Mackenzie v Alcoa Manufacturing (Gb) Ltd

Factual and Procedural Background

This appeal concerns the circumstances under which an adverse inference may be drawn against a factory operator in industrial deafness claims when workplace noise was present but no noise survey is available. The case involves an appeal from the High Court of Justice at the Cardiff Civil and Family Justice Centre, where Mr Justice Garnham allowed an appeal against a decision by His Honour Judge Vosper QC at Swansea County Court. HHJ Vosper QC had dismissed a claim for damages for noise-induced hearing loss brought by the Plaintiff against, among others, Company A. Garnham J. ordered that damages be assessed for the Plaintiff's hearing loss and consequential losses.

The Plaintiff worked at Company A’s factory in The City from 1963 until about 1976, initially as an apprentice electrician exposed to noise. The Plaintiff claimed continuous exposure to noise during his working hours. There were no noise surveys available from the factory, which had since closed, and no documents evidencing such surveys were found. Expert engineering evidence was provided based on noise surveys from a different factory operated by a different party.

At trial, the Plaintiff gave evidence describing noisy working conditions but acknowledged he had not seen any noise surveys conducted. The trial judge found the Plaintiff’s evidence about noise exposure was not sufficiently reliable and accepted the expert’s opinion that it was unlikely the Plaintiff was regularly exposed to noise levels exceeding 90 dB(A). The trial judge dismissed the claim. On appeal, Garnham J. allowed the appeal, finding that an adverse inference should be drawn due to the absence of noise surveys and that the Plaintiff’s evidence should be accepted.

Legal Issues Presented

1. Whether the Court of Appeal’s decision in Keefe v Isle of Man Steam Packet Company Limited should be applied to draw an adverse inference against the Defendant for failing to produce noise surveys.
2. When the common law duty to carry out a noise survey arose in relation to the factory.
3. Whether the trial judge was entitled to rely on the expert engineering evidence despite the absence of noise surveys.
4. Whether the trial judge should have accepted the Plaintiff’s evidence given some findings that parts of it were exaggerated due to the passage of time.

Arguments of the Parties

Appellant's Arguments

• The precedent set in Keefe was inapplicable because undisputed expert engineering evidence showed noise levels did not exceed 90 dB(A) Lepd during relevant times.
• There was no evidence that a noise survey was not carried out; the absence of such surveys after 39 years was unsurprising and did not justify an adverse inference.
• The duty to carry out noise surveys arose no earlier than 1974, not 1970 as found by Garnham J., due to a misdescription of the edition of the guidance document "Noise and the Worker".
• The trial judge was wrong to accept the Plaintiff’s evidence fully, as it contained innocent exaggerations regarding working times and conditions.

Appellee's Arguments

• The application of Keefe was appropriate because the expert engineering evidence related to a different factory and there was no evidence that any noise survey had been carried out at the relevant factory.
• No noise survey documents were listed or produced, despite the factory operating long after the Plaintiff ceased working there and Company A maintaining a registered office until about 2015.
• It was agreed that Garnham J. had been misled about the edition of "Noise and the Worker," meaning no breach of duty arose before about 1974.
• The trial judge was correct to rely on the Plaintiff’s evidence regarding noise exposure.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Keefe v Isle of Man Steam Packet Company Limited [2010] EWCA Civ 683	Adverse inference against employer for failure to carry out noise measurements when duty exists.	Considered central to whether an adverse inference should be drawn against Company A; ultimately distinguished and not applied due to expert evidence and passage of time.
British Railways Board v Herrington [1972] AC 877	Adverse inferences can be drawn from a party’s failure to call evidence within their control.	Referenced regarding drawing inferences from absence of noise surveys; court found absence explainable by passage of time.
Parkes and others v Meridian and others	Common law duty to avoid exposing workers to noise above 90 dB(A) Lepd and timing of duty to carry out noise surveys.	Used to establish when the duty to conduct noise surveys arose, supporting that it arose around 1973-1974.
Thompson v Smiths Shiprepairers [1984] QB 405	Courts should not readily dismiss hearing loss claims based on burden of proof alone.	Cited to support approach in assessing evidence in industrial deafness claims.
Gibbs v Rea [1998] AC 786	Silence or failure to give evidence can convert slender evidence into proof if unexplained.	Referenced in relation to drawing inferences from absence of evidence or documents.
Wiszniewski v Central Manchester Health Authority [1998] PIQR P324	Adverse inferences require some evidence to raise a case to answer; explanations may reduce or nullify inferences.	Considered in evaluating whether adverse inference was appropriate given explanations for missing noise surveys.
Shawe-Lincoln v Dr Arul Chezhayan Neelakandan [2012] EWHC 1150	Whether and to what extent to draw adverse inferences depends on facts and context.	Used to emphasize fact-specific approach to adverse inferences.
Garner v Salford City Council [2013] EWHC 1573	Differentiates cases where no duty existed from those where it did, impacting inference drawing.	Distinguished Keefe where no duty to act existed at the relevant time.
Petrodel Resources Limited v Prest [2013] UKSC 34	Caution against converting speculation into fact; adverse inferences require reasonable basis.	Referenced in cautioning the court’s approach to drawing adverse inferences.

Court's Reasoning and Analysis

The court undertook a detailed analysis of the timing and existence of the common law duty to carry out noise surveys. It found that the duty did not arise before the late 1960s and more clearly arose around 1973-1974 following the publication of relevant guidance and codes of practice. The court considered the absence of noise surveys and the explanations for their non-availability, concluding that the passage of time reasonably explained the lack of such documents.

The court carefully reviewed the expert engineering evidence, which was based on surveys from a different factory but informed by engineering experience. The trial judge’s acceptance of this evidence was deemed reasonable, as it suggested the Plaintiff was unlikely to have been regularly exposed to noise levels exceeding 90 dB(A).

Regarding the application of the Keefe principle to draw an adverse inference, the court held that such an inference is fact-dependent and not an automatic rule. In this case, because the expert evidence was cogent and there was a plausible explanation for the absence of noise surveys, the adverse inference was not justified.

The court also addressed the Plaintiff’s evidence, acknowledging that some recollections were understandably imprecise due to the passage of time but found no basis to reject it entirely. However, this did not affect the overall conclusion as the expert evidence was determinative.

Ultimately, the appellate court concluded that the trial judge’s factual findings, including the absence of breach of duty by Company A in failing to carry out noise surveys, were supported by the evidence and should not be overturned.

Holding and Implications

The appellate court ALLOWED THE APPEAL and restored the trial judge’s dismissal of the claim for damages.

The direct effect of this decision is that the Plaintiff’s claim for damages for noise-induced hearing loss against Company A is dismissed. The court clarified that an adverse inference under Keefe is not automatic but depends on the facts, including the existence of a duty, availability of evidence, and explanations for missing documents. No new precedent was established; rather, the court reaffirmed established principles regarding adverse inferences and the evaluation of expert evidence in industrial deafness claims.