A primary flaw in the Jackson reforms’ vision of the personal injury landscape is a profound inability to comprehend that the value of a claim in damages is but one of the variables which has to be assessed when applying the proportionality principle. In the UK, fault has to be proved. The consequence of a tortfeasor’s negligence or, while we still have it, breach of statutory duty, may be minor, moderate or serious to the victim. One may trip and fall and break a finger, or one may break a hip.

Proving fault is the same in both scenarios, but under proposals to introduce fixed costs in cases valued at less than £25,000, one will be granted significantly fewer financial resources to prove the former injury than the latter. Presently, not only is a more expansive Potter-esque portal emerging for road traffic accidents, but new ones are being constructed for employer and public liabilities. Within the context of employers’ liability fall ‘disease’ claims valued at less than £25,000; aimed primarily at HAVS (vibration) and NIHL (deafness), which together form the majority of such claims. The Ministry of Justice is currently trying to crowbar diseases into a portal despite practitioners on both sides seeing little practical sense in it.

However, it is in this context that a worrying development has emerged in the High Court in Patterson v MoD [2012] EWHC 2767 (QB) (Males J). While the impact of the decision creates a short-term reduction in costs through a diminution in success fees, the wider and more long-term consequence is the firing of the first shots in the war to round up ‘disease’ claims and imprison them within the definition of an ‘accident’, so subjugating them to the application of an oppressive fixed costs regime.

So what is a ‘disease’? In The Curse of the Claw, one of Michael Palin’s Ripping Yarns, the hero, Kevin’s Uncle Jack, has a delicious love of rare diseases, from catching bubonic plague as a protest against an increase in postal charges, to wishing to show Kevin his cyst. One suspects Jack was not troubled by Kevin enquiring whether his latest condition was, in fact, a disease. Neither have PI practitioners to date. We know what constitutes a disease. Many are ‘prescribed’ within statute and have been since 1906. The Industrial Injuries Advisory Council was later founded to research different illnesses and some conditions, including carpal tunnel syndrome from vibration, underwent clinical assessment on a number (four in that case) of occasions before registration.

In the instant case, the claimant had won damages of £75,000 by proving fault. He then sought a 62.5% success fee on his costs as a ‘type C’ claim under section V of Civil Procedure Rule 45 for ‘a disease not falling within type A (asbestos) or type B (stress), WRULDs [work-related upper limb disorders]’. Non-freezing cold injury (NFCI) occurs when tissues are subjected to prolonged cooling which is insufficient to cause freezing. The term includes chilblains and trench foot. As a result, exposure creates prolonged peripheral vasoconstriction which causes ischemia and results in changes in cell function which damage blood vessels, nerves, skin and muscle. The exposure is usually over one or two days, but the condition may result from an exposure of less then an hour. The claimant’s feet were sensitised to cold over a number of years as a result of night-time duties in cold temperatures.

It was agreed by the parties that some of the conditions that are referred to within section V of CPR 45 are not ‘diseases’ as such; for instance, psychiatric injuries and upper limb disorders. It was agreed that the term appears to have a more extensive meaning than in everyday language. There is no definition of disease within the section.

The claimant argued that the particular features which point NFCI towards recognition as a disease are prolonged exposure to cold, which triggers a process causing long-term tissue damage, the development of which can be affected by genetic factors, and the condition may result from exposure on multiple occasions.

The defendant’s argument was that the condition is not caused by virus, bacteria, noxious agent or parasite in its pathology. The mechanism of injury is simply that blood failed to reach the cells in the nerves, skin and muscle of the claimant’s feet, and if NFCI is a disease then so too are chilblains, hypothermia, frostbite, sunstroke, sunburn and heat blisters; which would be surprising.

His lordship found that dictionary definitions, including medical dictionaries, were unhelpful, adopting Lord Clyde’s comments in Chief Adjudication Officer v Faulds [2000] 1WLR 1035, that the word ‘accident’ is not defined in the statute: ‘It has no special or technical meaning but is to be understood in its ordinary sense.’ Within ordinary, everyday language, NFCI would not be regarded as a disease. He thereby found for the defendant on the basis, inter alia, that the mechanism of the condition is essentially the same as occurs in the case of a trauma such as when a tourniquet is applied to a limb.

He accepted its argument that the other conditions listed above would, thereby, fall into the definition of disease if NCFI were to be accepted. No single test or definition can be applied but one has to look at the natural and ordinary meaning of the word and, in cases which are near the borderline, to form a judgement. His lordship had ‘no doubt’ that NFCI is not a disease.

One suspects that insurance companies and their lawyers will now be examining whether to prepare similar arguments in relation to other ‘diseases’, which practitioners have accepted as diseases since the alteration to the CPR in 2005. Squeezing more diseases into the definition of ‘accident’ will result in more cases falling into whatever is the fixed-costs regime that ultimately emerges. The greater complexity in respect of condition, causation, foreseeability, negligence and limitation which necessarily applies to such conditions will then be subject to a severe restriction in an injured party’s ability to resource the investigation resulting in an increase in difficulty in proving duty, breach and loss.

There are apparently a little over 20,000 diseases cases a year. One does wonder why it was felt they merited being ensnared by the Jackson reforms at all.

Simon Allen, Russell Jones & Walker