The Issues:

This was to determine a preliminary issue as to whether NIHL/tinnitus, is to be treated as an injury or a disease, for the purposes of calculating fixed success fees under the former part 45 of the Civil Procedure Rules.

The Defendant submitted that the court had to consider the “natural and ordinary” meaning of the word “disease”. The CPR contains no definition, therefore the words simply had to be applied in the context of a claim for NIHL/tinnitus.

The Claimant submitted that the court should consider a considerable body of material in order to construe “disease” more widely to include the condition of NIHL/tinnitus. This included the provisions of the social security legislation which, as early as 1975 did contain an extended definition of disease including: “A10 Substantial sensorineural hearing loss (occupational deafness)”. It follows that NIHL has been expressly defined as a ‘disease’ in subordinate legislation governing statutory compensation for industrial injuries for about 30 years and had been so defined about 20 years prior to the introduction of section V of CPR Part 45 in 2005.

Held:

Mr Justice Phillips decided that NIHL/tinnitus is a disease rather than an injury, and the higher success fees applicable to diseases should apply.

Mr Justice Phillips went on to state that;

“consideration of the legislative history 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 … it is inconceivable, when looked at in its proper litigation context and considering the mischief being addressed, that Parliament did not intend to include NIHL (and VWF) in type C in section V”. (our emphasis).

It should also be noted that the Civil Justice Council’s press release prior to the introduction of the former part 45 of the Civil Procedure Rules, expressly recorded that an “industry agreement was to be embodied in rules and would prove for the success fee in claims for NIHL (and VWF) to be 62.5%”.

Comment:

Phillips J has taken the clear view that the intention of Parliament was for “occupational deafness” claims to be considered as a “disease”. Hopefully this will put to bed any ongoing arguments as to success fees in NIHL claims. 

In distinguishing this case from the conclusion as reached by Males J in Patterson –v- Ministry of Defence which relates to success fees in non-freezing cold injury claims (“NFCI”)) Phillips J confirmed his view that the same decision would have been reached if this related to a claim for HAVS.

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