Safety is not an 'unchanging concept'

Lord Mance has ruled that whether a factory is safe should be assessed by the 'standards of the time' and there is 'no such thing as an unchanging concept of safety'.

His comments came as the Supreme Court rejected claims by hundreds of textile workers to compensation for deafness caused by noise in textile factories.

Jonathan Clarke, a barrister specialising in personal injury at Old Square Chambers in Bristol, said: 'Until this decision, it was widely believed both by lawyers and judges that the statutory duties under the health and safety legislation were stricter than the common law duty of care.'

Clarke said the common law duty was centred on reasonableness while the health and safety legislation involved strict liability.

'Safe means safe. You don't need a lawyer to tell you that. If Mrs Baker was exposed for many years to noise which was not known to be a danger but turns out to have been and she was injured, it turns out that she was not safe.

'The duty to keep her safe must have been breached. The majority of the Supreme Court said the judgement as to whether she was safe had to be made at the time. This strikes me as absurd.'

Giving the leading judgment in Baker v Quantum Clothing Group and others [2011] UKSC 17, Lord Mance said the central issue was whether liability existed at common law or under section 29(1) of the Factories Act 1961 towards workers exposed to noise levels between 85 and 90 decibels.

He said the claims were brought by workers in the knitting industry in the Midlands for noise experienced before 1 January 1990, the implementation date of the 1989 Noise at Work Regulations.

The High Court dismissed seven test cases against four different companies '“ Quantum, Meridian, Pretty Polly and Guy Warwick '“ in 2007. Two years later the Court of Appeal overturned the ruling in the case of Stephanie Baker, who developed high frequency hearing loss and occasional tinnitus after working for 20 years in a Nottingham hosiery factory. She was awarded damages of £3,334 (see solicitorsjournal.com, 2 June 2009).

Lord Mance rejected the Court of Appeal's approach that the safety requirements in the Factories Act were 'absolute'.

He went on: 'Whether a place is safe involves a judgement, one which is objectively assessed of course, but by reference to the knowledge and standards of the time.

'There is no such thing as an unchanging concept of safety. The Court of Appeal's approach means in reality that any court determining an issue of safety would be applying (retrospectively) whatever happened to be the view of safety current at the time the matter came before it.'

Lord Mance allowed the appeals by the companies, both under common law and under the Factories Act.

He said that, under common law, Quantum and other employers in a similar position, such as Guy Warwick, were not in breach of their duty of care or of their duty under section 29(1).

However, Lord Mance restored the trial judge's decision that Meridian and Pretty Polly were in breach of duty in not implementing such measures from 1 January 1985.

Lords Dyson and Saville agreed. Lords Kerr and Clarke dissented.