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Disease and the portal

10 June 2014

Practitioners will be aware that there is scope, where there is only one employer, for disease claims to be dealt within the portal.

There have already been a number of significant and fundamental issues have been identified that seem to indicate that the system is unsuitable for the majority of disease claims, even where there is only one employer.

Claimant solicitors, given the level of costs recoverable in the portal, are not putting a great deal of effort into supplying helpful information. Under the Disease Protocol claimant solicitors have always had to be ‘encouraged’, to supply all of the information in the letter of claim that the protocol prescribes.

A recent portal deafness claim simply indicated that in employment between 1991 and 1994, the claimant was exposed to excessive noise … and that was it.

It is probably fair to assume that the original intention was that ‘one employer’ would be where a claimant was employed, and as a consequence exposed, between say 1991 and the present day, i.e. most his working life, but in the above example that is clearly not the case, even if just one employer is indeed pursued.

In the above scenario, almost 20 years of a potential claimants working life, and as a consequence potential exposure is up in the air.

As a consequence, other than dropping out of the portal, what safeguards are there for an employer to identify if any other employer has exposed the claimant to noise during his working life and as such contributed towards any loss? Or that a claimant will not simply settle this claim on a 100% basis via the portal, and then move onto the next employer?

What if there are limitation or causation issues? How would an employer be able to find out within the portal? It is often difficult enough to obtain such information or records dealing with these potential issues within the three months prescribed by the Disease Protocol, let alone the 30 days prescribed by the portal for a liability response to be made. In addition, should a defendant raise any arguments and/or complain about insufficient information, the matter drops out of the portal anyway. There will be very few claims where requests for additional information are not necessary.

For practical purposes it seems at this stage at least, that very few disease claims are likely to remain in the portal for long, since most of the age-old disease issues such as apportionment and limitation simply cannot be dealt with within the scheme.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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