Keefe v The Isle of Man Steam Packet Company Ltd

In a common-law occupational-noise claim, an employer’s failure to make the noise assessments required by the applicable Code of Practice may amount to a breach of duty. Where that breach makes proof of historic exposure difficult, the employer cannot rely on the evidential gap it created. The court should assess the employee’s evidence benevolently and the employer’s evidence critically, with a risk of adverse factual findings. Credible evidence of prolonged noisy working conditions may establish causation without engineering measurements, particularly where there is no plausible competing cause of hearing loss.

Keefe v The Isle of Man Steam Packet Company Ltd concerned a seaman who worked principally in ships’ galleys between 1978 and 1998. He alleged that the respondent negligently exposed him to excessive occupational noise without providing hearing protection. He died after commencing the claim, which was continued by his widow.

HHJ Halbert in the Chester County Court dismissed the claim on 15 June 2009. Although he found that the respondent had failed to assess noise levels, he held that the claimant had not proved regular exposure for eight hours or more to noise above the relevant level. The Court of Appeal considered whether the evidence established excessive exposure and causation, and what evidential consequence followed from the respondent’s failure to take measurements.

1. Appeal allowed unanimously. Lord Justice Longmore’s judgment, with which Lady Justice Arden and Lord Justice Aikens agreed, was substituted for the County Court’s dismissal. The claimant was awarded £3,000 plus appropriate interest.

2. The judge had materially misremembered the evidence of the claimant’s principal witness. The witness had said that normal conversation in the galley was impossible and that workers ordinarily communicated by hand signals. In the absence of compelling contrary evidence, this supported an inference that galley noise was about 90dB while the claimant worked there, and probably persisted for eight or more hours during a 16-hour shift.

3. The respondent’s failure to make workplace noise assessments was a breach of duty. Applying Baker v Quantum Clothing Group [2009] EWCA Civ 499, the court treated the applicable Code’s measurement requirement as material to the common-law duty. An employer which, in breach of duty, makes relevant evidence difficult or impossible to obtain cannot then rely on the resulting lack of precise proof. The claimant’s evidence should be assessed benevolently and the employer’s critically. That approach was supported by British Railways Board v Herrington [1972] AC 877 and the approach in Harris v BRB (Residuary) Ltd [2005] EWCA Civ 900.

4. The correct causation question was whether the hearing loss was caused by workplace noise, rather than whether it was merely sustained during employment. There was no plausible competing cause. The claimant’s limited later service on other ships could not seriously displace the inference that excessive noise during the respondent’s employment caused the noise-related element of his hearing loss. Barrand v British Cellophane Plc was factually distinguishable because it involved only short exposure and competing causes.

5. General damages were assessed at £6,000 before reflecting that only half the impairment was noise-induced. The court made no further reduction for subsequent employment on other ships because there was no reliable evidence of noise exposure there.

• Court of Appeal (Civil Division): In Keefe v The Isle of Man Steam Packet Company Ltd [2010] EWCA Civ 683, the appeal was allowed unanimously. The County Court’s order was set aside and judgment was entered for the claimant.
• Chester County Court: HHJ Halbert dismissed the claim on 15 June 2009. He held that regular exposure to excessive noise for the requisite period had not been proved.