The judgment of the Court of Appeal today in Mackenzie v Alcoa Manufacturing (Gb) Ltd [2019] EWCA Civ 2110 makes some important points in relation to civil evidence.  It reviews the law relating to the drawing of adverse inferences due to absent evidence and the approach of an appellate court to findings of fact.

“It seems therefore that it is possible to state the following propositions. First whether it is appropriate to draw an inference, and if it is appropriate to draw an inference the nature and extent of the inference, will depend on the facts of the particular case, … Secondly silence or a failure to adduce relevant documents may convert evidence on the other side into proof, but that may depend on the explanation given for the absence of the witness or document,…”


The claimant suffered from industrial deafness.  He brought an action. Part of the claimant’s case was that the defendant failed to abide by its common law duty to monitor noise levels. The trial judge found for the defendant . The claimant appealed to the High Court judge who allowed the claimant’s appeal.  The defendant appealed to the Court of Appeal.



The Court of Appeal allowed the appeal. The decision of the High Court judge was overturned and the trial judge restored. The claimant was not successful.



The judgment of Lord Justice Dingemans contains a detailed review of the law relating to the inferences a court can properly draw in the absence of evidence.

Relevant authorities on inferences

    1. The law about inferences has been considered on a number of occasions. As long ago as 1721 in Armory v Delamarie (1721) 1 Strange 505 the court approved a direction to a jury to infer and find the highest value consistent with the jewel as described in the evidence. The jewel had been given to a pawn broker by a chimney sweep but the pawn broker refused to return it.
    2. In Herrington the House of Lords confronted a situation where the defendant did not call any evidence about a fence separating the railway from the meadow which had been in a poor state of repair for several months. Noting that not calling evidence was a legitimate tactical move in the adversarial system of litigation, Lord Diplock said “but a defendant who adopts it cannot complaint if the court draws from the facts which have been disclosed all reasonable inferences as to what are the facts which the defendant has chosen to withhold”.
    3. Gibbs v Rea [1998] AC 786 was a case about the malicious procurement of a search warrant where no evidence explaining why the warrant had been sought was adduced. The Privy Council noted that “It was of course open to the defendants to elect to give no evidence and simply contend that the case against them was not proved. But that course carried with it the risk that should it transpire there was some evidence tending to establish the plaintiff’s case, albeit slender evidence, their silence in circumstances in which they would be expected to answer might convert that evidence into proof…”.
    4. In Wiszniewski v Central Manchester Health Authority [1998] PIQR P324 the Court of Appeal held that the silence or absence of a witness might justify drawing an inference adverse to the party, but there must be some evidence which raised a case to answer before an inference could be drawn, and if an explanation for the absence was given, even if it was not wholly satisfactory, the potentially detrimental inference may be reduced or nullified.
    5. In Shawe-Lincoln v Dr Arul Chezhayan Neelakandan [2012] EWHC 1150 Lloyd Jones J. distinguished Keefe and said at paragraphs 81-82 that “Keefe is concerned with the weight which is to be attached to evidence and the circumstances in which the court may draw inferences. This is how Longmore LJ explained it… Whether it is appropriate to draw an inference at all and, if so, the precise nature and extent of such an inference will depend on the particular circumstances of each case. Relevant considerations will include the proximity between a breach of duty and the non-available evidence, the effect of the other evidence before the court and what other evidence might have been available but which is not before the court.”
    6. In Garner v Salford City Council [2013] EWHC 1573 (QB) Keith J stated at paragraph 28: “The case is unlike Keefe v The Isle of Man Steam Packet Co Ltd [2010] EWCA 683 (Civ), in which the Court of Appeal held that the defendant could not assert that it had not been proved that the noise levels on its boats were excessive when in breach of duty it had failed to measure those levels. There was no duty on the company in 1978 to check the lagging for asbestos, only guidance, and it was sufficient compliance with that guidance for the company to proceed on the assumption that it contained crocidolite”.
    7. In Petrodel Resources Limited v Prest [2013] UKSC 34[2013] 2 AC 415 Lord Sumption commented on BRB v Herrington at paragraph 44 noting that the courts had recoiled from parts of the statement in Herrington recording they might “convert open-ended speculation into fact” He noted that there must be a reasonable basis for some hypothesis in the evidence or the inherent probabilities, before a court can draw useful inferences from a party’s failure to rebut it. Silence of one party in the face of the other party’s evidence may convert that evidence into proof in relation to matters likely to be within the knowledge of the silent party.
    8. It seems therefore that it is possible to state the following propositions. First whether it is appropriate to draw an inference, and if it is appropriate to draw an inference the nature and extent of the inference, will depend on the facts of the particular case, see Shawe-Lincoln at paragraphs 81-82. Secondly silence or a failure to adduce relevant documents may convert evidence on the other side into proof, but that may depend on the explanation given for the absence of the witness or document, see Herrington at page 970G, Keefe at paragraph 19 and Petrodel at paragraph 44.
    9. In this case HHJ Vosper QC did not draw the inference adverse to Alcoa because he accepted that documents relating to the noise survey may have been lost rather than being lacking because no noise survey was carried out, and because he found that Mr Worthington’s engineering evidence did not support the case that Mr Mackenzie had been subjected to tortious levels of noise.

Whether a noise survey was carried out

    1. It is apparent that HHJ Vosper QC took into account the fact that there were no documents showing that a noise survey had been carried out and the fact that Mr Mackenzie had not seen a noise survey carried out, but was not prepared to find that no noise survey had in fact been carried out stating “I conclude that it is not possible to make a finding that the Second Defendant is in breach of duty in failing to carry out noise surveys“.
    2. Garnham J. found that there was an obligation to carry out a noise survey in 1970 but for the reasons which are set out above this was because he had been misled by the misdescription of the 1971 edition of “Noise and the Worker” as the 1968 edition. Garnham J. when distinguishing Herrington stated that in this case “the absence of noise surveys was more obviously explainable, given the passage of time …”. However Garnham J. later found “whilst it might be reasonable here to accept that the passage of time might explain the absence of noise survey reports, it remains surprising that none at all were produced, despite the development of relevant regulatory requirements during the ensuring period”. Garnham J. found that in these circumstances from 1970, it did not “lie in the defendant’s mouth to say that noise levels were not excessive”.
    3. It appears that Garnham J. made a positive finding that there was a failure to carry out a noise survey rather than a finding that a noise survey had been carried out but was not available, whereas HHJ Vosper QC had made a finding that it was not possible to find as a fact that Alcoa were in breach of duty in failing to carry out a noise survey. It is established that appellate courts should be very cautious in overturning findings of fact made by a first instance judge.  This is because first instance judges have seen witnesses and take into account the whole “sea” of the evidence, rather than indulged in impermissible “island hopping” to parts only of the evidence, and because duplication of effort on appeal is undesirable and increases costs and delay.  Judges hearing appeals on facts should only interfere if a finding of fact was made which had no basis in the evidence, or where there was a demonstrable misunderstanding of relevant evidence, or a demonstrable failure to consider relevant evidence so that the decision could not reasonably be explained or justified.  In my judgment there was no sufficient basis available for Garnham J., sitting on appeal, to overturn the finding of fact made by HHJ Vosper QC that there was no breach of duty on the part of Alcoa, because noise surveys might have been lost. This was especially so where despite the facts that the factory had continued to operate and Alcoa had had a registered office until recently, it was common ground that the absence of noise surveys was explicable because of the passage of time. In future cases where it is relevant to determine whether a noise survey has been undertaken in the past it would be helpful if both parties addressed that in pre-trial questions about the existence of documents or in the evidence at trial. This would help to avoid a situation where the trial judge is left to deal with the factual finding about whether a noise survey was carried out on the basis only of submissions about lists of documents.
HHJ Vosper QC was entitled to rely on Mr Worthington’s evidence
    1. A principal reason why HHJ Vosper QC did not draw the inference against Alcoa was because he accepted Mr Worthington’s evidence that it could not be shown that Mr Mackenzie had been “regularly exposed to noise levels in excess of 90dB(A)”. HHJ Vosper QC found in paragraph 56 of his judgment that Mr Worthington had regard to the nature of the work done, the circumstances in which it was done, his own engineering experience, and the results from a comparable factory carrying out comparable processes. This was much more than a dismissal of the case because on the balance of probabilities it was not possible to say what was the exposure to noise. In my judgment HHJ Vosper QC was entitled to accept this engineering evidence and avoid resort to inferences, even if they might otherwise have been drawn. The approach taken by Garnham J. to the adverse inference risked elevating the decision in Keefe to a rule of law, rather than an example of the proper approach to finding facts in a particular case where the evidence showed that the defendant had failed in its duty to carry out noise surveys, and the claimant had been deprived of the opportunity to prove his case.
Mr Mackenzie’s evidence and the absence of reasons
    1. In these circumstances the ground of appeal relating to Mr Mackenzie’s evidence does not arise. I should say as a matter of fairness to Mr Mackenzie that there was no suggestion that he had done anything other than attempt to give his honest recollection but he, like Alcoa, was disadvantaged by the passage of time.
    2. I should also note that we were not addressed on the other ground of appeal dealt with by Garnham J relating to the duty to avoid any exposure exceeding 90dB(A) from 1972. This was probably because of the recognition that unless the approach taken by Garnham J. to drawing the adverse inference was upheld, this point would not have made any difference to the result at trial. I can confirm that I agree with Garnham J. that a party should understand from a judgment why a point was accepted or rejected, or did not need to be addressed. As it is in the light of the findings by HHJ Vosper QC I agree that this point does not form a basis for ordering damages to be assessed, because there was no basis in this case for making a finding of fact that there had been an exposure exceeding 90dB(A) which caused loss.
  1. For the detailed reasons given above I would allow this appeal, and restore the order made by HHJ Vosper QC.