Law Bulletin - August 2005

Liability

Hearing damage at 85db

The Court of Appeal has held that English, Welsh and Scottish Railways:

• knew (from information from their medical officer quoting epidemiological studies) from at least 1973 that exposure to noise levels of 85db or over could cause noise induced hearing loss.
• had exposed the claimant – a locomotive driver who worked in the cab from 1974-1999 – to sound above 85 decibels, and that the exposure had been regular and over a significant period, namely 16 years,  accepting lay and expert evidence (Mr Hill, engineer for the claimant/Thompsons)
• owed a duty of care to the claimant in relation to exposure to sound at a level above 85 decibels.
• had failed to show any reasonably practicable reason why ear protectors should not have been provided . Lay evidence with no evidential or expert weight that ear protectors might expose train drivers to a further hazard e.g. not hearing alarms or detonators had been brought by the Defendant .In fact the evidence suggested that they had considered ear protectors in some detail and either wholly overlooked the need or desirability of actually doing anything about it or took the view that it would be easier for them to do nothing about it in case employees objected.
• had not breached Regulation 8 of the Noise at Work Regulations 1989 which requires provision of ear protectors when exposed to noise above 85db only because the claimant had not requested ear protectors as required by that regulation.
• However  it logically followed from this that they must have breached its statutory obligations to H under Regulation 11 of the Regulations as it had failed to provide H with any information in connection with possible risk of damage to hearing, steps for an employee to take to minimise exposure, and steps an employee had to take to obtain ear protectors – the pre-requisite to any request. It was held if H had been given that advice he would have requested ear protectors.

Damages were awarded in the sum of £10,000. There was no apportionment for non-negligent exposure beneath 85db as the case was fought on an “all or nothing” basis.

Comment: this is an important decision re-enforcing that damages can be awarded for exposure between 85-90db rather than accepting 90db as the legal or industry norm as had been the case in the rail industry.

Similar findings had been made against Ford and ICI at first instance where specific knowledge of risks to hearing through noise at this level  had been shown.

As the Court of Appeal had found that it was not shown it was impracticable for train drivers to wear hearing protection, she cannot envisage many alternative jobs where a court would uphold a defence of reasonable practicability in refusing to issue protection .

Leave to Appeal refused. The Defendant may yet petition HL direct.

Harris -v- BRB (Residuary) Ltd & EWS Railway  Limited (2005), CA. 1 8/07/2005