Disease January Asbestos update. EL trigger litigation. Passive smoking. Asbestos claim: Quantum. Limitation. Limitation success

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1 Disease January 2011 Our regular asbestos update, EL policy trigger litigation, passive smoking, quantum on asbestos conditions, asbestos and limitation, the scrapping of the default retirement age, textile deafness litigation, vibration white finger/hand arm vibration syndrome and CTS and our regular review of trends and what is on the horizon. Asbestos update This is a regular feature in the Disease Newsletter providing an up to date round up of asbestos related issues. Gloria Ginvert provides an overview and also considers the issue of whether a Claimant can sue successfully for damages for mesothelioma, where settlement in a previous claim for pleural plaques was on a full and final basis. EL trigger litigation Jim Byard, David Tuck and Judith Peters report on the Court of Appeal Judgment in the Employer s Liability Trigger Litigation. Passive smoking Where is smoking legally permitted? Russell Daw and Lisa Watson discuss the rules and regulations surrounding the smoking ban. Asbestos claim: Quantum Is a single figure needed for mesothelioma damages? Judith Peters comments on recent awards for asbestos related conditions. Limitation Whether the objective or subjective test applies when considering whether a claim is statute barred has received further Judicial attention. Ben Ling looks at the Court of Appeal decision in Whiston v London Strategic Health Authority. Limitation success Limitation defences are rare in asbestos cases. Deborah Edwards examines one recent decision where such a defence was successfully run by Weightmans.

2 Scrapping of the default retirement age Will this produce an increase in future loss claims? Paul Debney discusses the changes and potential consequences. Textile deafness litigation This litigation came before the Supreme Court on the 22 November Jim Byard provides an update. Developments in VWF/HAVS and CTS claims Is it time to revise the strategy for dealing with VWF/HAVS claims? Paul Debney comments on two recent developments. He also reports on a recent success on clinical causation in carpal tunnel trial syndrome claims (CTS). Trends What does the future hold for new conditions and what is happening in the wider disease arena? Peter Ward comments on the sofa injuries class action, herbal medicine cancer link, lead poisoning exposure, claims management companies, new genes for lung disease, a possible cancer link to acrylic fibres and the teacher s claim for her lost voice. We hope you find our bulletin informative and we would welcome feedback on ways in which we can ensure that the bulletin best meets with your needs. The bulletin s editor is Gloria Ginvert. This update does not attempt to provide a full analysis of those matters with which it deals and is provided for general information purposes only and is not intended to constitute legal advice and should not be treated as a substitute for legal advice. Weightmans LLP accept no responsibility for any loss that may arise from reliance on information in this update. The copyright in this update is owned by Weightmans LLP. If you require any further information on the articles within this bulletin or disease issues generally, please contact Gloria Ginvert, editor, or Jim Byard, our Head of Practice Area Weightmans LLP> Weightmans is a limited liability partnership.

3 Disease January 2011 Asbestos update 5,000 pleural plaques awards Reynolds v Secretary of State for Energy and Climate Change [2010] Care experts - Huntley y (Aka Joseph Paul Hopkins) by his Litigation Friend, Alison Jane McClure) ) v Simmons [2010]. The Mesothelioma Lump Sum Payments (Conditions and amounts) (Amendment) Regulations Second bite of the cherry? Can a Claimant sue successfully for damages for mesothelioma where a previous claim for pleural plaques was settled on a full and final basis? Pleural plaques awards The Ministry of Justice s pleural plaques payment scheme operated from the 2 August 2010, providing a one off payment of 5,000 to those whose claims for pleural plaques had begun but were not resolved before the House of Lords decision in Rothwell v Chemical & Insulating Co Ltd and others [2007], which determined that pleural plaques were not actionable. Applications have to be received by the 1 August 2011 to be eligible. The scheme applies in England and Wales. In Scotland, the Insurer s appeal against the Outer Court of Sessions decision to reject their judicial review of the Damages (Asbestos-Related Conditions) (Scotland) Bill began the week commencing the 12 July The decision is awaited. The Welsh Assembly have also become involved in the Judicial Review Proceedings as they consider it is in the public interest. In Northern Ireland a consultation paper has been published on the Draft Damages (Asbestos-Related Conditions) Bill (Northern Ireland) The proposed Bill is to ensure the House of Lords decision in Rothwell has no effect in Northern Ireland. Reynolds v Secretary of State for Energy and Climate Change C [2010] This was a Queen s Bench decision where the Defendant (D), was being sued by the Claimant widow (C) for damages as a result of the death of her husband from mesothelioma caused by exposure to asbestos. The Deceased s employment by the National Coal Board was between 1977 and During his period of employment, the board had undertaken work to: 1. substitute asbestos insulation and 2. to encapsulate escaping blue asbestos which was the alleged source of the Deceased s exposure. Evidence was brought in support of C s claim from witnesses citing an asbestos ridden atmosphere and regular complaints. An expert on behalf of the Defendant stated that the evidence of C s witnesses was

4 incompatible with the results of air samples taken during the Deceased s employment which were below the danger levels in force at the time. There was no documented record of any complaint. It was held that the Claimant s witness evidence was unreliable whilst the Defendant s expert evidence was convincing. Allegations of negligence and breach of statutory duty failed as the Defendant had fulfilled its duty and minimised the exposure of the Deceased to asbestos in so far as was reasonably practicable according to the standards of the time. Precautionary measures had been taken. The deficiencies in the removal process were rectified by the later encapsulation. Measurements of the samples showed that the atmospheric asbestos content was at levels which were considered safe for the work force, although it was accepted by Cooke J that very low levels of asbestos exposure could establish liability. Care experts - Huntley (Aka Joseph Paul Hopkins) (by his litigation friend Alison Jane McClure) v Simmons [2010]. Recent case management conferences before Masters Whitaker and Eastman involving mesothelioma claims suggest they remain sympathetic to arguments put forward on behalf of Defendants in opposing Claimants applications to rely upon care expert evidence. The Defendants arguments have a better chance of success in a fatal mesothelioma claim as opposed to living mesothelioma Claimants. Frequently we see care experts in living mesothelioma cases producing a report simply on the evidence provided at interview of the Claimant and Claimant s spouse with little regard to the contemporaneous notes contained within the medical records and other evidence. Hence, their calculation on the period and level of care provided is often inflated. Despite accepting the deficiencies in expert care reports, is there is a reasonable alternative to allowing permission? The argument being that a Judge with little experience of quantifying such a claim may ultimately decide the Claimant will need some expert guidance to assist assessment. We have had some success with the submission that a Claimant should not be given permission to rely upon expert care evidence unless and until the parties have tried and failed to reach agreement over damages for care provided - the Claimant s evidence, coupled with the medical records can provide the basis of their valuation. The first step in these cases should be to review the medical notes which will record the patient s state of health and symptoms. Those notes should form the basis of questions or even to support the Defendant s calculation on care. The Court of Appeal decision in Huntley v Simmons [2010] lends some support for an approach other than relying upon the evidence of a care expert. In that case, the Judge at first instance did not accept the Claimant s case that he needed 24 hour care (supported by his care expert and a Neuro Psychiatrist) and made his own assessment of an 8 hour per day requirement. The Court of Appeal rejected the Claimant s appeal and held that whilst the evidence of experts was important; this was to be considered with all other evidence. Provided there was a sufficient base of evidence, a Judge was entitled to undertake his own assessment even if this was contrary to the opinion of the experts.

5 The Mesothelioma Lump Sum Payments (conditions ions and amounts) (Amendment) Regulation 2010 This amendment increases the rates of payments made under the Mesothelioma Lump Sum Payments (conditions and amounts) Regulations 2008 (which pays lump sums to people with mesothelioma) with corresponding higher rates payable under the Pneumoconiosis etc (Worker s Compensation) Act 1979 (which pays lump sums to people with various dust related diseases, including mesothelioma). The new rates apply to: To those diagnosed with mesothelioma on or after the 1 April Claims made after the 1 April 2010 where the date of diagnosis cannot be identified. A claim made by a dependent where the sufferer died on or after the 1 April From the 1 April 2010, all dependents rates have been increased by 5,000 unless this would mean that the dependent would be paid more than the sufferer if he had claimed in life. The intention has always been that payments under these Regulations should mirror those made under the Pneumoconiosis etc (Workers Compensation) Act. Second bite of the cherry? Can a Claimant sue successfully for damages for mesothelioma where a previous claim for pleural plaques was settled on a full and final basis? We recently obtained discontinuance of a mesothelioma claim valued at over 300,000 which was pursued on behalf of the Deceased s estate. Several years earlier (1993), the Deceased had prior to his death settled his claim for pleural plaques against five employers on a full and final settlement basis. That claim was compromised in the sum of 7,500. The mesothelioma claim was being pursued against the Defendant as occupier and controller of a site where the Deceased had worked for a very short time whilst employed by an employer who was not sued in the previous pleural plaques action. Some papers from the first action were located including the Consent Order setting out the terms of settlement. Some witness evidence to undermine the evidence served on behalf of the Claimant on the issue of breach of duty was also obtained. The main issue however was whether the earlier concluded agreement in the pleural plaques claim now prevented a further claim for damages for mesothelioma. The principles to be applied are found in the House of Lords decisions of Jameson v Central Electricity E Generating Board (Defendant), and another, HL, [1998] and Heaton, Cheetham and Taylor v Axa Equity & Law Life Assurance Society Plc and another, [2002], UK HL 15. Mr Jameson sued his employer Babcock for damages for mesothelioma caused by exposure to asbestos dust during his employment with them whilst working at premises occupied by CEGB. Just before his death a compromise settlement of 80,000 was achieved, (the full value was later put at 130,000). After his death, the executors of the estate sued CEGB as occupiers for the widow s dependency. The House of Lords found the claim against CEGB was extinguished by the previous settlement with Babcock.

6 The case of Heaton involved a complicated set of contractual agreements. Put very simply, in Heaton allegations of misconduct and misselling made against the (Claimants)/Respondents resulted in Proceedings and a counter claim involving those who originally made the allegations and a further two sets of Proceedings involving the (Defendants)/Appellants which largely related to actions they took as a consequence of the original allegations made. The first action settled by compromise with the terms of settlement set out in a Consent Order for 10 million. Included in that claim was a claim relating to loss and damage caused to the Claimants by actions of the Defendants/Appellants referred to above. In a third set of Proceedings issued by the Claimants against the Defendants (the subject of the appeal), the Defendants contended that the 10 million settlement in the original claim against those who first made the allegations of misconduct discharged the claim against them. However they did not retract the allegations they made and acknowledged the Claimants reputation and integrity would be affected if the allegations were not withdrawn. The House of Lords held that the principles in Jameson, could apply to a case like Heaton, although Heaton concerned consecutive breaches of separate contracts. It was necessary to decide whether the Claimant had received damages in full measure for the loss claimed. In Heaton it was held that the claim against the Defendants/Appellants was not wholly extinguished by the earlier settlement. The Particulars of loss and damage went beyond those involved in the earlier action. Whilst the further damages recovered would be small, the claim was not wholly satisfied by the earlier settlement. The starting point according to Lord Lloyd in Jameson was to ask whether what is being considered is joint torts or concurrent torts, that is separate causes of action each contributing to the same damage (as in Jameson). The CEGB and Babcock had caused the same harm. He accepted it would seem unjust for a Claimant to be unable to sue two separate tortfeasors for each separate cause of action but it was decided if one settles the whole of his loss, each being jointly and severally liable for the whole amount, that is the end of it. How then do you decide whether the claim has been satisfied in full measure when the House in both Heaton and Jameson acknowledged that compromise settlements which were to be encouraged, and could be less than the full value could still be in full satisfaction or for full measure? It was accepted that many settlements are compromised at discount for a variety of reasons to include the risks of litigation. In Jameson the compromised settlement of 80,000 was significantly less than the full value of 130,000. It was held that: If settlement is achieved following a Court Judgment award it would be for full measure. Otherwise it is crucial to consider the facts surrounding the claim to include what was claimed and the terms of the compromise agreement to see if the terms of settlement showed the parties intended the settlement sum should be in full and final satisfaction of the wrong done. In Jameson a claim for the same period of exposure and damage (mesothelioma) was already pursued against Babcock and settled. The terms of settlement indicated full and final settlement and satisfaction of all the causes of action in respect of which the Plaintiff claims.

7 The more recent trend is for second claims from earlier full and final pleural plaques settlements. If the earlier settlement was clearly discounted for unpursued exposure as opposed to discounts for other reasons, the second claim will not be extinguished, whereas an appropriate settlement for the same harm, even with a period of unpursued exposure should be in full satisfaction. Whilst arguments of abuse of process did not find favour with the House in Jameson nor Heaton, if there was evidence of secret reservation when entering into the settlement agreement or of planning any procedural device then an abuse of process Defence could be successful. It is also worthwhile considering limitation. Depending upon the date of knowledge of the earlier asbestos related condition for which damages were claimed, the second claim could be out of time. As LJ Smith in Rothwell v Chemical and Insulating Company & Others O [2006], 4 AER 1161 observed: The Claimant has only one cause of action for all personal injury consequences of a wrongful act or omission. Once the Claimant is aware he has one personal injury consequence, he must sue for all such possible consequences to include the risk of other more serious conditions developing. Time therefore starts to run when there is knowledge of an asbestos related injury. This would include pleural plaques for claims settled pre Rothwell. The usual rules apply and there will of course still be the usual difficulties to consider in the exercise of Section 33 discretion. Whilst this recent trend is worrying, depending upon the terms of settlement and the facts in each case, some of these claims for further damages will be capable of being defeated. If the claim is not extinguished and payments are made, a claim for contribution under the Civil Liabilities (Contribution) Act 1978 from other tortfeasors who have exposed the Deceased to asbestos which made a material contribution to the development of mesothelioma, whether or not those parties entered a full and final settlement with the Deceased should be possible. That is unless the terms of the earlier agreement gave previous paymasters protection, perhaps by way of an indemnity from the Claimant against a claim for contribution. It was recognised in Heaton that this protection would be very difficult to obtain. As pleural plaques are no longer compensatable, hopefully the second damages claim will be limited in numbers if not value. Mesothelioma claims are expensive and as consideration of the terms of settlement and details of the claim made will be crucial in determining whether a claim is extinguished by the previous settlement, it would be advisable to retain the papers for as long as space allows for claims involving future risks even if settlement was achieved on a full and final basis. Whilst it might be advisable to try and include an indemnity clause in the compromise agreement to obtain protection from future claims, realistically these will be difficult to achieve and enforce. It may be better to avoid discount for unpursued exposure, particularly if the amount involved is relatively small to achieve settlement at 100 %.

8 To summarise: 1. The question of whether a previous claim for damages has been satisfied in full or not is a fact sensitive issue. 2. Consider the details of the claim made and damage caused and compare with the terms of the compromise settlement achieved. 3. If the whole claim was settled for full value, that is the end of it. 4. If the claim was discounted, perhaps for unpursued exposure, arguments of full and final satisfaction will fail (but consider limitation). 5. A Court Judgment award will be for full value. 6. There could be an abuse of process if a period of exposure was intentionally left to sue later should one of the risks develop. Gloria Ginvert, Partner, Weightmans LLP.

9 Disease January 2011 EL policy trigger litigation Partial appeal success adds to policy wording confusion The Court of Appeal handed down Judgment on the 8 October in six related actions collectively referred to as the Employers Liability Trigger Litigation. The issues in this case concern the construction of wordings in insurance contracts made many years ago which are rarely (if ever) used in present employer s liability policies. The Court of Appeal Judgment applies to current and future cases made for mesothelioma consequent to asbestos exposure and determines whether Claimants can recover or whether insurers are entitled to decline in their indemnity on the basis of policy wording. The result is a partial success for those insurers whose policies were historically underwritten on an injury sustained basis. The Judgment however throws up more questions than it answers and it is thought will lead inevitably to a Supreme Court Hearing in Background In 2006, the Court of Appeal was asked to consider in Bolton Borough Council v Municipal Mutual Insurance and Commercial Union Insurance ( Bolton ), when a public liability insurance policy was triggered, having heard agreed medical evidence that mesothelioma occurred not at the date of exposure of inhalation of asbestos fibres, but when the malignancy developed which was thought to be around 10 years prior to symptom manifestation. After the Court of Appeal decision in Bolton four insurers in run off declined indemnity under their employer s liabilities policies which had similar though not identical wordings. These policies varied though referred to an injury or disease being sustained or being contracted during policy period. Litigation at first instance before Mr Justice Burton resulted in a defeat for the run off insurers on the following basis: The commercial purpose behind the policies was for cover to be provided at the date of inhalation of the asbestos fibre or the date when the negligent act occurred. Mr Justice Burton was able to distinguish Bolton on the grounds he was considering employers liability rather than public liability wordings. Consequently, those policies in force at the time of inhalation would be those policies which would respond. Although obiter, the date when the injury was sustained for mesothelioma was a period of 5 years, not 10 years prior to symptom manifestation. The Court of Appeal Judgment 8 October 2010 The Court was divided. In broad terms, Lady Justice Smith followed the reasoning of Mr Justice Burton at first instance and refused the appeal. Lord Justice Stanley Burnton adopted the reasoning of the Appellant s (the run off insurers) holding that the policies should mean what they say.

10 Lord Justice Rix gave the leading Judgment, holding that: Policies underwritten on an injury sustained basis, should be applied as per the decision of the Court of Appeal in Bolton, namely that the policy would only trigger if it was still in force at the date the tumour developed (probably 5 years prior to the manifestation of mesothelioma symptoms). Policies underwritten on a injury/disease contracted basis should be interpreted on the basis that the policy in force at the date of inhalation/exposure of asbestos would be the policy to trigger. There is clear indication that Lord Justice Rix would have preferred to find that all policies were triggered on the basis of inhalation or exposure to asbestos, but felt himself constrained by the Court of Appeal decision in Bolton. Comment It appears likely that leave for appeals and cross appeals will be granted, if not by the Court of Appeal themselves, but by the Supreme Court, given the dissension between the Court of Appeal themselves in this Judgment. This case is of considerable importance, both to insurers and Claimants. If the decision is allowed to stand, it is likely that we will see: An increased number of mesothelioma Claimants who go uncompensated, given the long latency between exposure and onset of symptoms coupled with the insolvency of many companies. The decision will add further confusion for mesothelioma claims handlers as it is likely that many organisations will have changed insurers over the years. They are likely to have had policies in force with different wordings. This may lead to situations, either where there is dual insurance in force or alternatively no insurance whatsoever. Those organisations insured prior to 1974 by MMI will (subject to any appeal), have no cover in force for mesothelioma claims. Lord Justice Rix refers in paragraph 273 of the Judgment to possible implications for other long-tail disease/conditions. It is likely that this may result in further litigation. Some solvent Insurers presently have policies written on an injury sustained basis. Should they choose to follow the Court of Appeal s decision in this case, indemnity for future claims will not be given. The Judgment will add weight to governmental pressure for an Employers Liability Insurance Bureau. Jim Byard, Partner, David Tuck, Partner,, Judith Peter, Partner, Weightmans LLP

11 Disease January 2011 Passive smoking Second hand cigarette smoke is a toxic cocktail consisting of poisons and carcinogens. When a cigarette is smoked about half the smoke is inhaled/exhaled (main stream smoke) by the smoker and the other half floats around in the air (side stream smoke). Environmental smoke (ETS) is a combination of mainstream and side stream smoke. Both can result in inhalation by others (passive smoking). Cancers are linked to passive smoking as is heart disease and chronic respiratory conditions. Legislation The Health Act (2006) Associated health risks have led to legislation. The Government have issued codes of practice for smoking in public places and vehicles and as of 1 July 2007 smoking is now banned in all enclosed public places/premises and all enclosed workplaces (subject to various exceptions detailed below) in England (and in Wales although see the commencement part of the Act for more information). This is by virtue of The Health Act 2006 (smoke-free premises, places and vehicles). The Act also has specific sections of relevance to Scotland and Northern Ireland. Section 2 of the Health Act 2006 ( the Act ) provides that premises are smoke-free all of the time if they are: 1. open to the public- albeit only for the time they are open to the public (unless they are also used as a place of work), or 2. used as a place of work by more than one person (even if those persons work at different times/intermittently) or where members of the public might attend to receive goods or service from the person working there (even if the public are not always present). Sub-section 3 does limit the part of the premises that is to be smoke-free to only those parts of the premises open to the public and/or used as a place of work. Section 4 of the Act combined with the supporting regulations 1 states that the ban on smoking only applies to the parts of the premises that are enclosed or substantially enclosed. Enclosed premises are defined as those which have a ceiling or roof; and except for doors, windows or passageways are permanently or temporarily enclosed. Substantially enclosed premises are defined as those which have a ceiling or roof but where there is an opening in the walls (or an area of openings in the walls excluding functioning doors/windows) which is less than half of the area of the walls. Exemptions There are limited exemptions to premises that would normally be affected by the smoking ban above. These exceptions are referred to at section 3 of the Act and in the supporting regulations 2 and mainly 1 The Smoke-free (Premises and Enforcement) Regulations The Smoke-free (Exemptions and Vehicles) Regulations 2007

12 consist of places that double up as peoples home or places where they permanently reside- such as care homes, hospices, prisons etc as well as parts of public use premises that also serve as a person s private dwelling- such as an owner/occupier s bedroom in a bed & breakfast/hotel for instance. Smoking in vehicles A smoking ban in work vehicles and public vehicles is dealt with at Section 5 of the Act although this mainly cross refers to the supporting regulations 3 which provides that vehicles must be smoke-free if used by members of the public (whether or not for hire or reward); or in the course of paid/voluntary work by more than one person. This is the case even if those persons use the vehicle at different times or only intermittently. There is an obvious exemption of a car that has a retractable roof at the time stowed away. The vehicle is not deemed as used in the course of employment if it is a vehicle used primarily for the private purposes of a person- who (a) owns it, or (b) has a right to use it which is not restricted to a particular journey. An example would perhaps be a worker who has his own company car which he uses mainly for commuting to/from work and socially, who then smokes in the presence of an occasional passenger (who may also be a work colleague). There are some anomalies with the vehicle rules now in place. For instance a vehicle used solely by one employee is exempt and the driver may smoke. If that worker has for example a driver s mate- neither of them can smoke at any time- even if they are both smokers and wish to. Penalties There are stipulations as to the signage necessary and the penalties that will be incurred by smoking or allowing smoking in enclosed public places, at enclosed workplaces and in smoke-free vehicles. These range from 30 discounted (if paid quickly within 15 days) for smoking in a smoke-free place, up to 1,000 on summary conviction for an offence relating to failure to display no-smoking signs and up to 2,500 for failing to prevent smoking in a smoke-free place. This legislation means that the risk of inhaling passive smoke at work has virtually been eradicated in England and Wales since 1 July As we are three years after the smoking ban it appears extremely unlikely that any new short tail disease claims for example asthma, rhinitis will now arise. However conditions with a significant latency period could in theory still result in claims against employers and/or their employer s liability insurers for years to come. Prior to 1 July 2007 whilst there was no specific smoking ban, there was a growing knowledge of risk to health of passive smoking as well as basic Government guidance on smoking at work. The employer was required to provide a safe place of work under both a common law duty and under The Management Regulations. The main difficulty however faced by a Claimant (for instance a non-smoker with lung cancer), is in respect of causation. How could he prove the lung cancer would not have occurred in any event or that he was not exposed elsewhere - for instance by family members or in public enclosed places prior to the ban? Secondly, from a public policy perspective how could a Defendant be expected to defend causal exposure in such a claim? Russell Daw, Associate Solicitor, Lisa L Watson, Associate Solicitor, Weightmans LLP. 3 The Smoke-free (Exemptions and Vehicles) Regulations 2007 and The Smoke-free (Vehicle Operators and Penalty Notices) Regulations 2007

13 Disease January 2011 Asbestos claims: Quantum The debate upon the correct level of damages for pain, suffering and loss of amenity in asbestos related disease cases rumbles on. Mesothelioma cases are the ones which attract most attention and judicial time and in particular those cases where the period of symptoms is relatively short. Judicial guidance g The JSB Guidelines 10 th Edition gives a wide range of 52,000 to 83,750 for pain, suffering and loss of amenity in mesothelioma cases. The guidelines state that For periods of up to 18 months, awards in the bottom half of the bracket may be appropriate; for longer periods of 4 years or more, an award at the top end. In cases of unusually short periods of pain and suffering lasting three months or so, an award in the region of 25,000 may be appropriate. Claimant solicitors invariably seek awards at the top end of the bracket. Some have gone further arguing that there should be a fixed figure award for pain and suffering in mesothelioma cases and there have been suggestions that the figure should be 100,000. Case law In Smith v Bolton Copper Limited when Master Whitaker awarded 55,000 for pain, suffering and loss of amenity in a fatal claim when the Deceased had first complained to his GP of breathlessness two months prior to his death. The Deceased was suffering from peritoneal mesothelioma and was 65 years old when he died. Guidance in respect of cases of short periods of pain and suffering has been specifically considered in a number of cases most recently Ronald Dunn v National Grid gas PLC (HHJ Gregory Walsall County Court 13 January 2010) The Deceased was 66 years old when he died. He was single and lived alone. The finding from the medical evidence was that the Deceased had suffered symptoms for approximately 6 weeks until his death. The Judge took into account that the Deceased had undergone a number of invasive procedures once admitted to hospital. He considered whether, taking into account the unusually short period of pain and suffering, an award in the region of 25,000 was appropriate as contended on behalf of the Defendant. The argument advanced on behalf of the Claimant was that in this case the extent of pain and suffering was loaded at the end of the illness. Consequently a figure below the bottom of the JSB bracket ( 52,500) was inappropriate. The Judge awarded 45,000 for pain, suffering and amenity in what was perhaps a classic compromise and in doing so appeared to acknowledge that awards below the JSB Guideline bracket were appropriate in some cases however an award of 25,000 as contemplated by the Guidelines for exceptional cases was out of step with the general levels of awards in mesothelioma cases.

14 Mr S Philips QC made an award of 63,500 for pain, suffering and loss of amenity in Kirk v Vic Hallam Holdings Limited (2008) EWHC 2969 (QB). The Deceased who was aged 75 at the time of his death in April 2008 had first encountered symptoms in June 2007 but first complained to his GP of tiredness in November He then underwent various invasive procedures including decortication surgery. In making the award Mr S Philips QC found that the period of pain and suffering probably extended to some 10 months which he considered was in excess of what should be regarded as a short period, thereby firmly placing the award within the JSB bracket. In contrast Holland J in the case of Cameron v Vinters Defence System Limited (October 2007) awarded 35,000 for pain, suffering and loss of amenity. The Deceased was 71 years old when he died and had not appeared to suffer any symptoms until 5 to 6 months prior to his death and only in the last 5 to 6 weeks of his life did he suffer very painful symptoms. It is difficult in any case to measure pain and suffering in financial terms. The emotive nature of mesothelioma and the attention it receives in the media only serves to heighten this difficulty. The question is whether there should be a balanced approach which compensates for the actual symptoms suffered and period of suffering as opposed to placing a price tag on a particular disease or disability. The variety of judicial awards made supports the former approach and confirms that awards at the top end of the bracket are rare. There is also the need for consistency and providing an element of certainty in to the question of assessment of quantum to avoid unnecessary costs. Overall there is support for maintaining a balanced approach to valuing PSLA awards for mesothelioma sufferers and to resist attempts by those who routinely seek awards at or towards the top end of the JSB bracket. Judith Peters, Partner, Weightmans LLP

15 Disease January 2011 Limitation Whiston v London Strategic Health Authority [2010] Here the Court of Appeal has once again attempted to tweak the effects of the Limitation Act, entering in to the murky waters of to what extent constructive knowledge is purely objectively assessed. The Limitation Act 1980 provides that a claim will be statute barred where a claimant was aware, more than three years before issuing proceedings, of a sufficiently significant injury which they knew was caused by the actions of the Defendant(s). However even beyond actual knowledge, a Claimant can be caught by constructive knowledge because s 14(3) provides that a person's knowledge includes that which they might reasonably have been expected to acquire (including via expert advice). Over the years the debate has raged as to what extent the s14 (3) test is subjective [ At what date was it reasonable for this man to take advice ] or objective: [ At what date would a reasonable person have taken advice?], to what extent either approach allows for the characteristics of the Claimant to be considered. Often this issue crystallises, in practice, into whether a particularly unintelligent or uninformed person escapes the Limitation bar by virtue of their stupidity or ignorance. Equally it may be argued that the stoic claimant should be allowed more time because of the inherent reluctance to sue. A Weightmans case in 2004, Adams v Bracknell Forest Borough Council, saw the House of Lords stamp their seal of approval on the objective test. The decision contained a useful and, (for Defendants), much relied upon paragraph within Lord Hoffman s judgment: It is true that the Plaintiff must be assumed to be a person who has suffered the injury in question and not some other person. But I do not see how his particular character or intelligence can be relevant. In my opinion, s.14 (3) requires one to assume that a person who is aware that he has suffered a personal injury, serious enough to be something about which he would go and see a solicitor if he knew he had a claim, will be sufficiently curious about the causes of the injury to seek whatever expert advice is appropriate. Even though Adams was a case involving a dyslexic, the last sentence from the quote became very useful to Defendants in disease cases. In any case where the injury was enough to justify bringing a claim [through a solicitor] then it was sufficiently serious at the time those symptoms arose to justify seeking advice. The implication was that the fact of injury [whether it be deafness, vibratory disease or asbestos related illness] could be used to argue that the Limitation clock had started to run. Like Adams, Whiston was not a disease case either. The Claimant suffered from Cerebral Palsy caused by oxygen starvation at birth. Limitation was contentious because the claimant was highly intelligent [with a Phd in Maths]. His mother who now supported the claims of alleged negligence at birth was in fact a trained midwife [and yet had not sued the hospital on her son s behalf in the preceding 25 years, nor [allegedly] encouraged him to do so] and it was implied by the Defendants that the stale case was manufactured after the Claimant s symptoms started to deteriorate [when he was 25 years of age]. In an effort to explain discrepancies between DSS records and the accounts in his witness statement the Claimant was forced to suggest that his own mother had exaggerated his earlier condition to secure state benefits,

16 thus raising significant issues over her credibility and potential fraud investigations. The Claimant knew his cerebral palsy was caused by oxygen starvation at birth during a forceps delivery. Whilst that in itself was not enough to constitute negligence, the obvious response that a Cambridge graduate and PhD student with a mother trained as a midwife must or should reasonably have enquired as to the detailed cause of his injury was predictable. So when the judge held that the claim was brought in time, an appeal in this high value case was perhaps inevitable. The Health Authority won their primary appeal. The Appeal Court held that the reasonable cerebral palsy sufferer would indeed have enquired as to the full cause of their condition, more than three years before the claim was actually made. Enquiry would have only required Mr Whiston to ask his mother what precisely had happened. Accordingly the Appeal Court held that Mr Whiston was statute barred. It was in the course of reaching this conclusion, though, that the Court argued that Lord Hoffman s comments in Adams were not an integral part of the final decision [i.e. they were non binding], and that it was too stringent a test to assume that the existence of an injury automatically triggered a duty to enquire further. The Court concluded that [more subjective] elements of reasonableness and consideration of all the circumstances of the case should be considered too although they were careful to note that the test must remain objective, but a tightened up test from the softer approach of the decades before. The Court then dashed the Defendant s raised hopes. Although the case was out of time, the Appeal Court reversed the Judge s decision on discretion and allowed the claim to proceed! How then will Whiston affect day to day case handling? Well the difference will not be immediately apparent. Insurers and their solicitors will continue to argue for constructive knowledge particularly where hearing loss in a noise induced deafness claim has onset at a young age and persist, or unexplained Hand/Arm Vibration Syndrome type symptoms have been ignored for years. Anecdotal comment from Claimants solicitors suggests that a robust limitation based strategy is effective in seeing off many claims before they are even intimated. For those limitation cases which actually reach trial there will still be many Claimants who concede knowledge in the witness box and whose claims are deemed statute barred. In lower value disease claims it will be more difficult for the Claimant to secure discretion as with more severely injured Claimants are likely to receive a more sympathetic hearing. Whiston though represents a slight weakening of Defendant s previous position. It becomes slightly more difficult for the Defendant to argue constructive knowledge and permits trial judges more room for a finding in Claimants favour, which brings with it increased uncertainty. Perhaps in the longer run the Supreme Court may provide more definitive guidance though for the moment we should expect Claimants to use the decision in Whiston on all limitation cases fought to trial. Ben Ling, Associate, Weightmans LLP

17 Disease January 2011 Limitation success in asbestos claim In the matter of Paul Keyworth (executor of estate of Norma Taylor deceased) v (1) Bass Hotels Investments Ltd and (2) Coors North Ltd, Lincoln County Court. Limitation Hearing 12 November 2010 Recorder Kushner Two Claim Forms were issued in this matter - against the First Defendants in November 2008 and against the second Defendants on the 19 October It was alleged that in his work as a plumber the deceased was exposed to asbestos whilst carrying out general plumbing duties at the Towergate Brewery in Grimsby and at various hotels and public houses owned by the brewery between the late 1940s and The Second defendant was the original employer, with the First Defendant taking over in the final years, albeit not adopting liabilities. The brewery had been demolished by the 1970s and no employment documentation existed. The Deceased died of non asbestos illness on the 25 November Thompsons were instructed in January 2006 shortly after the Personal Representative (Claimant) had discovered a half completed union application form for legal representation amongst the Deceased s papers. The Claimant sought a date of knowledge for the purposes of S 11 and S 14 of the Limitation Act 1980 as not before November 2004 when the deceased was advised that a recent CT scan had revealed that he was suffering from asbestosis. Prior to this between about 1983 and 1985, asbestos had previously been suspected such that the Deceased had pursued a claim with the Pneumoconiosis Medical Panel in 1983 but this was turned down in approximately 1986 due to doubts as to both exposure and diagnosis. At the preliminary hearing, the Claimant conceded that the Claim Form issued in October 2009 against the Second Defendant was already a year out of time, being more than three years after death, whilst the Claim Form against the First Defendant was just within that 3 year period. Hence the claim against the Second Defendant could only proceed with Section 33 discretion, and both Defendants sought to place a date of knowledge in the 1980s when the state claim was being pursued. Dr G S Basran first reported for the claimant on the 4 January 2009 some three years after the deceased had died. No Post-Mortem examination had been carried out. Dr Basran concluded that in order for him to be satisfied of a diagnosis of asbestosis it would be necessary to obtain an engineers report to demonstrate that the Claimant had heavy exposure i.e. cumulative exposure greater than 25 fibres/ml-year. In the absence of such high exposure Dr Basran preferred a diagnosis of cryptogenic fibrosing alveolitis interstitial pneumonitis. The Claimant s case at preliminary hearing was that the deceased did not have sufficient knowledge of his asbestos related condition during the 1980s because it was no more than a consideration put to him by his then treating consultant, and that any suspicion he had at that time was subsequently overridden by the Panel s refusal to award benefit. It was submitted that the deceased then re learnt of his asbestosis following the 2004 scan.

18 The Recorder found a date of knowledge of the Deceased in She based this upon the medical records but was also particularly impressed with the Claimant (the Deceased s step son) as a witness who had described his father referring to his regular asbestos check ups over the 20 years prior to his death. She considered that the treating consultant had explained very clearly to the deceased why he considered that the Pneumoconiosis Panel had been wrong to turn down his claim for benefit. She did not accept that the refusal of the claim for state benefit by the Panel affected the Deceased s knowledge essentially, he could not unknow what he actually knew. In so far as Section 33 discretion was concerned, the Recorder refused to exercise this in the Claimant s favour for a number of reasons, not least the lack of evidence now available to the parties to properly investigate the claim. None of the parties could produce witnesses as to exposure. No documentation existed. The brewery had long since been demolished, and importantly the deceased himself could not be cross examined. It was possible that he may have pursued a civil claim alongside his state benefit application at the time. She added that had she found instead a date of knowledge of November 2004 when the Deceased had undergone the scan such would still have taken the claim as out of time against the Second Defendant, and for which she would again have refused a S33 discretion. It is rare for an asbestos related claim to fail on limitation. Unlike NIHL and HAVS, knowledge is dependant upon clear evidence of the Claimant being notified of the likely diagnosis rather than development of symptoms. Where there is then delay, given that in most asbestos cases there will be an absence of documentation, S33 has traditionally been a difficult hurdle to overcome for Defendants. Nonetheless it remains worth pursuing where, as in this case, there are multifactorial weaknesses in the Claimant s case overall. The case serves as a reminder that once a diagnosis has been communicated to the Claimant, subsequent doubts over the diagnosis do not stop the limitation clock from running. Deborah Edwards, Associate, Weightmans LLP, Leicester

19 Disease January 2011 Scrapping of the default retirement age On 27 July 2010 the Government published its Phasing out of the Default Retirement Age consultation paper in advance of the proposed abolition of the Default Retirement Age (DRA) by October Naturally, these potential changes will cause litigators to ask whether claimants will now suggest that they will work beyond age 65 with the consequent increase in future loss claims. When considering this question it is important to bear in mind that the DRA is a relatively recent invention, introduced in 2006 within the Employment Equality (Age) Regulations The DRA is in effect a statutory exemption to age discrimination in that, provided the correct procedure is followed an employer can dismiss an employee at age 65 without that dismissal being deemed to be unfair or to constitute age discrimination. The procedure is simple. The employer must give the employee at least 6 months notice of retirement and advise him that he has a right to request that he be allowed to work longer, which request the employer has to consider. Despite that obligation to consider any request the employer is entitled to refuse the request and need provide no reason for so doing. Once DRA is abolished then unless employers can justify Contractual Retirement Ages (CRA) on the basis of business necessity (which has occurred in the context of partners in a law firm) then one of the remaining fair reasons for dismissal will have to be used such as capacity (perhaps via formal performance management), redundancy etc. Prior to the advent of the DRA the parties and the Court would normally accept as the default position that a claimant would work until State Pension Age (SPA), presumably upon the basis that receipt of the same would be the first opportunity for a claimant to afford to retire. The data obtained by the Department for Work and Pensions (DWP) and Department for Business Innovation and Skills (BIS) for this review is interesting. When they asked men and women aged under 50, at what age they thought they would retire the average age was 63 for men and 62 for women. The latest data (from June 2009) suggests that the actual average retirement age for women was then 62.4 years and 64.5 years for men. The same surveys suggested that 35% of employees would wish to work beyond age 65, but that figure increased to 56% if flexible working beyond age 65 was available. The main reason cited by those with a desire to work beyond age 65 was financial necessity. It is important to understand why the Government is considering the abolition of the DRA. When the DRA was introduced in 2006 a review was scheduled in 2011 in any event due to the changing demographic and economic climate. From a population point of view life expectancy is increasing as is the average age until which an individual stays healthy and fit and, as a result average retirement ages have increased. The number of SPA+ people in employment has increased from 8-12% over the last decade, as compared to the 1990s when the rate was stable at about 7.5%. So as a nation we are generally living longer and working longer. As a result of these demographic changes there have been proposals in place for some time to increase SPA such that SPA for men and women will be harmonised at age 65 between , with SPA increasing to age 66 around 2024, age 67 by around 2034 and age 68 by The current budget deficit is likely to mean that those SPA increases will be accelerated.

20 The findings of the current research suggest that the introduction of the DRA had little effect on changing the retirement age practises of employers. Few introduced a DRA where one was not already in operation (contractually) and few got rid of a compulsory retirement age where there was one. The research suggests that DRA currently applies to only around 45% of employees. So far as claims to future loss of earnings are concerned the evidential value of the DRA in restricting such claims is open to question. As above, it only applies to 45% of employees in any event. Further, an employee can request that they work beyond DRA and the DWP found that 80% of such requests were granted (although even the DWP questioned the reliance that should be placed upon that figure). Further, it has remained the position throughout that an employer can have a contractual (compulsory) retirement age (CRA) of 65 or below where the same is objectively justified. Certainly, a Court will probably readily accept that a person will work up until his or her SPA, which in respect of women will represent a significant increase in future loss multipliers for those due to retire between 2010 and It is likely to be very difficult to establish retirement before SPA unless an individual has independent means or alternative pension arrangement which might kick in earlier. An acceptance that an individual will retire no earlier than SPA is likely to become the norm. If that is the general presumption then it may well assist Defendants in those cases where the Claimant alleges that he would have worked beyond SPA. The burden is on the Claimant to establish that this is likely to be the case and Claimant s should be pressed to explain why they wish to work beyond SPA and that the work that they have identified is likely to be available to them. The increasingly common suggestion in a schedule of loss that a claimant would have worked until aged 70 (or longer) but for the Defendant s breach should be thoroughly tested. In conclusion, future loss multipliers for earnings are likely to increase as the age at which an individual can take their state pension increases. It will be relatively easy for a Claimant to establish that they intended to work until SPA and effectively the burden of proof may fall on the Defendant to prove otherwise. Equally, if a Claimant seeks to prove that he would have worked beyond SPA the burden will remain upon him to prove it. It is very likely that the increase in SPA will lead to enhanced future loss of earnings/ Ogden 6 handicap type claims and this will represent a double whammy to insurers if (as seems likely) the MOJ buckles to pressure from APIL and decreases the statutory return rate on safe investments from the current 2.5% pa. Paul Debney, Partner, Weightmans LLP, Leicester

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