Keefe v The Isle of Man Steam Packet Company Ltd

Factual and Procedural Background

The case concerns an appeal from a judgment by Judge Halbert dated 15th June 2009, dismissing a claim related to noise-induced deafness. The claimant, referred to as Plaintiff, worked as a seaman primarily in ship galleys from approximately 1973 to 1998, mostly employed by Defendant on roll on/roll off ferry services. The Plaintiff underwent an audiogram in 2004 showing a 22% hearing loss, with 50% of that attributed to noise exposure during employment with Defendant. The Plaintiff commenced proceedings in April 2006 alleging negligent exposure to excessive noise levels onboard Defendant’s ships without provision of ear protection. The Plaintiff died in June 2007, and the claim was continued by his widow. The trial judge dismissed the claim on the basis that the Plaintiff had not proven exposure to noise levels exceeding 85dB(A) for periods over eight hours.

Legal Issues Presented

1. Whether the Plaintiff was exposed to noise levels exceeding 85dB(A) for periods exceeding eight hours during employment with Defendant.
2. Whether Defendant breached its duty by failing to measure noise levels and provide adequate hearing protection.
3. The impact of Defendant’s failure to gather evidence on the burden of proof and the evaluation of Plaintiff’s evidence.
4. Whether the hearing loss was caused by noise exposure during employment with Defendant, absent other competing causes.
5. The appropriate quantum of damages if liability is established.

Arguments of the Parties

Appellant's Arguments

• The absence of satisfactory evidence of continuous exposure was due to Defendant’s breach of duty in failing to measure noise levels.
• Testimony from witnesses indicated that Plaintiff worked in a noisy environment for up to 16 hours daily, requiring hand signals for communication, suggesting exposure over eight hours to noise exceeding 85dB(A).

Respondent's Arguments

• The trial judge correctly found on the balance of probabilities that exposure to noise levels exceeding 85dB(A) for eight or more hours was not proven.
• The judge was entitled to rely on Defendant’s witness, Captain Krellin, who testified that the galley was not excessively noisy during his visits.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Baker v Quantum Clothing Group [2009] EWCA Civ 499	Distinction between strict liability under Factories Act 1961 and common law negligence; employer's duty to measure noise and provide protection; relevant noise exposure levels and timelines for compliance.	Used to restate the legal framework for noise exposure claims and relevant noise thresholds applicable during the Plaintiff’s employment period.
British Railways Board v Herrington [1972] AC 877	Adverse inferences may be drawn against a party who fails to present relevant evidence within their control.	Supported the proposition that Defendant’s failure to measure noise levels justified drawing adverse inferences against them.
Armory v Delamirie (1721) 1 Strange 505	Where a party in breach of duty prevents proof of facts, the court may draw the strongest inference against that party.	Analogised to the employer’s duty to measure noise and the consequences of failing to do so in assessing Plaintiff’s evidence.
Barrand v British Cellophane Plc (1996, unreported)	Claims fail if claimant cannot show exposure exceeding acceptable noise levels for required durations and where competing causes exist.	Distinguished on facts; not considered a safe guide due to differences in exposure duration and competing causes.
Harris v BRB (Residuary) Ltd [2005] EWCA Civ 900	Court should be cautious in dismissing claims where evidence is difficult to obtain and burden of proof is challenging due to long-term exposure circumstances.	Applied to support a benevolent approach to Plaintiff’s evidence given Defendant’s failure to measure noise.

Court's Reasoning and Analysis

The court carefully examined the evidence regarding noise exposure, witness testimony, and the absence of engineering noise measurements. It found that the trial judge had misapprehended key witness evidence about communication difficulties in the galley, which strongly indicated noise levels around 90dB(A). The court emphasized that the Defendant’s failure to measure noise levels constituted a breach of duty that significantly prejudiced the Plaintiff’s ability to prove exposure. Applying established legal principles, the court held that such a breach requires the defendant’s evidence to be treated critically and the claimant’s evidence benevolently. The court found no plausible competing cause for the Plaintiff’s hearing loss and concluded that the hearing loss was probably caused by excessive noise exposure during employment with Defendant. The court also rejected the Respondent’s points, reaffirming the relevance of the 85dB(A) threshold and the Defendant’s unreasonable failure to comply with the Code of Practice. Quantum was assessed based on agreed guidelines and the limited period during which the Plaintiff was aware of the hearing loss.

Holding and Implications

The court allowed the appeal, set aside the trial judge’s order, and awarded damages of £3,000 plus appropriate interest.

The decision directly benefits the Plaintiff’s estate by recognizing liability for noise-induced hearing loss despite evidential difficulties caused by the Defendant’s breach of duty. No new legal precedent was established beyond the application and reinforcement of existing principles regarding employer liability for noise exposure, evidential burdens, and adverse inferences from failure to measure noise. The ruling underscores the importance of employers’ compliance with noise measurement and protection obligations and the courts’ willingness to draw favorable inferences for claimants where employers fail in these duties.