Michael Dennis Dalton and Others v British Telecommunications Plc
| Jurisdiction | England & Wales |
| Judge | Mr Justice Phillips |
| Judgment Date | 13 March 2015 |
| Neutral Citation | [2015] EWHC 616 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: A90CF152 |
| Date | 13 March 2015 |
[2015] EWHC 616 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CARDIFF DISTRICT REGISTRY
Cardiff Civil Justice Centre
2 Park Street, Cardiff CF10 1ET
Mr. Justice Phillips
Case No: A90CF152
Mr Benjamin Williams (instructed by Hugh James) for the Claimants
Mr Andrew Hogan (instructed by BT Legal) for the Defendant
Hearing dates: 16 th October, 3 rd November 2014
Approved Judgment
A large number of claims have been brought by claimants against their employers or former employers for damages for noise-induced hearing loss ("NIHL") alleged to have been caused by exposure to excessive noise at work, sometimes still referred to as "industrial deafness" or "occupational deafness". In most of these cases the claimant's solicitors (and counsel where instructed) are acting pursuant to a conditional fee agreement ("CFA"), providing for a success fee.
Until 1 April 2013, sections IV and V of Part 45 of the Civil Procedure Rules provided for fixed success fees to be recoverable from defendants in specified employer liability claims. Although the rules changed on 1 April 2013 to reflect that success fees were no longer recoverable from defendants, they continue to be recoverable where CFAs had been entered before that date (see s.44(6) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012) and the former provisions of Part 45 of the CPR still apply. Relevant extracts from those provisions are set out in an appendix to this judgment.
An issue has arisen in relation to the success fee payable by a defendant employer in the (very common) situation where a claim for damages for NIHL is settled before a trial has commenced. The issue is whether, in that context, NIHL is to be regarded as a disease. If NIHL is a disease, it falls within section V of Part 45, which provides for a success fee of 62.5% on settlement of claims in relation to diseases prior to trial (other than for certain specified conditions, neither of which encompasses NIHL). If, however, it is not a disease, it would be classified as an injury and, if 'sustained' on or after 1 October 2004, would fall within section IV, attracting a success fee of 25%. If sustained before that date, the success fee is not fixed and falls to be assessed by the court if not agreed.
On 4 April 2013, following a number of decisions at District Judge level which reached inconsistent conclusions, the Regional Costs Judge directed that the above issue be determined by a High Court Judge as a preliminary issue in costs proceedings in four nominated cases. This is my judgment on that issue.
The four cases all involve claims against BT by present or former employees (Messrs Dimelow, Fletcher, Griffiths and Hall). Each claim was compromised prior to trial, BT agreeing to pay compensation for NIHL suffered by the claimant as a result of using BT equipment which exposed their hearing to unsafe levels of noise. In each case BT has also agreed to pay the claimant's costs, but disputes the quantum of costs, in particular, challenging the success fee payable to the solicitors and (where instructed) counsel.
It is common ground between the parties that, until 2012, employer defendants (in reality their insurers, insurance of employer's liability being mandatory) proceeded on the basis that NIHL was a disease for the purposes of calculating success fees they were liable to pay following the settlement of NIHL claims. As set out in more detail below, such acceptance reflected the long-standing categorisation of NIHL as a disease in legislative, legal and medical contexts. In particular, it had been so regarded (and recognised as meriting a 62.5% success fee) in negotiations between representatives of personal injury lawyers and of the insurance industry in 2005, resulting in an 'industry' settlement on that basis, which settlement section V of Part 45 was intended to give effect.
The change in the insurers' stance resulted from the decision of Males J in October 2012 in Patterson v. Ministry Defence [2012] EWHC 2767 (QB) [2013] 2 Costs LR 197. The issue in that case was whether non-freezing cold injury ("NFCI") is a disease within section V or otherwise fell within section IV of Part 45. Males J concluded that, as 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: even if claims such as those for NIHL had in practice generally attracted the higher success fees applicable under section V, that was not a sure foundation on which to conclude that an extended meaning of the term 'disease' was intended. At paragraph 50, Males J stated as follows:
" Notwithstanding the objective of CPR 45 is to provide a clear and certain test for the award of success fees, inevitably questions may arise as to whether particular conditions are to be characterised as 'diseases'. When that occurs, and when the answer is not obvious, there is in my judgment no single test or definition which can be applied. In circumstances where the rule itself provides no definition of disease, and where the dictionaries do not assist, 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, 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 the other."
The insurers (through the defendant) now contend that, applying the natural and ordinary meaning of the words, NIHL is not a 'disease' but rather an 'injury'. They rely upon the following aspects of the aetiology of NIHL, which are common ground between the parties' medical experts:
i) NIHL is caused by the physical force which excessive noise (energy transmitted through the air in the form of waves) inflicts on the structure of the inner ear, in particular degrading hair cells which do not regenerate, but are replaced by scar tissue. The damage is primarily mechanical;
ii) long-term exposure will typically lead to gradual progressive hearing loss, the symptoms often being first noticed when age-related hearing loss (presbyacusis) overlays the traumatic loss;
iii) however, the damage suffered from each instance of exposure occurs immediately (although the subsequent scarring will affect the auditory system). If there is any progressive worsening of the damage (which is not proven in humans and the defendant's expert does not accept), it is limited to days or weeks after the exposure.
Mr Hogan, counsel for the defendant, asserts that the above aetiology demonstrates that NIHL is clearly an injury, being the result of damage to the ear caused immediately by physical trauma, and cannot be regarded as a disease in any natural or ordinary sense. He submits that therefore, applying the test formulated by Males J in Patterson, NIHL falls within section IV of Part 45. To regard NIHL a disease, he contends, would require a strained construction of the rules which, in this case, cannot be justified.
Mr Williams, counsel for the claimants, accepts that a layman, coming to the matter with no background, might well regard NIHL as an injury and not a disease. However, he contends that, when the rules are placed in their proper context, it is clear that the term 'disease' has an established meaning that includes NIHL and that the legislation must be taken to have adopted that established meaning. Further, he does not accept that the natural and ordinary meaning of the term 'disease' is limited to the view of the uninformed layman, but must reflect its usage, in particular, by doctors and lawyers.
Before considering the parties' respective contentions in detail, it is necessary to refer to the background materials (and in particular the legislative history) upon which the claimants, in particular, place heavy reliance.
The background materials
(a) The medical classification of NIHL
The defendant's medical expert, Mr A J Parker (a consultant ENT surgeon at the Royal Hallamshire Hospital, Sheffield), expresses the opinion that NIHL has the characteristics of a traumatic injury and is not a disease. However, as the claimants' expert, Dr Louisa Murdin (a consultant in audiovestibular medicine at Guy's and St Thomas' NHS Foundation Trust) points out, NIHL is frequently referred to in medical literature as a 'disease' of the ear. Mr Williams referred me, in particular, to the following:
i) the World Health Organisation's International Statistical Classification of Diseases and Related Health Problems (ICD-10) in Occupational Health, published in 1999, which states that classifications of occupational diseases have been developed mainly for two purposes: (1) notification of labour safety and health surveillance and (2) compensation. Category A.7, Diseases of the ear and mastoid process, includes as a disease " Noise effects on inner ear";
ii) Hunter's Diseases of Occupation (10 th Ed, 2010), which includes, as Part 3, Diseases Associated with Physical Agents, section one of which relates to " Sound, noise and the ear".
iii) Ludman's Diseases of the Ear (6 th Ed, 1998), which includes a chapter (35) on traumatic senorineural hearing loss, dealing specifically with NIHL.
Mr Williams asserts that there is no medical literature expressing the view that NIHL is not a disease and Mr Hogan does not dispute that assertion. I am satisfied that, in medical terms, NIHL may properly be categorised as a disease and frequently is so categorised.
(b) The legislative...
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