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Noise Induced Hearing Loss (NIHL) - disease or injury?

18 March 2015

Deafness claims have historically been seen as the typical industrial disease but Patterson v MOD held that a non-freezing cold injury, taking place over a period of time, was not to be classed as a disease.

Dalton was an attempt to re-define the issue of whether NIHL is a disease or an injury in relation to the recovery of success fees pre-Jackson, and CPR45 fixed costs post-Jackson.

In his judgment in Dalton & Ors v BT, handed down on Friday 13 March 2015, Mr Justice Phillips found deafness to be a disease.

In hindsight it does seem obvious that deafness claims should fall within the definition of disease for purposes of CPR 45, which was written with that intent. Industry statistics indicate that the repudiation rate is high for deafness claims and as such this type of claim does represent a high risk for claimants.

In the post-Jackson world the likelihood of CPR45 now being extended to include deafness, and indeed other disease claims, within the fixed costs regime does seem high. This would close a loophole, bringing costs on deafness claims in line with those in EL claims generally. If we do see this in the not too distant future then this, more than anything else, is likely to see a slackening of the quantity of new deafness claims being brought.

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