5 December 2019
Adverse Inferences Drawn From Failure to Adduce Noise Surveys: Brian MacKenzie v Alcoa Manufacturing (GB) Ltd  EWCA Civ 2110.
Author: Bethan Davies
The Claimant brought a claim for noise induced hearing loss (“NIHL”) which he alleged was caused by exposure to excessive levels of noise in the course of his employment with the First Defendant at the Second Defendant’s premises at various times between 1963 -1976. At First Instance The Defendants disclosed no evidence pertaining to noise surveys that had been conducted at the relevant time, neither did they provide any explanation for the absence of the same. In light of this, the jointly instructed engineering expert was unable to rely on contemporaneous noise surveys and relied on comparable evidence. The expert’s opinion was that it could not be concluded that the Claimant’s noise exposure exceeded 90dB(A)Lepd. The Claimant submitted that the Defendant’s failure to carry out noise surveys, and the consequent inability of the engineer to rely on contemporaneous evidence as a result, gave rise to an adverse inference, as per Keefe v The Isle of Man Steam Packet Company Limited  EWCA Civ 683. On this basis the Claimant submitted that his own evidence with regard to noise levels should be preferred over the joint engineering evidence. HHJ Vosper QC found that the Claimant had, unintentionally, exaggerated his description of the noise levels to which he was exposed, and thus the evidence before the engineer would in turn represent an exaggerated account. He considered that the significant passage of time made it ‘unsurprising’ that no noise surveys were available and that there was no evidence to say, one way or the other, whether they had existed or had never been undertaken On this basis, Keefe was distinguished; the evidence of the Claimant was not sufficiently precise to reject the engineering evidence in favour of it. Accordingly, the Claimant’s claim was dismissed. The First Appeal On appeal against the Second Defendant only, Garnham J overturned the first instance decision on the basis that the trial judge should have concluded causative breach of duty was established. Garnham J held that, in circumstances where a duty to produce noise surveys was in existence, surveys were not produced, and a reason for the absence of the same was not provided, Keefe does apply: “…it follows that the judge was wrong to distinguish Keefe. The dicta in that case did apply. From 1970 the defendant should have been obtaining noise surveys. None were produced at trial. No evidence, as opposed to mere submissions, was advanced to explain why no noise survey could be produced. In the circumstances, applying Keefe, it does not lie in the defendant’s mouth to say that noise levels were not excessive.”  Thus, in light of the application of Keefe, the correct finding was that the Claimant was exposed to tortiously high levels of noise. The Second Appeal The Court of Appeal had two key issues to determine:
- Was Garnham J. wrong to apply Keefe, which required consideration of: when the common law duty to carry out noise surveys arose, had noise surveys been carried out at the material time, whether HHJ Vosper QC was entitled to rely on the engineering evidence;
- 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.