Often victims feel defenceless, as they are unsure where the responsibility lies for maintaining their health at work, and are afraid to ask for more protection, or to challenge the procedures already in place.
So here is a breakdown of an employer's responsibilities in relation to noise levels: •An employer with ordinary or average knowledge of the risks of exposure to noise had a duty under the common law to provide hearing protection from January 1988; • An employer with more than ordinary or average knowledge of the risks of exposure to noise had a duty under the common law to provide hearing protection from January 1985; •The Factories Act 1961, and in particular, the duty under the s 29(1) places a greater responsibility on the employer than the common law position.
Under s 29(1), so far as is reasonably practicable, employers are required to make and keep safe the workplace for any person working there.
Under the Act, the safety of the place of work is to be judged objectively.
This means an employer cannot rely on the defence that the injury was not reasonably foreseeable or by relying upon what was considered to be an acceptable risk at the time.
•If an employee suffers deafness after having been exposed to noise of 85 dB(A), it follows that his place of work was not safe.
If the employer is aware that a minority of people will suffer hearing loss as a result of exposure to 85 dB(A), then the workforce as a whole is not safe because of the risk of injury.
•Where the exposure is 85 decibels, an employer can only escape liability if he can prove that it was not reasonably practicable for him to remove or reduce the risk of injury (e.
Under the Factories Act, the employer's duty is assessed by reference what is reasonably practicable.
Consequently, the employer must be able to show that the time, trouble and expense of providing appropriate protection would substantially outweigh the risk involved.