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For many years until 2012 noise induced hearing loss (NIHL) cases were accepted by defendant insurers as being categorised as a disease falling within Section V of the Civil Procedure Rules (CPR) Part 45. Thus in respect of matters funded by way of a CFA signed before 1 April 2013, NIHL cases attracted a success fee of 62.5%, that percentage having been negotiated early in 2005 coming into force on 1 October 2005, pursuant to the Civil Procedure (Amendment No 3) Rules 2005.
The issue of NIHL was proceeding swimmingly through the courts until insurers, always looking for ways to pick holes in any judgement which in their eyes might increase their margins, seized on the case of Patterson -v- Ministry of Defence  EWHC2767 (QB)  2 Costs LR 197. This case appeared to cause some confusion at District Judge level, which resulted in a number of inconsistent decisions, hence the intervention via a Regional Costs Judge of the High Court in the matter of Dalton & Ors v British Telecommunications Plc  EWHC 616 (QB).
Although the Patterson case was a non freezing cold injury case (NFCI), Males J concluded that NFCI would not be regarded as a disease as a matter of ordinary language, and as he was not satisfied that the term disease had an extended meaning in Part 45 (other than by virtue of the express inclusion in section V of various specified types of injury), NFCI was not a disease, but an injury falling within section IV.
Males J in his judgement stated “notwithstanding the objective of CPR 45………inevitable questions arise as to whether particular conditions are to be characterised as “diseases”. ……..when the answer is not obvious, there is in my judgment no single test of definition which can be applied…….where the rule itself provides no definition of disease……….it would not be practicable or sensible for the court to attempt to supply its own definition. Instead it will be necessary to apply the natural and ordinary meaning of the word [disease], and in cases which are near the borderline [,] to form a judgment by taking account of the various factors which point in one direction or another.
The issuers took the line that in applying Males J application of “natural and ordinary meaning of the word”, NIHL was not a “disease” but rather an “injury”. Their barrister gave three examples which in his submission clearly demonstrated that NIHL should be regarded as an injury and not in any natural or ordinary sense a disease. The basis of the insurers’ submissions was the interpretation of the “natural and ordinary meaning” of the word disease.
For the Claimants’ part, numerous references were made by their barrister to the medical classification of NIHL, legislative history, the pre-action protocols, the genesis of sections IV and V of CPR 45 and the classification of NIHL in litigation, all of which pointed to NIHL being regarded as disease rather than injury.
Easy with the benefit of hindsight but in reviewing the submissions made by both parties, with the weight of evidence provided by the Claimants seemingly far outweighing that of the Defendant, the insurers did not have a strong case at all, a position amplified by Phillips J when in his conclusion he was uncomplimentary of the insurers for attempting to re-open the industry agreement made in 2005.
Such is the price paid by the insurers in the interests of their clients, or perhaps themselves, for this “opportunistic” attempt to avoid their responsibilities in matters where CFAs were entered into on the basis of a 62.5% recovery. What next we wonder??