Noise Induced Hearing Loss – The risks of having no noise survey or an explanation for its absence

15 Feb, 2019

Brian MacKenzie v Alcoa Manufacturing (GB) Limited [2019] EWHC 149 (QB)

The Court considered the well-known Court of Appeal case of Keefe v Isle of Man Steam Packet Co Ltd [2010] EWCA Civ 683 noting that, in the absence of 'positive evidence' on noise exposure, a Defendant's failure to produce noise surveys or an explanation why they had not, led to the inevitable finding, at least on the facts of this case, that the Claimant had been exposed to excessive and tortious levels of noise.

The claim arose out of the Claimant's employment at a factory concerned with the smelting, rolling and extrusion of aluminium. The relevant period of employment for the appeal was 1968-76. The Claimant had been employed in the installation and maintenance of machines at the factory. His evidence on the noise levels was that he had to shout in order to communicate and/or had to use hand signals.

The Second Defendant adduced no evidence at trial that any noise surveys had been conducted at the factory during the relevant period of the Claimant's employment and provided no evidence to explain the absence of such surveys.

A joint expert engineer had however provided his opinion on measurements of noise levels and, in the absence of direct evidence (i.e. noise surveys) from the factory, had relied on comparable evidence from another aluminium factory (taken in 1989). The expert concluded it was not possible to demonstrate on the balance of probability that the Claimant's average daily noise exposure reached or exceeded 90dB(A). Further that without his reliance on the evidence from the other aluminium factory, his conclusion would have been that there was no evidence to show the levels of noise to which the Claimant was exposed.

At first instance the Claimant's claim was dismissed, a key part of the judgement being the distinguishing of Keefe.

On appeal the Court found, firstly on review of the pleadings and with reference to the 'Noise and the Worker' publication, its second edition in 1968, the code of practice 'Hearing and Noise in Industry' in 1973 and the views of the expert engineer in the case, there was a duty for the Defendant to conduct noise surveys from 1970.

On the question of distinguishing Keefe, the Court noted four arguments relied on by the judge at first instance: firstly, that the Noise at Work Regulations 1989 in Keefe, unlike, in this case, were in force. The Court rejected that argument noting the issue as to the source of an established duty said nothing as to the applicability of Keefe.

Secondly, that in Keefe there was evidence that no noise surveys had been carried out, whereas the Claimant's evidence, in this case, was only that he wasn't aware of any and he wouldn't have been involved in any. The Court dismissed that argument stating that factually there was little difference between the two cases on this point.

Thirdly, that the judge at first instance accepted a submission that any relevant documentation, given the passage of time, would have been lost. Here the Court noted 'the passage of time might explain the absence of some noise survey reports [but] it remains surprising that none at all were produced…'

Fourthly, that there was engineering evidence in this case, unlike in Keefe. Here the Court summarised the expert's conclusion as being that it was not possible to establish what level of noise workers would have been exposed to. That being the case the Court considered the absence of evidence of noise surveys was significant. The Court contrasted that conclusion with a hypothetical case where positive evidence as to the level of noise which workers were in fact exposed to was provided.

The Court went on to reject the first instance judge's distinguishing of Keefe finding that in circumstances where:

  • a duty to produce noise surveys existed;
  • none were produced; and
  • no evidence was produced to explain why they couldn't be produced;

it did 'not lie in the defendant's mouth to say that noise levels were not excessive.' With the benevolent interpretation of the Claimant's evidence that applying Keefe, the first instance judge should have applied, the inevitable finding in the case was that the Claimant was exposed to tortiously high levels of noise.

Analysis

It is interesting to note that the expert's evidence, drawing as it did on a comparable factory but without actual measurements of the relevant factory, was by implication not considered positive evidence of the level of noise which workers were exposed to and therefore led to the application of Keefe.

Practitioners should note that an apparent way to defeat such an approach where no noise survey evidence is available could be to provide an evidenced (i.e not submissions) explanation. As to what would be a sufficient explanation to avoid Keefe applying is yet to be seen. Practitioners should also note the matter may well be the subject of a further appeal.

 

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