Welcome to the latest edition of Disease Brief from Kennedys Occupational Disease Unit.

Transcription

1 May 2013 Disease Brief Welcome to the latest edition of Disease Brief from Kennedys Occupational Disease Unit. In this edition of Disease Brief, in addition to our usual general round up of news, we focus on two very topical issues. With the Jackson reforms now in place, we question the proposals to extend the claims portal process to mesothelioma claims. We also review recent developments in relation to limitation, and argue that this is now an important defence in disease claims. Our next Occupational Disease Conference will take place in London on 23 May Speakers from Kennedys will comment on industrial deafness claims and recent developments in occupational disease litigation. In addition, consulting engineer, Chris Nelson will be speaking about hand-arm vibration syndrome and ergonomist, Steve Mason about repetitive strain injuries and upper limb disorders. We still have some spaces available and, if you are interested in attending, please contact us using the link on the right hand side of this . I hope you enjoy reading this edition and welcome any feedback. Cameron Clark, Partner, Occupational Disease Unit Case reviews Costs: enhanced success fee for disease claims High Court rejects claim that non-freezing cold injury is a disease entitling Claimant to 62.5 per cent success fee; meaning of disease in this context considered - Patterson v Ministry of Defence [ ]. Implications The decision in Patterson is a particularly helpful one to the Ministry of Defence (MOD) and other defendants faced with claims relating to conditions which are alleged to be a disease for the purposes of the success fee. Prior to this case, the success fee was either 25 per cent or 62.5 per cent and often cost settlements were made without agreeing to the percentage of the success fee but reflecting the risk that the success fee could be 62.5 per cent. Since the decision, there has been certainty as to the success fee. Page 1 of 11

2 Even with the introduction of the Jackson reforms, there are still a number of these claims outstanding. In a case raising similar issues, Bird v Meggitt [2012] a County Court found that a claim for the exacerbation of a pre-existing condition was not a disease for the purpose of calculating the success fee. We understand that the appeal against this decision is not proceeding. Background The issue in this case was whether the non-freezing cold injury (NFCI) sustained by the Claimant was a disease contacted by him within the meaning of Section V of CPR 45. If it was, a success fee of 62.5 per cent would be recoverable on settlement of his claim. If it was not, the recoverable success fee would only be 25 per cent, in accordance with Section IV. Claims falling within Section V are divided into three categories: Type A: asbestos claim. Type B: 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. Type C: a claim relating to a disease not falling within either type A or type B. Decision Mr Justice Males held that the appropriate success fee was 25 per cent: 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 rule in Section IV. The starting point must be the natural and ordinary meaning of the words used, in their context. 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. The Claimant had 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. In particular, the definition of disease in the Pre- Page 2 of 11

3 Action Protocol for Disease and Illness Claims was not a reliable guide to the meaning of disease in CPR 45. 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 as a result of exposure to weather or environmental conditions. The result is damage or injury to the body parts affected, but this cannot be regarded as a disease. Kennedys represented the MOD in relation to the claim for damages. A&M Bacon Ltd acted on behalf of the MOD in relation to the costs aspects of the case. For more information please contact John Bucklow j.bucklow@kennedys-law.com. Mesothelioma: liability for asbestos exposure Defendant liable where deceased was exposed to asbestos at a date when a reasonable employer should have been aware of the risk of injury - Hill and Billingham v John Barnsley & Sons Ltd and others [ ]. Implications The issues of knowledge and foreseeability of risk of harm were reviewed by the Court of Appeal in Williams v University of Birmingham (link to The judgment in that case made reference to the importance of considering the Factory Inspectorate s guidance. That guidance was also considered in this case. As a result, it was accepted that the Defendant had, or should have had, knowledge of the risk of harm. The Williams decision was favourable for defendants. However, this decision may be a sign that claimants are looking to strengthen knowledge and forseeability arguments with experts focusing on other guidance notes issued at the material times to support their opinions. Background Derek Billingham died of malignant mesothelioma in The Claimants, as executrixes of his estate, sued three Defendants by whom he was employed in the late 1960s and early 1970s. The claim against the First Defendant was discontinued. The Third Defendant settled the claim against it shortly before trial. This left the claim against the Second Defendant, Lloyds British Inspection Services Ltd. Mr Billingham was employed by this company in the tax years 1968/9 and 1969/70, including a period of about six weeks during which he worked indoors at Page 3 of 11

4 Cottam power station, whilst it was under construction. His work involved testing the strength of steel girders. This required him to throw chains over the girders, which dislodged dust. Decision Mr Justice Bean found in favour of the Claimants: The levels of asbestos fibres to which Mr Billingham was foreseeably exposed at Cottam were far more than de minimis. They were also far more than the levels which were to be set out in HM Factory Inspectorate s Technical Data Note (TDN) 13 in March The probability was that he was exposed for short periods, many times each day for about six weeks, to very high levels of concentration for half a minute or a minute at a time. These levels were possibly as high as 100 fibres per millilitre of air for the first few seconds. Any reasonable employer in 1968/9 should have known that exposure to asbestos fibres in those quantities or anywhere near them posed a serious risk of injury. The Second Defendant should also have been aware that quantities of dust containing asbestos allowed to remain on flat surfaces such as girders without being cleaned off would pose a serious risk of injury to the workforce in the vicinity if disturbed. The risks posed by dust could have been reduced by wetting, cleaning off or the provision of respirators. None of these precautions was taken. Even by the standards of the times, the Second Defendant negligently failed to comply with its duty of care. For further information please contact Philippa Craven p.craven@kennedyslaw.com. Noise induced hearing loss: limitation Kennedys successfully defends claim for noise induced hearing loss in Court of Appeal; Claimant s date of knowledge considered Johnson v Ministry of Defence and Hobourn Eaton Ltd [ ]. Implications A claimant cannot not rely on his ignorance of a medical condition if a reasonable person, faced with the same symptoms, would have sought advice at an earlier date. Page 4 of 11

5 The prospect of a claimant being fixed with an earlier date of knowledge has increased. Background The Claimant worked at Chatham Dockyard for the Ministry of Defence (MOD) from 1965 to 1970 and from 1974 to He was exposed to very loud noise and, subject to its limitation defence, the MOD admitted liability. From 1969 to 1970 the Claimant was employed by the Second Defendant and alleged he was exposed to loud noise. The Second Defendant denied liability. Limitation was considered as a preliminary issue. The Claimant said that he noticed hearing loss symptoms in 2001 but it was not until he was approached by a claims company in 2007 that he thought about making a claim. He was examined by a consultant ENT surgeon in April 2009 and was diagnosed with severe deafness. The Claimant contended for a date of knowledge of April At first instance, His Honour Judge Scarratt held that the claim had been brought out of time. Decision The Court of Appeal dismissed the Claimant s appeal: The correct approach was set out in Bracknell Forest Borough Council v Adams [2005]. Section 14(3) Limitation Act 1980 required an objective approach. The test was what a person with the essential characteristics of the Claimant (such as age and mental capacity) would do if acting reasonably. There would be an assumption that a person who had suffered a significant injury would be sufficiently curious to seek advice unless there were reasons why a reasonable person in his position would not have done so. In the Claimant s circumstances, a reasonable man would have consulted his GP by about the end of This allows around a year for thinking time between the time when he realised that he had a significant condition and the date on which he ought reasonably to have taken expert advice. The time to be allowed must depend on the nature of the condition. With a condition such as deafness which presents in an insidious way, about a year should be allowed for consideration. It followed that by the end of 2002 the Claimant had knowledge that his deafness might be attributable to his exposure to noise whilst in the employment of the Defendants. Primary limitation therefore expired by the end of Page 5 of 11

6 The Claimant had accepted that the trial Judge had not erred in his consideration of s.33. Accordingly there was no question of whether discretion should be exercised to extend the limitation period. Kennedys acted for the MOD in their successful defence of this claim. For more information please contact Cameron Clark Feature articles Occupational disease claims: market developments May 2013 A round up of recent news relating to deaths from mesothelioma, the mesothelioma consultation, updated lump sum payments for pneumoconiosis and mesothelioma, reporting occupational diseases and the Welsh Asbestos Bill: Deaths from mesothelioma statistics released by the HSE on 7 March 2013 indicate that deaths from mesothelioma continue to increase in Great Britain. The latest information shows that the number of mesothelioma deaths has increased from 153 in 1968 to 2,347 in Over 80 per cent of deaths were among men, mainly due to asbestos exposure in the workplace. The HSE has published a fact sheet providing mortality statistics by last recorded occupation of the deceased from 2002 to (link to Mesothelioma consultation the Ministry of Justice has indicated that the consultation will be published in July The Government s intention to consult was announced in December Proposals will include introducing fixed legal fees for mesothelioma claims, a dedicated pre-action protocol and an electronic portal on which the claims will be registered. The aim will be to ensure that these claims are processed and settled as quickly as possible given the nature of the disease. Pneumoconiosis and mesothelioma: updated lump sum payments updating Regulations came into force on 1 April 2013, increasing the lump sums payable under the Pneumoconiosis etc. (Workers Compensation) (Payment of Claims) Regulations 1988 and the Mesothelioma Lump Sum Payments (Conditions and Amounts) Regulations Amounts payable have been increased by 2.2 per cent. When the Regulations were being considered in the House of Commons on 7 March 2013, the Government confirmed that it is working with the ABI and other stakeholders to develop a scheme for mesothelioma sufferers who cannot trace an employer or insurer against whom they could make a claim for damages. Page 6 of 11

7 Reporting occupational diseases the HSE has not pursued plans to significantly change reporting requirements for disease claims under RIDDOR An HSE consultation last year proposed that employers should not have to report most cases of occupational disease. The consultation ended on 28 October However, it has been reported that the HSE has decided to retain the need to report occupational cancers, diseases attributable to biological agents and six short latency diseases. Further details are awaited from the HSE. Welsh Asbestos Bill the Recovery of Medical Costs for Asbestos Diseases (Wales) Bill would create a new liability on defendants making a compensation payment to victims of asbestos-related disease. They would be required to pay for any NHS services provided in Wales as a result of the disease. The costs of these services are estimated at 2m a year. The Bill is currently progressing through the National Assembly for Wales. Following completion of Stage 2 proceedings, Stage 3 (plenary consideration of amendments) commenced on 25 April For more information please contact Philippa Craven p.craven@kennedys-law.com or Cameron Clark Cameron.clark@kennedys-law.com. Limitation: it s official - the tide has turned Raising a limitation defence was previously seen as a wasted exercise which simply incurred more costs. However, with a string of recent victories in the Court of Appeal it should definitely be viewed as a key weapon in a defendant s armoury. A claimant has three years to commence proceedings from the date of his accident. That date is not easily identifiable for a disease claim where the condition is gradual and insidious. The Limitation Act 1980 states that the time period commences from a claimant s knowledge that the injury was significant and attributable to his employment with the defendant. It is unsurprising that such a vague definition has resulted in a multitude of case law. The good news is that 2012 resulted in a number of significant wins by defendants on limitation defences. The courts are applying the provisions of the Limitation Act more favourably to defendants than has previously been the case. Date of knowledge In Johnson v Ministry of Defence [2012] [link: Kennedys was able to have the Claimant s case dismissed despite having admitted liability. Page 7 of 11

8 The following question was asked by the Court in Johnson: at what stage should a claimant seek advice on his injuries? It was confirmed that a claimant should be judged objectively, making it less likely he can hide behind a feeble excuse. The test is what a person with the essential characteristics of that claimant, such as age and mental capacity, would do if acting reasonably. The assumption is that a person who suffered a significant injury would be sufficiently curious to seek advice. It has therefore become more probable that a defendant can fix a claimant with an earlier date of knowledge and increase the prospect of the claim being struck out. Discretion under s.33 The issue of limitation however does not end at that point. A claimant can still apply to have the claim reinstated under s.33 Limitation Act. Clarity has been given by the Court of Appeal in Sayers v Chelwood [2012] [link: that the burden of proving that a struck out case should be reinstated is on the claimant. This burden should not be construed as either light or heavy but will depend on the circumstances of each case. The court s discretion is broad and unfettered. Length of delay It is often argued by a claimant that a short delay in issuing should not prevent a claim from proceeding. However, a claim does not have to be delayed for decades before a defendant can win on limitation. In Gibson v Jobcentre Plus [2012] [link: the Claimant issued proceedings five years after his date of knowledge. The court considered that this period was prejudicial to the Defendant. Likewise, the court declined to exercise its discretion in favour of the Claimants in Davies and others v The Secretary of State for Energy and Climate Change [2012]. [link: It would seem that the opportunity for a claimant to avoid sanction through this door has been firmly closed. For more information please contact Cameron Clark Cameron.clark@kennedyslaw.com. Streamlining mesothelioma claims: a step too far? The Ministry of Justice has confirmed that the planned consultation to improve the process for mesothelioma claimants will be published in July Currently, a full 12 week consultation period is planned. Page 8 of 11

9 The consultation is intended to cover the government s agreement, made in July 2012, with the Association of British Insurers to speed up the process of compensating mesothelioma victims. It is also intended to meet the requirement to review the effect on mesothelioma cases of the changes to the recoverability of additional liabilities (success fees and ATE insurance premiums), as made by section 48 of the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012, which came into force on 1 April This article intends to examine the proposed change to the process of managing mesothelioma cases, which includes the creation of a dedicated online portal, supported by a dedicated pre-action protocol. Drawing on the observations and concerns around the draft protocols for other types of claims, we examine whether the nuances of a mesothelioma case could make it suitable to a portal process and if so, highlight some of the main features which any supporting protocol must realise. Commitment to the cause The LASPO Act 2012 and related reforms reflect the government s determination to tackle litigation costs and streamline the claims process. Managing claims through an online portal began in April 2010 when the road traffic accident (RTA) protocol was implemented, aimed at managing low value RTA claims valued between 1,000 and 10,000. Now, following extensive consultation, new protocols extending the scheme to claims up to 25,000 and to employers liability (EL) and public liability (PL) claims will be implemented at the end of July Accompanying fixed recoverable costs regimes (including for claims which fall out of the extended protocols) will also take effect. (Those protocols currently remain in draft form and are due to be finalised in May or June 2013). Our view has always been that the special status already given to mesothelioma victims under existing legislation, case law and working party guidelines meant that there ought not to have been an exemption under the LASPO Bill to those claims. The exemption having been made, there is still, however, divided opinion as to whether the reforms can be applied to mesothelioma claims. A key feature of the concerns around further streamlining disease claims (and indeed EL/PL claims generally) concerns tracing an identifiable insurer. Whilst the EL Tracing Office (ELTO) has been established now for two years and has undertaken in excess of 4,050 searches, there remain difficulties in tracing or identifying insurers to deal with these claims. Of those 4,050 searches undertaken, 2,354 were successful. (Data taken between May 2011 and April 2012). Where insurance cover is disputed in mesothelioma cases due to missing or incomplete records, ELTO intends to introduce a Technical Committee to consider and adjudicate upon whether there was insurance in place with a particular insurer at the time of exposure. Where evidence of insurance is accepted by the Technical Page 9 of 11

10 Committee, claims will be allowed to go into the proposed portal process and proceed within the same time limits that apply as if there was no dispute over insurance. A tight timeframe It waits to be seen how the protocol timeframes will be revised for mesothelioma claims. Those already dealing with mesothelioma claims have, of course, become accustomed to dealing with claims proactively and within tight time parameters by virtue of the Pre-Action Protocol for Disease and Illness Claims and the Mesothelioma Practice Direction at CPR PD 3.D. Nevertheless, the proposed timeframes for protocol compliance in the soon to be extended EL and PL portal have caused concern. In particular, fears have been expressed about the time periods for responding to claim notification: 30 and 40 working days in an EL and PL claim, respectively, which represent a significant reduction of the current 90 day period to investigate and respond to a claim. Other key areas which will require particular consideration in a revised protocol are: Stipulation of sufficiently comprehensive details in the claim notification form, as now required in a letter of claim, including precise dates of employment/exposure. Assessment of damages. Living claims are currently fast tracked and claimants are awarded interim payments to enable them to have the benefit in life of some of their damages. It will be important that claimants provide their evidence and documentation in support of the quantum of the claim to enable a proper and fair assessment of damages and ensure claims are kept within the portal whilst dealing with interim payments. Loss of earnings. Under the current EL/PL protocol, an insurer is required to provide loss of earnings details within 20 days of making an admission. The sanction for failure to do so is currently not clear (and is assumed not to be a trigger for ejection from the portal). Should a similar requirement be added for mesothelioma claims, the accompanying protocol should specifically provide for the frequent need for pension information to be obtained and the corresponding delay that can occur from obtaining it from third party providers. Schedule of loss. The disease claimant is currently required to serve a schedule as soon as practicable. It will be interesting to see whether this provision will be firmed up to stipulate a timeframe, which would be welcomed. (The extended EL/PL protocol places a 15 day requirement on the claimant). Page 10 of 11

11 Cost saving measures Notwithstanding the above observations, inclusion of mesothelioma claims in a claims portal process should provide a substantial cost saving for insurers. At present, even fast tracked mesothelioma claims attract uplifts as high as 100% if a matter proceeds to trial. Costs claims can be and usually are very high with claimants arguing that the complexity of the issues warrants enhanced rates. The developments over recent years (including the fast tracking referred to above) has meant that, in reality, the issues are not complex. Unrebuttable proof of exposure above de minimis levels is sufficient to justify a finding of liability. As with EL and PL claims, insurers and their claims handlers will need to invest in the resources needed to implement and comply with any disease portal. We have seen considerable investment in this area already with the introduction of ELTO and the support scheme for mesothelioma victims. The historic nature of the claims adds another dimension in terms of the resourcing necessary to undertake the initial and crucial investigations and it is essential that insurers put in place the processes and teams needed to respond proactively to the changes. Related articles Mesothelioma victims: new support scheme Evaluating the Portal: legitimate concerns For more information please contact Philippa Craven p.craven@kennedyslaw.com. Kennedys is a trading name of Kennedys Law LLP. Kennedys Law LLP is a limited liability partnership registered in England and Wales (with registered number OC353214). Page 11 of 11