The defendant costs specialists

Defining “disease” claims

By on Mar 18, 2015 | 8 comments

The dispute as to whether noise induced hearing loss (NIHL) claims are “disease” claims for the purposes of the fixed success fee regime stems from the complete failure to define “disease” in the Civil Procedure Rules. What is less obvious is whether this was a careless oversight or a deliberate decision.

Males J when faced with the issue of determining whether a certain condition was a disease, in the case of Patterson v Ministry of Defence [2012] EWHC 2767, held:

“Notwithstanding the objective of CPR 45 to provide a clear and certain test for the award of success fees, inevitably questions may arise as to whether particular conditions are to be characterised as ‘diseases’. When that occurs, and when the answer is not obvious, there is in my judgment no single test or definition which can be applied. In circumstances where the Rule itself provides no definition of ‘disease’, and where the dictionaries do not assist, it would not be practicable or sensible for the court to attempt to supply its own definition.”

Phillips J, in the recent case of Dalton v British Telecommunications plc, recognising he was taking the opposite approach to Males J, attempted to define disease:

“In my judgment consideration of the legislative history in this case strongly indicates that Parliament intended the term ‘disease’ in sections IV and V of CPR 45 to include any illness (whether physical or physiological), disorder, ailment, affliction, complaint, malady or derangement other than a physical or physiological injury solely caused by an accident or other similar single event. The provisions of section IV are therefore restricted to injuries caused by accidents (or other single events), preserving the long-established distinction.”

I take this to mean that under Phillips J’s definition:

  1. Symptoms caused by a single accident or event = injury
  2. Symptoms caused by more than one accident or event = disease

This would mean that if I bang my thumb with a hammer, I have suffered an injury. If I bang it a second time I am suffering from a disease.

With respect, that is nonsense.

Therein lies the difficulty with trying to provide a definition for disease. This is, in part, the very issue that arises in most NIHL claims. If my hearing is damaged as a result of an explosion in a factory, that appears to be clearly an injury. If my hearing is damaged as a result of a single acoustic shock caused by defective electrical equipment, that would also appear to be an injury I have suffered. Does it really become a disease if the hearing loss follows a number of minor acoustic shocks or exposure to a high level of noise over a prolonged period?

The rule makers may well have made a conscious decision not to define “disease” recognising the difficulties of the process.

However, if it has been intended that NIHL claims would fall within this category, it would surely have been preferable if Category C claims had been defined something along the following lines:

“‘Type C claim’ means a claim relating to a disease not falling within either type A or type B, including noise induced hearing loss claims”

That would have still left scope for some argument over more obscure conditions, such as in Patterson, but would have left the situation clear for most claims.

    8 Comments

  1. In terms of the NIHL claims, are the majority of these not pre the EL fixed SF?

    Therefore what with the coles criteria, limitation and general weaknesses in causation et al (and I admitted that these are countered lack of documents etc / Defendants that have ceased to trade) are you not looking at a “reasonable success fee” which is likely to be at least as high as, and in many cases more than, the “fixed” 62.5%?

    Is it not a case of the better the devil you know? Or do BT have a large number of claims with post 1.10.2004 exposure? I just am curious as to what they hoped to achieve out of this?

    abcde

    18th March 2015

  2. If you bang your thumb with a hammer, you have suffered an injury. If you bang your thumb again, you have suffered two injuries. You would have two discrete causes of action. They are two separate and clearly definable events/accidents.

    If NIHL is an injury, it is suffered every day (hour/minute/second?) that the sufferer is exposed to excessive noise. Does each give rise to an independent cause of action?

    The sensible distinction is between single events (easier to prove) and maladies caused by continuous exposure (harder to prove, limitation more likely to be in issue). The rules are less than clear, and inadequately drafted, but that doesn’t excuse insurers’ attempts to depart from both common sense and their own agreement.

    A nonny mouse

    18th March 2015

  3. I think this article misses the point somewhat; the issue is not whether NIHL is actually a disease, but whether for the purposes of the rules it is within their scope/definition of a disease; see also RSI, not actually a disease but for the purposes of that rule it is and is clearly defined.

    To use your hammer analogy it is like gently hitting your thumb with a hammer repeatedly over and over again yet no one blow is enough to cause an injury but the constant repetitive nature leads to a disorder or loss of function.

    domthedrafty

    19th March 2015

  4. Not to go all told you so but see my reply to the previous blog on this!


    Anonymous on August 13, 2014 at 3:19 pm said:

    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)”

    Told ya.

    Robtherich

    20th March 2015

  5. Simon, disregarding points on classification, renegging etc, on exposure that predates that EL fixed 25% success fee, as a general rule of thumb, what success fee are you trying to advocate? I am still trying to work out the financial benefit that was sought in this argument

    abcde

    20th March 2015

  6. Thank you, that puts things into more perspective

    abcde

    20th March 2015

  7. Thank the Lord I only deal with large scale Commercial work

    Anonymous

    24th March 2015

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