Relief for NIHL practitioners as Court of Appeal hands down eagerly awaited judgment

29 Nov 2019

Brian Mackenzie v Alcoa Manufacturing (GB) Limited  29.11.2019

The Court of Appeal has today handed down judgment in the keenly awaited appeal by Alcoa Manufacturing (GB) Limited, represented by BLM, in what will be a relief to NIHL practitioners.

First instance decision – HHJ Vosper QC 17/08/2017

Mr Mackenzie brought his claim for NIHL in respect of his alleged exposure to noise during the course of his employment with the first defendant. He worked on the premises of the second defendant (Alcoa), between 1963 – 1968 and 1969 – 1976 as an apprentice electrician, installing plant and maintaining and repairing machines. Though the second defendant was live, due to the amount of time which had elapsed since cessation of the claimant’s employment, no noise surveys were available.

Engineering evidence was obtained on a joint basis. This concluded, on the basis of the engineer’s experience and a noise survey he had in his archive which related to a similar plant in 1989, that the claimant’s average daily exposure would not have exceeded 90dB(A) during the claimant’s employment.

It was submitted at trial that the failure to carry out a noise survey, and the engineer’s inability to produce relevant evidence as a result of that, meant that an adverse inference should be drawn, following Keefe v The Isle of Man Steam Packet Company Limited [2010] EWCA Civ 683 and that the claimant’s evidence should be preferred over the joint engineering evidence.

HHJ Vosper QC found that at trial it was clear the claimant had unintentionally exaggerated the extent of his exposure and that as such, his evidence before the engineer was likely to have exaggerated his exposure in any event. He distinguished Keefe on the basis that the claimant’s evidence was not sufficiently precise to reject the engineering evidence in favour of it and dismissed the claimant’s claim.

Appeal decision – Garnham J. – 31/03/2019

Garnham J. allowed the appeal having found that the defendant should have carried out a noise survey from two years after the publication of the 1971 ‘Noise and the Worker’ edition (erroneously referred to during the hearing as the 1968 edition) which required only one of the questions ‘Have you a Noise Problem?’ to be answered positively (in previous editions from 1963 and 1968 ‘several’ of the answers had to be positive). Noting the defendant had provided no evidence that a noise survey had been carried out, Garnham J. applied a benevolent interpretation to the claimant’s evidence (per Keefe). Doing so should have led the trial judge to the conclusion that causative breach of duty was established.

Permission to appeal Garnham J.’s decision was sought on the basis that:

  1. Keefe had been wrongly applied as there was undisputed joint engineering evidence that noise levels were below 90dB(A);
  2. If there had been a duty to carry out noise surveys, there was no evidence this had not been done, which was hardly surprising given the length of time which had elapsed since the claimant’s employment had ceased;
  3. Any duty to carry out a noise survey had arisen no earlier than 1974 so any finding on breach had to be restricted from 1973/1974 (around two years after the 1971 edition/Code of Practice 1972) until 1976 when the claimant’s employment ceased;
  4. Garnham J. was wrong to interpret the claimant’s evidence benevolently where HHJ Vosper QC had found that, for understandable reasons, his recollection of working times and conditions was not reliable.

Court of Appeal decision – LJ Dingemans, LJ Baker, LJ Bean – 29/11/2019

The main issues were:

  1. Whether Garnham J. was wrong to apply Keefe which required consideration of when the common law duty to carry out a noise survey arose, whether a noise survey had been carried out at the material time, whether the trial judge was entitled to rely on the engineering evidence and the relevant authorities on inferences, and;
  2. Whether Garnham J. should have accepted the whole of the claimant’s evidence in circumstances where some of his evidence had been found by the trial judge to be innocently exaggerated due to the passage of time.

It was common ground, that prior to 1 January 1990, there was a common law duty to avoid exposing workers to noise levels above 90dB(A)Lepd. It was found that a common law duty to carry out and act upon a noise survey arose around 1973/1974, allowing two years to consider the content of the published guidance; namely the third edition of ‘Noise and the Worker’ (1971) and the Code of Practice 1972.

In the first instance decision, HHJ Vosper QC was not prepared to conclude that no noise survey had been carried out and therefore did not conclude that the defendant was in breach of duty for failing to carry one out. Garnham J. then made a positive finding that a noise survey had not been carried out. There was no sufficient basis to overturn HHJ Vosper QC’s finding of fact at first instance; particularly where the absence of noise surveys was explicable due to the passage of time.

It should first be considered whether it appropriate to draw an inference, and if so, the nature and extent of that inference which will depend on the facts of the particular case. Secondly, a failure to adduce relevant documentation may convert evidence on the other side to proof but that would depend on the explanation given for the lack of evidence. HHJ Vosper QC did not draw an inference because he accepted that documents relating to a noise survey from the time may have been lost rather than being absent due to a failure to undertake one and because he accepted the engineer’s finding that the claimant had not been exposed to tortious levels of noise, in any event.

The engineering evidence did more than dismiss the case on the basis of a lack of information. There was consideration of the work done, the circumstances in which it was done, the engineer’s own experience and the results from a comparable factory undertaking comparable processes. It was found that HHJ Vosper QC was entitled to accept the engineer’s conclusions and avoid resorting to drawing an inference.

As such, there was nothing in Keefe which prevented HHJ Vosper QC making the decision that he should rely on the engineer’s conclusion that the claimant was unlikely to have been exposed to noise above 90dB(A)Lepd and entitled not to draw an adverse inference against the defendant for their inability to produce noise surveys given the passage of time. The claim should be dismissed, per HHJ Vosper QC.

What this means for you

We are pleased with the outcome of the appeal given the potentially wide-ranging ramifications that Garnham J.’s decision could have had for any case where there was a lack of evidence from one of the parties. This will be more keenly felt in the NIHL world where, in a majority of claims, allegations of exposure date back many years and defendant companies are often long dissolved.

The Court of Appeal was clear that there should be no risk that the adverse inference being drawn in Keefe should be elevated to a rule of law to be applied; rather, Keefe should stand simply as an example of a proper approach to finding facts in a particular case.

In the future, it was recommended that in cases where it is relevant to determine whether a noise survey was undertaken, both parties should address the existence of documents in either questions pre-trial or in the evidence at trial to avoid the trial judge having to make a factual finding based solely on submissions.

Laura Topping, occupational disease partner at BLM, acting for Alcoa Manufacturing (UK) Limited, said:

It is very pleasing that the appeal was allowed given the potential impact Garnham J.’s decision might have had, certainly in relation to NIHL claims. As such, there is no need for a wholesale review of how a defendant should approach a claim being brought against a company who is unable to provide evidence (whether as a result of it no longer existing or due to the passage of time) and where the claimant says he had to shout to be heard. In addition, there is no need to reconsider the benefit to either party of instructing a single joint engineering expert in those circumstances. The Court of Appeal has reaffirmed the premise that the absence of evidence cannot be interpreted as evidence of its absence.

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Disclaimer: This document does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to customers of BLM. Specialist legal advice should always be sought in any particular case.

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