Mr Harris was employed by the English Welsh and Scottish Railway Limited (EWSR) between 1974 and 1999. This was an appeal from a decision of the County Court in respect of the dismissal of Mr Harris’ claim against the EWSR for damage in respect of hearing loss caused by exposure to the noise of various types of locomotive between 1974 and 1999.

His Honour Judge Langan QC found that although EWSR was liable in principle to Mr Harris for exposure to noise levels above 85 dB(A)leq, EWSR was not liable in common law because it had conscientiously considered the possibility of taking precautions and had reasonably rejected that course. Mr Harris appealed against this decision and EWSR cross-appealed the decision that Mr Harris had been exposed to a noise above 85 dB(A)leq regularly and over a significant period.

Three questions had to be decided in order to determine whether or not Mr Harris’ case, in common law, was established:

  • Whether the daily level of noise to which Mr Harris was frequently subjected on his case ie between 85 dB(A)leq and 90 dB(A)leq, was such as to render EWSR under a duty of care to Harris.
  • Whether Mr Harris was in fact exposed to noise levels above 85 dB(A)leq.
  • Whether EWSR had in fact taken, or considered taking, appropriate precautions so as to avoid the liability which it would otherwise have to Mr Harris.

Reference

The Court of Appeal decided that EWSR were liable to Mr Harris. It was an accepted fact that the 85 dB(A)leq level of sound involved a real risk of damage to an employee’s hearing. Therefore, it plainly followed that it must, on the particular facts of a particular case, be capable of leading to the conclusion that the exposure of an employee to that level of sound could give rise to a duty of care.

His Honour Lord Justice Neuberger was assisted by the decision of Justice Swanwick in Stokes v Guest, Keen and Nettlefold (Bolts and Nuts) Ltd [1968] 1 WLR 1776 where he held:

"[T]he overall test is still the conduct of the reasonable prudent employer, taking positive thought for the safety of his workers in the light of what he knows, or ought to know… [W]here there is developing knowledge, he must been reasonably abreast of it and not be too slow to apply it; and where he has in fact greater than average knowledge of the risks, he may be thereby obliged to take more than the average or standard precautions. He must weigh up the risk in terms of the likelihood of injury occurring and the potential consequences if it does; and he must balance against this the probable effectiveness of the precautions that can be taken to meet it and the expense and inconvenience they involve. If he is found to have fallen below the standard to be properly expected of a reasonable and prudent employer in these respects, he is negligent.”

On the facts, the relevant managers of EWSR appreciated the risk to employees of exposure to noise at over 85dB(A)leq. They believed that limiting the volume of sound to that level was feasible, and that they were well aware that this could be achieved with ear protection. They also knew that the possible difficulties involved in providing employees with ear protection should not prove insurmountable.

Full case details*
18 July 2005, Court of Appeal (Civil Division) [2005] EWCA Civ 900

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Postscript

The case emphasises the need for employers to ensure the safety of their workers by providing appropriate precautions to their workers, even where there may be difficulties associated with these precautions. If there is an available precaution, employers should provide this precaution to their employees.