Keefe v The Isle of Man Steam Packet Company Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Longmore,Lord Justice Aikens,Lady Justice Arden |
| Judgment Date | 17 June 2010 |
| Neutral Citation | [2010] EWCA Civ 683 |
| Docket Number | Case No: B3/2009/1859 |
| Court | Court of Appeal (Civil Division) |
| Date | 17 June 2010 |
[2010] EWCA Civ 683
His Honour Judge Derek Halbert
Before: The Right Honourable Lady Justice Arden
The Right Honourable Lord Justice Longmore
and
The Right Honourable Lord Justice Aikens
Case No: B3/2009/1859
6CH02088
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CHESTER COUNTY COURT
Mr Brian Thomas (instructed by Bbh Solicitors) for the Appellant
Mr Paul Brant (instructed by Hill Dickinson LLP) for the Respondent
Hearing dates: 20 th April 2010
Lord Justice Longmore:
This is an appeal in a deafness case from the judgment of HHJ Halbert of 15 th June 2009 sitting in Chester. He dismissed the claim because the claimant had not, in his view, proved that he had been exposed for periods of over 8 hours to noise levels in excess of 85dB(A) or equivalent.
Mr Keefe spent his working life as a seaman working mainly in ships’ galleys. He was born in 1954 and worked in various ships for various shipowners between about 1973 and 1978 including the defendant. Between 1978 and June 1998 he worked for the defendants alone on their roll on/roll off services plying between Heysham and the Isle of Man. He was then dismissed and between that date and the date of an audiogram in about April 2004 only worked about 110 days or so on other vessels. That audiogram showed a 22% hearing loss, of which 50% (namely 11%) was held by the judge (on the basis of expert evidence) to be attributable to noise. There is no evidence of any noise sustained by Mr Keefe at any times other than in the course of his employment with the defendants.
On 28 th April 2006 Mr Keefe began proceedings in which he alleged that the defendants had negligently exposed him to excessive levels of noise on board their ships without providing ear protectors. He alleged that the source of the noise included
i) Vibration and noise from the vessels themselves;
ii) Vehicles embarking on and disembarking from the vessels;
iii) The clanking of chains used to secure vehicles;
iv) Noise from the galley.
Mr Keefe died on 1 st June 2007 from an illness unrelated to his hearing impairment and the claim has been carried on by his widow.
The law in this area has been recently restated and amplified by this court in Baker v Quantum Clothing Group [2009] EWCA Civ 499. That case dealt with noise in knitting factories and held
i) there was an important distinction between an employer's liability under section 29 of the Factories Act 1961 and his liability at common law inasmuch as liability under the 1961 Act was strict, subject to the employer proving that he had not failed to take reasonable precautions to prevent harm from noise, whereas at common law the employee always had to prove that his employer had been negligent;
ii) outside those industries where noise had always been recognised as being a problem (such as ship building, heavy engineering and the weaving industry (para 91)), precautions in relation to noise could not be expected to be taken before the publication in 1972 of the Department of Employment's Code of Practice based on the 1960s research of Professor W. Burns and Dr D. W. Robinson;
iii) that Code of Practice required employers to measure the noise in their premises and, if it was “90dB(A) leq.” or above, they had to take steps to reduce the noise or provide ear protectors (para 6);
iv) employers with any noise processes should by mid—1973 have been turning their minds to the problem of noise (para 92) and were thus initially obliged to measure noise levels;
v) such measurement should have been completed by about mid—1974 and, if noise levels above “90dB(A) leq” were found to exist, protective measures should be taken (para 94);
vi) it gradually became apparent that exposure to a level of noise assessed at between 85dB(A) leq and 90dB(A) leq could cause noticeable hearing impairment to some people;
vii) from July 1976 advice was available about this level of noise;
viii) from early 1977 onwards steps should have been taken to provide ear protection for employees exposed to this lower level of noise if the employers was to discharge the burden on him under the 1961 Act (para 102);
ix) at common law, however, there would be no liability at this time for employees exposed to this lower level of noise, because an employer could rely on the noise level specified in the 1972 Code of Practice (namely 90dB(A) leq);
x) however, that changed with the publication of a draft EC directive in 1982 referring to lower noise levels (para 109).
This case is (as the judge said) somewhat unusual because there is no engineering evidence of noise level in the ships in which Mr Keefe served during his 20 year period of employment with the defendants. There is no evidence that the defendants took any measurements of noise levels in their ships and the judge's finding is that they did not. They were, however, aware of noise problems in that they provided ear protectors for employees working in the engine room and also, for a short time, to employees working with the cars coming on board and leaving the ships. But it does not appear that that occurred as a result of any noise measurement being taken. The relevant ships were all disposed of before the claim was brought.
In a short judgment the judge dismissed Mr Keefe's claim because, as he put it, Mrs Keefe had to prove that her late husband
“was exposed to periods in excess of 8 hours to noise levels over 85dB(A) or to fluctuating levels with an equivalent of over 85dB(A).”
He held that she could not prove that that was the case, even though he was satisfied that Mr Keefe was exposed to excessive levels of noise, sometimes in excess of 90dB(A). He could not, however, find that there was exposure to excessive levels for periods of 8 hours with any regularity and he, therefore, dismissed the claim.
The judge recorded that the shipowners were in breach of duty in failing to make noise assessments and that their principal witness of fact Captain Krellin was embarrassed by this failure. But he gave little weight to that breach of duty.
In these circumstances Mr Thomas for the claimant submitted:—
i) that, if the judge was correct to say that there was no satisfactory evidence of continuous exposure of up to 8 hours a day, that was a result of the defendant's breach of duty;
ii) that, in any event, the judge was wrong to say that there was insufficient evidence of exposure of up to 8 hours a day because the claimant's witnesses who had been in the galley said that they worked in a noisy environment for 16 hours a day and had to communicate by hand signals.
Mr Paul Brant for the defendant submitted that the judge in any event had to find what the exposure was and that on balance he was correct to say that it was not 8 or more hours a day at 85dB(A) or more. He was entitled to rely on Captain Krellin whom he accepted as a witness of truth. Captain Krellin had said that when he visited the galley the noise level was not excessive.
The evidence
The judge recorded the fact that two of the claimant's shipmates had said that the galley was a noisy environment. But that was to understate the effect of their evidence. The primary evidence came from Mr Gunning who worked in the cafeteria of the same ships as those on which Mr Keefe worked. He explained that they were both required to work 16 hours in every 24 hours and that the noise levels were extremely high. He could not, of course, put a precise measurement on the noise but he said this in his statement:—
“10. My job duties during this period of time would have been the same as that of Mr Thomas Keefe i.e. cooking for crew and passengers, cabin cleaning and general duties on board each ship. We would have been exposed to excessive levels of noise due to engine noise, vibrations and noise from the ship as well as noise from the galley. Noise also came from vehicles embarking and disembarking the ship as well as the noise from chains being attached and unattached from the vehicles by the deck hands and dockers when boarding and unloading operations were taking place. The noise levels were extremely high and we were never provided with any hearing protection.
……
15. Noise emanated excessively from the ship's engines for 24 hours per day for the 7 days we would have been on the...
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