Baker v Quantum Clothing Group Ltd

This appeal concerned whether employers are liable at common law and/or under section 29(1) of the Factories Act 1961 for noise-induced hearing loss resulting from long-term exposure at levels between 85 and 90 dB(A)lepd prior to 1 January 1990. The court considered the relevance of the Department of Employment Code of Practice (1972), the later British Standard BS 5330 (1976) and ISO 1999 (1975), and the effect of European developments culminating in Council Directive 86/188/EEC and the Noise at Work Regulations 1989.

Key legal principles and grounds:

• Common law negligence: employers are judged by the standard of the reasonable and prudent employer as explained in Stokes v Guest, Keen & Nettlefold and Thompson v Smiths; a recognised and general practice (or official guidance) may be relied upon unless it is clearly bad or changing knowledge makes further precautions necessary.
• Section 29(1) Factories Act 1961: the provision requires that a workplace "be made and kept safe, so far as is reasonably practicable"; the majority held this is a results provision and that "safe" is to be judged by reference to contemporary standards and knowledge (not an immutable absolute), with the employer bearing the onus of proving reasonable practicability.
• Application to facts: the majority concluded the 1972 Code of Practice provided an appropriate standard for the average employer through the 1970s and into the 1980s and that exposure under 90 dB(A) did not necessarily impose liability on average employers until developing regulatory and consultative developments made that position untenable; however, employers with greater than average knowledge might incur earlier liability.

Background and parties: These were test-case proceedings about hearing loss allegedly caused by occupational noise in knitting and garment factories. Mrs Baker (respondent) worked in a factory 1971–2001 and claimed noise-induced hearing loss from exposure at about 85–86dB(A)lepd. Her claim (and related claims by others) was tried before HHJ Inglis in February 2007. The Court of Appeal allowed Mrs Baker’s appeal ([2009] EWCA Civ 499). The appellants (Quantum, Meridian/Courtaulds and Pretty Polly) appealed to the Supreme Court.

Nature of the claim / relief sought: Damages for noise-induced hearing loss and associated injury; claims brought in negligence and for breach of statutory duty under section 29(1) of the Factories Act 1961.

Issues framed by the court:

• Whether liability at common law could be established for damage from exposure between 85 and 90 dB(A) prior to 1 January 1990, and when a reasonable employer should have recognised and acted on the risk.
• Whether section 29(1) of the Factories Act 1961 applies to noise hazards of the kind alleged and, if so, whether the section imposes an absolute/unchanging standard of safety or a standard judged by contemporary knowledge and the test of "reasonably practicable".
• The relevance of the 1972 Code of Practice, BS 5330 (1976), ISO 1999 (1975) and the EEC Directive/Noise at Work Regulations to the standard of care and to reasonable practicability.

Court’s reasoning (concise): The majority (Lords Mance, Dyson, Clarke and Saville) held that the 1972 Code constituted an appropriate benchmark for the average employer through the 1970s and into the 1980s and that safety under section 29(1) is to be assessed against the knowledge and standards of the time. The court accepted that employers with "greater than average knowledge" might incur earlier liability. Applying the judge’s detailed factual findings, the majority restored HHJ Inglis’s approach in essential respects: Quantum (and similar employers such as Guy Warwick) were not in breach of common law or section 29(1) for failing to protect employees from exposures below 90dB(A) before 1 January 1990; Meridian (Courtaulds) and Pretty Polly, which the judge found had greater knowledge by early 1983, were liable from 1 January 1985 (allowing a period for implementation). Lord Kerr dissented, taking the view that employers should have appreciated and acted on the risk earlier (criticising reliance on the Code as a long-term safe harbour) and would have dismissed the appellants’ appeals.

Wider context: The Court emphasised the interaction between official guidance, developing scientific standards and employer knowledge in setting the point at which additional precautions become the norm; it noted the rarity and significance of findings imposing earlier statutory liability on employers with superior knowledge.

Appeal allowed (majority 4–1). The Supreme Court majority held that the 1972 Code of Practice provided an appropriate benchmark for the average employer through the 1970s and into the 1980s, and that safety under section 29(1) must be judged by reference to contemporary knowledge and standards and subject to the defence of reasonable practicability (burden on employer). Applying the judge’s factual findings, Quantum (and similarly placed employers) were not liable at common law or under section 29(1) for exposure to noise below 90dB(A) prior to 1 January 1990; Meridian (Courtaulds) and Pretty Polly, found to have greater-than-average knowledge by early 1983, were liable from 1 January 1985 (the judge’s original cut-off for those employers). One Justice (Lord Kerr) dissented and would have dismissed the appellants’ appeals.

Trial judgment by His Honour Judge Inglis (test cases decided 14 February 2007) — claimant evidence and expert reports; Court of Appeal allowed Mrs Baker’s appeal on 22 May 2009 ([2009] EWCA Civ 499); appeal to the Supreme Court determined by judgment [2011] UKSC 17 (13 April 2011).