Thompson v Smiths Shiprepairers
[1984] Q.B. 405
Introduction:
Thompson v Smiths Shiprepairers (North Shields) Limited [1984] Q.B. 405 holds a north-east connection, with the setting of Smiths Dock being only a few miles from our Chambers here in Newcastle. It is also a Judgment, though long, which is easy to read. Mr Justice Mustill had an uncanny ability to clearly describe complex concepts in as few words as possible.
There are excellent sections of the Judgment entitled ‘Noise and the human ear’ and ‘Quantification of hearing loss’ which sets out those principles of NIHL in as clear a fashion as I have ever seen.
The ongoing importance of the case:
Practitioners will continue to find this Judgment relevant for cases where there is noise exposure dating to the 1960s. 1963 is often the default position as regards to a ‘date of guilty’ knowledge in NIHL cases though there are cases which have set an earlier or later date. Of course, if a particular defendant has greater than average knowledge then they may be obliged to take greater than average precautions. Likewise, the 1963 date has been found to be too early in some cases.
The facts
The were in fact two groups of actions involving labourers and fitters in shipbuilding yards across the north-east. It was not in dispute that they had been exposed to excessive levels of noise, nor was it in dispute as that each of the claimants in fact did have noise induced hearing loss. The only real issue for the court was the matter of when ought a defendant in the Defendants’ position ought to have done something about it (and what).
The Judgment
It is noted that it was known for at least 150 years that those working in loud noise were liable to suffer deafness. A paper from 1886 by Thomas Barr refers to the features of what became NIHL. It had been known since the beginning of the 20th century that shipyards were noisy places but ‘apathy and fatalism prevailed’ and so little was done about it until the 1970s.
It is noted that from 1975 industrial deafness has been a prescribed disease but that this would not cover the majority of cases, hence the growth in common law civil claims against the employer.
It was not in dispute that the test was the famous test set out in Stokes v Guest, Keen and Nettlefold (Bolts and Nuts) Ltd. [1968] 1 W.L.R. 1776 which sets out:
“From these authorities I deduce the principles, that the overall test is still the conduct of the reasonable and prudent employer, taking positive thought for the safety of his workers in the light of what he knows or ought to know; where there is a recognised and general practice which has been followed for a substantial period in similar circumstances without mishap, he is entitled to follow it, unless in the light of common sense or newer knowledge it is clearly bad; but, where there is developing knowledge, he must keep 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.”
As to the facts Mustill J found that it was widely known by all involved that noise within the shipyards could be damaging to the hearing and that at all material times (claims dating back to 1944) the defendants ‘knew that the noise levels in their yards were such as to expose their workmen to a risk of hearing loss’.
There was no evidence produced by the Defendants as to any measures taken before the 1970s and though no adverse inference was drawn, owing to documents potentially going missing, Mustill J did find that ‘the defendants simply shared in the indifference and inertia which characterised the industry as a whole’.
Some evidence was available as to measures taken during the 1970s and a smattering of evidence relating to the 1960s.
Mustill J considered what could have been done. It was noted that workers in the shipyards and boiler-making trades had used cotton-wool in their ears, more for the unpleasant sensation of noise than any protection against deafness for over 100 years.
It is noted that an ear defender was available during the period of the First World War albeit it was uncomfortable and difficult to wear and there is limited evidence that it was ever worn widely. Some hearing protection was available between the wars but there is no evidence as to how widely they were actually in circulation. It was noted that there was some hearing protection available during the Second World War for the RAF, and in the 1950s hearing protectors were marketed.
The Defendants pointed to the lack of legislation regarding noise exposure and that discussion in Parliament was almost non-existent (a question in 1953 and another in 1967). Little effort was made by Trades Unions or by the Inspectorate of Factories. I was noted that the first claim for NIHL was made in 1969. Mustill J notes that ‘Viewed with hindsight, this seems a depressing history of apathy and neglect.’ There was even a view that a deafened worker was more able to cope with the unpleasant nature of being surrounded by noise than a person with unimpaired hearing.
However, it was also noted that adverts for hearing protection appeared in the Lancet from 1951 (the V-51R) and that references to hearing protection became more common during the 1950s. There was a question as to whether, even if provided in the 1950s, they would have been worn, it being noted that some were not suitable to be worn for a full shift.
Mustill J rejected the submission that employers would reasonably have been able to introduce hearing protection in 1951 once the V-51R began to be advertised. He also rejected the argument that the date of guilty knowledge was as late as the 1970s – by that stage the problem have been known for years, and there were devices that were reasonably effective and easy to wear for some time.
Accordingly, a date of 1963 was arrived at. This was the year of the well-known publication ‘Noise and the Worker’ by the then Ministry of Labour after which Mustill J found ‘there was no excuse for ignorance’. At the time there was Billesholm Wool ear protection as well as reasonably effective ear defenders. ‘From that point, the defendants, by offering their employees nothing, were in breach of duty at common law’.
Mustill J did find that there was no reasonable way to have reduced the noise in the Shipbuilding industry at the time.
There was then determination of apportionment and quantification of NIHL which has largely been overtaken by further knowledge and publications and so do not need to be considered herein.
Conclusion
It is a testament to the Judgment that the date of 1963 has been regularly applied since then. It can be argued that a particular employer may not have received ‘Noise and the Worker’ because they were not in Industry. It may be difficult to determine whether this was or was not actually the case. However, the Judgment did not seek to impose a general date of guilty knowledge in NIHL claims, and subsequent claims have, on the facts, found earlier or later dates. However, 1963, the year of the first issue of Noise and the Worker, remains the starting point for most NIHL claims.