Disease or not disease - that is the question

Before 2012, there was very little debate over the definition of noise-induced hearing loss (NIHL). It has always been comfortably defined as a "disease" and not an injury. In April 2013, following a number of decisions at district judge level, which reached inconsistent conclusions, the regional costs judge directed that the definition of a disease be determined by a High Court judge as a preliminary issue in four nominated cases. These cases were four cases against BT where the claimants successfully recovered compensation for NIHL but the parties could not agree whether NIHL was a disease or not for the purpose of quantifying a success fee. The defendants, applying the natural and ordinary meaning of the word in accordance with Patterson , argued that NIHL is not a disease but rather an injury. It’s a gripping tale so read on…

On 13 March 2015, Mr Justice Phillips handed down judgment in the case of Dalton and Others v BT Plc (2015) 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.

Before 2012, there was very little debate over the definition of noise-induced hearing loss (NIHL). It has always been comfortably defined as a "disease" and not an injury.

Medically defined...

Its medical classification has always been a disease.

• The World Health Organisation's international statistical classification of diseases and related health problems (ICD – 10) in occupational health, published in 1999, states that classifications of occupational diseases have been developed mainly for two purposes: (1) notification of labour safety and health surveillance and (2) compensation. Category A.7 which deals with diseases of the ear and mastoid process, includes as a disease "noise effects on the inner ear".
• Hunter's diseases of occupation (Tenth edition 2010) includes as part 3, diseases associated with physical agents – section 1 of which relates to "sound, noise and the ear".
• Ludman's Diseases of the Ear (Sixth edition 1998) includes a chapter on traumatic sensorineural hearing loss which deals specifically with noise induced hearing loss.

Legally defined...

The legislative history of NIHL as set out in the statutory instruments below, show it being classed as a disease.

• Workmen's Compensation Act 1897
• Workmen's Compensation Act 1906
• Workmen's Compensation Act 1925
• National Insurance (Industrial Injuries) Act 1946
• Social Security Act 1975
• Social Security (Industrial Diseases) (Prescribed Diseases) Regulations

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 45 in 2005.

So who cares how NIHL is defined...

This classification of NIHL as a disease was common ground between the parties for the purposes of calculating success fees following the settlement of NIHL claims.

Until 1 April 2013, sections IV and V of Part 45 of the Civil Procedure Rules provided for fixed success fees in specified employer liability claims.

Section IV applied to injuries and would attract success fees of 25 per cent for accidents on or after 1 October 2004.

Section V applied to diseases, which provided for a higher success fee of 62.5 per cent where cases settled prior to trial.

Before 2012, the parties would agree that the defendant would deal with NIHL as a disease and attracted the higher success fee. However in 2012 in the case of Patterson v Ministry of Defence, the judge was asked to consider whether non-freezing cold injury (NFCI) is a disease or not. Males J ruled that "it will be necessary to apply the natural and ordinary meaning of the word". He concluded that NFCI would not be regarded as the disease as a matter of ordinary language, but as an injury.

Dalton and others v BT

In April 2013, following a number of decisions at district judge level, which reached inconsistent conclusions, the regional costs judge directed that the definition of a disease be determined by a High Court judge as a preliminary issue in four nominated cases. These cases were four cases against BT where the claimants successfully recovered compensation for NIHL but the parties could not agree whether NIHL was a disease or not for the purpose of quantifying a success fee. The defendants, applying the natural and ordinary meaning of the word in accordance with Patterson , argued that NIHL is not a disease but rather an injury. They argued strongly that the condition was caused immediately by physical trauma and should not be classed as a disease.

The court considered the medical classification of NIHL and its legislative history. It considered its application in the pre action protocols and the genesis of sections IV and V of CPR 45. It considered the classification of NIHL in litigation with a study of Barker v Corus (2006) and Sienkiewicz v Greif UK Limited (2011) which both classified NIHL as a disease when considering divisibility and non-divisibility. The court considered influential legal textbooks such as Occupational Illness Litigation and Monkman on Employers Liability that both treat NIHL as a disease. Even the Health and Safety Executive's website acknowledges NIHL as having the highest number of civil claims of any occupational disease claims at 70 per cent of the total number.

And so... 

Judgment was given in March 2015. Going against much of the reasoning in Patterson, the court found that NIHL is a disease for the purpose of the fixed success fee rules. Phillips J gave a strongly worded judgment where he gave his own definition of what is a disease and what is an injury under CPR 45, which broadly boils down to symptoms caused by a single accident or event being an injury and symptoms caused by more than one event such as exposure to noise over time being a disease.

Accordingly, the preliminary issue was determined in favour of the claimants and it was held that NIHL cases are "disease" cases under the old CPR 45 attracting a 62.5 per cent success fee if settled before trial.

Phillips J added that defendant's insurers' attempt to reopen the industry agreement to limit the success fees to 25 per cent did them little credit. Despite this, the defendants have applied for permission to appeal to the Court of Appeal.