Smell of Success
Medical causation is usually at the heart of disease claims and that was particularly the case in a recent claim in which we acted which related to an alleged loss of the sense of taste and sense of smell.
The claimant maintained that he had suffered the loss of his sense of taste and his sense of smell as a result of exposure to strong chemicals and powders whilst working for his employer over a number of years. He served medical evidence which was broadly supportive. The expert stated that the exposure to chemicals and powders was a possible cause of this loss but that there was insufficient evidence to currently conclude that it was the cause as there were other factors that had to be taken into account. The expert recommended further investigations and tests that could be carried out to clarify matters.
The claimant indicated an intention to obtain further expert evidence from a Consultant Hygienist in support of his claim. Whilst the medical evidence was not sufficient for the claimant to prove his case and an application for summary judgment was considered, we were mindful that a Court would be required to take into account any evidence that could have been available to it at trial. We therefore proceeded on the basis that we would attempt to restrict the claimant to the medical evidence already served and review matters thereafter.
When it came to directions, the Court agreed with our proposed directions and gave no further permission for expert evidence other than the report which had previously been served. As usual when an Order is made without a hearing, it allowed the parties seven days to apply to set it aside or vary it if they were minded to do so.
Upon receipt of the directions we wrote to the claimant’s solicitor on a number of occasions asking whether it was their intention to apply to set aside or vary the Court directions. No response was received. We therefore made an application for strike out/ summary judgment on the basis that the claim had no reasonable prospect of success in light of the only expert evidence that the Court had given permission for. Essentially we argued that the current expert evidence was insufficient for the claimant to prove his case. The claimant subsequently made a counter application for relief from sanctions for failing to apply to amend the directions in time and for permission to rely on the further expert evidence previously sought.
At the hearing, summary judgment was granted in our favour. This saw an early resolution to a claim where the costs could have escalated significantly.
The content of this page is a summary of the law in force at the date of publication and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.
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