Baker v Quantum Clothing Group & Ors

Under the Factories Act 1961, section 29 imposes a stricter duty than common-law negligence. Workplace safety is judged objectively, without asking whether the risk was reasonably foreseeable or regarded as acceptable. Once unsafe conditions are shown, the employer must prove that eliminating the risk was not reasonably practicable. The assessment weighs the likelihood and gravity of harm against the money, time and trouble of precaution, with substantial disproportion required. For noise exposure at 85 dB(A)lepd or above, ear protection was practicable and not substantially disproportionate to the risk of significant hearing loss among a substantial minority. Statutory liability therefore arose from January 1978. Official guidance treating lower exposure as acceptable could inform common-law reasonableness but could not defeat statutory liability.

Seven employees from the knitting industry brought claims for noise-induced hearing loss after exposure to noise between 80 and 90 dB(A)lepd. His Honour Judge Inglis dismissed all seven claims, although he found that Mrs Baker had suffered noise-induced hearing loss. He held that her employer had not breached its common-law duty or section 29 of the Factories Act 1961. Mrs Baker appealed. Meridian Ltd and Pretty Polly Ltd obtained permission to cross-appeal against hypothetical findings concerning the dates of their liability. The central issues were whether workplaces exposed to noise at 85 dB(A)lepd or above were unsafe under section 29, and whether protective measures were reasonably practicable.

Lady Justice Smith gave the leading judgment. Lord Justice Jacob agreed with both judgments, and Lord Justice Sedley agreed that section 29 imposed liability on the facts and with the proposed date. The result was unanimous.

1. Statutory safety. The safety of a workplace under section 29 of the Factories Act 1961 is judged objectively. Reasonable foreseeability and the degree of danger regarded by society or official guidance as acceptable are irrelevant at that first stage. The approach in Taylor v Fazakerley (unreported 29 May 1989), which treated the statutory and common-law questions as essentially identical, was wrong. Larner v British Steel [1993] ICR 551 was binding and correctly treated safety as a strict question.
2. Reasonable practicability. Once the claimant shows that the place of work was unsafe, the employer bears the burden of proving that eliminating the risk was not reasonably practicable. The assessment compares the quantum of risk, including likelihood and gravity, with the sacrifice required in money, time and trouble. The employer must show at least substantial, or gross, disproportion. A responsible body’s view that a risk is acceptable has no part in this statutory balancing exercise.
3. Application. Prolonged exposure at 85 to 89 dB(A)lepd created a risk of significant hearing loss for a substantial minority. By mid-1974 employers in the knitting industry should have identified the risk, and by late 1976 or early 1977 they could have assessed its extent using BS 5330. Ear protectors were available, inexpensive and practicable. The period for implementation was fixed at six to nine months, making January 1978 the date of breach.
4. Disposition. Quantum was liable for Mrs Baker’s unprotected exposure from 1 January 1978. Her breach-period exposure represented approximately two-thirds of the relevant 18 years, so damages were assessed at £3,334.
5. Common law. The court’s discussion of common-law liability was academic. At common law the burden remained on the claimant and official guidance could inform whether it was reasonable to regard a risk as acceptable. For an average employer, the court considered January 1988 a possible date of common-law breach, subject to earlier liability where the employer had greater knowledge.

• Court of Appeal (Civil Division) Allowed Mrs Baker’s appeal and held Quantum Clothing Ltd liable for damage attributable to unprotected exposure from 1 January 1978.
• Nottingham, His Honour Judge Inglis sitting as deputy High Court judge Dismissed the seven claims, including Mrs Baker’s claim, while finding that she had suffered noise-induced hearing loss.