Absence of noise surveys and the drawing of adverse inferences

Mackenzie v Alcoa Manufacturing (GB) Limited [29.11.19]

This article was co-authored by Priya Kaur, Litigation Assistant, Sheffield office. 

In this noise induced hearing loss claim, the Court of Appeal upheld the decision at first instance that adverse inferences could not be drawn against the defendant where there was a lack of noise surveys.

Background

Mr Brian Mackenzie (the claimant) was employed with Alcoa Manufacturing (GB) Limited (the defendant) from 1963 to 1976, and alleged the defendant was negligent in failing to carry out noise surveys (surveys) to ensure he was not exposed to unsafe levels of noise.

The parties relied upon a single joint engineering report, who for the purpose of his report drew on his own experience and addressed the claimant’s likely noise levels by referring to a survey from a different company who had a similar factory to that of the defendant.

The engineering report confirmed that without observation of contemporaneous surveys from the premises at which the claimant worked, it was not possible to sufficiently demonstrate that the claimant’s average daily noise exposure would have reached or exceeded what was acceptable at the time, being 90 decibels (dB(A)).

The claimant invited the court to draw an adverse inference against the defendant for not producing any surveys and make a finding for breach of duty. The defendant argued that just because they could find no surveys for the purpose of this claim, did not mean they were not undertaken at the time of the claimant’s employment, which ceased some 39 years ago.

At first instance, the court found in favour of the defendant and refused to draw any such inferences. The claimant appealed and the High Court disregarded the engineering evidence and the reliance of the survey from a different company, and found the defendant had breached their duty, due to their failure to undertake their own surveys. The defendant obtained permission to appeal.

Decision

The Court of Appeal accepted the decision made in the first instance and as such, the court was entitled to accept that given the passage of time and the closure of the defendant’s site, adverse inferences could not be drawn from the defendant’s inability to produce any surveys in the present day. There was no evidence to say, one way or the other, that surveys had never been undertaken and a finding of breach of duty against the defendant was refused.

Comment

Given the frequency of situations whereby documentation is unable to be traced by defendants due to the passage of time, this decision is to be welcomed as it allows defendants to argue that adverse inferences should not be drawn, when they are unable to obtain documents.

The case also confirms that engineering evidence is capable of preventing a finding of breach of duty. Defendants should undertake early investigations into the availability of supporting documents, to ensure they can provide a proper explanation as to why they cannot be found, so as to put themselves in a position whereby drawing an adverse inference would be difficult to find.

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