Patterson v Ministry of Defence [2012] EWHC 2767 (QB)

Case No QB/2012/0267[2012] EWHC 2767 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 12/10/2012
Before
MR. JUSTICE MALES(sitting with Assessors)
Between
Alex Terry PattersonAppellantMinistry of DefenceRespondent
Benjamin Williams & Ivan Bowley (instructed by Thompsons) for AppellantMark James (instructed by A&M Bacon Limited) for RespondentHearing Hearing dates: 5 th October 2012
JudgmentMr. Justice Males :Introduction
[1]The issue in this case is whether the non-freezing cold injury (“NFCI”) sustained by the appellant, Alex Patterson (to whom I shall refer as the claimant), is a “disease” contracted by him within the meaning of Section V of CPR 45. If it was, a success fee of 62.5% of his solicitors’ and counsel’s base fees will be recoverable on the settlement of his claim against the respondent, defendant, the Ministry of Defence. If it was not, the recoverable success fee will be only 25%.[2]The claimant, who was born on the Caribbean island of St Vincent and is of African-Caribbean ethnic origin, enlisted in the British Army in December 2002. In November 2003, after training at Pirbright and elsewhere, he served for a while in Iraq. In February 2006 he was deployed to Norway for cold weather survival training. According to his pleaded case, following guard duties at Dalton Barracks shortly before this deployment, he complained to his NCO of cold feet and a dead right-hand, but the army medical officer declared him fit to go to Norway. While in Norway he undertook with others a week of cold weather survival training which included learning to ski cross-country and downhill, including at night, and building a snow hole in temperatures of approximately minus 20°C. He experienced a burning pain in his feet, and sustained a cold injury known as NFCI.[3]As a result of this NFCI the claimant was discharged from the Army on 1 June 2007. He brought this claim against the Ministry of Defence, claiming that his injury (and for what it may be worth I note that his Particulars of Claim refer to his cold injury or injuries, not to the contracting of any disease) were caused by the Ministry’s negligence or breach of statutory duty. In April 2011 the claim was settled by payment of £75,000 in respect of damages and an agreed order that the Ministry should pay the costs of the claim to be subject to detailed assessment if not agreed. The costs payable by the Ministry have been agreed in the sum of £68,000 subject to the issue of the appropriate success fee. The success fee included in this figure is 25%, which the defendant accepts is recoverable under Section IV of CPR 45. The claimant contends, however, or at any rate his lawyers do, that NFCI is a “disease” and that the more generous regime contained in Section V of CPR 45 should apply, resulting in a success fee of 62.5%.[4]Master Gordon-Saker rejected that contention but gave the claimant permission to appeal, observing that guidance was needed on the inter-relationship between Sections IV and V of CPR 45 and on the meanings of “disease” and “bodily injury” in those provisions. I am told by Mr Mark James on behalf of the Ministry of Defence that the issue is of importance to the Ministry, which has to meet a large number of NFCI claims each year, and that the difference between a success fee of 62.5% and 25% represents a very substantial additional potential liability. I understand also that there have been several decisions at District Judge level which have had to consider whether and by what criteria various conditions qualify as “diseases” under Section V.

Non Freezing Cold Injury

[5]NFCI is described in a paper by Dr Adrian Roberts dated September 2008 which is available on the Ministry of Defence website. The paper is entitled “Synopsis of Causation -- Cold Injury”. I was told that it was produced for the Ministry of Defence in order to assist service veterans and their advisers in making pension claims. The following points may be noted:(1) There is a distinction between freezing cold injury (“FCI”), where tissues become frozen, and NFCI which occurs when tissues are subjected to prolonged cooling which is insufficient to cause freezing.(2) The term NFCI includes chilblains and trench foot/cold immersion foot (or hand). The term “trench foot” was coined to describe injuries sustained in wet conditions at non-freezing temperatures during World War I.(3) This form of NFCI is caused by immersion of limbs for a period in cold water, usually at a temperature of 0.4°C up to 10°C, which gives rise to prolonged peripheral vasoconstriction (a decrease in calibre of the blood vessels, leading to reduced blood flow to the affected part of the body). This causes ischaemia (a decreased flow of oxygenated blood to the part of the body concerned) and results in changes in cell function which damage blood vessels, nerves, skin and muscle.(4) Most authorities believe that NFCI is a vascular neuropathy (a functional disturbance and/or pathological change in the peripheral nervous system) and that intense and prolonged cold induced peripheral vasoconstriction is the most significant feature in the aetiology of this condition.(5) Thus NFCI will follow exposure to wet, cold conditions with ambient temperatures a little above freezing, but the period of exposure required to cause NFCI can vary. A typical duration of exposure leading to NFCI is one to two days, but it may result from exposures of less than one hour (e.g. immersion in very cold water) or from exposure for up to a week under less severely cold conditions. It can be caused, therefore, either by a single exposure to cold or (more typically) by multiple such exposures. When it occurs, its severity is determined by the degree of cold, the wetness of the tissue, the duration of exposure and individual variability.(6) Individuals of Black Caribbean and Black African ethnic origin, such as the claimant, have a significantly increased susceptibility to both NFCI and FCI. Studies in the United States have reported an approximate four-fold increased risk of cold injury for African-American male soldiers compared to their white male counterparts.(7) NFCI goes through a number of stages, but the final stage may last for years and, for some patients, for the remainder of their lives.[6]The NFCI suffered by the claimant was described in the expert evidence as “moderate to severe”. There are some ambiguities in the way that the claimant’s expert, Major General Craig, expressed the conclusions in his various reports, which no doubt would have been clarified at a trial, but the best reading of his conclusions appears to be that the claimant’s feet were sensitised to cold over a number of years as a result of night time duties in this country and in the cold night temperatures of Iraq, but that the actual injuries which he suffered occurred during his deployment in Norway, including a particularly severe exposure to cold during a night of downhill skiing.

CPR 45 Sections IV and V

[7]Sections IV and V of CPR 45 regulate the success fees payable in personal injury claims against employers. In all cases, success fees are 100% when the case proceeds to trial. However, the success fee is lower in cases, like the present, which of course represent by far the great majority, which settle before the trial commences. In such cases the success fee depends on whether the claim falls within Section IV (injury) or Section V (disease) and, in the latter case, on the type of disease in question.[8]Section IV, headed “Fixed Percentage Increase in Employers Liability Claims”, provides so far as relevant as follows:
“Scope and interpretation 45.20 (1) Subject to paragraph (2), this Section applies where – (a) the dispute is between an employee and his employer arising from a bodily injury sustained by the employee in the course of his employment; and (b) the claimant has entered into a funding arrangement of a type specified in rule 43.2(1)(k)(i). (2) This Section does not apply – (a) where the dispute – (i) relates to a disease; (ii) relates to an injury sustained before 1st October 2004; or (iii) arises from a road traffic accident (as defined in rule 45.7(4)(a)); or (iv) relates to an injury to which Section V of this Part applies; …”
[9]Section V, headed “Fixed Recoverable Success Fees in Employer's Liability Disease Claims”, provides so far as relevant as follows:
“Scope and Interpretation 45.23 (1) Subject to paragraph (2), this Section applies where – (a) the dispute is between an employee (or, if the employee is deceased, the employee’s estate or dependants) and his employer (or a person alleged to be liable for the employer’s alleged breach of statutory or common law duties of care); and (b) the dispute relates to a disease with which the employee is diagnosed that is alleged to have been contracted as a consequence of the employer’s alleged breach of statutory or common law duties of care in the course of the employee's employment; and (c) the claimant has entered into a funding arrangement of a type specified in rule 43.2(1)(k)(i). (2) This Section does not apply where – (a) the claimant sent a letter of claim to the defendant containing a summary of the facts on which the claim is based and main allegations of fault before 1st October 2005; or (b) rule 45.20(2)(b) applies. (3) For the purposes of this Section – (a) rule 45.15(6) applies; (b) ‘employee’ has the meaning given to it by section 2(1) of the Employers’ Liability (Compulsory Insurance) Act 1969; (c) ‘Type A claim’ means a claim relating to a disease or physical injury alleged to have been caused by exposure to asbestos; (d) ‘Type B claim’ means a claim relating to – (i) a psychiatric injury alleged to have been caused by work-related psychological stress; (ii) a work-related upper limb disorder which is alleged to have been caused by physical stress or strain, excluding hand/arm vibration injuries; and (e) ‘Type C claim’ means a claim relating to a disease not falling within either type A or type B. (The Table annexed to the Costs Practice Direction contains a non-exclusive list of diseases within Type A and Type B).”
[10]Different success fees apply to Section V claims according to whether the claim falls within Type A, B or C. For Type B claims the success fee is 100% however early the case settles, while Type C claims are more highly rewarded than Type A claims.[11]Section IV of CPR 45 was introduced by the Civil Procedure (Amendment No 2) Rules 2004 (SI 2004/2072), which came into force on 1 October 2004. Section V was introduced by the Civil Procedure (Amendment No 3) Rules (SI 2005/2292), which came into force a year later, on 1 October 2005. The background to these provisions was explained by Dyson LJ in Lamont v. Burton [2007] EWCA Civ 429, [2007] 1 WLR 2814, at [6]:
“Although Sections II to V of CPR Pt 45 were recommended by the Civil Procedure Rule Committee and they subsequently received parliamentary approval, their genesis lies in a series of negotiations which were conducted under the auspices of the Civil Justice Council. The parties to the negotiations were some liability insurers who promoted the interests of defendants, and a combination of claimants' solicitors (represented by Association of Personal Injury Lawyers and the Motor Accident Solicitors Society) and legal expenses insurers who promoted the interests of claimants. The figures in Sections II to V were the product of those negotiations.”
[12]Dyson LJ continued at [9]:
“The effect of the negotiations was summarised correctly by Simon J (sitting with assessors) in Nizami v. Butt [2006] 1 WLR 3307, paras 22-23: ’22. … changes were made to the Rules of Court. Some of these changes, and in particular the provisions of Sections II-V of CPR Pt 45, were introduced following ‘industry wide’ discussions under the aegis of the Civil Justice Council. Agreement was reached on the recoverable costs in the different situations covered by the various sections. 23. It seems to me clear that the intention underlying CPR rr 45.7-45.14 was to provide an agreed scheme of recovery which was certain and easily calculated. This was done by providing fixed levels of remuneration which might over-reward in some cases and under-reward in others, but which were regarded as fair when taken as a whole’.”
[13]The same intention to provide a certain and easily calculated scheme of recovery underlies Sections IV and V of CPR 45.[14]I draw attention at this stage to a number of points:(1) Section IV applies where the dispute arises “from a bodily injury”. It constitutes the basic or default rule applicable to success fees in employers’ liability claims.(2) Claims falling within Section V which would otherwise fall within Section IV are expressly excluded from Section V. The exclusion applies not only to cases where the dispute “relates to a disease”, but also where the dispute “relates to an injury to which Section V of this Part applies”. (These latter words were not in the original version of Section IV which came into force at a time when Section V did not yet exist, but were added later). The provisions contemplate, therefore, that as a matter of language the terms “disease” and “injury” are not mutually exclusive. At least some injuries can also be regarded as diseases, and therefore fall within Section V. However, because of the express exclusion of disputes relating to diseases and to injuries to which Section V applies, Sections IV and V are mutually exclusive.(3) Certain injuries which would not be regarded as constituting a disease as a matter of ordinary language expressly fall to be treated as within Section V. For example, CPR 45.23(3) refers to “a disease or physical injury alleged to have been caused by exposure to asbestos”, from which it is apparent that a physical injury caused by such exposure need not amount to a disease (at least as that term is ordinarily used) in order to fall within Section V. Similarly, some (but not all) psychiatric injuries and upper limb disorders expressly fall within Type B, even though they would not be regarded as diseases as a matter of ordinary language.(4) However, as appears from CPR 45.23(1)(b), in order to fall within Section V the dispute in question must still relate to a disease. It follows that, at least to some extent, the term “disease” appears to have a more extensive meaning in Section V than its meaning in every day language. In particular, it must include those injuries not ordinarily regarded as constituting diseases which are expressly referred to in the definitions of Type A and Type B claims.(5) When there is a dispute whether Section IV or V applies, the question is whether the condition in question qualifies as a disease (including one of the specific categories of injury expressly included in Section V). If it does, Section V applies and it does not matter whether the disease also constitutes or results from a “bodily injury”.(6) However, although some terms used in the Rule are defined, and some specific examples are given of claims falling within Section V, there is no definition of “disease”.[15]As already noted, cases falling within Section V are divided into three categories. A “Type A claim” is, in short, an asbestos claim, while a “Type B claim” is a claim relating either to a psychiatric injury due to work-related psychological stress or a work-related upper limb disorder alleged to have been caused by physical stress or strain, but excluding vibration injuries. It is common ground that NFCI does not fall into either of these categories. The issue, therefore, is whether it is a “Type C claim”, namely “a claim relating to a disease not falling within either type A or type B”. Nevertheless, as explained below, the definitions of Type A and Type B claims played an important role in the parties’ submissions.

The parties’ submissions

[16]In brief, Mr Benjamin Williams for the claimant contended as follows:(1) Although the CPR contains no definition of “disease”, in both law and medicine the term is used to describe conditions which go well beyond what might be considered the paradigm case of a malady spread by a biological vector, such as a micro organism.(2) Terms such as “disease”, “injury” and “accident” are not mutually exclusive, and commonly used definitions of “disease” encompass almost any condition which causes long-term symptoms.(3) The claimant’s condition, which results from a recognised aetiological agency (exposure to cold), has well recognised symptoms (sensitivity to low temperatures, reduction in body temperature of the affected extremities, and de-sensitisation to touch), and involves consistent anatomical alterations (vascular and other cellular damage), falls within such commonly used definitions.(4) Particular features of the claimant’s condition which lead to the conclusion that it is a disease include the facts that (a) it does not result from a physical trauma or insult, but from prolonged exposure to cold, (b) the result of such exposure is not immediate injury, but the triggering of a process causing long-term tissue damage, (c) the development of this condition is affected by genetic factors (the claimant’s ethnic origin) and (d) the condition may result either from a single dramatic event or from lower level exposure on multiple occasions, but more typically the latter.(5) The fact that Type A and Type B claims in Section V include injuries which would not be regarded as diseases as a matter of ordinary language (e.g work related repetitive strain injury) shows that the term “disease” in CPR 45 is not being used in its ordinary sense but has an extended special or technical meaning throughout CPR 45.(6) That extended meaning is derived from, or at any rate reflected in, the Pre-Action Protocol for Disease and Illness Claims which states a simple and “bright line” test which is easily applied, namely whether the malady in question results from a one-off event such as an accident or similar insult. Although it would not be usual to construe the provisions of the CPR by reference to such a Pre-Action Protocol, it is significant that Sections IV and V arose out of negotiations conducted under the auspices of the Civil Justice Council between practitioners and insurers involved in the personal injury claims process who would have been familiar with the Protocol’s distinction between diseases on the one hand and physical or psychological injuries solely caused by a single event on the other. Applying the approach of the Protocol, the claimant’s condition would be classified as a disease because it did not result from an accident or single event similar to an accident, but resulted from genetic disposition, together with exposure to cold over a period of time.[17]For the defendant Mr Mark James contended, again in outline, as follows:(1) The words “disease” and “injury” must be understood in their ordinary meaning. It is significant that the name of the condition is “Non Freezing Cold Injury” not “Non Freezing Cold Disease”. None of the medical evidence in the case refers to the claimant’s condition as a disease and NCFI is not so described in the report of Dr Roberts referred to at [5] above. This demonstrates that the condition is not regarded as a disease, either as a matter of ordinary language or in the medical terminology commonly used by experts in the field.(2) The specific express inclusion as Type A or Type B claims of certain injuries in the definition of diseases does not justify giving the term “disease” an extended meaning wider than its ordinary meaning in cases falling outside the Type A or Type B definitions.(3) The word “disease” in CPR 45 should not be given the same definition as the word “disease” in the Pre-Action Protocol which, in any event, does not provide a simple and easily applicable “bright line” test.(4) According to the medical evidence in the present case, the claimant’s NFCI was essentially caused by a single incident, on the night of 1 March 2006, which involved downhill skiing at night when both the claimant’s feet became cold and numb.(5) Section V is an exception to the general rule contained in Section IV and should therefore be construed narrowly, or at least should not be construed widely as contended by the claimant.(6) Features of NFCI which point to it being an injury and not a disease include the facts that (a) no virus, bacteria, noxious agent or parasite was involved in the pathology, (b) the mechanism of injury is simply that blood failed to reach the cells in the nerves, skin and muscle of the claimant’s feet, just as occurs in a case of trauma such as when a tourniquet is applied to a limb or a victim is stabbed, (c) if NFCI is a “disease”, so too are chilblains, hypothermia, frostbite, sunstroke, sunburn and heat blisters which are no more than the result of exposure to weather conditions, but this would be surprising or even absurd.(7) In order to fall within Section V, a disease must be “contracted”. While it can be said that a person “sustains” or suffers from NFCI, it is not a natural use of language to speak of a person “contracting” NFCI.

Approach to interpretation of Sections IV and V

[18]The following principles of interpretation are clear:(1) The task of the court is to ascertain the intention of the legislator expressed in the language under consideration. This is an objective exercise.(2) The relevant provisions must be read as a whole, and in context.(3) Words should be given their ordinary meaning unless a contrary intention appears.(4) It is legitimate, where practicable, to assess the likely practical consequences of adopting each of the opposing constructions, not only for the parties in the individual case but for the law generally. If one construction is likely to produce absurdity or inconvenience, that may be a factor telling against that construction.(5) The same word, or phrase, in the same enactment, should be given the same meaning unless the contrary intention appears.[19]Helpful guidance on the general approach to interpretation of CPR 45.20 and 45.23 is found in Kilby v. Gawith [2008] EWCA Civ 812, [2009] 1 WLR 853, a case concerning the construction of CPR 45, Section II (which applies to road traffic accidents). At [17] Sir Anthony Clarke MR cited what had been said by Lord Steyn in Attorney General’s Reference (No 5 of 2002) [2004] UKHL 40, [2005] 1 AC 167 at [31]:
“No explanation for resorting to purposive interpretation of a statute is necessary. One can confidently assume that Parliament intends its legislation to be interpreted not in the way of a black letter lawyer, but in a meaningful and purposive way giving effect to the basic objectives of the legislation.”
Sir Anthony Clarke MR said that he entirely agreed that it was “appropriate to adopt that approach here.”[20]What then are the “basic objectives” of CPR 45, Sections IV and V? It was not in dispute that they are essentially as follows:(1) to promote certainty and, in particular, to avoid arguments about the level of the success fee (see the citations from Lamont v. Burton [2007] 1 WLR 2814 set out at [11] and [12] above);(2) to recognise that, in general, certain types of employers’ liability cases carry a greater risk of failing on liability and should therefore be rewarded with a higher success fee on settlement than would be awarded under the Section IV regime;(3) to recognise that, in general, certain types of employers’ liability cases involve more investigation (and thus carry a greater financial risk) than others, and to reward solicitors and counsel for undertaking that greater financial risk, albeit that no distinction is drawn between Sections IV and V when it comes to cases that conclude at trial (where a success fee of 100% is payable); and(4) to recognise that even within Section V, certain types of “disease” claim are more difficult than others, and should therefore attract a higher reward for those who undertake them.[21]However, recognition that disease claims in general carry greater risks is of only limited assistance in determining whether a particular condition such as NFCI constitutes a disease. In the interests of certainty and by the application of a broad brush, all disease claims have been included within Section V, regardless of whether the particular disease in question gives rise to difficulties in proving liability or involves greater work than the ordinary run of employers’ liability cases. A claim relating to a condition which constitutes a recognised disease will fall within Section V however easy or difficult the claim may be. Conversely, it is obviously not enough to say that because a claim is difficult, or is of a type which is difficult, it should be treated as a “disease” case within Section V.[22]At most it may be said that the features of disease claims which typically render them more difficult than ordinary injury claims arising from an accident at work (such as the need for extensive investigation of the claimant’s health and employment over what may be a lengthy period of time and potentially complex issues of causation, with greater disclosure of health and employment records and more extensive expert medical evidence) may be relevant in considering whether a particular condition constitutes a disease. I consider, however, that these are likely to be of very little if any weight in resolving that question and will not be sufficient to displace the ordinary meaning of the word “disease”.[23]I accept also that Section V, dealing with just one sub-category of “bodily injury” (i.e. “diseases”, albeit that this term is given an extended meaning in the specific definitions of Type A and B claims), is an exception to the general rule in Section IV. This does not mean that the term “disease” should be construed narrowly, if by that it is meant that it should be construed more narrowly than its natural meaning, and it may be that the scheme of the rules demands a more extended meaning. I examine below whether that is so. However, I consider that three points are important.[24]First, “disease” must if possible be construed in a way which does not result in the exception taking up most of the room occupied by the basic or default rule in Section IV. Second, and as already noted, the starting point must be the natural and ordinary meaning of the words used, in their context. It may be of course that the context shows that a more extended or unusual meaning was intended, as the claimant contends here, but I start from the position that unless that is demonstrated to be the case, the likelihood is that the words used were intended to have their natural meaning. Third, if there is to be a departure from or extension of the natural meaning, it must be at least reasonably clear what extended meaning the term “disease” was intended to have. It is unlikely to be enough to say that an extended meaning was intended unless it is reasonably clear what that meaning was.

The claimant’s particular circumstances

[25]As noted above, the claimant emphasises the particular susceptibility to NFCI of individuals of certain ethnic origins, while the defendant emphasises the evidence that the claimant’s NFCI was the result of exposure to cold on (as it contends) a single occasion. However, the relevant question is whether NFCI is a disease within the meaning of CPR 45. This means that the particular circumstances in which this claimant came to suffer from the condition are of no real relevance. Thus it does not matter whether the claimant should be regarded as having sustained or contracted NFCI as a result of a single incident (one particular night’s exposure to extreme cold, as the defendant contends) or as a result of exposure to cold conditions over a period of time (as the claimant contends). It is apparent that NFCI can be caused in either way. It would not make sense to hold that NFCI caused as a result of prolonged exposure constituted a disease, but that NFCI caused by a single incident did not. This would not only be a misuse of language, but would defeat the objective of CPR 45. It would mean that in a case which, ex hypothesi, had settled before trial, it would still be necessary to decide much of what would have been in dispute at the trial in order to determine the appropriate success fee.[26]Similarly, I find it hard to see how the fact that the claimant is of Black Caribbean ethnic origin and was therefore particularly susceptible to NFCI can determine whether NFCI constitutes a disease. It is not suggested that those of other ethnic origins are not susceptible to NFCI. Plainly they are. Again, it would not make sense to hold that NFCI is a disease when it is contracted by people of particular ethnic origins, but not when it is contracted by others.[27]Therefore, in the context of CPR 45 as well as a matter of ordinary language, NFCI is either a disease or it is not. That question must be determined having regard to the language and purpose of CPR 45, and is not affected by the particular circumstances in which the particular claimant came to suffer from the condition. I accept the claimant’s submission, however, that it is at least of some relevance to take account of the way in which NFCI typically occurs. I accept also that the particular susceptibility to a condition of individuals of an identified ethnic origin may in an appropriate case be a factor pointing to the characterisation of that condition as a disease.

The dictionary definitions

[28]Reference was made to various dictionary definitions of “disease”, although ultimately neither party suggested that these were determinative. I refer to some of them by way of illustration.[29]The OED describes a disease as:
“A condition of the body, or of some part or organ of the body, in which its functions are disturbed or deranged; a morbid physical condition; a departure from the state of health, especially when caused by structural change; An individual case or instance of such a condition; an illness, ailment, malady, disorder; Any one of the various kinds of such conditions; a species of disorder or ailment, exhibiting special symptoms or affecting a special organ…”
[30]The claimant pointed out that this is an expansive definition, encompassing almost any condition which causes long-term symptomatology, and that the same may be seen from medical dictionaries. For example, Black’s Medical Dictionary, 42nd ed, defines “disease” as “any abnormality of bodily structure or function, other than those arising directly from physical injury”, while Black’s Law Dictionary, 9th ed, refers to “a deviation from the healthy and normal functioning of the body” and “any disorder; any depraved condition”.[31]Reference was also made to Stedman’s Medical Dictionary, 26th ed, which includes the definition:
“a morbid entity, characterised usually by at least two of these criteria: recognised etiological agent(s), identifiable groups of signs and symptoms, or consistent anatomical alterations.”
[32]The claimant submitted in his skeleton argument that all of these definitions would encompass the claimant’s condition. For example, even the more specific Stedman definition would be satisfied because the condition results from a recognised aetiological agency (exposure to cold); there are well recognised groups of signs and symptoms (sensitivity to low temperatures; reduction in body temperature of the affected extremities, and de-sensitisation to touch); and there are consistent anatomical alterations (the vascular and other cellular damage referred to above).[33]I accept that the claimant’s condition would fall within at least some of these definitions, but this does not, in my judgment, provide significant help in determining the meaning of “disease” in CPR 45, or whether NFCI constitutes a disease in the context of that provision. It seems to me that to adopt the expansive definition of disease urged by the claimant on the basis of these dictionary definitions would be to expand the concept so far that the exception (“disease” within Section V of CPR 45) would leave far too little scope for the basic rule in Section IV to operate. That cannot be right.[34]I am reinforced in this view of the essential irrelevance of these dictionary definitions by Lord Clyde’s comments in Chief Adjudication Officer v. Faulds [2000] 1 WLR 1035 at 1051H, where the issue was the meaning of the word “accident” in social security legislation:
“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. In such circumstances there seems to me to be nothing gained by resorting to dictionary definitions. Where a word is to be understood in its ordinary meaning it is preferable to confine one’s attention to the application of the statutory expression and avoid the temptation to elaborate upon it by introducing other words which may seem to be synonymous but which may simply lead in other cases to analysis not of the statutory words but of the gloss which has been added to them.”
[35]Ultimately Mr Williams for the claimant accepted, rightly in my judgment, that there was relatively little assistance to be derived from these dictionary definitions, or from citation of the numerous cases where words such as “disease” have been considered in other contexts. He accepted also, and again in my judgment was right to do so, that as a matter of ordinary everyday language, NFCI would not be regarded as a disease. But, he submitted, the word “disease” in CPR 45 was not being used in its ordinary sense, but rather in the kind of “special or technical meaning” referred to by Lord Clyde. That special or technical meaning was derived from two sources, namely(1) the scheme of the rules, and in particular the inclusion within the definition of Type A and Type B claims of claims which would not in ordinary language be regarded as disease claims, and(2) the Pre-Action Protocol for Disease and Illness Claims or, perhaps more accurately, the general understanding of those in the personal injury claims industry as reflected in the Protocol.

The scheme of the rules

[36]It is common ground between the parties that(1) the definitions of Type A and Type B claims in CPR 45.23(3)(c) and (d) include some claims which would not in ordinary language be regarded as disease claims, and(2) for the purpose of CPR 45 those claims must be regarded as related to a “disease” within the meaning of CPR 45.23(b). If that were not so, the claims in question could not fall within Section V at all, as CPR 45.23(b) provides that Section V applies only to claims which are related to a “disease”. The issue between the parties is whether that demonstrates an intention that the word “disease” should be given an extended meaning throughout CPR 45 (as the claimant contends) or whether the term “disease” is used in its natural meaning subject only to the specific exceptions inherent in the definitions of Type A and Type B claims (as the defendant contends).[37]A question arose as to the status of psychiatric injuries and upper limb disorders. These are injuries which, if they fall within the definition of Type B claims in CPR 45.23(3)(d), count as “diseases” for the purpose of CPR 45. Whether they fall within that definition depends, not on the nature of the condition, but on its causation. Thus psychiatric injuries which are alleged (though not necessarily proved) to have been caused by work related psychological stress fall within the definition, and therefore give rise to Type B claims, while psychiatric injuries caused in other ways (including by an employer’s negligence) are not. Similarly, upper limb disorders which are work related, and which are alleged to have been caused by physical stress or strain, fall within the definition, and therefore give rise to Type B claims, provided that they do not constitute “hand/arm vibration injuries”, while other limb disorders are not.[38]The status of injuries of the nature described in CPR 45.23(3)(d) but which do not fall within the Type B definition because they do not satisfy the causation requirements of the definition was in dispute between the parties. Mr Williams for the claimant contends that such injuries, even though not falling within Type B, nevertheless fall and are generally understood to fall within Type C. He relies on this to support his submission that the term “disease” in CPR 45 is used to include conditions which would not normally be regarded as diseases even if such conditions are not within the specific definition of Type B claims. He refers also to other injuries not normally regarded as diseases and plainly not Type B claims (e.g. noise induced hearing loss) which, he says, have attracted success fees calculated in accordance with Section V, not Section IV, thus demonstrating that the term “disease” has been generally understood as having an expanded meaning. Mr James for the defendant, in contrast, contends that such injuries do not fall within Section V at all, and must be dealt with under Section IV.[39]I do not find it necessary to determine this issue, although there does appear to be some force in Mr Williams’ submission as to the way in which in practice some claims not falling within Type B (for example, vibration white finger claims) are generally regarded as Type C Section V claims and not Section IV claims. Even if psychiatric injuries and upper limb disorders which do not satisfy the causation requirements of the Type B definition nevertheless constitute “diseases” within the meaning of CPR 45, these represent specific extensions of the ordinary meaning of the term “disease” and in my judgment do not demonstrate with sufficient clarity that the intention of the legislator was to apply an extended meaning of “disease” more generally. Similarly, even if such claims as claims for noise induced hearing loss have in practice generally attracted the higher success fees applicable under Section V, I cannot regard that as a sure foundation on which to conclude that an extended meaning of the term “disease” was intended.[40]If that had been intended, it is surprising that there is no definition of “disease” in CPR 45. Nor is there any indication of the factors which would need to exist in order to qualify a condition not normally regarded as a disease in ordinary language for inclusion under Section V. However, these omissions are not surprising in view of the circumstances in which Sections IV and V came into being as a result of the negotiations described at [11] and [12] above. I do not know whether there was any attempt to produce an agreed definition of the term “disease”, but it is not in the least surprising that no such definition was in fact agreed by the competing interests involved. In my judgment, therefore, psychiatric injuries and upper limb disorders constitute specific exceptions and do not justify any more general wider meaning being given to the term “disease”.[41]There is in my judgment a further compelling reason why detailed consideration of the Type B definitions in CPR 45.23(3)(c) cannot determine the meaning of the term “disease” in CPR 45. This is that the term “disease” was included as an exclusion from Section IV when Section IV was first introduced in October 2004. At that time Section V did not yet exist, but the term “disease” in Section IV must nevertheless have had a meaning. It is not suggested that the coming into force of Section V one year later had the effect of changing the existing meaning of “disease” in Section IV and it is obvious that the term was intended to be used consistently in both Sections. Since the meaning of “disease” in Section IV cannot have been determined by the provisions of a Section V which did not yet exist, any justification for an extended meaning of “disease” in Section IV, and therefore in Section V, must be found elsewhere than in the detailed definitions of Type A and Type B claims in Section V. In the end Mr Williams accepted this, submitting that although the extended meaning of “disease” in Section IV for which he contends cannot come from the language of Section V, it is to be derived from the concepts contained in the Pre-Action Protocol.

The Pre-Action Protocol

[42]The Pre-Action Protocol for Disease and Illness Claims states:
“2.2 Disease for the purpose of this protocol primarily covers any illness physical or psychological, any disorder, ailment, affliction, complaint, malady or derangement other than a physical or psychological injury solely caused by an accident or other similar single event. 2.3 In appropriate cases it may be agreed between the parties that this protocol can be applied rather than the Pre-Action Protocol for Personal Injury Claims where a single event occurs but causes a disease or illness.”
[43]As a definition, the meaning of “disease” contained in paragraph 2.2 of the Protocol is extremely wide. It includes almost anything not solely caused by an accident or other similar single event. The claimant submits that the essential distinction for the purpose not only of the Protocol but also of CPR 45 is between claims which arise as a result of an accident or a single event which is similar to an accident on the one hand and all other claims on the other hand. Mr Williams recognised that CPR 45 cannot be read as if it somehow contains the definition of “disease” in paragraph 2.2 of the Protocol, which in any event is very loosely expressed since it only purports to describe what is “primarily” covered by the term and is expressed to apply only “for the purpose of this protocol”, but he submits that the essential distinction to which I have referred is illuminating because it casts light on the understanding of those concerned with personal injury claims. The submission in its final form, as I understood it, was that even though the definition itself does not apply to CPR 45, it is evident that the term “disease” in CPR 45 is used in a more extended sense than its ordinary meaning, and the sense in which it is used is that seen in the Protocol, in particular by reference to the distinction between single accident or accident-like claims and other claims not arising from such events, because that distinction reflects the understanding of those concerned with personal injury claims as to the meaning of “disease”.[44]I reject that submission. The terms of paragraph 2.2 of the Protocol were available to the draftsman of CPR 45 if he had wished to use or adapt the definition in that paragraph, but he did not do so. I can see no basis for concluding that that the term “disease” in CPR 45 was intended to be interpreted by reference to the Protocol, the purpose of which is very different from CPR 45. The Protocol is concerned with the procedure to be followed at and before the commencement of litigation, dealing with such matters as access to health records and the procedure for expert evidence (where a more flexible approach is provided than contained in the Personal Injury Claims Protocol), while the subject matter of CPR 45, namely the success fee payable to a claimant’s lawyers, is altogether different. I acknowledge that some of the terms used in CPR 45.23(2)(a) referring to “a letter of claim … containing a summary of the facts on which the claim is based and main allegations of fault” reflect language and concepts used in the Protocol, but in my judgment this has no bearing on the meaning of the term “disease” in Section V, let alone Section IV, of CPR 45.[45]I conclude, therefore, that the definition of “disease” in the Protocol, let alone any general understanding of personal injury practitioners which may underlie that definition, is not a reliable guide to the meaning of “disease” in CPR 45. This makes it unnecessary to explore further whether, as the claimant contends, the Protocol provides a simple and “bright line” test easily applied by practitioners or whether, as the defendant contends, its application would be confusing and liable to give rise to many arguments. I observe, however, that there are undoubtedly diseases which are capable of being caused by a single event, which event may or may not be regarded as an accident or something similar to an accident (hospital staff contracting hepatitis as a result of accidental injection is one example given in argument). Acceptance of the claimant’s submission would in all probability lead to the situation against which Lord Clyde warned in Chief Adjudication Officer v. Faulds [2000] 1 WLR 1035 at 1051H (see [34] above), namely an excessive focus on the terms of the Protocol (“the gloss”) instead of on the natural meaning of the language of CPR 45 (“the statutory words”). Still more, to conclude that CPR 45 should not be interpreted according to its natural meaning, but rather in accordance with the general understanding of those involved in personal injury claims in the period before CPR 45 was introduced when the Protocol was produced, would lead to innumerable disputes about what that understanding was, and would destroy the clarity and certainty which CPR 45 was intended to achieve. That would produce, in effect, a gloss upon a gloss.[46]Accordingly the claimant has not demonstrated that the term “disease” in CPR 45 is used in other than its natural and ordinary meaning, save to the extent that the specific injuries included in the definitions of Type A and Type B claims must be regarded as constituting diseases for the purpose of the award of success fees. (As indicated at [39] above, I do not decide whether those injuries constitute diseases within Type C when not caused in the manner required by the Type A and Type B definitions; even if they do, that only means that the specific extension of the meaning of “disease” for the purpose of CPR 45 extends somewhat further than if they do not). Nor in my respectful view has the claimant succeeded in identifying with sufficient clarity and certainty the extended meaning of “disease” for which Mr Williams contends.

Is NFCI a “disease”?

[47]In view of Mr Williams’ realistic acknowledgment that as a matter of ordinary language NFCI would not be regarded as a disease, the conclusions reached so far are sufficient to dismiss this appeal. Even without that acknowledgment, however, I regard the defendant’s submissions set out at [17(6)] above as compelling.[48]Thus NFCI is not caused or contributed to by any virus, bacteria, noxious agent or parasite. It is simply a case where blood fails to reach the cells in the nerves, skin and muscle of the claimant’s feet as result of exposure to weather or environmental conditions. Although it involves no trauma in the sense of the direct application of force to the body, the mechanism is essentially the same as occurs in a case of trauma such as when a tourniquet is applied to a limb or a victim is stabbed. The result is damage or injury to the body parts affected, but this cannot be regarded as a “disease”. I accept the defendant’s submission that if NCFI is a “disease”, so too are such conditions as chilblains, hypothermia, frostbite, sunstroke, sunburn and heat blisters which are no more than the result of exposure to weather conditions, and that this would be stretching the meaning of “disease” to surprising lengths which cannot have been intended. I accept also that it is significant that nowhere in Dr Roberts’ detailed report on NFCI is there any suggestion that it constitutes a disease. While none of these factors is determinative by itself, together they amount to a compelling and in my judgment correct case that NFCI is not a “disease”.[49]I accept that there are factors pointing in the opposite direction, in particular that NFCI develops typically over a period of time as distinct from exposure on a single occasion, that it involves no trauma and that it is a condition to which individuals of Black African or Black Caribbean origin are particularly susceptible. Moreover, it has some features in common, so far as the conduct of litigation is concerned, with claims which do relate to diseases, although I regard that as a less significant matter and certainly not sufficient on its own to characterise NFCI as a disease.[50]Notwithstanding the objective of CPR 45 to provide a clear and certain test for the award of success fees, inevitably questions may arise as to whether particular conditions are to be characterised as “diseases”. When that occurs, and when the answer is not obvious, there is in my judgment no single test or definition which can be applied. In circumstances where the Rule itself provides no definition of “disease”, and where the dictionaries do not assist, it would not be practicable or sensible for the court to attempt to supply its own definition. Instead it will be necessary to apply the natural and ordinary meaning of the word, and in cases which are near the borderline to form a judgment by taking account of the various factors which point in one direction or the other. In the present case the relevant factors are those identified above and, taking them into account, I have no doubt that NFCI is not a disease. “Contracted”[51]The defendant had a subsidiary argument, that even if NFCI it is a disease, it is not something which is “contracted”, because it is not natural to speak of a person contracting (as distinct from sustaining or suffering) NFCI. It will be recalled that CPR 45.23 refers to “a disease … that is alleged to have been contracted…” I would reject this argument. If NFCI is a disease, there is no difficulty in regarding it as having been contracted by the claimant.

Conclusion

[52]For the reasons set out above, I agree with the conclusion of Master Gordon-Saker. NFCI is not a disease within the meaning of CPR 45 and accordingly the claimant’s lawyers are not entitled to a success fee calculated in accordance with Section V of that Rule. The appeal is dismissed.[53]I am grateful to the assessors for their assistance in this case.

Cited in 2 later judgments