Lindsey Hogg discusses the recent Court of Appeal decision of Mark Storey v BT Plc [2022]

Lindsey Hogg asks the question, must a claim fail in the absence of expert engineering evidence?

Mark Storey v British Telecommunications Plc [2022] EWCA Civ 616: must a claim fail in the absence of expert engineering evidence?

The court confirmed that a claim where the Claimant has suffered from permanent bilateral multi-tonal tinnitus as a result of acoustic shock is distinctly different to one of noise induced hearing loss.  The court held that the lack of expert engineering evidence does not result in a claim for permanent bilateral multi-tonal tinnitus automatically failing.  Further, if the evidence that the engineer would be required to assess is no longer available due to the actions of the Defendant, the Defendant cannot use this to support an application for summary judgment or to strike out the claim.  Thus, it is imperative that the type of hearing loss that the Claimant has suffered is identified in order to determine the type of expert evidence, if any, that is required to establish the cause of action.  

BACKGROUND

Mr Storey issued a claim on 12April 2017 against his then employer, British Telecommunications Plc (‘BT’) for damages and financial loss arising from personal injuries suffered as a consequence of an accident at work.  On08 April 2014, Mr Storey was employed as a customer sales advisor in a BT call centre.  His monoaural headset was connected to the turret via the headset, with its own power supply.  Whilst he was speaking to the customer, Mr Storey was exposed to a sudden intense high-pitched crackling sound through the headset, which he described “as feeling like someone had put a knitting needle through my ear” [paragraph 12]. Mr Storey sustained the following injuries: permanent bilate ralmulti-tonal tinnitus, hyperacusis (intolerance of loud noise), and psychological injury due to acoustic shock.

The case management directions, inter alia, gave permission to each party to rely upon the report of an acoustic engineer.  Neither party served a report from an acoustic engineer, even though BT obtained a report.  BT submitted that in the absence of a report from an acoustic engineer from the Claimant, he could not establish that the Defendant had breached their duty of care. BT applied pursuant to CPR 3.4(2) for summary judgment or to strike out the claim on the basis that Mr Storey had no real prospect of succeeding at trial.  This application was refused by Deputy District Judge Reynolds, but BT successfully appealed to His Honour Judge Khan.  

COURT OF APPEAL

Lady Justice Andrews helpfully explains the different relevant medical conditions in her judgment at paragraphs 8 to 11.  The following is a short precis:

In the UK‘ acoustic shock’ is defined as “an adverse response to an acoustic incident resulting in alteration of auditory function.” Acoustic shock is different from, and unrelated to, noise-induced hearing loss, caused when people are exposed to sound that is loud enough to damage the ears.  Acoustic shock may be caused at a level of noise well below that which presents a risk of noise-induced hearing loss, and the adverse impact may be due more to the pitch and acoustic pressure than to the sound level itself.  

Lady Justice Andrews held that Mr Storey had to prove that the noise he was exposed to was of such a nature as to cause him to suffer acoustic shock, he did not have to prove how loud the noise was [paragraph 18].  This case was a claim for acoustic shock which is distinct to a claim for noise-induced hearing loss.  Unlike the present case, such a claim for noise-induced hearing loss would not succeed unless the Claimant can prove that he was subject to sustained exposure to noise above certain acceptable limits contained in various health and safety regulations [paragraph62].  

The other issue in this case is that the evidence that the engineer would be required to examine to determine the nature and level of noise that Mr Storey was exposed to, and whether the equipment he was using was faulty or inadequate, was in the Defendant’s control, and ceased to be available to the Claimant [paragraph 21].  Lady Justice Andrews made it clear that where the Defendant is responsible for evidence they cannot rely on its absence, thus the inability for an expert to examine it “to defeat the claim before it reaches trial.  That would be most unfair” [paragraph 22].    

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