The question of injury caused by noise at work deserves separate treatment because it has been the subject of a distinct line of cases.
The current law on the topic is far from clear. In relation to total hearing loss, the normal principles of negligence apply. But when the problem is that of partial deafness developing over a long period of time, the following legal questions arise.
Ascertainment of the exact date from which legal liability runs.
The scope of an employer’s duty in relation to hearing loss.
Apportionment of liability in cases where there have been successive employments.
Apportionment where damage was caused before employers could reasonably have been expected to take preventative measures.
A leading case is Thompson and Others v Smiths Shiprepairers (North Shields) Ltd (1984). The significance of this case is that it was a consolidated action. It involved six plaintiffs and was brought in order to establish potential liability in 20,000 other similar claims.
The essential point decided by the Thompson case was that:
…’Employers are liable in common law negligence if they fail to take reasonable steps to protect employees from known sources of danger. Since 1963 all employers are presumed to have known of the danger of injury to employees’ hearing as a result of exposure to excessive noise.
Physical injury to hearing capability.
Loss of amenity caused by reduced hearing effectiveness.
Social handicap resulting from hearing loss.’
The court in Thompson went on to make the following rulings:
Where hearing loss has occurred progressively through successive jobs, liability is to be apportioned between successive employers.
Compensation must also be apportioned to allow for pre-1963 injury (where no liability is imposed) and post-1963.
In most cases, hearing loss is worst during the first six to thirteen years of exposure.
Hearing loss is best gauged by applying the National Physical Laboratory tables.
The facts of the Thompson case were that six shipyard workers had been exposed to noise at work from chipping, scaling, riveting and caulking tools. None of them had worn ear protection until 1973, when employers made earmuffs generally available. Their hearing loss was assessed as ranging from 10-65%.
The decision of the High Court on the facts may be analysed thus:
Every employer has a common law duty to take reasonable steps to protect employees from known, or reasonably foreseeable, dangers.
In relation to noise, the connection with hearing loss was largely anecdotal.
In 1963 the Ministry of Labour published a booklet entitled Noise and the Worker. From a legal point of view, the effect of this publication was to put employers on notice as to the dangers of workplace noise.
On the facts of the present case, most of the damage to the plaintiffs’ hearing had been done by 1963.
Thus, damages must be assessed on a proportionate basis.
Awards ranging from £250 to £1,350 were made.
Occupational Deafness: Levels of Compensation
Fry and Others v Ford Motor Company Ltd (1990)
F and 3 other Ford workers had been exposed to noise at work averaging 90 decibels over periods ranging from 15-30 years. Ford admitted liability: the issue was the amount of compensation. The High Court made the following points:
In cases concerning loss of hearing there is no assessment of pain and suffering. But the following areas of discomfort should be quantified:
Disruption of social and family life.
Intolerance from others irritated by victims who cannot hear properly.
Such frustration and irritation varies between individuals and must be separately assessed.
The age of the plaintiff at which the injury occurred is of crucial importance, because hearing loss is related to age in any event, regardless of noise at the workplace.
The following factors are relevant in assessing the level of awards:
Age of plaintiff
Length of time suffered from hearing loss
Tinnitus
Effect of hearing loss on work, family and social life
Whether the plaintiff would need to buy hearing aids.
Duty of Employer to Keep Ahead of Contemporary Knowledge
Baxter v Harland and Wolff (1990)
B, a fitter, was employed by H&W for 25 years. He retired in 1962. For the next twenty years he suffered deafness resulting from the high levels of noise to which he had been exposed during his working life. In 1984 he brought proceedings against his former employers.
The Court of Appeal held that the employers were liable. Their failure to alleviate noise suffered by B amounted to a breach of their duty of care.
The employers had been aware that workers’ hearing was suffering because of noise. They were required to keep up with the developments in awareness of damage caused by noise. 1963 was not in itself a cut-off date: there had been sufficient scientific, legal and medical information available before that date. The employers were liable for damage suffered before 1963.