Noise induced hearing loss (NIHL): Is it injury or disease…?
Posted Tuesday 4th November 2014
Mr Justice Phillips sat in the High Court in Cardiff on 16th October 2014 to hear arguments on the issues as to whether noise induced hearing loss (NIHL) is an injury or a disease. The hearing was for the purposes of fixed success fees pursuant to the Civil Procedure Rules (CPR) 45.23(3)(e) – section V ‘Fixed recoverable success fees in employers’ liability disease claims’. Currently part heard through submissions, Mr Justice Phillips heard further oral argument on 3rd November 2014.
Whilst this case is ongoing and a verdict is much awaited, it appears to have stirred a great deal of interest amongst the legal community. With noise induced hearing loss cases having been classed as a disease claim, for the purpose of recovering a 62.5% success fee, the debate is now centered on whether a noise induced hearing loss claim is in actual fact a bodily injury and, as such, the automatic uplift of 62.5% in these types of cases will not apply.
It appears that in order to ascertain whether noise induced hearing loss is an injury or disease, much reference has been made to dictionary definitions, as well as medical reports and academic works.
One such academic report is Hunter’s Disease of Occupations and Mechanisms of Noise Induced Hearing Loss, where noise induced hearing loss is described as being caused by: “…Increased oxygen free radical production within the ears, a process already taking place naturally, as a result of the stress caused by excessive noise where, due to the clear relationship between the exposure and the condition, it is clearly akin to an injury. Damage is caused by a discreet albeit repeated external stimulus and represents an acceleration brought about by external factors similar to other acceleration cases. A normal metabolic process is sped up by the trauma caused by excessive noise. Noise induced hearing loss is the result of an external insult speeding up a natural process which occurs with aging”.
There are clearly huge ramifications surrounding this case – and for future acceptance in court of whether noise induced hearing loss is a disease, as well as the success fee that should apply.
Furthermore, with questions surrounding Section IV (25% success fee where the matter settles before trial), and which can only apply to an injury that was sustained prior to 1st October 2004, it is evident that the vast majority of noise induced hearing loss claims will have developed over a long period of exposure time – and well before this date. Section IV intimates accidents in the singular sense as opposed to a sustained period of time, which leaves room for argument that perhaps Section IV isn’t applicable either.
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