Hearing-loss claim derailed

Harris v BRB (Residuary) and another (Court of Appeal - 18 July 2005)

The claimant brought a claim for noise-induced hearing loss, resulting from employment with the defendants as a train driver between 1974 and 1999. At first instance, the court found that he was exposed to noise levels in excess of 85dB(A) averaged over an eight-hour day but despite this being below the legally recognised 'negligent threshold' of 90dB(A) for the pre-1990 period, his employers could still be liable for the exposure before 1990, due to earlier actual knowledge of the risk to hearing at this lower level.

The claim failed, however, because the safety considerations dictated that hearing protection should not be worn by train drivers and there may have been a reluctance to use such protection in any event.

The Court of Appeal upheld the findings regarding the actual noise levels and, while reiterating that liability of employers for exposure before 1990 would generally still arise only where the noise exceeds 90dB(A), it found in this case that the defendants knew that lower exposure could give rise to injury and, therefore, a duty of care arose at the lower level.

Crucially, the Court of Appeal also overturned the lower court's finding that the provision of hearing protection would have been impractical and, therefore, the defendants were found liable to the claimant. Whether or not there would have been a reluctance to wear protection was considered irrelevant to primary liability, as there was no obligation to wear it, just for the employer to provide it and advise on its use.

Comment: This case follows several other noise-induced hearing loss decisions involving large employers who had a greater-than-average knowledge of the risks and, therefore, bore a greater-than-average responsibility.

While the general rule for events prior to 1990, that precautions only needed to have been taken to protect the hearing of employees once noise levels reach 90dB(A), it may be that larger employers will be increasingly challenged on their knowledge of the risks in an attempt to establish a lower negligent threshold at an earlier date. Nigel Lock, BLM London.

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