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Deafness is no accident

24 March 2015

The introduction of the electronic claims portal in August 2013 placed a significant squeeze on claimants costs.

Deafness claims are however rarely suitable for the portal and either never start in this forum or invariably drop out. Deafness claims are also an exception to the fixed costs regime of CPR 45 and as such, whilst they will no longer attract the 62.5% success fee as opposed to the 25% for injury claims, will attract hourly rate rather than fixed costs going forwards.

It is no surprise therefore that claimant solicitors have turned to deafness claims as the new ‘cash cow’ and as such the Insurance industry has seen a significant increase in such claims over the last year or so.

Deafness claims have historically always been seen as the typical industrial disease but to an extent the decision in Patterson v Ministry of Defence threw a spanner in the works from a physiological perspective finding that a non-freezing cold injury, taking place over a period of time, was not to be classed as a disease.

Dalton was therefore an attempt to redefine, along similar lines, the issue of whether noise-induced hearing loss (NIHL) is a disease or an injury for purposes of percentage recovery in success fees pre-Jackson, and CPR 45 going forwards.

In his judgment in Dalton & Ors v BT, handed down on Friday 13 March 2015, Mr Justice Phillips found deafness to be a ‘disease’.

It does in hindsight perhaps seem obvious that deafness claims should fall within the definition of disease for purposes of CPR 45, which was written with that intent and it would perhaps be unfair for it to be classed as an injury when statistics indicate that the repudiation rate is high throughout the industry for deafness clams and as such this type of claim does represent a high risk for claimants.

A more important point in the post-Jackson world is the likelihood of the portal and CPR 45 now being extended to include deafness and indeed other disease claims within the fixed costs regime for EL/PL claims. In effect this will close the loophole bringing costs on deafness claims into line with those in accident claims and if indeed we do see his in the not too distant future then this more than anything else is likely to see a slackening off of the new tranche of deafness claims.

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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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