The definition of disease within the meaning of CPR s.45
This issue central to this claim is whether a Non-Freezing Cold Injury (NFCI) could be classified as a disease for the purposes of satisfying CPR s.45. The Claimant, a soldier, sustained NFCI whilst undertaking cold weather training in Norway, despite having alerted the army doctor to his symptoms prior to departure.
The Defendant admitted liability and costs were subsequently agreed at £68,000.00 with the success fee to be determined. The Defendant sought to assert that a 25% success fee was applicable to employer liability claims in line with CPR 45.21 (ii). However, the Claimant contended that an NFCI was a disease therefore attracting a 62.5% success fee pursuant to CPR 45.24 2a (ii).
It was the Claimant’s position that an NFCI was a disease as it did not result from a physical trauma but from a prolonged exposure to cold and triggered a long process of tissue damage. The Claimant also sought to use an extended meaning of the word “disease” within the CPR. It was agreed upon by the parties that the definitions of Type A and Type B claims in CPR 45.23 3(c) included claims which would not ordinarily be regarded as disease claims but must be regarded as such for the purposes of CPR 45. Thus, the Claimant expanded upon this and referenced NIHL claims which attract a similar success fee yet are not typically diseases. It was surmises that the term ‘’disease’’ within CPR 45 was therefore used to include conditions which would not normally be regarded as diseases.
In contrast, the Defendant contended that the terms “injury” and “disease” were relevant to the definition of an NFCI. They relied upon the name itself, Non-Freezing Cold Injury and not Disease. The Defendant also sought to rely upon the CPR definition of disease in that it must be “contracted” (CPR 45.23 (b)).
In coming to his conclusion the Judge considered the use of the word “disease” within the ambit of the CPR and it was noted that in some cases the CPR was lacking in its definition. However, where this situation arose the Judge concluded that the definition of “disease” should attract its natural and ordinary meaning. Thus, for the purposes of 45.24 2a (ii) a NFCI would not satisfy the disease test.
The chances of those seeking to apply the higher success fee appear to have narrowed subsequent to this judgment however, it is noted by the Judge that the CPR is in itself, ambiguous as to the definition of disease.