Avoiding shocks: lessons learned from Storey v British Telecommunications PLC [2022] EWCA Civ 616

August 2, 2022

Catherine Knowles

Why is this case relevant to me?

Storey v British Telecommunications Plc [2022] EWCA Civ 616, was a case which the Court of Appeal described as having “a number of extraordinary features”.   For insurers and industrial disease lawyers, it serves as a reminder that acoustic shock claims are different to noise-induced hearing loss claims. But it has wider relevance to defence teams, as a warning of the importance of checking the accuracy of the evidence that the defendant seeks to rely upon.

What is ‘acoustic shock’?

The Court of Appeal recognised that there are several slightly different definitions, but the definition used in the Storey case was “an adverse response to an acoustic incident resulting in alteration of auditory function”.  An ‘acoustic incident’ is “a sudden, unexpected noise event which is perceived by the affected person as loud”.[1]

What was the underlying claim about?

S was employed as a call centre customer sales advisor in a BT call centre in Lancaster.  S’s case was that whilst at work on 8 April 2014, he was wearing a monoaural headset on his right ear, which was connected to the turret via the handset with its own power supply, when he took an incoming call, during which he was exposed to a sudden intense high-pitched cracking sound through the headset.  He described “feeling like someone had put a knitting needle through my ear.”  He threw the headset on the table, and reported the matter to his line-manager.  In the evening he experienced symptoms of nausea and dizziness and a high pitched multi-tonal whistling sound in his right ear (tinnitus).  The tinnitus persisted, became bilateral and seriously interfered with sleep.  He became seriously intolerant of noise (hyperacusis).

S brought a claim, supported by two medical reports.

BT filed a defence, requiring S to prove that the alleged incident and injury had occurred, and denying breach of duty, causation and quantum.  BT’s defence alleged that S had been provided with a headset which limited noise exposure to below actionable levels, and BT denied excessive noise interference from his headset.  They said that the equipment “monitors and automatically adjusts sound levels to ensure that the noise emitted does not exceed actionable levels”.

Case management directions gave permission to each party to rely upon a report from an acoustic engineer.  The Claimant did not obtain such a report.  BT did, but did not serve it.

BT then applied for summary judgment and / or to strike out the claim, arguing that in the absence of acoustic engineering evidence, S could not prove the level of noise to which he had been exposed and that this was fatal to his claim.  At first instance before the District Judge, BT’s application failed.

The first appeal

BT appealed against the decision of the District Judge, and His Honour Judge Khan allowed BT’s appeal. HHJ Khan gave summary Judgment for the Defendant, and in the alternative found it would be appropriate to strike out the claim.  HHJ Khan considered that S had breached a case management order and that the absence of acoustic engineering evidence was fatal because S could not prove the level of noise to which he had been exposed, and could not establish that BT should have foreseen that he might have been exposed to that level of noise and failed to take reasonable steps to avoid it.

The Court of Appeal’s decision 

S appealed to the Court of Appeal, and his appeal was successful, meaning that his claim was permitted to proceed to trial.

‘Acoustic shock’ is not the same as NIHL

Giving the lead Judgment, Andrews LJ found that HHJ Khan had, on the first appeal, fallen “into the error of treating a claim for acoustic shock as if it were a claim for noise-induced hearing loss, which would not succeed unless the claimant was subject to sustained exposure to noise above certain acceptable limits contained in various health and safety regulations.”[2]

HHJ Khan had been “plainly wrong” to accept BT’s argument that the absence of an expert report from an acoustic engineer was fatal: “Given the evidence that acoustic shock can occur at lower levels of noise than the levels which would cause physical damage to the ear, [S] would not need to prove how loud the noise was, if he can prove that it was of such a nature to cause him to suffer acoustic shock.”[3]

There were two key questions of foreseeability, namely whether BT should have reasonably foreseen in April 2014 that a call centre operator using a headset would be exposed to the risk of acoustic shock from acoustic incidents, and whether in the circumstances that obtained at the relevant time at the Lancaster call centre, BT ought to have foreseen the risk that S might suffer an acoustic shock from a sudden high-pitched crackling sound directed into his ear through his headset.  The Court of Appeal found that both of these questions were questions of fact, the former “depending on the state of knowledge in the industry of the existence of the condition and its causes at the relevant time.”[4]

The Judge should have placed weight on why S did not have expert acoustic engineering evidence

In holding that it was not fatal to S’s claim that he had no evidence from an acoustic engineer, the Court of Appeal said that HHJ Khan had failed to place any weight on the reasons why S did not have such a report: “for reasons beyond his control, [S] could not reasonably have served a report from such an expert.  The material upon which such an expert might have been able to form a view about the level of noise and whether the equipment in use by [S] at the time was faulty or adequate to protect him against the incidence of acoustic shock, all of which was in BT’s custody and under its control, ceased to be available long before the deadline set by the court for exchange of experts’ reports.”[5] 

The difficulties included the fact that the voice recording of the call in question had been destroyed by BT before the claim had been issued, the fact that the headset he had used had gone missing, and the fact that the precise conditions under which S had been working at the time had been altered the day after the incident and would now be impossible to replicate.  It would be “most unfair” to allow BT to rely upon the absence of such evidence, and the inability of an expert to examine and report upon it, where it had been responsible for that evidence.[6]

Evidence that the Defendant had relied upon in support of its application was inaccurate

Furthermore, it became apparent during the hearing before the Court of Appeal that evidence relied upon by BT in support of its application was factually incorrect.  BT had submitted lay witness evidence which stated the headset manufacturers had carried out tests of the headset in use by S at the time of the incident, and had found it to be functioning properly and operating to keep the level of noise exposure well within acceptable parameters.  In fact, as the Court of Appeal found, the documents disclosed by BT showed that the tests on which they sought to rely were tests “on a replacement headset of an entirely different type, and the evidence about them is therefore irrelevant”.[7]  

Of the inaccuracies in the witness evidence, the Court of Appeal observed that: “it is, to say the least, unfortunate that this fundamental error was not noticed before the witness statements were finalised or before the application for summary judgment was made.  It is regrettable that the error was not rectified by BT until the case reached this Court, and that, even then, the correction was not volunteered but had to be extracted by us”.[8]

This is only round one

The Court of Appeal warned that this did not mean that the Claimant’s case would necessarily succeed, concluding that “it may be, when all the evidence is considered in the round, that the judge would reach the view that [S] failed to discharge the burden of proof which is upon him, but that depends very much on the facts and, as matters presently stand, that cannot be regarded as a foregone conclusion”.[9]

What can I learn from this case?

Defendant teams (and any instructed experts) must be aware of the difference between NIHL claims and claims for acoustic shock.

The bar for strike out and / or summary judgment is set high.  Attempting to short-cut matters where the bar is not met may simply prove to be an expensive detour.

More generally, it is vital that any evidence placed before the court is accurate.

Practical tips

Problems can sometimes arise where documents containing technical information (such as technical test results) are referred to and relied upon.  This may be particularly so in large organisations where several different people have been involved at different stages of investigating an allegation, or where disclosure has been provided in tranches and from different parts of the organisation.  Lawyers should ask potential witnesses to explain (in their own words) what any documents that they are referring to show, and should make sure that they themselves understand the explanation.  This exercise can sometimes reveal that a lay witness has a genuine, but erroneous, understanding of the meaning of a document, and / or that a different person is needed to address a particular issue in dispute.  If at any point it becomes apparent that pleadings, or evidence, that have already been put before the court contain an error, this should be brought to the attention of the court at the earliest opportunity.

[1] Paragraph 8 of the Judgment.

[2] Judgment paragraph 62.

[3] Paragraph 18.  Emphasis added.

[4] Judgment paragraph 19.

[5] Paragraph 21.

[6] Paragraph 22.

[7] Judgment paragraph 24.

[8] Paragraph 48.

[9] Paragraph 65.