The Supreme Court in Baker –v- Quantum Clothing Group Limited and Others (2011) UK SC17 held that the Defendant, aknitting company was not responsible for an employee’s noise-induced loss of hearing where noise levels did not exceed the threshold for protection.
The Plaintiff, who suffered tinnitus and hearing loss, claimed her former employer, Quantum Clothing Group, was liable for not providing hearing protection. At the time of her employment, the noise levels in her employer’s factory did not exceed 90 dB(A)lepd.
The Supreme Court, overturning the Court of Appeal decision, held that:
The decision is welcome for industry employers and insurers. The Supreme Court decision has effectively reverted back to the position prior to the Court of Appeal’s Judgement. It is perhaps an apt time then to review the current position of hearing loss cases in Northern Ireland:-
EMPLOYER’S DATE OF KNOWLEDGE:
Common Law
Prior to the Introduction of the Noise at Work Regulations (NI) 1990 an employees’ only potential cause of action against an employer for industry hearing loss was in common law negligence. The case of Thompson –v- Smyth Ship Repairers (1984) 1RCR 93 set the industry date of knowledge in hearing loss cases at 1963, coinciding with the publication of the advisory booklet, ‘Noise and the Worker’ which established a correlation between deafness and noise at work. The Thompson decision was approved in the Court of Appeal of Northern Ireland in the case of Baxter –v- Harland & Wolff.
Notwithstanding that approval the Court of Appeal in that instance awarded damages for noise exposure prior to 1963 on the basis that this particular employer had special knowledge of the dangers of noise exposure before 1963 and therefore had an earlier date of knowledge. Other decisions in England along these lines where the cases of Kellet –v- British Rail and Berry –v- Stone Manganese Marine where an employee was compensated for noise exposure from 1955 and 1957 respectively.
In addition the Court of Appeal in the Baxter case held that the employer was also in breach of Section 27 of the Factories Act (NI) 1938 (amended by Section 5 of the Factories Act (NI) 1959) which required that an employer was under a duty to keep a workman’s place of work safe so far as was reasonably practicable.
POST 1972
Between 1972 and 1990 employers applied the 1971 Code of Practice on Noise which required them to protect employees from noise levels exceeding 90 dB(A)lepd.
The Supreme Court in Baker reaffirmed this position.
POST 1990:
In 1990 the Noise at Work Regulations (NI) 1990 was introduced which set out that an employer owes a duty to carry out risk assessments and provide ear protectors on request where exposure was likely to be more than 85 dB(A) and if practicable, compulsory, where exposure was more than 90 dB (A).
POST 2006:
In 2006 the Control of Noise at Work (NI) 2000 Regulations were introduced which imposed an obligations on employers to carry out risk assessments and provide ear protectors on request where average daily exposure is 80 dB (A) and above.
While various dates have been set out above it is important to note that the Supreme Court quite clearly establish that an employer will be held to have an earlier date of knowledge than the implementation of these various directives where it can be shown that a specific employer or indeed a particular industry had actual or special knowledge of the risk of injury caused by a lower level of exposure.
LIMITATION PERIOD FOR BRINGING HEARING LOSS CLAIMS:
By virtue of Article 7 of the Limitation (NI) Order 1989 a claim for personal injury brought in negligence, nuisance or breach of statutory duty must be issued within 3 years on the date of which the cause of action accrued or the date of knowledge of the person injured.
Article 7 (6) of the Limitation Order defines date of knowledge as the date on which the Plaintiff had knowledge that the injury in question was significant, that the injury was attributable to the act or omission complained of and has knowledge of the identity of the Defendant. Further guidance on this point in hearing loss cases was provided by the Court of Appeal in the case of Secretary of State for Trade of Industry –v- James Mackey (2007) EWCA Civ 642 . The Court held that the test to be applied was primarily an objective one, a claimant will be fixed with knowledge that his injury was attributable to the act or omission complained of where he is aware that there is a real possibility that the injury is causally related to the Defendant’s acts or omissions.
Notwithstanding the primary limitation period, Article 50 of the Limitation Order affords the court an overriding discretion to extend the limitation period where it considers it would be just to do so. In reaching this decision the Court must have consideration to the potential prejudice caused to the Defendant by the Plaintiff’s delay.
It is noted that in the case of Baxter –v- Harland & Wolff the Court found the Plaintiff’s date of knowledge was in and around 1966. Proceedings were issued in June 1987, some 19 years later. Notwithstanding this delay the Court chose to exercise discretion under the Limitation Order and allow the Plaintiff’s case to proceed.