Roberto Carassale, head of costs at Blackburn firm Joseph Frasier, considers whether noise-induced hearing loss claims are disease claims for the purposes of CPR 45.34
Historically, noise-induced hearing loss claims (NIHL) have been classed as a disease claim for the purpose of recovering a 62.5% success fee pursuant to CPR 45.23(3)(e) – section V ‘Fixed recoverable success fees in employers’ liability disease claims’.
However, it appears that some defendants are successfully arguing at detailed assessment that an NIHL claim is not a disease claim but is a bodily injury and as such the automatic 62.5% uplift normally allowed in these cases does not apply.
One such reported case is that of Kevin Smith v Secretary of State of Energy and Climate Change (20.09.2013, Mansfield County Court), in which District Judge Davies, having heard submissions from both parties, ruled in favour of the defendant (represented by Nabarro) and held that NIHL is not a disease within the meaning of CPR 45.23 and therefore the 62.5% success fee did not apply.
Whilst a first instance decision only and consequently not binding, the judgment makes for an interesting read. Great reliance was placed by the district judge upon the High Court decision of Patterson v Ministry of Defence  EWHC 2767 (QB), in which Males J held that a non-freezing cold injury was not to be classed as a disease claim.
The main points to be noted from the decision in Patterson are that:
- Section IV (‘Fixed recoverable success fees in employers’ liability claims’) applies where the dispute arises ‘from a bodily injury’ but cannot apply where the claim related to a ‘disease’. However, some injuries can be regarded as diseases and fall within section V (eg, psychiatric injuries and upper limb disorders) even though they would not be regarded as disease in everyday language;
- The term ‘disease’ appears to have a more extensive meaning for the purposes of section V than its meaning in everyday language given the above definition;
- Where there is a dispute as to whether section IV or section V applies, the main point to consider is whether the condition qualifies as a disease and, if so, it does not matter whether the disease also constitutes or results from a ‘bodily injury’.
Males J considered and noted that there was no definition of ‘disease’ and that he would objectively interpret the word and that dictionary definitions, including medical dictionaries, were unhelpful and that ‘disease’ was to be understood in its ordinary sense. Within the context of ordinary, everyday language, a non-freezing cold injury could not be applied as a disease.
That was the basis upon which District Judge Davies approached the definition of the word ‘disease’. The district judge then considered the specifics of NIHL and whether it could be classed as a section V disease.
The defendant placed reliance on academic works such as Hunter’s Disease of Occupations and Mechanisms of Noise Induced Hearing Loss, and defined NIHL as being caused by: “…Increased oxygen free radical production within the ears, a process already taking place naturally, as a result of the stress caused by excessive noise where, due to the clear relationship between the exposure and the condition, it is clearly akin to an injury. Damage is caused by a discreet albeit repeated external stimulus and represents an acceleration brought about by external factors similar to other acceleration cases. A normal metabolic process is sped up by the trauma caused by excessive noise. NIHL is the result of an external insult speeding up a natural process which occurs with aging”.
The question which the district judge therefore asked himself was whether NIHL is a disease or an injury brought on by an external cause, which in NIHL would be excessive noise. Applying the guideline set down in Patterson, he found that a disease, unless specifically included and incorporated into the rules, is a “biological process caused by a virus, bacteria, noxious substance or parasite” and based upon that definition, NIHL could not be considered a disease.
Clearly the case has far-reaching ramifications. Even if courts in the future accept that NIHL is not a disease claim for the purposes of section V, then how will they approach what success fee should be applied? Section IV (25% success fee where the matter settles before trial) can only apply where the injury is sustained before 1 October 2004. The majority of NIHL claims are sustained over a long period of time and well before this date, and section IV appears to imply a singular accident rather than one which occurs over a period of time. Therefore, it is certainly arguable that section IV should not apply either.
Therefore, if neither section IV nor section V apply, then are we left with a situation in which the uplift is not fixed and is to be assessed according to the old Costs Practice Direction 11.7 and 11.8? If so, arguably this may be even better news for claimant solicitors, who can argue that such claims are difficult to win given the higher risk of failing on liability, require more investigation which carries a greater financial risk than other EL claims, and consequently should attract a higher success fee (this emphasises the need to ensure comprehensive risk assessments continued to be carried out in these type of cases).
Secondly, the judgment is contrary to the basic objectives of CPR 45 IV and V, which is to avoid arguments about the level of success fees.
Thirdly, the judgment is inconsistent with the “notes of guidance” given for the pre-action protocol for disease claims. This specifically mentions and includes NIHL and states: “This protocol covers disease claims which are likely to be complex and frequently not suitable for fast-track procedures even though they may fall within fast track limits. Disease for the purpose of this protocol primarily covers any illness physical or psychological, any disorder, ailment, affliction, complaint, malady, or derangement other than a physical or psychological injury solely caused by an accident or other similar single event.”
In both Patterson and Smith, the court effectively ignored the pre-action protocol on the basis that it is for the purposes of the protocol itself and before the commencement of CPR and that it does not form part of the formal CPR. It seems rich for the courts to have effectively ignored the pre-action protocol and applied its own definition of disease when clearly the pre-action protocol imposes sanctions for parties who fail to comply with it!
Fourthly, and perhaps of most importance, is that under the new claims notification process for low-value personal injury claims in employers liability disease claims, FORM ELD1 clearly stipulates deafness as one of the possible diseases which the claimant has suffered. It is therefore arguable that it was the intention of the Rules Committee to have included deafness claims as a disease claim within the original section V rules.
Although in time this argument will become of less significance given the post April 2013 position as to success fees, it remains to be seen how far defendants will push the issue on existing pre April 2013 cases.