Background and first instance decision
The claimant made a claim against the defendant for alleged noise exposure between approximately 1963 and 1976. No noise surveys were disclosed by the defendant in its list of documents and there was also no indication on the list that noise surveys did exist but were no longer in its possession. The claimant's case was that he had never seen any noise surveys being carried out by the defendant.
An acoustic engineer was instructed on a joint basis by the parties. Based on his own experience and noise readings obtained at similar working environments, the engineer concluded that on the balance of probabilities, the claimant's average daily exposure levels would not have reached or exceeded 90dB(A) during his employment with the defendant.
Claimant's counsel made the submissions that, following the Court of Appeal decision in Keefe v The Isle of Man Steam Packet Company Limited (2010) adverse inferences ought to be drawn from the absence of noise surveys. It was the claimant's evidence that he would have to shout or use hand signals to communicate with colleagues and his evidence should be interpreted benevolently as per Keefe.
HHJ Vosper QC dismissed the claim on the basis that the claimant's evidence was not sufficiently precise in order for him to reject the engineering evidence in favour of it. Judge Vosper found that the information provided to the engineer was likely to have unintentionally exaggerated the extent of any noise exposure. Furthermore, Judge Vosper distinguished Keefe on the basis that the engineer was able to base his opinion on noise readings from similar working environments and his evidence was sufficiently cogent to enable a finding of the likely noise levels the claimant would have been exposed to.
Appeal decision of Garnham J
Garnham J allowed the claimant's appeal of the judgment of Judge Vosper. He found that the defendant ought to have carried out noise surveys following the publication of the "Noise and the Worker" 1971 edition. In the absence of any evidence that noise surveys had been carried out by the defendant, Garnham J considered that adverse inferences could be drawn. He went on to apply a benevolent interpretation of the claimant's evidence that the entire process on the premises was noisy, he was never more than a few feet away from operating machines, and he was exposed to constant noise throughout his working day whilst employed by the defendant.
Garnham J also found that Judge Vosper did not address the argument that there was a duty to avoid any exposure to noise that reach or exceeded 90dB(A) following the publication of the "Noise and the Worker".
Court of Appeal
Basis of appeal
The defendant appealed the decision of Garnham J on four grounds.
Firstly, the defendant argued that Keefe had been wrongly applied in this case as there was undisputed engineering evidence concluding that noise levels would not have reached or exceeded 90dB(A).
Secondly, it was submitted that due to the passage in time since cessation of the claimant's employment with the defendant, the absence of noise surveys was unsurprising.
Thirdly, any duty to carry out a noise survey had arisen no earlier than 1974 (to allow time for companies to consider the guidance, arrange for noise surveys and implement the necessary changes) and not 1970 as found by Garnham J. Hence any finding on breach had to be restricted from around 1974 until 1976 when the claimant’s employment with the defendant ceased.
Finally, the defendant submitted that Garnham J was incorrect in applying a benevolent interpretation of the claimant's evidence where Judge Vosper found that the claimant's evidence was likely to have been unintentionally exaggerated due to the passage in time.
Court of Appeal findings
The Court of Appeal allowed the defendant's appeal and restored the order made by Judge Vosper. They found that it is necessary to consider various factors when deciding whether to apply Keefe by drawing adverse inferences against the defendant. This includes considering when the common law duty to carry out a noise survey arose and whether there was a failure to carry out a noise survey.
The Lord Justices found that Judge Vosper was entitled to rely on the engineering evidence and furthermore, not draw adverse inferences from the absence of noise surveys. They found that Garnham J's approach to drawing inferences would risk elevating the decision in Keefe to a rule of law, as opposed to guidance on the proper approach to fact finding where defendants had failed to carry out noise surveys and the claimant was subsequently unable to prove his case.
It is often the case that there is a lack of documentation in NIHL claims due to the passage in time since employment ceased. The stance some claimant NIHL practitioners adopted following the decision of Garnham J appeared to be that in the absence of any noise surveys, in every case a claimant's evidence ought to be treated benevolently and adverse inferences should be drawn from the absence of documentation regardless of an expert engineer's opinion on the likely noise levels. The unanimous decision of the Court of Appeal clearly confirms that this is not the position and this is a very much welcomed decision for defendant practitioners. A trial judge is entitled to rely on engineering evidence in the absence of noise surveys and furthermore, the approach taken in Keefe is not a rule of law and adverse inferences should not be automatically drawn in the absence of documentation.
The Court of Appeal has suggested that in future cases it would be helpful for the trial judge if parties addressed the issue of the existence of documentation in pre-trial questions or in the evidence presented at trial. This can also be addressed in any witness statements dealing with the issue of prejudice and why documents no longer exist. The above steps will hopefully avoid the situation where the trial judge is left to deal with the factual finding of whether noise surveys were carried out based on the contents of the list of documents only.