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Fundamental dishonesty in occupational disease claims - Paul Debney, Weightmans LLP

24/10/18. In this, the first of a series of 3 articles, Paul Debney, Partner and head of disease counter fraud at national firm Weightmans LLP, highlights some of the issues surrounding fundamental dishonesty (“FD”) in disease claims.

Claimants who bring FD claims risk significantly more than simply failure; there are for example the potential financial consequences of enforceable costs orders, quite apart from tort of deceit claims and contempt of Court. What might constitute FD in occupational disease claims has been a developing area of law since the case of James v Diamantek (unreported 2015).

In that noise induced hearing loss (“NIHL”) claim the claimant alleged in his letter of claim and particulars of claim that he had never been provided with hearing protection or training in relation to the same during the entirety of his allegedly noisy exposure by the defendant. He apparently told his medical expert the same thing and repeated that assertion in Part 18 replies and his witness statement.

However, during cross examination he changed his evidence to concede that he had worn hearing protection for the whole time during the last 7 years of his employment and for some of the time during the earlier 3 year period. The District Judge rejected the claimant’s evidence and found that he had worn hearing protection for the entirety of the allegedly noisy employment and dismissed his claim. Unsurprisingly, the Defendant applied for an order that the claim was fundamentally dishonest, to displace qualified one way costs shifting (“QOCS”) pursuant to CPR 44.16(1) and permission to enforce that costs order.

The District Judge declined the application and said that although she had found that the claimant had lied about the non provision of hearing protection, he was nevertheless an honest man...

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