Part 45, accidents and diseases

Andrew Hogan, Barrister at law

Introduction

1. Part 45 of the Civil Procedure Rules, has been in force for a number of years
now, but still throws up a surprising number of issues which continue to trouble the
courts.

2. The purpose of this article is when an injury the subject of a personal injury
claim, falls to be considered to be a simple employers liability claim or falls to be
classified as a disease.

3. In particular terms, if a Claimant has a pre-existing disease which is aggravated

or exacerbated by the Defendant’s breach of duty, will this fall to be treated as a
disease claim ?

3. The significance is of course, that claims classified as a disease, will attract a

far higher success fee, than what might be termed simple accident claims.

The Rules

4. The relevant rules are rules 45.20 and 45.23. It is immediately apparent from
reading these two rules that the starting point for construction of the rules, is Rule
45.20 which applies in effect to disputes between employee and employer for bodily
injury sustained in the course of employment except where the claim amounts to a
disease.

1
5. If, however, one moves on to rule 45.23 it is too simple an analysis to say that it
simply relates to disease claims alone: as can be seen from Rule 45.23(3)(c) claims
falling within Rule 45.23 can be diseases “properly-so-called” or can be physical injury
provided that they are caused by exposure to asbestos and in relation to type B claims
one sees again in Rule 45.23(3)(d)(i) that a type B claim will include a psychiatric injury
rather than for example a disease “properly-so-called”.

Construction of the Rules

6. It is important to note that although the Rules are not a Parliamentary statute
they are the next best thing being delegated legislation. It is beyond peradventure that
the Rules are meant to be interpreted in a purposive way.

7. In Kilby .v. Gawith [2008] EWCA Civ 812 the Master of the Rolls stated at
paragraph 17:

“In the course of his oral argument Mr. Morgan accepted, as indeed he had
done in his Skeleton Argument, that the construction preferred in the Courts
below was permissible as a matter of language, but he submitted that the
Defendant’s construction is also permissible as a matter of language and is to
be preferred if the rules are given a purposive construction, as principle
requires should be done. He referred us to page 943 of the recent Fifth Edition
[2008] of Bennion on Statutory Interpretation and to the quotation of this
statement by Lord Steyn in Attorney General’s Reference No 5 of 2002 [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

2
 a meaningful and purposive way giving effect to the basic objectives of
the legislation’.”

8. The first point and one which should be unexceptional is that there is a
differentiation between claims within Rule 45.20 and Rule 45.23 because the risks
posed to Solicitors and others by the cases delineated in Rule 45.23 are different from
those contained within Rule 45.20. Why therefore should an exacerbation of a back
condition fall within the disease category, whereas a simple strain to a pristine back
would not ?

9. The second point is of course to consider what is a disease and a disease

applying the definition contained in the shorter Oxford English Dictionary 6th edition
can only be described as this:

A disorder of structural or function in an animal or plant of such a degree as

to produce or threaten to produce detectible illness or disorder; a definable
variety of such a disorder usually with specific signs or symptoms affecting a
specific location; an illness, a sickness.

10. If, however, one comes onto the definition of “contracted”, which is of course
key to this exercise, one can see that within the shorter Oxford English Dictionary
discounting the first four definitions, one notes that it applies to something which is
incurred or acquired.

11. So against that backdrop the question can be posed whether if on an ordinary
reading of the language used and bearing in mind the purposive construction which
underpins all this it can be said that an exacerbation of constitutional back condition

3
can be said to be incurred or acquired and hence contracted as a consequence of the
breach of duty by the employer ?

Law .v. Balfour Beatty (District Judge Bedford, Leeds County Court, 16 th
November 2009)

12. In this decision which it should be noted is only 9 paragraphs long, the essence
of the decision is contained at paragraph 4 where the Learned District Judge stated
this:

“I am satisfied that this was not a one-off instance and the resulting condition
falls within the definition of disease as contemplated in the provisions of CPR
45.23 which itself comes into existence to deal with claims which have been
dealt with in accordance with the pre-action protocol on disease claims. That
pre-action protocol has with it a non-exclusive list of what can be considered
to be a disease and I now turn to that list, which is to be found at pages 1276 to
1277 of the 2009 edition of the White Book. Before doing that, I remind myself
that CPR 45.23 speaks of a disease as having been contracted as a
consequence of the employer’s alleged breach of statute or common law duties
and I have considered whether the word ‘contracted’ can include a situation
where an individual already has a condition which is then exacerbated by the
working conditions in which he or she finds themselves.”

13. The Learned Judge then went on at paragraph 5 to hold that applying the
overriding objective the purpose of the rule is to assist people whose conditions have
been made worse and then goes on to deal with at paragraph 7 to take into account
some untitled document called ‘RSI Awareness’ to provide support for his
conclusions.

4
14. Seasoned observers might doubt whether this decision was correct for three
reasons. First it would seem odd, that the Pre-action Protocol on Disease Claims can
be used as an aid to construction for the rules. Such a conclusion is to put the cart
before the horse and also to act contrary to the clear guidance of the Court of Appeal
given in the case of Leigh.v.Michelin [2003] EWCA Civ 1766 at paragraphs 19 to 20.

15. Secondly, extraneous documentation such as “RSI Awareness” cannot be said

to be a legitimate aid to construction of delegated legislation.

16. Thirdly, the question of applying the overriding objective to the interpretation
of the rules seems flawed: it can indeed be an aid to interpretation, see the terms of
Rule 1.1 one cannot see how broadening Rule 45.23 in a vague and nebulous way can
be said to further the overriding objective particularly at the expense of the Defendant.

Smith.v.J Sainsbury PLC (District Judge Davidson Reading County Court 20th
January 2010)

17. Another decision, is that of District Judge Davidson of Smith .v. J Sainsbury
PLC (Reading County Court, 20th January 2010), a more detailed and reserved
judgment where although there is a little reasoning in the case the nub of it appears to
be the District Judge’s view was that there had been no contracting of the disease
because in particular terms the Claimant already had a disease, it was simply
accelerated or perhaps exacerbated by reason of the breach of duty by the Defendant.
On a simple reading of the Oxford English Dictionary definition that would appear to
be right.

Norris v HM Revenue and Customs (Master Haworth Senior Court Costs Office
9th July 2010)

5
19. The final decision is that which must be given perhaps more regard than the
other two being a decision of Master Haworth in the case of Norris .v. HM Revenue &
Customs (SCCO 9th July 2010).

20. In that case one can see that again the error in the Master’s decision was again
based on the reading of District Judge Bedford’s decision where it was grounded in
the application of the Pre-action Protocol for Disease Claims and he adopts essentially
the reasoning of that Learned Judge. This is a far wider definition than that contained
within Rule 45.23. It may also be impermissible for the reasons set out above to
attempt to use the Practice Direction to interpret the rule.

Conclusions

21. It is submitted, that where in effect the condition is coincidental to the

employer’s breach of duty rather than being caused by it, cases can be said to fall within
Rule 45.20 rather than Rule 45.23.

22. Secondly, the clear wording of the Rules as interpreted in an ordinary plain
commonsense way as buttressed by the shorter Oxford English Dictionary favours a
construction that would benefit paying parties.

223. Thirdly, the existing case law can be said to be flawed as the District Judge and
Master in the countervailing cases can be said or shown to have materially misdirected
themselves in terms of the test to be applied when construing the Rules.

Andrew Hogan is a barrister practising from Ropewalk Chambers, 24 The Ropewalk,

Nottingham, NG1 5EF (0115) 947 2581 andrewhogan@ropewalk.co.uk