The standard of proof: MacKenzie v Alcoa Manufacturing (GB) Limited [2019] EWHC 149

12 Mar 2019

BLM recently represented Alcoa Manufacturing (GB) Limited in a noise induced hearing loss claim. Though the defendant was live, due to the amount of time which had elapsed since the claimant’s employment in 1975 / 1976 the defendant did not have any noise surveys or evidence of noise levels.

The claimant proceeded to trial. The claimant alleged that throughout his employment he had to shout to communicate with his colleagues at very close distances and that it was necessary to resort to tapping colleagues on the shoulder to get one another's attention and then they had to lip read.

The parties had jointly instructed an engineer who had undertaken a noise survey on the same site at which the claimant worked in 1989 and from his experience there and his experience generally, concluded that there was not enough evidence to confirm the defendant was in breach. At first instance, His Honour Judge Vosper QC found that the claimant had exaggerated the number of hours he was working and accepted the engineering expert's conclusion that he was unlikely to have been regularly exposed to unsafe levels of noise when working at the defendant's factory.

The claimant on appeal relied on the decision of Keefe v. The Isle of Man Steam Packet Company Limited [2010] and argued that the claimant’s evidence should be judged benevolently when the defendant had failed to take any measurements, assuming it was under a duty to do so.

At the appeal hearing, Garnham J held that Keefe was applicable, went on to give a benevolent interpretation of the claimant’s evidence so as to conclude that the trial judge should have concluded causative breach of duty was established.

BLM on behalf of the defendant is seeking permission to appeal to the Court of Appeal on the basis that Keefe has been wrongly applied in this case as this defendant was not under a binding duty to conduct noise surveys given the time period, there was an undisturbed finding that the claimant had exaggerated his evidence and he should not view the claimant’s evidence so benevolently that it was given more weight that then engineering evidence. In addition, he was wrong to establish tortious exposure to noise such as to constitute a breach of duty by reference to noise levels as opposed to noise dose.

What this means for you

There is currently a great deal of press coverage on this case and issue of absent evidence. However the position remains one which requires judicial scrutiny. As those who deal with NIHL will know, it is the exception rather than the rule for defendants in such claims to have no documentary or witness evidence due to the passage of time whether dissolved or otherwise. If Keefe were to apply to every such case then this could have wide ranging consequences. The matter proceeds and we will update you as the case unfolds.

Laura Topping


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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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