In Mackenzie v Alcoa Manufacturing (GB) Ltd [2019] EWCA Civ 2110, the Court of Appeal has clarified the proper approach to findings of fact in noise-induced hearing loss (NIHL) claims in circumstances where a claimant has difficulty in proving the claim because the defendant has failed to carry out obligatory noise surveys during the claimant’s employment. Previous Court of Appeal authority in Keefe v Isle of Man Steam Packet Co Ltd [2010] EWCA Civ 683 allowed a court to draw adverse inferences in this situation, treating the claimant’s evidence benevolently and the defendant’s critically.
The claim in Mackenzie arose from employment in a factory in the 1960s and 1970s. It was dismissed at first instance by the county court, as the expert engineering report found that the claimant would not have been exposed to negligent levels of noise. The report was based on a more recent, but comparable noise survey. At the disclosure stage, the defendant had not listed any noise surveys. The judgment noted that surveys might have been taken but since lost, so there was no evidence on which to find that the defendant had breached its duty to conduct noise surveys. On appeal, the claim was reinstated on the basis that the judge should have drawn adverse inferences under Keefe. The claim was remitted back to the county court for assessment of damages.
The defendant appealed to the Court of Appeal, which upheld the original dismissal, making the following points.
- There were no grounds to overturn the original decision that it was impossible to conclude whether noise surveys had been taken or not. Appellate courts should be very cautious about overturning findings of fact and only do so if the original finding had no evidential basis or was based on a demonstrable misunderstanding of the evidence. That was not the case in this claim.
- In the circumstances of the present case, the defendant’s duty to carry out noise surveys had not arisen until 1973 or 1974, so any period of liability would be reduced accordingly in any event.
- The county court had correctly relied on the expert engineering evidence based on a later, but comparable noise survey to avoid the need to resort to inferences, especially as the claimant’s evidence had been shown to be exaggerated.
The Court of Appeal indicated that in future, defendants to NIHL claims should make it clear in their list of documents whether noise surveys were never taken, or existed but have been lost. If no noise surveys were taken, but expert engineering evidence can be produced based on similar, comparable noise surveys, this should be done in order to avoid the need for the court to resort to inferences which can be significantly more subjective.
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