The court was asked as to the liability of employers in the knitting industry for hearing losses suffered by employees before the 1989 Regulations came into effect. The claimant had worked in a factory between 1971 and 2001, sustaining noise induced hearing losses before 1989. The defendant companies now appealed against a finding of liability.
Held: The appeal was allowed (Majority: Mance, Dyson, Saville LL; Dissenting: Kerr and Clarke LL). A Department of Employment standard applicable in the period at issue was sufficient to discharge the employers from liability at common law in negligence.
Though the 1961 Act did apply, it must be applied against the background of the standards of the time, and the section did not impose any liability more strict than that already imposed at common law.
The concept of safety was a relative one and must be assessed in the context of the time: ‘section 29(1) imposes a non-delegable duty, so that an employer is responsible for achieving or for the taking all reasonably practicable measures to achieve the requisite safety irrespective of whether he chooses to set about doing this through himself, his servants or independent contractors.
There is nothing to show that section 29(1) was intended to go further, and there is no assumption (or, in my opinion, likelihood) that it was intended to. The standard of reasonableness expressed in the qualification ‘so far as is reasonably practicable’ (in respect of which the onus of proof is on the employer) makes it more, rather than less, likely in my view that the concept of safety is itself to be judged by reference to what would, according to the knowledge and standards of the relevant time, have been regarded as safe.’ and ‘safety must, in my view, be judged according to the general knowledge and standards of the times. The onus is on the employee to show that the workplace was unsafe in this basic sense.’
Lord Mance, Lord Kerr, Lord Clarke, Lord Dyson, Lord Saville
[2011] UKSC 17, UKSC 2009/0107, [2011] ICR 523, [2011] 1 WLR 1003
Bailii, SC, SC Summary, Bailii Summary
Noise at Work Regulations 1989 (SI 1989/1790), Factories Act 1961 29, Directive 86/188/EEC
England and Wales
Citing:
Cited – Stokes v Guest Keen and Nettlefold (Nuts and Bolts) Ltd QBD 1968
An employee had been exposed at work over a long period to mineral oil which, on a daily basis, had saturated his clothing and come into contact with his skin. As a result of this he developed cancer of the scrotum from which he eventually died. The . .
Cited – Thompson v Smiths Shiprepairers (North Shields) Ltd QBD 1984
The test to be applied in determining the time at which an employer’s failure to provide protection constituted actionable negligence was what would have been done at any particular time by a reasonable and prudent employer who was properly but not . .
Cited – Doherty and others v Rugby Joinery (UK) Limited CA 17-Feb-2004
The claimant had used a sander, and been injured with vibration induced white finger syndrome. The employee appealed against a finding of non-liability saying the company should have known of the risk.
Held: It had become accepted that use of . .
Cited – Taylor v Fazakerley Engineering Co 26-May-1989
. .
See Also – Baker v Quantum Clothing Group and Others CA 5-Jun-2009
The court considered a request that one of the three judges (Sedley LJ) recuse himself on the grounds of apparent bias. It was a case claiming damages for personal injury in the form of hearing losses incurred at work. Sedley LJ was Hon President of . .
See Also – Baker v Quantum Clothing Group Ltd and Another CA 11-Jun-2008
Application by claimant for order that the respondents would be responsible for their own costs of the appeal irrespective of its outcome. . .
See Also – Baker v Quantum Clothing Group CA 22-May-2009
The court considered the responsibility of employers for hearing losses resulting from exposure to noise at a level not at the time appreciated to cause a risk of injury. Smith LJ considered the interpretation by Asquith LJ of the words ‘reasonably . .
See Also – Baker v Quantum Clothing Group Ltd CA 28-Jun-2007
. .
Cited – Harris v BRB (Residuary) Ltd and Another CA 18-Jul-2005
The appellant, a former train driver, appealed against the rejection of his claim for damages for hearing losses incurred whilst carrying out his duties, which had involved regular exposure between 1974 and 2000 to noise levels between 85dB(A) and . .
Doubted – Harris v BRB (Residuary) Ltd and Another CA 18-Jul-2005
The appellant, a former train driver, appealed against the rejection of his claim for damages for hearing losses incurred whilst carrying out his duties, which had involved regular exposure between 1974 and 2000 to noise levels between 85dB(A) and . .
Cited – Kellett v British Rail Engineering Ltd QBD 3-May-1984
The relevant level of noise exposure above which a reasonable employer should take protective steps was of direct relevance in the early case of noise-induced hearing loss.
Held: There had been exposure for long periods initially in the period . .
Cited – Harris v BRB (Residuary) Ltd and Another CA 18-Jul-2005
The appellant, a former train driver, appealed against the rejection of his claim for damages for hearing losses incurred whilst carrying out his duties, which had involved regular exposure between 1974 and 2000 to noise levels between 85dB(A) and . .
Cited – Armstrong and others v British Coal Corporation CA 28-Nov-1996
Liability for vibration white finger damage was foreseeable from 1973, but liability began in 1975 when precautions became available against the consequences and so the employer was able to protect his employees. . .
Cited – Smith v Wright and Beyer Ltd CA 3-Jul-2001
. .
Cited – Brookes v South Yorkshire Passenger Transport Executive and Another CA 28-Apr-2005
Vibration tool injury. . .
Cited – Doherty and others v Rugby Joinery (UK) Limited CA 17-Feb-2004
The claimant had used a sander, and been injured with vibration induced white finger syndrome. The employee appealed against a finding of non-liability saying the company should have known of the risk.
Held: It had become accepted that use of . .
Cited – London and North Eastern Railway Company v Berriman HL 1946
Railway workers duties outside scope for damages
A railway worker’s widow sought compensation after her husband was killed by a train.
Held: He had been involved in routine maintenance and oiling at the time of the accident and was not ‘relaying or repairing’ tracks. She was not entitled to . .
Cited – Taylor v Coalite Oils and Chemicals Ltd CA 1967
The section is part of a scheme of criminal liability, from which any civil liability only follows ‘by judicial interpretation’. Diplock LJ said: ‘The occupier’s duty in respect of working places is not to prevent accidents occurring to persons . .
Cited – Prince v Carrier Engineering Co Ltd 1955
. .
Cited – Franklin v The Gramophone Company Ltd CA 1948
Compliance with statutory obligations, which may be of limited scope, does not necessarily absolve a defendant from liability in negligence. It is only if the section is ambiguous, unclear or open to two reasonable interpretations that its penal . .
Cited – Davies v de Havilland Aircraft Co Ltd 1951
. .
Cited – Dorman Long and Co Ltd v Hillier 1951
A worker had to remove four corrugated iron sheets from a roof. He was injured and claimed under the 1937 Act.
Held: A place can be a means of access at one time and a place of work at a different time but it cannot be both at the same time. A . .
Cited – Rose v Colville’s Ltd 1950
. .
Cited – McCarthy v Coldair Ltd CA 1951
. .
Cited – Clifford v Charles H Challen and Son Ltd CA 1951
. .
Cited – Homer v Sandwell Castings Ltd CA 1995
The employee had noticed a slight leak through sand paste, which he had himself introduced to seal a gap, but had carried on working, with the result that an eruption of molten metal through the seal fell onto his foot.
Held: The claim failed . .
Cited – Ebbs v James Whitson and Co Ltd CA 1952
. .
Cited – Evans v Sant QBD 1975
In the course of laying a water-main, a test-head was attached between the pipe and a pump to test the water pressure, but it was insecurely fitted and, as pressure built up, it blew off, causing the death of a workman who ran into the path of a . .
Cited – Liptrot v British Railways Board HL 1969
. .
Cited – Levesley v Thomas Firth and John Brown Ltd CA 1953
In the course of some loading operations a block of iron was left temporarily protruding three inches out into a gangway, used as a means of access. . .
Cited – Latimer v AEC Limited HL 25-Jun-1953
The Appellant had recovered damages for injuries which he alleged had been the result of a failure on the part of the Respondents in their statutory duty to maintain one of the gangways in their works in an efficient state. He slipped on a factory . .
Cited – Sheppey v Matthew T Shaw and Co Ltd 1952
. .
Cited – Berry v Stone Manganese and Marine Ltd 1972
The plaintiff sought damages in common law negligence respect of noise at work which ‘amounted to about 115 to 120 decibels, whereas the. . tolerable noise is about 90’ and no ear muffs had been provided.
Held: The claim succeeded. . .
Cited – Nimmo v Alexander Cowan and Sons Ltd HL 1967
The employer was prosecuted under the 1961 Act.
Held: the burden of proving that it was not reasonably practicable to make and keep a place of work safe rested upon the defendant employer. If an exception was to be established, it was for the . .
Cited – Trott v WE Smith (Erectors) Ltd CA 1957
A means of access is unsafe if it is a possible cause of injury to anybody acting in a way that a person may be reasonably expected to act in circumstances which may reasonably be expected to occur. Safe cannot mean ‘absolutely safe’. . .
Cited – John Summers and Sons Ltd v Frost HL 1955
Construction of Workmen Safety Statutes
The normal rule that penal statutes must be strictly construed has not been allowed to stand in the way of the protection given to the workman by the statutory language. The House considered the requirement under section 14(1) of the 1937 Act that . .
Cited – Chargot Limited (T/A Contract Services) and Others, Regina v HL 10-Dec-2008
The victim died on a farm when his dumper truck overturned burying him in its load.
Held: The prosecutor needed to establish a prima facie case that the results required by the Act had not been achieved. He need only establish that a risk of . .
Cited – Paramor v Dover Harbour Board 1967
Salmon LJ responded to an argument that ‘if the bare possibility of injury and accident could reasonably be foreseen, then the means of access [to a place of work] is not ‘safe”, saying that there ‘is, of course, a risk of injury and accident . .
Cited – Robb v Salamis (M and I) Ltd HL 13-Dec-2006
The claimant was injured working for the defendants on a semi-submersible platform. He fell from a ladder which was not secured properly. He alleged a breach of the Regulations. The defendant denied any breach and asserted that the claimant had . .
Cited – Regina v Bristol Magistrates Court and others ex parte Junttan Oy HL 23-Oct-2003
The improper use of machinery had resulted in the death of an employee, and the applicant was prosecuted under the 1974 Act, but complained that the prosecution should have been under the Regulations. The directive required member states to apply . .
Cited – Regina (on the application of Junttan Oy) v Bristol Magistrates’ Court QBD 2002
‘I have found this issue one of considerable difficulty and finely balanced. However, I have come to the conclusion that it is inappropriate and wrong for the Health and Safety Executive to prosecute for an offence under section 6 of the 1974 Act . .
Cited – Mains v Uniroyal Englebert Tyres Ltd IHCS 29-Sep-1995
An employer’s duties to provide a safe workplace exists despite the lack of forseeability of any accident of the type which occurred. . .
Cited – Robertson v RB Cowe and Co 1970
A trestle erected on a marine slipway moved causing a workman to fall.
Held: Lord Guthrie concluded ‘from the whole circumstances elicited . . as to the position of the staging, the way in which the pursuer worked, the outward movement of the . .
Cited – Larner v British Steel plc CA 1993
An undetected crack caused a structure to fail injuring the plaintiff. . .
Cited – Neill v Greater Glasgow Health Board 1994
. .
Lists of cited by and citing cases may be incomplete.
Health and Safety, Personal Injury
Updated: 02 November 2021; Ref: scu.439645