Health & Safety News

Autumn 2011

 

• Gulf War toxin sufferer wins 18-year battle
• Should we tinker with health and safety regs?
• How low will they go?
• New Bill threatens to help nobody but the insurance industry
• Trips and slips in the workplace

 

How low will they go?

Judith Gledhill examines the latest challenge by insurers to historic low-level exposure occupational disease claims

A briefing produced by law firm Keoghs, which acts for defendant insurance companies, about a recent Supreme Court decision on employer liability in workplace deafness claims, sums up the insurance industry’s motives in its latest challenges to compensation claims: clarity, fewer claims and less expense.

The insurers in Baker -v- Quantum Clothing Group Ltd &Ors [2011] UKSC 17 fought a group of test cases involving low level noise exposure on the central issue of not what caused the claimant’s hearing loss, but whether there had been a breach of the employer’s duty of care.

The issue was whether liability existed at common law in negligence and / or under section 29 of the Factories Act 1961 towards an employee who had suffered noise-induced hearing loss due to exposure to noise levels between 85 and 90dB(A) lepd (a measure that indicates exposure at a given intensity of sound over an eight-hour period).

Hearing loss

The High Court found that Mrs Baker had suffered hearing loss due to noise exposure during her employment between 1971 and 1989. However, her claim was dismissed on the basis that her employer had not breached its common law or statutory duty because the noise levels she was exposed to were below the official control limit applicable at the time.

However the Court of Appeal (CA) allowed Mrs Baker’s appeal and also ruled on three other cases involving different employers in the knitwear industry. It said that liability at common law arose in January 1988 for employers with an average degree of knowledge (about the risks of noise induced deafness) and that two of the defendants had greater than average knowledge and were liable from late 1983.

S.29 of the Factories Act states that: “every place at which any person has at any time to work ... shall, so far as is reasonably practicable, be made and kept safe for any person working there.” The CA said that this imposed a more stringent liability than at common law and in particular that what was safe was not confined to official guidance at the time.

In other words, the employers were in breach of their duty of care by exposing workers to noise levels below the control limit of 90dB(A), even though the Department of Employment published guidance in 1972 that a noise exposure limit of 90dB(A) was the threshold that average employers should comply with.

The CA held that employers should have known that hearing damage could occur at levels below that standard.

The Supreme Court disagreed. It said that the 1972 guidance was official and clear and set an appropriate standard on which a “reasonable and prudent employer could legitimately rely in conducting his business until the late 1980s”. Revised guidance was issued in 1988, which lowered the control limit to 85dB(A) from January 1990.

The Supreme Court stated: “What is safe is a relative concept that must be judged having regard to general knowledge and the standards at the time of the alleged breach of duty”

And so the decision in Baker handed insurers a shield of official guidance on what was perceived to be acceptable exposure levels even if it subsequently transpired that the standard of the day was unsafe.

Mesothelioma cases

Baker now appears to have encouraged a switch of tactics by insurers in mesothelioma cases. Having tried, with mixed fortunes in recent years, to avoid or limit liability on causation grounds (Fairchild -v- Glenhaven, Barker -v- Corus) the recent Supreme Court decisions in Sienkiewicz -v- Greif (UK) Ltd and Knowsley Metropolitan Borough Council -v- Willmore declared this a lost cause. But breach of duty in low-level asbestos exposure claims are still attacked and successfully defended by employers and insurers.

Already the High Court has, in the case of Asmussen -v- Filtrona UK Limited, ruled that the period of exposure that caused mesothelioma – between 1955 to 1960 – was at a level insufficient to establish the employer was in breach of duty. The court did not accept the evidence of a second period of exposure from 1963 to 1972.

The judgment said: “At the time with which this case is concerned, the understanding of asbestos related disease was developing. Even by the end of the second period of the claimant’s employment the dire consequences of exposure to small quantities of asbestos was not generally recognised.”

Judge is wrong

The judge is wrong on the last point. It is well recognised that, by the second period, the consequences of exposure to small quantities of asbestos was firmly established.

The 1965 Newhouse and Thompson study of communities living near the Cape asbestos factory in East London, and family members of Cape’s employees who were exposed to asbestos from contaminated work clothes, confirmed that low level exposure can, and does, cause mesothelioma. This seminal study, the subject of an article published in The Times in October 1965, established there was no safe threshold of exposure to asbestos.

However, the government’s Technical Data Note 13 published in 1970 set guidance on occupational control limits of 2f/ml (a measurement of airborne asbestos fibre concentration) in relation to enforcement of the Asbestos Regulations 1969 by HM Inspector of Factories. This guidance remained in place until August 1977.

The account that Mrs Asmussen and her witnesses gave of her exposure in her second period of employment, which ended in 1972, was below 2f/ml, according to the experts who gave evidence to the court.

It was only because the court accepted that she had not been exposed to asbestos at all between 1963 and 1972 that the Baker defence – that the employer was not in breach because they were entitled to rely on the publication of official control limits – was not tested.

 

Comment The Keoghs briefing says that, had the Court of Appeal decision in Baker been allowed to stand, there was a “very real risk” that the “floodgates would have opened”. It says the judgment “effectively extinguishes a whole raft of claims for employees exposed to noise levels in the 85-90dB(A) range for the period I January 1978 and 1 January 1990”. Keoghs represented one of the defendants in Baker. The firm estimates that insurers will save millions in damages and costs. It is grotesque that insurers profit from the denial of compensation to genuinely injured claimants whose misfortune was to endure harmful levels of noise exposure at a time when the official guidance was based on control limits that turned out not to be safe. Whether or not employers even knew what the guidance of the time was, the fact that it existed can protect them from liability even where there is no dispute that the exposure caused hearing damage. Having used the control limits argument to rescue employers from liability for noise damage in Baker, the decision is now likely to be applied by insurers to defend other low-level exposure occupational disease claims, including mesothelioma. The prospect of the Baker defence making inroads to mesothelioma claims potentially heralds even more uncertainty, hardship and anxiety for some of the most disadvantaged claimants in our society.

 

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