Noise induced hearing loss – Disease or not?
Mr Justice Phillips handed down judgment in the cases of Dalton and Others v BT Plc on the 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.
In making his decision he considered a lot of extraneous material, including the provisions of the social security legislation which, did contain an extended definition of disease.
Regulations made under the 1975 Act, the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985, which remain in force, define prescribed diseases as “a disease or injury described under … these regulations, and references to a prescribed disease being contracted shall be deemed to include references to a prescribed injury being received”. Schedule1 lists prescribed diseases, including: “A10 Substantial sensoineural hearing loss (occupational deafness)”. Occupational deafness is defined in the Regulations as “the disease numbered A10 in part one of schedule 1 to these regulations”.
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.
Therefore, he found that NIHL/Tinnitus is a disease rather than an injury, and the higher success fees applicable to diseases should apply.
The defendants have made an application to appeal.
Plainly, this is a much welcome judgment for the claimants and their legal advisors.