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The Supreme Court has refused to endorse a Court of Appeal (CoA) ruling on noise induced hearing loss, blocking the progression of what lawyers believe could have been thousands of hearing loss claims.
At issue was whether the knitting industry in Derbyshire and Nottinghamshire could be held liable for hearing loss suffered by employees prior to January 1990.
Appellant Quantum Clothing Group argued that the Supreme Court should reinstate the first instance ruling in which His Honour Judge Inglis found that any breach in common law negligence before 1990 would not constitute liability if the noise level was below 90db(A)lepd. The measure ‘db(A)lepd’ indicates exposure at a given sound level over a period of eight hours.
The case, which is commonly referred to as the Nottinghamshire & Derbyshire textile litigation, has its origins in a case brought by factory worker Mrs Baker.
Baker, who was represented by Old Square Chambers’ John Hendy QC, brought a hearing loss claim against her employer, for whom liability now rests with Quantum Clothing Group, one of the appellants.
Blackstone Chambers’ Michael Beloff QC and Ropewalk Chambers’ Dominic Nolan QC were instructed to lead Simon Beard also of Ropewalk Chambers’ by Weightmans to represent the first appellant, Quantum Clothing.
Several other factory workers brought similar claims against textile manufacturers Meridian, Pretty Polly and Guy Warwick, and all the claims were decided together as test cases.
Only Baker was found to have suffered hearing loss due to noise exposure in her employment and the other claims were dismissed.
Nevertheless, Pretty Polly and Meridian were also named as appellants in the Supreme Court matter.
Berrymans Lace Mawer (BLM) instructed Patrick Limb QC to lead Toby Stewart of Ropewalk Chambers for Pretty Polly, while Hill Hofstetter instructed Christopher Purchas QC to lead Catherine Foster and Nadia Whittaker, all of Crown Office Chambers, for Meridian.
The High Court found that the 1972 code of practice published by the Department of Employment, which set noise limit exposures, constituted an acceptable standard of noise level in the 1970s and 1980s until a European Directive came into force in 1988. The court’s decision also paved the way for a two-year adaptation period, meaning that any employer had no common law liability until 1 January 1990.
The CoA rejected this stating that the period should be shortened to between six and nine months, with the exception of Pretty Polly and Courtaulds, which were in a special position and could be held liable from 1985.
The Supreme Court stated that the position was wrong and accepted HHJ Inglis’ view that the 1972 Code of Practice provided official and clear guidance setting an appropriate standard upon which a reasonable and prudent employer could rely until the late 1980s. The decision regarding Pretty Polly and Courtaulds, however, should remain intact.
The Supreme Court rejected the CoA assertion that the Factories Act 1961 was absolute and that anything that is objectively considered safe does not change with time.
Supreme Court Justice Mance stated that there is no such thing as an unchanging concept of safety and the requirement to make a workplace safe is not absolute.
The decision will come as a relief to manufacturers who would have found themselves liable for damages dating back decades had the Supreme Court upheld the appeal ruling.
Supreme Court Justices Lord Kerr and Lord Clarke dissented.