When is a
disease not a disease?
When it might cost insurers money – appears to be the
answer in view of the arguments put forward in the case of Dalton v British Telecom which was decided in
the High Court last week.
This was not simply an academic argument. Claims for damages
for Noise Induced Hearing Loss (NIHL) are the most common Occupational Disease
claims. Under rules which were in force until April 2013, insurers had to pay a
‘success fee’ where a case was funded by under a Conditional Fee agreement. This
involves percentage uplift to the claimant’s lawyers’ fees. In a disease case
the uplift was 67.5%. in an injury case it was 25%. So in the Dalton case, and others, insurers sought to
argue that hearing loss is an injury and not a ‘disease’, thus reducing the amount
they had to pay. Although those rules have now gone, there are still hundreds
of claims being pursued under them i.e. which started before April 2013.
Their argument was that Hearing Loss is not a ‘disease’ as
such but an injury caused by some external factor i.e. noise.
In all of my 30 odd years as a solicitor this has never been argued
by anybody. In fact the consensus in relation to NIHL claims goes back a lot longer
than that.
In a very detailed judgment, Mr. Justice Phillips firmly
rejected the insurers’ argument.
The key point is that hearing loss is caused by exposure over a period of time rather than a single incident. The judge noted that – “...the term ‘disease’
has been used in legislation relating to employers’ liability claims and insurance
since 1906 ….to cover conditions (including injuries) which have arisen by
process rather than by accident.”
He then noted the 1985 Prescribed Disease Regulations which specifically
referred to Occupational Deafness as – “the disease numbered A10 in part one of
schedule 1 to the Regulations."
The judge also noted that the Protocol for
Occupational Disease claims that was published in 2003 defined a disease a
follows –
‘..any illness physical or psychological, any disorder,
ailment, affliction, compliant, malady or derangement other than a physical or
psychological injury caused by an accident or other similar single event.’
Then there were negotiations including insurers, which resulted
in the fixed ‘success fees’ which were at the heart of this case. Those
discussions led to data which formed the basis of a report in 2004 entitled Calculating Reasonable Success Fees in
Employers Liability Disease Claims. The report included NIHL as the third largest
category of disease.
The judge found that NIHL was, by any sensible reckoning, a disease – ‘NIHL is not merely an occupational
disease, but it is the paradigm case of such a disease.’
The judge went on to criticise the conduct of the insurers
who appeared to be going back on what they had agreed in 2005. He described
their arguments as ‘an opportunistic attempt to avoid part of the overall
bargain..’
It is comforting to lawyers and victims of disease claims
that this argument has been so decisively rejected. It shows again the lengths to
which insurers will go to avoid or minimise their liability. This is an
attitude which has underpinned many attacks on victims over the last few years.
The insurers could still appeal but the hope is that they
will see this hopeless argument for what it was and let us all get on with the
job of securing proper compensation for victims.
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