Mr Brian Mackenzie v Alcoa Manufacturing (GB) Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Bean,Lord Justice Dingemans,Lord Justice Baker |
| Judgment Date | 29 November 2019 |
| Neutral Citation | [2019] EWCA Civ 2110 |
| Date | 29 November 2019 |
| Docket Number | Case No: B3/2019/0487 |
| Court | Court of Appeal (Civil Division) |
[2019] EWCA Civ 2110
Lord Justice Bean
Lord Justice Baker
and
Lord Justice Dingemans
Case No: B3/2019/0487
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MR. JUSTICE GARNHAM
Royal Courts of Justice
Strand, London, WC2A 2LL
Patrick Limb QC & Gareth McAloon (instructed by BLM LLP) for the Second Defendant/Appellant
Theo Huckle QC and Christopher Johnson (instructed by SSB Law) for the Claimant/Respondent
Hearing date: 6 November 2019
Approved Judgment
Introduction
This appeal raises an issue about the circumstances in which it will be appropriate to draw an inference adverse to the operator of a factory in industrial deafness cases where there was noise in the workplace and no noise survey is available. It involves a consideration of the proper effect of the judgment of the Court of Appeal in Keefe v Isle of Man Steam Packet Company Limited [2010] EWCA Civ 683.
This appeal is from the judgment of Mr Justice Garnham dated 31 January 2019 sitting in the High Court of Justice at the Cardiff Civil and Family Justice Centre. Garnham J. had heard and allowed an appeal from the judgment of His Honour Judge Vosper QC dated 17 August 2017 sitting at the Swansea County Court. HHJ Vosper QC had heard a trial of the claim for damages for personal injury for noise-induced hearing loss brought by Brian Mackenzie (“Mr Mackenzie”) against, among other defendants, Alcoa Manufacturing (GB) Limited (“Alcoa”). HHJ Vosper QC dismissed the claim for damages. Garnham J. allowed the appeal and ordered that damages for Mr Mackenzie's hearing and consequential losses should be assessed.
Issues on appeal
Mr Limb QC submitted that Keefe could not be applied to this case because there was in this case undisputed expert engineering evidence from which the judge could find that the noise levels had not exceeded the limits of 90 dB(A) Lepd at the relevant times. Mr Limb also submitted that, if there was a duty to carry out a noise survey there was no evidence that a noise survey was not carried out. The fact that a noise survey could not be found some 39 years after Mr Mackenzie had ceased working at the factory should not come as a surprise and it was therefore wrong to draw a Keefe adverse inference. Further Mr Limb submitted that any duty to carry out a noise survey did not arise until at least about 1974, and not 1970 as found by Garnham J. Garnham J. had been innocently misled by the misdescription of the revised version of the third edition of “Noise and the Worker” dated 1971, as the second edition of “Noise and the Worker” dated 1968. This meant that at the least the appeal should be allowed by restricting any finding of breach of duty to the period from 1974 to 1976. Mr Limb also submitted that Garnham J. was wrong to accept Mr Mackenzie's evidence because the trial judge had found that, for very understandable reasons, Mr Mackenzie's recollection of working times and conditions was not reliable.
Mr Huckle QC submitted that Garnham J. was right to apply Keefe because although there was uncontested expert engineering evidence it related to a survey of a different factory operated by a different party. Further there was nothing to suggest that a noise survey had been carried out because no noise survey document was listed in any part of the list of documents, including under the heading of documents which existed at one time but which were no longer in the possession of Alcoa, and the factory had operated for a long time after Mr Mackenzie had ceased working there and Alcoa had had a registered office until about 2015. It was agreed that Garnham J. had been innocently misled by the misdescription of the third edition of the “Noise and the Worker” as the second edition published in 1968. This did mean that there was no breach of duty on the part of Alcoa before about 1974 (allowing for 2 years to consider the guidance, arrange for a survey and implement the changes) and it was therefore common ground that insofar as Garnham J's order had provided for Mr Mackenzie to recover damages from 1963 to 1974, then it required amendment on appeal. Garnham J. had been right to rely on Mr Mackenzie's evidence.
I am very grateful to both Mr Limb and Mr Huckle and their respective legal teams for their helpful written and oral submissions. By the conclusion of the submissions it was apparent that the main issues on the appeal were: (1) whether Garnham J. was wrong to apply Keefe to the present case. This will involve consideration of: when the common law duty to carry out a noise survey arose, relevant authorities on inferences, and whether a noise survey had been carried out by Alcoa at any material time; (2) whether Garnham J. should have accepted the whole of Mr Mackenzie's evidence where some of the evidence had been found by HHJ Vosper QC to be innocently exaggerated as a result of the passage of time.
Relevant factual background
Mr Mackenzie was born on 15 March 1946 and is now aged 73 years. Mr Mackenzie started his working life aged 16 in 1963 and was employed by Holliday Hall Limited to work in Alcoa's factory at Waurnarlwydd, Swansea (“the factory”). Aluminium smelting was carried out at the factory and there was a foundry and extrusion mill. Mr Mackenzie was an apprentice electrician and he worked installing plant and maintaining and repairing machines. Mr Mackenzie's case was that he worked 7 days each week with overtime, although on one day he attended college and the machines were shut from 6 am on Saturday morning until 6 am on Sunday morning and that he was exposed to noise throughout his working day.
In 1968 (when he was aged 22 years) Mr Mackenzie then worked for a few months at Port Talbot when he was not exposed to noise. Mr Mackenzie was then employed by Industrial Needs Limited and returned to work at the factory operated by Alcoa until about 1976 (when he was aged 30 years).
From 1976 to 2002 Mr Mackenzie worked at Ford Motor Company Limited and was also exposed to noise. His claim against Ford was compromised on 4 August 2017, shortly before judgment was given by HHJ Vosper QC on 17 August 2017. In 2002 Mr Mackenzie returned to work for a short period at the factory and he was provided hearing protection and his hearing was tested.
The evidence at trial
At the trial Mr Mackenzie gave evidence. He said he became aware in the summer of 2012 that he had a hearing problem. Mr Mackenzie described the noisy working conditions at the factory and the fact that he could not be heard on occasions. He said he had not seen any noise surveys being carried out.
By the time that the claim was made in 2015 it was 39 years after the relevant time of what was said to be the wrongful exposure to noise at the factory. There were no noise surveys available from the factory, which had since closed down. Alcoa's list of documents did not list any documents relating to noise surveys as having been carried out but no longer retained.
At the trial there was evidence given in the form of a report and answers to CPR Part 35 questions by Mr Kevin Worthington, a consulting engineer working for Acoustic & Engineering Consultants Limited as a single joint instruction by the parties.
Mr Worthington noted that up to the Noise at Work Regulations 1989 it was understood that protection was necessary at levels of noise exposure above 90 dB(A) Lepd averaged over an 8 hour working day.
Mr Worthington noted that Mr Mackenzie described working on the installation of machinery at the factory and noted that “such machinery would not be operational for the majority of the period of installations, with operational conditions only occurring during testing/adjustment of machine operation. Hence, any exposure to noise during such work would be limited to background noise in the mill in general”.
Mr Worthington reported that he had addressed noise levels at the Newport premises of British Alcan, which had contained furnace areas, hot and cold mills, and finishing areas based on a survey carried out by Sound Research Laboratories Limited in 1989. He noted varying noise levels across the Newport premises and recorded that noise levels in the vicinity of the furnaces was typically in the range of 84–90 dB(A) Leq, other noise measurements were higher for 66 Tandem Mill where levels at one operator location were in the range of 97–106 dB(A). A noise measurement for the 66 tension levelling machine when running was 85 dB(A) Leq, and was noted to be 79 dB(A) Leq with the machine shut down “which would be appropriate for a person engaged in the electrical maintenance of such a machine”.
Mr Worthington concluded “… whilst it is accepted that the premises referred to are not those in which the Claimant actually worked, the indication is that whilst there are some areas of such a mill where noise levels could exceed 90 dB(A), the average level for a maintenance/installation employee would be unlikely to regularly exceed such a level. Hence, without observation of contemporaneous noise surveys/measurements from the premises at which the Claimant worked, it is not possible to demonstrate, on the balance of probability, that his average daily noise exposure would have reached or exceeded 90dB(A) during these periods of employment.” Mr Worthington concluded “Based on the limited information currently available it is not possible to demonstrate, on the balance of probability, that the Claimant's average daily exposure level would have reached or exceeded 90 dB(A) during his employment with the 1st Defendant and/or at the premises of the 2nd Defendant. Hence, substantiation of this claim, on engineering grounds, would be very...
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