Landmark Court of Appeal case: Thousands of claims could follow industrial noise victory

Dated:

The 1st deafness litigation case is to be heard by the Supreme Court - Stephanie Baker v Quantum Clothing, Meridian Ltd and Pretty Polly Limited (Nottinghamshire and Derbyshire Deafness Litigation) Group Test Case Litigation [2009] EWCA Civ 499 - includes 2 barristers from Civitas Law.

Civitas Law barristers Theodore Huckle and Robert O'Leary join Lead counsel John Hendy QC to appeal the decision made in February 2007 in the High Court.

“The Court of Appeal has opened the way for what claimant solicitors believe could be thousands of claims following a unanimous ruling on an industrial noise test case,” believes Robert.

Hearing Loss Compensation Claims

Phillip Gower of Simpson Millar’s Industrial Disease Department also commented:

"This Judgement if upheld by the Supreme Court is likely to have a significant impact on Hearing loss Litigation in the UK and will certainly benefit a large number of claimants."

After working for 20 years in a hosiery factory checking and packing stockings, Stephanie Baker later developed high frequency hearing loss and occasional tinnitus.

The case (commonly referred to as the Nottinghamshire & Derbyshire Textile Litigation) concerns liability at common law & under statute (s29 Factories Act 1961-safe place of work) for noise induced hearing loss arising from long-term exposure to low levels of noise i. e noise levels between 85-90 dB(A) Lep,d. At trial, HH Judge Inglis concluded that only 1 of the test Claimants (Mrs Baker) had proved Noise Induced Hearing Loss but he dismissed her claim on the grounds that her employer was not in breach of s29 of the 1961 Act or in breach of its common law duty.

The case was taken to the Court of Appeal in 2009, where Lady Justice Smith said the case concerned the liability of Nottinghamshire and Derbyshire textile companies for hearing loss due to noise at lower levels than those generally recognised as giving rise to liability.

She said that Quantum Clothing and the other respondents were liable under s.29 of the Factory Act 1961 for damage to Mrs Baker’s hearing sustained from January 1978.

Lady Justice Smith said that as early as 1973, the respondent companies should have measured the noise in their workshops.

"I am quite satisfied that an area where the ambient noise was 85 decibels would have seemed noisy to anyone entering it."

She went on: "The respondents to this appeal would also have discovered that they had some workshops where the noise levels were less than 90 decibels but were in the range between 85 and 89. The department where Mrs Baker worked was one such."

Lady Justice Smith added that employers were under a statutory duty to do what was "reasonably practical" to eliminate the risk of harm, and ignorance of the law was no defence.

She argued that since the provision of ear protectors was "neither difficult nor expensive", she could not see how the employers could hope to establish that it was disproportionate to the risk.

Lady Justice Smith said that "in case it should ever become material", companies in the position of "average employer" were also liable at common law for negligence for hearing loss from January 1988.

Allowing the appeal, she awarded Mrs Baker damages of £3,334 for the 12 years she was exposed to the noise.

Lord Justices Jacob and Sedley agreed. Sedley LJ added: "If the risk is unascertainable, that will be so; but not where, as it is here, it can and should be ascertained and, once ascertained, can be readily guarded against. In such a case the onus on the employer has not been discharged. This was precisely the policy of s.29."

The Appeal will be heard in the Supreme Court over 3 days from 22 November 2010, with a verdict to follow.

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This article was kindly produced by Civitas Law.




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