Baker v Quantum Clothing Group Limited and others

An employer’s negligence is assessed by the conduct expected of a reasonable and prudent employer at the relevant time. An official code or recognised industry practice often establishes the appropriate standard, but it is not conclusive. An employer must respond where the practice is clearly unsound or outdated, or where greater knowledge of the risk requires additional precautions.

Under section 29(1) of the Factories Act 1961, constant and regular workplace operations, including harmful noise, may render a workplace unsafe. Safety is a relative concept judged by contemporary knowledge and standards. Injury alone does not prove that a workplace was unsafe. The employee must first establish lack of safety; the employer must then prove that further precautions were not reasonably practicable.

Baker v Quantum Clothing Group Limited and others concerned test claims by knitting-industry employees exposed before 1990 to workplace noise between 80 and 90dB(A)lepd. Mrs Baker proved slight noise-induced hearing loss, and a small contribution to tinnitus, after prolonged exposure at or slightly above 85dB(A)lepd.

His Honour Judge Inglis dismissed her claim. He held that compliance with the 1972 Code of Practice met the common-law and statutory standards applicable to an ordinary employer until the late 1980s. He would, however, have treated Meridian Limited and Pretty Polly Limited as liable from January 1985 because of their greater knowledge.

The Court of Appeal, [2009] EWCA Civ 499, allowed Mrs Baker’s appeal and awarded 66.67% of £5,000 for breach of section 29(1) of the Factories Act 1961. Quantum, Meridian and Pretty Polly appealed. The central issues were the effect of contemporary official guidance on common-law negligence and whether section 29(1) imposed an objective, unchanging standard of workplace safety.

1. Appeals allowed by a majority of three to two. Lord Mance and Lord Dyson gave the principal majority judgments. Lord Saville agreed that the appeals should be allowed to the extent proposed by them. The trial judge’s conclusions were restored: Quantum was not liable for Mrs Baker’s pre-1990 exposure, while Meridian and Pretty Polly were treated as in breach from 1 January 1985.

2. At common law, the governing standard was the conduct of the reasonable and prudent employer. Recognised practice and official guidance were influential but not conclusive. A practice could not be relied upon if it was clearly unsound or had become outdated. An employer possessing materially greater knowledge of the risk could also be required to take precautions before ordinary employers.

3. The 1972 Code of Practice set an official and clear 90dB(A)lepd standard. On the trial evidence, an ordinary employer could reasonably rely upon it until the terms of the 1986 European directive became generally known through the 1987 consultation. The judge was entitled to allow about two years to survey workplaces, formulate policy, obtain protection and educate employees. Quantum therefore incurred no common-law liability before 1 January 1990.

4. Lord Dyson considered that the judge was entitled to find that Meridian and Pretty Polly had acquired sufficient understanding by early 1983 to require action. Lord Mance disagreed that their knowledge justified special treatment, but recognised that his view lacked majority support. The controlling disposition therefore restored the judge’s finding that those employers became liable on 1 January 1985.

5. Section 29(1) of the Factories Act 1961 was capable of applying where constant, regular operations rendered a workplace unsafe. Noise generated by machinery intrinsic to the workplace fell within that principle. A workplace could be made safe through regular protective measures such as providing hearing protection.

6. By the majority, “safe” was a relative concept assessed objectively according to the knowledge and standards prevailing at the relevant time. The occurrence of injury did not by itself establish that the workplace had been unsafe. The claimant bore the initial burden of establishing lack of safety. Once that was shown, the employer bore the burden of proving that it was not reasonably practicable to make and keep the workplace safe. The contrary absolute approach in Larner v British Steel plc [1993] ICR 551 and the related authorities was disapproved.

7. Lord Mance and Lord Dyson further considered that reasonable practicability required a broad assessment of the risk, its gravity and likelihood, and the effectiveness, expense and inconvenience of precautions. The statutory language did not require a separate test of substantial disproportion. These observations were unnecessary once the workplaces had been found safe by contemporary standards.

8. Lord Kerr and Lord Clarke dissented. They considered that the available information required employers to respond to risks below 90dB(A) by the late 1970s. They would have dismissed the appeals.

1. United Kingdom Supreme Court: By a majority of three to two, allowed the employers’ appeals and restored the trial judge’s conclusions. Mrs Baker’s claim against Quantum therefore failed; the judge’s finding that Meridian and Pretty Polly were potentially in breach from January 1985 was restored.
2. Court of Appeal: In [2009] EWCA Civ 499, allowed Mrs Baker’s appeal and awarded 66.67% of £5,000 for breach of section 29(1) of the Factories Act 1961. It also adopted earlier dates of potential common-law and statutory liability than the trial judge.
3. Trial before His Honour Judge Inglis: On 14 February 2007, dismissed Mrs Baker’s claim because her employer had committed no common-law or statutory breach. He found that Meridian and Pretty Polly, because of their greater knowledge, would have been in breach from January 1985 if relevant injury had been proved.