgment

Common Law Negligence

The Supreme Court, by majority, held that the 1972 Code of Practice set an appropriate standard upon which reasonable and prudent employers could legitimately rely until the late 1980s. Lord Mance stated that good practice as informed by official guidance must be taken into account and that the guidance as to the maximum acceptable level was official and clear.

The Court distinguished between average employers and those with greater than average knowledge. Courtaulds and Pretty Polly, having undertaken their own research and developed awareness of risks below 90dB(A) by early 1983, were held liable from the beginning of 1985. However, Quantum and Guy Warwick, lacking such specialist knowledge, were not liable before 1 January 1990.

Section 29(1) of the Factories Act 1961

The majority held that section 29(1) applied to noise exposure from regular activities in the workplace. However, they concluded that safety is a relative concept, to be judged by the knowledge and standards of the time, rather than being an absolute standard. Lord Mance stated that whether a place is safe involves a judgment objectively assessed by reference to the knowledge and standards of the time.

Lords Kerr and Clarke dissented on this point, holding that safety should be judged objectively without reference to what was believed to be safe at the relevant time, with foreseeability only relevant to the reasonable practicability defence.

Implications

This case establishes important principles regarding employer liability for occupational health hazards:

• Compliance with official codes of practice and recognised industry standards may provide a defence to negligence claims, unless the practice is clearly bad or the employer has special knowledge
• Courts should be slow to impose liability on employers who followed generally accepted practice based on official guidance
• The concept of safety under the Factories Act 1961 is relative and must be assessed by contemporary standards
• Employers with specialist knowledge or resources may be held to a higher standard than average employers
• A reasonable period for implementing protective measures should be allowed once a duty arises

Verdict: Appeals allowed. The Supreme Court restored the trial judge's decision that Quantum and Guy Warwick (average employers) were not liable before 1 January 1990. Meridian (Courtaulds) and Pretty Polly, having greater knowledge, were liable from 1 January 1985. Mrs Baker's claim against Quantum was dismissed.

Source: Baker v Quantum Clothing Group Ltd (Ver 2) [2011] UKSC 17 (13 April 2011)