Simon Anderson discusses MacKenzie v Alcoa Manufacturing (GB) Limited [2019] EWHC 149.
Park Square BarristersCan a claim for noise induced hearing loss succeed when the absence of noise surveys leads to inconclusive or even unfavourable acoustic engineering evidence? Yes, according to Mr Justice Garnham in MacKenzie v Alcoa Manufacturing (GB) Limited [2019] EWHC 149.
Factual Background
In 1963 the Claimant began an apprenticeship as an electrician with the First Defendant, largely working at the Second Defendant’s mill in Swansea. His role involved the installation of plant, and the maintenance and repair of machines. He had no fixed workstation on the shop floor and was therefore peripatetic. He typically worked in the foundry and extrusion mill, both of which were noisy environments. Aside from a few months spent at Port Talbot, he worked at this site until 1976.
The pleaded case centred on allegations that there were failures to investigate, monitor and take advice on noise levels. The Second Defendant made no admission of breach of duty and put the Claimant to strict proof. No noise survey data whatsoever was disclosed for the site at which the Claimant worked. Instead the Second Defendant relied on surveys from its Newport site.
The Evidence
The Claimant’s evidence was that throughout his working time at the Second Defendant’s site it was necessary to shout to communicate with his colleagues at very close distances. So loud was their environment that they had to resort to a tap on the shoulder to get one another’s attention and face each other when talking so that they could lip read.
The evidence of the single joint expert was that, without contemporaneous measurements, it was not possible to demonstrate that the claimant’s daily noise level reached or exceeded the actionable threshold of 90dB(A). Indeed, and on the basis of the limited available evidence, a peripatetic maintenance engineer such as the claimant was unlikely to have been regularly exposed to noise in excess of this level.
Before the Judge at first instance the claimant had sought to rely on Keefe v The Isle of Man Steam Packet Company Limited [2010] EWCA Civ 683. The Judge considered whether he was able to prefer the claimant’s evidence that he had to shout to make himself heard, and sometimes use hand signals. Nevertheless, he was persuaded by the conclusions of the single joint acoustic engineering expert. In doing so he distinguished Keefe on the basis that the Noise at Work Regulations 1989 had applied in that instance.
The Breach
On appeal the Claimant argued that the Judge had erred in failing to find the Second Defendant in breach of duty by not carrying out noise surveys. Mr Justice Garnham considered the 1963 Ministry of Labour guidance “Noise and the Worker”, and the 1973 Government code of practice “Hearing and Noise in Industry” (see Baker v Quantum Clothing Group Limited [2011] UKSC 17 at para 143) before determining the issue. In particular, he noted that by the time of the second edition of “Noise and the Worker” in 1968 the advice to employers had changed. He concluded that, in workplaces in which noise was a problem, a reasonable prudent employer should have been investigating noise levels in or about 1970. Thus the Second Defendant was in breach of duty.
Relying on paragraphs 18 and 19 of the judgment of Longmore J in Keefe, the Claimant contended that the court should have judged the Claimant’s evidence benevolently and the second defendant’s evidence critically. As was explained in Keefe “…a defendant who has, in breach of duty, made it difficult or impossible for a claimant to adduce relevant evidence must run the risk of adverse factual findings.” Siding with the Claimant, Mr Justice Garnham held that the Judge had been wrong to distinguish Keefe. As for the complete absence of any noise surveys for the relevant premises he found this “surprising”, particularly in view of the regulatory requirements imposed since 1990.
He concluded: “Certainly, when engineering evidence is produced which provides positive evidence as to the level of noise to which workers were in fact exposed at the relevant time and the relevant premises, that is likely to mean the absence of noise surveys is of little significance. But where, as here, the engineering evidence serves simply to explain why it was not possible now to establish to what level of noise workers would have been exposed, that does not make the absence of noise surveys irrelevant. To the contrary, it serves to underline the significance of the absence of such surveys.” (added emphasis)
Analysis
The consequence of the Judge at first instance’s rejection of the application of Keefe was that he did not give the Claimant’s evidence the beneficial interpretation that it called for. It seemed to Garnham J that had the Judge done so, then it was inevitable that he would have concluded that the likelihood was that the Claimant was exposed to tortiously high levels of noise. A benevolent interpretation of his evidence would have involved accepting that the entire process in the foundry was noisy, and that the extrusion mill was noisier still. Moreover, he had to shout to be heard and was exposed to noise throughout his working day. The evidence of the joint expert was that, on occasions at least, the noise level would reach or exceeded 90dB(A). What is more, the expert evidence was unable to disprove that this could not have been the cause of his hearing loss. This throws open the question: what is the purpose of obtaining expert acoustic engineering evidence where the employer has no noise records for the relevant site(s)?
Doubtless the stock plea of all Claimants will be that they were perpetually exposed to loud noise at a level that prohibited conversation. In the absence of rebuttal noise survey evidence for the role or location then the Defendant’s prospects of success will be limited, hence an appeal is expected. Although it should be borne in mind that in this instance Alcoa led no evidence whatsoever as to the noise recordings in either its strip mill or extrusion mill, this in spite of the regulatory regime that has been in place since 1st January 1990. In many respects MacKenzie and Keefe are to NIHL claims what Ward v Tesco [1976] 1 All ER 219 is to occupiers’ liability. Both benefit the Claimant who cannot prove a breach of duty when a Defendant elects not to lead any exculpatory evidence.
The Claimant had also argued that for peripatetic workers, the duty from 1972 was to avoid any exposure at or exceeding 90dB(A). Given his judgment on the other grounds of appeal Mr Justice Garnham saw it as unnecessary to resolve this issue. It seems likely that it will only become necessary to determine this point where the employer has a comprehensive record. The logical extension of Keefe and MacKenzie is that the peripatetic employee’s evidence should be considered benevolently where there are gaps in the employer’s knowledge of an individual’s noise exposure. Employers should therefore be advised to look further than generally measuring workplace environmental noise, and assess the exposure associated with specific roles.
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