Christopher Johnson succeeds in High Court industrial disease appeal
Christopher Johnson acted for the successful appellant in MacKenzie v Alcoa Manufacturing (GB) Limited  EWHC 149 (QB) (see here). The appellant was employed by Alcoa between about 1963 and 1976. The appellant alleged that he had been exposed to excessive levels of noise which had damaged his hearing. No contemporaneous noise surveys were disclosed by Alcoa, and no explanation was put forward in evidence as to why this was the case. The parties obtained expert evidence from an acoustic engineer, but this was unsupportive of the claimant’s claim. The claim failed before HHJ Vosper QC in the County Court, who found that breach of duty was not made out.
On appeal, Garnham J accepted the argument of the appellant, that he was entitled to the beneficial interpretation of evidence as described by the Court of Appeal in Keefe v Isle of Man Steam Packet Company  EWCA Civ 683, and that applying this beneficial interpretation, breach of duty is established despite the unsupportive expert evidence.
The judgment has wide implications for claimants seeking compensation for hearing loss and other industrial diseases. It makes clear that, when a defendant is under a duty to measure levels of a toxin (such as noise, or dust), they must provide those measurements, or explain why they cannot do so, otherwise a claimant may establish breach even in the absence of supportive expert evidence.
The defendant has indicated it will seek permission to appeal from the Court of Appeal.