Mackenzie v Alcoa Manufacturing (Gb) Ltd

An adverse inference from an employer’s failure to produce historic workplace noise surveys is not automatic. Whether an inference should be drawn, and its nature and extent, depend on the circumstances. There must be an evidential foundation, while the explanation for missing evidence and the strength of the other evidence remain material.

The approach in Keefe v Isle of Man Steam Packet Co Ltd [2010] EWCA Civ 683 is an example of fact-finding, not a rule requiring an inference whenever surveys are unavailable. A court may rely on cogent engineering evidence derived from the work undertaken, professional experience and sufficiently comparable processes. An appellate court may interfere with a trial judge’s factual finding only where the evidence provides no basis for it, material evidence was misunderstood or overlooked, or the finding cannot reasonably be justified.

The claimant sought damages for noise-induced hearing loss allegedly caused while working at the appellant’s aluminium factory between 1963 and 1976. The County Court dismissed the claim after accepting the single joint engineer’s opinion that the claimant was unlikely to have been regularly exposed to noise above 90 dB(A). It declined to infer excessive exposure from the absence of historic noise surveys.

On appeal, Garnham J allowed the claim by applying Keefe v Isle of Man Steam Packet Co Ltd [2010] EWCA Civ 683 and remitted the case for assessment of damages: [2019] EWHC 149 (QB). The employer appealed. The principal questions were whether the judge had properly applied Keefe, when the common-law duty to undertake a noise survey arose, whether any survey had been omitted, and whether the trial judge could rely on the engineering evidence.

1. Appeal allowed unanimously. The order of Garnham J was set aside and the County Court order dismissing the claim was restored.

2. Whether an adverse inference is appropriate, and its precise nature and extent, depends on the circumstances. Silence or failure to produce documents may convert an opponent’s evidence into proof, but only where the evidence provides a reasonable foundation for the inference. The court must also consider any explanation for the missing material and the effect of the other evidence.

3. Keefe v Isle of Man Steam Packet Co Ltd [2010] EWCA Civ 683 did not establish a rule that an adverse inference must be drawn whenever an employer cannot produce historic noise surveys. Keefe concerned a defendant whose breach of its duty to measure noise had deprived the claimant of evidence. Treating it as an inflexible rule would elevate an example of proper fact-finding into a rule of law.

4. The County Court judge had been entitled to find that it was impossible to establish that the appellant had failed to undertake a survey. The documents might have been lost during the long period since the employment ended and after the factory closed. The High Court lacked a sufficient basis for overturning that factual finding. An appellate court must exercise particular caution because the trial judge evaluates the whole body of evidence.

5. The single joint engineer had considered the claimant’s work, the circumstances in which it was performed, his engineering experience and data from a comparable factory. His evidence went beyond saying merely that the claimant could not discharge the burden of proof. The County Court judge could accept his affirmative opinion that regular exposure above 90 dB(A) was unlikely and could therefore decide the claim without resorting to an adverse inference.

6. For noisy industries outside those in which noise had long been recognised as a problem, the common-law duty to consider, undertake and act on a noise survey arose around 1973 or 1974 following the 1971 guidance and the 1972 Code of Practice. The parties consequently accepted that any recoverable period could not have begun before then. That issue did not affect the restored dismissal.

1. Court of Appeal (Civil Division): The employer’s appeal was allowed unanimously. The High Court order was set aside and the County Court order dismissing the claim was restored: [2019] EWCA Civ 2110.

2. High Court, Queen’s Bench Division: Garnham J allowed the claimant’s appeal and remitted the case to the County Court for assessment of damages: [2019] EWHC 149 (QB).

3. Swansea County Court: HHJ Vosper QC dismissed the claim after accepting the engineering evidence and declining to draw an adverse inference from the absence of historic noise surveys.