Clyde & Co Successfully Defend Claim Despite Claimant Efforts To Amend Pleadings At Trial

Clyde & Co have successfully defended a noise induced hearing loss claim that went to trial despite the Claimant making an oral application during the trial to amend the evidence that they wished to rely on.

The Claimant pursued a claim against the Defendant for noise induced hearing loss resulting from alleged exposure which had occurred between 1978 and 1990.

A single joint engineer was agreed to provide expert evidence. The evidence concluded that the noise levels were below the exposure limit.

In light of the conclusive evidence demonstrating that all noise levels were below the appropriate limit, the Part 35 questions served by the Claimant suggested an intention to contend that the Defendant had an early date of knowledge in 1987. However, the Claimant did not submit any application to amend the Statement of Case.

The Claim proceeded to trial and Counsel for the Claimant made oral representations seeking an adjournment to allow for amendments to the Statement of Case relating to the alleged earlier date of knowledge.

We argued that the Claimant had not previously indicated their intention to plead reliance on an earlier date of knowledge. Practice Direction 16 8.2 of the CPR expressly requires the Claimant to specifically set out "notice or knowledge of a fact" where he/she wishes to rely on them in support of his claim. In the absence of an express pleading, and in light of the conclusions of the single joint expert, we submitted that the Claim must fail on the basis of the Claimant's pleaded case as it stood at the date of trial.

Had the Claimant made efforts to amend pleadings at an earlier date; we would have defended the claim in a different manner, and likely elected to put our own Part 35 questions to the expert.

The District Judge agreed that the Claim could not succeed as pleaded, and the trial could not proceed. It would also have been unfair for our lay witness to be asked questions on the alleged earlier...