Dalton & Ors v British Telecommunications Plc

For the former fixed-success-fee regime, “disease” was not confined to conditions distinct from injury in ordinary speech. It included an illness, disorder or injury arising from an employment-related process rather than a single accident. Noise-induced hearing loss therefore fell within section V of Part 45, even though it could also be described as an injury. Claims settled before trial attracted a 62.5% success fee under the type C disease provisions, rather than the 25% fee applicable under section IV to qualifying accident injuries.

The claimants were present or former BT employees whose claims for noise-induced hearing loss had been compromised before trial. BT agreed to pay compensation and costs but disputed the success fees payable under conditional fee agreements. The issue was directed to the High Court after inconsistent decisions by district judges.

The central question was whether noise-induced hearing loss was a disease within the former section V of CPR Part 45. If it was not, the alternative question concerned the date on which the injuries had been sustained for section IV. That issue was left undecided.

1. Preliminary issue determined for the claimants. Noise-induced hearing loss was a disease within section V of the former CPR Part 45. Claims settled before trial therefore attracted a 62.5% success fee under the type C provisions and were not governed by section IV’s 25% rate.
2. The fact that noise-induced hearing loss could also be described as an injury did not resolve the issue. Sections IV and V recognised overlap between injury and disease. Section IV excluded disputes relating to disease, while section V expressly included certain physical and psychiatric injuries treated as diseases.
3. The court construed “disease” as covering illness, disorder, ailment, affliction, complaint, malady or derangement other than a physical or physiological injury caused solely by an accident or similar single event. The relevant distinction was between injury by process and injury by accident.
4. The legislative history was particularly relevant because the terminology originated in employers’ liability legislation and had consistently been used for conditions caused by an employment process. The Pre-Action Protocol for Disease and Illness Claims formed part of the relevant CPR context. Occupational deafness had also been treated as a prescribed disease in social security legislation and was established as such in medical and litigation usage.
5. The Civil Justice Council’s contemporaneous account of the 2005 industry agreement was a powerful interpretive aid. It showed that the agreed 62.5% category was intended to include deafness and vibration white finger. The wording of Part 45 was not so clear as to require a conclusion that the scheme had miscarried.
6. The alternative question concerning the date on which the injuries were sustained did not arise. The court expressed no view on it because it was unnecessary and highly fact-sensitive.

First-instance determination of a preliminary costs issue directed to the High Court after inconsistent district judge decisions. No appeal is stated in the judgment.