Mrs Carol Keefe (widow and personal representative of the
estate of Thomas Keefe deceased) v The Isle of Man Steam Packet
Company Limited [2010] EWCA Civ 683
This case highlights the considerable difficulties in defending
deafness claims where the defendant lacks evidence. The late Mr
Keefe had worked for the defendant primarily as a cook, between
1973 and 1998. It was alleged, by his widow, that during those
years he had been negligently exposed to excessive levels of noise
emanating from the galley and from other parts of the ship, and
that the defendants had failed to provide him with ear
protectors.
In 2004 an audiogram showed a 22% hearing loss, of which 50% was
attributable to noise rather than old age. Although Mr Keefe had
worked on various ships between 1973 and 1978, and had worked some
110 days on other vessels between his dismissal by the defendants
in 1998 and the diagnosis, there was no evidence that he had been
exposed to excessive noise elsewhere. Critically, there was also no
evidence that the defendants had taken any measurement of noise
levels in their ships. However, it was apparent that they were
aware of noise problems on board. They had provided ear protectors
to employees working in engine rooms.
At first instance the judge recorded that the ship-owners were
in breach of their duty in failing to make noise assessments, but
then gave little weight to that breach of duty. He also gave little
weight to the evidence of two of Mr Keefe's shipmates, who had said
that it was routine to work 16 out of 24 hours in the galley, in an
environment sufficiently noisy to necessitate communication by hand
signals. Instead, he seemed impressed by the evidence of the ship's
captain, who said that the environment on board ship was "not
that noisy." The claim was accordingly dismissed because Mr
Keefe had not proved that he had been exposed for periods over
eight hours to noise levels in excess of 85dB(A) or equivalent.
The Court of Appeal, however, took a markedly different view,
and the appeal was unanimously allowed. In a judgment that was
highly critical of the original decision, Lord Justice Longmore
held:
'If it is a defendant's duty to measure noise levels in
places where his employees work and if he does not do so, it hardly
lies in his mouth to assert that the noise levels were not, in
fact, excessive. In such circumstances the court should judge a
claimant's evidence benevolently and the defendant's evidence
critically.'
Considerable weight was therefore given to the fact that Mr
Keefe's difficulty of proof was caused by the defendant's breach of
duty in failing to take noise measurements. Moreover, that the
judge at first instance had given 'no (or virtually no)' weight to
this breach was roundly criticised. Lord Justice Longmore went on
to approve the approach of Lord Justice Neuberger in Harris v
BRB (Residuary) [2006] PIQR P10:
'Claims for personal injury arising out of exposure to
noise, vibration, or other health risks, particularly where the
exposure was over a long period of time in different circumstances
notoriously give rise to difficulties. While it may be dangerous to
generalise, the cases demonstrate, and common sense and fairness
require, that, unless it is clear that decisive evidence would have
been relatively easily available, and that there was no good reason
why it is not before the court, it is normally wrong for the court
to simply shelter behind the burden of proof and dismiss the
claim.'
An award of £3,000 was made; the relatively low value reflecting
the short amount of time between Mr Keefe's awareness of his
condition and his premature death. The award was also reduced on
the basis that only half of his impairment was due to noise
exposure.
This is an English case, and is therefore of no more than
persuasive value to Scottish courts. However, it is illustrative of
the difficulty faced in defending those deafness cases where they
have no evidence of noise levels or the precautions taken. That is
perhaps not too surprising. However, what seems absolutely clear is
that an evidential burden on the claimant created by the
defendant's failure to take appropriate noise readings will be
'benevolently' judged by the court.