“From these authorities I deduce the principles, that the overall test is still the conduct of the reasonable and prudent employer, taking positive thought for the safety of his workers in the light of what he knows or ought to know; where there is a recognised and general practice which has been followed for a substantial period in similar circumstances without mishap, he is entitled to follow it, unless in the light of common sense or newer knowledge it is clearly bad; but, where there is developing knowledge, he must keep reasonably abreast of it and not be too slow to apply it; and where he has in fact greater than average knowledge of the risks, he may be thereby obliged to take more than the average or standard precautions. He must weigh up the risk in terms of the likelihood· of injury occurring and the potential consequences if it does; and he must balance against this the probable effectiveness of the precautions that can be taken to meet it and the expense and inconvenience they involve. If he is found to have fallen below the standard to be properly expected of a reasonable and prudent employer in these respects, he is negligent.”
“I shall direct myself in accordance with this succinct and helpful statement of the law, and will make only one additional comment. In the passage just cited, Swanwick J drew a distinction between a recognised practice followed without mishap, and one which in the light of common sense or increased knowledge is clearly bad. The distinction is indeed valid and sufficient for many cases. The two categories are not, however, exhaustive: as the present actions demonstrate. The practice of leaving employees unprotected against excessive noise had never been followed ‘without mishap.’ Yet even the plaintiffs have not suggested that it was ‘clearly bad,’ in the sense of creating a potential liability in negligence, at any time before the mid-1930s. Between the two extremes is a type of risk which is regarded at any given time (although not necessarily later) as an inescapable feature of the industry. The employer is not liable for the consequences of such risks, although subsequent changes in social awareness, or improvements in knowledge and technology, may transfer the risk into the category of those against which the employer can and should take care. It is unnecessary, and perhaps impossible, to give a comprehensive formula for identifying the line between the acceptable and the unacceptable. Nevertheless, the line does exist, and was clearly recognised in Morris v West Hartlepool Steam Navigation Co Ltd[1956] AC 552 . The speeches in that case show, not that one employer is exonerated simply by proving that other employers are just as negligent, but that the standard of what is negligent is influenced, although not decisively, by the practice in the industry as a whole. In my judgment, this principle applies not only where the breach of duty is said to consist of a failure to take precautions known to be available as a means of combating a known danger, but also where the omission involves an absence of initiative in seeking out knowledge of facts which are not in themselves obvious. The employer must keep up to date, but the court must be slow to blame him for not ploughing a lone furrow.”
“(1) There shall, so far as is reasonably practicable, be provided and maintained safe means of access to every place at which any person has at any time to work, and every such place shall, so far as is reasonably practicable, be made and kept safe for any person working there.” (2) Where any person has to work at a place from which he will be liable to fall a distance more than six feet six inches, then, unless the place is one which affords secure foothold and, where necessary, secure hand-hold, means shall be provided, so far as is reasonably practicable, by fencing or otherwise, for ensuring his safety.”
‘The limit can be set at a variety of levels according to the ultimate risk judged to be acceptable and we suggest that it should not be set higher than 90dB(A) for normal continuous daily exposure which is likely to persist for many years.’ 5. In 1968 and 1971 two further editions of ‘Noise and the Worker’ were published. The gist of the advice given in the third edition was that, if employees were exposed to noise in excess of 90dB(A), there should be a programme of noise reduction or hearing conservation. That level of noise exposure corresponded approximately to the 85dB which had been the level at which action was recommended in the first edition of ‘Noise and the Worker’
“This booklet has been overtaken by the publication in April 1972 of the Code of Practice …. However it is a useful introduction to the subject” and “should be read as a supplement to the Code”
“The Code sets out recommended limits to noise exposure. It should be noted that, on account of the large inherent variations of susceptibility between individuals, these limitations are not in themselves guaranteed to remove all risk of noise-induced hearing loss.” “7. A set of tables first published in 1973 by the National Physical Laboratory (the NPL tables) showed the relationship between noise dose and the expected extent of hearing loss of persons with different degrees of susceptibility. Noise dose was based upon the daily exposure adjusted for the number of days’ exposure in the year and the number of years’ exposure. These tables were based on the work of Burns and Robinson. They were republished in 1977 in a more user-friendly form but the underlying science was the same as before and indeed it remains valid today. The tables demonstrated the harmful effect of prolonged exposure to noise below 90dB(A)leq but, because they were based on empirical data and because the data available for these lower noise levels was limited, there was some dependence on extrapolation. The degree of predicted risk arising from exposure to these lower levels of noise is therefore less certain than that caused by noise over 90dB(A)leq. That is of significance in the context of this appeal which raises the issue of when employers ought to have taken steps to protect their employees from exposure to such lower levels of noise.”
“The Code’s noise limit of 90dB(A)leq has widespread international acceptance, and although it does not eliminate all risk of hearing damage, we feel it continues to be the most practicable standard, in recognition of the necessity of concentrating limited resources on workers subject to the most significant risks and of eliminating these risks as a first priority. … Prediction of risks of hearing damage at these levels, based on a lifetime’s exposure of 30 or 40 years, indicates that the proportion of an exposed population likely to suffer unacceptable degrees of impairment falls off rapidly below 90dB(A). The specification of a daily dose introduces a further margin of safety since it is unlikely that a large number of workers would receive the full daily limit throughout their entire working lifetimes. Similar conclusions have been reached in other major industrial countries, and none of those examined in our survey has introduced a generally applicable environmental limit lower than 90dB(A). Nevertheless, the question of a lower limit should be reconsidered at regular intervals. A level of 90dB(A) is by no means ideal, and the aim should be to ensure a progressive reduction”. “10. In 1975 an international standard was published (ISO1999). This proposed a formula by which hearing loss could be predicted from various levels of noise exposure. It was not easy for a lay person to use. IS01999 did not suggest limits of tolerable exposure. It said that that was the province of ‘competent authorities’ who would demand the institution of hearing conservation programmes if limits were exceeded. It mentioned that ‘in many cases’, 85 to 90dB(A) equivalent continuous sound level had been chosen. 11. In 1976, a British Standard was published (BS 5330: 1976). This was based on the work of Burns and Robinson and explained the relationship between noise exposure and the expected incidence of hearing disability. The foreword stated that determination of a maximum tolerable noise exposure was outside the scope of the standard and referred the reader to the 1972 Code of Practice.”
“Determination of a maximum tolerable noise exposure is outside the scope of this standard; it involves consideration of risk in relation to other factors. For occupational noise exposure such a limit is specified in the Department of Employment (HMSO, 1972) Code of Practice for Reducing Exposure of Employed Persons to Noise”. “12. In 1981, the Health and Safety Executive (HSE) issued a consultative document ‘Protection of Hearing at Work’ which included draft regulations and a draft approved code of practice. The proposed level of protection was at or above 90dB(A)lepd. These draft regulations were not promulgated. 13. In 1982, a draft directive was published by the European Commission, proposing a general limit of 85dB(A)lepd with ear protection to be provided at or above that level with medical surveillance and routine audiometry for all employees exposed at or above that level. This was greeted with some dismay by industry and was withdrawn in 1984. A further draft directive was published and was promulgated in 1986. This required member states to enact legislation which would, inter alia, require employers to provide ear protectors and information as to risks where employees were exposed to noise likely to exceed 85dB(A)lepd. Medical surveillance was to be made available to all exposed employees by means of access to a doctor. Thus, the only change of significance between the 1982 draft and the 1986 directive was that responsibility for medical surveillance would not fall on the employer but (at any rate in this country) would be satisfied through the provisions of the National Health Service. The Noise atWork Regulations 1989 (SI 1989/1790) implementing the directive came into effect on1 January 1990 .”
“87. There is no doubt that research into the question of what risks to the hearing of employees exposure below 90dB(A)leq posed would have yielded the answer that 90dB(A) was not a natural cut off point, and that there were risks to susceptible individuals below that level. Indeed, the 1972 Guidelines themselves made that clear. From the early 1970s, certainly by 1976 with the publication of BS 5330 and of IS0 1999 in the previous year, the information was available if researched to give an indication of the level of the risk. It was a level of risk that came by the end of the 1980s to be seen as unacceptable if not accompanied by at least voluntary protection, though the 90dB(A) limit had remained, both in 1975 and in 1981, the proposed regulatory standard in England. In the end though I am not persuaded that employers in industry who conformed to the maximum acceptable level of exposure in the 1972 Guidelines were in breach of their duty of care to their employees who were exposed over 80dB(A)lepd. In rejecting the primary case for the claimants I acknowledge that I do not see the issue as only one of foreseeability. It would in my judgment be futile to hide behind the 1972 Guidelines for that purpose, or behind the third edition of “Noise and the Worker”, when the documents themselves proclaim that the level proposed will not be safe for all workers. But good practice as informed by official guidance has in my view to be taken into account as well. The guidance as to the maximum acceptable level was official and clear. It would in my view be setting too high a standard to say that it was incumbent on employers to ignore it, and to reach and act, even as early as the 1960s, on a view that the standard set was inadequate to discharge their duty to their employees. To put it in the context of Swanwick J’s judgment, complying with 90dB(A)lepd as the highest acceptable level was, I think, meeting the standards of the reasonable and prudent employer during the 1970s and 1980s, certainly until the time when the terms of the 1986 directive became generally known in the consultative document of 1987. I accept that this means that employers were not bound in the discharge of their duty to ask the question ‘Who are those at risk in my factory, and how big is the risk’. It is a question that none of them in this case asked. But the effect of the maximum acceptable level in the Guidelines means in my judgment, that they were not in breach of their duty for not asking it.”
“88. There is room, however, for ‘greater than average knowledge’ as Swanwick J put it, to inform the steps that individual employers should have taken at an earlier time than the late 1980s. At first sight it is not attractive that those who have a safety department and medical officers and take the matter of noise seriously should be worse off than those who wallow in relative ignorance, but it is an inevitable consequence of a test that depends on what an individual employer understood. On that basis, I have found that by the beginning of 1983 management both at Courtaulds and at Pretty Polly had sufficient understanding of the risks to hearing below 90dB(A)lepd to require them to take action. Both in fact say that they did so. Plainly putting a conservation programme into action, accompanied by information and instruction is not to be done in an instant, as Mustill J recognised in the passage in Thompson that I have set out above. In the case of those two employers, because of the particular state of their knowledge, I would say that they were in breach of their duty to employees who suffered damage through exposure at 85dB(A)lepd and over, without having the opportunity of using hearing protection, from the beginning of 1985.”
“105. … I consider that the opinion, implied by the Code of Practice, that exposure to noise below 90dB(A)lepd was ‘acceptable’ was a factor which could properly be taken into account when an employer considered what it was reasonable for him to do in respect of the health and safety of his employees. In short, I take the view that Judge Inglis’s holding which I quoted at paragraph 46 cannot be faulted. I would uphold his view that there was no breach of the duty at common law during the period for which a responsible body of opinion regarded it as ‘acceptable’ to expose employees to noise in the 85-89dB(A)lepd range. I consider that, for the employer with the ordinary or average degree of knowledge, the judge’s conclusion that that period came to an end in 1987, following publication of the second European draft directive, was a reasonable conclusion, although, left to myself, I would have said that the publication of the first draft directive in 1982 would have put all employers on notice that it could no longer be regarded as acceptable or reasonable to leave this group of employees exposed. … 107. The judge imposed different dates of common law liability on Courtaulds and Pretty Polly from that of Quantum and Guy Warwick which he regarded as having only an average degree of knowledge. It is clear that from 1972 all employers should have been aware of the risk to some of their employees from exposure to 85-89dB(A)lepd. The question at common law was when they should have realised that it was no longer to be regarded as acceptable to disregard that risk. The judge’s conclusion in respect of Courtaulds was plainly justified. They actively opposed the proposal in the first draft directive, not on the ground that the risk was minimal but on the ground that the cost to them would be too great. By early 1983, they could no longer have thought that a responsible body of opinion took the view that it was acceptable to ignore the risks of harm below 90dB(A)lepd. They should by that time have known which of their workers required protection and only a further six to nine months should be allowed for provision. 108. Pretty Polly was in a different position in that there was no direct evidence that it knew of the first draft directive. However, in my view the judge was entitled to hold that it must have done. In any event, there was other evidence that it had been advised of the need to take action in respect of the lower levels of noise. In my view, the judge’s holding was justified, subject to the reduction in the period allowed for provision. 109. As a fall-back submission, Mr Hendy argued that the judge had been wrong to reach a different conclusion in respect of Quantum. There was evidence that it was aware of the first draft directive … and Mr Hendy submitted that, given that knowledge, it was irrational to say that, because the group was smaller than Pretty Polly or Courtaulds and operated as individual companies without the benefit of central advice on health and safety issues, they should be treated differently from the other two employers. I would accept that submission and would hold that, if it were to become material, Quantum would have been in breach of its common law duty at the same date as Courtaulds.”
“I consider that, for the employer with the ordinary or average degree of knowledge, the judge’s conclusion that that period came to an end in 1987, following publication of the second European draft directive, was a reasonable conclusion, although, left to myself, I would have said that the publication of the first draft directive in 1982 would have put all employers on notice that it could no longer be regarded as acceptable or reasonable to leave this group of employees exposed.”
“Over the last 15 years knowledge as to the relationship between noise and deafness has grown and become more precise .... Today a reasonable employer ought to know that to expose an employee to noise in excess of 90dB(A) for eight hours or its equivalent is potentially hazardous. It also seems a fair assumption that the reasonable employer should have known of the criteria set out in “Noise in Factories” and “Noise and the Worker” by the mid-1960s.”
“46. … There was evidence given by the expert witness engineers for Courtaulds (Mr Bramer and Mr Currie) about the approach to control of noise in the period from the 1970s in industry. The report of Mr Worthington for Pretty Polly and Guy Warwick is also in evidence. To Mr Bramer, the guidance in ‘Noise and the Worker’ and the 1972 Guidelines provided a ‘clear and consistent recommendation to employers as to how they ought to deal with noise in the workplace’. The result was that in his practice, his invariable advice until the late 1980s, was that ‘the relevant level was a daily personal noise exposure of 90dB(A)’. This approach, he said, was standard during the period up to 1989 among noise professionals, and taught at training courses. In the mid 1980s, when it appeared that EEC regulation would involve a first action level of 85dB(A) his advice changed to reflect that. He was not aware of the NPL tables before the 1980s when he found that they were being used by medical experts writing reports for the purpose of deafness claims. He has never come across them being used in any part of industry. In evidence Mr Bramer said that he gave advice to employers in terms of complying with the 1972 Code. He was speaking to the 90dB(A) level, as were all his colleagues. He agreed that the advice would be to answer the question ‘Tell us how to comply with legislation and the Code of Practice’, rather than ‘Tell me how to avoid reasonably foreseeable risk to my workforce’. He would have recommended 90dB(A) as the cut off point, but would also have said ‘that does not actually stop some more susceptible people from having some small noise induced hearing loss’. If asked about risk, he would have had some difficulty, and regarded the question as more one for medical people. 47. Mr Currie said that the Health and Safety Executive and factory inspectors after the Health and Safety at Work etc Act 1974 concentrated their advice and enforcement on the 90dB(A) level. He was not aware of any instance in which the NPL tables had been used by employers to predict the level of risk for their workforce. In evidence Mr Currie said that good practice won’t necessarily remove all risk. He agreed that there has been no very different understanding about noise induced hearing loss since the 1970s. The first thing to look at when deciding on practices, which is what employers have to do, is to look at the guidance available. Mr Worthington’s report is to the effect that employers looked to the 90dB(A) limit in the Code of Practice as the maximum acceptable limit, and that the Factory Inspectorate and HSE did not refer employers to the risks below that limit as risks about which they should take action. That was the practice of the day, and employers taking advice, if they did, would be referred to the standard in the Code as being what had to be observed. 48. It is clear from some of the documents referred to above that by the beginning of the 1980s there were still many people employed in industry exposed over 90dB(A)lepd, and that the approach of enforcement agencies was to concentrate on those people. The evidence of the engineers referred to above suggests that that was a common approach until at least into the mid 1980s. That the 90dB(A)lepd level was regarded, as is the effect of the evidence of the engineers referred to above, in industry as the touchstone of reasonable standards that should be attained is evidenced by notes published by the Wolfson Unit for Noise and Vibration Control in the University of Southampton in 1976.”
“I consider that, for the employer with the ordinary or average degree of knowledge, the judge’s conclusion that that period came to an end in 1987, following publication of the second European draft directive, was a reasonable conclusion …”
“In case it should ever become material, I would fix the date for breach of common law duty for the average employer at January 1988.”
“From what date would a reasonable employer, with proper but not extraordinary solicitude for the welfare of his workers, have identified the problem of excessive noise in his yard, recognised that it was capable of solution, found a possible solution, weighed up the potential advantages and disadvantages of that solution, decided to adopt it, acquired a supply of the protectors, set in train the programme of education necessary to persuade the men and their representatives that the system was useful and not potentially deleterious, experimented with the system, and finally put it into full effect? This question is not capable of an accurate answer: and indeed none is needed, as will appear when the scientific aspects of the case are considered. Various years were selected as rough markers, for the purpose of argument. I reject without hesitation the notion that the date lay somewhere in the years immediately preceding and following the Second World War. It was not until 1951, with the inconspicuous entry of the V-51R into the United Kingdom market that even a really enlightened employer would have started to ask himself whether something could be done. Even then, I consider that it pitches the standard of care too high to say that an employer would have been negligent, from that date, in failing to find, decide upon, and put into effect a system of using the protectors then available. At the other extreme, I consider that the choice of a date as late as 1973 cannot be sustained. The problem, and the existence of different ways in which it might have been combated, had been well known for years; there had been devices which were both reasonably effective, and reasonably easy to wear; and if the employers did not know precisely what they were they would have had no difficulty in finding out. All this being so, I conclude that the year 1963 marked the dividing line between a reasonable (if not consciously adopted) policy of following the same line of inaction as other employers in the trade, and a failure to be sufficiently alert and active to measure up to the standards laid down in the reported cases. After the publication of ‘Noise and the Worker’ there was no excuse for ignorance. Given the availability of Billesholm wool and reasonably effective ear muffs, there was no lack of a remedy. From that point, the defendants, by offering their employees nothing, were in breach of duty at common law.”
“where, as in the present case, you start with a place safe in every degree, and the only thing which renders it unsafe is the fact that equipment brought upon it for a particular operation, and being used for a particular operation on a particular day, produces an element of danger, it seems to me that that is not enough to justify the allegation, certainly in criminal proceedings, that the place itself has not been made safe.”
“Although voluntary action is now possible and, indeed, essential, we do not consider that the present knowledge of this complex problem provides a sufficient basis for legislation. Although the levels of continuous, broadband noise which represent a hazard to the hearing of people who are exposed to them for long, unbroken periods have been established within certain margins of error, many uncertainties remain. There is no satisfactory means of predicting the susceptibility of individuals to hearing loss, nor is the distribution of susceptibility known; the comparative danger of noises in which energy is concentrated in narrow frequency bands is not determined; nor is the influence on hearing loss of impulsive noises, which are common in industry. Neither is there much information on the physical properties of industrial noise, the distribution of noise of any given type in industry and the practicability of minimising those properties which are found to be dangerous to hearing. If early legislation were introduced it could do no more than lay down general standards, the effect and cost of which cannot at present be estimated. If the standards adopted proved to be too severe in some respects the industries affected might be exposed to heavy unnecessary expenditure; on the other hand if minimum standards were adopted, these would tend to suggest that compliance with these standards was all that was needed even in parts of industry where there were important hazards at lower sound pressure levels or with shorter exposure. Legislative insistence on the wearing of ear protectors would be particularly difficult to introduce until there is a wider recognition of the need for them in noisy industries. Early legislation would, therefore, have to be very general in its terms and it would be impossible to enforce effectively. We think that, at present, it would not achieve as much as vigorous voluntary action. In our view, before practical legislation could be considered, it would be necessary to establish the extent of the risk to average people of exposure to industrial noise, and the cost and possibility of measures which would effectively reduce this risk to the point which, on balance, was regarded as acceptable.”
“If 85dB(A)lepd causes deafness to a particular claimant, that claimant’s place of work was not safe for him or her. It might have been safe for another person working alongside. But for the susceptible worker who has in fact been damaged, it can be demonstrated, without more, that his or her place of work was not safe. Looking at matters from the point of view of the work force generally, it is known that a minority of people will suffer appreciable harm as the result of prolonged exposure to 85dB(A)lepd. Therefore, it can be said that the place of work is not safe for the workforce because there is a risk of injury to all of them.”
“There may be differences of view on whether the degree of safety of a particular piece of machinery is acceptable”
“‘Safe’ is the converse of ‘dangerous’. A working place is ‘safe’ if there is nothing there which might be a reasonably foreseeable cause of injury to anyone working there, acting in a way in which a human being may reasonably be expected to act, in circumstances which may reasonably be expected to occur: see John Summers & Sons Ltd v Frost[1955] AC 740 , per Lord Reid at p 766. In determining, therefore, whether the occupier was under a duty to take any measures to prevent an accident which was caused by the presence at a working place of a particular object, it is necessary to ask, first, whether the possibility of an object of that kind being at that particular place was reasonably foreseeable, and, if so, secondly, whether it was reasonably foreseeable that it would be a cause of injury to a person working there. It is only if both those questions are answered affirmatively that it becomes necessary to consider whether it was ‘reasonably practicable’ to avert the danger.”
“Under the statute, the employer must first consider whether the employee’s place of work is safe. If the place of work is not safe (even though the danger is not of grave injury or the risk very likely to occur) the employer’s duty is to do what is reasonably practicable to eliminate it. Thus, once any risk has been identified, the approach must be to ask whether it is practicable to eliminate it and then, if it is, to consider whether, in the light of the quantum of the risk and the cost and difficulty of the steps to be taken to eliminate it, the employer can show that the cost and difficulty of the steps substantially outweigh the quantum of risk involved. I cannot see how or where the concept of an acceptable risk comes into the equation or balancing exercise. I cannot see why the fact that a responsible or official body has suggested that a particular level of risk is ‘acceptable’ should be relevant to what is reasonably practicable. In that respect, it appears to me that there is a significant difference between common law liability where a risk might reasonably be regarded as acceptable and statutory liability where the duty is to avoid any risk within the limits of reasonable practicability.”
“It has been suggested that some impairment may be caused by noise levels in the range of 85-90dB(A) .... We strongly recommend that hearing protectors be provided for all those who may be exposed to noise within the range 85-90dB(A)leq.”
“if we as a company feel that we require a zero risk of hearing damage for our employees, then no person should be exposed to a noise level of more than 80dB(A) for an eight hour day.”
“Even at this level we are accepting a certain risk of damage for our employees. If a zero risk of hearing damage is required, then no employee should be exposed to a noise level of more than 80dB(A) for more than eight hours a day.”
“There is no evidence that anyone at Pretty Polly turned their mind towards any evaluation of the risks below 90dB(A) before 1982. It is not really likely that they did so. It is plain from Mr Butler’s documents that by that year he had done so. Indeed, it is unlikely that a company of that size where there had been some collection of materials, and where they cannot have been unaware of the EEC proposals and the very public debate that followed, could not have known that there was a real case to be made that exposure below 90dB(A) could cause levels of hearing damage that should be guarded against. I would put actual awareness of the nature of the real risk below 90dB(A), as with Courtaulds, as having arisen by the beginning of 1983.”
“60. The factories in the group seem to have run largely independently, with factory management being responsible for health and safety, reflecting the origins of each factory in a separate business. There was no central health and safety function. Mr Jones said that he thought that in 1977 or thereabouts a Health and Safety policy document had been produced. He said it would probably have been destroyed ‘when the company folded’. There is no reason to think that such a policy, if it did in fact exist, would on noise have done anything but refer to the limit of 90dB(A). The knitting shops were recognised as being the areas with possibly dangerous levels of noise, not making up areas. Of the documents referred to the first is a noise survey and accompanying documents done for Huthwaite Avenue by Midland Insurance in June 1983. Mr Watson had discussed the conclusions of it with Midland Insurance, as appears on the face of the document, though he said in evidence that he could not remember it. The survey refers to the 90dB(A) limit and suggests that all areas in the survey above 87dB(A) should be areas where ear protection is worn until the noise is reduced by engineering methods. A number of areas were identified as having noise over that level. Proper training and instruction of staff is advised; and appended is a guide to preparing a noise control policy, in which it is suggested that any noise reduction programme should aim at reducing noise to 84dB(A) or less if practicable. There is a noise survey of Botany Avenue by Mr Graham Allin, an engineer working to Mr Gage in August 1984 in which Mr Allin refers to company policy taking 85dB(A) as the exposure threshold level. I am satisfied that there was no such policy. Mr Gage, who was a good witness was quite clear about that, and explained how Mr Allin may have got that idea from Mr Gage’s view about a margin of safety below 90dB(A) so as to ensure the 90dB(A) level was achieved. Moreover, in a draft survey of the Ollerton factory written after June 1984 when the EEC proposals were changed there is no mention of such a policy. The quality of their evidence was not as good as that of Mr Gage, but both Mr Watson and Mr Ivan Jones said that the limit to be worked to was 90dB(A). There is no evidence of any steps towards protection being taken in the Nottingham Manufacturing years aimed at conservation over 85dB(A). Mr Watson said in evidence that he was aware of the EEC proposal in 1982 to reduce the exposure level to 85dB(A). He was aware of the existence of the debate about that proposal, from discussions with insurers: ‘It was viewed with some scepticism, I think. Coats was a large organisation. By the time they came on the scene attention, if any, must have been focused on the EEC proposals that led to the 1989 regulations. 61. There is therefore no evidence that anyone in Nottingham Manufacturing or its subsidiaries with which this case is concerned turned their mind towards the level of risk about possible harm below 90dB(A)leq, except that Mr Watson was aware after 1982 of a debate going on about what levels would ultimately be imposed, and by the summer of 1984 it was known that though the compulsory level would remain at 90, some measures, possibly audiometry, would be imposed at 85dB(A). The 1983 Midland Insurance document is an important document, with its plain implication that the 90dB(A) Code of Practice level did not provide protection to everyone, and that a noise conservation policy should do better, but it does not provide the information that means that management at Nottingham Manufacturing were in a position of knowledge and understanding that set them apart from what I take to be the understanding of the great majority of employers, that 90dB(A)lepd was the official limit that had to be worked to. I do not think it is shown that Nottingham Manufacturing had a greater than average degree of knowledge.”
“The Code sets out recommended limits to noise exposure.”
“It should be noted that, on account of the large inherent variations of susceptibility between individuals, these limitations are not in themselves guaranteed to remove all risk of noise-induced hearing loss.”
“If exposure is continued for eight hours in any one day, and is to a reasonably steady sound, the sound level should not exceed 90dB(A)”
“as contemplated by Rose J in Taylor v Fazakerley, the standard of safety in the section is governed by the general standard which ought reasonably to have been adopted by employers at the relevant time.”
“(1) Every dangerous part of any machinery….shall be securely fenced unless it is in such a position or of such construction as to be as safe to every person employed or working on the premises as it would be if securely fenced”
“My Lords, anyone who has practised in the Queen’s Bench Division knows that the case of Hindle v Birtwhistle has been cited very, very many times. Du Parcq LJ vouched for it up to 1940 in Stimpson v Standard Telephones and Cables Ltd[1940] 1 KB 342 and I can vouch for it since.”
“The statutory obligation may exceed the duty at common law or it may fall short of it or it may equal it”
“in every case it is the risk that has to be weighed against the measures necessary to eliminate the risk. The greater the risk, no doubt, the less will be the weight to be given to the factor of cost.”
“The first steps in the programme [i.e. a ‘Noise Reduction and Hearing Conservation Programme’] are to carry out a noise survey and to obtain specialist advice. (page 5) Our knowledge of the relation of noise to hearing loss is as yet too limited for it to be possible to say with certainty what amount of exposure is safe – partly because people vary greatly in their susceptibility to noise. It is generally agreed, however, that if workers are exposed for eight hours a day, five days a week, to a continuous steady noise of 85 dB or more in any octave band, in the speech range of frequency (500 to 4,000 cycles per second), it is desirable to introduce a programme of noise reduction or hearing conservation. … (page 7) Where it is not possible, by environmental control, to reduce noise to sufficiently safe levels, workers should be protected by ear defenders. … (page 14)”
“Because some people are more liable to hearing loss than others and because our knowledge of the effects of noise exposure, especially exposure to intensive noise of short duration, is still incomplete it is not possible to set out a simple table of permissible limits for all types of noise.”
“It has been common knowledge for many years that high levels of noise at work can cause impairment of hearing. In a few firms where there is this danger, good work has been done in suppressing noise, but in many others the problem has not been recognised, or has been under-estimated. In those firms, the tragedy is that all too often the workers are accustomed to the noise and do not notice the gradual deterioration of their hearing until it is too late. For hearing lost in this way cannot be recovered. The general solution to this problem, which is a complex one, has been hampered more by ignorance than by neglect. Until the pioneer work of Professor Burns and Dr. Robinson was published in March 1970, we lacked the necessary scientific knowledge of the precise levels of noise, and the duration of exposure to them, which can cause damage. It is largely due to their work that this Code of Practice has been made possible. The provisions in the code, and its publication, have been recommended by my Industrial Health Advisory Committee on which both sides of industry are represented. It is the outcome of 12 months’ work by a sub-committee. I regard the publication of the Code as the first important step in the prevention of loss of hearing due to noise at work. It should be considered as a blueprint for action.”
“The Code sets out recommended limits to noise exposure. It should be noted that, on account of the large inherent variations of susceptibility between individuals, these limitations are not in themselves guaranteed to remove all risk of noise-induced hearing loss.”
“There is no doubt that research into the question of what risks to the hearing of employees exposure below 90dB(A)leq posed would have yielded the answer that 90dB(A) was not a natural cut off point, and that there were risks to susceptible individuals below that level. Indeed, the 1972 Guidelines themselves made that clear. From the early 1970s, certainly by 1976 with the publication of BS5330 and of lS0 1999 in the previous year, the information was available if researched to give an indication of the level of the risk.”
“… the overall test is still the conduct of the reasonable and prudent employer, taking positive thought for the safety of his workers in the light of what he knows or ought to know; where there is a recognised and general practice which has been followed for a substantial period in similar circumstances without mishap, he is entitled to follow it, unless in the light of common sense or newer knowledge it is clearly bad; but, where there is developing knowledge, he must keep reasonably abreast of it and not be too slow to apply it … He must weigh up the risk in terms of the likelihood of injury occurring and the potential consequences if it does; and he must balance against this the probable effectiveness of the precautions that can be taken to meet it and the expense and inconvenience they involve. If he is found to have fallen below the standard to be properly expected of a reasonable and prudent employer in these respects, he is negligent.”
“… from July 1976, there was a method available which could be used by anyone with a modest degree of mathematical skill. Certainly any consultant acoustic engineer could have used the British Standard method. Accordingly, I conclude that by late 1976 or early 1977, the average-sized employer in the knitting industry could and should have been able to make an informed assessment of the quantum of risk arising from the below 90dB(A)lepd noise in his workshops. As I have said above, this assessment would have led the employer to broadly the same conclusion as was reached by Judge Inglis. Once that assessment had been made, it could not in my judgment be said that it was not reasonably practicable to provide ear protectors.”
“The evidence does not show that at any time the cost of implementing a policy of voluntary hearing protection at levels below 90dB(A) was such that a reasonable employer could use cost or difficulty as a valid reason for not having such a policy.”
“… There was evidence given by the expert witness engineers for Courtaulds (Mr Bramer and Mr Currie) about the approach to control of noise in the period from the 1970s in industry. The report of Mr Worthington for Pretty Polly and Guy Warwick is also in evidence. To Mr Bramer, the guidance in Noise and the Worker and the 1972 Guidelines provided a “clear and consistent recommendation to employers as to how they ought to deal with noise in the workplace”
“One must be careful, when considering documents culled for the purpose of a trial, and studied by reference to a single isolated issue, not to forget that they once formed part of a flood of print on numerous aspects of industrial life, in which many items were bound to be overlooked. However conscientious the employer, he cannot read every textbook and periodical, attend every exhibition and conference, on every technical issue which might arise in the course of his business; nor can he necessarily be expected to grasp the importance of every single item which he comes across.”
“Section 288. Presumption that updating construction to be given (1) With regard to the question of an updating construction, Acts can be divided into two categories, namely the usual case of the Act that is intended to develop in meaning with developing circumstances (in this Code called an ongoing Act) and the comparatively rare case of the Act that is intended to be of unchanging effect (a fixed-time Act). (2) It is presumed that Parliament intends the court to apply to an ongoing Act a construction that continuously updates its wording to allow for changes since the Act was initially framed (an updating construction). While it remains law, it is to be treated as always speaking. This means that in its application on any date, the language of the Act, though necessarily embedded in its own time, is nevertheless to be construed in accordance with the need to treat it as current law. (3) A fixed-time Act is intended to be applied in the same way whatever changes might occur after its passing. Updating construction is not therefore applied to it. (4) Where, owing to developments occurring since the original passing of an enactment, a counter-mischief comes into existence or increases, it is presumed that Parliament intends the court so to construe the enactment as to minimise the adverse effects of the counter-mischief. …”
“In interpreting an Act of Parliament it is proper, and indeed necessary, to have regard to the state of affairs existing, and known by Parliament to be existing, at the time. It is a fair presumption that Parliament’s policy or intention is directed to that state of affairs. Leaving aside cases of omission by inadvertence, this being not such a case, when a new state of affairs, or a fresh set of facts bearing on policy, comes into existence, the courts have to consider whether they fall within the parliamentary intention. They may be held to do so, if they fall within the same genus of facts as those to which the expressed policy has been formulated. They may also be held to do so if there can be detected a clear purpose in the legislation which can only be fulfilled if the extension is made. How liberally these principles may be applied must depend upon the nature of the enactment, and the strictness or otherwise of the words in which it has been expressed.”
“… for the purpose of considering whether the defendant has discharged the onus which rests upon him to establish that it was not reasonably practicable for him, in the circumstances, to eliminate the relevant risk, there has to be taken into account (inter alia) the likelihood of that risk eventuating. The degree of likelihood is an important element in the equation. It follows that the effect is to bring into play forseeability in the sense of likelihood of the incidence of the relevant risk, and that the likelihood of such risk eventuating has to be weighed against the means, including cost, necessary to eliminate it.”
“There shall, so far as is reasonably practicable, be provided and maintained safe means of access to every place at which any person has at any time to work, and every such place shall, so far as is reasonably practicable, be made and kept safe for any person working there.”
“... sufficient safe means of access shall so far as is reasonably practicable be provided to every place at which any person has at any time to work.”
“(v) When is access – or place – unsafe? ‘Safe’ is, however, a simple English word and there is no reason why it should not be decided as a pure question of fact whether a place is ‘safe’ or not. Unfortunately, the vague and uncertain notion of foreseeability has been introduced as a test.”
“To treat the onus as being on the pursuer seems to equiparate the duty under the statute to the duty under common law, namely, to take such steps as are reasonably practicable to keep the working place safe. I cannot think that the section was intended to place such a limited obligation on employers.”
“(1) Every dangerous part of any machinery … shall be securely fenced unless it is in such a position or of such construction as to be as safe to every person employed or working on the premises as it would be if securely fenced. …”
“In my opinion, the construction of section 29(1) must depend upon the wording of that section itself. Since Nimmo the obligation under the section must be read as being that every working place shall be made and kept safe. If that obligation has not been met then it may be open to the employers to invoke the qualification that it was not reasonably practicable for them to prevent the breach and it may well be that reasonable foreseeability has a part to play in that. As considerations of reasonable practicability involve weighing the degree and extent of risk on the one hand against the time, trouble and expense of preventing it on the other, quite clearly foreseeability comes into the matter as it is impossible to assess the degree of risk in any other way. To that extent I agree that reasonable foreseeability can play its part in a consideration of section 29(1) but only at the later stage of considering whether the employers have discharged the onus upon them of showing that there were no reasonably practicable precautions which could have been taken. The initial part of the section is, in my view, clear. The duty is to make the working place safe. That means that there is a duty to prevent any risk of injury arising from the state or condition of the working place. There is nothing whatever in the section to suggest that the obligation is only to prevent any risk arising if that risk is of a reasonably foreseeable nature. Had that been the intention of Parliament it would have been perfectly simple for Parliament to have said so. If the duty had only been to take reasonably practicable precautions against reasonably foreseeable risks it is difficult to see how this section would have added anything of substance to the common law. Where the statute is designed to protect the safety of workmen it is, in my view, not appropriate to read into the statute qualifications which derogate from that purpose. It cannot be said that this reading of section 29 imposes an intolerable or impossible burden upon employers. They have the opportunity of establishing that there were no practicable precautions which could have been taken to prevent their breach of obligation. If they can do so they have a complete answer both to civil and criminal liability even though they are prima facie in breach of their obligation. This puts section 29 into an entirely different category from section 14 and I see no legitimate reason for forcing a construction upon section 29 which its plain words will not bear just because in the different context of section 14 the word ‘dangerous’ has been construed in a particular way.”
“… I do not consider that it is appropriate to equiparate section 14 with section 29, with particular reference to the line of authority construing the word ‘dangerous’ in section 14. In my opinion that issue arises under that section in order to determine the scope of the section in the particular instance and indeed whether it applies at all. Whether rightly or wrongly, accordingly, the fact that the courts have interpreted ‘dangerous’ under reference to reasonable foreseeability does not mean that necessarily the same criteria should apply when considering a different provision raising the questions of safety, particularly where that latter provision is qualified by a so called escape clause, viz reasonable practicability, and section 14, when it comes to breach, is absolute. I do not consider that it is appropriate to apply the law which limits or determines the scope of section 14 before considering a breach of it, to what constitutes a breach of section 29(1) under reference to safety or lack of it. I therefore consider that section 29(1) stands on its own and authorities relating to section 14 fall to be ignored. … While, as a matter of English language, ‘safe’ may be the converse of ‘dangerous’, in my opinion section 29 has to stand on its own and be construed as such.”
“The obvious starting point in my opinion is that the wording of the section, putting aside the qualification, does not admit immediately any reference to reasonable foreseeability. The verb ‘shall’ is relentless and the phrase ‘made and kept safe’, if looked at on the basis of made and kept ‘accident free’, would immediately admit a construction so far as these words go that if an accident occurs within the workplace and related to it … the pursuer need prove no more. The defender then can raise the issue of reasonable practicability on any basis that he thinks fit.”
“The answer is that he is to ensure the health and safety at work of all his employees, and that persons not in his employment are not exposed to risks to their health and safety. These duties are expressed in general terms, as the heading to this group of sections indicates. They are designed to achieve the purposes described in section 1(1)(a) and (b). The description in section 2(2) of the matters to which the duty in section 2(1) extends does not detract from the generality of that duty. They describe a result which the employer must achieve or prevent. These duties are not, of course, absolute. They are qualified by the words ‘so far as is reasonably practicable’. If that result is not achieved the employer will be in breach of his statutory duty, unless he can show that it was not reasonably practicable for him to do more than was done to satisfy it.”
“Section 29(1) of the Factories Act 1961 , which was considered in Nimmo, took that form. So too do sections 2(1) and 3(1) of the 1974 Act. It is the result that these duties prescribe, not any particular means of achieving it.”
“The framework which the statute creates is intended to be a constructive one, not excessively burdensome. … The law does not aim to create an environment that is entirely risk free. It concerns itself with risks that are material. That, in effect, is what the word ‘risk’ which the statute uses means. It is directed at situations where there is a material risk to health and safety, which any reasonable person would appreciate and take steps to guard against.”
“Section 6(1)(a) of the 1974 Act imposes a duty to ensure, so far as is reasonably practicable, that machinery is so designed and constructed that it will be safe. The effect of regulations 11 and 12(1)(e) of the 1992 Regulations is to prohibit the supply of machinery which is not ‘in fact safe’. So far there is no difficulty. But ‘safe’ is not an absolute standard. There may be differences of view on whether the degree of safety of a particular piece of machinery is acceptable. Unlike the 1974 Act, the 1992 Regulations define what is meant by safe. At once there may be room for argument that the standards set by the Act and the Regulations are not necessarily the same. This in itself is not satisfactory. As already noted, the inhibiting effect of differently-worded provisions having much the same result was one of the matters the Machinery Directive was specifically intended to eradicate: see recital 6 in the preamble.”
“In considering what is practicable, account must be taken of the state of knowledge at the time. A defendant cannot be held liable for failing to use a method which, at the material time, had not been invented: Adsett v K and L Steelfounders and Engineers Ltd[1953] 2 All ER 320 ; nor for failing to take measures against a danger which was not known to exist: Richards v Highway Ironfounders (West Bromwich) Ltd[1955] 3 All ER 205 .”