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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Patterson v Ministry of Defence [2012] EWHC 2767 (QB) (12 October 2012) URL: http://www.bailii.org/ew/cases/EWHC/QB/2012/2767.html Cite as: [2012] EWHC 2767 (QB), [2013] 2 Costs LR 197 |
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
(sitting with Assessors)
____________________
Alex Terry Patterson |
Appellant |
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- and - |
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Ministry of Defence |
Respondent |
____________________
Mark James (instructed by A&M Bacon Limited) for the Respondent
Hearing dates: 5th October 2012
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Crown Copyright ©
Mr. Justice Males :
Introduction
Non Freezing Cold Injury
(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.
CPR 45 Sections IV and V
"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; …"
"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)."
"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."
"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'."
(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".
The parties' submissions
(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.
(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
(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.
"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."
(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.
The claimant's particular circumstances
The dictionary definitions
"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…"
"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."
"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."
The scheme of the rules
The Pre-Action Protocol
"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."
Is NFCI a "disease"?
"Contracted"
Conclusion