For the second time in as many months the Supreme Court has been asked to adjudicate in disease claims. Partner and specialist occupational disease and illness claims solicitor, Daren Charlton at business law firm, DWF LLP considers the implications that arise fromBaker v Quantum Clothing.
n a split decision by three to two, the Supreme Court has reversed the Court of Appeal’s decision that an employer's duty under the Factories Act 1961 to keep a workplace ‘safe’ involved a much tougher standard than was required by common law.
The majority largely endorsed the findings of the original trial judge. However, it was felt that the Court of Appeal’s decision represented an ‘undue burden’ on employers.
Mrs Baker's claim for noise induced hearing loss was one of seven test cases brought by former workers in the textile industry, all exposed to levels of noise within the range 80 to 90 dB(A) LEP,d (a measurement of noise exposure over an 8 hour day). Only Mrs Baker established that her hearing loss was, in part, noise related. However, her claim was also dismissed, as the common law duty did not require action at levels below 90 dB(A) LEP,d until around 1990. Under section 29 of the Factories Act 1961, the employer's duty is to provide a safe place of work. The trial judge took the view that this added nothing to the common law duty in deafness claims.
The Court of Appeal felt that the common law duty to act at lower levels started slightly earlier but importantly took a different view about section 29. The duty to provide a safe place of work was absolute: it was a duty to keep an employee safe, not reasonably safe. Noise levels in the band 85 to 90 dB(A) LEP,d carried a small risk so the employer was not keeping all employees safe by allowing exposure to those levels. It didn't matter that the level of exposure was considered acceptable at the time and therefore the employer was not in breach of its common law duty.
Supreme Court Decision
There was no duty in common law for ‘ordinary’ employers to take action at noise levels between 85 and 90 dB(A) LEP,d prior to January 1990. This duty could be earlier for employers with specific knowledge of risk. A date of 1985 was applied to some of the employers in the test cases.
Employers should act within two years of receiving specific knowledge of exposure in order to give it a reasonable period to assess risk and implement an action plan.
The statutory duty under section 29 stated no greater standard of care. When deciding whether a workplace was safe, the test was relative not absolute. Foreseeability of injury was relevant both to the test of what was safe and also what was reasonably practicable to guard against risk of injury. On that basis, the premises were safe when judged by the prevailing standards of the day.
The Court of Appeal decision had provoked criticism. Some saw it as being simply unfair as it applied modern standards to judge whether a workplace was safe decades earlier.
The Supreme Court decision was a narrow victory. Not only did two of the five justices decide that the Court of Appeal was correct, they also felt that it had not gone far enough and that the common law duty should itself be viewed in a more onerous context.
Nevertheless, the decision is welcome news to employers and insurers alike. It restores the status quo for those dealing with such claims. It will hopefully dissuade some of the claims advertising activity aimed at those who previously worked with lower-level noise. Whether it brings a significant reduction in claims numbers is more debatable. Remember that the higher duty of 85 dB(A) LEP,d applied from 1990 and an even higher duty still was introduced by the Control of Noise at Work Regulations 2005. Claims relating to noise-induced loss are unlikely to disappear any time soon.
The Court of Appeal's interpretation of section 29 of the Factories Act may have lead to further attempts in other disease types at establishing breach of duty on the grounds of conditions being unsafe, despite available guidance at the time.
Lord Clarke in his dissenting judgment set out the pertinent view that this case was perhaps less about forseeability of injury and more about what is viewed as acceptable risk and how this has changed over time. The justices stated that the prevailing views as to what is acceptable risk should be taken into account when judging duty of care both at common law and under statute.
However, this judgment does not mean that employers will not be held accountable for injury when employers are acting within some recognised guidance. Lord Dyson clearly recognised that there is no rule of law that a relevant code of practice, or other official or regulatory instrument that sets the standard of care. All factors must be considered and if the potential injury is particularly grave or serious then simply following, for example, an Health and Safety Executive maximum exposure limit, would not necessarily absolve an employer from breach of duty.
Is this perhaps a further example of the need to tip the scales of justice back into balance? There is recognition that the courts should not impose an ‘undue burden’ on employers. The higher courts have been seen to try and halt an expanding duty on occupiers in decisions over the last few years. Will we see a similar trend in EL cases?This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.