Harris v BRB (Residuary) Ltd & Anor

An employer’s common-law duty in occupational noise cases is not fixed inflexibly at 90 dB(A)leq. That level remains the usual standard, but exposure below it may trigger a duty where the particular evidence shows a real risk and makes it just and equitable to require precautions. The reasonable and prudent employer must weigh risk, consequences, precaution effectiveness, expense and inconvenience. An employer that knows of exposure above 85 dB(A)leq and knows that ear protection is feasible cannot discharge the duty merely by considering the issue. Under the Noise at Work Regulations 1989, information duties may be breached even where the separate duty to provide protectors depends on an employee’s request and practicability. Damages should in principle reflect negligent exposure, but a new apportionment issue may be refused on appeal if raised too late.

The claimant was employed as a railway secondman and train driver between 1974 and 1999. He developed noise-induced hearing loss after exposure to locomotive noise and sued his employer in negligence and for breach of statutory duty.

Leeds County Court found that the deafness was substantially caused by the employment, that the claimant had been exposed for significant periods to noise at or above 85 dB(A)leq, and that this level could give rise to a duty of care. The claim was nevertheless dismissed because the employer had considered precautions and had reasonably rejected them as impracticable. The statutory claim failed for essentially the same reason.

The claimant appealed on the adequacy and practicability of ear protection. The employer cross-appealed on the exposure findings and the 85 dB(A)leq threshold.

Appeal allowed; cross-appeal dismissed. The order dismissing the claim was replaced by an award of £10,000.

1. Exposure and evidential difficulty. The trial judge was entitled to find that the claimant had been regularly exposed for significant periods to noise at or above 85 dB(A)leq. In long-term occupational exposure cases, it is ordinarily wrong simply to shelter behind the burden of proof where decisive evidence was not readily available or its absence had not been explained.
2. Common-law duty. The usual 90 dB(A)leq threshold remains appropriate in the general run of cases, but it is not an inflexible rule. On particular facts, exposure below that level may give rise to a duty where the risk is real and the imposition of a duty is just and equitable. The applicable approach was the reasonable and prudent employer test stated in Stokes v Guest, Keen and Nettlefold (Bolts and Nuts) Ltd [1968] 1 WLR 1776: the employer must consider knowledge of the risk, its likelihood and consequences, the effectiveness of precautions, and their expense and inconvenience.
3. The issues of duty and precautions were closely connected. The employer knew of the risk above 85 dB(A)leq, regarded that level as achievable, and knew that ear protection could reduce exposure. Its contemporaneous documents did not establish a sufficient operational justification for prohibiting protectors in cabs. Mere consideration of a precaution was insufficient. The trial judge therefore erred in concluding that the common-law duty had been satisfied.
4. Pleading. An employer relying on impracticability should ordinarily plead and prove that case. This was supported by Larner v British Steel Plc [1993] 4 All ER 102 and Nimmo v Alexander Cowan & Sons Ltd [1968] AC 107. However, the claimant had not clearly objected at trial, the parties had consented to proceed, and the pleading objection could not properly be raised for the first time on appeal.
5. Statutory duty. The Noise at Work Regulations 1989 defined the first and second action levels as 85 and 90 dB(A) respectively. Paragraph 11 required adequate information, instruction and training about the risk, risk-reduction steps and obtaining protectors. Paragraph 8(1) imposed the separate duty to provide suitable and efficient protectors, so far as practicable, after an employee’s request. There was no direct breach of paragraph 8(1) because no request had been made, but the failure to comply with paragraph 11 explained the absence of a request. The employer failed to establish that provision of protection was impracticable.
6. Damages. The claimant was in principle entitled only to compensation for damage caused by negligent exposure above 85 dB(A)leq. The proposed apportionment issue was raised too late, after the case had been conducted on an all-or-nothing basis and without evidence enabling a sensible apportionment. The existing assessment of £10,000 was therefore substituted.

1. Court of Appeal (Civil Division) allowed the claimant’s appeal, dismissed the employer’s cross-appeal, and substituted an award of £10,000: [2005] EWCA Civ 900.
2. Leeds County Court, His Honour Judge Langan QC, dismissed the claims in a reserved judgment handed down on 6 August 2004.