It is well established in law that, in terms of exposure to noise, the watershed between risk and safety is defined at 90dB(A)leq. In general, therefore, claimants have to show that they have been exposed to that level of noise to establish a breach of their employer’s duty of care.
However, as the Court of Appeal said in Harris v English, Welsh and Scottish Railway Ltd, a lower level of noise can result in a breach, particularly if the employer knew of the risk and did nothing about it. Mr Harris was supported by his union, ASLEF, which instructed Thompsons to act on his behalf.
Mr Harris worked as a train driver for English, Welsh and Scottish Railway Ltd for 26 years. During that time, he worked on a number of different – and very noisy – locomotives, which resulted in him suffering permanent hearing loss. At the age of 50, he lost his job after failing a hearing test.
Mr Harris claimed that his employer owed him a duty of care because the sound levels to which he had been exposed over the years exceeded 85dB(A)leq and that he should have been provided with ear plugs. The employers argued that he had to show an exposure to 90dB(A)leq or above.
Court of Appeal judgement
The Court of Appeal said that just because an employer’s liability usually arises at 90dB(A)leq, a lower level of noise may still give rise to a duty of care.
In this case, the Court said that the company was aware from 1973 that exposure above 85dB(A)leq could give rise to a real risk of damage. As early as 1977, the Head of Acoustics recommended issuing personal ear protection for anyone exposed to 85dB(A)leq of noise or above.
Over the next ten years, the company debated the use of ear protectors and the advisability of bringing down noise levels in the cabs to 85dB(A)leq. The Railway Inspectorate also put pressure on them to introduce protectors.
However, although it required employees in the engine room to wear ear protectors, British Rail decided not to allow cab drivers to do so because they would not be able to hear essential sounds like warning and danger signals.
In any event, it said that there was resistance among staff to wearing them. The Court said there was no evidence to support either of these views.
It concluded that it was quite clear to the train company, at least by 1980 that it was “knowingly exposing people to a situation which would make them deaf”.
Although the company knew that it could reduce exposure to noise through the use of earplugs, it did nothing about it. In fact, the Court said that it “took the view that to do so would be more trouble than it was worth, and that it would be better to run the risk of facing the possibility of future claims.”
The Court also decided that the company was in breach of section 11 of the Noise at Work Regulations because it had not given Mr Harris any information about the risk of exposure.
Mr Harris was awarded a six figure sum, which was one of the highest amounts ever for industrial deafness.
This sort of attitude is all too common among employers who only adopt better safety measures when they receive a claim. These are, however, often too little, too late and do not help the injured worker.