Adverse Inferences Drawn From Failure to Adduce Noise Surveys: Brian MacKenzie v Alcoa Manufacturing (GB) Ltd [2019] EWCA Civ 2110.

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 [2010] 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.” [41]

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:

1. 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;

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.

Giving the lead judgment of the Court of Appeal, Dingemans LJ noted that that 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 [37]. Further, a common law duty to carry out, and act upon, noise surveys arose in 1973/1974 [40].

As to the absence of noise surveys, the Court held that HHJ Vosper QC was entitled to conclude that the Defendant had not necessarily failed to adduce evidence of noise surveys because the same had not been carried out; “…silence or a failure to adduce relevant documents may convert evidence on the other side into proof, but that may depend on the explanation given for the absence of the witness or document” [50]. There was no sufficient basis for Garnham J to overturn this finding at first instance.

As to whether an inference should be drawn, an inference was not drawn at first instance as HHJ Vosper QC concluded noise surveys may not have been adduced due to their being lost, rather than the same never existing.  Moreover, the trial judge had accepted the expert’s evidence that, regardless of the lack of noise surveys, the Claimant had not been exposed to noise in excess of 90dB(A)Lepd. In forming this conclusion, the expert had not merely relied on a lack of noise surveys, rather he had considered carefully the Claimant’s role, the environment in which the Claimant worked, and noise levels in comparable environments.

The decision of Garnham J “…risked elevating the decision in Keefe to a rule of law, rather than an example of a proper approach to finding facts in a particular case” [55]. There was nothing in Keefe which prevented a judge from refraining to draw adverse inferences against a defendant who does not produce evidence of noise surveys; the drawing of such inferences is fact-specific. As such the Second Defendant’s Appeal was allowed, the decision of HHJ Vosper QC was restored, so that the claim was dismissed.

Comment 

The Court of Appeal has made clear, that whilst adverse inferences may be drawn from a Defendant’s inability to adduce noise surveys in NIHL cases, whether such are drawn depends upon the specific facts of the case. Keefe is not, and should not be elevated to, a rule of law to be applied in all such cases; rather it is an instantiation of the correct approach to be taken on its particular facts.

The judgment illustrates that it is desirable for Defendants in historic NIHL claims to adduce evidence, wherever possible, as to why noise surveys are not available. A statement from the Defendant’s solicitor or a suitable officer of the Defendant company outlining the Defendant’s corporate history and any investigations which have been performed in the search for such evidence may well assist in demonstrating that the absence of noise surveys can be explained simply by the passage of time.

Further, engineering evidence is not to be automatically discounted or excluded where Keefe is deemed to apply; such evidence should be considered by the Court in determining whether an inference, or what degree of inference, is to be drawn.

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