Textile “low level” deafness test cases
There are apparently more than 4,000 claims for damages for noise-induced hearing loss from the textile industry, usually by sewing machine operators.
700 litigated claims are subject to a case management order by HHJ Inglis.
Ten test cases were heard before him on 9 October 2006 at Nottingham High Court. They were all non trade union supported, low level (i.e. less than 90 dB) noise exposure cases, usually alleging that industrial sewing machines and clothes presses had caused the hearing loss.
All the claimants lost but some principles were derived from the cases:
• An employer with “greater than average knowledge of the risks of hearing loss” was fixed with knowledge of the real risk of damage from noise at or over 85 dB by no later than the beginning of 1983. Allowing time to put in place an effective system of hearing protection, these employers should, by no later than the beginning of 1985, have had that system in place. In this case, two defendants, Courtaulds (Meridian Limited) and Pretty Polly Limited were found to have greater than average knowledge so as to make them negligent from 1985. These cases failed on causation.
• The employers without “greater than average knowledge” were only liable to their employees for noise levels above 85 dB from the introduction of the Noise at Work Regulations 1989 from 1 January 1990. Before then, employers without greater than average knowledge only had a duty of care not to expose their employees to hearing levels above 90 dB from 1972 until 1990.
• There was no liability at all against any of the defendants for exposure at any time below 85 dB. The risk of hearing damage at this level was minimal and no duty of care could be triggered below 85 dB.
Keith Patten has considered the full judgement and distributed an eight-page note from RF Owen QC to deafness representatives in each office.
An appeal is apparently pending.
There has been some jubilation from defendant insurers about these cases but the Claimants’ solicitors, Wake Smiths, point out that they were at least successful in showing a duty of care existed for exposure between 85 dB and 90dB before the Noise at Work Legislation in 1989.
This point had already been made by Thompsons in 2005 in the Court of Appeal in Harris -v- BRB.