COURT OF APPEAL ALLOW APPEAL AGAINST AN ORDER STRIKING OUT AN ACTION: A CASE WITH “A NUMBER OF EXTRAORDINARY FEATURES”, NOT LEAST THAT THE DEFENDANT’S EVIDENCE WAS UNRELIABLE

In  Storey v British Telecommunications Plc [2022] EWCA Civ 616 the Court of Appeal allowed an appeal against an order striking out an personal injury action.  The court was fairly critical about the evidence that had been placed before it by the defendant.

“This case has a number of extraordinary features, including the fact that it transpired in the course of the hearing that the evidence relied on by BT in support of its application for summary judgment was unreliable.”

“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.”

THE CASE

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 to strike out the action on the grounds that, without an expert report, the claimant’s case was bound to fail.  That application was refused by a Deputy District Judge but allowed by the Circuit Judge. The claimant appealed that decision.

THE EVIDENCE THAT THE DEFENDANT HAD PLACED BEFORE THE COURT

Lady Justice Andrews noted that the defendant had adduced evidence that the headset that the claimant was using had been tested after the incident and no fault had been found. However it became clear, at the Court of Appeal stage, that the evidence referred to a different headset.

THE JUDGMENT ON THE TESTING OF THE HEADSET

B. The evidence of equipment tests

1. 1. Among the documents disclosed by BT is a Plantronics report of testing carried out on a SupraPlus headset which measured the highest levels of noise obtained as within a 118db limit, which is the industry standard adopted to protect against noise-induced hearing loss. That report is dated February 2015. It was, at least initially, heavily relied upon by BT in its application for summary judgment.

1. 1. BT served witness statements on 28 June 2019 which expressly identified that Plantronics test report as relating to the incident of 8 April 2014. The chief witness statement is from a Ms Jane Crook who is a Health and Safety lead within BT. Ms Crook stated in para 24 that the headsets and amplifiers/filters at the Lancaster call centre were all supplied by either Plantronics or JABRA, formerly GN Netcom. Then, in para 25, Ms Crook states that:

“Mark’s headset was returned to the manufacturer, and shown at Exhibit JAC 3 are the test results. Therefore I do not believe that Mark could have been exposed to any noise above the 118 db”.

Exhibit JAC 3 contains the February 2015 test results by Plantronics on the SupraPlus headset. Another document in that exhibit, but not specifically mentioned in Ms Crook’s witness statement, is an “evaluation report” by GN Netcom on a Digital Amplifier GN 8210 which was tested in conjunction with “Golden Sample GN 2100 mono headset” on 11 June 2015.

1. 1. Andrew Coldwell, a BT Sales and Retention Centre manager, says in his witness statement at para 15 that the headset Mr Storey was using at the time he heard the noise (in April 2014) was not immediately sent for testing. He then states in para 17 that he understands that Mr Storey’s headset was subsequently returned to the manufacturer Plantronics for testing. He does not identify the source of his understanding. He quotes verbatim from the test results on the SupraPlus headset in the February 2015 report. From this he, too, draws the conclusion that Mr Storey could not have been exposed to a noise in excess of 118db.

1. 1. Ms Rutherford’s witness statement, served in support of the application for summary judgment and signed with a statement of truth, states at paragraph 4:

“As BT’s disclosure and witness evidence makes clear BT process is that after an operator complains of hearing an alleged noise interference/acoustic shock the kit is returned to the manufacturer for testing. The kit passed the testing i.e. the testing confirmed the kit was not faulty. All the noise limiting properties therefore were working as they should have been“. [Emphasis supplied].

1. 1. Consistently with that evidence, the submission was made by counsel then appearing on behalf of BT before the district judge on 24 February 2020 (not Mr Diggle) that the tested headset was the same one as Mr Storey had been using in April 2014. The transcript of the hearing records counsel referring the district judge to the test on the Plantronics headset and the test of the amplifier exhibited to Ms Crook’s statement. The district judge asked: “and these are reports which were done on the actual headset used by the Claimant?” to which counsel replied: “As far as I am aware Sir, yes. Yes, the headset and the amplifier were both tested.” He then referred the district judge specifically to the evidence of Ms Crook. Deputy District Judge Reynolds refers to the SupraPlus headset test results in para 21 of his judgment.

1. 1. However, a closer examination of the documents disclosed by BT would have revealed (as it revealed to this court) that what Ms Crook, Mr Coldwell and Ms Rutherford had stated, and what counsel told the district judge about the headset test, was incorrect. The headset that was tested was a different headset.

1. 1. In November 2014, an access to work report was compiled by Capita to address possible solutions to the difficulty in using a headset that Mr Storey was continuing to experience. Mr Storey referred us to that report, which notes that “the headset provided by BT is a standard headset. When using the headset it makes [Mr Storey’s] tinnitus worse as it blocks out background noise and he has trouble hearing customers as some of the sounds are blocked out. He now has a ringing in his left ear.” Capita recommended that BT should “ensure that if Mark has to use a headset for his role, he uses a good quality headset – SupraPlus enhanced monoaural HW251H headset”. The manufacturer of that headset was Plantronics. This document proves that Mr Storey was not using a SupraPlus headset in April 2014.

1. 1. Mr Storey’s evidence is that he experienced another acoustic incident through the SupraPlus headset in January 2015, which he reported to Tracy Taylor, and which caused him discomfort and distress, although it was not as bad as the incident on 8 April 2014. This is borne out by the contemporaneous documents.

1. 1. An email sent by Mr Aspden to Ms Walsh on 17 February 2015 stated that he had been contacted by Plantronics who were in possession of a headset from Mr Storey. They needed a form to be completed before they could start testing on the headset. Mr Aspden said he suspected that “this related to an incident that happened in January this year and not the one that occurred in April last year”.

1. 1. Thereafter, Tracy Taylor completed a form relating to a noise-related incident that occurred on 12 January 2015 which she stated had caused Mr Storey further distress. She described the incident as occurring at around 11.20am in the call centre in Lancaster. Mr Storey advised he had noise interference into his left ear which he stated lasted for a few seconds. He described the sound as “very high pitched”. Ms Taylor explained on the form that Mr Storey had a previous episode of noise interference which resulted in him being diagnosed with tinnitus, and that “Access to Work recommended this headset to support Mark within his role.” She stated that she believed the product had already been sent for examination and testing. The form identifies the product as a SupraPlus headset with the product code HW251H.

1. 1. An email was sent by a Ms Sarah Gardiner (from HR) to Mr Aspden at 09.17 on 26 February 2015 forwarding an “incident form for the headset from Lancaster ATE” which Tracy Taylor had asked her to forward to him. Mr Aspden forwarded this by email to Plantronics at 09.51. A summary of the results of the tests was sent by Plantronics to Mr Aspden by email at 10.26 on the same day, 26 February 2015, which said that a hard copy of the attached report, and the headset, would be sent to Tracy Taylor. Shortly afterwards, Mr Aspden sent an email to Ms Gardiner headed “Re BT Lancaster Headset Incident January 2015” and copying her in to the email he had received from Plantronics.

1. 1. It is obvious from this evidence that the Plantronics report relates to the SupraPlus headset which was given to Mr Storey to use months after the incident which gave rise to his claim, and that it was tested because of a subsequent, different acoustic incident reported by him in January 2015. The whereabouts of the second-hand headset he was using on 8 April 2014, which he says Ms Taylor told him on 10 April had been sent off for testing, is unknown. On the material before this Court, it appears that it was preserved for some time after the incident but has been lost or destroyed subsequently.

1. 1. 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.

1. 1. In his skeleton argument for the present appeal, Mr Diggle submitted, at para 13 that:

“The Court would not be able to infer from the Claimant’s evidence of momentary piercing intense noise that the noise interference unit that he was using was defective. The Defendant ensured that after the incident the noise interference unit that was used by the Claimant at the time was tested. The results of those tests are exhibited to the witness statement of Jane Anne Crook at appendix JAC 3. That statement itself was exhibited to the statement of Louise Rutherford in support of the application for summary judgment…” [Emphasis added].

1. 1. At the hearing before us, Mr Diggle accepted that the headset test plainly related to a different headset. However, he did so only after Mr Storey had taken us to the documents which showed that he was given the SupraPlus headset in November 2014, and in response to a direct question from the Court. Mr Diggle maintained that the NIU which was tested in June 2015 was the unit in use at the time of the 8 April 2014 incident, though when pressed, he described the evidence in support of that contention as “thin”.

1. 1. The evidence is not thin: it is non-existent. There is no evidence from any of BT’s three witnesses that the amplifier tested in June 2015 had anything to do with the equipment which was in use by Mr Storey on 8 April 2014. None of them mentions the amplifier test. Ms Crook exhibits the document alongside the headset tests, without making any reference to it in the body of her statement. The third BT witness, Mr Warburton, who managed the team of IT support technicians to which Mr Aspden belonged, and therefore might have been able to shed some light on what happened to the NIU that was in use by Mr Storey in April 2014, and whether (and if so when) it was sent off for testing, says nothing about it.

1. 1. There is no evidence of the serial number of the NIU, nor of what became of it after it was removed to Blackburn following Mr Aspden’s visit to the call centre on 9 April 2014 and its replacement by a brand-new Plantronics unit. The only evidence that it was a GN amplifier rather than an older Plantronics unit is in the August 2014 report of the 8 April incident, which described the headset that Mr Storey was using on that date as a double headset and therefore may not be entirely reliable (though that is ultimately a matter for the trial judge).

1. 1. There is no document in the evidence before us linking that amplifier test with Mr Storey, let alone with the incident on 8 April 2014. Waiting for over a year before getting the tests done is also inconsistent with BT’s stated practice of sending off the equipment for testing immediately after a reported incident, which is what they did with the SupraPlus headset in January 2015. Moreover, Mr Storey was not the only person in the Lancaster call centre to complain about suffering an acoustic shock. The NIU that was tested could well have related to a different incident. There is simply no evidence to tell one way or another.

1. 1. In short, the tests exhibited to Ms Crook’s witness statement shed no light on whether the equipment that was in use by Mr Storey on 8 April 2014 was working properly. There is, and will be, no evidence about the properties of the headset or of the NIU that were actually in use on that date.

1. 1. In answer to a question from my lord, Lord Justice Singh, Mr Diggle explained that paragraph 13 of his skeleton argument had been carefully drafted to refer only to the NIU and not to the headset. That indicated to us that BT and its legal representatives were alive to the problem with the evidence about the headset tests before that document was drafted. It is deeply regrettable that in those circumstances the Court was not told in terms in the skeleton argument that it was accepted that Ms Crook’s witness statement contained a major factual error, and that the tests on the headset related to a different headset. Those tests were also in exhibit “JAC 3”, to which the Court’s attention was specifically drawn. An express correction would have saved a lot of time, but more importantly, there was a real risk that in its absence, the Court would have formed the same misleading impression as the district judge. The fact that this case is brought by a litigant in person makes it all the more important that steps were taken to ensure fairness and transparency.

1. That said, it is not for BT to establish that the headset or the NIU in use by Mr Storey at the time of the incident were in good working order. The burden of proof is on the claimant, Mr Storey, to establish that BT were in breach of the duty of care that they owed him and that this caused the injuries of which he complains.

THE CLAIMANT’S SUCCESSFUL APPEAL

The Court of Appeal went on to allow the claimant’s appeal.  Expert evidence was not essential to the claimant’s case and it was possible for the claimant to succeed without such evidence. A relevant factor was the fact that the defendant had lost, or disposed of, the relevant evidence in any event.

IS THE ABSENCE OF EXPERT EVIDENCE FATAL?

1. 1. Mr Storey’s case is that in all the circumstances, BT had failed to take reasonable steps to protect him from an acoustic shock. He submitted that the 27 March acoustic incident reported to Ms Walsh was enough to put BT on notice that there was a potential problem at his desk, and a risk of acoustic shock, and that giving him a second-hand handset and sending him back to the same desk was an inappropriate and inadequate response. The incident should have been recorded and investigated and a proper risk assessment carried out. No investigation was ever carried out into the cause of the noise on that occasion, nor indeed was there any investigation into what happened on 8 April.

1. 1. He also pointed out that Mr Aspden changed the way in which the “daisy-chained” cabling beneath his desk was arranged, from which a trial judge might infer that Mr Aspden thought it was a problem which needed to be fixed. The reconfiguration might, for example, reduce the risk of overloading or power surges.

1. 1. Mr Diggle complained that there was no pleaded case that the incident of 27 March was relevant to the scope of the duty of care or breach. He submitted that this was potentially prejudicial to BT because the witnesses who could have addressed the events of 27 March 2014 may no longer be available. However, BT knew from their own disclosed documents, as well as from Mr Storey’s evidence, that there had been an acoustic incident involving Mr Storey the previous week which was neither recorded nor reported by Ms Walsh. They were not going to call Ms Walsh as a witness even though she was present on 8 April 2014 and heard the noise. It is fanciful to suggest that an express reference to the previous acoustic incident in the Particulars of Claim would have caused them to change their mind about calling her.

1. 1. In any event, and irrespective of what is in the pleadings, the previous incident was part of the relevant factual background. One factual issue to be explored at a trial would be whether Ms Walsh’s response of giving Mr Storey a second-hand headset was sufficient, or whether further steps and/or checks should have been carried out.

1. 1. Mr Diggle submitted that before the trial judge could even inquire into whether BT should have done something to address the earlier incident, the court would need to have evidence about the level of the noise on 8 April. Although I do not accept that submission, for the reasons I have already stated, even if it were correct, it is impossible for Mr Storey to adduce such evidence and that is not his fault. If BT had preserved the voice recording of the call it might have been possible to measure the pitch and level of the sound, though it appears that this would require specialist equipment. But BT did not preserve the voice recording.

1. 1. It appears to me that, unlike the district judge, the judge 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 the claimant was subject to sustained exposure to noise above certain acceptable limits contained in various health and safety regulations.

1. 1. In the court below BT relied upon a report by a Dr Lower, a consultant in noise and vibration, in June 2019 in relation to a claim for acoustic shock brought against BT by someone else who worked in the Lancaster Call Centre. The judge thought this document was relevant and Mr Diggle sought to rely on it before us, but Dr Lower’s report is concerned with whether the noise experienced was loud enough to cause hearing damage. Dr Lower makes much of the fact that the complainant was only exposed to the noise for a few seconds instead of over an hour, a point which is only relevant to noise-induced hearing loss. He does not address the published scientific evidence relied on by Mr Storey that noise levels below those required for noise-induced hearing loss can cause acoustic shock, and that the exposure does not have to be sustained. Dr Lower’s report therefore does not advance BT’s position in respect of the application for summary judgment.

CONCLUSION

1. 1. For the reasons set out above, HH Judge Khan was in error in finding that the claim could not proceed without evidence from an acoustic engineer and the district judge was right to find that this case should progress to trial. I am reinforced in that conclusion by the fact that Mr Storey would not be able to provide an acoustic engineer with the underlying data pertaining to the equipment he was using which might have enabled the expert to produce a report that would assist him, because BT have lost or destroyed it.

1. 1. It will be for the trial judge, having heard all the evidence and made relevant fact findings (which would include drawing such inferences as may be proper both from the evidence and from the absence of evidence) to decide whether BT was sufficiently on notice of acoustic incidents and the risk of acoustic shock arising from such incidents that it should have taken steps to safeguard against the possibility of operators at this call centre suffering acoustic shock, and if so, whether, on the facts of this case, BT took reasonable steps to protect Mr Storey from a foreseeable risk of personal injury. It may be, when all the evidence is considered in the round, that the judge would reach the view that Mr Storey 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.

1. For those reasons, I would allow this appeal. For the avoidance of any doubt, I would set aside both the judge’s order for summary judgment and his alternative finding that the claim should be struck out for failure to comply with case management directions, which also depended on the mistaken premise that the evidence of an expert engineer was critical to the success or failure of the claim.