Noise
Cases
Greene v. Minister for Defence
[1998] IEHC 88; [1998] 4 IR 464
Judgment of Mr. Justice Lavan d
1. This case is one of a considerable number of actions maintained by serving and retired members of the Permanent Defence Forces claiming compensation for noise induced hearing loss and/or tinnitus. Johnson J. in Gardiner -v- The Minister for Defence, Ireland & the Attorney General , (unreported) refers to the Dail Committee dealing with this matter as stating that 1,488 cases of this type have been dealt with to date. Of these 1,405 have been settled without admission of liability. Of the balance, namely 83 cases, 51 were either withdrawn or dismissed. He therefore concluded that an award appeared to have been made in only 32 of those case. He also notes that of those 32 cases no appeal was taken to the Supreme Court which was pursued to a judgment. I think it is fair to say that in Ireland actions for noise induced hearing loss and/or tinnitus were quite rare until the early 1990’s. I note from Dr. White’s “Irish Law of Damages” published in 1989 that there is in fact only one Supreme Court decision, namely, that of Horgan -v- Cork County Council , (unreported) 22nd April, 1982 in which a hearing injury was considered.
2. I think it is of some interest to draw a comparative assessment of what occurred in the United Kingdom. In the case of Ochwat & Anor. -v- Watson Burton , (unreported) Queen’s Bench Division dated the 26th June, 1997 Smith J. gives a most informative and incisive history of noise deafness litigation and the development of compensation schemes in the United Kingdom. Concerning that history he has this to say:-
“It has been known in medical circles for at least 150 years that exposure to loud noise can damage the hearing. In the early 20th Century some attempts were made to provide ear protectors to mitigate the affect of noise on the hearing of men exposed but there was very little progress. After the Second World War there was an increased medical and industrial interest in noise induced deafness and this provided an interest to the development of ear protectors. During the 1950’s several forms of protection became commercially available. Interest and public discussion increased and in 1963 the Ministry of Labour published a pamphlet entitled ‘Noise and the Worker’ which explained the risks of noise exposure and provided advice on noise reduction and the use of ear protectors. In 1972 the United Kingdom Government published a Code of Practice which provided more detailed guidance to employers at the measurement of its noise, its reduction and the protection of their workers.
In that same year came the first report of a claim for damages for noise induced deafness: Berry -v- Stone Manganese & Marine Limited , (1972) 1 Lloyds Report. The plaintiff alleged exposure to harmful noise; the defendants denied liability but did not seek to argue that there was any date before which they could not have been expected to appreciate the risk of harm. The Judge found for the plaintiff and awarded damages of £2,500 as the appropriate award for the whole of the plaintiff’s hearing disability due to noise.
During the next few years a trickle of cases went through the Courts, contested only as to the quantum of damage. In retrospect, this was surprising because, of the thousands of men who were then suffering from noise induced deafness and were coming forward in large numbers to claim damages, a very large proportion must have been exposed to noise during the 1930’s, 1940’s and 1950’s. It was not until 1978 and the hearing of McGuinness -v- Kirkstal Forge Limited , (unreported) that an employer contended that he was not liable for any damage caused before the date on which he ought as a reasonable employer to have appreciated the risks of noise damage and to have done something to protect his workers. In McGuinness, Hodgson J. held that it was not until the publication of ‘Noise and the Worker’ in 1963 that an employer in the engineering industry ought to have had that knowledge. In the event he also found that the plaintiff’s hearing loss had not been caused by exposure to noise but was of constitutional origin. Thus no damage fell to be awarded and the Judge did not have to grapple with the problem of how to assess damages for that part of the hearing disability caused by the post-1963 exposure.
However, the legal profession, insurers and Trades Unions had to grapple with the problem. It was hoped that a plaintiff would not recover for that part of the damage which had been caused before the date of guilty knowledge, which for most employers was assumed to be 1963. It was realised that there would be many thousands of noise-deafness claims to be dealt with during the next few years. These would be complex, time consuming and expensive. The Iron Trades Employers Mutual Insurance Association Limited (the Iron Trades) who ensured many employers in the heavy engineering industry entered into an agreement with the Amalgamated Society of Boiler Makers, Ship-rights, Blacksmiths and Structural Workers, (the Boiler Makers Union) whereby the insurers would pay compensation according to an agreed scale. The first such agreement came into effect in January of 1980 and was renewed with some amendment in February 1981.
In September 1982 the Boiler Makers Union became dissatisfied with the scheme and withdrew. There was a perception that plaintiffs would do better by going to Court than by settling under the scheme. A group of cases was prepared for trial and battle was joined in Newcastle before Mustill J. (as he then was) in Autumn 1983. The case was reported as Thompson -v- Smith Ship Repairers (North Shields) Limited , (1984) 1 Q.B. at 405, (1984) 1 All E.R. at 881. The plaintiffs were fitters and labourers who had worked in various ship yards in the north-east for many years, some going back into the 1930’s. They were suffering from varying degrees of noise-induced hearing loss and tinnitus. Mustill J. found that the employer’s date of guilty knowledge was 1963. Much of each plaintiffs hearing loss had been caused before then and he was only to be compensated for the increase in his disability which could be attributed to the negligent exposure between the date of guilty knowledge and the date on which ear protectors had first been provided.
Mustill J. referred to the fact that it was not until the early 1970’s that any effective and systematic provision was made for the protection of persons employed in ship yards, although they had long been recognised as noisy places. Mustill J. stated that terms such as ‘deafness, hearing loss and damage to hearing’ were ‘not sufficiently precise’ for assessing the harm done, the extent thereof and the appropriate compensation. He therefore decided to adopt the terminology proposed in the ‘ Blue Book ‘, approved by the Councils of the British Association of Otalaryngologists and the British Society of Audiology. These definitions are contained in page 413 of his judgment.
3. Mustill J. described the different methods of assessing hearing loss and in particular the technique used in schemes to compensate large numbers of sufferers. This technique was to use an average of hearing losses at selected frequencies. The United States introduced an average of 0.5, 1 and 2 Khz. A system known as the Coles/Worgan scheme was then devised, which took account of an average of 4 Khz, in addition to the lower frequencies. Other averages were also adopted in the United Kingdom, including the Department of Health and Social Security. Mustill J. referred to recent opinions which favoured an average of 1, 2 and 4 Khz, and formed the basis of the Blue Book. He felt it unnecessary to decide which of these methods was preferable.
4. Mustill J. determined that there was direct evidence that the defendants had actual knowledge of the risks from 1963 onwards, when they received the report of the Ministry of Labour, ‘ Noise and the Worker ‘. However actual knowledge could be inferred much earlier than 1963.
5. The problem according to Mustill J. was identifying the date at which a reasonable employer would have recognised the risk of excessive noise in his premises, found a solution, adopted a solution, and put it into effect. He adopted 1963, the date of publication of the ‘ Noise and the Worker ‘ report, as the dividing line.
6. Mustill J. was referred to a report of 1970 entitled ‘ Hearing and Noise in the Industry ‘, by W. Burns and D.W. Robinson, which formed the basis for a set of ‘ Tables for the Estimation of Noise-induced Hearing Loss ‘ (the ‘N.P.L. Tables’), a report of the National Physical Laboratory Acoustics of June 1977. The formula adopted therein is described at pages 425 to 426 of his judgment. The plaintiffs argued against reliance on the N.P.L. Tables. They claimed that they did not provide an accurate statistical representation of how a sample of the population was likely to react to excessive noise.
7. Mustill J. concluded that the N.P.L. Tables could not be rejected outright and decided to approach the case on the basis that the Tables were broadly reliable, citing the fact that they were the only comprehensive source of data available at that time. Furthermore, he decided that there was nothing ‘fundamentally unsound’ in the use of the Tables for retrospection, based on the evidence of an expert witness. However, warning against the use of the statistical data in individual cases.
8. The solution adopted in the Blue Book regarding the relationship between impairment and disability was cited as a ‘practical and economic basis on which to administer schemes involving large numbers of claims’. Recognising that the actions were test cases, Mustill J. nonetheless stated that the ‘object of this judgment is not to devise a scheme which can readily be put into practice’. The validity of the Blue Book system having been put in issue, he decided that no simple solution had been established by the material before the Court. The judgment proceeded to deal with apportioned of liability and the award of damages, before addressing the circumstances of each individual plaintiff in turn.
9. I note that this decision was not the subject of an Appeal.
10. Later in the said judgment, Smith J. further deals with the history of agreements between various Trade Unions and insurers as to how compensation should be made for hearing loss.
NOISE LEGISLATION IN IRELAND
11. According to the Report of the expert Group, legislation was introduced in 1974 for industrial workers. This was replaced in 1990 by legislation covering all workers.
12. The Factories Act, 1955 set out requirements in relation to safety, health and welfare which were applicable in factories and industrial situations such as building sites and included enabling provisions for Regulations. There were no provisions in relation to noise in the Act. In 1975 Regulations on noise were made under the 1955 Act. These were the Factories (Noise) Regulations, 1975 (S.I. No. 235 of 1975) and were therefore applicable in the same situations as the 1955 Act. These Regulations required that persons employed should not be exposed to sound pressure levels in excess of 90dB(A) unless either:-
(a) the duration and level of exposure is controlled so that its cumulative effect is likely to cause harm, or
(b) ear protection is provided.
13. The Regulations also required that barriers or warning notices be erected in areas where the noise level exceeded 90dB(A). In effect, these Regulations required employers to provide ear protection if the working environment had noise levels above 90dB(A). These Regulations were enforced by the former Industrial Inspectorate of the Department of Labour. While there was a general requirement in the Regulations to control the duration and level of exposure so as to be unlikely to cause harm, the provision and use of ear protection was given equal weight with any other control method. Inspectors visiting noisy factories following the enactment of the Regulations would recommend, inter alia, the provision of ear protection and encourage employees to use them, in particular if measurements indicated the level was above 90dB(A). The use of ear protection, ear plugs and ear muffs has increased since the 1975 Regulations came into force.
14. The Safety, Health and Welfare Work Act, 1989, ushered in a prevention based system covering all employees, in which hazard identification, risk assessment and preventive measures became the norm.
15. On the 1st July, 1990, the European Communities (Protection of Workers) (Exposure to Noise) Regulations, 1990 (S.I. No. 157) of 1990) came into force. These Regulations implemented an EC Directive on Noise (86/188/EC). The Regulations set out a comprehensive legal framework for a hearing conservation programme. They are accompanied by a guidance booklet and a leaflet, available from the Health and Safety Authority (1991 and 1992). These Regulations require the following actions where exposure exceeds 85dB(A):
1. Measure of noise levels.
2. Provide ear protectors and training in use.
3. Inform workers of the risk.
4. Make hearing checks available.
16. In addition, where exposure exceeds 90dB(A):
1. Identify the cause of the problem.
2. Reduce the noise at source if possible.
3. Ensure that areas where noise exceeds 90dB(A) are clearly marked.
4. Ensure ear protectors are available and worn.
5. Workers must be informed of the potential damage to hearing and wear the protection provided.
17. As I have said, hearing loss cases were very rare in the Irish system. The first reported judgment of a hearing loss case similar to the case before me was that of a judgment in James Bastick -v-The Minister for Defence & Ors ., a judgment of Barron J. (unreported) given on the 24th November, 1995. From in or about that time some 11,500 cases have been issued by serving and retired members of the Permanent Defence Forces against the Defendants in this case. I also understand that this number is increasing at the rate of some 100 cases per week.
18. I have already referred to the fact that in 83 cases so far heard, 51 were withdrawn or dismissed and awards were made in 32 cases. Faced with this avalanche of claims, the Government acted by passing the Civil Liability (Assessment of Hearing Injury) Act, 1998 (“the Act”) which was signed into law by the President of Ireland on the 11th May, 1998.
19. The Act in its preamble is stated to be:-
“An Act to provide for judicial notice to be taken of a report to the Minister for Health and Children by an expert hearing group which was published by the Department of Health and Children on the 9th day of April, 1998, to provide for Courts to have regard to certain matters contained in that report in certain circumstances and to provide for connected matters.”
Section 1 of the Act defines:-
“1. ‘Hearing injury’ includes:
(a) hearing loss caused by injury which results in the deviation of an individual’s hearing, as measured by pure tone audiometery, from previous measurement, where available, of his or her uninjured hearing or where such measurement is not available, from that predicted as normal for his or her age, and
(b) tinnitus;
‘proceedings’, in relation to personal injuries, includes any application or claim for compensation;
‘the Report’ means the Report to the Minister for Health and Children by an Expert Hearing Group, which was published by the Department of Health and Children on the 9th day of April, 1998.
2. This Act shall apply to all proceedings before a Court, whether commenced before or after the enactment of this Act.
3. Judicial notice shall be taken of the Report in all proceedings before a Court claiming damages for personal injury arising from a hearing injury.
4.(1) In all proceedings claiming damages for personal injury arising from hearing loss, the Courts shall, in determining the extent of the injuries suffered, have regard to Chapter 7 (Irish Hearing Disability Assessment System) of the Report and, in particular, to the matters set out in paragraph 1 (Summary) and Table 4 (Disability Percentage Age Correction Factor) to paragraph 7 (Age Related Hearing Loss Correction) of that Chapter, and the said paragraph 1 and Table 4 are, for convenience of reference, set out in Part I and Part II, respectively, of the Schedule to this Act.
(2) In all proceedings claiming damages for personal injury arising from tinnitus, the Courts shall, in determining the extent of the injuries suffered, have regard to the classification method contained in paragraph 9 (Tinnitus) of Chapter 7 (Irish Hearing Disability Assessment System) of the Report.
5.(1) This Act may be cited as the Civil Liability (Assessment of Hearing Injury) Act, 1998.
(2) This Act shall come into operation on the day immediately following its enactment.”
20. The schedule to that Act contained at Part 1, Chapter 7.1 of the Report which provides a formula to assess hearing disability and Part 2 of the Schedule provides for a table dealing with disability percentage age correction factor.
21. The Act refers to a Report entitled “Hearing Disability Assessment – Report of the Expert Hearing Group” published on the 9th day of April, 1998 (“the Report”).
22. The terms of reference of that group were that in November of 1997, the Department of Health and Children established an expert group to examine and make recommendations on an appropriate system and criteria for the assessment of hearing disability arising from hearing loss, with particular reference to noise induced hearing loss. The Group consisted of eight doctors who were experts in their field of practice.
23. The Group employed the World Health Organisation Definition of Impairment and Disability. The World’s Health Organisation defines impairment as any loss or abnormality of psychological, physiological or anatomical structure or function. A hearing impairment therefore represents evidence of disorder of the organs of hearing.
24. The World Health Organisation defines disability as any restriction or lack of ability to perform an activity in a manner within the range considered normal for a human being. A hearing disability therefore, is the inability to hear everyday sounds in either quite or noisy backgrounds, in a manner that is considered to be normal for humans.
25. The expert group approached its task in the following manner:-
1. An extensive review of the literature was carried out.
2. The systems of assessment of hearing disability used in other countries were documented and studied.
3. Every consultant otolaryngologist in practice in the country was contacted by letter, requesting details of their use of hearing disability assessment systems and their views on the issue. This was followed up by meetings as required.
4. The Group met with a number of individuals with relevant areas of expertise or interest, i.e., a representative of the faculty of occupational medicine, the Director, Medical Corps of the DefenceForces, the Chief Medical Advisor to the Department of Social Welfare and representatives of the Permanent Defence Forces Ordinary Ranks Representative Association (P.D.F.O.R.R.A.).
5. Internationally recognised experts on hearing assessments were identified and their advice obtained. The Group met with Professor P.W. Alberti, General Secretary of the International Federation of Otorhinolaryngological Societies and Professor of Otolaryngology, University of Toronto, Professor Mark Lutman, Professor of Otolaryngology, Institute of Sound and Vibration Research, University of Southampton and Professor R.R.A. Coles, Institute of Hearing Research, Medical Research Council, University of Nottingham.
26. The expert Group based each decision in developing the Irish hearing disability assessment scale on published scientific evidence.
27. The Report outlines the pathophysiology of noise induced hearing loss. It describes European legislation in the field of hearing protection and methods of screening for hearing loss. The difference between screening for hearing loss and the diagnosis of hearing impairment is clarified. The standards for clinical and audiological diagnosis of hearing loss are described. Hearing disability assessment methods from a number of other countries are documented. The proposed Irish scheme for assessment of hearing disability is described, and the scientific basis for its elements discussed. Recommendations for diagnostic testing of hearing impairment and assessment of hearing disability are made.
28. The Report is extensive and deals with hearing disability, age related hearing loss and noise induced hearing loss. It traces the development of noise legislation in Ireland commencing with the Factories Act, 1955 and legislation introduced in 1974. It also referred to the noise regulations introduced in 1990 being the European Communities (Protection of Workers) (Exposure to Noise) Regulations, 1990 (S.I. No. 157 of 1990) which came into force on the 1st July, 1990. The Report is extensive and comparative and sets out the basis for establishing the formula for assessing hearing disability which is incorporated in the First Schedule to the Act.
29. Following the issue of the above Report, a group of doctors involved in appearing for litigants in a variety of types of personal injury actions came together and prepared their report, which for convenience, I refer to as the “Blue Book”.
30. On foot of views expressed therein, the Plaintiff has raised a number of issues of unfairness in the approach adopted by the expert Group.
31. The Plaintiff’s case came on for hearing in the High Court the day following the coming into force of the Act. This case and a number of other cases were adjourned for one week to enable the litigants and their legal advisors to consider the Act. The Act has not been challenged by this Plaintiff.
32. In this case the Plaintiff claims damages for noise induced hearing injury which he claims to have suffered in the course of his employment with the Defence Forces between 1956 and 1996. He claims the injury was caused by the negligence and breach of duty of the Defendants, their servants or agents, in particular by their failure to furnish the Plaintiff with adequate hearing protection and their lack of compliance with their own internal Regulations and Safety Rules. The Defendants delivered a Defence denying negligence, invoking the Statute of Limitations and claiming contributory negligence, invoking the Statute of Limitations and claiming contributory negligence. The Plaintiff’s Reply denied contributory negligence and denied that the action was barred by the Statute of Limitations.
33. Since the commencement of the proceedings the Civil Liability (Assessment of Hearing Injury) Act 1998 was enacted. A booklet was also published by the Department of Health and Children on 9th April 1998 entitled ” Hearing Disability Assessment ” (the “Green Book”). The Defendants subsequently amended their Defence and claimed that any entitlement to damages must be calculated in accordance with this Act, unless there were substantial grounds to show this formula would render an injustice to the Plaintiff. The Defendants further submit that no such substantial grounds exist in this case. The Plaintiff, in the Reply, denied that the Court was bound to find substantial grounds in order to avoid the application of the statutory formula in the Act. In the alternative, the Plaintiff claims that such substantial grounds exist in this case. The Plaintiff further submits that the relationship alleged to exist between the amount of damages for total deafness and the amount of the Plaintiff’s disability, is inappropriate as a means of assessing damages in this case.
34. The Plaintiff is a 59 year old retired member of the Permanent Defence Forces. He was born on the 3rd May, 1939. In 1956 he joined the Forsa Cosanta Aitiuil and remained a member until 1972. He served in a number of non-combatant roles during that time.
35. In 1972 he transferred into the Permanent Defence Forces. From 1972 until 1996 he was generally based at Costume Barracks, Athlone. During the period 1972 to 1978 he was an expert marksman and served upon his battalion shooting team. This involved the extensive use of the FN rifle five days a week for some six months in each year during that period. He was not required to carry out any further duties at that time. I accept his evidence as to the extent of these gunnery exercises and the amount of ammunition which was used therein.
36. Some time between 1977 and 1978 he was transferred to duties as a store-man at the aforesaid military barracks. He served in this capacity until his retirement. He took early voluntary retirement at that time.
37. During the course of his 18 years as a store-man he was engaged in duties dealing with delft, cutlery, bed linen and similar matters. He worked on a daily basis from 8.30 a.m. to 4.30 p.m.. He received 21 days annual holidays and once each year he was engaged in range training. He was also assigned guard duty once every week or two weeks but as I understand matters this did not entail the use of firearms. Each annual range practice involved between seven and ten days rifle practice.
38. From the time the Plaintiff entered the Permanent Defence Forces until 1993 he attended for medical care before different army doctors. He had no problem with deafness or tinnitus up to that time nor did he ever make a complaint in relation to either matter to any person.
39. On the 12th March, 1993 the Plaintiff attended before Colonel Collins of the Army Medical Corps for a medical problem unrelated to this case. The Plaintiff claims that he had no annual medical for some years prior to that date but his LA30 does not seem to bear this out as there are entries prior to this date in 1993 and 1992. Colonel Collins carried out a full medical examination of the Plaintiff on this date and reported, amongst other findings, a loss of 40 decibels at 4,000 Hz. in the right ear. One of the striking features of this case is that up to that date the Plaintiff never considered that he had any problem with his hearing.
40. The Plaintiff gave evidence as to the non-use of ear protectors for some years during his service and as to the inadequate type of protectors subsequently provided. In this regard I accept his evidence.
41. It is uncontroverted that as of the 12th March, 1993 the Plaintiff had the loss of this 40 decibel level at 4,000 Hz.
42. The two real issues in this case are:
1. What level of hearing disability does this entail, and
2. Does the Plaintiff suffer from tinnitus.
43. The Plaintiff is a pleasant 59 year old retired person who enjoys his retirement as he is perfectly entitled to do. I regret to say that I found his evidence unconvincing as to the problems of noise induced hearing loss and tinnitus following his medical examination in 1993. His evidence in relation to these matters were unconvincing and especially so during cross-examination. I found him to be extremely uncomfortable in relation to his cross-examination and generally unable or unwilling to respond frankly to the questions that were put to him by Counsel for the Defendants. I found the Plaintiff’s wife, Mrs. Patricia Green, to be a very pleasant person who likewise was unconvincing as to the onset and symptoms of noise induced hearing loss and tinnitus. She likewise appeared veryuncomfortable in the witness box.
44. The Plaintiff called Mr. Niall Lydon, Ms. Judy Nugent, Mr. George Fennell, Mr. Ben W. Lawton in support of his case. I accept their evidence.
45. The Plaintiff also called Mr. Savage-Jones, an E.N.T. Consultant. He gave evidence in relation to his view of the Green Book (which I shall return to later) and also in relation to the Plaintiff’s medical history.
46. Mr. Howard Jones saw the Plaintiff for the first time on the 15th October, 1997. His history included the Plaintiff’s time in the Permanent Defence Forces and the types of weapons with which he trained. At that time the Plaintiff’s principal symptoms were those of difficulty in hearing, particularly in the presence of background noise and group conversation. The Plaintiff also experienced tinnitus which he described as being right unilateral occurring several times per week with the duration between two and five hours. The Plaintiff considered the intensity of his tinnitus to be moderate and it did not interfere with his sleep pattern.
47. As will be seen from the transcript, the evidence in relation to the history taken from the Plaintiff was minimal. It did not include the dates when the Plaintiff first complained of hearing loss and/or tinnitus.
48. This witness then introduced an audiogram taken on the 15th October, 1997. According to the witness this audiogram was performed by a Ms. McKinnon, a senior technician in the Regional Department of Tullamore Hospital. As will be seen from the photostat audiogram, Exhibit 1, it is unsigned.
49. This audiogram seems to me of vital importance in relation to the Plaintiff’s specific complaints and in relation to the general attack on the Green Book.
50. It is a standard audiogram with recorded frequencies between 1 to 5 and 8,000 kilohertz. It is to be distinguished from the audiogram prepared by Ms. Judy Nugent and relied upon by Mr. Fennell. The latter audiogram contains frequencies at 750, 1,500, 3,000 and 6,000 kilohertz.
51. Taking Mr. Savage-Jones’ evidence, on its face value, he is of opinion that the Plaintiff has a 2% hearing loss applying the standards of the “Black Book” which is in use in the United Kingdom. It is a matter of total coincidence that this figure accords with the assessment of hearing loss put forward by the Defendants applying the formula used in the Green Book.
52. I think it is of some marked significance that the Plaintiff was referred to Mr. Savage-Jones by his Solicitor and not by his General Practitioner.
53. The audiograms relied upon by Ms. Nugent and Mr. Fennell were two, one prepared by Ms. Nugent and a photostatic audiometric diagram from Hinchcliffe book on Hearing. They contained without explanation findings at half octave steps which appear to be unusual in standard 150 audiogram charts.
54. During the course of the evidence it became clear that the Plaintiff wished to allege that the formula was unfair and, secondly, that the provision of a fence at 20 decibels was unfair, and, that the make up of the expert Group was not representative. Evidence to that effect was adduced by Ms. Nugent, Mr. George Fennell and Mr. Savage-Jones.
55. The Defendants called Professor Peter Alberti who has a world-wide reputation in his field and who was consulted by the expert Group. Professor Michael Walsh, Professor of Otolaryngology in the College of Surgeons, Dublin. He is responsible for the training of surgeons in the speciality in Ireland. He is also a member of the United Kingdom Surgical Advisory Committee in E.N.T. surgery, Professor Alexander Blayney, a fellow of the Royal College of Surgeons, London, and of the E.N.T. Surgeons of Ireland and General Surgery. He also has a Master’s Degree in Surgery from the National University of Ireland. He is a consultant at the Mater Hospital and the Children’s Hospital Temple Street, Dublin. He practises in the field of E.N.T. but with a specific interest in otology, in other words, the diseases in and surgery of the ear.
56. Professor Alberti expressed his opinion of the systems of measurement and assessment set out in the Report as follows:-
“In general there have been several efforts at this type of exercise. It is a very difficult task and I think this has been done in a workman like way. There is a good regard for previous efforts and attempts of other schemes that have been used. I think this is an expert Group that has been put together. It is made up of experts to provide an expertise. They have, however, as I read it, taken counsel from a variety of interested parties about what should go into it and I think it is about as good as you can get at the present time. It strikes me as pretty balanced in that I believe that both sides could argue against it as being too lenient on both situations. That usually to me is the sign of a good compromise. They are compromises because any scheme of rating hearing disability based on pure tones is a surrogate for hearing.”
57. When asked to compare the Report with other international schemes, he replied:-
“My sense is that it favours the people who are claiming. I say this for two reasons; many schemes stop at 3,000 hertz, they do not include 4,000 hertz in the equation. They use one or the other. They do not use both. They use one or the other but 4,000 is more likely to be worse hearing than 3,000. The second reason is that the age correction is little and comes in late where others (schemes) put in age corrections much earlier. The third is that the point at which compensation begins at 20 decibels is lower than several that are out in the field. So when you put those three together I think it is leaning over backwards in favour of the claimant.”
58. When asked why some systems cut off at 3,000 hertz he replied:-
“Well the discussion revolves around the ability to hear speech in a background of noise. It has been generally accepted that in perfectly quiet surroundings one can make out enough of the sound of speech between 500 and 2,000 to cope. So to take into account background noise some higher frequency hearing is required and the scientific basis suggest that there is more power in 3,000 than in 4,000, although 4,000 has some power as well. If 4,000 is used then it entrains the 3,000 frequency with it. So the American Academy, we in Canada, and several British schemes were based on 3,000 (as having) the top frequency.”
59. When asked to deal with a system which increases from 3,000 to 8,000 Hz he replied:-
“I do not know of a system that uses 8,000. It mixes in ageing very badly. The reason for testing 8,000, I believe that the Green Book calls for hearing testing at a wide range of frequency, 250 to 8,000. As I understand it or the reason I would think that that it is there is because hearing testing is done for many purposes not just assessing pensions. It is done for diagnosis and so low frequency hearing is tested to catch conductive hearing losses. High frequency hearing loss is tested to see the early signs of ageing but also in noise cases, punitive noise cases to see if there is a notch, because we have heard that the notch is usually at 4 Khz but it may be at 3 or 6 but implicit in a notch is a recovery. If the test is not done to see if there is a recovery it makes it very difficult to distinguish between a hearing loss from noise and other reasons, but the 8,000 Hz has little practical importance in the comprehension of speech in a noisy place. It may add little quality to the hearing of music, it may add quality to speech but for practical purposes it is being tested and found unnecessary.”
60. When asked to explain what a person does not hear between the 3,000 and 8,000 band he replied:-
“That is a pretty broad question but certainly it would cut off song birds, they (people) may have difficulty with some of the overtones of music. (People) will hear music as if it was coming out of a not so good AM radio rather than FM radio.”
61. When asked to deal with the criticisms of the scheme in the exclusion of 3,000 and 6,000 and the inclusion of 500 at the bottom of the scale the witness replied as follows:-
“The figures on the audiogram are octave steps. In fact the units accurately are 256, 512 and 1,024 but for simplicity they have become 250, 500 and 1,000, moving up the piano now from middle C up in octave steps and it is no accident that the audiogram (before your Lordship) have no 3,000 and no 6,000 put in there because they are the half octave steps. The audiogram is labelled usually in octave steps.”
62. Having regard to Professor Alberti’s entire evidence, of which the foregoing is merely illustrative, I am satisfied that I should accept his opinion on the Green Book and its formula as being reasonable.
63. Professor Michael Walsh gave evidence as being a member of the expert Group aforesaid. He confirmed that he was appointed by the Minister for Health and that the only instruction given to the group was the construction of a formula that was suitable for assessing hearing disability. He explained how the Group operated and obtained its information.
64. As to tinnitus, he explains as follows:-
“This is probably the most difficult part of the whole exercise really because tinnitus is such a difficult thing to deal with scientifically. Basically the classification is on the basis of our clinical experience. Your assessment of tinnitus is always a one to one with the patient, an individual, and how it affects their lifestyle. The patients we see with hearing loss who complain of tinnitus, in a severe manner that distracts them, upsets their whole life, is extremely rare. Often when it comes out at the beginning it is very distressing and after a period of time (people) usually adapt to it through a process called habituation where the brain suppresses the effect of the tinnitus.”
65. In addition, he explained the basis for the conversion of categories of tinnitus into specific disability percentages. He further explained the reason for the selection of the fence at 20 decibels. This he explained that:-
“studies showed the majority of people who had a hearing threshold of 20 decibels or less had not hearing difficulties in the presence of background noise. So it was really based on the fact most other formula have higher fences 25 up to 35 and some of them even up to 40 and 50.”
66. In his view the fence is really on the borderline of the pure tone audiogram of normality. Professor Blayney gave evidence of his involvement in cases coming before the Courts arising out of claims for hearing loss by members of the Permanent Defence Force. He was not on the expert Group but his views were sought. When asked his view of the fairness or otherwise of the system of assessment set out in the Green Book to grading these claims, he was of the view that this was a fair assessment. He continued:-
“It is an extremely difficult thing to produce a mathematical formula that deals specifically with a human body because the human body, its physiology does not lend itself to mathematical abstraction and as we are all aware, over the past few years there have been a number of formula and different types of assessment from the (United) States and United Kingdom presented in these Courts and there have been faults and failings in all of these. So it would be facile to say this is an absolutely perfect answer to all our problems, it is not. As I say it is impossible to produce an absolutely perfect mathematical assessment but I do think that it certainly represents a serious massive effort over a three month period to try to come to grasp with the difficult subject and to try to produce a formula that makes sense in this domain. So in that way, I think it has been successful overall.”
67. As to the frequencies used generally, the witness expressed the view that the most important frequency for speech is 2,000 Hz. He goes on to say that this is then aided and abetted by findings at 500 Hz and 1,000 Hz. These he identified as the most important three frequencies. Whilst one sees a spectrum of frequencies that range from 1 to 8,000, speech is basically centred between 500 and 2,000 Khz.
68. Under cross-examination and dealing with the question of tinnitus, the witness was of the view:-
“I said in audiological terms and probably even rare in tinnitus terms again having worked on tinnitus, having been involved in trials in Oxford in tinnitus, it is an extremely subjective system. The number of patients with excruciating incapacitating tinnitus I would probably see one per annum in my practice and I am interested in that area. So that you know I think that if a particular individual has a track record of a major problem with that symptom then they should be compensated but this goes with a time tried history. They cannot just appear with excruciating tinnitus. They should, by the time they come to Court, have been through the entire panacea of investigation and treatments.”
69. He went on to say:-
“It is my feeling and certainly my opinion from clinical practice over as many years as Professor Walsh has mentioned that the number of individuals presenting with distractible tinnitus is very small.”
70. The witness also distinguished between the army regulations and their purpose and the contents of the expert Group Report. He concluded by describing the latter as a massive effort.
“I think it has been extremely well done and I do not think it can necessarily be improved on bar one or two faults or failings, minor inadequacies which may need to be adjusted are certainly taken into consideration when specific cases are presented to the Court.”
71. The last witness called on behalf of the Defendants was Colonel Maurice Collins. He is the Director of the Army Medical Corps. He was called to explain the operation and reason for the Army Regulations in the hearing field. He also gave evidence concerning the Plaintiff’s attendance for examination on the 12th March, 1993. He does not have any recollection of a complaint of tinnitus. However, he is certain that were there such a complaint he would have noted it. I accept his explanation as to his standard practice on examination of any of his patients and likewise I accept that he would not withhold any information from his patients. I am satisfied I can rely on his evidence in relation to the examination on that date.
SUBMISSIONS (ON BEHALF OF THE DEFENDANTS):-
Section 3
72. The Plaintiff does not dispute the Defendants’ interpretation of “judicial notice”, as it appears in Section 3 of the Act.
73. The Defendants’ submissions defined judicial notice as follows:-
“Judicial notice refers to facts which a Judge can be called upon to receive, and to act upon, either from his general knowledge of them, or from enquiries to be made by himself for his own information from sources to which it is proper for him to refer: Commonwealth Shipping Representative -v- P&O Branch Service , [1923] A.C. 191 at 212 – House of Lords per Lord Sumner. Judicial notice is therefore a means of establishing rather than providing a fact…. It is thus unnecessary for any party to lead evidence to establish the findings of the expert group as contained in its report in any such proceedings. The Court is entitled to act upon such facts as if they were given in evidence before the Court by a competent witness in the ordinary way. That does not, of course, mean that the Court is bound to accept that evidence any more than it is bound to accept any other evidence which may be put before it. The doctrine of judicial notice concerns itself with the method of establishing facts rather than the weighing of conflicting evidence.”
Section 4
74. The Defendants submit that the interpretation of Section 3, described above, requires that Section 4 must be given an independent meaning and effect. The Defendants state that “it is a fundamental principle of the construction of statutes that provisions are presumed not to be included in vain, or for no purpose”. They deduce that Section 4 must therefore “mean something more than that the contents of the report (including the formula contained therein) are to be evidence to be weighed in the balance in any proceedings”.
75. The requirement in Section 4 to have regard to the statutory formula “in determining the extent of the injury sustained” is interpreted by the Defendants as meaning that “regard has to be had not merely to the fact that one injury is defined by the statutory formula as being more serious than another, but also to the fact that a particular mathematical proportionality is expressed as and between two such injuries”. “The statutory formula does not merely rank injuries in terms of seriousness” but rather “allocates to each level of injury a percentage loss and thus establishes a direct proportionality between each injury”.
76. According to the Defendants the word “shall” must “be viewed and interpreted in the context in which [it].. appear[s] in the particular statute”. The use of the word “shall” in the context of “having regard to” is submitted to have the effect of requiring the Court to give “very serious consideration” to the formula, while falling short of a requirement to apply it.
77. The Defendants therefore conclude that Section 4 requires the Court to “pay special attention to the statutory formula”. They submit that “to suggest that the statutory formula has no greater weight than any other evidence put before the Court would… be to render Section 4 of no effect”. “The Statutory formula would, as part of the report, be a matter which the Court would be entitled to take into account under Section 3 in any event. Section 4 must therefore mean that the Court is required to pay greater regard to the statutory formula than simply taking it into account”.
78. In the submission of the Defendants, the Court should have regard to the statutory formula by applying in it all cases, unless it can be established that the formula would give rise to a “substantially unfair result”.
“Furthermore, given that the result of the application of the statutory formula is to produce a percentage figure, it is submitted that the Court should (again, in the absence of special circumstances) have regard to the fact that the formula is expressed as a percentage and, therefore, award the appropriate percentage of the damages which the Court would consider applicable in the case of total deafness (or 100% loss)., The Act does not require the Court to apply the formula at all, or by means of a strict application of the percentage test. However the Act does require the Court to have regard to that formula, and it is submitted the way in which the Court should so have regard is by applying the formula…. in all cases where it cannot be shown that there are strong reasons for departing from it.”
“The General Attack upon the Act”
79. The Defendants submit that the evidence of Professor Alberti, Professor Walsh and Mr. Blayney make is clear that “the statutory formula is not merely a reasonable, but a particularly good, attempt at what is a difficult task”. They further submit that “the evidence supports the fact that the formula devised by the expert group is, if anything, more favourable than other such formulae to persons suffering the particular type of hearing loss encountered in army deafness claims”. It is submitted on behalf of the Defendants, that “the range adopted in the statutory formula has been shown to be the appropriate range” and that “the selection of the particular points within that range for use in the calculation have also been shown to be ideal”.
80. The Defendants claim there has not been effective evidence to counter either the contentions of Professor Alberti that the formula gives a very good fit with actual hearing loss as perceived by the individual, nor the contentions of Professor Alberti and Mr. Blayney that “normality is a range of hearing rather than a specific point”. On the latter issue, the Defendants submit that “some form of low fence is required to have regard to the fact that persons can properly be said to have normal hearing while, at the same time, having hearing which is somewhat worse than persons who have precisely the median hearing for their age”. They further submit that the evidence established the formula as a fair and reasonable one, while accepting there may be a small minority of cases requiring exceptions.
81. The Defendants urge the Court to find that the statutory formula was established by cogent evidence to be a “fair and reasonable exercise by the Oireachtas of its judgment based on expert assistance as to the appropriate scale for the assessment of percentage hearing loss”.
Application to the Facts of the Case
82. Having accepted that there could be an extremely limited number of cases where an individual could show the statutory formula was unfair to them, the Defendants submit that this case falls far short of such circumstances. The Defendants do accept that an individual may have a loss which does not amount to a disability and yet be entitled to some damages. However they urge that unless such cases fall within the exceptional circumstances already mentioned, the damages should be nominal. In this case, the Plaintiff has a scoring loss under the statutory formula of 2% and the Defendants submit that he should obtain nominal damages only. “Exceptions to the application of that rule should, it is submitted, only arisen when there is clear and persuasive evidence that the statutory formula would operate unfairly in the unusual circumstances of a particular plaintiff”.
SUBMISSIONS (ON BEHALF OF THE PLAINTIFF):
Section 4
83. The Plaintiff submits that “the Court must accept Section 4 as it is enacted, and not as the Defendants would wish it to have been enacted”. If the Legislature intended the formula to have the degree of evidential weight suggested by the Defendants, the Act should have provided accordingly. Furthermore, in the submission of the Plaintiff, the interpretation of Section 4 advanced by the Defendants would “amount to a very serious interference and a challenge to the independence of the Judiciary and of the Courts as guaranteed by the Constitution, in that it would seek to direct the Courts to treat one item of evidence with greater weight than another and with retrospective effect, and in a manner which almost certainly would adversely affect the rights of the Plaintiffs, including the Plaintiff in this case”.
“Have Regard To”
In R. -v- Police Complaints Board (ex parte Madden and ex parte Rhone R.), (1983) 2 All E.R. 353, McNeill J. was obliged to consider the meaning of the terms “shall have regard to” in the context of disciplinary charges. He concluded that it meant no more than that the Board was required to take the guidance of the Secretary of State into account, but was not obliged to comply with it.
In Ishak -v- Twowfeek & Anor. , (1968) 1 WLR 1718, Lord Pearson stated that the requirement to “have regard to” certain matters means that they must be taken into account, considered and given due weight, but the charitable board in question retained an ultimate discretion in the exercise of their functions.
84. The decision of Somers J. in R. -v- C.D. , (1976) 1 N.Z.L.R. 436, described the phrase “shall have regard to” as not affecting or limiting the discretion of the Court. He stated that the matters referred to in the legislation were to be considered, but may be rejected or given such weight as was suitable.
“Hearing Injury”
Section 4(2) refers to “hearing injury”, which is defined in Section 1 of the Act of 1998 as including hearing loss and tinnitus. The same definition appears in the Green Book, which also contains a definition of “hearing disability”.
85. The Plaintiff submits that the terms “hearing injury” and “hearing disability” are two separate and distinct concepts. They claim that it would be possible to have a hearing injury but at the same time not suffer from a hearing disability. They submit that such a person
would be entitled to an award of damages, irrespective of their failure to score the percentage disability under the statutory formula.
Assessment of Damages
86. The Plaintiff submits that the Court is obliged to consider the injury in a winder context than the Green Book formula.
In Gardiner -v- The Minister for Defence , (13th March, 1998), John J. quoted with approval the decision of Barron J. in Bastick -v- The Minister for Defence , (24th November, 1995) as follows:-
“The question is, is the condition of the hearing such that if affects the quality of life…. it also seems to me to be important that there are no absolute standards. The other thing is… if you have no handicap it does not mean your hearing is perfect.”
87. Johnson J. stated that each case:-
“must be tried individually. Each plaintiff individually assessed, the evidence of each witness individually assessed and the grounds upon which each witness bases his opinion, particularly the expert ones individually assessed.”
The Effect of the 1998 Act
1
88. The Plaintiff submits that the Act does not change the law as it was described in those decisions, but has the following consequences:-
1. It provides for the Courts to treat the relevant sections of the Green Book as evidence as if they had been given orally under oath by the authors.
2. It provides that the Courts must consider the formula in the Green Book and then decide whether to use this formula to determine the extent of the disability or whether to consider some other formula, at all times leaving this determination to the Court’s discretion.
3. The Court remains free to attach whatever weight it wishes to the Plaintiff’s score according to whichever formula the Court decides to apply. Alternatively, the Court is free to ignore such results altogether.
4. It remains the duty of the Court to assess the Plaintiff’s “hearing injury” irrespective of any “hearing disability” he may or may not have.
The Challenge to the Statutory Formulae in the Act of 1998
1. The inclusion of 500 Hz in the calculation of a hearing disability is criticised by Mr. Lawton and Ms. Judy Nugent ad the Plaintiff’s claim that, as it is a low frequency which is almost never damaged by noise, it has the effect of unfairly weighing the overall result in favour of the Defendants.
2. The exclusion of 3,000 Hz from the calculations was also criticised by expert witnesses, as it is an important frequency which is often damaged by noise. The Plaintiff disputes that such a calculation could be deemed accurate, as it fails to take into account this important frequency. Other systems of calculating hearing disability and the systems adopted in many other countries do take account of the 3,000 Hz frequency.
3. The Plaintiff submits that the attempt to impose the Green Book formula as a sole criterion, creates a “two-tier ‘hearing disability’ assessment system”, one to be applied by the Courts and another for the workplace and the Defence Forces.
4. The inclusion of a low fence of 20 dB is challenged as being “arbitrary and without logic”.
5. The treatment of the subject of tinnitus in the Green Book is claimed to have been severely criticised by many medical specialists, and it is claimed that no other country has dealt with the issue in a similar manner. All the expert witnesses are claimed to have supported the notion that the assessment of the effects of tinnitus must be done on an individual basis, and not by reference to a percentage disability.
6. The medical experts were agreed that an assessment of “hearing injury” must be dealt with separately from “hearing disability” or tinnitus and could only be determined by comparing the individual’s hearing to what it ought to be for their age.
Application to the Facts of the Case
89. The Defendants have admitted that the Plaintiff suffered a noise induced hearing injury and tinnitus as a consequence of negligence and breach of duty on their part. The pitch matching test indicates that the tinnitus equates with 6,000 Hz, which, they claim, confirms that the Plaintiff does actually suffer from noise induced tinnitus. This has not been challenged by the Defendants.
90. The hearing loss and tinnitus register as a hearing disability to the extent of between 2% and 3%, to which might be added another 2% or 6% for tinnitus in the event that the Court applied the Green Book.
91. The Plaintiff claims to suffer a wide range of problems and inconveniences associated with his hearing loss and tinnitus, which are permanent injuries.
92. The Defendants concede that a person who does have a loss not amounting to a disability, is entitled to damages. The Plaintiff submits that the Court is obliged to assess appropriate damages taking into account the pain and suffering of the Plaintiff to date and in the future. They submit that these damages should be significant, and the fact that the loss registers on the Green Book formula, should only serve to increase the damages further.
93. The Plaintiff submits that the Court should have regard to the fact that the damage was suffered over a length period of time, during which the Defendants were in beach of their own Safety Rules and Regulations. The Plaintiff claims an entitlement to compensation for the worry and anxiety caused by the proceedings, wherein the admission of liability was made only moments before the hearing commenced, in spite of the overwhelming evidence of negligence.
94. Having regard to the submissions I intend firstly to address the argument put forward as to the applicability of the Act.
Section 4 of the Act of 1998 states that the “Court shall… have regard to….” the contents of the Green Book. The submissions of the Plaintiff and the Defendants diverge sharply as regards the interpretation of this phrase.
95. The Defendants submit that the Court is required to give “very serious consideration” and “pay special attention” to the statutory formula and they contend that the Court must “pay greater regard to the statutory formula than simply taking it into account”. While the Defendants claim the consideration required to be given to the formula “falls short” of a requirement to apply it, they do state that the means by which the Court should have regard to the formula is by applying it in all cases, unless there are “strong reasons” to show that a “substantially unfair result” would ensue.
96. The Plaintiff invoked judicial support in the United Kingdom and New Zealand in favour of an interpretation of the phrase “shall have regard to”, which entailed merely taking the formula into account, while permitting the Court to retain an ultimate discretion. It is noteworthy that two of the decisions cited in support of the Plaintiff’s contentions ( R. -v- Police Complaints Board , ex parte Madden and ex parte Rhone (1983) 2 All E.R. 353; and Ishak -v- Twowfee & Anor ., (1968) 1 WLR 1718) concerned legislation which governed a police complaints board and a charitable board respectively. The statutes in question thus did not relate to decisions of the judiciary. The third case invoked in support of their interpretation, R. -v- C.D ., [1976] 1 N.Z.L.R. 436 related to a statutory provision which expressly stated that the considerations to which regard was to be had were “without limiting or affecting the Court’s discretion” (Section 5(2) Costs in Criminal Cases Act, 1967).
97. The interpretation of judicial notice in Section 3 is not disputed. However the Defendants seek to invoke this interpretation as a means of inferring that some greater weight must have been intended by the Legislature under Section 4. Section 3 admittedly refers to the mode of proof and not the weight thereof. This does not render Section 4 superfluous however. It is clear from the submissions of both of the parties that the formula in Section 4 is relevant to the question of the weight to be attached to particular evidence. This distinguishes the legislative intent in enacting Section 4 from that of Section 3 sufficiently to overcome the concerns of the Defendant that Section 4 could be rendered nugatory.
98. The question then is the weight which should be attached to the statutory formula in accordance with the terms of Section 4. In determining the weight to attach to evidence, the Court must always retain the judicial discretion and independence which is inherent in the Separation of Powers. However, in exercising this discretion the Court is free to take into consideration such evidence as it deems fit and to weight such evidence in the manner which the Court deems to be appropriate.
99. The enactment of Section 4 clearly represents an endorsement by the Legislature of a particular formula for assessing hearing loss and tinnitus. This is a factor which the Court should consider and take into account. The requirement to “have regard to” the Green Book does not however impose a duty upon the Court to adhere strictly to its terms. Therefore, while Court must consider the approach adopted in the Green Book, it reserves the right to consider alternative approaches. The Court may then determine which is the most appropriate solution in each individual case. In the absence of a more appropriate alternative solution has been established to the satisfaction of the Court, the statutory formula should be applied. The circumstances in which the statutory formula is not applied, may in fact transpire to be as limited as the Defendants submissions suggest. However, this will be a matter for the determination of the Court in the circumstances of each individual case.
100. No constitutional challenge has been raised by the Plaintiff and he cannot now do so. In any event I do not interpret the provisions of the Act as placing a fetter on the exercise of judicial discretion. See Maher -v- A.G., [1973] I.R. 140 . What is provided for here is a fair and reasonable method for assessing these litigants hearing disabilities. The Court may in any given case deem the formula inappropriate where the evidence so establishes that it not to be applied.
101. As to the assessment of damages in this case. Taking to evidence as presented to the Court, I arrive at the following conclusions, firstly, it is common case that the Plaintiff has a 2% noise induced hearing loss. For that he must be compensated.
102. The Plaintiff also alleges that he is suffering from tinnitus. I accept on the evidence in this case and also having regard to evidence I have heard in other cases, that tinnitus may be an extremely serious disability. I also accept that it is incapable of being proven objectively. Turning to the evidence of the Plaintiff on this matter, I regret that I have come to the conclusion, that I am not satisfied, on the balance of probabilities, that the Plaintiff suffers from this condition.
103. I note that the Plaintiff had no history of such condition from 1972 until he issued these High Court proceedings in 1995. His evidence in relation to that alleged condition was unconvincing. As Professor Blayney asserted in evidence, a person claiming to suffer from tinnitus cannot “just appear”. Such a person would, in his opinion, have a “time tried history”. By the time the claimant comes to Court they should have been through the entire range of investigations and treatment for the condition they claim to suffer from. Having regard to these factors I conclude that I ought not make an award in relation to the claim for tinnitus in this case. As to what is an appropriate figure of compensation for a person suffering a 2% hearing disability, it seems to me appropriate to have regard to the opinion of Mustill J. in the Thompson decision. He was dealing with the absence of authoritative official guidance on the levels at which noise exposure becomes dangerous. In his view one of the more convincing explanations for the lack of urgency in dealing with noise induced hearing loss was that deafness is an underrated affliction.
“The hardships imposed by blindness are there for all the sighted to see. More imagination is needed to picture the isolation, frustration and fatigue endured by those who cannot hear. Hardness of hearing can be sometimes as much a matter for derision as for sympathy.
Furthermore, it is realistic, not insensitive, to acknowledge that the handicaps suffered by these plaintiffs are less striking than those of other victims of industrial life. Excessive noise does not kill, or shorten the expectation the life. It does not lead to paralysis, mutilation or scarring. There is no pain, although in some instances a distressing tinnitus may be an additional symptom. At the levels with which we are concerned, exposure for the whole of a working lifetime does not bring about total deafness, or anything approaching it. The symptoms do not render the sufferer unfit for their work in the industry: Indeed, more than one writer has pointed out the unpleasant paradox that a worker made deaf by excessive noise is better able to endure the discomfort of such noise than a person with unimpaired hearing. All in all, the consequences of a noise induced hearing loss goes no further than a real, but not total, diminution in the opportunity to enjoy life to the full.”
104. I do not think that is an unkind or unfair assessment of the condition for which people have to be compensated by the Court.
105. Turning to the Plaintiff’s case and the specific deficits of which he complains, I prefer the evidence adduced on behalf of the Defendants’ experts. I accept the evidence given by the Plaintiff’s experts as being honestly given. They are not treating doctors. Nonetheless, they act and proffer their evidence on the case history as given to them by the Plaintiff.
106. Accepting, as I do, the evidence of the Defendants’ experts I find, on the balance of probabilities, that the Plaintiff’s complaints are not sustained. His hearing loss is minor. He being unaware of any hearing problem prior to examination by Colonel Collins in 1993 tells its own story. On the evidence I cannot understand how he has a problem with the telephone. Likewise, with the television. The former I find difficult to accept, having regard to the auditory range provided by telephone companies. The second problem, to my mind is doubtful, on the Plaintiff’s own evidence and is easily solved according to Professor Alberti’s evidence. As to the Plaintiff’s background noise problem, he has, on his own evidence, not altered his lifestyle.
107. On Professor Alberti’s evidence I am impressed with the view that noise induced hearing loss is more probably likely to arise in the ear nearest the weapons discharge point. For a right sided shootist that ought to mean that the left ear is more likely to be damaged. That makes sense on a little reflection. The ear which is closest to the weapons butt is farthest away from the discharge point.
108. Taking the Plaintiff’s case at its highest, and accepting as fact Colonel Collins’ evidence as to the advice given to the Plaintiff, I conclude, on the balance of probabilities, that this Plaintiff never suffered other than a very minor noise induced hearing loss.
109. In all of the circumstances I propose to allow the Plaintiff the sum of £3,000.00 for a 2% hearing disability from which he suffers.
Hanley v. Minister for Defence
[1999] IESC 86; [1999] 4 IR 393; [2000] 2 ILRM 276
Denham J.
1. This is an appeal by the defendants/appellants (hereinafter referred to as the defendants) against a judgment of the High Court (Johnson, J.) delivered on 21st July, 1998, [1998] 4 IR 496. No issue of liability arose in the High Court or on this appeal. This is a case of assessment of damages for the plaintiff/respondent (hereinafter referred to as the plaintiff) as a result of the personal injuries which he suffered due to the admitted negligence of the defendants in failing to supply him with adequate ear protection during his employment in the Defence Forces. The plaintiff was born on 24th April, 1963. He is a married man. He joined the Defence Forces in 1980 and he continues to serve in the army.
2. It was agreed by the parties that the plaintiff suffers a 7% disability at the moment, using the formula provided for in the Green Book. This formula was introduced by Civil Liability (Assessment of Hearing Injury) Act, 1998. The Green Book was considered in Greene v. The Minister for Defence [1998] 4 IR 464 by Lavan, J. who accepted it as a fair and adequate means of measuring disability. The learned trial judge in this case accepted that the Green Book is a fair and reasonable means of calculating disability at a given point in time and that the Green Book should be followed by all courts unless there is a specific reason in any given case for not so doing. However, he continued at page 500:
“… the Green Book is not complete and. there are some very serious gaps in it. The court is obliged to take judicial notice of the Green Book and have regard to it and that is what I am doing. However, as I have stated the formula in the Green Book gives merely a still photograph of the impairment measured in disability terms of an injured party at any given moment, but in the formula there is no provision made for future deterioration caused by the combination of noise induced hearing loss and age related hearing loss.”
3. As to a formula for age related hearing loss he referred to the evidence of Dr. Flynn, Professor Lutman and Professor Alberti and was satisfied that the correct table to take and
base on which to work is of an unscreened panel such as the one which appears in Annex 2 of ISO 1999 at page 11. He stated at page 501:
“… Professor Lutman pointed out at p. 6 of the said ISO 1999 that there was a formula for calculating the probable advance on an unscreened population of the noise induced hearing loss and age related hearing loss. This database and this formula, to my mind, are the correct ones which should be adopted and I intend adopting them in this case.
To do anything else is merely to speculate. In my view if one has a formula worked out scientifically then it will give one as best one can a reasonably accurate prognostication as to what the situation will be, and what the condition of the plaintiff will be in the future.”
4. Having regard to the formula adopted the learned trial judge held that the plaintiff will have a cumulative 20% hearing disability at the age of 60. He took that 20% figure for the purpose of assessing damages, which figure is made up of a combination of noise induced hearing loss and age related hearing loss which it is anticipated the plaintiff will have when he is 60. As to the assessment the learned trial judge held at page 501:
“The plaintiff has suffered a 7% loss to date. Utilising database in the ISO 1999 together with the formula contained at para. 5.1 of the said ISO, the evidence indicates that at the age of 60 to 61 he will have a hearing loss of 20%. The plaintiff in addition complains of tinnitus. In my view it is not severe tinnitus. It is moderate tinnitus and I will allow a figure of 2% in addition for the tinnitus which he is suffering.”
5. He then assessed damages allocating moneys for each degree of disability. The learned trial judge determined that he would grant £3,000 per one per cent of disability to a person at the age of 30. This scale ranges down to £1,500 per one per cent of disability when the injured person is 60 years of age. For percentages of damage between 10% and 25% the learned trial judge determined that the award per cent of disability would range from £6,000 at the age of 30 to £3,000 at the age of 60. The scale is set out in Schedule A which is attached to this judgment.
6. Based on this scale the learned trial judge calculated the damages for the plaintiff. The 9% disability suffered at the age of 35 being £2,750 x 9 equals £24,750. As to the age .related disability of 13% which it was determined the plaintiff would suffer when he is 60 years of age, the learned trial judge calculated also on his formula; the tenth degree of disability at the rate of £1,500 plus the remaining disability at £3,000 per percentage. Thus, 12 x £3,000 is £36,000, which taken with the £1,500 totals £37,500. As this latter figure is the calculation of the figure which would be due to the plaintiff when he is 60 years of age on this formula, the learned trial judge then required an actuarial calculation to reduce the figure to the appropriate sum to be paid out at that time by the court, which was determined at £15,825.
7. Other matters concerned the learned trial judge, including a reduction in employment opportunities and promotion for the plaintiff. For these matters he allowed £10,000.
8. Thus, the total award on the assessment of damages was:
For the 9% noise induced hearing loss presently suffered by the plaintiff
£24,750
To compensate the plaintiff for 13% age related disability anticipated at 60 years of age (which, added to the noise induced disability would create a disability of 22%) £37,500, actuarially reduced to
£15,825
To loss of opportunity of serving in Lebanon, promotions and other additional duties
£10,000
Total
£50,575
Appeal
9. The defendants have appealed against the order of Johnson J. There is no appeal against the facts found. The finding of the noise induced hearing disability at 7% and the tinnitus at 2%, being a total of 9% disability, is taken as a proper application of the Green Book. Owing to an error by the defendants an incorrect figure was given to the High Court as to the future age related hearing loss of the plaintiff. However, the defendants did not contest the figure of 13% in this case in the circumstances.
10. The kernel of the appeal is against the formula used by the learned trial judge, on the conversion of the disability into a sum of money, as being excessive. The defendants requested the High Court to adopt a formula which would create a just decision for the plaintiff and would be a formula applicable to similar cases. The learned trial judge determined a formula to assist the defendants. However, the defendants appeal against the formula determined and submit that its application would lead to excessive awards.
11. On this appeal there are two issues:
1. Is it appropriate for the court to confirm a formula being a proposed scale of damages for the injury of deafness arising in similar cases?
2. (a) Was the learned trial judge correct in his formula?
(b) If the answer is in the negative would the scale of damages proposed by the defendants be appropriate? If it would not, what would be a just formula?
. Is it appropriate for the court to confirm a formula being a proposed scale of damages for the injury of deafness arising in similar cases?
12. There are many thousands of ‘army deafness’ cases proceeding through the courts. The Civil Liability (Assessment of Hearing Injury) Act, 1998 provided for judicial notice to be taken of a report to the Minister for Health and Children by an expert hearing group, for courts to have regard to certain matters contained in that report in certain circumstances and for connected matters. This Report, the Green Book, establishes a fair and adequate method of calculating hearing disability. In effect it provides a formula for the assessment of hearing handicap.
13. Johnson J. held that the formula established by the Green Book was incomplete as it did not provide for the future position of the plaintiff when age related hearing loss was combined with the noise induced injury. Counsel for the defendants acknowledged that account should be taken of future age related hearing loss when calculating damages for noise related hearing loss.
14. The matter for determination relates to a formula for assessing damages. A formula having been obtained through the Green Book for the assessment of hearing disability it is now a question of whether it is appropriate to establish a formula for determining the quantum of damages for hearing loss in similar cases. It is of fundamental importance that the administration of justice be fair. This includes the concept that there should be consistency in similar cases in decision making, including the determination of awards of damages. The constitutional guarantee of equality (Art. 40.1) requires that persons be held equal before the law. There is an obligation of equal treatment. Thus, similar cases should be determined in a constant and foreseeable pattern. The concepts of justice and fairness
demand that the system not be a lottery. Also, if a formula is in place there is less reason for delay and injured parties should be able to move to a conclusion in a speedy process.
15. It is appropriate to adopt guidelines in relation to damages to enable the decisions of the courts in similar cases be consistent. It is appropriate to have a formula for converting similar injury into damages. However, whilst a general formula is appropriate for assessing the general situation a court retains the power at common law and under the Constitution to make a fair decision for each particular case. Damages are intended to represent fair and reasonable monetary compensation for pain, suffering, inconvenience and loss of pleasures of life which the injury has caused to the plaintiff in the particular case. A formula is a guide line for a judge in similar cases from which a judge may depart in a particular case if the specific circumstances so require to achieve a just result.
2. (a) Was the learned trial judge correct in his formula?
16. The formula adopted by the learned trial judge, set out in Schedule A, works from a base figure of £1,500 for one per cent of disability at the age of 60 and this is doubled when the disability is in the 10% – 25% range. The court was informed that the going rate for damages for complete deafness is in the range of £125,000 to £175,000 i.e. approximately £150,000. This may have been the basis for the original determination of £1,500 per one per cent of disability which can be inferred from Greene v. Minister for Defence [1998] 4 IR 464 and which was adopted by Johnson J. in this case as part of his formula.
17. However, when the scale proposed by the learned trial judge is applied it creates a system of excessive awards. The base of £1,500 for a person aged 60 for a disability in the range 1% to 10% is too high and the doubling of the sum for disability between 10% and 25% would lead to inordinate awards. I have come to this conclusion having considered the
figures and the examples given by counsel in court. Applying the learned trial judge’s formula sums awarded would be excessive; excessive when analysed against the sum considered to be the going rate for total deafness. In fact such awards would be wholly out of proportion to the injury suffered. Consequently, I am satisfied that the formula suggested by the learned trial judge was incorrect in that it would give rise to excessive awards.
18. On the second day of the appeal in this case the defendants, at the request of the Supreme Court, presented a Department of Defence Hearing Loss Cases Proposed Scale of Damages. It was on two sheets. The first sheet, in a column headed “Age”, gave ages in five-year spans from 25 to “60 and over”. The second column related to each percentage point of disability in the range from 1% to 10% (including future ageing in brackets). The third column related to each percentage point of disability from 11% onwards (including future ageing in brackets). A copy of this sheet is set out in Schedule B, Part 1, attached to this judgment. The second sheet was an enlarged sheet wherein the left hand column headed “Age” ran from 25 to 60 and the line across the top related to percentage points of disability from 1 to 25. A copy of this second large sheet is set out in Schedule B, Part 2 and Part 3, attached to this judgment. The proposed scale of damages of the defendants is thus set out.
19. The sums of money on the defendant’s proposed scale, in Schedule B, include a sum for future ageing. All parties now agree that there should be an element of damages for the future age related disability. On this formula the base figure per percentage point of disability in the range 1% to 10% for a 25 year old is £1,625 and of this sum £438 is to allow for future ageing. On the other hand the base figure per percentage point of disability for a 60 year old and over is £750, with no figure for future ageing. It was the State’s position that this was because at that age the noise related hearing loss graph and the age related hearing loss graph are coming together.
20. As previously stated I am satisfied that the formula proposed by the learned High Court judge, Schedule A, would lead to excessive awards. In addition, there is another negative factor in the High Court formula. Under the formula proposed by the High Court three calculations are necessary (one for the present, one to include future ageing, and one ‘being the actuarial calculation on compensation today for future loss). Under the Department of Defence proposal, Schedule B, there is one calculation which includes future ageing as a component. Such an approach, involving one calculation only, is to be recommended.
21. Looking at the proposed scale of the Department of Defence, examples can be considered. Thus, a thirty year old person with a twenty five per cent hearing disability, under this scale the appropriate sum would be £43,125, which includes a sum for future ageing. Other examples also show it to be an appropriate scale. Thus, a 35 year old with a 9% disability would receive £12,375; a 50 year old with an 18% disability would receive the sum is £20,000; a 25 year old with a 20% disability would receive the sum of £36,563, a 40 year old with a disability of 11% would receive the sum of £14,063.
22. I am satisfied that the formula proposed by the Department of Defence is an appropriate guideline to determine in a just way similar cases. Whilst the formula may be adopted as a guideline courts retain their discretion to make awards of sums appropriate and fair in specific cases to a particular plaintiff in light of the particular circumstances and to adjust awards accordingly. However, there should be a specific reason in a case for not following the guidelines.
23. In addition to the sum the subject of these guidelines the court may include other issues. Thus, in this case the learned trial judge included a £10,000 award for loss of earnings for the future which included loss of opportunity to serve in the Lebanon, loss of promotions and other losses. This figure was not contested on this appeal.
24. It may well be that in the operation of the guidelines minor amendments may have to be made. Thus, it may be found that at the extremes of the guidelines (the less serious injury, the more serious injury, the older plaintiff or the younger plaintiff) that there may need to be flexibility and some fine tuning.
Conclusion
25. The court was informed that in this case the sums awarded in the High Court had been paid out. Thus, the issue on the appeal is the formula; the guidelines. I conclude that it is fair and just to adopt a formula or guidelines to enable a consistent level of damages be awarded in similar cases. This is subject to the general principle which requires justice to be applied in all cases, consequently attention may have to be drawn to particular facts in particular cases.
26. I am satisfied that the scale proposed by the learned High Court judge would lead to excessive awards. I conclude that the scale of damages proposed by the Department of Defence is a fair and just scale giving rise to a just guideline, including as it does a sum for current disability and a sum related to future age related disability. This being so it is appropriate to apply the Department of Defence proposed scale of damages as a guideline in similar cases subject to the limitations expressed in this judgment.
Baker v Quantum Clothing Group Ltd & Ors (Ver 2)
[2011] UKSC 17
LORD MANCE
Introduction
This appeal concerns the liability of employers in the knitting industry of Derbyshire and Nottingham for hearing loss shown by employees to have been suffered during the years prior to 1 January 1990, the date when the Noise at Work Regulations 1989 (SI 1989/1790) came into force. The central issue is whether liability exists at common law and/or under section 29(1) of the Factories Act 1961, towards an employee who can establish noise-induced hearing loss resulting from exposure to noise levels between 85 and 90dB(A)lepd.
Noise is generated by pressure levels in the air. The loudness of a noise depends on the sound pressure level of the energy producing it, measured in decibels (dB). The decibel scale is logarithmic, so that each 3dB increase involves a doubling of the sound energy, even though a hearer will not actually perceive a doubled sound pressure as involving much, if any, increase in sound. Noise is rarely pure, it usually consists of a “broadband” combination of sounds at different frequencies, and the human ear is more sensitive to noise at some (particularly middle) frequencies than at others. The sound pressure level across a range of frequencies is in a general industrial context commonly expressed by a weighted measurement described as dB(A). Apart from very loud, immediately damaging noise, with which this case is not concerned, damage to the human ear by noise exposure depends upon both the sound pressure level from time to time and the length of exposure, as well the individual susceptibility of the particular individual. Sound pressure level averaged over a period is described as dB(A)leq. Exposure at a given dB(A)leq for 8 hours is described as dB(A)lepd. Exposure at a given dB(A)lepd for a year gives a Noise Immission Level (NIL), which will build up slowly with further years exposure.
Sound is perceived by the hearer as a result of the conversion by the ear drum of the sound pressure variations in the air into mechanical vibrations. These are conveyed by the middle ear to the cochlea, which, by a process of analysis and amplification, translates these vibrations into nerve impulses which are then transmitted to the brain’s auditory nerve. Hair cells in the cochlea play a vital part in the process, and noise-induced hearing loss (described as sensorineural) is the result of damage to such hair cells resulting from exposure to noise over time. Other causes of hearing loss include decline in the conductive function of the outer and/or inner ear, due for example to disease, infection, excess wax or very loud traumatic noise, as well as loss due to simple ageing (presbyacusis). Hearing loss is commonly measured by ascertaining the average threshold below which hearing is affected and comparing it with a normal threshold. Both the rate at which any individual will suffer ageing loss and the susceptibility of any individual to damage as a result of noise exposure are, as between different individuals, very variable as well as unpredictable. Statistics, produced as will appear in the 1970s, do no more than attempt to indicate what percentage of a particular population may be predicted to suffer a particular level of hearing loss by a particular time in their lives by these different causes depending upon their circumstances.
In 1971 a Code of Practice was prepared by the Industrial Health Advisory Committee’s Sub-Committee on Noise, and in 1972 it was published by the Department of Employment “as a blueprint for action”. This Code remained in issue at the material times thereafter, and it said that a level of 90dB(A) should not be exceeded “[i]f exposure is continued for eight hours in any one day, and is to a reasonably steady sound” (para 4.3.1).
On 14 February 2007, His Honour Judge Inglis decided test cases, involving seven claims against four different companies: Taymil Ltd (successors to the liabilities of several employing companies and now known as Quantum Clothing Group Ltd), Meridian Ltd, Pretty Polly Ltd and Guy Warwick Ltd. The cases were all brought on the basis that there had been exposure to noise levels between 80 and 90dB(A)lepd.
Mrs Baker’s claim was against Taymil. She had worked in Simpson Wright & Lowe’s factory in Huthwaite Road, Sutton in Ashfield from 1971 (when she was 15) to 2001. The judge found that for 18 years, from 1971 to 1989, she “is likely to have been exposed to a noise level that attained 85dB(A)lepd, but did not at any time substantially exceed that level by more than 1db” (para 182). He also found that some other condition was affecting her left ear, but that her “years of exposure at or slightly above 85dB(A)lepd” had led to her sustaining a degree of noise-induced hearing loss and had played a small part in her suffering tinnitus. But Mrs Baker’s claim failed on the ground that her employers had not committed any breach of common law or statutory duty. Had liability been established, the judge would have awarded her £5,000 for “this slight hearing loss and slight contribution to the tinnitus” (paras 192-193).
All the other employees’ claims failed. In none of their cases was any noise-induced hearing loss shown to have occurred due to the relevant employment. Only for a few months in the 1960s in the case of Mrs Moss claiming against Taymil and for about two years (1985-1986) in the case of Mrs Grabowski claiming against Pretty Polly was there shown to have been any exposure to noise levels of or over 85dB(A)lepd in the relevant defendants’ employment. However, in the case of Meridian (employers of Mr Parkes and Mrs Baxter and a subsidiary of Courtaulds plc) and Pretty Polly (employers of Mrs Grabowski and a subsidiary of Thomas Tilling Ltd until 1982 and of BTR plc until 1994) the judge would have held liability to exist from the beginning of 1985, had noise-induced hearing loss been shown to have been incurred due to exposure to noise exceeding 85dB(A) in such defendants’ employment.
Mrs Baker appealed to the Court of Appeal as against Quantum, and Meridian and Pretty Polly were joined to enable issue to be taken with certain of the judge’s conclusions potentially affecting other claims. Guy Warwick was a respondent to an appeal brought only on costs. The Court of Appeal (Sedley, Smith and Jacob LJJ) allowed Mrs Baker’s appeal on 22 May 2009, and reached conclusions less favourable to all four employers than those arrived at by the judge. The present appeal is brought by Quantum, Meridian and Pretty Polly, with Guy Warwick intervening by permission of the Supreme Court given on 30 June 2010.
The test of an employer’s liability for common law negligence is common ground. In Stokes v Guest, Keen and Nettlefold (Bolts and Nuts) Ltd [1968] 1 WLR 1776, 1783, Swanwick J described the position as follows:
“From these authorities I deduce the principles, that the overall test is still the conduct of the reasonable and prudent employer, taking positive thought for the safety of his workers in the light of what he knows or ought to know; where there is a recognised and general practice which has been followed for a substantial period in similar circumstances without mishap, he is entitled to follow it, unless in the light of common sense or newer knowledge it is clearly bad; but, where there is developing knowledge, he must keep reasonably abreast of it and not be too slow to apply it; and where he has in fact greater than average knowledge of the risks, he may be thereby obliged to take more than the average or standard precautions. He must weigh up the risk in terms of the likelihood· of injury occurring and the potential consequences if it does; and he must balance against this the probable effectiveness of the precautions that can be taken to meet it and the expense and inconvenience they involve. If he is found to have fallen below the standard to be properly expected of a reasonable and prudent employer in these respects, he is negligent.”
Mustill J adopted and developed this statement in another well-known judgment in Thompson v Smiths Shiprepairers (North Shields) Ltd [1984] QB 405, when he said (at pp 415F-416C):
“I shall direct myself in accordance with this succinct and helpful statement of the law, and will make only one additional comment. In the passage just cited, Swanwick J drew a distinction between a recognised practice followed without mishap, and one which in the light of common sense or increased knowledge is clearly bad. The distinction is indeed valid and sufficient for many cases. The two categories are not, however, exhaustive: as the present actions demonstrate. The practice of leaving employees unprotected against excessive noise had never been followed ‘without mishap.’ Yet even the plaintiffs have not suggested that it was ‘clearly bad,’ in the sense of creating a potential liability in negligence, at any time before the mid-1930s. Between the two extremes is a type of risk which is regarded at any given time (although not necessarily later) as an inescapable feature of the industry. The employer is not liable for the consequences of such risks, although subsequent changes in social awareness, or improvements in knowledge and technology, may transfer the risk into the category of those against which the employer can and should take care. It is unnecessary, and perhaps impossible, to give a comprehensive formula for identifying the line between the acceptable and the unacceptable. Nevertheless, the line does exist, and was clearly recognised in Morris vWest Hartlepool Steam Navigation Co Ltd [1956] AC 552. The speeches in that case show, not that one employer is exonerated simply by proving that other employers are just as negligent, but that the standard of what is negligent is influenced, although not decisively, by the practice in the industry as a whole. In my judgment, this principle applies not only where the breach of duty is said to consist of a failure to take precautions known to be available as a means of combating a known danger, but also where the omission involves an absence of initiative in seeking out knowledge of facts which are not in themselves obvious. The employer must keep up to date, but the court must be slow to blame him for not ploughing a lone furrow.”
An employer following generally accepted practice will not therefore necessarily be liable for common law negligence, even if the practice involves an identifiable risk of leading to noise-induced hearing loss. There is, as Hale LJ also said succinctly in Doherty v Rugby Joinery (UK) Ltd [2004] EWCA Civ 147; [2004] ICR 1272, para 44, “a distinction between holding that a reasonable employer should have been aware of the risks and holding that certain steps should have been taken to meet that risk”.
Section 29 of the Factories Act 1961 provides:
“(1) There shall, so far as is reasonably practicable, be provided and maintained 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 is reasonably practicable, be made and kept safe for any person working there. “
(2) Where any person has to work at a place from which he will be liable to fall a distance more than six feet six inches, then, unless the place is one which affords secure foothold and, where necessary, secure hand-hold, means shall be provided, so far as is reasonably practicable, by fencing or otherwise, for ensuring his safety.”
The judgments below
In his clear and comprehensive judgment, His Honour Judge Inglis followed the authority of Taylor v Fazakerley Engineering Co (Rose J, 26 May 1989) in concluding that the standard of safety required under section 29(1) “is governed by the general standard which ought reasonably to have been adopted by employers at the relevant time”, and therefore that the section did not add materially to the common law duty in that respect (para 99). He held (para 87), in the light of the Code of Practice 1972 and extensive oral evidence called before him, that neither Taymil nor Guy Warwick as reasonable and prudent employers could be said to have been in breach of duty at common law or under section 29(1) “during the 1970s and 1980s, certainly until the time when the terms of [European Economic Community Directive 86/188/EEC of 12 May 1986] became generally known in the consultative document”. The consultative document in question was “Prevention of damage to hearing from noise at work, Draft proposals for Regulations and Guidance”, issued by the Health and Safety Commission in 1987. The document invited comments by 30 June 1988 and led to the Noise at Work Regulations 1989 (SI 1989/1790) which took effect from 1 January 1990. In the case of Meridian and Pretty Polly, the judge held that they had a greater understanding of the risks of noise by the beginning of 1983, that this required them to put in place a conservation programme accompanied by information and instruction, and that they were potentially liable from the beginning of 1985. The judge thus allowed a two-year period for action from the date when there was or should have been appreciation that action was necessary. However, it is in issue whether, in the case of Taymil and Guy Warwick, he was treating the two-year period as expiring at some undefined time during 1989 or as expiring on 1 January 1990, the same date as the 1989 Regulations came into force.
In the Court of Appeal, the main judgment was given by Smith LJ, with whom the two other members of the court agreed. Sedley LJ gave some short additional concurring reasons. The court differed from the judge. It held section 29 of the Factories Act 1961 to involve a more stringent liability than liability for negligence at common law, and it held further that, were it material, it would have concluded that liability for negligence at common law arose at earlier dates than the judge had adopted. With regard to section 29, Smith LJ concluded that the court was bound by the previous authority of Larner v British Steel [1993] ICR 551, with which she anyway agreed, to hold that whether a place was safe involved “applying [an] objective test without reference to reasonable foresight” and that “what is objectively safe cannot change with time” (paras 77 and 78). In the alternative, if foresight was relevant, she would have held that “by the early 1970s, any employer who kept abreast of developing knowledge would have known that prolonged exposure to 85dB(A)lepd was harmful to some people”, making the workplace unsafe for an undefined section of his workforce, and, so, that he must do what was reasonably practicable to make and keep it safe. She concluded that – having regard to “a method available” in a British Standard BS 5330 published in July 1976 “which could be used by anyone with a modest degree of mathematical skill” – the position was that “by late 1976 or early 1977, the average-sized employer in the knitting industry could and should have been able to make an informed assessment of the quantum of risk arising from the below 90dB(A)lepd noise in his workshops”. She then allowed, instead of the judge’s two-year period, “about six to nine months for the provision of ear protectors once the decision had been taken that they should be provided” and, for the sake of simplicity fixed the date, by which action should have been taken and as from which liability arose under section 29(1), as January 1978 (paras 101-102). On this basis, Mrs Baker was awarded, for breach of statutory duty, 66.67% of £5,000 in respect of the 12 years of noise exposure which she suffered from January 1978.
With regard to the common law claim, Smith LJ concluded that HHJ Inglis’s holding in para 87 of his judgment (para 16 below) “cannot be faulted”, and upheld “his view that there was no breach of the duty at common law during the period for which a responsible body of opinion regarded it as ‘acceptable’ to expose employees to noise in the 85-89dB(A)lepd range” (para 105). While indicating her personal inclination towards an earlier date (based on the publication in 1982 by the European Commission of a first draft directive, later withdrawn), she also agreed with the judge’s conclusion that “for the employer with the ordinary, or average degree of knowledge”, that period came to an end in 1987, following publication of the second draft Directive” (para 105). In this connection, she again held that to allow longer than six to nine months was over-generous, and so fixed the date of any breach of common law duty by the “average” employer at January 1988 (para 106). She agreed that Meridian and Pretty Polly should have known by early 1983 “which of their workers required protection” and should within six to nine months thereafter have provided such protection (paras 107-108); and she regarded it as irrational to treat Quantum any differently, merely because it was part of a smaller group and operated as an individual company without the benefit of the central advice on health and safety issues enjoyed by the Courtaulds group and Pretty Polly. So Quantum would, in the Court of Appeal’s view, have been liable at common law, like Meridian and Pretty Polly, from late 1983 (para 109).
The history
The judge set out in paras 29 to 45 the history of investigation and awareness regarding the risks of occupational exposure to noise from the early 1960s to date. The Court of Appeal helpfully summarised the historical background in terms which I quote, interposing a number of observations of my own.
“Historical Background
2. For well over a hundred years, it has been known that prolonged exposure to loud noise causes deafness. Such deafness was long regarded as an unavoidable occupational hazard. In the early 20th century, ear protectors were developed and were supplied to some members of the armed forces during both world wars. But it was not until the second half of the century that any real interest was taken in preventing noise-induced deafness in industrial workers.
3. In April 1960, the government of the day instructed Sir Richard Wilson to chair a committee to report on the problems of noise. The committee’s first report was published in 1963. In the same year, in reliance on that report, a Ministry of Labour publication entitled ‘Noise and the Worker’ drew the attention of employers to the need to protect their workers from excessive noise. At that time, scientific knowledge was not such that it could be said with confidence at what noise level harm was likely to occur. A rough guide was given that workers who were regularly exposed to noise of 85 decibels (dB) at any frequency for eight hours a day should be protected.”
I interpose that the author of the report was in fact Sir Alan Wilson FRS. An interim report was published in March and the final report in July. “Noise and the Worker” was published in the light of the interim report.
“4. Further research was carried out during the 1960s, in particular by a team led by Professor W Burns, Professor of Physiology at the University of London and Dr D W Robinson, then head of the acoustics section of the National Physical Laboratory. In 1970, the result of their work was published as ‘Hearing and Noise in Industry’. By that time, a method had been developed of measuring noise levels by reference to the weighted average for all frequencies (expressed as dB(A)) and for assessing the equivalent noise exposure over an eight hour working day (expressed as dB(A)leq or more recently dB(A)lepd). Burns and Robinson explained that they were now in a position to predict the degree of risk of hearing loss to groups of an exposed population of varying susceptibility from various levels of noise exposure. Their work would make it possible to prepare a code of practice for employers. They discussed the possibility of establishing a limit of maximum exposure as follows:
‘The limit can be set at a variety of levels according to the ultimate risk judged to be acceptable and we suggest that it should not be set higher than 90dB(A) for normal continuous daily exposure which is likely to persist for many years.’
5. In 1968 and 1971 two further editions of ‘Noise and the Worker’ were published. The gist of the advice given in the third edition was that, if employees were exposed to noise in excess of 90dB(A), there should be a programme of noise reduction or hearing conservation. That level of noise exposure corresponded approximately to the 85dB which had been the level at which action was recommended in the first edition of ‘Noise and the Worker’. The third edition encouraged employers to reduce noise exposure below the maximum permitted level in order to avoid risk to the hearing of ‘the minority of people who are exceptionally susceptible to hearing damage”.
The guidance given in the third edition to “help to protect most people against serious hearing loss” was that they should not be exposed to levels of noise exceeding maximum sound levels specified in table 1 by reference to duration of exposure. In the case of an exposure duration of eight hours a day (the longest covered), the maximum sound level specified was 90dB(A). The encouragement given to reduce noise exposure below the maximum was to reduce noise exposure “if possible” and was expressed to be in order to avoid risk to the hearing of “the minority of people who are exceptionally susceptible to hearing damage, and for reasons of general welfare”. In the foreword to impressions published after April 1972, two of them by 1976, the third edition also said: “This booklet has been overtaken by the publication in April 1972 of the Code of Practice. However it is a useful introduction to the subject” and “should be read as a supplement to the Code”. The third edition referred under the head “Monitoring Audiometry” to the possibility of monitoring checks, but did not repeat the suggestion in the second edition that monitoring should take place in respect of noise levels approaching those set out in table 1.
“6. A Code of Practice, based on the work of Burns and Robinson was published by the Department of Employment in 1972. Its main messages were that employers must measure the noise in their premises and, if the noise level was 90dB(A)leq or above, must take steps to reduce the noise at source and, if that was not practicable, to provide ear protectors. The Code of Practice also explained that protection from noise of 90dB(A)leq would not protect all workers from hearing damage; some harm was likely to be caused to some susceptible workers by noise below that level.”
The Court of Appeal was not justified in using the word “likely”. What the relevant paragraph (1.1.2) in fact said was: “The Code sets out recommended limits to noise exposure. It should be noted that, on account of the large inherent variations of susceptibility between individuals, these limitations are not in themselves guaranteed to remove all risk of noise-induced hearing loss.”
“7. A set of tables first published in 1973 by the National Physical Laboratory (the NPL tables) showed the relationship between noise dose and the expected extent of hearing loss of persons with different degrees of susceptibility. Noise dose was based upon the daily exposure adjusted for the number of days’ exposure in the year and the number of years’ exposure. These tables were based on the work of Burns and Robinson. They were republished in 1977 in a more user-friendly form but the underlying science was the same as before and indeed it remains valid today. The tables demonstrated the harmful effect of prolonged exposure to noise below 90dB(A)leq but, because they were based on empirical data and because the data available for these lower noise levels was limited, there was some dependence on extrapolation. The degree of predicted risk arising from exposure to these lower levels of noise is therefore less certain than that caused by noise over 90dB(A)leq. That is of significance in the context of this appeal which raises the issue of when employers ought to have taken steps to protect their employees from exposure to such lower levels of noise.”
These tables consisted of some 15 pages of introductory material and 149 pages of tables. The latter would require expert advice to interpret, but, even with such advice, they did no more than indicate in detailed statistical terms the risk to susceptible employees identified by the Code of Practice. The judge recorded (para 23) the expert evidence that the NPL tables were (as distinct from the ISO1999 tables mentioned in point 10 below) “less accurate below 90dB(A), though reasonably accurate above that level. They tend at lower levels to exaggerate the effect of noise”. Some of the NPL tables were used in BS 5330: 1976 – mentioned in point 11, below.
“8. Until 1989, the Government of the United Kingdom made no attempt of general application to regulate noise exposure in industry. In 1974, regulations were made to control noise in the woodworking industry and in tractor cabs. The regulations required employers to reduce noise to the greatest extent practicable and to provide ear protectors where persons were likely to be exposed to noise at or above 90dB(A)leq,
9. In 1975, a sub-committee of the Industrial Health Advisory Committee, set up after publication of the Code of Practice in 1972, reported on the problems of framing protective legislation. The gist of this report was that the noise limit recommended by the 1972 Code had widespread acceptance although it did not eliminate all risk of harm. 90dB(A)leq was the most practicable standard although a lower limit should be considered at regular intervals.”
More particularly, para 19 of the report, “Framing Noise Legislation”, read: “The Code’s noise limit of 90dB(A)leq has widespread international acceptance, and although it does not eliminate all risk of hearing damage, we feel it continues to be the most practicable standard, in recognition of the necessity of concentrating limited resources on workers subject to the most significant risks and of eliminating these risks as a first priority. … Prediction of risks of hearing damage at these levels, based on a lifetime’s exposure of 30 or 40 years, indicates that the proportion of an exposed population likely to suffer unacceptable degrees of impairment falls off rapidly below 90dB(A). The specification of a daily dose introduces a further margin of safety since it is unlikely that a large number of workers would receive the full daily limit throughout their entire working lifetimes. Similar conclusions have been reached in other major industrial countries, and none of those examined in our survey has introduced a generally applicable environmental limit lower than 90dB(A). Nevertheless, the question of a lower limit should be reconsidered at regular intervals. A level of 90dB(A) is by no means ideal, and the aim should be to ensure a progressive reduction”.
“10. In 1975 an international standard was published (ISO1999). This proposed a formula by which hearing loss could be predicted from various levels of noise exposure. It was not easy for a lay person to use. IS01999 did not suggest limits of tolerable exposure. It said that that was the province of ‘competent authorities’ who would demand the institution of hearing conservation programmes if limits were exceeded. It mentioned that ‘in many cases’, 85 to 90dB(A) equivalent continuous sound level had been chosen.
11. In 1976, a British Standard was published (BS 5330: 1976). This was based on the work of Burns and Robinson and explained the relationship between noise exposure and the expected incidence of hearing disability. The foreword stated that determination of a maximum tolerable noise exposure was outside the scope of the standard and referred the reader to the 1972 Code of Practice.”
More particularly, BS 5330 said: “Determination of a maximum tolerable noise exposure is outside the scope of this standard; it involves consideration of risk in relation to other factors. For occupational noise exposure such a limit is specified in the Department of Employment (HMSO, 1972) Code of Practice for Reducing Exposure of Employed Persons to Noise”.
“12. In 1981, the Health and Safety Executive (HSE) issued a consultative document ‘Protection of Hearing at Work’ which included draft regulations and a draft approved code of practice. The proposed level of protection was at or above 90dB(A)lepd. These draft regulations were not promulgated.
13. In 1982, a draft directive was published by the European Commission, proposing a general limit of 85dB(A)lepd with ear protection to be provided at or above that level with medical surveillance and routine audiometry for all employees exposed at or above that level. This was greeted with some dismay by industry and was withdrawn in 1984. A further draft directive was published and was promulgated in 1986. This required member states to enact legislation which would, inter alia, require employers to provide ear protectors and information as to risks where employees were exposed to noise likely to exceed 85dB(A)lepd. Medical surveillance was to be made available to all exposed employees by means of access to a doctor. Thus, the only change of significance between the 1982 draft and the 1986 directive was that responsibility for medical surveillance would not fall on the employer but (at any rate in this country) would be satisfied through the provisions of the National Health Service. The Noise at Work Regulations 1989 (SI 1989/1790) implementing the directive came into effect on 1 January 1990.”
The directive promulgated in (May) 1986 was Council Directive 86/188/EEC. It required member states to enact and to bring into force the relevant legislation by 1 January 1990. The Court of Appeal was not accurate in stating that the only difference between the 1982 draft and the actual directive in 1986 related to responsibility for medical surveillance. As the judge noted (para 39), the directive replaced the earlier withdrawn draft with “less stringent proposals”: in short, where daily personal noise exposure of a worker exceeded 90dB(A), the directive required the use by the worker of personal ear protectors (article 6(1)), but where such exposure was likely to exceed 85dB(A), it only required such protectors to be made available to workers (article 6(2)).
“14. For the sake of completeness, although not relevant to this appeal, I mention that, in 2003, the European Commission issued a further directive imposing more stringent requirements. The Control of Noise at Work Regulations 2005 (SI 2005/1643) gave effect to that directive. Inter alia, they introduced a maximum permitted noise level of 87dB(A) and required employers to provide ear protectors to workers exposed to 85dB(A) and to make them available on request to workers exposed to 80dB(A).”
The judge in paras 46 to 48 also set out the general approach to noise in industry until the end of the 1980s, based on the oral evidence called before him.
Paras 46 to 48 of HHJ Inglis’s judgment led him to reach the following conclusions on liability in para 87:
“87. There is no doubt that research into the question of what risks to the hearing of employees exposure below 90dB(A)leq posed would have yielded the answer that 90dB(A) was not a natural cut off point, and that there were risks to susceptible individuals below that level. Indeed, the 1972 Guidelines themselves made that clear. From the early 1970s, certainly by 1976 with the publication of BS 5330 and of IS0 1999 in the previous year, the information was available if researched to give an indication of the level of the risk. It was a level of risk that came by the end of the 1980s to be seen as unacceptable if not accompanied by at least voluntary protection, though the 90dB(A) limit had remained, both in 1975 and in 1981, the proposed regulatory standard in England. In the end though I am not persuaded that employers in industry who conformed to the maximum acceptable level of exposure in the 1972 Guidelines were in breach of their duty of care to their employees who were exposed over 80dB(A)lepd. In rejecting the primary case for the claimants I acknowledge that I do not see the issue as only one of foreseeability. It would in my judgment be futile to hide behind the 1972 Guidelines for that purpose, or behind the third edition of “Noise and the Worker”, when the documents themselves proclaim that the level proposed will not be safe for all workers. But good practice as informed by official guidance has in my view to be taken into account as well. The guidance as to the maximum acceptable level was official and clear. It would in my view be setting too high a standard to say that it was incumbent on employers to ignore it, and to reach and act, even as early as the 1960s, on a view that the standard set was inadequate to discharge their duty to their employees. To put it in the context of Swanwick J’s judgment, complying with 90dB(A)lepd as the highest acceptable level was, I think, meeting the standards of the reasonable and prudent employer during the 1970s and 1980s, certainly until the time when the terms of the 1986 directive became generally known in the consultative document of 1987. I accept that this means that employers were not bound in the discharge of their duty to ask the question ‘Who are those at risk in my factory, and how big is the risk’. It is a question that none of them in this case asked. But the effect of the maximum acceptable level in the Guidelines means in my judgment, that they were not in breach of their duty for not asking it.”
The judge then distinguished the position of Meridian (Courtaulds) and Pretty Polly:
“88. There is room, however, for ‘greater than average knowledge’ as Swanwick J put it, to inform the steps that individual employers should have taken at an earlier time than the late 1980s. At first sight it is not attractive that those who have a safety department and medical officers and take the matter of noise seriously should be worse off than those who wallow in relative ignorance, but it is an inevitable consequence of a test that depends on what an individual employer understood. On that basis, I have found that by the beginning of 1983 management both at Courtaulds and at Pretty Polly had sufficient understanding of the risks to hearing below 90dB(A)lepd to require them to take action. Both in fact say that they did so. Plainly putting a conservation programme into action, accompanied by information and instruction is not to be done in an instant, as Mustill J recognised in the passage in Thompson that I have set out above. In the case of those two employers, because of the particular state of their knowledge, I would say that they were in breach of their duty to employees who suffered damage through exposure at 85dB(A)lepd and over, without having the opportunity of using hearing protection, from the beginning of 1985.”
Earlier in his judgment, HHJ Inglis had made detailed factual findings about the conduct and understanding of each of the relevant employers with regard to the risks of noise-induced hearing loss. I summarise these in the appendix to this judgment.
Smith LJ addressed the judge’s conclusions on liability at common law as follows:
“105. … I consider that the opinion, implied by the Code of Practice, that exposure to noise below 90dB(A)lepd was ‘acceptable’ was a factor which could properly be taken into account when an employer considered what it was reasonable for him to do in respect of the health and safety of his employees. In short, I take the view that Judge Inglis’s holding which I quoted at paragraph 46 cannot be faulted. I would uphold his view that there was no breach of the duty at common law during the period for which a responsible body of opinion regarded it as ‘acceptable’ to expose employees to noise in the 85-89dB(A)lepd range. I consider that, for the employer with the ordinary or average degree of knowledge, the judge’s conclusion that that period came to an end in 1987, following publication of the second European draft directive, was a reasonable conclusion, although, left to myself, I would have said that the publication of the first draft directive in 1982 would have put all employers on notice that it could no longer be regarded as acceptable or reasonable to leave this group of employees exposed.
…
107. The judge imposed different dates of common law liability on Courtaulds and Pretty Polly from that of Quantum and Guy Warwick which he regarded as having only an average degree of knowledge. It is clear that from 1972 all employers should have been aware of the risk to some of their employees from exposure to 85-89dB(A)lepd. The question at common law was when they should have realised that it was no longer to be regarded as acceptable to disregard that risk. The judge’s conclusion in respect of Courtaulds was plainly justified. They actively opposed the proposal in the first draft directive, not on the ground that the risk was minimal but on the ground that the cost to them would be too great. By early 1983, they could no longer have thought that a responsible body of opinion took the view that it was acceptable to ignore the risks of harm below 90dB(A)lepd. They should by that time have known which of their workers required protection and only a further six to nine months should be allowed for provision.
108. Pretty Polly was in a different position in that there was no direct evidence that it knew of the first draft directive. However, in my view the judge was entitled to hold that it must have done. In any event, there was other evidence that it had been advised of the need to take action in respect of the lower levels of noise. In my view, the judge’s holding was justified, subject to the reduction in the period allowed for provision.
109. As a fall-back submission, Mr Hendy argued that the judge had been wrong to reach a different conclusion in respect of Quantum. There was evidence that it was aware of the first draft directive … and Mr Hendy submitted that, given that knowledge, it was irrational to say that, because the group was smaller than Pretty Polly or Courtaulds and operated as individual companies without the benefit of central advice on health and safety issues, they should be treated differently from the other two employers. I would accept that submission and would hold that, if it were to become material, Quantum would have been in breach of its common law duty at the same date as Courtaulds.”
The judge and the Court of Appeal therefore accepted the Code of Practice as the generally appropriate standard for employers with average knowledge during the 1970s and early 1980s, differing only as to the date in the 1980s when it ceased to be so. The judge and, ostensibly at least, the Court of Appeal also distinguished between average employers and other employers, described by the judge as having “greater than average knowledge”, differing however as to which employers fell into the latter category.
The parties’ respective cases on common law liability
The respondent challenges the conclusion reached by both courts below that the Code of Practice represented a generally appropriate standard; she submits that it ceased to be such from at least 1976, though she does not in this case ask for that date to be substituted for the dates found by the Court of Appeal. For opposite reasons, the distinction drawn by the judge between employers with average and greater than average knowledge finds little support in any side’s submissions. Mr Hendy positively asserts that all three appellant employers and the interveners were in the same position; that they should all be treated as having the same constructive knowledge (based on the generally available published provisions and materials); and that neither court below based its decision “upon specific evidence of knowledge of incidence of hearing problems in particular workforces, or technical or operational knowledge specific to the particular defendants” (respondent’s case, para 202). So, on his submission, it was not appropriate to regard Quantum and Guy Warwick, or any employer, as any less liable than the judge held Meridian and Pretty Polly to be. The Court of Appeal, by putting Quantum into the same category as Meridian and Pretty Polly, went some, though not the whole, way towards accepting this submission. The appellants, on the other hand, support the concurrent conclusion below that the Code of Practice constituted an appropriate standard for employers with average knowledge, submit that it continued to be so, as the judge held, until the late 1980s, but also submit that the judge failed to provide any satisfactory analysis of what he meant by “greater than average knowledge” in para 88, and that he had no basis for treating Meridian and Pretty Polly as liable by reference to any date other than that which he held applicable to “the reasonable and prudent employer during the 1970s and 1980s” of whom he spoke in para 87.
Analysis of common law position:
(a) Greater than average knowledge?
At the level of principle, the parties’ submissions take one back to Swanwick and Mustill JJ’s classic statements regarding the test of negligence at common law (paras 9 and 10 above). These statements identify two qualifications on the extent to which an employer can rely upon a recognised and established practice to exonerate itself from liability in negligence for failing to take further steps: one where the practice is “clearly bad”, the other where, in the light of developing knowledge about the risks involved in some location or operation, a particular employer has acquired “greater than average knowledge of the risks”. The question is not whether the employer owes any duty of care; that he (or it) certainly does. It is what performance discharges that duty of care. For that reason, I find difficult to accept as appropriate in principle some of the reasoning in another, more recent Court of Appeal authority, Harris v BRB (Residuary) Ltd [2005] EWCA Civ 900; [2005] ICR 1680 (Neuberger and Rix LJJ).
In Harris, the issue was whether regular exposure of train locomotive drivers between 1974 and 2000 to noise levels between 85dB(A) and 90dB(A) gave rise to liability for any noise-induced hearing loss shown to have resulted. Neuberger LJ gave the sole reasoned judgment. He accepted on the evidence before the court that, “at least until the 1989 Regulations came into force, … an employer would not normally be expected to be liable to an employee who was exposed to a level of sound lower than 90dB(A)leq”, but said that “this evidence cannot go so far as to negative in all circumstances liability to employees whose health is impaired as a result of exposure to sound below that level” (para 39). After quoting Swanwick J, Neuberger LJ suggested that a good working approach might be to treat 90dB(A) as giving rise to a presumption, with the effect that, below 90dB(A), it was “for the employee to show why a duty should be imposed at all” (paras 40-41). The reference to a duty being imposed derives from the way in which the defendant’s case was presented: the submission was that “the mere fact that a particular level of sound is potentially injurious does not of itself give rise to a duty of care. … the existence of a duty of care ‘depends not merely on foreseeability of injury but whether it is just and equitable to impose the duty” (para 36).
On this basis, Neuberger LJ said that, while not intending “to call into question the applicability in the general run of cases of the 90dB(A)leq threshold” each case “must turn very much on its facts, not least because of the ‘just and equitable’ test accepted, indeed advanced on behalf of the defendant …” (para 38). In my opinion, however, the adoption of such a test would import an extraneous concept. The primary inquiry, when considering whether an employer has acted with due care to avoid injury from noise-induced hearing loss, is whether there is a recognised and established practice to that end; if there is, the next question is whether the employer knows or ought to know that the practice is “clearly bad”, or, alternatively, if the area is one where there is developing knowledge about the risks involved in some location or operation, whether the employer has acquired “greater than average knowledge of the risks”. Considerations of justice and equity no doubt underlie both Swanwick and Mustill JJ’s statements of principle. But to ignore the statements and to restate the inquiry in simple terms of “justice and equity” opens a wide and uncertain prospect, despite the court’s attempts in Harris to emphasise that it was not departing from a position whereby an employer would not “normally” be expected to be liable for a level of sound lower than 90dB(A).
That prospect has a present resonance, although HHJ Inglis did not base himself on the reasoning in Harris, but used language picking up the more conventional statements of principle. Nonetheless, I consider that he did not apply those statements in the sense in which they were meant. He did not consider the practice represented in the Code to be clearly bad during the 1970s or until the end of the 1980s; and it is common ground that the general state of knowledge about the risks involved in the knitting industry remained essentially static throughout this period (see also the first seven sentences of para 87 of the judge’s judgment). As Mr Hendy made clear in the Court of Appeal (Core II, pp.749-750), no question of special resources arises, since no amount of research would have led to further knowledge, or indeed to different conclusions about the level of risk than those indicated in the Code of Practice. Mr Hendy is in my opinion also correct in saying that the judge based his conclusions, including those relating to Courtaulds and Pretty Polly, on generally available published provisions and materials, rather than on any specific knowledge. That is particularly apparent from the final sentences of paras 56 and 66 of his judgment (cited in the appendix) as well as in paras 87 and 88. It might perhaps have been suggested, in relation to Courtaulds, that the rising incidence of claims which they experienced in the early 1980s gave rise to some degree of special knowledge, but that is not how the matter has been put.
It follows that, on the judge’s approach, the only real difference between employers lay in the degree of their consideration of and reaction to such risks. In these circumstances, the judge’s conclusions in relation to Meridian (Courtaulds) and Pretty Polly amount in substance to saying that, because these companies focused more closely on the potential risk below 90dB(A) and displayed greater than average social awareness (to use Mustill J’s words in Thompson at p 415H) by resolving that some action should probably be taken at times before ordinary, reasonable employers arrived at any such conclusion, they incurred greater liability than such employers. The judge himself recognised here a paradox (para 88). Those who have a safety department and medical officers and take noise more seriously than the ordinary reasonable employer are liable, while others are not. That is appropriate if extra resources or diligence lead to relevant fresh knowledge. But here they have led simply to the formation or inception of a different view to that generally accepted about what precautions to take. In such a case, the effect of the judge’s approach is not to blame employers “for not ploughing a lone furrow”; rather, it positively blames them for ploughing a lone furrow but not doing so deeply enough. When Mustill J spoke of “changes in social awareness” (p 415H), he was referring to changes leading to a general raising of the standard which average employers were expected to observe, not of individual employers spear-heading such changes by forming the view that the standard should be raised. In my view, therefore, no real basis was shown for treating Courtaulds and Pretty Polly differently. On this aspect of the appeal, I would only add two points: first, had I considered there to be a sound basis for treating Courtaulds and Pretty Polly as having relevantly different and greater knowledge than average employers, I would see no basis for the Court of Appeal’s addition of Quantum into the same special category; Lord Dyson and Lord Saville agree, I understand, that there was no such basis; secondly, since Lord Dyson does not share the view that the judge should not have treated even Courtaulds and Pretty Polly as falling into a special category (see para 104 below), it follows that there is no majority in favour of this view and that (in reflection of the common ground between Lord Dyson, Lord Saville and myself), the appeal should be allowed only to the extent of restoring the judge’s decision in this regard.
(b) Was the Code of Conduct an acceptable standard for average employers?
In my opinion, the respondent is correct in submitting that the real question is the sustainability of the judge’s conclusion that the Code of Practice constituted an acceptable standard for average employers to adhere to during the 1970s and 1980. If that conclusion is upheld, then no real basis is shown for treating Courtaulds and Pretty Polly differently. The Court of Appeal expressed agreement with the judge’s conclusion that the Code of Practice remained a generally acceptable standard. Smith LJ stated that this conclusion “cannot be faulted” and that “I would uphold his view that there was no breach of the duty at common law during the period for which a responsible body of opinion regarded it as ‘acceptable’ to expose employees to noise in the 85-89dB(A)lepd range” (para 105). Endorsing, in effect, the judge’s approach of distinguishing between employers with average and greater than average knowledge, she concluded para 105 by saying:
“I consider that, for the employer with the ordinary or average degree of knowledge, the judge’s conclusion that that period came to an end in 1987, following publication of the second European draft directive, was a reasonable conclusion, although, left to myself, I would have said that the publication of the first draft directive in 1982 would have put all employers on notice that it could no longer be regarded as acceptable or reasonable to leave this group of employees exposed.”
Turning to examine the different dates of common law liability which the judge had imposed, Smith LJ identified the issue as being when employers “should have realised that it was no longer to be regarded as acceptable to disregard” the risk to some of their employees from exposure to 85-89dB(A)lepd, of which they should, because of the Code of Practice, have been aware from 1972 (para 107). As regards Courtaulds, she regarded the judge’s conclusion as plainly justified, saying that “By 1983, they could no longer have thought that a responsible body of opinion took the view that it was acceptable to ignore the risks of harm below 90dB(A)lepd” (para 107). However, that appears to say that from 1983 there was no responsible body of opinion in favour of relying on the Code of Practice, and, if so, it should on its face have led automatically to a conclusion that no reasonable employer could do so. Nonetheless, Smith LJ went on to consider the state of Pretty Polly’s awareness about the need to take action and the 1982 draft directive and of Quantum’s awareness of the draft directive. After noting Quantum’s awareness of the draft directive, she accepted Mr Hendy’s submission that “it was irrational to say that, because the group was smaller than Pretty Polly or Courtaulds and operated as individual companies without the benefit of central advice on health and safety issues, they should be treated differently from the other two employers” (para 109). While Smith LJ ostensibly viewed the issue (as the judge did) as depending upon analysis of each individual employer’s position, in reality her approach seems to suggest a conclusion that the Code of Practice ceased to be an acceptable standard for any responsible employer in 1982. In effect, the Court of Appeal appears to have disagreed with HHJ Inglis’s conclusion that the period during which a reasonable employer could rely upon the Code of Practice continued until 1987. The basis for this, despite the passage concluding para 105 of Smith LJ’s judgment, quoted above, appears to have been the publication in 1982 of the first draft directive.
The judge’s conclusion in para 87 was the product of a lengthy trial, and was based on extensive expert evidence. The Code of Practice itself repeatedly refers to a “limit” defined in section 4.3.1 in relation to continuous noise exposure as 90dB(A)lepd: see e.g. sections 2.2.1, 3.1.2, 4.1.1, 4.2.1, 5.1.1, 6.1.3, 6.7.1 and 7.1.1. It also says that “Where it is reasonably practicable to do so it is desirable for the sound to be reduced to lower levels” (section 4.1.1), but this has to be read with section 6.1.3, which states: “Reduction of noise is always desirable, whether or not it is practicable to reduce the sound level to the limit set out in section 4, and whether or not it is also necessary for people to use ear protectors. Reduction below the limit in section 4 is desirable in order to reduce noise nuisance”.
When addressing section 29(1) of the Factories Act 1961, the Court of Appeal said (para 101) that, although the Code of Practice was not irrelevant, “it was, in itself, plainly inadequate as an assessment tool”, in that it “advised only that there was some risk to susceptible individuals from exposure below 90dB(A)lepd”; and it went on to conclude that the publication of BS 5330 in July 1976 could and should have enabled any average-sized employer in the knitting industry, with the assistance of anyone with a modest degree of mathematical skill or any consultant acoustic engineer, to make an informed assessment of the quantum of risk arising from noise below 90dB(A)lepd. These statements are not on their face easy to reconcile with the judge’s findings (in particular in paras 46-48 and 87). However, they were made in the course of considering the issue of reasonable practicability under section 29, and on the basis that it was irrelevant in that context whether a reasonable employer could reasonably rely upon the Code of Practice as setting an acceptable standard of conduct in relation to exposure of employees to noise: see paras 89 and 100 (quoted in para 75 below). Even if regarded as consistent with the judge’s findings, they do not therefore bear on the question whether the Code of Practice provided such a standard.
In any event, however, I do not consider that examination of the underlying statistical material undermines either the appropriateness or relevance of the Code of Practice as a guide to acceptable practice. Both the Code of Practice and BS 5330 were based on the research and statistics developed through the work of Burns and Robinson. BS 5330 itself stated that determination of a maximum tolerable noise exposure was outside its scope, that it involved consideration of risk in relation to other factors, and that for occupational exposure a limit was specified by the Code of Practice (para 15, above). The respondent in fact accepted in the Court of Appeal that there was no basis in this case for going behind the Code of Practice, while submitting that the Code was enough for her purposes (Core II, pp 749-750). If general standards of, or attitudes to, acceptable risk are left out of account, the statistical tables contained in the NPL tables, BS 5330 and ISO1999 could be used to suggest that no reasonable employer could from the early or mid-1970s expose his employees to noise exceeding 80dB(A)lepd. This would not be consistent with the contemporary recognition of the Code of Practice as setting a generally appropriate standard in BS 5330 itself as well as in other documents such as “Noise and the Worker” and the Industrial Health Advisory Committee report of 1975 (see para 15 above). The statistically identified risks at levels between 80dB(A)lepd (currently, at least, identified with no risk) and 90dB(A)lepd do not enable any easy distinction to be drawn within that bracket, if the elimination of all statistical risk is taken as a criterion.
This is highlighted by consideration of the tables in BS 5330: 1976 upon which the respondent and the Court of Appeal (para 101) have relied to show the risk attaching at levels of exposure between 85 and 90dB(A) lepd. The same tables can be used to demonstrate the existence of risks (in terms of the percentage of persons exposed attaining or exceeding a mean hearing level of 30dB) arising below noise levels of 85dB(A)lepd. Caution is necessary because of the inherent inaccuracy, and tendency to exaggerate, of the NPL tables, and to the extent that they were based on them, the BS 5330: 1976 tables at all levels below 90dB(A) (para 15 above). But another, separate problem, which also applies to the ISO1999 tables, is that reliance on such tables as demonstrating the existence of a risk which needed counter-acting makes it necessary to confront the question on what basis any distinction exists between say an increase by an additional 6% in the level of risk for 60 year-old persons who have been exposed for 40 years at 86dB(A)lepd and by 5% for such a person so exposed at 85dB(A)lepd or by 4% for such a person so exposed at 84dB(A)lepd. The equivalent increases for 60 year-olds so exposed for 30 years would be 5?2, 4?2, and 3?2%, and for 60 year-olds exposed for 20 years, 4, 3 and 2%. Consistently with this, the respondent did argue before the judge that 80dB(A)lepd was the only acceptable limit. But, despite this, the judge concluded that any risk below 85dB(A)lepd was minimal (para 26), and that the risk between 85dB(A)lepd and 90dB(A)lepd was at the relevant times an acceptable risk for reasonable employers without greater than average knowledge to take. The judge, correctly, did not resolve the issues before him by considering statistical extrapolations at low levels of exposure, but by forming a judgment on the whole of the expert, documentary and factual evidence adduced before him.
On the issue whether there was an acceptable contemporary standard to which reasonable employers could adhere, in the light of the terms of the Code of Practice and on the basis of the expert evidence, HHJ Inglis held (para 48) that “the 90dB(A)lepd level was regarded …. as the touchstone of reasonable standards that should be attained”. Confirmation existed in notes published by the Wolfson Unit for Noise and Vibration Control in the University of Southampton. These were intended to supplement a series of seminars held round the country in the autumn of 1976 on the theme “Industrial Noise – The Conduct of the Reasonable and Prudent Employer”. The seminars were intended “primarily for company lawyers, solicitors, insurance claims and risk assessors, safety officers, medical officers and others with interests in occupational hearing loss”. The notes were, the judge said, strong evidence of the prevailing advice being given to people in industry concerned with noise at that time. They described the 1972 Guidelines as establishing a comprehensive “damage risk criterion” based on 90dB(A)lepd, and said that they had been actively promulgated by the Factory Inspectorate. In discussing the emerging principles of legal liability for noise-induced hearing loss, the authors said:
“Over the last 15 years knowledge as to the relationship between noise and deafness has grown and become more precise …. Today a reasonable employer ought to know that to expose an employee to noise in excess of 90dB(A) for eight hours or its equivalent is potentially hazardous. It also seems a fair assumption that the reasonable employer should have known of the criteria set out in “Noise in Factories” and “Noise and the Worker” by the mid-1960s.”
The introduction in 1974 and continuance in force at all times thereafter of woodworking and tractor regulations based on maximum exposures of 90dB(A) reinforce this comment (para 15, above, and para 56, below).
At least until the mid-1980s, there were still many people employed in industry exposed to over 90dB(A)lepd, and the approach of enforcement agencies and others was to concentrate on them (HHJ Inglis, para 48). The expert evidence before the judge also included the following, summarised by him in paras 46-48:
“46. … There was evidence given by the expert witness engineers for Courtaulds (Mr Bramer and Mr Currie) about the approach to control of noise in the period from the 1970s in industry. The report of Mr Worthington for Pretty Polly and Guy Warwick is also in evidence. To Mr Bramer, the guidance in ‘Noise and the Worker’ and the 1972 Guidelines provided a ‘clear and consistent recommendation to employers as to how they ought to deal with noise in the workplace’. The result was that in his practice, his invariable advice until the late 1980s, was that ‘the relevant level was a daily personal noise exposure of 90dB(A)’. This approach, he said, was standard during the period up to 1989 among noise professionals, and taught at training courses. In the mid 1980s, when it appeared that EEC regulation would involve a first action level of 85dB(A) his advice changed to reflect that. He was not aware of the NPL tables before the 1980s when he found that they were being used by medical experts writing reports for the purpose of deafness claims. He has never come across them being used in any part of industry. In evidence Mr Bramer said that he gave advice to employers in terms of complying with the 1972 Code. He was speaking to the 90dB(A) level, as were all his colleagues. He agreed that the advice would be to answer the question ‘Tell us how to comply with legislation and the Code of Practice’, rather than ‘Tell me how to avoid reasonably foreseeable risk to my workforce’. He would have recommended 90dB(A) as the cut off point, but would also have said ‘that does not actually stop some more susceptible people from having some small noise induced hearing loss’. If asked about risk, he would have had some difficulty, and regarded the question as more one for medical people.
47. Mr Currie said that the Health and Safety Executive and factory inspectors after the Health and Safety at Work etc Act 1974 concentrated their advice and enforcement on the 90dB(A) level. He was not aware of any instance in which the NPL tables had been used by employers to predict the level of risk for their workforce. In evidence Mr Currie said that good practice won’t necessarily remove all risk. He agreed that there has been no very different understanding about noise induced hearing loss since the 1970s. The first thing to look at when deciding on practices, which is what employers have to do, is to look at the guidance available.
Mr Worthington’s report is to the effect that employers looked to the 90dB(A) limit in the Code of Practice as the maximum acceptable limit, and that the Factory Inspectorate and HSE did not refer employers to the risks below that limit as risks about which they should take action. That was the practice of the day, and employers taking advice, if they did, would be referred to the standard in the Code as being what had to be observed.
48. It is clear from some of the documents referred to above that by the beginning of the 1980s there were still many people employed in industry exposed over 90dB(A)lepd, and that the approach of enforcement agencies was to concentrate on those people. The evidence of the engineers referred to above suggests that that was a common approach until at least into the mid 1980s. That the 90dB(A)lepd level was regarded, as is the effect of the evidence of the engineers referred to above, in industry as the touchstone of reasonable standards that should be attained is evidenced by notes published by the Wolfson Unit for Noise and Vibration Control in the University of Southampton in 1976.”
Mr Bramer and Mr Currie were independent engineers called as witnesses at trial. There is no suggestion that they were employed by or advisers to Courtaulds or any of the other employers involved in this case at any date relevant to liability in this litigation. The judge was clearly impressed by their evidence. Whatever critique might, with hindsight, be directed at the advice or approach they said was being given or taken in respect of employers does not alter the fact that this was the contemporaneous advice and approach, upon which the judge found that reasonable employers could generally rely, unless they fell into his category of employers with “greater than average knowledge”.
The Court of Appeal attached considerable relevance to employers’ awareness of the first draft directive prepared by the Commission in October 1982. As I have observed, the court did not accurately place the position of this directive in the development of legislation at the European level (para 15 above). More importantly, a Commission draft is only a proposal for legislation by the Council of Ministers, and no reliance was or is placed on any underlying material which may, or may not, have been produced in its preparation or support. The first draft directive was proposed by the Commission as a basis for legislation in 1982, proved controversial, and was withdrawn in 1984. It was superseded by a differently framed legislative proposal, agreed by the Council of Ministers in May 1986, which gave member states until 1 January 1990 to bring into force provisions complying with the directive.
In the light of the above, there is, in my opinion, no basis for the court to disturb the judge’s conclusion in para 87 that the Code of Practice was an official and clear guidance which set an appropriate standard upon which a reasonable and prudent employer could legitimately rely in conducting his business until the late 1980s.
Before leaving this aspect, it is also worth noting one further small indication of the consistency of the judge’s conclusion with informed contemporary attitudes. The relevant level of noise exposure above which a reasonable employer should take protective steps was of direct relevance in the early case of noise-induced hearing loss, Kellett v British Rail Engineering Ltd (Popplewell J, 3 May 1984). The strength of the representation attests to the importance attached to the issues. On the facts and in the light of agreed expert evidence, Popplewell J recorded that there had been exposure for long periods initially in the period 1946 to 1955 below 90dB(A) and then in the period 1955 to 1979 above 90dB(A), and proceeded on the basis that “The level of 90 is generally recognised as being a figure above which it is necessary for precautions to be taken”. That was the basis on which it was accepted that the defendants, who had taken no precautions until 1979, were negligent.
(c) What period should be allowed for implementation of any different standard?
It follows, in relation to all the employers before the court, that the date when they should have been aware that it was no longer acceptable simply to comply with the Code of Practice was the date identified by the judge as applicable to Quantum and Guy Warwick, that is “the time when the terms of the 1986 directive became generally known in the consultative document of 1987” (para 87). Dealing with this point, Smith LJ said (para 105):
“I consider that, for the employer with the ordinary or average degree of knowledge, the judge’s conclusion that that period came to an end in 1987, following publication of the second European draft directive, was a reasonable conclusion …”
Adding a further six to nine months for implementing protective measures (instead of the judge’s period of two years), she went on to conclude (para 106) that:
“In case it should ever become material, I would fix the date for breach of common law duty for the average employer at January 1988.”
Leaving aside for the moment the difference in the period allowed for protective measures, that approach does not reflect the nuances of the judge’s finding. The consultative document was issued in 1987, but seeking responses no later than 30 June 1988. Its terms would have become “generally known” during the period of consultation, which was to last to 30 June 1988. The judge was prepared to add a period of two years for “putting a conservation programme into action, accompanied by information and instruction” (para 88). This would bring the period before ear protection would have to be made available to those exposed to noise levels over 85dB(A)lepd to 1 January 1990, the date when the Directive and Regulations under it anyway required such protection to be made available to them. I therefore understand the judge as having held that Quantum and Guy Warwick had no potential common law liability in negligence before 1 January 1990.
The judge, in taking two years as the appropriate period for “putting a conservation programme into action, accompanied by information and instruction”, referred to a further passage in Thompson. Mustill J there said (pp 423-424):
“From what date would a reasonable employer, with proper but not extraordinary solicitude for the welfare of his workers, have identified the problem of excessive noise in his yard, recognised that it was capable of solution, found a possible solution, weighed up the potential advantages and disadvantages of that solution, decided to adopt it, acquired a supply of the protectors, set in train the programme of education necessary to persuade the men and their representatives that the system was useful and not potentially deleterious, experimented with the system, and finally put it into full effect? This question is not capable of an accurate answer: and indeed none is needed, as will appear when the scientific aspects of the case are considered.
Various years were selected as rough markers, for the purpose of argument. I reject without hesitation the notion that the date lay somewhere in the years immediately preceding and following the Second World War. It was not until 1951, with the inconspicuous entry of the V-51R into the United Kingdom market that even a really enlightened employer would have started to ask himself whether something could be done. Even then, I consider that it pitches the standard of care too high to say that an employer would have been negligent, from that date, in failing to find, decide upon, and put into effect a system of using the protectors then available. At the other extreme, I consider that the choice of a date as late as 1973 cannot be sustained. The problem, and the existence of different ways in which it might have been combated, had been well known for years; there had been devices which were both reasonably effective, and reasonably easy to wear; and if the employers did not know precisely what they were they would have had no difficulty in finding out.
All this being so, I conclude that the year 1963 marked the dividing line between a reasonable (if not consciously adopted) policy of following the same line of inaction as other employers in the trade, and a failure to be sufficiently alert and active to measure up to the standards laid down in the reported cases. After the publication of ‘Noise and the Worker’ there was no excuse for ignorance. Given the availability of Billesholm wool and reasonably effective ear muffs, there was no lack of a remedy. From that point, the defendants, by offering their employees nothing, were in breach of duty at common law.”
The Court of Appeal disagreed with HHJ Inglis’s period of two years on the basis that he was “allowing time not merely for the provision of ear protectors but also for the noise measurement and policy decisions which preceded the actual provision of protection” and that, by the time when employers should have appreciated the need for noise protection below 90dB(A), they must “be taken to have known already to which workshops that applied” (para 106). In paras 32 and 48 of her judgment, Smith LJ also noted that Courtaulds’ noise committee had over a period of a year (between March 1983 and March 1984: see para 52 of HHJ Inglis’s judgment) identified areas of over 90dB(A)lepd and areas of 85 to 90dB(A)lepd.
There is a paucity of evidence in this area of the case. It is common ground that some period should be allowed, and the period chosen by the judge fits with periods chosen by courts in other contexts – see e.g. Armstrong v British Coal Corporation [1998] CLY 975, para 2842, Smith v Wright & Beyer Ltd [2001] EWCA Civ 1069, para 6, and Brookes v South Yorkshire Passenger Transport Executive [2005] EWCA Civ 452, paras 22-23 (and, less clearly on this point, Doherty v Rugby Joinery (UK) Ltd [2004] EWCA Civ 147; [2004] ICR 1272, paras 21 and 33-35) – as well as with periods commonly allowed for the implementation of new health or safety measures, e.g. under Directive 86/188/EEC and the Noise at Work Regulations 1989 which gave effect to it domestically. I do not see how it can be said that all employers who exposed their employees to noise levels between 85 and 90dB(A)lepd up to the end of 1987 must, Smith LJ’s words (para 106) “by that time be taken to have known already to which workshops” the provisions of the Directive and Regulations would apply. An employer’s duty towards a particular employee depends upon the circumstances of that particular employee’s employment. Smith LJ appears to have derived the duty to have measured noise levels from the fact or likelihood that there were other employees exposed elsewhere by the relevant employers to noise levels exceeding 90dB(A)lepd (paras 92-93). But the relevant circumstance is that none of the employees to whom this case relates were employed in circumstances where they were exposed to noise levels exceeding 90dB(A)lepd. Accordingly, the relevant employers were not, on the judge’s findings, under any duty to take further steps. The Code of Practice only stipulated that “All places where it is considered the limit in section 4 may be exceeded should be surveyed” (section 5.1.1). The limit referred to in section 4 for continuous exposure was that “If exposure is continued for eight hours in any one day, and is to a reasonably steady sound, the sound level should not exceed 90dB(A)” (section 4.3.1). I do not therefore consider that the basis on which the Court of Appeal interfered with the judge’s conclusion on this point was justified.
Had my view prevailed that Courtaulds were in no significantly different position from Quantum and Guy Warwick as regards the date when they should have taken further steps to protect employees against the risk of hearing loss, I would still have held Courtaulds’ position to differ in one material respect. At this point it would have been relevant that they were to some extent already ploughing a lone furrow. By mid-1984 they had in fact undertaken the relevant noise surveys and they already knew to which workshops the issue of exposure between 85 and 90dB(A)lepd applied. Accordingly, in relation to Courtaulds alone, I would have seen force in the view that a period of no more than nine months was long enough to perfect such steps as they were already contemplating. Bearing in mind that the consultation paper, on which the judge based the date by reference to which employers generally should have begun to take action, was open for responses until mid-1988, I would have taken the end of 1988 as the latest date by when Courtaulds should have had full and effective protective measures in place for employees exposed to noise between 85 and 90dB(A)lepd. But since (as stated in paragraph 25 above) the judge’s view will prevail that Courtaulds were (along with Pretty Polly) in a special position, and should have acted to take further steps from the start of 1983, they too must in my view be entitled to the two years allowed by the judge for the actual implementation of such steps, making them liable as the judge held from the start of 1985.
The Factories Act 1961
In relation to the scope and application of section 29(1) (set out in para 11 above), the Court of Appeal disagreed substantially from the judge, holding that the section involves a significantly more stringent standard of liability than any arising at common law. Several important issues arise on which there is no prior authority at the highest level: whether section 29(1) applies at all, where the claim relates not simply to the workplace, but to activities carried on at it; whether it applies to risks of noise-induced hearing loss arising from such activities in relation to long-term employees working in the place; whether the safety of a place is an absolute and unchanging concept or a relative concept, the practical implications of which may change with time; and what is meant by “so far as is reasonably practicable” and how it relates to the concept of safety.
(i) Lack of safety arising from activities
The first issue concerns the extent to which a place can be rendered unsafe by activities carried on at it. The appellants rely on the background to section 29(1) to argue that it cannot. Section 29 re-enacts section 26 of the Factories Act 1937, as amended by section 5 of the Factories Act 1959. Section 26, as originally enacted, did not have wording corresponding with the second part of section 29(1). The words “and every such place shall, so far as is reasonably practicable, be made and kept safe for any person working there” were added by section 5 of the 1959 Act. The amendment adding them was proposed late in the passage of the bill. It was felt to be “a real fault and a gap in the existing legislation” that it covered only the means of access to, and not the safety of, the place of work. The Minister, Mr Macleod, accepted the idea, and, ultimately accepted in substance the whole amendment (House of Commons Standing Committee B, 12 March 1959, 17th Sitting, cols 747-752). There had been a series of prior cases in which courts had had to distinguish, less than happily, between the place of work and means of access to it, and to reject claims on, for example, the ground that the employee was injured at his workplace on his way to the lavatory, rather than on his way to his workplace: see Davies v de Havilland Aircraft Co Ltd [1951] 1 KB 50; Rose v Colville’s Ltd 1950 SLT (Notes) 72; Dorman Long & Co Ltd v Hillier [1951] 1 All ER 357 and Prince v Carrier Engineering Co Ltd [1955] 1 Lloyd’s Rep 401. Looking at the matter today, one might perhaps have expected responsibility for the safety of the workplace to be a subject for legislative attention even before responsibility for the means of access to it. But, for whatever reason, that was not the original statutory scheme.
The gap was filled by the 1959 amendment. In considering the scope of the words added, Mr Beloff QC, on behalf of the first appellant, submits that the means of access looks to physical dangers or obstructions, that section 29(2) is likewise clearly focused on the physical risks inherent in working at height, and that the whole section is part of a scheme of criminal liability, from which any civil liability only follows “by judicial interpretation” (Taylor v Coalite Oils & Chemicals Ltd (1967) 3 KIR 315, 318, per Diplock LJ). This last point has some, though only limited, force, for two reasons. First, the criminal liability is under the Act imposed on the occupier or, in certain cases not presently relevant, on the owner of the factory. That to my mind suggests that responsibility under section 29 is likely to attach to matters over which an occupier (typically of course the employer him- or itself) would be expected to have control. But such matters would include not merely the physical state of the premises, but also, at least, the carrying on there of regular activities. Secondly, a person is “not to be put in peril upon an ambiguity, however much the purpose of the Act appeals to the predilection of the court” (London and North Eastern Railway Co v Berriman [1946] AC 278, 313-314, per Lord Simonds). However, it is only if the section is ambiguous, unclear or open to two reasonable interpretations that its penal effect may indicate the narrower construction (Franklin v Gramophone Co Ltd [1948] 1 KB 542, 557, per Somervell LJ), and courts should remember that the Factories Act is “a remedial measure passed for the protection of the workmen [which] must, therefore, be read so as to effect its object so far as the wording fairly and reasonably permits” (Harrison vNational Coal Board [1951] AC 639, 650, per Lord Porter; McCarthy v Coldair Ltd [1951] 2 TLR 1226, per Denning LJ). Mr Beloff is however also right to remind the Court that it is always necessary to consider in what respects and to what extent the Act involves remedial measures.
Mr Beloff QC submits that there are three possible interpretations of section 29(1): a minimalist, a maximalist and a middle way. The minimalist would involve treating the section as confined to intrinsic aspects of the physical place, ignoring any activities carried on there. With the possible exception of the Delphic rejection of the claim under section 29 by Mustill J in Thompson at p 449C-D, there appears to be no reported case rejecting a claim under that section on this basis. Reference was made to the interpretation given to section 25(1) and by extension section 26(1) of the 1937 Act: in Latimer v AEC Ltd [1953] AC 643, the House held that section 25(1), which in its then form provided: “All floors, steps, stairs, passages and gangways shall be of sound construction and properly maintained”, was not breached when a structurally sound factory floor became wet and oily after a flood due to an unusually heavy rainstorm; and that approach was then applied under section 26(1) in Levesley v Thomas Firth & John Brown Ltd [1953] 1 WLR 1206 (CA), where in the course of some loading operations a block of iron was left temporarily protruding three inches out into a gangway, used as a means of access. This restriction of the word “maintained” in relation to the means of access has been strongly criticised in successive editions of Munkman’s Employer’s Liability at Common Law, and there is no reason to extend it to the words “be made and kept safe” which govern the duty, first introduced in 1959, in relation to the safety of the workplace. Indeed, it is clear from the Parliamentary materials that the words “and kept” were introduced specifically with the Latimer case in mind, and to make clear that employers should so conduct their business as to see that a workplace did not become unsafe. The examples were given of overstocking or slippery substances left on the floor (Factories Bill, Standing Committee B, 12 March 1959, cols 749-750).
A workplace may therefore be unsafe because of some feature which is neither structural nor permanent. But this does not determine whether a workplace may be unsafe by reason of operations carried on in or at it. Mr Beloff submits that the law took a wrong turn in Evans v Sant [1975] QB 626, when the Divisional Court initiated what he described as a middle approach which was later followed by the Court of Appeal in Wilson v Wallpaper Manufacturers [1982] CLY para 1364 and Homer v Sandwell Castings Ltd [1995] PIQR P318. In Evans v Sant, the Divisional Court (Lord Widgery CJ, Bridge and Shaw JJ), on a case stated by magistrates after conviction, said that the guiding light in their approach was that
“in deciding whether the place of work was made safe, it is the place qua place that we look at, and not the place qua operation carried on upon the place” (p 635G-H).
But Lord Widgery CJ then went on (pp 635H-636B)
“That does not mean of course that in deciding whether the place is made safe one has total disregard for the activities which go on in the place itself. The safety of the place depends not simply on the construction of the floor or the solidity of the walls, but it also depends in some degree upon the nature of the operations carried on therein. In so far as there is permanent equipment in the place, then its safety can in my judgment reflect on the safety of the place. In so far as there are activities carried on in the place which are constant, regular and recurring, I can well see that they may have their impact on the question of whether the place has been made safe.”
In Evans v Sant, even this relaxed or “middle” approach did not enable the prosecution to succeed. The facts were that, in the course of laying a water-main, a test-head was attached between the pipe and a pump to test the water pressure, but it was insecurely fitted and, as pressure built up, it blew off, causing the death of a workman who ran into the path of a passing car. In allowing the defendant’s appeal against conviction, Widgery CJ said, at p 636, that:
“where, as in the present case, you start with a place safe in every degree, and the only thing which renders it unsafe is the fact that equipment brought upon it for a particular operation, and being used for a particular operation on a particular day, produces an element of danger, it seems to me that that is not enough to justify the allegation, certainly in criminal proceedings, that the place itself has not been made safe.”
In Homer v Sandwell Castings Ltd, a civil claim failed because the danger “did not arise from any static condition of the place of work, but arose from the operation upon which the plaintiff was engaged” (p 320, per Russell LJ). The employee had noticed a slight leak through sand paste, which he had himself introduced to seal a gap, but had carried on working, with the result that an eruption of molten metal through the seal fell onto his foot.
The appellants support their case on section 29(1) by reference to the layout as well as other specific sections of the 1961 Act. These, they submit, are only consistent with a limited interpretation, confining it to physical dangers inherent in the structure. They point out that section 55 addresses “any process or work carried on” or to be carried on in any premises used or intended to be used as a factory; it gives a magistrates’ court power, if satisfied that such process or work “cannot be so carried on with due regard to the safety, health and welfare of the persons employed”, to prohibit the use of the premises for that process or work. They also point to various other sections designed to address problems arising from operations carried on in premises. For example section 4 requires suitable and effective provision for circulation of fresh air, and “for rendering harmless, so far as practicable, all such fumes, dust and other impurities generated in the course of any process or work carried on in the factory as may be injurious to health”; section 14 requires (with immaterial exceptions) “Every dangerous part of any machinery … [to] be securely fenced unless it is in such a position or of such construction as to be as safe to every person employed or working on the premises as it would be if securely fenced”; and section 27 requires all parts and working gear to “be of good construction, sound material, adequate strength and free from patent defect, and … properly maintained”.
However, the sections of the Act are not exclusive codes in relation to their particular subject matters (see e.g. Liptrot v British Railways Board [1969] 1 AC 136), and it is not axiomatic that there cannot be overlap between the application of two different sections. It seems to me good sense to describe a workplace as unsafe, if operations constantly and regularly carried on in it make it so. It is unnecessary to comment on the decisions on particular facts, but section 29(1) cannot in my opinion have a narrower meaning than that given it in Evans v Sant and the later cases following Evans v Sant. To take another example, a place may well, as it seems to me, be unsafe by reason of activities carried on in it, e.g. if a shop-floor were to be constantly crossed by fork-lift trucks passing from a store on one side to somewhere else on the other side of it. In the present case, the noise generated by knitting and other machines was a permanent feature of the operations which were intrinsic to the workplace. If the section is directed to noise at all, then such noise must, on the approach taken in Evans v Sant, make the place unsafe. It is unnecessary to say more on the facts of this case.
(ii) Lack of safety arising from noise
The second issue is whether section 29 is directed to noise. This is more open to question. There is much to suggest that noise was not in the legislature’s mind at all, when section 26(1) of the 1937 Act was expanded to cover the safety of the workplace in 1959 and later re-enacted as section 29(1) of the 1961 Act. Further, the relevant noise is not noise of a literally deafening nature, causing immediate injury. It is noise which would only injure some people and then only if they were exposed to it for continuous periods lasting many years. The appellants submit that a requirement that the workplace “be made and kept safe for any person working there” is inapt to cover a situation where many or all of the persons working there may never be at any risk, because they have not been there long enough and may never be, or because they may not be susceptible to suffering such noise-induced hearing loss.
The appellants further submit that the fact that the principal protective measure suggested consists in the provision of ear protectors, rather than any corrective measures affecting the workplace itself or any regular feature of it, indicates or suggests that section 29(1) is inapplicable. I am not impressed by this point. If a workplace can be unsafe for employees by reason of constant and regular activities carried on at it, I do not see why it should not be rendered safe by counter-acting measures of an equally constant and regular nature relating to the clothes or equipment worn by employees.
On the other hand, the scheme of the 1961 Act does indicate that, even though section 29(1) is to be read as indicated in Evans v Sant, it is essentially dealing with safety, rather than health. Safety typically covers accidents. Health covers longer-term and more insidious disease, infirmity or injury to well-being suffered by an employee. Hearing loss, at least of the nature presently in issue, falls most naturally into this latter category. The 1961 Act is divided into Parts, the first four being headed (I) Health (General Provisions), (II) Safety (General Provisions), (III) Welfare (General Provisions) and (IV) Health, Safety and Welfare (Special Provisions and Regulations). Part I comprising sections 1 to 11 deals with cleanliness, overcrowding, temperature, ventilation, lighting, drainage of floors, sanitary conveniences, and enforcement powers; while Part II contains, in addition to section 29, a wide variety of sections covering inter alia machinery, dangerous substances, hoists, lifts, openings and doorways, chains, ropes, lifting apparatus, floors, passages and stairs, fumes and lack of oxygen in confined spaces, explosive or inflammable dust, vapour or substance, boilers, means of escape and fire. The general distinction between health and safety provisions was also present in the 1937 Act, and significance was attached to it in Clifford v Charles H Challen & Son Ltd [1951] 1 KB 495, 498, per Denning LJ and Ebbs v James Whitson & Co Ltd [1952] 2 QB 877, 886, per Hodson LJ.
As to the legislative mind-set in 1959 and 1961, the government promoting the 1959 Act made no mention of noise. The only relevant reference to noise by any MP in debate concerned the possibility that the minister might take advice on and look more closely at noise, with a view to making regulations under section 60 of the 1937 Act as amended (later section 76 of the 1961 Act), enabling the minister to make regulations where satisfied that, inter alia, any process was “of such a nature as to cause risk of bodily injury”. Likewise, when the Offices, Shops and Railways Premises Bill came before Parliament in November 1962 and March 1963, comments were made on the absence of any provision dealing with noise. Initially, the minister directed attention to the general power to make regulations for securing health and safety, but ultimately section 21 was included, specifically permitting regulations to protect “from risks of bodily injury or injury to health arising from noise or vibrations”. The minister in the House of Lords commented on section 21: “This is a new subject, on which we still have much to learn” (House of Commons, 2nd reading, 15 November 1962, Hansard cols 615, 618-619 and House of Lords 2nd reading, 18 March 1963, Hansard, col 948).
It was not until April 1960 that Sir Alan Wilson’s committee was set up to report on noise, and only in March and July 1963 that it issued interim and final reports. The main focus was on ambient noise and, in discussing the general effects of noise in chapter II, the report said, in relation to noise in a working environment, merely that “it may disturb concentration, and perhaps affect the efficiency of someone working at a difficult or skilful task; it may affect personal safety”. In outlining the law relating to noise in chapter III, the report identified the common law of nuisance and the Noise Abatement Act 1960. However, chapter XIII addressed occupational exposure to high levels of noise. It noted that it had been established that “a permanent reduction of hearing sensitivity can occur in people who are exposed for long periods to noisy environments, such as are found in some industries” (para 513). But it made clear the understanding that there was no existing legislation applicable to such noise and no sufficient basis for introducing any without further research. It said (para 534):
“Although voluntary action is now possible and, indeed, essential, we do not consider that the present knowledge of this complex problem provides a sufficient basis for legislation. Although the levels of continuous, broadband noise which represent a hazard to the hearing of people who are exposed to them for long, unbroken periods have been established within certain margins of error, many uncertainties remain. There is no satisfactory means of predicting the susceptibility of individuals to hearing loss, nor is the distribution of susceptibility known; the comparative danger of noises in which energy is concentrated in narrow frequency bands is not determined; nor is the influence on hearing loss of impulsive noises, which are common in industry. Neither is there much information on the physical properties of industrial noise, the distribution of noise of any given type in industry and the practicability of minimising those properties which are found to be dangerous to hearing. If early legislation were introduced it could do no more than lay down general standards, the effect and cost of which cannot at present be estimated. If the standards adopted proved to be too severe in some respects the industries affected might be exposed to heavy unnecessary expenditure; on the other hand if minimum standards were adopted, these would tend to suggest that compliance with these standards was all that was needed even in parts of industry where there were important hazards at lower sound pressure levels or with shorter exposure. Legislative insistence on the wearing of ear protectors would be particularly difficult to introduce until there is a wider recognition of the need for them in noisy industries. Early legislation would, therefore, have to be very general in its terms and it would be impossible to enforce effectively. We think that, at present, it would not achieve as much as vigorous voluntary action. In our view, before practical legislation could be considered, it would be necessary to establish the extent of the risk to average people of exposure to industrial noise, and the cost and possibility of measures which would effectively reduce this risk to the point which, on balance, was regarded as acceptable.”
In paras 535-536, the report suggested a further research programme, to be followed by more detailed surveys of individual industries and processes, and then, when the results of such surveys were available, consideration by government “whether the time has not then come to lay down by legislation minimum standards to protect workers against damaging noise exposure in industry”.
The Annual Report of HM Chief Inspector of Factories on Industrial Health for 1965 (Cmnd. 3081) also stated at p 79 that
“At present there is no legislation requiring the control of noise in factories, nor is occupational deafness prescribed under the National Insurance (Industrial Injuries) Act 1965. The problem was examined in detail by the Wilson Committee, whose report was published in 1963. They concluded that the knowledge then existing was insufficient to enable legislation to be made. They advocated research and indicated some of the lines this should take. At present a very great deal of research is being conducted by variousbodies.…”
The Report of a Committee chaired by Lord Robens in 1970-72 (Cmnd 5034) referred to the Wilson Committee’s words (para 341), but went on to record the research recorded in Prof Burns’s and Dr Robinson’s 1970 report, Hearing and Noise in Industry. The research had “established a system of predicting on a statistical basis the hearing deterioration to be expected for specified exposures within a wide range of industrial noise” and the report had “amongst other things … suggested that workers should not be consistently exposed over long periods to a noise emission level higher than 90dB(A)” (para 342). Robens then mentioned that industrial noise had now become a live issue in the field of compensation claims, referring to a case where “a court awarded damages for the first time” (para 344). This must have been Berry v Stone Manganese and Marine Ltd [1972] 1 Lloyd’s Rep 182, where a claim for common law negligence succeeded in respect of noise which “amounted to about 115 to 120 decibels, whereas the … tolerable noise is about 90” and no ear muffs had been provided (p 184). A claim under section 29(1) was in fact also introduced by amendment at trial. It was not argued on the basis of failure to provide ear muffs, but of alleged failure to reduce the actual noise level as far as reasonably practicable, and it failed on the facts. Robens continued that, since “the relationship between exposure to certain levels of noise and hearing loss [was] now recognised” the time was “ripe to include basic requirements on noise control in occupational safety and health legislation” (para 345).
Lord Robens’s recommendation stimulated the inclusion of regulation 44 in the Woodworking Machines Regulations 1974 (SI 1974/903) made under section 76 of the 1961 Act. In relation to factories using woodworking machines, regulation 44 requires that, “where on any day any person employed is likely to be exposed continuously for eight hours to a sound level of 90dB(A)” or equivalent or greater, then “(i) such measures as are reasonably practicable shall be taken to reduce noise to the greatest extent which is reasonably practicable; and (ii) suitable ear protectors shall be provided and made readily available for the use of every such person”. Later in 1974, there were also made, under agricultural health and safety legislation, the Agriculture (Tractor Cabs) Regulations 1974 (SI 1974/2034), regulation 3(3) of which provided that ministerial approval of safety cabs required ministers to be satisfied that the noise levels inside “would not be more than 90dB(A)”. The existence of specific regulations under section 76 is not necessarily inconsistent with a more general duty of safety existing in respect of noise under section 29(1), though the inter-relationship could give rise to problems and one might have expected or at least hoped that it would be clarified.
HM Chief Inspector of Factories’ report for 1974 (Cmnd 6322) referred to the Woodworking Machines Regulations 1974 as “the first British regulations to contain a legal requirement specifically intended to protect factory workers against the effects of noise” (p 73). Under the heading of Noise and Vibration, it also noted (p 71) that
“The Inspectorate has been mainly concerned with protection of workers against levels of noise exposure likely to cause permanent hearing damage. To this end continuing efforts have been made to encourage voluntary compliance with the Code of Practice …, which recommends that where people are likely to be exposed to sound levels over 90dB(A) for eight hours per day (or to suffer an equivalent exposure) action should be taken to reduce the noise exposure, and ensure that ear protection is provided and used”.
The position is therefore that section 29(1) is part of the statutory provisions dealing with safety, and it was enacted without any appreciation that it could cover noise or noise-induced hearing loss. Noise-induced hearing loss was not a newly discovered phenomenon, at least in heavy industry, where it was evidently regarded as an inescapable fact of life (see e.g. Thompson, p 409A, per Mustill J). An immediately injuring noise (like that which punctured the Duke of Wellington’s ear-drum when he stood too close to the firing of a battery in his honour) could probably only occur as a result of some one-off error or break-down in the workplace, which would not reflect on its safety, although it could give rise to common law liability in negligence. None of the contemporary reports or documents suggests that the possibility of noise was in anyone’s mind or would have been conceived of as an element of safety of the workplace in 1959 or 1961. It follows that there is considerable force in the appellants’ submission that section 29(1) does not refer to safety in a sense depending not upon the current condition of the workplace with its noisy machinery, but upon the periods for which employees have worked, or are likely to continue to work in that, or another, workplace with equivalent or greater noise levels and upon their particular susceptibility to noise. Ultimately, however, I have come to the conclusion that it is not possible to be so categorical, and that the answer to the present issue links up with the next issue, that is how far responsibility under section 29(1) is absolute or relative. If section 29(1) imposes absolute liability, irrespective in particular of current attitudes or standards from time to time, then noise-induced loss appears so far outside the thinking behind and aim of section 29(1) that I doubt whether it would be right to construe the section as covering it. But if liability under section 29(1) is relative, depending in particular on knowledge about and attitudes to safety from time to time, then, as thinking develops, the safety of a workplace may embrace matters which were previously disregarded, but have now become central or relevant to reasonable employers’ and employees’ view of safety.
(iii) The absolute or relative nature of safety
The third issue is whether the requirements regarding safety in section 29(1) are absolute or relative. In the respondent’s submission, they are absolute: what is safe is objective, unchanging and independent of any foresight of injury; the only qualification on an employer’s liability, where a workplace is unsafe because of employees’ exposure to noise, is if the employer can show that it was not reasonably practicable to reduce or avoid the exposure, e.g. by providing ear protectors. The House of Lords, by a majority, held in Nimmo v Alexander Cowan & Sons Ltd [1968] AC 107 that the onus lies on the employer to plead and prove under section 29(1) that it was not reasonably practicable to make and keep a place safe.
Smith LJ accepted the submission that safety is an absolute. She said that “what is objectively unsafe cannot change with time” (para 78). She also associated lack of safety with the occurrence of injury to a single person, for she continued:
“If 85dB(A)lepd causes deafness to a particular claimant, that claimant’s place of work was not safe for him or her. It might have been safe for another person working alongside. But for the susceptible worker who has in fact been damaged, it can be demonstrated, without more, that his or her place of work was not safe. Looking at matters from the point of view of the work force generally, it is known that a minority of people will suffer appreciable harm as the result of prolonged exposure to 85dB(A)lepd. Therefore, it can be said that the place of work is not safe for the workforce because there is a risk of injury to all of them.”
I do not accept this approach. Whether a place is safe involves a judgment, one which is objectively assessed of course, but by reference to the knowledge and standards of the time. There is no such thing as an unchanging concept of safety. The Court of Appeal’s approach means in reality that any court determining an issue of safety would be applying (retrospectively) whatever happened to be the view of safety current at the time the matter came before it. Further, the fact that a single person has suffered injury due to some feature of the workplace is not, without more, proof that the workplace was unsafe. As Lord Upjohn (one of the majority) said in Nimmo (p 126C-D), “the section requires the occupier to make it [the workplace] 100 per cent safe (judged of course by a reasonable standard of care) if that is reasonably practicable and, if it is not, to make it as safe so far as is reasonably practicable to a lower percentage”.
Prior to the 1959 and 1961 Acts, the requirement, under regulation 5 of the Building (Safety, Health and Welfare) Regulations 1948 (SI 1948/1145), that “sufficient safe means of access shall so far as is reasonably practicable be provided”, had been considered in Sheppey v Matthew T Shaw & Co Ltd [1952] 1 TLR 1272 and Trott v WE Smith (Erectors) Ltd [1957] 1 WLR 1154 (CA). There it was said, by respectively Parker J at p 1274 and Jenkins LJ at p 1159, that safe cannot mean “absolutely safe”, although it must take account of circumstances likely to occur, including the fact that employees do not always behave with reasonable care for their own safety. I also note that in Trott, Jenkins LJ after suggesting that the statutory obligation was stricter than the general duty of reasonable care at common law and anticipating Nimmo by identifying the qualification “so far as is reasonably practicable” as involving a shift of the burden of proof (pp 1158-59), ended his judgment by saying that to regard the standard of care prescribed by regulation 5 and at common law as approximating to each other was “if not absolutely right …. at all events not very far wrong” (p 1162). Likewise, in relation to a similar requirement under the Shipbuilding and Ship-repairing Regulations 1960 (SI 1960/1932), it was argued in Paramor v Dover Harbour Board [1967] 2 Lloyd’s Rep 107 “that if the bare possibility of injury and accident could reasonably be foreseen, then the means of access is not ‘safe'”. In response, Salmon LJ said (p 109) that there “is, of course, a risk of injury and accident inherent in every human operation” but that whether a means of access was safe involved “assessing the risk in all the circumstances of the case” and “must be a question of fact and degree in each case”.
The successor legislation to the 1961 Act, the Health and Safety at Work Act etc 1974 was differently, and on its face more broadly, formulated. It required every employer by section 2(1) to ensure, so far as is reasonably practicable, the health, safety and welfare of all his employees, and by section 3(1) to conduct his undertaking in such a way that other persons were not thereby exposed to risks to their health or safety. The concept of safety was considered in this context in R v Chargot Ltd (trading as Contract Services) [2008] UKHL 73 [2009] 1 WLR 1. Lord Hope, with whose speech all other members of the House agreed, said that the legislation was “not contemplating risks that are trivial or fanciful”, that the statutory framework was “intended to be a constructive one, not excessively burdensome”, that the law “does not aim to create an environment that is entirely risk free” and that the word “risk” which the statute uses “is directed at situations where there is a material risk to health and safety, which any reasonable person would appreciate and take steps to guard against” (para 27).
It would be strange if the earlier, narrower formulation in section 29(1) had a more stringent effect. Similar comments to Lord Hope’s had also been made in the earlier case of R (Junttan Oy) v Bristol Magistrates’ Court [2003] UKHL 55; [2003] ICR 1475, in relation to regulations requiring machinery to be in fact safe, “safe” being defined to mean giving rise to “no risk (apart from one reduced to a minimum) of its endangering the health of or of its being the cause or occasion of death or injury to persons”. Lords Nicholls and Hobhouse (both dissenting on presently immaterial points) made clear in that context that “safe” is not an absolute standard. Lord Nicholls said (para 22): “There may be differences of view on whether the degree of safety of a particular piece of machinery is acceptable”. Lord Hobhouse said (para 103) that:
“to describe questions of safety as simple questions of fact, just as if one was asking whether a given bird is a sparrow or a sparrowhawk, is to make a fundamental and elementary mistake. Safety is a question of opinion. There is no such thing as absolute safety. All safety is relative. Two men can legitimately hold different opinions [as to] whether a machine is safe or unsafe. Different assessments can be and are made of the safety of a particular machine by the authorities in different countries”.
If safety is a relative concept, then foreseeability must play a part in determining whether a place is or was safe. Mr Hendy submits that foresight has no such role; it can come in, if at all, only at the second stage, when considering whether it was reasonably practicable to make and keep the place safe. He also notes that there was in any event, on the judge’s findings, foresight in the present case of some statistical risk of injury. On the role of foresight, there are differing strands of authority. Not long before the 1959 Act, the House had in John Summers & Sons Ltd v Frost [1955] AC 740 considered the requirement under section 14(1) of the 1937 Act that “Every dangerous part of any machinery … shall be securely fenced unless it is in such a position or of such construction as to be as safe to every person employed or working on the premises as it would be if securely fenced”, and had applied to the concept of dangerousness an approach dating back to Hindle v Birtwhistle [1897] 1 QB 192, namely that a machine or part is dangerous “if in the ordinary course of human affairs danger may reasonably be anticipated from the use of them without protection”, and that it was “impossible to say that because an accident had happened once therefore the machine was dangerous”. Lords Reid and Keith at pp 765-766 and 774 expressly endorsed the relevance of determining whether the degree of danger was such that there was “a reasonably foreseeable cause of injury”.
The same approach, again based on Hindle v Birtwhistle, was followed under section 14 in Close v Steel Co of Wales Ltd [1962] AC 367. The claim there failed because “in the ordinary course of human affairs danger could not reasonably be anticipated from the use of the drill unfenced” (p 382, per Lord Denning, with whom Lord Morton agreed on this point at p 398); “the risk of injury, serious and regrettable as it proved to be, was not reasonably foreseeable” (p 389, per Lord Goddard); and “No reasonable employer could have been expected to anticipate any risk of significant injury” (p 412, per Lord Guest).
Close proved controversial on another, presently irrelevant, aspect (whether the duty to fence extended to preventing fragments flying out of a machine) on which it was criticised in paragraph 7 of Appendix 7 to the Robens Report. But the endorsement in Close of the concept of foreseeability taken from Hindle v Birtwhistle was noted without criticism in paragraph 5 of Appendix 7 to the Robens Report and was regarded as correct by contemporaneous commentators in The Solicitors’ Journal (The Duty to fence dangerous machinery: (1961) 105 Sol J 997) and The Modern Law Review (New Wave of Interpretation of the Factories Acts: (1962) 25 MLR 98, commending “the broad common-sense view of danger” taken in Hindle v Birtwhistle), though it was regretted by John Munkman, writing in The Law Journal (The Fencing of Machinery: (1962) LJ 761).
The concept of foreseeability continued to be adopted by courts, most notably, in Taylor v Coalite Oils & Chemicals Ltd (1967) 3 KIR 315. In Allen v Avon Rubber Co Ltd [1986] ICR 695, the Court of Appeal also endorsed it under section 29(1) of the 1961 Act. In Taylor, Diplock LJ said, obiter (pp 319-320):
“‘Safe’ is the converse of ‘dangerous’. A working place is ‘safe’ if there is nothing there which might be a reasonably foreseeable cause of injury to anyone working there, acting in a way in which a human being may reasonably be expected to act, in circumstances which may reasonably be expected to occur: see John Summers & Sons Ltd v Frost [1955] AC 740, per Lord Reid at p 766. In determining, therefore, whether the occupier was under a duty to take any measures to prevent an accident which was caused by the presence at a working place of a particular object, it is necessary to ask, first, whether the possibility of an object of that kind being at that particular place was reasonably foreseeable, and, if so, secondly, whether it was reasonably foreseeable that it would be a cause of injury to a person working there. It is only if both those questions are answered affirmatively that it becomes necessary to consider whether it was ‘reasonably practicable’ to avert the danger.”
More recently, in Robb v Salamis (M & I) Ltd [2006] UKHL 56; [2007] ICR 175, Lord Hope confirmed the relevance of reasonable foreseeability to article 5(1) of the Framework Directive 89/391/EEC (imposing on employers the duty to ensure the safety and health of workers in every aspect related to the work) and article 3(1) of the Work Equipment Directive 89/655/EEC (requiring employers to take the measures necessary to ensure that the work equipment made available to workers is suitable for the work to be carried out), stating that “The obligation is to anticipate situations which may give rise to accidents” (para 24).
The respondent relies on a different stream of authority, consisting of Robertson v RB Cowe & Co 1970 SLT 122, Larner v British Steel plc [1993] ICR 551, Neill v Greater Glasgow Health Board [1994] SLR 673, [1996] SC 185 and Mains v Uniroyal Englebert Tyres Ltd [1995] SC 518. The Court of Appeal in the present case held that it was bound by Larner, as well as expressing agreement with it.
Robertson concerned a trestle erected on a marine slipway which moved causing a workman to fall. Lord Guthrie concluded “from the whole circumstances elicited … as to the position of the staging, the way in which the pursuer worked, the outward movement of the trestle, and where the pursuer fell” that “on a balance of probabilities … the erection was insecure and unsafe” (p 129). Lord Migdale treated the fact that the trestle fell over as proof that it was not safe, and both he and, with hesitation, Lord President Clyde concluded that the decision in Nimmo meant that breach of section 29(1) was established once it was proved that the trestle was not sufficiently stable to support a workman doing his job there normally. There was no plea that it was not reasonably practicable to make or keep the trestle safe, and Lord Guthrie noted the obvious difficulty that such a plea would have faced. Lords Guthrie and Migdale rejected a submission based on the line of authority including John Summers and Close, that the employee had to prove that the accident was reasonably foreseeable. The basic issue was whether the trestle was insecure as erected, or whether it fell because the pursuer over-reached (pp 128-129).
Larner concerned an undetected crack which caused a structure to fall on the plaintiff. The Court of Appeal preferred the reasoning in Robertson to Diplock LJ’s dicta in Taylor and rejected foreseeability as a test of safety. In Mains the injury arose when a piece of machinery made an involuntary and unexpected movement, the cause of which was never ascertained, and so trapped the workman’s hand; and it was common ground that the circumstances of the accident and its cause were not reasonably foreseeable. The Inner House took the same view as in, and followed, Larner.
In so far as Robertson, Larner and Mains stand for a proposition accepted by the Court of Appeal in the present case, that safety is an eternal absolute independent of any judgment based on current standards and attitudes, then I do not accept their correctness. One factor in the decisions in both Larner and Robertson was that the introduction of foreseeability would reduce the “utility of the section”, by frequently limiting success under it to circumstances in which a common law claim for negligence would succeed (Larner, p 560A, per Hirst LJ, and p 562C-D, per Peter Gibson J; Mains, p 531D-E, per Lord Sutherland and p 535G-H and 536H-537B, per Lord Johnston). This begs the question as to the intended scope and effect of the section. Not only does the section introduce criminal sanctions, but, as established in Nimmo, if the workplace is unsafe, then the burden shifts to the employer to show that it was not reasonably practicable to make and keep it safe. It was in this connection that in Nimmo Lord Guest said that he could “not think that the section was intended to place such a limited obligation on employers” as they would have at common law (where it would be for an injured employee to plead and prove failure to take reasonably practicable steps) (p 122F-G), and that Lord Upjohn (whose view that safety is “judged of course by a reasonable standard” I have already quoted in paragraph 64 above) added that “it is not in doubt that the whole object of the Factories Act is to reinforce the common law obligation of the employer to take care for the safety of his workmen” (p 125B).
Further, section 29(1) imposes a non-delegable duty, so that an employer is responsible for achieving or for the taking all reasonably practicable measures to achieve the requisite safety irrespective of whether he chooses to set about doing this through himself, his servants or independent contractors.
There is nothing to show that section 29(1) was intended to go further, and there is no assumption (or, in my opinion, likelihood) that it was intended to. The standard of reasonableness expressed in the qualification “so far as is reasonably practicable” (in respect of which the onus of proof is on the employer) makes it more, rather than less, likely in my view that the concept of safety is itself to be judged, as Lord Upjohn thought obvious in Nimmo, by reference to what would, according to the knowledge and standards of the relevant time, have been regarded as safe (see further paragraph 79 et seq. below).
Peter Gibson J (at p 562G-H) regarded it as surprising that the approach in John Summers, based on section 14(1) of the 1937 Act containing no qualification of reasonable practicability, should have been regarded as relevant under section 29(1) of the 1961 Act which does contain such a qualification. The same point was made in Mains (pp 527A-D and 531D-F, per Lord Sutherland and p 536A, per Lord Johnston). But there was authority pre-dating 1959 which took the same approach to safety where there was such a qualification: see Sheppey v Matthew T Shaw & Co Ltd and Trott v W E Smith (Erectors) Ltd (para 65 above). The force of the point depends in any event upon the effect of the qualification. In Mains it was contemplated that the qualification might enable a defender to “say it was not reasonably practicable to make this place safe, because this particular mishap was not reasonably foreseeable” (p 527C-D, per Lord Sutherland) and that “The unforeseeable accident occurring in an unforeseeable way may well give the defenders a defence under the qualification” (p 637E, per Lord Johnston). Likewise, in the present case the Court of Appeal considered “as a matter of common sense” that “if, the employer does not know of the risk and cannot reasonably have been expected to know of it, it cannot be reasonably practicable for him to take any steps at all” (paras 83 and 91). On that basis, foresight can be very relevant under section 29(1). But, if this is so, then section 29(1) is to that extent merely shifting the onus of proof, which weakens the argument that it must be seen as departing substantially from conceptions of common law negligence.
In summary, safety must, in my view, be judged according to the general knowledge and standards of the times. The onus is on the employee to show that the workplace was unsafe in this basic sense.
(iv) Reasonably practicable
Since it took the view that safety is absolute and unchanging, the Court of Appeal had to consider whether the qualification “so far as is reasonably practicable” enabled the employers to exonerate themselves by showing that reasonable employers would not have considered that there was cause to reduce noise exposure in the workplace below 90dB(A). The Court of Appeal held that the qualification gave no scope for such a defence. It said (para 89):
“Under the statute, the employer must first consider whether the employee’s place of work is safe. If the place of work is not safe (even though the danger is not of grave injury or the risk very likely to occur) the employer’s duty is to do what is reasonably practicable to eliminate it. Thus, once any risk has been identified, the approach must be to ask whether it is practicable to eliminate it and then, if it is, to consider whether, in the light of the quantum of the risk and the cost and difficulty of the steps to be taken to eliminate it, the employer can show that the cost and difficulty of the steps substantially outweigh the quantum of risk involved. I cannot see how or where the concept of an acceptable risk comes into the equation or balancing exercise. I cannot see why the fact that a responsible or official body has suggested that a particular level of risk is ‘acceptable’ should be relevant to what is reasonably practicable. In that respect, it appears to me that there is a significant difference between common law liability where a risk might reasonably be regarded as acceptable and statutory liability where the duty is to avoid any risk within the limits of reasonable practicability.”
Smith LJ reiterated the point at the end of para 100, when rejecting the relevance of the Code of Practice to the question whether it was reasonably practicable to provide protection.
In the light of my conclusion that safety is a relative concept, the correctness of these passages does not strictly arise for consideration in this case. Had it arisen, I would have regarded the qualification as wide enough to allow current general knowledge and standards to be taken into account. Even the Court of Appeal in its formulation acknowledged the quantum of risk involved as material in the balancing exercise. But this can only mean that some degree of risk may be acceptable, and what degree can only depend on current standards. The criteria relevant to reasonable practicability must on any view very largely reflect the criteria relevant to satisfaction of the common law duty to take care. Both require consideration of the nature, gravity and imminence of the risk and its consequences, as well as of the nature and proportionality of the steps by which it might be addressed, and a balancing of the one against the other. Respectable general practice is no more than a factor, having more or less weight according to the circumstances, which may, on any view at common law, guide the court when performing this balancing exercise: see Swanwick and Mustill JJ’s statements of principle, set out earlier in this judgment, and also Charlesworth on Negligence (12th ed) (2010), chapter 7, The Standard of Care, both generally and especially at para 7.38. It would be strange if the Court of Appeal was right in suggesting that, under the statutory formulation, this one factor is irrelevant, when the whole aim of the balancing exercise must, in reality, be to identify what is or is not acceptable at a particular time.
That the qualification “so far as may be reasonably practicable” may, if necessary, receive a broad interpretation is also indicated by the reasoning of the House in Marshall v Gotham Co Ltd [1954] AC 360. Under the Metalliferous Mines General Regulations 1938 (SR & O No 630) the roof and sides of every travelling road in a mine were required to be made secure. An employee was killed by a fall of roof, due to the presence of an unusual geological condition known as “slickenside”, which there was no known means of detecting prior to a fall. It was argued that the mine-owner could have propped all roofs, and that “reasonably practicable” meant no more than “practicable” (p 364). The argument was rejected. Lord Oaksey at p 370 agreed with Jenkins LJ’s statement, [1953] 1 WB 167, 179, that what “is ‘reasonably practicable’ in this context is no more nor less than what is capable of being done to make roofs and sides secure within the limits of what it is reasonable to do; and it cannot be reasonable to do for this purpose anything more than that which it appears necessary and sufficient to do according to the best assessment of what is necessary and sufficient that can be made at the relevant time, that is, in the present instance a point of time immediately prior to the accident”. Lord Reid at p 373 said that “if a precaution is practicable it must be taken unless in the whole circumstances that would be unreasonable” and took into account that the danger was a very rare one, that the trouble and expense involved in the use of the precautions, while not prohibitive, would have been considerable, that the precautions would not have afforded anything like complete protection against the danger, and that their adoption would have had the disadvantage of giving a false sense of security. Lord Keith considered at p 378 that there was “no general rule or test that can safely be relied on for measuring the discharge of such a duty”, but that he “could not, as at present advised, accept … that the measure of an employer’s liability can satisfactorily be determined by having regard solely to the proportion which the risk to be apprehended bears to the sacrifice in money, time or trouble involved in meeting the risk”. Lord Tucker (with whom Lord Cohen agreed at p 377) said at pp 374-375 “that the word ‘secure’ does not involve security from the effects of earthquake or an atom bomb”, but added that “it must include security from all the known geological hazards inherent in mining operations”. At p 376 he echoed the list of factors which Lord Reid had identified in support of his conclusion that the precautions were not reasonably practicable.
A further aspect of para 84 in Smith LJ’s judgment is the suggestion that “there must be at least a substantial disproportion” before the desirability of taking precautions can be outweighed by other considerations. This theme was developed in paras 82 to 84 of her judgment, on the basis of dicta in two cases prior to Marshall v Gotham. But it represents, in my view, an unjustified gloss on statutory wording which requires the employer simply to show that he did all that was reasonably practicable.
In deciding the appeal in favour of the respondent, the Court of Appeal relied upon HHJ Inglis’s estimation of the quantum of risk below 90dB(A). HHJ Inglis said that
“the description given to the risk to hearing of exposure below 85dB(A) … as ‘minimal’ is one that I accept and adopt. Above 85dB(A) the risk accelerates up to 90dB(A). In the high 80s, given long enough exposure, significant hearing loss may be expected in at least a substantial minority of individuals.”
On that basis, Smith LJ said that, assuming (as she did) that the employers well knew that some of their workforce stayed in their employment over many years, they would, if they had asked a suitably qualified expert, have received advice conveying to them that a substantial minority of their workforce in the relevant departments were likely to suffer significant hearing loss, and could not then have hoped “to establish that the burden of providing ear protectors was substantially disproportionate to the quantum of risk to their employees” (para 98). Advice of this nature as to the quantum of the risk should have been received by late 1976 or early 1977 (para 101). To this, Smith LJ added six to nine months, for reasons already discussed, putting Quantum in breach of its statutory duty under section 29(1) from 1 January 1978.
Neither Quantum nor any other of the employers before the court exposed their workforce to noise levels in the “high 80s”. The exposure found was in the case of Mrs Baker to levels of 86dB(A). As I have already stated, every 3dB(A) represents a doubling of the sound pressure level of the energy involved in the noise, even though it will not be appreciated as such by the hearer. More importantly, the approach taken by the Court of Appeal requires employers to take expert advice and to identify the quantum of risk in circumstances in which current standards and thinking did not expect any such steps. And if risks which are not currently regarded by responsible employers as calling for any action are required to be addressed, then, despite Smith LJ’s references to the balancing of the quantum of risk against other factors, any employer who was or should have been aware of any risk at all greater than de minimis would be obliged to address it unless the trouble and cost involved were prohibitive.
This is highlighted by consideration of the arguments which can be made if one has regard simply to the statistical tables in BS 5330: 1976 upon which the respondent and the Court of Appeal have relied to show the risk attaching at levels of exposure between 85 and 90dB(A) lepd: see para 31 above. The respondent, as I understand, accepts that the logic of her case is that the risks below 85dB(A) cannot and should not have been regarded as immaterial. But this highlights how independent her case on section 29(1) is of contemporary standards of behaviour or thought. Only since 2005 have employers been obliged to require ear protectors to be worn by workers exposed to 85dB(A) and obliged to make them available on request to workers exposed to 80dB(A) (see para 14 of the Court of Appeal’s judgment, quoted in para 15, above).
There is nothing in the history of section 29(1) or the mischief to which it was addressed to suggest that the legislature in 1959 or 1961 intended in this way to detach the penal liability which it then introduced in respect of the workplace from the ordinary understanding of reasonable employers. Contrary to the Court of Appeal’s view, I consider that HHJ Inglis was correct in the approach he took to section 29(1), which followed that taken by Rose J in Fazakerley.
Conclusion
I would allow the appellants’ appeals both at common law and under section 29(1). At common law, Quantum, and other employers in a similar position such as Guy Warwick, were not in breach of their duty of care or of their duty under section 29(1) in not implementing measures to protect their employees in respect of noise exposure at levels below 90dB(A) prior to 1 January 1990. As regards Meridian and Pretty Polly, in reflection of the common ground between Lord Dyson, Lord Saville and myself (paragraphs 25 and 43 above), the appeal will be allowed by restoring the judge’s decision that they were in breach of duty in not having implemented such measures as from 1 January 1985.