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SSB Law win landmark industrial disease case - Stuart White & Christopher Johnson, SSB Law

12/02/19. In a landmark judgement, the High Court has ruled that a former employee of Alcoa, one of the world’s largest producers of aluminium, should be compensated for loss of hearing despite unsupportive expert evidence.

The High Court judgment in Mackenzie v Alcoa Manufacturing (GB) Limited [2019] EWHC 149 (QB) overturns the decision of the County Court, and adopts the argument of the claimant’s lawyers that the claimant should be entitled to the beneficial interpretation of his evidence as described by the Court of Appeal in Keefe v Isle of Man Steam Packet Company Limited [2010] EWCA Civ 683.

In Keefe v Isle of Man Steam Packet Company Limited the defendant was under a duty to produce noise surveys and admitted none had been undertaken. No acoustic engineer’s evidence was produced, but both the defendant and the claimant agreed the work place was noisy. The Court of Appeal held that “In such circumstances the court should judge a claimant’s evidence benevolently and the defendant’s evidence critically”.

At the McKenzie v Alcoa Manufacturing (GB) Limited hearing in December 2018, counsel Christopher Johnson of Doughty Street Chambers on behalf of the claimant argued that Keefe should still apply to this case, despite: (1) there being no admission by Alcoa that noise surveys were not undertaken (although no surveys were produced, and no explanation for this was put forward in evidence); and (2) there being unsupportive acoustic engineering evidence.

This argument was accepted by Garnham J in the High Court, ruling in favour of the claimant.

The ruling means that a defendant employer must either provide noise survey measurements or explain why they cannot do so, otherwise the claimant will benefit from a favourable interpretation of their evidence, even when the claim is not supported by an acoustic engineer.

Stuart White, Head of Industrial disease at SSB Law in Sheffield said:

“My clients are delighted with this decision from the High Court. This landmark judgment is a clear reminder to all employers that they cannot avoid their health and safety responsibilities to their employees and it has wide implications for all industrial disease claims.”

Stuart White & Christopher Johnson

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