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Is exacerbating a pre-existing condition a disease? CA ruling will fix success fee level


Employers’ liability: debate over nature of injury

The Court of Appeal is set to investigate whether an injury exacerbated at work should be classified as an employers’ liability or disease claim and so attract either a 25% or 100% success fee.

HHJ Barrie, sitting in Nottingham County Court, has directed that Bird v Meggit Aerospace Ltd be transferred to the Court of Appeal using the ‘leapfrog’ procedure.

He had been asked to rule on an appeal to the decision of District Judge Hale, who sat as a regional costs judge in Nottingham and said that “an aggravation or worsening of symptoms” cannot be regarded as a disease “as usually understood and defined”.

As a result the claim was governed by CPR 45.20(1) for fixed success fees in employers’ liability claims, rather than CPR 45.23 (employers’ liability disease claims).

Two months after DJ Hale’s ruling, HHJ Mitchell – sitting at the Central London County Court with Senior Costs Judge Hurst as his assessor – came to a very similar conclusion in Fountain v Volker Rail Ltd.

Overturning the ruling of Master Haworth that the work-related injury suffered by the claimant was a disease, the judge said: “This was a claimant who had a degenerative spine whose condition was worsened as a result of a series of occurrences when he was carrying weights which were far too much for him. The fact that this was not just one occurrence but it was a series of occurrences does not make it a ‘disease’…

“By no stretch of the English language could it be said in this court’s judgement that this was a disease or that it had been contracted. The medical evidence in our view is conclusive to establish that this was a physical injury.”

According to a briefing by Andrew Hogan, a barrister at Ropewalk Chambers in Nottingham who acted for the paying party in both cases (instructed by Berrymans Lace Mawer in Bird and DLA Piper in Fountain), it is not known whether this case will proceed to the Court of Appeal as well.