The Court of Appeal has revived an acoustic shock claim after a finding that the defendant’s evidence was incorrect and the judge was considering the wrong issue.

In Storey v British Telecommunications plc, Lady Justice Andrews overturned the decision of His Honour Judge Khan to strike out the claim.

The judge had granted BT’s application for summary judgment after ruling that the claimant could not prove the defendant was in breach of duty of care owed to him as an employee. Call centre worker Mark Storey had claimed for damages and financial loss after an accident at work, when he suffered pain whilst using a headset that he described as ‘like someone had put a knitting needle through my ear’.

BT presented evidence – endorsed by a signed statement of truth from its lawyer – that the kit used by Storey had passed testing and was not found to be faulty, with noise limiting properties working.

This submission was made before the county court and relied on as key evidence to support BT’s application.

But the appeal court heard that the headset tested was a different kind to the one worn by Storey during his accident in 2014. That equipment was preserved for some time but had been lost of destroyed subsequently.

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BT’s counsel admitted that evidence the kit subject to testing was the same as worn by Storey was ‘thin’

Source: Alamy

Andrews said: ‘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.’

Questioned during the appeal hearing about the evidence on testing, BT’s counsel admitted that evidence that the kit subject to testing was the same as worn by Storey was ‘thin’.

Andrews added: ‘The evidence is not thin: it is non-existent.’

She also said that Khan fell 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 Storey was subject to sustained exposure to noise above certain acceptable limits.

BT’s expert witness had based his report on the fact that Storey was exposed to the noise for only a few seconds instead of more than an hour, but this did not address the specific cause of acoustic shock.

Andrews, supported by Lord Justice Singh and Lady Justice Thirlwell, allowed the appeal, setting aside the judge’s order for summary judgment and his finding that the claim should be struck out.

 

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