Patterson v Ministry of Defence

For the purposes of CPR 45, non-freezing cold injury is not a disease. The word “disease” bears its natural and ordinary meaning, subject only to the specific extensions expressly included for Type A and Type B claims. The fact that a condition may develop over time, involve complex causation, affect particular ethnic groups or resemble a disease claim procedurally does not determine its character. In borderline cases, the court should assess the relevant factors without attempting to create a universal definition or test. The Pre-Action Protocol for Disease and Illness Claims does not control the interpretation of CPR 45. Sections IV and V are mutually exclusive, with Section IV providing the basic regime and Section V applying to qualifying disease claims and specified injuries.

The claimant appealed from Master Gordon-Saker’s decision concerning the recoverable success fee following settlement of his negligence and breach of statutory duty claim against the Ministry of Defence. The underlying claim concerned non-freezing cold injury sustained during military service. The damages and costs had been agreed, but the parties disputed whether the condition was a “disease” within CPR 45, so as to attract the higher success fee under Section V rather than the default fee under Section IV.

The appeal raised the meaning of “disease” and “bodily injury” in the interaction between those provisions, and whether the claimant’s particular circumstances or the Pre-Action Protocol affected the classification.

1. The appeal was dismissed. The claimant’s lawyers were not entitled to a success fee calculated under Section V of CPR 45 because non-freezing cold injury was not a disease within that Rule.

2. Sections IV and V had to be read as a coherent scheme directed principally to certainty and ease of calculation. Section IV was the basic rule for employers’ liability claims involving bodily injury. Section V was an exception, although “disease” and “injury” were not mutually exclusive in language. The provisions were mutually exclusive in operation.

3. The word “disease” had its natural and ordinary meaning, except to the extent that CPR 45 expressly treated specified asbestos-related injuries, psychiatric injuries caused by work-related psychological stress and specified upper limb disorders as diseases for the success-fee scheme. Those specific extensions did not justify a general extended meaning.

4. The Pre-Action Protocol for Disease and Illness Claims did not determine the meaning of “disease” in CPR 45. Its purpose was procedural and materially different. Adopting its broad distinction between single-event injuries and other conditions would undermine the certainty which CPR 45 was intended to provide.

5. The classification concerned the condition itself, not the circumstances in which an individual claimant acquired it. It therefore did not matter whether the claimant’s condition resulted from one exposure or repeated exposure, or whether he had an increased susceptibility because of ethnic origin. In borderline cases there was no single universal definition or test. The court should weigh the relevant features against the natural meaning of the word.

6. Non-freezing cold injury was not a disease. It resulted from exposure to environmental conditions, involved restricted blood flow and bodily damage, and was not described as a disease in the medical evidence. Treating it as a disease would extend the term to conditions such as chilblains, hypothermia, frostbite, sunstroke, sunburn and heat blisters. Those considerations outweighed the fact that the condition could develop over time, involved no direct trauma and had particular susceptibility factors.

7. As a subsidiary point, if non-freezing cold injury had been a disease, it could have been regarded as something “contracted” for the purposes of CPR 45.23.

• High Court (Queen's Bench Division): Master Gordon-Saker rejected the contention that non-freezing cold injury was a disease and granted permission to appeal. Mr Justice Males dismissed the appeal.