The Dekagram 27th March 2023

• Published date: 04 April 2023
• Subject Matter: Employment and HR, Litigation, Mediation & Arbitration, Contract of Employment, Discrimination, Disability & Sexual Harassment, Trials & Appeals & Compensation
• Law Firm: Deka Chambers
• Author: Mr Hugh Rimmer and Andrew Spencer

This week the team has been musing on the forthcoming Coronation - as our readers will know, we do love a party. Speaking of which, it's Silks Day, and as a consequence Sarah Prager will be spending the day in fancy dress, nodding, bowing and generally being overwhelmed by the whole thing. We've said it before, but will again: thank you to our supportive readers, colleagues and friends. Without you we'd never have the opportunity to mess around with the Ogden tables on contingencies other than mortality.

Barry v Ministry of Defence or: How I Learned to Stop Worrying and Love Adjustments To Contingencies Other Than Mortality

The case of Barry v Ministry of Defence [2023] EWHC 459 (KB) offers valuable insight into the revised guidance notes to the Ogden Tables (8th Edition) on Contingencies Other Than Mortality.

The case

The Claimant, Mr Barry, claimed damages for noise induced hearing loss sustained during his service in the Royal Marines. He had enlisted in 2013, for 18 years, but was medically discharged due to bilateral hearing loss and tinnitus in 2017. Breach of duty was admitted, though there were arguments on contributory negligence and some difference on the extent of the hearing loss.

The issue of widest interest to personal injury practitioners is the High Court's consideration of the revised guidance in the Ogden Tables (8th Edition). In particular regarding adjustment factors for contingencies other than mortality and how should one approach any departure from the figures in Tables A-D.

Disabled?

The Claimant contended that he was disabled, and that the adjustment factors for a disabled person should apply. The MoD did not admit that Mr Barry was disabled (and as a consequence there was little or no real loss on the basis of an Ogden calculation). The Defendant argued that Mr Barry did not satisfy the definition of disability in the Disability Discrimination Act 1995, as his hearing loss did not have a substantial adverse effect on his normal day-to-day activities and his problems were ameliorated by the use of hearing aids. The court did not accept this, and found that the Claimant fell squarely within one of the examples given in the statutory guidance to the DDA 1995. In relation to hearing aids, treatment or aids of this sort are specifically excluded from the questions of whether someone is "disabled" or not (schedule 1 paragraph 6 of the DDA 1995). It must be determined on what the effects are without them. Mr Barry was found to be disabled for the...