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Patterson v Ministry of Defence, High Court, 12 October 2012

13 November 2012
The issues

Success fee – CPR 45 Section V – NFCI – Non-freezing cold injury – whether an ‘industrial disease’

The facts

Non-freezing cold injury (NFCI) is distinct from freezing cold injuries where tissues become frozen. With NFCI, tissues are subject to prolonged cooling insufficient to cause freezing. It includes chilblains and trench-foot/cold immersion. The form in question in this matter was caused by immersion of limbs for periods in cold water, usually at a temperature of 0.4 degrees centigrade, up to 10 degrees centigrade, giving rise to prolonged peripheral vasoconstriction (a decrease in calibre of blood vessels, leading to reduced blood flow to the affected part of the body). This in turn causes ischaemia (a decreased flow of oxygenated blood to the part of the body concerned) and results in changes in cell function which damage blood vessels, nerves, skin and muscle. A typical duration of exposure leading to NFCI is one to two days, but it may result from exposures of less than one hour in very cold water or exposure for up to a week under less severely cold conditions. Individuals of Black-Caribbean and Black-African ethnic origin, such as the claimant, had a significantly increased susceptibility.

The claimant, who had been born on St Vincent, had enlisted in the British Army in December 2002. He had served in Iraq for a while after training.

They contemplated therefore that as a matter of language, the terms ‘disease’ and ‘injury’ were not mutually exclusive

In February 2006 he was deployed to Norway for cold weather survival training. Following guard duties at Dalton Barracks shortly before this deployment he had complained to his NCO of cold feet and a dead right hand. The army medical officer declared him fit. In Norway he undertook with others a week of cold weather survival training, which included learning to ski cross-country and downhill, including at night, and building a snow hole in temperatures of approximately minus 20. He experienced a burning pain in his feet and sustained NFCI. As a result he was discharged from the army on the 1 June 2007 and brought a claim against the Ministry of Defence. That claim was settled for £75,000 plus costs. Costs had been agreed at £68,000, subject to the issue of the appropriate success fee. The defendant contended for 25% (recoverable under Section 1(v) of CPR 45). The claimant argued the NFCI was a disease and that consequently the more generous regime contained in Section 5(v) of CPR 45 should apply, resulting in a success fee of 62.5%. The matter went before the Master who rejected that argument, but gave the claimant permission to appeal.

The decision

Section 1(v) applied where the dispute arose “from a bodily injury” and constituted the default rule applicable to success fees and employers liability claims. Claims falling within Section 5 dealt with disease claims. The exclusion 45.20 noted that Section 1(v) did not apply where the dispute related to a disease or where it related to an injury to which Section 5 applied. They contemplated therefore that as a matter of language, the terms ‘disease’ and ‘injury’ were not mutually exclusive. At least some injuries could also be regarded as diseases and therefore had to fall within Section 5. Certain injuries, which would not be regarded as constituting a disease as a matter of ordinary language, failed to be treated within Section 5. For example, diseases or injuries alleged to have been caused by exposure to asbestos. Similarly, psychiatric injuries and upper limb disorders which fell within type B, even though they would not be regarded as diseases as a matter of ordinary language. The term ‘disease’ appeared therefore to have a more extensive meaning in Section (v) than in its meaning in everyday language. There was however no definition of disease in respect of Section (v).

Type A claims within Section (v) related to asbestos claims. Type B claims related either to psychiatric injury or work related upper limb disorder claims. NFCI did not fall into either of these categories. Therefore, if the claimant was to succeed, it had to be shown that NFCI was a type C claim, namely: “a claim relating to a disease not falling within either type A or type B”.

The ordinary principles of interpretation had to apply. The task of the court was to ascertain the intention of the legislator expressed in the language of the statute. The relevant provisions had to be read as a whole and in context. Words had to be given their ordinary meaning, unless a contrary intention appeared. It was legitimate, where practicable, to assess the likely practical consequences of adopting each of the opposing constructions not only for the parties in the individual case, but for the law generally. If one construction was likely to produce an absurdity, that might be a factor telling against that construction. Finally, the same words of phrases in the same statute should be given the same meaning, unless the contrary intention appeared.

The basic objectives of CPR 45 were to promote certainty about the level of the success fee; to recognise that in general certain types of employer liability cases carried a greater risk of failing on liability and should therefore be rewarded with a higher success fee; to recognise that in general, certain types of employer liability cases involved more investigation, with a greater financial risk therefore than others and to reward solicitors and counsel for undertaking that greater financial risk; and to recognise that even within Section (v) certain types of ‘disease’ claims were more difficult than others.

Little help came from considering dictionary definitions of disease. Could the wording of the Pre-Action Protocol for disease and illness claims assist? It said:

“disease for the purpose of this protocol primarily covers any illness, physical or psychological, any disorder, ailment, affliction, complaint, malady or derangement other than a physical or psychological injury solely caused by an accident or other similar singular event.”

The definition in the protocol was not however a reliable guide. The terms of the protocol were available to the draftsman of CPR 45 if he had wished to use or adapt that definition, but he had not done so. The judge could see no basis for concluding that the term disease in CPR 45 was intended to be interpreted by reference to the protocol. There was no reason to conclude that the term disease in CPR 45 was used in other than its natural and ordinary meaning, save as to the extent of the specific injuries included in type A and type B claims. Was NFCI therefore a disease? As a matter of ordinary language, NFCI would not be regarded as a disease and that conclusion was sufficient to dismiss the appeal. However, even without that, the defendants arguments were compelling. NFCI was not caused or contributed to by any virus, bacteria, noxious agent, or parasite. It was simply a case where blood failed to reach the cells in the nerves, skin or muscles. It involved no trauma in the sense of direct application of force to the body. The result was damage or injury to the body parts affected, but this could not be regarded as a ‘disease’. If NCFI was to be regarded as a disease, so to were conditions such as chilblains, hypothermia, frost bite, sun stroke, sun burn and heat blisters, which were no more than the result of exposure to weather conditions and would be stretching the meaning of disease to surprising lengths, which could not have been intended.

Appeal dismissed.

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