“High Court confirms NIHL is a Disease”
The High Court has given its long-awaited ruling regarding whether noise induced hearing loss (NIHL) was a disease for the purposes of Part IV of CPR 45 in Dalton & Ors v British Telecommunications Plc  EWHC 616 (QB).
The costs difference between a disease and an injury
The Court’s decision turned on whether NIHL met the definition of a disease or an injury. If the former, in NIHL cases which settled pre-trial the Claimant would be entitled to recover a fixed success fee of 62.5%. If the latter, the fixed success fee was limited to 25%.
Until 2012, it had been generally accepted by both Claimant and Defendant groups that NIHL was a disease and fixed success fees were paid at 62.5%. However, a decision of the High Court in Patterson v Ministry Defence  EWHC 2767 (QB) in which it was concluded that a non-freezing cold injury was an injury rather than a disease led to insurers adopting analogous arguments in NIHL claims.
This argument arose in a significant number of claims. Judges at district bench level were reaching inconsistent conclusions. Because of this, the Regional Costs Judge in Cardiff referred a number of test cases to the High Court.
The parties’ positions
The Claimants argued that NIHL was a disease.
The Defendant sought to argue that NIHL was an injury rather than a disease on the basis that, although long-term exposure to noise causes hearing loss, the damage suffered by exposure to noise happens immediately. Further, a natural and ordinary meaning of the words ‘injury’ and ‘disease’ led to NIHL being classified as the former.
The Defendant relied on expert medical evidence which indicated that NIHL bore all of the characteristics of a traumatic injury rather than a disease.
The Claimants’ medical expert identified that NIHL is referred to in all medical texts as a ‘disease of the ear’. There were no reports of NIHL being classified medically as an injury rather than a disease.
The Court was satisfied that NIHL therefore medically classified as a disease.
The legislative history
The Court considered the legislative history which led to the introduction of fixed success fees in employers’ liability matters.
The Court identified that the term ‘disease’ had not been used legislatively in its ‘natural and ordinary sense’. Further, in subordinate legislation dating back to 1985, NIHL was defined as a disease.
The Court then considered the Pre-Action Protocol for Disease and Illness Claims. It was identified that NIHL clearly met the definition of ‘disease’ for the purposes of the Protocol and, indeed, that ‘exposure to noise’ was explicitly mentioned in the pro forma letter of claim which is appended to the Protocol.
The process of setting the fixed success fees
The negotiations which led to the setting of fixed success fees in employers’ liability claims – both disease and non-disease – were discussed. It was identified that NIHL was included on a list of ‘diseases’ within the report prepared by Profs Fenn & Rickman. The press release which heralded the commencement of the fixed success fee scheme and the CJC’s 2005 Annual Report both confirmed that industrial deafness claims were to be the subject of a 62.5% success fee.
The Court concluded that “it could not be clearer that [the parties to the negotiations] all understood and intended NIHL (and VWF) would be included within the categories of disease claims in respect of which a 62.5% success fee would be payable on settlement prior to trial”.
Judicial approach to NIHL
The Claimants referred to one House of Lords and one Supreme Court decision in which their Lordships had indicated that NIHL was a disease.
The Court came to the firm conclusion that NIHL was a disease for the purposes of claiming fixed success fees. Although it was possible that NIHL could be categorised as an injury, the terms ‘injury’ and ‘disease’ were not mutually exclusive.
The Defendant’s approach to the case was criticised, with the Court holding that it did them little credit to attempt to re-open (if not renege on) the agreement which led to the introduction of fixed success fees whilst taking the benefit of lower fixed success fees in other litigation.
The Court made it clear that, whilst it was only concerned with NIHL claims, by the same analysis and for the same reasons, VWF claims which settle pre-trial will also be subject to a 62.5% success fee.
The Court’s decision will be a welcome one for Claimant industrial disease solicitors.
The judgment makes it clear that the question of whether NIHL is a disease or an injury should never have arisen. The Defendant was subjected to significant criticism by the Court for attempting to go back on the negotiated agreements.
The fact that the judgment extends to VWF claims will also give Claimant solicitors some succour.
A large number of NIHL claims were put ‘on ice’ either by Court-imposed stays or by the parties agreeing to await the outcome of Dalton. These claims can now be progressed.
By Alex Bagnall, Associate and Costs Advocate