07 April, 2015
The High Court has ruled in the case of Michael Dalton v BT PLC and others  EWHC 616 (QB) that Noise Induced Hearing Loss (NIHL) is a disease and not an injury for the purposes of calculating success fees.
The issue before the Court was whether NIHL should be regarded as a disease. If NIHL was a disease, it would fall within section V of Part 45, which provides for a success fee of 62.5% on settlement of a claim. If, however, it was found not to be 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% or if sustained before that date, the success fee is not fixed and would fall to be assessed by the court.
In an attempt to introduce lower success fees, the Defendant argued that the natural and ordinary meaning of NIHL should apply. Mr Justice Phillips rejected this argument, he held that after consideration of the legislative history he was of the view that Parliament intended "disease" in 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".
Mr Justice Phillips commented that when applying the above meaning of 'disease', "there is no doubt that NIHL falls within section V of the former CPR Part 45." Furthermore, he proceeded to clarify that the same conclusion would apply in relation to VWF (Vibration White Finger).
Given the potential amounts at stake, it is not surprising that an application has been made for permission to appeal to the Court of Appeal, therefore it seems that this issue has not yet been put to bed.