England and Wales Court of Appeal (Civil Division) Decisions

IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CHESTER COUNTY COURT
HIS HONOUR JUDGE DEREK HALBERT
6CH02088

		Royal Courts of Justice Strand, London, WC2A 2LL
		17th June 2010

Lord Justice Longmore:

1. 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.
2. 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.
3. 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.

4. 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.
5. 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).

6. 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.
7. 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.

8. 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.
9. 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.

10. 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

11. 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 vessel at a time. Again noise came from the galleys, the vibrations from the ship itself and vehicles/wagons embarking and disembarking the ship and the noise from the chains which secured the vehicles being attached and removed."

12. In the course of his oral evidence Mr Gunning said this:-

"Q. You say that your job would have been the same as Mr Keefe, "Cooking for crew and passengers, general duties on board ship." And that you were exposed to excessive noise levels, as you put it, and you then deal with noise coming from the galley as well. Can I just ask you this? When you communicated in the galley how did you do that?

A. A lot of times by hand signals going, pointing, like you know …

Q. Why was that?

A. Because you got to understand, like – we were serving the passengers, and as we went into the galley to order more stuff the noise – you know it is really noisy …

Q. Yes.

A. …so if we wanted chips we'd point to the fryer or something of the eggs.

Q. Well, if you spoke would you be able to be heard in normal conversations?

A. It would be very strained. You'd be straining.

Judge. How close would you have to be to somebody in the kitchen – the galley, whatever you want to call it? How close would you have to be to somebody to hear them speaking, without shouting?

A. Without shouting? I imagine a few yards.

Judge. But if I'd gone in there speaking as I am now would you have been able to hear me at this distance?

A. Not really, no. We mostly got …

Judge. I would have had to use my coxing voice, would I?

A. Yes! We mostly got by on hand signals, you know …

Judge. Yes.

A. …so we just got used to each other and did hand signals."

13. In relation to this evidence the judge said that when he asked Mr Gunning how far away it would be possible to hold a normal conversation he indicated that at times it was possible at 10 feet or so. Unfortunately the judge is here mis-remembering the evidence, because Mr Gunning had only said that in relation to what the judge had called "my coxing voice". The whole point about the coxing voice was that it was not normal conversation. (The judge had earlier explained he had been a cox in his younger days). The witness said that they mostly got by on hand signals since normal conversation was impossible to hear.
14. The judge then said that holding a normal conversation at 10 feet or so was inconsistent with a noise level of 90Db, the claimant's expert (whom the judge preferred to the defendant's expert) having said that using sign language was indicative of 90dB plus. The judge therefore appeared to accept that, if hand signals were normally used, that would be indicative of a noise level of 90Db. Since Mr Gunning had said hand signals were normally used (and conversations could only be carried on at coxing voice volume) and he was not shaken in cross-examination, the judge should, in my view, have accepted, in the absence of compelling contrary evidence, that noise levels were at or about 90dB while Mr Keefe was working in the galleys of the ships in which he was employed and, indeed, that it was probable that during a 16 hour shift that noise level was maintained over a period of 8 hours or more.
15. Mr Keefe's other witness Mr Santamera did not add much to Mr Gunning's evidence but the judge criticised the evidence of both gentlemen in relation to other matters such as the location of the crew accommodation on the various ships. He described them both as obviously truthful witnesses however, and their failure to remember accurately where the accommodation was situated does not to my mind afford any sufficient justification for disregarding their evidence about noise.
16. The judge was impressed by the evidence of the defendant's master Captain Krellin who had commanded ships for the company. He said that he made a point of visiting every area of every ship he commanded as frequently as possible and accepted that the engine room and the vehicle deck were noisy and that employees in those areas had been offered ear protection. But overall he said that the environment on board ship was "not that noisy". The judge concluded his assessment of Captain Krellin by saying that the Captain could not explain the total failure of the defendants to make any assessment of noise level in parts of the ship other than the engine room and the vehicle deck.

"and was visibly ill at ease when asked about it."

17. Impressive as Captain Krellin no doubt was, he cannot have spent all that much time in the galleys of the ships under his command. Most of the time he would inevitably have been on the bridge for the comparatively short voyages between Heysham and Douglas and any visits to the galley would be likely to have been at times when the engines were least active.

Breach of Duty

18. If matters had rested there, it might have been difficult for this court to reverse the judge on what is, at any rate primarily, a question of fact namely whether excessive noise in the course of Mr Keefe's employment caused his undoubted hearing loss, however unsure this court might be that the judge had reached the correct conclusion. But in the present case there is the potent additional consideration that any difficulty of proof for the claimant has been caused by the defendant's breach of duty in failing to take any measurements. The judge does not appear to have given any weight to this important factor. Indeed his whole judgment on the question of breach of duty is something of a puzzle. In para 2.4 he isolates the issue whether the defendants were in breach of duty. In para 4.4 he makes what is apparently a clear finding of breach of duty in that they failed to measure noise levels at most locations on board ship. But in para 6.3 he says that breach of duty is not proved. This is, to say the least, something of a muddle on an important issue.
19. 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. 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 see British Railways Board v Herrington [1972] AC 877, 930G. 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.
20. This has been accepted law since Armory v Delamirie (1721) 1 Strange 505 the famous case in which a chimney sweep found a jewel in a chimney and left it with a pawnbroker for valuation. The pawnbroker, in breach of duty, failed to return it and could not be heard, when sued, to assert that the chimney sweep could not prove its value. The court awarded the highest sum realistically possible. A bailee's duty towards his bailor is, of course, different from an employer's duty to his employee but breach of the latter duty is not necessarily less serious than breach of the former.
21. The fact that the judge gave no (or virtually no) weight to this breach of duty coupled with my serious reservations about the reasons why he rejected the claimant's evidence persuades me that his judgment cannot stand and that, in the absence of a plausible competing course of the claimant's hearing loss, this court should substitute the conclusion (to which he ought to have come) namely that the probability was that the claimant's loss of hearing was caused by excessive noise while employed on the defendant's vessels. The fact that Mr Keefe served on other ships after leaving the defendant's employment for a period of about 100-110 days during 6 years cannot constitute a serious competing cause even if there had been reliable evidence of noise on the other ships which there was not.
22. The judge relied on Barrand v British Cellophane Plc (21^st January 1996 unreported) where a claim did fail because the claimant had not shown he was exposed to excessive noise for longer than the period of time which the code of practice regarded an acceptable. But the facts disclosed not only that the claimant had only been exposed to excessive noise at the requirement of the defendants for short periods of time but also that there were other competing causes. The case is not a safe guide to the resolution of the present case. The approach of Neuberger LJ in Harris v BRB (Residuary) Ltd [2006] PIQR P10; [2005] EWCA Civ 900 para 19 is more apposite:-

"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 simply to shelter behind the burden of proof and dismiss the claim."

Respondent's Notice

23. The defendants have taken various points in their respondent's notice but there is nothing in any of them:-

i) It is said that the judge should not have found that the noise level in the galley exceeded 90dB at certain times. But as will be apparent from what I have already said there is plenty of evidence which justified that conclusion. In fact the judge realised (no doubt in the light of Baker, a copy of which he had been sent after the conclusion of the argument but before he gave judgment) that the relevant level was more properly to be regarded as 85dB(A), see para 5.4;

ii) It is next said that Mr Keefe had failed to show it "was unreasonable of the defendant to follow the Code of Practice". But the defendant's failure to follow the Code in relation to measurement was a breach of duty and was, therefore, unreasonable;

iii) Next it is said that Mr Keefe had not established that his hearing loss was sustained during the course of his employment. But that is not the right question. The right question is whether his hearing loss was caused by noise occurring in the course of his employment. The answer to that in the absence of any other competing cause, is that it was;

iv) Lastly it is said that Mr Keefe's hearing loss was not caused by any breach on the part of the defendants. But once the occurrence of the hearing loss is determined to be excessive noise occurring in the course of employment, the defendants are in breach of duty if they do not offer protection against that excessive noise.

Quantum

24. The parties agreed that if the appeal were to be allowed we should do our best to assess quantum on the basis of their closing submissions in writing to the judge. On any view this is a small claim. The JSB guidelines suggest a figure between £4750 and £8000. But since Mr Keefe was only aware of his hearing loss between the date of the audiogram in April 2004 and his death on 1^st June 2007, any figure should be at the lower end of the bracket, say £6000. Since only half of his impairment was due to noise, that figure will reduce to £3000. It is arguable that this figure should be further reduced to take into account the small amount of time served on other ships. But there was no reliable evidence about noise in other ships and I would consider £3000 to be overall the right award.

Conclusion

25. I would allow this appeal, set aside the judge's order and award £3000 plus appropriate interest which counsel can, no doubt, calculate in the course of agreeing an order. It is much to be deprecated that the case has had to come to this court to achieve so small a result.

Lord Justice Aikens:

26. I agree.

Lady Justice Arden

27. I also agree.