This blog reviews direct liability for acoustic shock, where the Defendant is an emanation of the state.

Take the following scenario: A Claimant works in a call centre and alleges tinnitus caused by spikes of excessive noise from his headset.

By reason of section 69 of the Enterprise and Regulatory Reform Act 2013, the Claimant cannot rely on a breach of various health and safety regulations to establish liability. He must show that his employer was negligent.

The Defendant employer contends that the headset was an industry-standard headset which complied with all relevant safety standards. Surely an absolute answer that the Defendant was not negligent?

But what if the Defendant is an emanation of the state within the meaning of EU law and the Claimant can rely directly on the EU Directives which gave rise to those various Regulations?

The following qualify as emanations of the state: local authorities and all government agencies (for example HMRC), NHS trusts, the police and fire service.

That is a non-exhaustive list but even then, one can quickly see examples of employees using headsets in call centres which may give rise to claims for damage to hearing or tinnitus from spikes of noise.

Even post-Brexit, the effect of the European Union (Withdrawal) Act 2018 is that many parts of EU law have been retained after 31 December 2020.

One of those Regulations was the Provision and Use of Work Equipment Regulations 1998 (“PUWER”). Regulation 4 provided that:

(1) Every employer shall ensure that work equipment is so constructed or adapted as to be suitable for the purpose for which it is used or provided …

(4) In this regulation ‘suitable’ —

(a) subject to sub-paragraph (b), means suitable in any respect which it is reasonably foreseeable will affect the health or safety of any person;

(b) in relation to —

(i) an offensive weapon within the meaning of section 1(4) of the Prevention of Crime Act 1953 provided for use as self-defence or as deterrent equipment; and

(ii) work equipment provided for use for arrest or restraint,
by a person who holds the office of constable or an appointment as police cadet, means suitable in any respect which it is reasonably foreseeable will affect the health or safety of such person.

The headset was clearly work equipment within the meaning of PUWER. Therefore, under regulation 4(1), the Defendant had a duty to ensure it was suitable. The definition of “suitable” in regulation 4(4) introduced the concept of reasonable foreseeability: on the face of it, exactly the same standard as in common law negligence.

But in Hide v Steeplechase [2013] EWCA Civ 545, the Court of Appeal disagreed and held that the concept of “reasonable foreseeability” was different in EU law. The position was summarised by Longmore LJ at [26]:

It follows from all this that the judge was, with respect, incorrect to import into regulation 4 the ‘classic common law phrase’ of ‘reasonable foreseeability’ and then dismiss the claim on the basis (1) that the way in which Mr Hide was injured was very unusual and (2) that the defendant had abided by all the requirements of the BHA and could not be expected to do more. Those factors might once have excused a defendant in a case brought at common law (although the relevance of the first factor may even then be questionable in the light of Hughes v Lord Advocate [1963] AC 837) but the Directives and therefore the Regulations exist in a world different from the common law. Adapting the words of Lord Rodger in Robb the primary purpose of the relevant regulations is to ensure that employers (and other defendants) take the necessary steps to prevent foreseeable harm coming to their employees in the first place and the defendant’s obligations are triggered if it is reasonably foreseeable that an employee might injure himself. As the judge himself said (para 54) an accident of the kind that happened to Mr Hide, while not at all likely, was possible and in that sense foreseeable. If it happens, it will be for the defendant to show that it was due to unforeseeable circumstances beyond his control or to exceptional events the consequences of which could not be avoided.

Against a ‘normal’ Defendant, that is now ancient history because the Claimant can no longer rely on regulation 4 to establish a cause of action.

But against an emanation of the state, the Claimant can rely directly on the underlying EU directives. In the case of PUWER, that is Article 3.1 of Directive of the European Parliament and of the Council 2009/104/EC (“the 2009 Directive”) which provides as follows:

1. The employer shall take the measures necessary to ensure that the work equipment made available to workers in the undertaking or establishment is suitable for the work to be carried out or properly adapted for that purpose and may be used by workers without impairment to their safety or health.

Therefore, the Defendant would be in the same position as in Hide v Steeplechase. It would have to plead and prove that “it was due to unforeseeable circumstances beyond his control or to exceptional events the consequences of which could not be avoided.

That is a high burden and the practical effect is almost a test of strict liability.

Something to consider when acting for or against a Defendant in an acoustic shock case involving work equipment: might the case still step into a different world from the common law?