Dear Colleagues;
I have only just caught up with a recent tort decision of the UK Supreme Court which is worth noting. I don't think anyone else has mentioned it here (apologies if I missed it). In Baker v Quantum Clothing Group Ltd [2011] UKSC 17 (13 April 2011) http://www.supremecourt.gov.uk/decided-cases/docs/UKSC_2009_0107_Judgment.pdf the Court was ruling on what I assume was a "test case" in relation to a worker who suffered hearing loss as a result of exposure to industrial noise before specific "Noise at Work" regulations were introduced in 1990. The worker was exposed to noise between 85-90 db; I gather that it was conceded that exposure above 90db was known to be harmful and was negligent; but apparently the medical evidence at the time did not indicate that a large number of workers exposed to the lesser levels of noise would be harmed. It now appears that this exposure is known to be harmful.
The case is long and I have to confess I haven't taken in all the detailed medical evidence. But in broad terms the Supreme Court divides 3-2 on two points.
(1) On the issue of common law negligence: Lords Mance, Dyson and Saville hold that it was not foreseeable that harm would occur and hence there is no liability in negligence; Lords Kerr and Dyson disagree, Lord Kerr in particular noting that while accepted Guidance said that 90db+ exposure was dangerous, it also noted that some more susceptible workers could be harmed by exposure about 85db, and a responsible employer should not have ignored the fact that (more than trivial) number of their workers would suffer hearing loss if unprotected- see eg [160].
(2) On the issue of statutory duty, the question was whether there had been a breach of s 29 of the Factories Act 1961 which required a "safe" workplace "so far as reasonably practicable". The same majority held that "safe" meant that harm had to be foreseeable, following one line of previous CA decisions; the minority held that "safe" simply meant what it said: was it "a possible cause of injury to anybody acting in a way a human being may be reasonably expected to act"? [179] As a result the minority would have held that the factories were not safe; and then the reasonably practical test would be applied so that the defendant had to show they could not have reasonably done more.
It will be apparent where my sympathies lie. It seems to me that the minority view far better represents the way the courts have dealt with this issue over the years. Indeed, in effect the majority have to concede that they are over-ruling Larner v British Steel [1993] ICR 551 and other cases that have stood for some years.
Perhaps a UK colleague can enlighten me: how are panels of SC Justices chosen for these sort of cases? I must confess to thinking that if Baroness Hale or Lord Hope, for example, had replaced one of the majority there might have been a completely opposite decision, in a case which seems to have a big impact on an important area of safety law.
Regards
Neil


Neil Foster
Deputy Head of School & LLB Program Convenor
Newcastle Law School
Faculty of Business & Law
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
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