Not aloud
Date: 18 September 2009
Authors: Robert Weir
Issue: Online only
Categories: Features, Employment, Personal injury
It is now more than 16 years since the Six-Pack Regulations (Usdaw Guide to the 1992 Health and Safety regulations), setting new health and safety duties on employers, came into force. Yet the old health and safety rules still have a role to play as shown by Baker v Quantum Clothing Group and others [2009] EWCA Civ 499, [2009] All ER (D) 205 (May) in which the claimant employee relied upon s 29 of the Factories Act 1961 (FaA 1961) in her claim for noise-induced deafness suffered in the 1970s and 1980s.
The importance of the decision of the Court of Appeal in Baker lies in the approach that Lady Justice Smith took to defining safety under s 29. Whether a place of work is unsafe is a question of fact. That it may have been unforeseeable to the employer that the place was unsafe is irrelevant. The test for safety is strict. By so deciding, Smith LJ was finding that the statutory duty imposed a signally higher duty than the common law, an approach subsequently echoed by many of the duties under the Six-Pack Regulations.
The facts
The claimant employee’s case was run with a handful of others as test cases for a much larger group of employees all of whom had been exposed to noise above 80 dB(A)lepd and below 90 dB(A)lepd working in the knitting industry through the 1970s and 1980s.
The noise of the machines could not be reduced. The allegation was that ear protectors should have been offered to the employees. Previous case law had established that at common law a duty was owed throughout this period to provide ear protectors where the noise exposure was over 90 dB(A)lepd. This case sought to resolve whether the same duty was owed where the exposure was in the 80–90 bracket.
The literature produced in the early 1970s did indicate that prolonged noise exposure between 85 and 90 dB(A)lepd led to a real risk of significant hearing loss in at least a substantial minority of individuals. At the same time, it was not until the 1980s that the literature highlighted the need to protect employees exposed to noise in the 85–90 dB(A)lepd bracket.
At first instance, the judge held that there was no duty at any stage to protect employees against exposure to noise below 85 dB(A)lepd. There was no appeal against that finding.
Above 85 dB(A)lepd, the judge held that the common law duty to provide ear protectors did not arise until the late 1980s. The duty under s 29 of FaA 1961 added nothing because whether the place of work was safe depended on the standard which ought reasonably to have been adopted by employers at the relevant time. In other words, the statutory duty added nothing to the common law duty.
The decision of the Court of Appeal
Smith LJ, in her leading judgment, focused on the statutory duty under s 29 of FaA 1961 which provides that every place of work “shall, so far as reasonably practicable, be made and kept safe” for employees.
The duty thus falls into two parts: there is a duty to make and keep the place of work safe. If that is broken, it is established case law that it is for the employer to plead and prove that it was not reasonably practicable to avoid the place of work being unsafe.
On the first part, the question arises as to what it means to describe a place of work as unsafe. The claimant’s primary case was that this was an objective matter to which foresight of risk was irrelevant. If, with the benefit of hindsight, it could now be seen that a place of work was unsafe, it must have been unsafe at all times at which the same conditions had prevailed. The defendant’s case was that “safe” was the converse of “dangerous”. So a working place was safe if there was nothing there which might be a reasonably foreseeable cause of injury to anyone working there.
“Safe” is a simple English word
Smith LJ accepted the claimant’s submissions. She followed an earlier decision of the Court of Appeal, Larner v British Steel Plc [1993] ICR 551, in which it had been held that “safe” was a simple English word and there was no reason why the safety of a place of work should not be decided as a pure question of fact. So the issue of what the employer could reasonably foresee was irrelevant.
Either a place of work was safe or it was not. In this way, the statutory intention, namely to provide protection to employees, was fulfilled.
As a significant minority of employees would likely suffer serious deafness as a result of exposure to noise above 85 dB(A)lepd, it followed that the place of work was unsafe at all times.
Defence of reasonable practicability
Smith LJ then went on to determine whether the employer had made out its defence that it was not reasonably practicable to avoid the place of work being unsafe.
At this stage, reasonable foreseeability came to the fore. If the employer did not know of the risk of noise exposure and could not reasonably have been expected to know of it, it followed that it could not have been reasonably practicable for the employer to take any steps at all.
Section 29 could, therefore, only be breached after the date when the employer knew or should have known that exposure to over 85 dB(A)lepd risked injury to a significant minority of employees. This date was found to be mid-1974, following publication of a Code of Practice in 1972.
It was then open to the employer to show that it was not reasonably practicable from that date to avoid the exposure to noise. Smith LJ accepted that it would not have been until 1977 that employers could be expected to have undertaken actual assessments in their factories. Allowing six to nine months for the provision of ear protectors, the date by which action should have been taken was January 1978.
This was 10 years earlier than the date for breach of the common law duty for the average employer, namely January 1988.
Was the decision of the Court of Appeal correct?
The decision in Barker may have followed the earlier Court of Appeal decision in Larner. But Larner did not follow the Court of Appeal decision of Allen v Avon Rubber Co Ltd [1986] ICR 695 in which it had been held that a place of work was safe under s 29, FaA 1961 if it was or contained a reasonably foreseeable cause of injury to anybody acting in a way in which a human being might be reasonably expected to act in circumstances which might be reasonably expected to occur.
Oddly, Allen was not drawn to the Court of Appeal’s attention in Larner and nor does it appear in the judgment of Smith LJ in Barker.
In the light of the existence of these conflicting authorities, it is not surprising that the defendant in Barker has petitioned the (soon to be) Supreme Court. Whether permission to appeal is granted remains to be seen.
The claimant’s strongest argument is surely that the duty under s 29 is split into two parts. The existence of the “reasonable practicability” defence allows the issue of reasonable foreseeability to enter the equation.
The position can be contrasted with strict duties. So under s 14 of FaA 1961, which imposes a strict duty to fence dangerous parts of a machine, the question of what is dangerous depends on whether it is reasonably foreseeable that a person might be injured by the machine.
Likewise, under the Six-Pack Regulations, a number of strict duties embrace the concept of reasonable foreseeability. So reg 4 of the Provision and Use of Work Equipment Regulations 1998 (PUWER), which imposes a duty on the employer to ensure that work equipment is so constructed as to be suitable for the purpose for which it is used, defines suitable as “suitable in any respect which it is reasonably foreseeable will affect the health and safety of any person”.
The ability of the defendant to rely on reasonable foreseeability at the stage of arguing reasonable practicability, therefore, removes some of the heat from the defendant’s complaint. However, the Barker decision does lead to the anomaly that “safe” means two different things depending on whether the word is used under s 29 or as part of the common law duty of care to provide safe premises.
Likewise, the word “safe” under s 29 FaA 1961 is not the converse of the word “dangerous” under s 14 of the same Act.
The duty under s 29 is, so far as is reasonably practicable, to provide a safe place of work. The decision reached was that the failure to provide ear protectors by 1978 rendered the defendant in breach of duty. It can surely be questioned why it is that the presence or absence of ear protectors should affect the safety of a place of work.
Implications of this decision
At the heart of Barker is a decision by the Court of Appeal that the statutory duty under FaA 1961 imposes a substantively higher duty than that of the common law.
The defendant’s case reduces to one that s 29 does no more than reverse the burden of proving that taking a step is not reasonably practicable. In rejecting this, the Court of Appeal have favoured an analysis that the first stage of the duty, here one to keep the place of work “safe”, involves no consideration of the issue of reasonable foreseeability at all.
Surprisingly, this approach has yet to be adopted wholesale to the Six-Pack Regulations. In the context, for instance, of the Manual Handling Operations Regulations 1992, the entry duty reg 4(1) requires the employer to avoid the need, so far as is reasonably practicable, for any manual handling operation “involving a risk of injury”.
Yet the Court of Appeal has still left open whether a “risk of injury” involves a reasonably foreseeable risk of injury or a simple question of fact: see Koonjul v Thameslink Healthcare Services NHS Trust [2000] PIQR P123 and Bennetts v Ministry of Defence [2004] EWCA Civ 486, [2004] All ER (D) 310 (Mar).
The position under reg 12(3) of the Workplace (Health, Safety and Welfare) Regulations 1992 is at least clear. This regulation imposes a duty so far as is reasonably practicable to keep a floor free of substances which may cause a person to slip.
In Bassie v Merseyside Fire & Civil Defence Authority [2005] EWCA Civ 1474, [2005] All ER (D) 11 (Nov), the Court of Appeal held that there is no question of knowledge or foreseeability at the point of determining whether the substance may cause a person to slip.
Even where the duty under the Six-Pack Regulations is strict, it may be questioned whether there is always a need to invoke reasonable foreseeability. While reg 4 of PUWER, referred to earlier, expressly defines suitable by reference to reasonable foreseeability, in Robb v Salamis (M&I) Ltd [2006] UKHL 56, [2006] All ER (D) 191 (Dec), Lord Clyde queried whether this was an appropriate implementation of the underlying Framework Directive.
Robert Weir is a barrister at Devereux Chambers.
E-mail: weir@devchambers.co.uk
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