Harris v BRB (Residuary) Ltd and another: [2005] EWCA Civ 900

CA: Rix and Neuberger LJJ: 18 July 2005

The claimant was employed by the second defendant and its predecessor between 1974 and 2000 working in the cabs of various train locomotives for the majority of which period he was the train driver, and he brought proceedings for damages for loss of hearing suffered by exposure to excessive noise as a result of the defendants' negligence and breach of statutory duty. The particulars of claim alleged inter alia a failure to provide adequate ear protection throughout the employment and a failure to provide adequate information, instruction and training on the risk of damage to hearing, contrary to the Noise at Work Regulations 1989, from 1990 onwards when those Regulations took effect. The judge found that the claimant was exposed regularly and for a significant period to levels of noise in excess of the lower of two established thresholds at which it was known that there was a risk a person might suffer hearing impairment. Evidence at the trial showed that the defendant and its predecessor were aware that employees working in locomotive cabs were at risk from such hearing impairment and that the wearing of ear protection was considered on a number of occasions from 1973 and accepted to minimise that risk, but that it concluded such measures were unworkable and was willing to accept the possibility of future claims being brought against itself. Though the judge concluded that the defendant was liable for the claimant's exposure to excessive noise, he dismissed the claim at common law on the basis that it was reasonable for the defendant to have rejected the course of actively taking precautions against drivers' exposure to excessive noise, and dismissed the claim based on statutory duty on the ground that the wearing of ear protection was not practicable.

The claimant appealed.

The Court of Appeal held:
(1) There was sufficient evidence to conclude not only that the defendant owed the claimant a duty of care in relation to exposure to sound at a threshold giving rise to actual or at least potential common law liability, but also that from 1973 at the latest the defendant was well aware that such exposure gave rise to a real as opposed to a minimal risk of damage and that the defendant's relevant managers believed it was possible to limit the volume of sound with ear protection and any difficulties in providing protection were not insurmountable. Therefore, since the claimant had been exposed to noise levels above the threshold at which the duty of care arose and the defendant failed to take any precautionary measures or accepted the risk of possible future claims, the defendant was in breach of duty in failing to provide the claimant with the opportunity to wear ear protection, and the judge should have concluded that it was unreasonable for the defendant not to have taken precautions.
(2) Once the Noise at Work Regulations 1989 came into effect, the defendant was clearly in breach of its obligations under regulation 11 in failing to provide the claimant with the requisite information contained therein. As a breach of regulation 8 only arose where the employer failed to provide ear protectors after a request from the employee "so far as practicable", there was no direct breach of regulation 8 because the claimant made no such request; but, since the judge found that if there had been compliance with regulation 11 the claimant would have requested the supply of ear protectors and since the defendant's own records suggested that there should probably be no concern about ear protectors preventing the wearer hearing warning signals and disciplinary procedures could be imposed on those who refused to wear them in the cabs, the judge should have found that the defendant was obliged to take the appropriate precautionary measures and that, therefore, its liability to the claimant was established.

The appeal was allowed.

Appearances: Nicholas Hillier (Thompsons, Leeds) for the claimant; John Leighton Williams QC and James Todd (Berrymans Lace Mawer) for the defendant.