The Issues:

This was to determine a 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 words 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.