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  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.