TEXTILE INDUSTRY DEAFNESS CLAIMS A. JOHN WILLIAMS John has extensive experience of industrial accident & industrial disease work mainly (but not exclusively) for Insurers. These include the following types of cases: lung disease, occupational asthma, upper limb disorder, stress at work and deafness. Textile Industry Deafness Claims 1. In 2005 & 2006 advertising campaigns were run in Nottinghamshire & Derbyshire soliciting former textile workers in the Midlands to bring claims for noise induced hearing loss against their former employers. In November 2004 HH Judge Inglis convened a Litigation Meeting at Nottingham County Court to identify common issues and determine how the claims should be managed. The claimant firms who attended this meeting told the Judge that some 1,600 cases had been intimated. A total of 10 cases were subsequently selected as test cases and transferred to the High Court for trial. All other issued claims (c700 in total) were stayed pending the outcome of the test cases. 2. In the event, 7 test cases were tried: 2 against Courtaulds group companies (Parkes & Baxter); 3 against Coats group companies (Faulkner, Baker & Moss); 1 against Pretty Polly (Grabowski) & 1 against Guy Warwick Limited (Hooley). Guy Warwick Limited was chosen as a representative of the smaller workshops that were not run by the industry leaders. The Courtaulds Defendants were represented by Christopher Purchas QC & Catherine Foster. Guy Warwick Limited was represented by Michael Kent QC & A.John Williams 3. Typical noise levels in the knitwear & making-up factories where the test claimants worked were significantly lower than the noise levels experienced by workers in heavy industry such as shipbuilding & mining. The range of average noise exposure as found by the Judge was 80 db(a) (Mrs Hooley working on
garment presses) to 85/87 db(a) (Mrs Grabowski working as a overlocker). Exposure at these levels gave rise to arguments on breach of duty and diagnosis & causation. The Common Law Claim 4. The Claimants raised a novel & far reaching argument in respect of liability at common law. In short, they argued that conventionally accepted data published in 1973 (the NPL Tables) showed that exposure to relatively low levels of noise (as low as 80 db(a)) would, over time, produce a risk of injury to hearing amongst susceptible employees. The existence of this data in the public domain meant employers could not claim they did not know that there was a risk of injury. The Claimants argued that Government guidance ( Noise & the Worker first published in 1963 & the 1972 Code of Practice) made it clear that the suggested guideline maxima were not to be taken as safe levels of exposure. Since risk to hearing was obviously a matter for specialist advice, employers must be taken to have the knowledge that they would have had if they had taken such advice. Had the employers taken specialist advice, it was argued, they would have been advised to implement a number of protective measures. In the event, the employers in the test cases either failed to take these steps at all or, alternatively, were too slow to take these steps & were therefore in breach of duty. 5. Although there have been cases at first instance (e.g. Cropper v Ford Motor Co Liverpool County Court, 1972 &, more recently, Harris v BRB (Residuary) Limited [2005] EWCA Civ 900) where employers have been found liable at common law to compensate employees exposed to levels of noise below 90 db(a), these cases have turned on the special knowledge possessed by the large employers in question. Although the Claimants raised arguments as to special knowledge against Courtaulds, Coats & Pretty Polly (with varying degrees of success), they maintained that all employers should have appreciated the risk of injury to susceptible employees & should have acted on that risk of injury. This argument was of general application & would (if successful) have opened the floodgates to multiple NIHL claims in a wide range of industries. 6. In his judgment the Judge undertook a thorough review of the scientific literature regarding the risk to employees from exposure to noise below 90 db(a).the published literature on this topic reveals that the data used for hearing loss caused by noise below 85 db(a) is not direct scientific data but depends on extrapolation from data recording the effects of noise on people exposed at higher levels. In oral evidence Professor Lutman (giving evidence on behalf of the Claimants) acknowledged that the NPL Tables are less accurate below 90 db(a) as they tend to exaggerate the effects of noise. He accepted that, for noise levels below 85 db(a), the expectation is that hearing losses will be very small. These losses are measurable in population terms but very difficult to identify in individuals using conventional measurement techniques. 7. Having reviewed the literature & oral evidence on the issue of risk, the Judge concluded that the risk of identifiable hearing loss from noise at those levels is very low, and there is a degree of uncertainty about whether the figures are robust enough to translate into actual losses to be expected in individual people at all. Overall, the risk below 85 db(a) was minimal. Above 85 db(a) the risk accelerates up to 90 db(a) & that in the high 80 s, given long enough exposure, significant hearing loss may be expected in at least a substantial minority of individuals. 8. On the issue of breach of duty, the Judge considered in some detail the moves towards regulation culminating in the Noise at Work Regulations 1989 &, now, the Control of Noise at Work Regulations 2005. This provided the context for the evidence on the general approach of employers to noise in industry and the evidence on the approach taken by the individual employers in the test cases.
9. As to the general approach of employers, the Judge found that experts advising industrial clients in the 1970 s & up to the late 1980 s used the 1972 Code of Practice as the basis for advice that the relevant level was a daily personal noise exposure of 90 db(a). The NPL Tables were not used in practice by noise professionals to predict the level of risk. Furthermore, the HSE concentrated their advice & enforcement on the 90 db(a) level. 10. As for the individual employers, the Judge reviewed the disclosure documents and oral evidence relating thereto in order to make findings of fact as to the way in which the individual Defendants had addressed the issue of noise. Courtaulds had the resources to look beyond the 1972 Code of Practice & there was evidence that it had indeed done so. In its case, the Judge held that it had the requisite knowledge of risks above 85 db(a) by the beginning of 1983 at the latest. Similarly, disclosure from Pretty Polly allowed the Judge to fix a date of knowledge in their case at the beginning of 1983.Coats did not operate a central health & safety function & the individual companies run by group companies were run largely independently. Having reviewed the oral evidence adduced by Coats, the Judge found that the group company in question did not have a greater than average degree of knowledge. Guy Warwick Limited (a much smaller company) had no knowledge at all of the risks of noise. It argued that the 1972 Code of Practice was the only relevant standard throughout the period under consideration; that this specified a level of risk that should not be exceeded and that an employer would be justified in taking the view from reading the Code that the advice was authoritative and had taken into the account the residual nature of the risk below 90 db(a) when setting the maximum acceptable limit. 11. Applying the well known dictum of Swanwick J in Stokes v Guest Keen & Nettlefold Limited [1968] 1WLR 1776 at 1783, the Judge held that, absent special knowledge, employers who conformed to the maximum acceptable level of exposure in the 1972 Code were not in breach of the common law duty of care owed to employees who were exposed to noise above 80 db(a) but below 90 db(a).employers who lacked greater than average knowledge & who complied with the Code met the standards of a reasonable & prudent employer during the 1970s & 1980s at least up until the 1987 consultative document that preceded the Noise at Work Regulations 1989. Both Courtaulds & Pretty Polly did however have greater than average knowledge & the Judge concluded that they would have been in breach of duty from the beginning of 1985 if they had not provided employees with the opportunity to use hearing protection. Factories Act 1961 12. The Claimants also alleged breach of s29 of the Factories Act 1961. Their argument here, founded on Larner v British Steel [1993] 4 All ER 102, was that s29 imposed an absolute primary duty and that the concept of safety was not qualified by any question of forseeability. The Judge noted that, in Larner, there was no dispute about whether or not the machinery in question was in fact unsafe. This was to be contrasted with the present case. The Judge held that the safety of a place of work is an objective question of fact to be answered in light of all the circumstances prevailing at the time including what might reasonably have been foreseen by an employer. The standard is the general standard which ought reasonably to have been adopted by employers at the relevant time i.e. not to expose employees to a noise level exceeding 90 db(a). 13. The Judge rejected a submission made on behalf of Courtaulds that s29 applied only to the state of the premises themselves & did not extend to permanent operations which involved the generation of noise.
Diagnosis & Disability 14. Given his conclusions on liability, it was not necessary for the Judge to rule on other areas of controversy. Mindful however that the stayed claims might raise some of these issues, the Judge also dealt with questions of diagnosis & quantification of disability. 15. The Judge noted that, at the levels of noise exposure with which he was concerned, it was unsurprising that diagnosis was in issue. At these levels, a history of noise exposure does not prove the cause of the loss. 16. The Judge heard from a number of experts on the issue of diagnosis. He also considered the utility of the Guidelines on the Diagnosis of Noise Induced Hearing Loss for Medico-Legal Purposes published by Coles Lutman & Buffin in 2000.He concluded that, in cases of this nature, the criteria for diagnosis of NIHL had to be robust and cannot depend on clinical judgment without adequate reasons or on a history of noise exposure alone. The Judge identified the following as necessary to support a diagnosis: (1) A history of noise exposure such that it may give rise to identifiable noise damage. A history of noise exposure between 80-85 db(a) does not absolutely prevent a finding of NIHL because such loss in some degree is possible in the most sensitive percentiles, but the more exposure falls below 85 db(a), the less likely that it is a diagnosis can be made. In the low 80s, diagnosis will not be likely without the clearest evidence; the more it rises above 85 the greater the possibility of such a finding. (2) A clear picture on the audiogram that exhibits a notch or dip at about 4khz at least 10 db deep and bilateral (unless asymmetry is explained by some other condition). (3) A history of noise alone without clear confirmation from the audiogram is not enough. (4) The absence of hearing impairment somewhere in the range 3-6 khz to a degree greater than the sort of loss generally to be expected as a result of ageing goes in the scales against a diagnosis of NIHL, particularly if that is done after adjustment from the median to account for the apparent characteristics of the claimant, but this is only one factor. 17. The Judge did not consider in any detail the issue of adjustments from the median although he noted that the Guidelines paper provides a mechanism for deciding what component of hearing loss is noise induced & for determining whether presbyacusis is affecting the claimant more, or less, severely than the median would predict. 18. On the issue of quantification of hearing loss, the Judge rejected the use of a low fence to deny compensation. The use of a low fence makes no allowance for the fact that impairment may develop only in later life once the NIHL is added to presbyacusis. Having heard oral evidence from a number of experts criticising the Black Book, the Judge agreed that the Black Book approach to the quantification of NIHL where the percentage of disability is low (under 10%) lacks usefulness. At these levels, the critical decision remains that of diagnosis, which will not be possible without the application of a robust approach in which real impairment is evidenced. Other Points 19. A number of other points emerge from the judgment.
(1) Damages should always be assessed by reference to the amount of hearing loss attributable to noise rather than the whole of the hearing loss, including age. (2) The Judge noted a dispute between some of the medical experts as to whether or not tinnitus associated with hearing loss should always be ascribed to the same causes as the hearing loss. The conventional view is that this is the correct approach but this was challenged on the basis of literature that indicates that noise induced tinnitus matches in frequency to 2 khz and above & that, therefore, tinnitus that matches at lower frequencies cannot be taken to have been caused by noise. The Judge was not asked to resolve this issue by reference to the literature & he noted that, in another case, the evidence might be more complete. On the evidence before him, the Judge preferred the conventional view. (3) The Judge was not invited to consider the issue of apportionment in detail & was content therefore to take a simple time-based apportionment. He noted however that the literature (& the judgment of Mustill J in Thompson v Smiths Ship Repairers [1984] QB 405) indicates there should be a weighting towards the first 10-15 years as these are the years when most damage is done. (4) Although the Judge had heard evidence from a large number of witnesses to the effect that they had to shout in order to communicate with each other in the workplace, he concluded that this evidence should yield to the scientific (engineering) evidence regarding noise levels in the individual factories. The Decisions in Individual Cases 20. In the event, only 1 of the test claimants (Baker) was able to prove NIHL. Her claim however failed because her noise exposure did not exceed 90 db(a) (the Judge found it was 85-86 db(a)) and her employers, Coats, lacked the special knowledge that required them to apply a higher standard than the maximum noise level set out in the 1972 Code of Practice. In another case (Grabowski) the Judge found that the Defendant (Pretty Polly) was in breach of duty for a period of approximately 2 years but that no damage had been proved. All of the other test Claimants failed to prove exposure above 85 db(a) and failed to prove NIHL. Comments 21. This judgment is one of the most thorough and comprehensive reviews of noise induced deafness since the landmark case of Thompson. Its significance lies in the rejection of the Claimants attempts to use the NPL Tables to by-pass the 1972 Code of Practice so as to impose liability at common law for exposure to noise at levels between 80 db(a) & 90 db(a) & in the rejection of the Claimants arguments that s29 of the Factories Act 1961 imposes an absolute duty. The judgment also sets out the Court s approach to diagnosis of NIHL in cases of low level exposure &, in so doing, rejects the notion that a history of noise exposure is, by itself, sufficient to support a diagnosis. The robust diagnostic criteria set out by the Judge will act as a brake on future claims for NIHL based on low level exposure. In addition, the judgment contains a valuable discussion of the assessment of disability in NIHL claims &, in particular, the use of the Black Book to assess disability. 22. In his judgment, the Judge noted that the most recent statutory Regulations (the Control of Noise at Work Regulations 2005) are intended to enable employees to avoid any risk of damage to hearing from noise. Given the present state of scientific research on the causes of hearing loss & the consequent adoption by the
Court of robust diagnostic criteria where there has been low level exposure, there are likely to be very few successful claims for breach of statutory duty based on exposure to noise levels below 85 db(a). A.JOHN WILLIAMS 14 TH FEBRUARY 2007