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Baker v Quantum Clothing Limited in the Supreme Court

4 members of Crown Office Chambers will appear in the Supreme Court on 22nd – 24th November 2010 – Christopher Purchas QC & Catherine Foster represent one of the Appellants, Meridian Limited. Michael Kent QC & A John Williams represent the Interveners, Guy Warwick Limited.

The case (commonly referred to as the Nottinghamshire & Derbyshire Textile Litigation) concerns liability at common law & under statute (s29 Factories Act 1961-safe place of work) for noise induced hearing loss arising from long-term exposure to low levels of noise i.e. noise levels between 85-90 dB(A) Lep,d. At trial, HH Judge Inglis concluded that only 1 of the test Claimants (Mrs Baker) had proved NIHL but he dismissed her claim on the grounds that her employer was not in breach of s29 of the 1961 Act or in breach of its common law duty.

On appeal (neutral citation [2009] EWCA Civ 499), the Court of Appeal allowed Mrs. Baker’s appeal. The Court of Appeal ruled that s29 of the 1961 Act imposed an absolute duty which was subject only to the defence of reasonable practicability; that the issue of safety of the workplace was to be judged objectively without reference to reasonable foresight of injury (if necessary using the benefit of hindsight) & without regard to prevailing standards as set out in the 1972 Code of Practice published by the Department of Employment. On the issue of “reasonable practicability”, the Court of Appeal ruled that average sized employers were in breach of s29 in respect of exposure to noise levels of 85 dB(A) or more from January 1978 – this being the date by which they should have taken action following publication of BS 5330 in July 1976. The Court of Appeal also substituted different “dates of knowledge” for common law liability to those arrived at by the Judge.

The appeal to the Supreme Court raises questions of law of general importance regarding liability for NIHL prior to the introduction of the Noise at Work Regulations 1989. Meridian Limited (who intervened in the Court of Appeal) challenges the Court of Appeal’s rulings on s29 Factories Act 1961 and its date of knowledge. Guy Warwick Limited (which was a Defendant at trial but was not a party in the Court of Appeal) has been given permission to intervene in the Supreme Court appeal to address arguments specific to the small employer.

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