“Hindsight is always 20/20” - so said US film director Billy Wilder. It can be too easy to assume that something which may be apparent - even obvious - today should have been appreciated at an earlier point in time.

In two recent cases the Courts have undertaken the difficult task of establishing the duty of care that was owed by a company in relation to events that occurred decades ago.

John Pinder v Cape Plc * (QBD Manchester 20 December 2006) involved a Claimant who contracted the asbestos-related cancer, mesothelioma, as a result of playing in asbestos waste as a child. The waste had been deposited by the Defendant at a local tip in the 1950s. The Court found that the risk presented by low level, second-hand and intermittent asbestos exposure was not generally appreciated until the 1960s. The Court found that it would be unfair to impose, with the benefit of hindsight, a higher standard on the Defendant.

The decision follows Maguire v Harland & Wolff Plc (2005 PIQR p21) where the Defendant was held not to be liable for the mesothelioma contracted by the wife of a dockyard worker through laundering his clothing, which was contaminated by asbestos. Although the Defendant would have known it was potentially exposing its employees to a foreseeable risk of injury, it was not foreseeable prior to 1965 that their working practices would in turn have given rise to risk of injury to a “secondary victim”.

In February a similarly tricky exercise was undertaken by His Honour Judge Inglis. In the Nottingham Litigation claims were brought against textile giants Pretty Polly, Coats Vyella and the Courtauld Group by former employees who claimed to have suffered noise-induced hearing loss as a result of noise exposure dating back as far as the early 1970s.

The Court found as a general rule that an employer who, before 1990, relied on the Department of Employment’s 1972 Code of Practice, setting a safe noise threshold limit of 90 DbA, would not be found liable. After 1990, an employer will be judged by the more stringent Noise at Work Regulations 1990, and subsequently the Control of Noise at Work Regulations 2005.

The Claimants argued that the employers should have recognised that some employees were at a risk of injury when exposed to noise levels below this threshold, and should have introduced hearing protection across the board for employees exposed to a noise level above 85 DbA.

The Court found that whilst the measures put in place by the employers did not protect all employees against all possible risks, those measures were sufficient if they followed the official and clear guidance of the day.

The Court again acknowledged that applying the 20/20 vision of hindsight when assessing the appropriate standard of care would not be fair on employers who followed in good faith the guidelines that were in place in the 1970s.

The Court did, however, decide that there was an exception. An employer who had “far greater than average knowledge” would be expected to have taken further protective measures. In this particular case two of the employers were found to have such knowledge, and were held to be in breach of duty for failing to provide hearing protection above an 85 DbA noise threshold from 1985 onwards.

However, in those particular cases the employees failed to establish their hearing loss had been caused by exposure to noise at work, as opposed to ageing, accident, illness etc.

These claims represented 7 out of a group of approximately 700 litigated cases. It is estimated that there are around 4000 similar cases waiting to come forward. The Claimants have expressed an intention to appeal.

With the benefit of 20/20 hindsight, more could have been done to protect John Pinder and the Nottingham textile workers against the risk of injury. Cases such as these will turn on the expert and lay evidence that can be adduced to show the general state of knowledge of risks at the time. Ironically, an employer who took steps to arm themselves with a greater than average degree of knowledge could be more vulnerable.

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