How relying on PPE to control noise can land you in court

Health and safety consultants, advisors and employers need to really get to grips with noise.

There have been two major court cases on noise-induced hearing damage in the UK courts that we discussed at the EBIS-HSE Law Update conference this year. There is plenty of evidence that noise is an area in which employers can expect civil claims if they breach the duty of care. The Health and Safety Executive is also ramping up their attention on this matter.

The Court of Appeal has shown that such a duty is not met simply by providing hearing protection because of the limits of effectiveness of such protection. It is necessary to do all that is reasonable to eliminate noise at source. That is what both the regulations and the HSE require. This is also true of the regulatory approach in the United States.

In Goldscheider versus The Royal Opera House [2019] EWCA Civ 711, a risk assessment was carried out and hearing protection was provided. However, as the Court of Appeal carefully explained:

“The duty under Regulation 6(2) is to reduce exposure to as low a level as is reasonably practicable by measures excluding the provision of personal hearing protectors (PHPs). If the Defendant establishes that it took all reasonably practicable steps then the debate moves on to Regulation 7 [PHP]. But if it does not, the Claimant establishes his case before one even gets to Regulation 7. It is not a defence to the claim under regulation 6 to say that if the claimant had worn PHPs throughout the rehearsal, or whenever loud music was being or was about to be played, his exposure to noise would never have reached 85 dB(A).” [Italics ours].

A very similar approach is advocated in the Technical Guide produced by the Occupational Safety and Health Administration (OSHA) in the United States. This states at Section 2:J paragraph 2, “In some instances the application of a relatively simple noise-control solution reduces the hazard to the extent that the other elements of the program, such as audiometric testing and the use of hearing protection devices, are no longer necessary.” It then goes on to advocate the application of the hierarchy of control to noise exposure.

Is it realistic to talk about reducing noise at source? Frankly noise is a subject that health and safety practitioners and employers need to know more about because all too often there is an over-reliance on personal protection when in fact simple measures can make dramatic improvements at low cost. Failure to have expert input on this could result in big civil claims and also enforcement action or prosecutions. Some practical measures have been around for years. Others are very new. It is not all about solid acoustic enclosures either. Tips that may take you a long way are as follows:

·      Really useful guidance on reducing noise at source from the UK Health and Safety Executive with 60 practical case studies (that is also referred to in the OSHA Technical Guide above): https://www.hse.gov.uk/noise/casestudies/soundsolutions/index.htm

·      Sound Dead Steel that can be used to cut noise from impact or vibration of panels (amazing product): https://www.sounddeadsteel.com/

·      Noise cancelling lightweight panels also amazing: https://www.sonobex.com/

·      Motion Amplification Technology from RMS Ltd showing sources of vibration visually: https://www.youtube.com/watch?v=qnHZ6A5N_E0

·      Institute of Acoustics, real experts in industrial noise problems and solutions who will be pleased to engage on sources of noise and how to reduce noise at source: https://www.ioa.org.uk/

If you have concerns about noise exposure or your workers are exposed above the lower action level of 80 decibels (dBA) then contact the McNeil Collective for advice that will prove invaluable.