The High Court has ruled that noise-induced hearing loss (NIHL) should be treated as a disease rather than an injury for the purpose of claims – and therefore be subject to higher success fees.
Mr Justice Phillips said four claims by former employees of BT should attract a solicitor’s success fee of 62.5% as their condition was regarded as a disease.
The claims, which had been settled, dated back to before the Jackson reforms and so success fees were recoverable by the claimants’ representatives from Cardiff firm Hugh James.
BT’s in-house team argued the noise-induced hearing loss claims should be treated as an injury according to the Civil Procedure Rules and subject to a 25% success fee.
Phillips said both claimants and defendants had accepted NIHL as a disease following an industry ‘settlement’ in 2005.
But the defendants’ stance changed from October 2012 when a ruling on non-freezing cold injury found it was classified as an ‘injury’ for the purposes of the success fees recoverable.
BT argued that the same principles involved in that case could be applied to NIHL as the condition was caused by immediate physical trauma, rather than a disease in any natural or ordinary sense.
But Phillips rejected that assertion and pointed out that occupational deafness has been ‘expressly defined’ as a disease through subordinate legislation since 1975.
He added: ‘[The] defendant’s insurers’ attempt to re-open (if not renege on) the industry agreement made in 2005 does them little credit. The large number of NIHL claims in which the argument about the success fee has been raised will have been funded by conditional fee agreements 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.’
A spokesman for Hugh James said had the challenge been successful it would have resulted in uncertainty for many noise-induced hearing loss claimants.
‘The risk involved in conducting such a complex claim would mean that many could no longer be fought on the basis of risk, severely hampering access to justice for thousands.’