13 August, 2014

Is Noise Induced Hearing Loss (NIHL) a disease?

Filed UnderLegal Costs  

Fixed success fees have been in place for “disease” claims since 1 October 2005. It is therefore surprising that it was not until 2012 that any serious consideration was given as to which claims fell within the scope of the fixed success fee regime (see Fountain v Volker Rail Limited, Bird v Meggit Aerospace Limited and Patterson v Ministry of Defence [2012] EWHC 2767 (QB)).

The leading case of Patterson concerned an unusual non-freezing cold injury. The area of real importance is whether Noise Induced Hearing Loss (NIHL) claims are disease claims for the purposes of the rules. Traditionally such claims have been viewed as “disease” claims. The problem arises because the rules themselves do not define “disease”.

There are currently a growing number of decisions at first instance where the courts have concluded that NIHL is not a “disease”, including Mansfield County, Sheffield County Court and Harrogate County Court. Although a binding decision is still awaited, there is an increasing wiliness by the judiciary to adopt a narrow interpretation to the word.

Comments

20 Responses to “Is Noise Induced Hearing Loss (NIHL) a disease?”

  1. abcde on August 13th, 2014 7:25 am

    I believe there are some test cases in Cardiff, or so I heard on the grapevine

    Of course if it doesn’t fall under a disease then it’s specific individual injuries and most will be outside the EL fixed cpr 45 regime as the injury will pre date the implementation. Therefore it will be a “reasonable” success fee and this will invariably be higher than 62.5% owing to the various risks on such cases

    Sometimes its better the devil you know….

  2. domthedrafty on August 13th, 2014 8:26 am

    I don’t know the right answer to whether NIHL is a disease or not, but what does puzzle me is that in all decisions I have seen on the point which say it is not a disease seem to say, (in terms):

    “A disease is something contractible, like a bug, and as NIHL is not contractible in such a way it’s not a disease under CPR 45. Yes I can see that the PD lists other things which are not diseases like stress and WRULD but they’re an exhaustive list of exceptions of things which should be included in the definition of disease”

    I just don’t think that particular ratio is sound, whether or not NIHL is ultimately a held to be a disease.

  3. Anonymous on August 13th, 2014 9:23 am

    interesting they are all courts, in the traditional heartland, of heavy (and noisy) industry

  4. Anonymous on August 13th, 2014 9:47 am

    @abcde

    ah, but if the s/f isn’t fixed, then you have to serve a separate Statement of Reasons with the bill setting out the risk assessment – but of course, most wont do that thinking its fixed, and 99.9% of solicitors wont have done a separate risk assessment at the start, because they also thought it was fixed

    Therefore, you have nothing to use to support any success fee and will have failed the CPD (I’m waiting the first reply saying it doesn’t apply any more), no success fee determined at Nil

    Never cared for devils personally

  5. Paul on August 13th, 2014 10:23 am

    The problem is that the judicial interpretation of ‘disease’ is not the same as a medical interpretation.

    Any medical text will tell you that a disease must have a pathology and it is that pathology that separates a disease from a condition or injury etc.

    Medically – the ongoing skin / follicle damage in a hair loss claim (chemical exposure type with no patch testing etc, not just a rubbish hair cut) is a disease. It has a recognised pathology so the ongoing symptoms (often several years) do not fall into the medical definition of a condition or injury.

    I’ve done loads of DA’s on hair claims and a good 50% of judges have decided that despite ‘disease’ being a very specific medical term, the judge has the knowledge to decide that it isn’t. Hair claims are usually run under the disease protocols as early evidence on causation is needed and the report gets sent with the Letter of Claim.

    No doubt the rules need updating on the point to identify specific diseases that fall under the disease protocols and to exclude the rest, but the judiciary can’t actually redefine a medical term! That would be as laughable as a Judge deciding that E does not equal MC2 just to apply a rule on costs.

  6. abcde on August 13th, 2014 11:45 am

    I disagree. You would have claimed fixed in the bill. That is your primary position. My original post is your alternative argument should the court accept the paying parties position. You therefore serve the statement of reasons with the reply and ask the court to in first instance allow 62.5 or in the alternative allow a reasonable amount.

  7. A nonny mouse on August 13th, 2014 11:50 am

    The justification for a higher fixed success fee for diseases is generally that they are harder to prove and so more likely to fail. They are usually harder to prove because a) the damage is done over a period of time rather than during an identifiable event (or accident) b) causation is harder to establish because of the greater likelihood of the coexistence of negligent and non-negligent causative factors and c) limitation is more likely to be in issue because the damage is latent. This all applies to NIHL. Sadly, instead of defining ‘disease’ – which has very different meanings if you ask a layperson, lawyer or doctor – the rules committee left a mess which is going to cost a significant amount of money to resolve.

    Related question – is NIHL a disease for the purpose of the EL/PL Protocol? Makes a big difference as there are no fixed recoverable costs for disease claims falling out of the Protocol.

    @ anonymous 9:47 – given that the state of the law is far from clear, I would be surprised if relief from sanctions wasn’t granted if NIHL is ultimately considered not to be a disease.

  8. AnonymousCostsGrunt96 on August 13th, 2014 1:19 pm

    I think this is a pretty narrow report on the actual state of affairs.

    From all my experience I would say judges are split pretty much down the middle at assessment, and as such would advocate any party involved in such a dispute just pausing the proceedings and waiting for a binding decision before clogging up court time.

    A perfect example of this was in my local court recently where 3 cases were heard by 3 different judges within the space of 2 weeks.

    1st case – SF awarded at 62.5%
    2nd case – SF awarded at 25%
    3rd case – SF awarded at 50%

    the facts were roundly similar but each judge came to a different conclusion. Good to see they are on the same page!

    Let’s wait until we have a binding decision before posting on blogs that judges are leaning one way or another.

  9. Anonymous on August 13th, 2014 3:19 pm

    Its tiring that Defendants seek so many lacuna’s to feather their nests (clio’s are easier to carry).

    Denton is the start of the end for such nauseating ‘nibbling’ one hopes.

    The question isn’t ‘is NIHL a disease by interpretation of Medical or Legal description’ but rather, did the draftsman intend to include NIHL as disease in the fixed fees rule as a disease? The answer is ……….yes! Check out the Civil Justice Council’s Report from April 2005

    http://www.judiciary.gov.uk/wp-content/uploads/JCO/Documents/CJC/Publications/Annual+reports/CJC+Annual+Report+2005.pdf

    The base of ‘Page 21′ is where its happening. Note Lord Dyson’s involvement (ish)

  10. abcde on August 13th, 2014 4:44 pm

    Whilst i agree re lacunas wasn’t the drafters intention expressly considered in the decisions and not followed as a different interpretation was preferred?

  11. Anonymous on August 14th, 2014 8:11 am

    @abcde

    Sorry, wrong approach, and misses part of the point.

    statement is to be served with the bill, not the replies.

    Further, you cannot ask the Court to allow a ‘reasonable amount’, because the Court has to assess on the basis of the actual risk assessment factors determined by the solicitor when signing the CFA, and if they were reasonable or not. Solicitors in such cases DO NOT generally do risk assessments, thus there is nothing to support a success fee. the Court cannot engage in speculation as to what the solicitor MIGHT have been thinking. The last draftsman I saw in Court trying to justify it post, was told he couldn’t give evidence as he wasn’t there at the time the CFA was signed (not a NIHL case)

    @ a nonny mouse

    Given this is a significant breach, I think you can sing Denton all day long and get no relief, from sanctions or otherwise, you run your argument and state your case, and if it’s ruled wrong at the end of the judgement, you can’t then say ‘oh, ok then, NOW I’ll change my tune and apply for relief’

    It’s a mess, yes, but I’d suggest those draftsmen out there with sense, will already be advising their clients on how to now protect themselves

  12. domthedrafty on August 14th, 2014 10:17 am

    @anon 8:11am 14/08 – The requirement to prepare a risk assessment was removed with the CFA Regulations in 2005. Are you seriously stating that if there is no written risk assessment prepared that no success fee is recoverable? How does that square with the ratio in Halloran v Delaney, KU v Liverpool etc etc etc? If the actual RA was the be al and end all, if a thorough RA is prepared, do you get the success fee in full or does, on your submission, the paying party have their cake and eat it too?

    Also, if your risk assessment was “this case is fixed” and that was your actual risk assessment and it was attached to the bill, where is the literal breach of CPD 32.5 requiring relief?

  13. abcde on August 14th, 2014 10:38 am

    My sols all do risk assessments. Perhaps thats because we are used to pushing for alternative success fees.

  14. Anonymous on August 14th, 2014 12:04 pm

    @domthedrafty

    the need, for compliance with the old CFAR, was indeed removed as a regulatory instrument,between the parties, but not with the Client, and certainly not if the solicitor wished to justify what factors he took into account when setting the success fee. So yes, I am perfectly serious.
    If you actually read fully the cases you quote, you will realise that each involved the Court hearing submissions on what factors the solicitors had in fact taken into account as per their risk assessments (so they were preparing them, even if you weren’t), and then deciding whether the solicitor had properly taken account of all the facts and attached the relevant weight, before deciding what success fee to apply.
    Its nothing to do with a Defendant having their cake and eating it, that is just childish. It is precisely about a solicitor justifying why they say a case was risky, and if they don’t do risk assessments, they don’t have any evidence as to risk they felt applied when they entered into the CFA.

    Regarding your fixed success fee argument, if in fact it is not fixed because you got your argument wrong, then clearly you haven’t complied. I wonder, do you serve CPD 32.5 statements simply saying ,ooh, this one looked difficult, and say that’s compliance?

    At the end of the day, there’s lessons to be learned here and passed on to clients, just to make sure. You’ve missed that totally, so good luck to you

  15. domthedrafty on August 14th, 2014 3:01 pm

    @Anonymous on August 14th, 2014 12:04 pm

    What I haven’t missed is that it would be pointless to pass on the lessons now because it would be a case of bolting the stable door long after the horse (probably called Jackson) has bolted.

    I do however seem to have missed why it was necessary to descend into patronisation. On the subject of case law, I have read those decisions, and many others, in full over many years, thank you. I do confess however to having missed the one that disallowed a success fee for failing to prepare a risk assessment, but yet I somehow have managed to read Bray Walker Solicitors (a firm) & Anor v Silvera.

    The reference to having their cake and eating it too is a well known saying (I do enjoy using idioms, sayings and metaphors), not intended to be childish, but merely posing the question that if no risk assessment = no success fee, does a good risk assessment = full success fee? I was making the point that it does not follow as “night follows day” to highlight what I perceived to be the fallacy of your argument.

    Also, the point I am making on literal compliance is that if your risk assessment really was “this one looked difficult” how would you fall foul of the failure to disclose your risk assessment if that really was your risk assessment? Or would you seek to argue that the requirement in CPD 32.5 goes further to mean that the risk assessment must be shown to be correct and relevant when judged on detailed assessment at the end of the case?

    The case I have cited above, in my view at least, supports my position that there is no requirement for a risk assessment nor is there a requirement for a top quality one. That case would seemingly be binding on the county court.

  16. abcde on August 14th, 2014 3:16 pm

    1. The starting position is its fixed

    2. The defendant contends its an el claim and not a disease claim

    3. Claimants reply is that it is disease or alternatively if it’s not disease el fixed regime does not apply as a matter of operation of law and that if the court does decide against the claimants primary position the court must decide on a reasonable success fee as the court cannot apply the el fixed when it does not apply. At the same time the claimant serves 32.5, this only being relevant in the event that the claimants primary position is not accepted and necessitated only by the defendants attempt to exploit a loop hoLe

    4. Matter proceeds to assessment. The court will either allow 62.5 or in the case that the exposure is pre 2005 which is likely, albeit not a certaintity, it will have to decide what’s reasonable

    5. The court will decide whats reasonable based upon the risk assessment served. The fact that it was only served as the alternative position is simply not Denton significant and arises purely as a result of the defendant undermining the certainties provided for by fixed

    6. I would hazard a guess that the court would say that a reasonable non fixed success fee was 62.5, after all that is what the big tent decided, after detailed analysis, would average out over the entire book of business

    7. Apologies for typos before anyone says as I’m typing on a phone

  17. abcde on August 15th, 2014 9:38 am

    BTW Dom, nice to see an old costs monkey face

  18. Anonymous on August 15th, 2014 9:56 am

    @domthedrafty

    No lessons learned on your part, which is your prerogative of course.Given we are talking about cases where success fees are recoverable still, I am surprised, but no matter.

    Bray Walker, was decided on the basis the solicitor had complied, by virtue of the wording of the existing Law Society model at that time, and the fact the Solicitor had given evidence (accepted) as to providing a description. The Judgement indeed confirms, compliance aside, the question of a solicitor not giving a description, was then open to difficulty in justifying his claim on assessment – which is exactly my point.

    If you take offence at having your “well known” comment about a defendant wanting its cake and eating it, I ask you consider, the response is equally a “well known” phrase.

    in ending , you do really still miss the point, possibly via your apparent indignation.The requirement of the PD, is for the solicitor to provide details of what risk assessment he undertook as at the time of setting the CFA. If he did not, and relies on it being “fixed”, when it is shown to be not, he has not complied, as he did no risk assessment. If the Court accepts claiming “fixed” is sufficient, and then asks to look at the factors the solicitor did consider, then there are none, so there can be no success fee (on a purely quantum basis) – which fits exactly the point accepted in which accords with the case you quote

    @ abcde I agree, this is what will in practicality happen, but at point 5, there are no factors the solicitor took into account, and as hindsight cannot apply, there is nothing the court can base a success fee on

  19. abcde on August 15th, 2014 10:21 am

    I reiterate my sols all do risk assessments. In any event the court will look at the factors known or should have been known at the time risk was assessed. If they didn’t do that the court wouldn’t apply reasonableness and either uphold or reduce downwards the success fee sought

  20. Anonymous on August 15th, 2014 11:10 am

    Of course, the alternative way to look at things is that 99% of Claimant’s risk assessments are of a generic nature and in fact are not case specific in the slightest.
    You see the usual; the Defendant may redirect the claim; there may be no independent witnesses; Defendant could produce documentation detrimental to the Claimant’s claim etc etc……
    A Judge with a common sense approach would still be able to determine a reasonable success fee based on the claim, whilst the Claimant’s Solicitor cannot use the benefit of hindsight, a Judge can still look at the information which was available to the Claimant at the outset of the claim.

    @Anon I am in fact for the Defendants, so please do not think I am just picking fights to support the Claimant’s side of things, far from it, and in fact everything you have raised I would be doing the same within assessment proceedings, I just think that you cannot be narrow minded enough to see that the Courts may, and very likely would, apply a ‘reasonable’ success fee as they see fit. It would take a Judge with a very Draconian attitude to accept your arguments, which I see the Court swaying away from said attitudes atm. The question asked would be, so Mr Anon, do you accept that there were risks at the outset, and you cannot honestly say no? The basis of the success fee would then fall to the Judge, who, lets face it, would make up their own mind as to how they are going to calculate it.

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