Success Fees and Noise Induced Hearing Loss – "Say that Again", said the After the Event insurer!
31st March, 2015
An important decision for all who provide After the Event Insurance has now been handed down by Mr Justice Phillips in conjoined cases, Dalton and Others –v- British Telecommunications plc  EWHC 616 (QB)
At stake was the 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 word 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.
Mr Justice Phillips decided that NIHL/tinnitus is a disease rather than an injury, and the higher success fees applicable to diseases should apply.
Some good news then for Claimant’s after the battering that has been received in recent times.
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%”.
Many of those who now complain about the inclusion of NIHL as a "disease” would have been party to that very same "industry agreement” reached many years before, confirming the view of many on the Claimant side that this was just another attack on the Claimant by the insurance industry to limit the level of costs that apply to such claims. After all, the insurance industry view NIHL claims as the new "whiplash”. It did not come as a surprise to us in the After The Event Insurance industry to see that the Defendants would try to find new ways to attack claimant’s right to pursue just claims.
So does this mean the conclusion as reached by Males J in the case of Patterson –v- Ministry of Defence (which relates to success fees in non-freezing cold injury claims ("NFCI”)) was wrong?
Perhaps Phillips J would not have reached the same decision, so here in the world of After The Event Insurance, we await the next round of litigation.
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