Court of Appeal overturns first instance decision where Defendant did not measure noise levels; it was probable that the Claimant was exposed to noise levels at about 90dB - Keefe v The Isle of Man Steam Packet Company Ltd 17.6.10

Mr Keefe spent his working life as a seaman working mainly in ships’ galleys. Between 1978 and 1998 he worked for the Defendant on their services between Heysham and the Isle of Man. A subsequent audiogram showed a 22% hearing loss, of which about 50% was held at first instance to be attributable to noise whilst working for the Defendant. There was no engineering evidence of noise levels in the Defendant’s ships, although there was evidence that the use of hand signals was normal. At first instance the claim was dismissed on the basis that the Claimant (Mr Keefe’s widow) could not prove that he was exposed to excessive levels of noise.

Held

The decision at first instance was overturned and the Claimant awarded £3,000 plus interest. The Court of Appeal stated that “If it is a defendant’s duty to measure noise levels in places where his employees work and he does not do so, it hardly lies in his mouth to assert that the noise levels were not, in fact, excessive … a defendant who has, in breach of duty, made it difficult or impossible for a claimant to adduce relevant evidence must run the risk of adverse factual findings.” In the absence of compelling evidence to the contrary, noise levels were at or about 90dB and it was probable that, during a 16 hour shift, that noise level was maintained over a period of eight hours or more.

Comment

Given the amount in dispute, it is perhaps surprising that this case went as far as the Court of Appeal. The decision serves as a useful reminder that, where a defendant has been in breach of duty in failing to measure noise levels, a court is likely to judge a claimant’s evidence benevolently.