PI Brief Update

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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