Mark Storey v British Telecommunications Plc

On an application for summary judgment or strike-out, a claim for acoustic shock is not to be treated as a claim for noise-induced hearing loss. The claimant need not prove the precise sound level if he can prove that the incident was capable of causing acoustic shock. Whether an employer reasonably foresaw the risk, and whether reasonable protective steps were taken, are fact-sensitive questions. They ordinarily require determination at trial. A defendant cannot rely on the absence of expert evidence concerning equipment or data that it had custody or control of and then lost or destroyed. The burden of proving breach and causation remains on the claimant.

Mark Storey v British Telecommunications Plc concerned a claim for permanent tinnitus, hyperacusis and psychological injury allegedly caused by an acoustic incident through a workplace headset. The claimant relied on medical and scientific evidence but had not served evidence from an acoustic engineer.

BT applied for summary judgment or strike-out under CPR 3.4(2), contending that the claim could not succeed without proof of the noise level and expert engineering evidence. A Deputy District Judge refused the application, but HH Judge Khan allowed BT’s appeal and struck out the claim. The claimant appealed to the Court of Appeal on whether the claim had to fail without acoustic engineering evidence.

1. Appeal allowed. Lady Justice Andrews gave the leading judgment, with which Lord Justice Singh and Lady Justice Thirlwall agreed. The orders granting summary judgment and, alternatively, striking out the claim for failure to comply with case-management directions were set aside.
2. On an application for summary judgment or strike-out, the claimant’s case must be taken at its highest. The medical and scientific evidence supporting the existence and effects of acoustic shock, and contentious factual matters, had therefore to be assumed in the claimant’s favour at this stage.
3. The lower court had wrongly treated the claim as though it were a claim for noise-induced hearing loss. Acoustic shock may occur at noise levels below those capable of physically damaging the ear, and the claimant did not need to establish the precise loudness of the incident if he could prove that its nature caused acoustic shock.
4. Whether BT should reasonably have foreseen the risk of acoustic shock to call-centre operators, and whether it should have foreseen the risk from the particular incident, were questions of fact. The relevant considerations included the state of industry knowledge and the circumstances at the Lancaster call centre.
5. The absence of expert engineering evidence was not fatal. The relevant recording, headset and workplace conditions were unavailable, in circumstances where BT had custody or control of the material and had lost, destroyed or altered it. BT could not rely on that absence of evidence to defeat the claim before trial.
6. The burden of proving breach of duty and causation remained on the claimant. The Court did not require BT to prove that the equipment was defective. The earlier acoustic incident was relevant factual background, even if not expressly pleaded, and the adequacy of BT’s response was a matter for trial.
7. The trial judge would have to assess all the evidence and draw any proper inferences from the evidence and its absence. It remained possible that the claimant would fail to discharge the burden of proof, but that outcome was not a foregone conclusion.

1. Court of Appeal (Civil Division): In Mark Storey v British Telecommunications Plc [2022] EWCA Civ 616, the appeal was allowed. The summary judgment and alternative strike-out orders were set aside.
2. County Court at Burnley: Deputy District Judge Reynolds refused BT’s application for summary judgment or strike-out. HH Judge Khan allowed BT’s appeal and held that the claim could not proceed without expert engineering evidence.