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The definition of a disease is important in legal costs. In the run-off of cases where a recoverable success fee applies, employer’s liability disease claims attract higher fixed success fees than other employer’s liability claims. Going forward, if an employer’s liability disease claim leaves the employer’s liability portal, then it is exempt from fixed recoverable costs. Despite the significant difference that can be made whether a matter is deemed to be or not to be a disease, it has never been defined within CPR.
Success fee cases
In the context of success fees, the matter was considered in Patterson v Ministry of Defence  EWHC 2767 (QB). Following cold weather survival training, the Claimant soldier had suffered a non-freezing cold injury (NCFI), or as it is more commonly known, ‘trench foot’. The question was whether the Claimant had suffered a disease, in which case a 62.5% success fee would apply, or whether he had not, such that the success fee was 25%.
The Claimant sought to argue that most dictionary definitions of disease would encompass the Claimant’s injuries; this was rejected on the basis that the dictionary definition was not the same as the use of ‘disease’ in ordinary language.
The Claimant sought to rely on the pre-action protocol for disease and illness claims, which defined disease as “any illness physical or psychological, any disorder, ailment, affliction, complaint, malady or derangement other than a physical or psychological injury solely caused by an accident or other similar single event”. This too was rejected, on the basis that the purposes of the protocol and the relevant provisions of CPR were different
The Court concluded that NCFI was not a disease in the ordinary meaning of the word, and was supported in this conclusion by the fact that NCFI “is not caused or contributed to by any virus, bacteria, noxious agent or parasite”.
That conclusion could probably be said to apply to noise induced hearing loss (NIHL) claims – which have generally been accepted to be disease claims by the insurance industry since the introduction of fixed success fees.
Fixed recoverable costs do not apply to a “disease claim which is started under the EL/PL Protocol”. What then is a disease claim? The EL/PL protocol defines a ‘disease claim’ as a claim arising from
a disease that the claimant is alleged to have contracted as a consequence of the employer’s breach of statutory or common law duties of care in the course of the employee’s employment, other than a physical or psychological injury caused by an accident or other single event.
This would definitely exclude claims which might pass the Patterson test: an infection caused by a rat bite, for example, would be probably be a ‘disease’ within the ordinary meaning of the word but is not a ‘disease claim’ by virtue of being caused by a single event.
However, the reverse is not true: just because the complaint arises over a period of time does not make the malady a disease and, following Patterson, a low value NCFI claim would probably not escape fixed recoverable costs. Whether this could affect other types of claim which do not fit the conversational use of disease, such as NIHL or repetitive strain injuries, remains to be seen.
It is hard to be sure what constitutes a disease, but it is a question that may plague the courts for some time yet.