News
04.09.2009
Theodore Huckle's article in Personal Injury Law Journal
In the July / August edition of the Personal Injury Law Journal, Theo Huckle considers the Nottingham and Derbyshire deafness litigation appeal and its implications for noise-induced hearing loss cases and the law of industrial disease claims.
The long-standing practice of lawyers and judges to treat common law and statutory duties in noise injury cases as co-extensive was expressly disapproved of by the Court of Appeal. In a real sense the claimants in these cases and their legal advisers must be taken to have changed that practice. It remains to be seen whether this will have professional indemnity implications for advisers in previous cases.
Result of the appeal
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Theodore Huckle's article in Personal Injury Law Journal
In the July / August edition of the Personal Injury Law Journal, Theo Huckle considers the Nottingham and Derbyshire deafness litigation appeal and its implications for noise-induced hearing loss cases and the law of industrial disease claims.
Baker v Quantum Clothing Group [2009] concerned the liability of employers in the knitting industry of Derbyshire and Nottinghamshire for their employees’ hearing loss. The case dealt with exposure to noise at a lower level than that which has generally been recognised as giving rise to liability prior to 1990, namely 90dB(A)L8.
I do not deal here with the issues of diagnosis and causation that were raised by this litigation but not re-argued in the appeal. Suffice it to say that this area is something of a minefield which requires very careful assessment and a questioning and technically proficient approach to medical evidence.
Although there was technically a single appeal, Meridian (Courtaulds) and Pretty Polly, the successful defendants in the original trials, were permitted to be respondents to the appeal in order to argue that some of the findings of the judge did not go far enough in their favour. Meridian contended that it should be held liable not from 1985 but from 1990; Pretty Polly contended for 1986, the date from which it provided ear protectors for those working amid noise at and above 85dB(A)L8.
In summary, the Court of Appeal held that from January 1978 all factory employers had a statutory duty to protect their workforces against noise exposure at 85-90dB(A)L8.
Some employers, having greater than average knowledge of the risks, owed the common law duty before
that date, depending on findings as to their particular knowledge: Harris v BRB [2005]. In this case the ‘actual knowledge’ date of common law liability for the major knitting industry employers was held to be January 1984.
All employers had a common law duty in negligence to protect from January 1988 at the latest, although arguably this should be January 1984.
The long-standing practice of lawyers and judges to treat common law and statutory duties in noise injury cases as co-extensive was expressly disapproved of by the Court of Appeal. In a real sense the claimants in these cases and their legal advisers must be taken to have changed that practice. It remains to be seen whether this will have professional indemnity implications for advisers in previous cases.
Result of the appeal
The appeal was allowed. Quantum was liable under s29 of the Factories Act (FA) 1961 from 1 January 1978, and Miss Baker was thus entitled to a time-apportioned damages award.
The full article is attached as a downloadable PDF.
The full article is attached as a downloadable PDF.
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