Proportionality and Medical Evidence In Industrial Deafness Claims
24 June 2019
Background: Noise Induced Hearing Loss
Noise Induced Hearing Loss (NIHL) &/or Tinnitus can occur as a result of excessive exposure to noise over a prolonged period. As recently published by the Health and Safety Executive (HSE); over 1.2 million workers in the UK suffer from an illness which is work related.
More public awareness has given rise to claims for industrial deafness and it is the mutual obligation of all parties to ensure claims are compensated fairly, quickly and at proportionate costs. The case of proportionality is of essence here as it is for Claimants, the Court and the Defendant. It is worth bearing in mind that the courts must ultimately deal with cases justly and at proportionate costs (CPR 1.1(1).
Medical Evidence: How many medical examinations do I have to attend?
In order to prove your injury, the extent of it and that you have suffered NIHL you will be required to attend an appointment with a medical expert to prove medical evidence.
• First appointment: the claimant will be sent to an audiologist who will conduct a hearing test, usually arranged prior to the solicitor accepting the claim.
• Second appointment: The Claimant will attend a medical appointment with an ear, nose and throat specialist (ENT) who will be is a physician trained in the medical and surgical treatment of the ears. They have special expertise in managing diseases of the ears, so this is someone whose medical opinion really matters in your case. The expert will sign the medical report with a statement of truth and their understanding of the overriding objective to assist the Court on matters within their expertise.
However, although it is appreciated that expert evidence is to be restricted to the necessary issues, in hearing loss cases you may find a considerable range of opinions. The principle of proportionality dictates that expert evidence should be particularly limited and usually we would interpret that a single expert with relevant ENT expertise for the purposes of medical evidence would seem proportionate.
The Defendant almost always thinks contrary and would argue the audiologists clinical surroundings, the results of the audiogram or anything to obtain another medical report from an expert of their choice. CPR 1.1 (2) enables the Court to deal with cases keeping the work and costs in proportion to the value and importance of the case to the parties, expeditiously and fairly and the cost of a further medical report would be considered disproportionate. Challenges to the Medical evidence should be restricted by way of questions to and replies by the expert.
The Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) became law in April 2013. This meant that parties are no longer able to recover costs simply because they are reasonably and necessarily incurred. Costs incurred on or after 1 April 2013 must be “proportionate” to the matters in issue. The reforms were aimed at delivering access to justice in an efficient and proportionate way.
A significant proportion of the costs of NIHL claims is made up by disproportionate Defendants solicitor costs in obtaining a further medical report which we would deem unnecessary, unreasonable and not proportionate to the case. Yet at many occasions Defendants even in low value, fast track cases get permission to obtain a further medical report.
For further information, contact our team of specialist solicitors at Curtis Law Solicitors who have the experience, knowledge and understanding to restrict costs incurred, to bring a claim where you are compensated fairly and at the earliest, it is only what you deserve!