Expert engineer evidence still likely required in noise induced hearing loss claims despite Court of Appeal decision

United Kingdom

The Court of Appeal has allowed an appeal against an order striking out a personal injury claim for acoustic shock where the claimant had not served supporting expert evidence by an acoustic engineer.

Background

In Storey v British Telecommunications Plc (2022) EWCW 616, the claimant brought a claim alleging that he had suffered injury to his hearing due to acoustic shock/trauma. The parties were each given permission to rely on the report of an acoustic engineer, but neither party served a report. The defendant successfully applied to have the claim struck out on the basis that, without an expert report, the claimant was bound to fail. The application was initially refused by a Deputy District Judge but then allowed by a Circuit Judge. The claimant appealed that decision.

Decision

The Court of Appeal granted the claimant’s application; the Court noted, however, that the burden of proof remained on the claimant to establish that the defendant was in breach of its duty of care and that the breach had caused the injuries complained of. In this instance, it was concluded that expert engineering evidence was not essential to the claimant’s case, and it would be possible for him to succeed without such evidence.

Of importance to those handling cases concerning hearing loss, it was felt that the Circuit Judge (who had granted the defendant’s application) had made an error by treating what was a claim for acoustic shock/trauma as if it was a claim for noise induced hearing loss. An acoustic trauma is an injury usually caused by exposure to a single, very loud noise, whilst noise induced hearing loss is a condition brought on by sustained exposure to high levels of noise above certain acceptable limits.

In part because of this, the Court of Appeal reached the conclusion that the Circuit Judge was in error when finding the claim could not proceed without engineering evidence and the District Judge was correct to find the case should progress to trial. It would be for a trial judge, having heard all available evidence, to decide whether the defendant was sufficiently on notice concerning acoustic incidents and the risk of acoustic shock/trauma and whether reasonable steps were taken to protect the claimant from a foreseeable risk of personal injury. Lady Justice Andrews specifically commented that it could well prove to be the case that, having considered all the available evidence, a judge would conclude that the claimant had failed to discharge the burden of proof, which was upon him, though this would depend on the facts available.

Comment

Though it could be said that the Court of Appeal’s judgment demonstrates a departure from the standard view that a claimant requires supportive engineering evidence to get home on breach of duty for hearing loss cases, it is important to note that the decision can be distinguished by the fact that it concerned alleged acoustic shock/trauma rather than noise induced hearing loss. Given the nature of the latter and often the necessity to obtain engineering evidence for assistance when determining both breach and causation, parties should still assume a report will be required. A claimant is still likely to run the risk of their claim being struck out if this evidence is not obtained. Defendants will nevertheless need to be wary of this decision and not simply assume a failure to obtain engineering evidence by the claimant will automatically mean that a claim is bound to fail. We will have to wait and see whether claimants seek to apply this reasoning to NIHL cases.

Further reading: Storey v British Telecommunications Plc (2022) EWCW 616