A High Court judge has ruled that noise-induced hearing loss (NIHL) claims cannot be reclassified from a disease to an injury.
Mr Justice Phillips began hearing arguments over the classification of a NIHL case in October last year, after the insurance industry looked to open up the debate to force through lower success fee costs for defendants.
As a disease, NIHL falls within section V of Part 45, of the Civil Procedure Rules up until 1 April 2013, which provided for a fixed success fee of 62.5% to be recoverable from defendants in specified employer liability claims. If classified as an injury and, sustained’ on or after 1 October 2004, then it would fall within section IV, attracting a success fee of 25%.
Ruling in Dalton & Ors v British Telecommunications Plc, Mr. Justice Phillips said that he saw NIHL as a disease.
“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%).”
Mr. Justice Phillips said that the categorisation of NIHL had its own legislative history which pointed “in only one direction”.
He said it had been a prescribed disease for the purpose of national insurance and social security legislation since 1975, following detailed consideration and recommendation by an advisory council.
“Occupational deafness has been expressly defined a disease since 1985,” he added. “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.”