Legacy Claims - 2018 In Review

Practitioners in the legacy claims market are sensitive to case law and legislation of relevance to them. The decision of the Supreme Court of Dryden regarding sensitivity to platinum will prove to be important to the claims market in the long term.

The decision has broadened what constitutes an actionable personal injury, which will have significant implications going forward.

Dryden made clear that should an employer's negligence result in a 'physiological change' to an employee, then the employee may be entitled to claim compensation for any financial losses resulting, even in the event that the physiological change is asymptomatic. The judgment may prompt additional claims for minimal and imperceptible injuries, with the argument likely to be advanced that the physiological change has left a claimant worse off in some measure. Nonetheless, there do remain issues of causation for claimants to cross.

The decision in Dryden could be relevant in noise induced hearing loss claims, where any de minimis yet measurable hearing loss could now be argued as precipitating deafness in a claimant. However, any such impact is only hypothetical, and realistically claim numbers for NIHL claims have stabilised.

Clyde & Co have had success this year in defending de minimis hearing loss claims, as part of our continuing initiative to tackle these claims. Our strategic litigation expanded the de minimis threshold, under which claims will not be compensable.

Moving forward, the proposed fixed recoverable costs regime for NIHL claims has yet to come into effect, but any changes would likely affect the profitability of handling these claims. Therefore, any possible claims migration following the impending whiplash reforms may be limited by these changes.

Whilst the volume from noise induced hearing loss claims generally may have been turned down, the decision in Goldscheider made a big noise due to its possible implications for all manner of venues and professions.

The Court found that the Claimant had suffered from 'acoustic shock' following exposure to excessive sound pressure during his employment at a concert. There are some concerns that this may have a large impact on concert venues and other public arenas and result in a deluge of claims of this nature, hence why an appeal was made and will be heard this year.

The High Court also provided some much needed commentary on the issue of contribution claims in legacy actions. The Court confirmed that time...