‘Benchmark decision’ handed down on noise-induced deafness

In a recent decision, the Supreme Court has allowed the appeals brought by employers and their insurers against a 2009 Court of Appeal decision on noise-induced deafness.

The 2009 ruling made employers liable from 1978 onwards for noise-induced deafness in employees caused by long-term exposure to regular workplace noise levels in excess of 85 decibels.

In Baker v Quantum Clothing Group Limited and others, the Supreme Court restored the original 2007 High Court judgment of His Honour Judge Inglis. In that decision, seven test case claimants from the East Midlands garment industry failed to establish employers’ liability for their alleged noise-induced deafness at either common law or under Section 29 (1) of the Factories Act 1961.

The Supreme Court has held that the Court of Appeal was wrong to overturn the original decision that employers generally would not be liable for employees’ deafness shown to be caused by regular workplace exposure below 90 decibels before The Noise at Work Regulations 1989 came into effect in 1990.

Darren Smith, partner at Hill Hofstetter LLP, who acted for a defendant and their insurers throughout the case, said: “The Supreme Court’s decision establishes a clear framework for employers’ liability for noise induced deafness claims involving relatively low levels of workplace noise, removing the uncertainty for employers caused by the Court of Appeal’s decision in 2009”. He said it established that:

• For most employers there will be no liability at common law or under the Factories Act for exposing employees to noise levels below 90 decibels prior to the introduction of the Noise at Work Regulations 1989 in January 1990.
• For larger, more pro-active employers with “special knowledge” there may be earlier liability at common law and under the Factories Act, depending on the state of their knowledge.  The Supreme Court restored the finding of HH Judge Inglis at first instance that two of the Defendants did have such special knowledge and were therefore fixed with liability from 1985 (although in the event, the claims failed against those Defendants for other reasons).
• Since January 1990, employers have been required to make available hearing protection to all employees exposed to daily noise levels of 85 decibels and above and where the noise levels are 90 decibels or above, ensure that the protection is worn.   Since 6 April 2006, those levels have been moved down to 80 decibels and 85 decibels respectively by the Control of Noise at Work Regulations 2005.  Employers will be liable for noise induced deafness if it can be shown that they failed to comply with either set of regulations.

Darren Smith commented: “The Supreme Court’s decision includes a detailed analysis of the law on employers’ liability generally and, as a result, will be a benchmark decision in the years to come.  While it applies immediately to industrial deafness, it is also likely to have broader application in relation to employers’ liability claims. If the Supreme Court had dismissed the appeal it would potentially have opened the floodgates for thousands of other claimants, particularly those with long working histories in the industrial, leisure and retail sectors.”