Croftons Solicitors LLP

Keefe -v- The Isle of Man Steam Packet Company Limited [2010] EWCA Civ 683

Ground breaking case law handed down from the Court of Appeal this week means that Defendants in noise induced hearing loss claims can no longer rely on the fact that they have no records of noise levels within the Claimant’s place of work as their defence. Should a Defendant try to raise this they will ultimately run the risk of having adverse inferences drawn from the absence of such records.

Mr Keefe spent his working life as a seaman and was employed by the Defendant for over 30 years. During this time, he suffered serious hearing damage. His claim was initially dismissed by HHJ Halbert sitting in Chester because, in his view, Mr Keefe had not proved that he had been exposed to a sufficient amount of noise over a significant period.

Neither party was able to provide engineering evidence of noise levels in the ships where Mr Keefe worked. However, by providing ear protectors for employees, the Defendants had shown that they were aware of noise problems.

In allowing the appeal LJ Longmore stated that;

‘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. If a defendant fails to call witnesses at his disposal who could have evidence relevant to an issue in the case, that defendant runs the risk of relevant adverse findings. Similarly 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. To my mind this is just such a case.”

Posted on 12.07.10

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