Baker v Quantum [2011] UKSC 17

JUDGMENT

Baker v Quantum Clothing Group Limited & Others [2011] UKSC 17 is an important case that shaped our understanding of reasonable practicability and whether safety is an absolute concept or one to be assessed by standards at the time of injury. The factual circumstances of the case are set out below.

The facts

In 1972, prior to the first iteration of the Noise at Work Regulations 1989 (in force from 1 January 1990), noise levels of up to 90 dB(A) lepd were permitted in the workplace. In 1972, a Code of Practice was released by the Department of Employment (“the Code”) which said that noise levels below 90dB(A) lepd posed a risk of injury to a percentage of workers and that the limit of 90 dB(A) lepd was not safe. Noise-induced hearing loss (NIHL) claims at the time the workers, in this case, suffered injury were still decided on the basis that 90dB(A) lepd was the effective “limit”. This claim was brought under the Factories Act 1961, section 29(1) on the basis that the employers did not ensure their premises was “safe”, on account that they knew of the risk to workers by the noise below 90dB(A) because the Code placed them on notice of the risk and they failed to take all reasonably practicable steps available to them.

Section 29(1): There shall, so far as is reasonably practicable, be provided and maintained safe means of access to every place at which any person has at any time to work, and every such place shall, so far as is reasonably practicable, be made and kept safe for any person working there (Factories Act 1961).

The seven claimants who brought the case all suffered NIHL at textile/hosiery factories in the East Midlands prior to 1 January 1990.

First instance decision

At first instances, six of the seven claimants failed to prove they had suffered any NIHL. The trial judge found that Mrs Baker, the seventh, did suffer NIHL as a result of work that exposed her to a noise level of 85dB(A) lepd. The trial judge said that Mrs Baker’s claim must, however, fail because her employers had not breached their common law duty or that under s.29(1). The judge made a factual finding that the Code set the standard for noise protection until well into the 1980s. The judge said the relevant date of knowledge of Mrs Baker’s employer Quantum Clothing was around the time of the EEC Directive 86/188/EEC on 12^th May 1986. The judge allowed each defendant a two-year period from the date of knowledge to implement a hearing control programme. The judge adopted the position that in evaluating whether a workplace was “safe”, regard should be given to the standards of the day. Mrs Baker appealed.

Court of Appeal decision

The CoA unanimously allowed Mrs Baker’s appeal. Smith LJ said that whether a place was safe should be decided objectively, and reasonable foreseeability played no part. The court accepted that reasonable foreseeability was relevant to the question of whether an employer did all that was reasonably practicable to make the workplace safe. The Court of Appeal said s.29(1) applied, and the employer did not take all reasonably practicable steps at the relevant time of 1976/77 as there were methods to quantify the risk of injury by noise and protection available, which they did not adopt. The CoA substituted the trial judge’s decision of two years to implement reasonably practicable steps to combat the risk with a period of nine months. Quantum, they said, was therefore liable.

Supreme Court

The Supreme Court was asked to decide four things:

(a) Did s.29(1) apply considering that claim relates to activities carried on in the factory (i.e. the work) rather than the premises themselves?

(b) Did s.29(1) apply to injury from noise considering that wasn’t in the contemplation of Parliament when they passed the Factories Act in 1961?

(c) Is safety to be assessed as an absolute, unchanging concept or one considered in accordance with the standards existing at the time of injury?

(d) What is reasonable practicability and how does it relate to safety?

To question (a) and (b), the court was unanimous in saying s.29(1), and its use of ‘safe’ does apply to the work, not just the premises, and to the risk of injury posed by noise, despite noise not being within the contemplation of Parliament at the time the Factories Act was passed in 1961. The majority endorsed Lord Widgery CJ’s view in Evans v Sant [1975] QB 626, 635(g)-(h) that:

The safety of the place depends not simply on the construction of the floor or the solidity of the walls, but it also depends in some degree upon the nature of the operations carried on therein.

To (c), the majority (Lord Mance, Lord Dyson & Lord Saville) rejected the CoA’s decision on how to assess “safe” in this context.  The CoA had said that safety should be assessed objectively, and the majority in the UKSC said any assessment of safety involves judgment and so cannot be assessed objectively. In assessing whether a workplace is safe, the knowledge, circumstances and foreseeability of injury that existed at the time of injury are relevant to the assessment of whether a workplace is safe. Four reasons were given for that view:

1. In predecessor legislation, “safe” had not meant “absolutely safe”.
2. Later authorities, principally R v Chargot Limited [2009] 1 WLR, in relation to the HSWA 1974, said that “safety” was aimed at “material risks” and did not impose absolute safety.
3. The concept of danger in s.14(1) Factories Act 1937 required a need to determine the “degree of danger”, which involved a “reasonable foreseeability of injury”.
4. s.29(1) was enforceable under criminal law and, unlike negligence, adopted a reverse burden of proof on the issue of reasonable practicability. The purpose of s.29(1) was to create a position different to that which existed at common law.

Lord Kerr and Lord Clarke dissented on the basis that s.29(1) did not state that safety had to be judged solely according to the state of knowledge at the time of injury. Lord Kerr said the majority interpretation places the duty on workers to establish at trial that injury was reasonably foreseeable to the criminal standard before the burden reverses, and it is for the employer to show that they took all reasonably foreseeable precautions. Lord Mance and Kerr felt this was wrong and that the employee must only show that the workplace was unsafe in the basic sense [80]. His Lordship argues at [182] that reasonable foreseeability is only relevant to that second question of whether all reasonably practicable steps were taken.

The issue of (d) did not arise due to the position of the majority on (c). The majority said the trial judge was right on this issue. Considering what risks were regarded as “acceptable” according to the standards at the time of injury should be considered [82]. The majority said the trial judge reached the correct date of knowledge of Quantum and was entitled to find that a period of two years from the date of knowledge was appropriate to implement the protection.

Citation: Jacklin, D. 2020. Baker v Quantum [2011] UKSC 17. Water Incident Research Hub, 30 September 2020.