Mr Brian MacKenzie v Alcoa Manufacturing (GB) Ltd

JurisdictionEngland & Wales
JudgeMr Justice Garnham
Judgment Date31 January 2019
Neutral Citation[2019] EWHC 149 (QB)
Docket NumberCase No: B90YJ215
CourtQueen's Bench Division
Date31 January 2019

[2019] EWHC 149 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

On Appeal from the County Court at Swansea

Cardiff Civil and Family Justice Centre

Cardiff CF10 1ET

Before:

Mr Justice Garnham

Case No: B90YJ215

Between:
Mr Brian MacKenzie
Appellant
and
Alcoa Manufacturing (GB) Limited
Respondent

Christopher Johnson (instructed by SSB Law) for the Appellant

Patrick Limb QC & Gareth McAloon (instructed by Simpson Sissons & Brooke LLP) for the Respondent

Hearing dates: 28th November 2018

Approved Judgment

Mr Justice Garnham

Introduction

1

On 15 November 2017, His Honour Judge Vosper QC handed down judgment in this claim for damages for noise induced deafness. The Judge dismissed the claim against both defendants.

2

The claimant now appeals against the dismissal of his claim against the second defendant, Alcoa Manufacturing (GB) Limited. (Accordingly, the claimant is the Appellant before me and the second defendant is the Respondent. For convenience, however, I will continue to refer to them as “claimant” and “second defendant” respectively). The claimant appeals with permission of the trial judge, as regards Grounds 1–3, and with the permission of Rose J, as regards Grounds 4–5. The five grounds of appeal set out in the notice of Appeal are as follows:

“The decision of the Learned Judge that “ it is not possible to make a finding that [the Respondent] is in breach of duty in failing to carry out noise surveys” ([33] of the judgment) was wrong because:

1. The Learned Judge failed to give sufficient weight to the following factors: (1) that the Respondent was under a duty to conduct noise surveys at the Site between 1963 and 2007 (44 years), but the Respondent has failed to provide any noise surveys; (2) the Respondent could have produced evidence to explain this failure, but has not.

The decision of the Learned Judge that the claimant was not tortuously exposed to noise by the Respondent ([66] of the judgment) was wrong, in relation to the period prior to 1972, because:

2. The Learned Judge was wrong to distinguish the decision in Keefe v Isle of Man Steam Packet Company [2010] EWVA Civ 683 on the basis that there was no expert evidence in that case and there is expert evidence in the present case. Rather, in accordance with paragraph [19] of the judgment in Keefe, the Learned Judge should have judged the “ claimant's evidence benevolently and the defendant's evidence critically”.

3. Had the Learned Judge judged the “ claimant's evidence benevolently and the defendant's evidence critically” he would have found the Respondent to have tortuously exposed the Appellant to noise in the tax years 1963/64 – 1975/76.

The decision of the Learned Judge that the claimant was not tortuously exposed to noise by the Respondent (paragraph [66] of the Judgement) was wrong, in relation to the period after 1972, because:

4. The Learned Judge wrongly did not consider the claimant's submission that for peripatetic workers (such as the claimant), the duty from 1972 onwards was to avoid any exposure at or exceeding 90 dB(A).

5. Further or alternatively, the Learned Judge wrongly did not accept the claimant's submission that for peripatetic workers (such as the claimant), the duty from 1972 onwards was to avoid any noise exposure at or exceeding 90 dB(A).”

3

I accept the opening submission of Mr Patrick Limb QC for the second defendant, that Grounds 1 to 3, and 4 to 5, are better considered and analysed together. The first set of grounds relates to the Judge's conclusion as to the claimant's exposure to noise before 1972, the second set to his exposure to noise as a peripatetic worker from 1972 onwards.

The Factual Background

4

The factual background is well summarised by the trial judge:

“4. From about 1963 to about 1968 (between the ages of 16 and 22) the Claimant was employed initially as an apprentice electrician by the First Defendant but he worked at the factory of the Second Defendant at Waunarlwydd, Swansea. For the first 10 or 12 months of his employment he was engaged in the installation of the hot and cold rolling mills. At that time, he was not exposed to excessive noise.

5. Thereafter he worked in those parts of the factory which he describes in his Particulars of Claim as the foundry and extruding mill and in his replies to Part 18 questions and his witness statement as the strip mill and the extrusion mill.

6. In the foundry or strip mill, he says, aluminium was smelted and rolled. There were 2 smelting furnaces and 4 holding furnaces. They produced ingots of aluminium which were about 3 feet in length and 6 or 9 inches in diameter. Some of these were rolled in the strip mill by hot and cold rolling mills. There were 10 Brightside rolling mills in the strip mill. Some were then cut by cutting machines. The entire process was noisy.

7. In the extrusion mill, which was noisier than the strip mill, ingots were heated in ovens and then pressed in 5 presses ranging in size from 500 to 5000 tonnes. These presses forced the ingots through shaping dyes. The presses were powered by compressors which were noisy and in constant operation. The presses were also noisy. The extruded items were cooled by blowers as they passed down the production line and then cut by cutting machines. All these processes were noisy.

8. The Claimant's job involved installation of plant and maintenance and repair of the machines. He was required to work on a machine, such as a blower or a cutting machine, while the line continued and other blowers and cutting machines were still working. He might have to work on a machine which was itself still working in order to find a fault. A job might be a simple one, taking only minutes to complete, or it might take days. In consequence, he says, he was exposed to noise throughout his working day. He was never more than a few feet from operating machinery. In order to communicate he had to shout or use hand signals. He was provided with no hearing protection and he was given no warning of the dangers of exposure to excessive noise.

9. His pleaded case is that he worked 6 days each week though when he was an apprentice he attended college on one day a week. The machines shut down from 6 am on Saturday until Sunday morning. During his working day there were short breaks but no relief from exposure to noise when the machines were running. He also worked overtime so that his working days were 10 hours long.

10. In about 1968 the Claimant worked for a few months at Port Talbot. During that time, he was not exposed to noise. He then returned to the Second Defendant's factory where he worked from about 1968 to about 1976. He was not then employed by the First Defendant but by Industrial Needs Limited. However, his work did not change. The Claimant was therefore aged about 30 when he ceased work at the Second Defendant's factory…

In 2002 he returned for a short time to work for the Second Defendant. By then the Second Defendant provided hearing protection and tested the Claimant's hearing.”

4

The Judge held that the claimant first had knowledge of his hearing loss in the summer of 2012 and that accordingly, the claim was issued within the relevant limitation period.

The Pleaded Cases

5

The claimant's particulars of claim include an allegation, at paragraph 22, that his injuries were “caused by the negligence and/or breach of statutory duty of the defendants' their servants or agents”. The particulars of negligence include the following:

“a) Failed to make a noise assessment contrary to the Noise at Work Regulations 1989…, regulation 4, or at all …

i) Failed to investigate and take advice on the noise levels in the said premise…

q) Failed to monitor the noise levels at the said premise properly, sufficiently, frequently or at all to ensure the Claimant was not exposed to unsafe levels of noise.”

6

The response of the second defendant in their defence was to make no admission of negligence

“12.2 The Second Defendant makes no admission as to the particulars of breach of statutory duty or negligence set out at paragraph 22(a) to (y) and the Claimant is put to strict proof thereof.”

The Evidence at Trial

7

The Judge received evidence from the claimant and from a consulting engineer, Mr Kevin Worthington, who had been jointly instructed by the parties. The claimant's witness statement, the contents of which he confirmed at the start of his oral evidence, included the following at paragraph 11:

“Throughout my working time working on the Waunarlwydd site, most of it was spent in environments where it was necessary to shout to communicate with my colleagues at very close distances or even resort to having to tap them on the shoulder in order to get their attention or lip read what it is they were trying to relay to me”.

8

The Judge described the evidence of Mr Worthington this way:

“18. …He had knowledge of measurements of noise levels at the premises of British Alcan, also an aluminium producer, at Newport carried out in 1989 by Sound Research Laboratories Limited, which he describes as a reputable noise and vibration consultancy. British Alcan produced sheet aluminium, but, like the Second Defendant, its premises also contained furnace areas, hot and cold rolling mills and finishing areas.

19. Noise levels at Newport varied widely. In the vicinity of the furnaces levels were 84 – 90dB(A)Leq. Along the hot and cold rolling mills levels were measured at 80 – 90dB(A)Leq, though at one point they were at 97 – 106dB(A)Leq. Noise levels exceeding 90dB(A)Leq were measured in areas described as the mill motor room, the roll tables, the hydraulic system area and the hot mill scrap conveyor.

20. The decrease in decibel levels when machinery was shut down was measured with respect to a tension levelling machine and a slitting machine. The drop in noise was from 85 to 79dB(A)Leq in the former and from 88 to 75dB(A)Leq in the...

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    • United Kingdom
    • Court of Appeal (Civil Division)
    • 29 November 2019
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