Noise at work and hearing loss: case law

To what extent are employers liable for injury due to work-related noise dating from decades ago? Barrister Robert Spicer investigates.

The Noise at Work Regulations 1989 applied to all workplaces and required employers to carry out assessments of noise levels within their premises and to take appropriate preventive measures where necessary. The 1989 Regulations were replaced by the Control of Noise at Work Regulations 2005. The 1989 Regulations continue to be interpreted by the courts, in part because symptoms of occupational hearing loss may relate to workplace conditions which existed before the new regulations came into force.

An example of this is the Court of Appeal case of Mackenzie v Alcoa Manufacturing (GB) Ltd. M, a factory operator, worked at the company’s factory from 1963 until 1976. He claimed compensation for noise-induced hearing loss. He alleged that his injury had been caused by A’s failure to carry out a noise survey to ensure that he was not exposed to unsafe levels of noise.

M asked the trial judge to draw an adverse inference against A on the basis that no noise surveys had been produced. The judge refused this request because documents related to the noise survey might have been lost rather than being lacking because no survey had been carried out. Further, expert engineering evidence did not support the case that M had been subjected to tortious levels of noise. The claim was dismissed.

On appeal, this decision was reversed. The court found that a benevolent interpretation of M’s evidence would have involved accepting that he was exposed to noise throughout his working day without any formal protection or warning. The expert evidence was unable to disprove that that could not have been the cause of his hearing loss.

A appealed to the Court of Appeal. The Court of Appeal allowed the appeal and made the following points.

  • There was no statutory duty to carry out noise surveys until the Noise at Work Regulations 1989 came into force. Ministry of Labour guidance which predated the regulations gave rise to a common law duty to carry out a noise survey in certain circumstances. The threshold for noise surveys was reduced in the 1971 edition of the guidance. In 1972 the Department of Employment published the Code of Practice for Reducing the Exposure of Employed Persons to Noise. Allowing for a two-year period to consider the guidance, obtain a noise survey and act upon it, a common law duty to carry out and act upon a noise survey arose in 1973 or 1974.

  • Whether it was appropriate to draw an inference depended upon the facts of the particular case. Silence or a failure to adduce relevant documents could convert evidence into proof but that might depend on the explanation for the failure to adduce.

  • The judge at first instance had found that there was no breach of duty on the part of A because noise surveys might have been lost. There was no basis to overturn this finding of fact.

  • The judge at first instance had also accepted the expert evidence that it could not be shown that M had been regularly exposed to tortious levels of noise. He was entitled to accept this evidence.

An earlier example is the High Court case of Fry and others v Ford Motor Company Ltd (1990). This case was brought under the common law of negligence. Four employees of Ford had been exposed to noise levels averaging over 90 decibels for between 15 and 30 years and the employer admitted liability.

The High Court stated that, in assessing compensation, the effect of hearing loss on each individual claimant should be taken into account. The following points were relevant.

  • Although there is no pain or suffering to be assessed in the same way as for physical injuries, there remained clear areas of discomfort, for example severe disruption of family and social life, and intolerance from others who became irritated by a person who was hard of hearing.

  • The frustration and irritation caused by the condition varied considerably between individuals and must be taken into separate consideration in any claim for damages.

  • Deterioration in hearing was something related to age, and thus the age at which the injury occurred was important in calculating years of hearing loss up to the date of trial and likely for years after trial.

  • Thus, in setting the amount of compensation, account should be taken of the age of the claimant, the length of time they had suffered hearing loss, whether they suffered from tinnitus, the effect the loss had on their social, work and family life, and what aids they would need to buy in future.

Another common law negligence example is Baxter v Harland and Wolff (1990). B was employed by H&W for periods totalling 25 years. He retired in 1962, after which he suffered deafness caused by his exposure to high levels of noise during his employment. In 1984 he claimed compensation from H&W.

At first instance his claim was dismissed and he appealed to the Northern Ireland Court of Appeal. That court allowed the appeal and stated the following.

  • The employer had been in breach of its duty of care owed to B in failing to take steps to alleviate noise levels during his employment. The employee had been aware that employees were suffering hearing loss because of the noisy environment.

  • Employers were required to take reasonable care to keep ahead of contemporary knowledge in accident prevention and safety.

  • In 1963 the Ministry of Labour had published guidelines regarding levels of noise in workplaces, but there had been sufficient medical, legal and scientific knowledge available before 1963. The employer had failed to address this knowledge and was liable for noise levels before 1963.