Threshold lowered for hearing damage

Employers are now liable for exposure of their workers to lower noise levels. Keith Spicer reviews the implications of the deafness test cases.

Until the Noise at Work Regulations came into force in 1990 employers generally assumed that they could expose their employees to noise levels in excess of 85 decibels (dB) without fear of facing compensation claims from those who suffered damage to their hearing as a result of being exposed to noise at work.

The Court of Appeal has recently ruled in the case of Baker -v- Quantum Clothing Ltd that employers are liable for damage to workers’ hearing where they exposed them to noise levels between 85 and 90dB before the implementation of the Noise at Work Regulations.

This is a welcome decision and one that could result in many more workers achieving justice than was previously the case.

Baker -v- Quantum Clothing

In February 2007 a number of textile workers brought deafness test cases involving daily exposure to levels of noise below 90dB under the Noise at Work Regulations.

They had all been exposed before January 1990 and the trial Judge concluded that therefore there was no common law liability in negligence on most employers for exposure to employees at noise levels between 85-90dB, nor was there any breach of Section 29 of the Factories Act 1961.

But in the case of Baker the appeal court Judges have said that there is.

Establishing negligence

To establish a successful claim in “common law negligence” it is necessary to prove that the employer should have known that their employees’ exposure to noise in the workplace was of such a level that it could cause damage to their hearing, and that the employer could have taken steps to reduce the noise exposure.

If it can be shown that the employer knew or should have known that the noise levels were too high and took no steps to prevent injury then, subject to proof of injury, they are likely to be found liable to pay compensation for any noise related hearing loss.

Historical advice

Noise induced deafness has been known about for well over 100 years and in some jobs hearing protection was provided in the 1940s and 1950s.

In 1963, the Minister of Labour published “Noise and the Worker”, the first major publication on the subject. It made employers aware of the dangers of excessive noise and recommended what they needed to do to protect their workers from exposure to excessive noise.

At that time it was not possible to be precise about measuring noise levels or the amount of damage that could be done to a work force by noise exposure. But it was suggested that employers should not be exposed to noise levels above 90dB over an eight hour working day.

Based on later research, the ”Code of Practice for Reducing Noise” was introduced in 1972. Again this referred to an average noise level exposure of 90 dB but did not suggest that exposure below that level was necessarily safe.

Suggestions were made for steps that should be taken by employers to reduce the level of exposure to noise and for the provision of hearing protection.

However, no specific legislation was brought in to protect employees from noise exposure, although in 1974 some regulations were introduced covering those in the wood working industry and in tractor cabs.

It was not until 1 January 1990 through “The Noise at Work Regulations 1989” that legislation protected most employees in most industries.

This set two action levels: 85dB and 90dB. Both gave rise to steps that employers should take to reduce their employees exposure to noise.

The law was extended by the “Control of Noise at Work Regulations 2006” which gave protection against lower levels of noise exposure of 80 and 85dB.

Baker and the Factories Act

Stephanie Baker was exposed to between 85 and 90dB over a period from 1971 to 1989 while she was employed by a knitting company.

Her case had to rely on common law negligence and also breach of statutory duty under Section 29 of The Factories Act 1961 which was then the only breach of duty that applied since her exposure pre-dated the Noise at Work regulations.

Section 29 of the Factories Act states “There shall, so far as is reasonably practical, be provided and maintained a 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 reasonably practicable, be made and kept safe for any person working there.”

But the first trial Judge said there was no breach of the Factories Act and, due to the state of knowledge in the textile industry in the 1970s and 80s, the employers did not have to take any special steps if the noise levels were below 90dB.

However employers with greater than average knowledge had until the beginning of 1985 to supply hearing protection.

But the appeal court Judges found that activities that lead to exposure to employees of excessive noise levels above 85dB do, under the Factories Act, make the workplace “unsafe”. It was not necessary for a Judge to look at the state of knowledge at a specific time (as it is to establish negligence) to establish a breach under the act.

Before the Baker case, courts in other deafness cases have been somewhat inconsistent in their decisions as to whether there was a breach of Section 29 of the Factories Act when an employee was exposed to excessive noise at work. None were binding on the law or on the first trial judge in Baker.

But the Court of Appeal’s ruling means that all factory employers have a duty under Section 29 of the Factories Act 1961 to protect their workforce against noise exposure and that, in the textiles industry, there would be liability on employers for noise exposure at levels between 85 and 90dB from January 1978.

The difference being that some industries, such as the railway and car industries had greater knowledge earlier on about the risks of noise exposure at those levels.

So, in the ASLEF backed case of Harris -v- the British Railways Board and others, the appeal court accepted that BRB was aware for some years prior to the implementation of the Noise at Work Regulations, that noise levels in excess of 85dB, but lower than 90dB, could damage hearing.

Common law negligence

The Court of Appeal also considered the position of common law negligence and took the view that an employer would have developed some knowledge by 1983 and, allowing time to investigate, if they then failed to provide hearing protection to those exposed to noise between 85 and 90dB by January 1988, they were also guilty of common law negligence.

The important issue on which Ms Baker succeeded was that “the safety of a work place” was to be judged entirely objectively and not by reference to what was “reasonably foreseeable at the time”.

The court agreed, in considering the evidence given in the textile workers cases, that the earlier Judge’s finding “that exposure to levels of noise between 85 to 90dB was in fact harmful for a significant minority of employees” meant that the workplace was not safe and that there was a breach of Section 29 of the Factories Act 1961.

The Regulations today

The Factories Act 1961 was abolished on 1 January 1993. Health and safety representatives now rely on the following main regulations:

  1. The Control of Noise at Work Regulations 2005 came mainly into force on 6 April 2006. They provide lower action levels for noise exposure, noise risk assessments, elimination or control of noise exposure to employees, provision of hearing tests, provision of hearing protection and the maintenance and use of such equipment, information instructions and training in matters concerning exposure to employees to noise.
  2. The Management of Health and Safety at Work Regulations 1993 latest addition 1999. The main regulation relates to the provision of risk assessments.
  3. Workplace (Health, Safety and Welfare ) Regulations 1992 Regulations 5,10,11and 12 replaced section 29 of the Factories Act.