Acoustic Shock claim revived because the defendant’s evidence was unreliable: Storey v British Telecommunications plc [2022] EWCA Civ 616 - Rochelle Powell, Temple Garden Chambers

19/05/22. The Court of Appeal revived an acoustic shock claim after a finding that the defendant’s evidence was incorrect and the judge was considering the wrong issue. Lady Justice Andrews overturned the decision of the Circuit Judge to strike out the claim.

Background

The claimant brought an action alleging that he had suffered injury to his hearing as a result of the use of a headset due to acoustic shock. The court gave permission to both parties to rely on the report of an acoustic engineer. Neither party served a report. The defendant made an application for summary judgment or to strike out the claim on the grounds that, in the absence of an expert report, the claimant could not prove the defendant had breached their duty of care to him. Deputy District Judge Reynolds refused the application, but the defendant appealed successfully to the Circuit Judge. HH Judge Khan held that the claimant’s inability to establish the level of noise to which he was exposed was fatal to his claim. The judge went on to characterise the claimant’s failure to serve an engineer’s report as a breach of case management directions, and struck out the claim. The claimant appealed that decision.

The defendant’s evidence

During the course of the hearing, it transpired that the evidence relied on by the defendant in support of its application for summary judgment was unreliable. The defendant relied on evidence that the headset used by the claimant had passed testing and was not found to be faulty. At the hearing, it was accepted by the defendant that the headset test undertaken related to a different headset. The defendant had either lost or destroyed the...

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Witness Statements and the complexities of language: A legal minefield? Bahia v Sidhu & Anor [2022] EWHC 875 (Ch) - Rochelle Powell, Temple Garden Chambers

26/04/22. Mr Bahia was born in India, but had lived in the UK for over 50 years. As at the date of the trial, he was 72 years old. Mr Bahia provided two witness statements, in the second he stated:

“English is not my first language, but I have an understanding of it. My usual way communicating is by speaking a mixture of Punjabi and English. The meaning of certain words and phrases used in the case have been explained to me by my solicitors. The discussions I have had with my solicitors for the preparation of this witness statement have mostly been in English.”

When it came to his oral evidence, Mr Bahia was “plainly hesitant” about speaking in and understanding the English language, confirming during his evidence that “my English is not very good”. He required an interpreter for the entirety of his evidence, even requesting that paragraphs to which he was taken in his second statement should be translated before he was asked a question about them. Upon being questioned about his grasp of English, Mr Bahia accepted that there were “many” words in his English witness statement which he did not understand. When asked during the course of his evidence, to spend time reminding himself of the content of his statement, without discussing it with others, he admitted that it had been necessary for him to seek assistance as to the translation from his son.

The defendant’s case

The defendant submitted that Mr Bahia’s statements were in breach of CPR PD32 and CPR PD57AC, on the grounds that (i) they were not in his own words (CPR PD32 §18.1); (ii) they had not been drafted in his own language (i.e. in a language in which he was sufficiently fluent to give oral evidence, including under cross examination (CPR PD32 §18.1, CPR PD57AC §3.3); and (iii) the statement of truth was not in his own language (CPR PD32 §2.4). It was submitted that the above breaches were serious and the court was invited to approach...

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Double Recovery: Costs In Part IIIA of CPR45 Where There Are Two Or More Claimants - Nicholas Dobbs, Temple Garden Chambers

21/04/22. In Melloy v UK Insurance Ltd (Portsmouth County Court, Case Number 011LR422, 25 February 2022) an issue arose at the conclusion of the trial as to whether two claimants in proceedings for damages that fall within Part IIIA of CPR 45 were separately entitled to the costs set out in Table 6B. His Honour Judge Glen determined that where there are two or more claimants in proceedings for damages that fall within Part IIIA of CPR45, each such claimant (assuming that they have each submitted a CNF) is separately entitled to the costs set out in Table 6B.

The Claimants were passengers in a motor vehicle when it was struck from behind by another vehicle driven by the Defendant’s insured. They suffered modest ‘whiplash’ type injuries. A Claim Notification Form for each Claimant was sent to the Defendant in accordance with the provisions of The Protocol for Low Value Personal Injury Claims in Road Traffic Accidents (the Protocol). The Defendant denied liability and the Claimants issued a Part 7 claim for damages, the outcome of which was an award of general and special damages for both.

At the conclusion of the trial, it was contended on behalf of the Claimants that the costs order must contain a separate award under Section C of Table 6B to CPR45 in respect of each Claimant. The Defendant conceded that a separate award can be made respect of the additional 20% of the damages awarded, but that otherwise only a single award can be made. The Defendant argued that to award two sets of fixed costs would result in a windfall to the Claimants’ solicitors out of all proportion to the actual additional work involved.

However, it was observed that the essence of any fixed costs regime is that there will be “swings and roundabouts” and the outcome cannot inform the construction, except in the most exceptional case. The expressions ‘claim’ and ‘claimant’ had an autonomous meaning for the purposes of Part IIIA of CPR45, referring to the claim started by, and the claimant who submitted, the CNF and not to the claim or claimant in the proceedings. Adopting that interpretation, each claimant was separately entitled to the costs set out in Table 6B.

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