Case note on Dalton & Ors v British Telecommunications Plc  EWHC 616
A recent case heard by Mr Justice Phillips in the High Court has considered the increasingly popular argument that Noise Induced Hearing Loss is an injury rather than a disease.
Why was this an issue?
Like all disease cases, those concerning NIHL were covered by section V of Part 45 of the Civil Procedure Rules up until 1 April 2013. This means the success fee recoverable from the Defendant in specified employers’ liability claims was 62.5%. If. NIHL were classified as an injury (and sustained on or after 1 October 2004) then it would be covered by section IV, meaning a smaller success fee of 25%.
The judge was critical of the Defendants raising this argument
“I would add that defendant’s insurers attempt to re-open (if not renege on) the industry agreement made in 2005 does them little credit,” he said.
“The large number of NIHL claims in which the argument about the success fee has been raised will have been funded by CFAs which were entered on the basis that a 62.5% success fee would be recovered. To seek to limit such success fees to 25% is an opportunistic attempt to avoid part of the overall bargain (in relation to NIHL) whilst taking the benefit of the remainder (for example, in relation to asbestos claims, fixed at 27.5%).”
He indicated that the legislative history of NIHL and it’s categorisation also indicated that it was a disease rather than an injury. It had been a prescribed disease for the purpose of national insurance and social security legislation since 1975; that had been preceded by a detailed consideration and subsequent recommendation by an appointed advisory council.
“Occupational deafness has been expressly defined a disease since 1985…in using the term ‘disease’ in section IV and V without any list or definition, Parliament must be taken to have intended to include conditions such as NIHL which had been, and were, currently defined as diseases for the purposes of closely-related legislation.”
This decision effectively is maintenance of the status quo. However, it is a useful judgment which considers in detail the issue of the classification of NIHL for the purposes of litigation. It is an argument which is being used more frequently by defendants and insurers. This decision, albeit at High Court level rather than Court of Appeal, confirms the classification (and therefore the appropriate uplift) and should put the argument to bed.