Lost in Time: Court of Appeal overturns MacKenzie
Abuse Aware | February 2020
MacKenzie v Alcoa Manufacturing (GB) Limited  EWCA Civ 2110
The Court of Appeal has overturned the decision of Garnham J. in MacKenzie v Alcoa. This is good news for defendants in noise induced hearing loss (NIHL) cases. The risk of an extension to the “benevolence” principles established in Keefe v Isle of Man Steam Packet Company Ltd EWCA Civ 683 has been averted.
In Keefe it was held that if a defendant fails in a duty to measure noise it is more difficult for them to assert that noise levels were not excessive. In such circumstances the court should treat the claimant’s evidence benevolently.
MacKenzie - First Instance
At first instance the claim was dismissed. The parties relied on joint engineering evidence. The engineer used noise readings from a similar unconnected factory to reach his conclusions. The claimant argued Keefe should apply as there was no evidence that noise surveys had been carried out by the defendant. In the absence of such evidence an adverse inference should be drawn and the claimant treated benevolently. HHJ Vosper noted significant time had passed (approximately 40 years) and determined there was no evidence noise surveys had not been conducted. There was only an absence of evidence rather than evidence of absence.
The judge distinguished Keefe and held the engineering evidence was sufficiently cogent to make a finding as to the claimant’s likely exposure. The claim was dismissed.
Garnham J. allowed the appeal. He found:
- HHJ Vosper’s grounds for distinguishing from Keefe were not good grounds
- There was no evidence explaining the absence of noise surveys
- If Keefe is applied the benevolent interpretation is that the defendant’s entire premises were noisy as per the claimant’s evidence
- The engineer’s evidence did not disprove that the exposure caused the hearing loss
Court of Appeal
The Court of Appeal (CoA) criticised Garnham’s J. approach. Appellate courts should be cautious in overturning findings of fact at first instance. In this case that it was not possible to conclude a noise survey had not been conducted. The passage of time was a proper and relevant factor. They also agreed HHJ Vosper was entitled to accept the engineering evidence and rely on this in deciding whether to draw any Keefe inference.
The CoA reinstated the first instance decision.
Claimant solicitors have been quick to plead MacKenzie since the first appeal. Noise cases are frequently defended without noise surveys and the first appeal had potential to make life very uncomfortable for defendants. On Garnham’s J. logic an absence of noise surveys or evidence explaining their absence would have been sufficient to go behind engineering evidence in favour of the claimant’s subjective recollection. Accordingly, this reversal should allow a collective sigh of relief.
That said, this case highlights the merits of ensuring a “prejudice” statement is served in noise cases even when limitation might not be the primary defence. Keoghs acted for the co-defendant at first instance. The only distinguishing difference between the two defences was the presence of a prejudice statement for our client. The claimant did not appeal against our client.
Author - Oliver Bingle - Associate