Deafness Claims News.

 

National Accreditation awarded to Oliver & Co.

Oliver and Co. Solicitors has achieved recognition in a national accreditation scheme designed to assist injured people seeking legal advice.

The scheme, which is run by the Association of Personal Injury Lawyers (APIL) assesses lawyers according to their expertise and experience, and provides a quality ‘kitemark’ to those who meet the strict criteria.

Rhonwen Barraclough, one of our APIL Senior Litigators, is a specialist  industrial disease solicitor is delighted the firm has gained the accreditation status.

“It is crucial that injured people receive properly qualified advice in their time of need and we are very proud to have been recognised for our expertise and professionalism,” she said.

 

Newsflash

Previously, under the common law, prior to 1989, a claimant would have prove that they had been exposed to noise levels exceeding 90 decibels in order to establish that there was a foreseeable risk of injury which the employer failed to prevent.

However, a recent Court of Appeal decision appears to have lowered the threshold to 85 decibels from as early as the mid 1970s onwards.

In Stephanie Baker v Quantum Clothing, Meridian Ltd and Pretty Polly Limited (Nottinghamshire and Derbyshire Deafness Litigation) Group Test Case Litigation [2009] EWCA Civ 499, the claimant appealed the first instance decision of the Trial Judge.  He had found that:- 

• There was no duty on an employer at common law to provide hearing protection at 85 – 89 decibels until January 1989 for an average employer and January 1985 for employers with more than average knowledge.

• The duty under the Factories Act 1961 did not add materially to the duty at common law.

The Court of Appeal disagreed.  Sedley, Janet Smith and Jacob LJJ held that:

 

Employers’ Duties

• An employer with ordinary or average knowledge of the risks of exposure to noise had a duty under the common law to provide hearing protection from January 1988;

• An employer with more than ordinary or average knowledge of the risks of exposure to noise had a duty under the common law to provide hearing protection from January 1985;

• The Factories Act 1961, and in particular, the duty under the s 29(1) places a greater responsibility on the employer than the common law position.  Under s 29(1), so far as is reasonably practicable, employers are required to make and keep safe the workplace for any person working there.  Under the Act, the safety of the place of work is to be judged objectively.  This means an employer cannot rely on the defence that the injury was not reasonably foreseeable or by relying upon what was considered to be an acceptable risk at the time.

• If an employee suffers deafness after having been exposed to noise of 85 dB(A), it follows that his place of work was not safe.  If the employer is aware that a minority of people will suffer hearing loss as a result of exposure to 85 dB(A), then the  workforce as a whole is not safe because of the risk of injury.  

• Where the exposure is 85 decibels, an employer can only escape liability if he can prove that it was not reasonably practicable for him to remove or reduce the risk of injury (e.g. hearing loss).   Under the Factories Act, the employer’s duty is assessed by reference to what is reasonably practicable.  Consequently, the employer must be able to show that the time, trouble and expense of providing appropriate protection would substantially outweigh the risk involved.   

 

Date by which employers should have acted

• According to the Court of Appeal, all employers in the knitting industry should have been aware of the 1972 Code of Practice within a few months of publication.  By mid 1973, those employers should have considered the issue of noise and arranged for noise surveys to be carried out.  By mid 1974, they should have realised that some employees who were exposed to levels between 85 and 89 dB(A) were at risk of harm. The employers then had a duty to do what was reasonably practicable to reduce or remove the risk.

• The publication of BS 5330 in July 1976 would have enabled the average sized employer in the knitting industry to have made an informed assessment of the extent of the risk by early 1977.

• Hearing protection would have provided adequate protection.  These are neither difficult nor expensive to provide.   The Court of Appeal allowed for a further 9 months for appropriate procedures to be put in place so that hearing protection should have been provided by all employers in the knitting industry by January 1978.

 

Proviso

It is important to note that the Defendants are likely to make an application for leave to appeal to the House of Lords.