Occupational disease and the Pre-action Protocol for Low Value Personal Injury (Employers Liability and Public Liability) claims

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1 Occupational disease and the Pre-action Protocol for Low Value Personal Injury (Employers Liability and Public Liability) claims Simon Morrow Partner, BLM t: e: July 2013

2 It has now been confirmed that both the extended RTA scheme and the new Low Value Personal Injury (Employers Liability and Public Liability) scheme will come into force on 31 July The imminence of this date is particularly significant for disease claims, as whilst the new schemes only apply to accidents occurring after 31 July, disease claims fall within the scheme provided no letter of claim has been sent before 31 July. Therefore, all new disease claims from 31 July onwards potentially fall within the new portal, although of course claims for over 25,000, multi-defendant cases and public liability disease claims are all presently excluded. The prospects of dealing with occupational disease claims within this extended scheme were discussed amongst various individuals from the insurance, broking and loss adjusting industries, as well as certain policyholders, during a seminar on the impact of the Jackson reforms in disease held by Berrymans Lace Mawer in Manchester on 19 March and at our annual occupational disease conference in London on 25 April Only 2% of respondents at the London event considered that it would be possible to deal with Noise-induced Hearing Loss (NIHL) claims within the envisaged framework of the extended scheme. The specific concerns apparently related to the extent of the information provided within the claim notification form (CNF) and the limited time (30 business days) permitted to provide an admission covering exposure, breach of duty, limitation and some loss in order to maintain the claim within the scheme. The CNF The specimen CNF for low value EL disease claims (ELD1) (see document 2) does not adequately address the bulk of the concerns expressed by delegates at the BLM events. This is clearly illustrated by reference to the wish list of desirable information compiled during these BLM events (see document 3). In the CNF, the claimant, in addition to providing his own personal details, his representative s contact details and the defendant s contact details, is also asked to state the following: his occupation. the period(s) of employment. the period(s) of exposure. the type of disease suffered. a further brief description of the disease suffered. whether he/she had to take time off work as a result of the disease. whether he/she is still off work and if not, how many days in total he/she was off. whether he/she sought any medical attention and if so, when he/she first did so. whether he/she attended hospital as a result of the disease and if so, details of the hospital attended, whether he/she was detained overnight and if so, how many days he/she was detained. where the exposure took place. in what circumstances the exposure took place. whether the exposure was reported and if so, when and to whom it was reported. why he/she believes the defendant is to blame for the disease. In addition to this, there is a brief section to be completed on rehabilitation, a longer section in respect of the claimant s funding arrangements and a penultimate section simply headed Other Relevant Information. The final section is the statement of truth. Sufficient detail? Opposite the question asked What type of disease was suffered?, the claimant is asked to tick one of five alternative boxes marked Respiratory, Deafness, Vibration injury, Dermatitis and Disease and the PAP for low value personal injury EL and PL claims_sgm,

3 Other respectively. This probably reflects the MoJ s expectation as to the types of disease claim to be dealt with within the scheme. Of the four types listed, deafness and vibration injury are almost inevitably long-tail injury, dermatitis is normally a short-tail injury and respiratory is capable of being either, depending upon the nature of exposure and the condition suffered. Readers will no doubt have noted that the types of disease referred to above, as with most diseases, can have alternative non-occupational causes. It is therefore of some concern that the retention of the claim within the scheme requires an admission of some loss without any independent verification. However, the defendant or his insurers ( the compensators under the scheme) do have the benefit of being able to withdraw any admission of causation upon provision by the claimant of medical evidence in stage 2 of the scheme. However, there is a significant concern to compensators as regards dealing with breach of duty under the scheme. In section D Exposure location and description, the claimant is asked to indicate the circumstances in which exposure took place. In reply, the CNF states eg, excessive use of keyboard, chemicals/irritant exposure, use of hand grinder, exposure to loud machinery. Whilst there is a blank space beneath this question sufficient for a reasonably detailed account of the circumstances to be provided, a claimant (particularly a self-represented litigant) will certainly be given the impression from the wording of the form that only a very brief, basic description is required. The situation is clearly unsatisfactory for a compensator. For instance, can a reasonably informed decision be made as to exposure in an asthma case when a claimant is seemingly not required to provide any details of the substances to which he/she claims to have been exposed, for how long, etc? The same applies in relation to an NIHL case. Factories usually have noisy and quieter areas. All areas may contain machines, some of which are louder than others. How can a compensator be reasonably expected to reach a decision on a claim based upon simply a description exposure to loud machinery? The claimant is of course required to state why he or she believes that the defendant was to blame for the disease. However, it is easy to anticipate that the responses to this question are going to be brief given that a claimant is entitled only to a fixed fee of 300 under stage 1 of the scheme. BLM suspects that one can expect to see allegations as basic as failure to provide a respirator or failing to provide hearing protection and such like. The other issue, which is inevitably of more concern in relation to long-tail disease claims, is the lack of information to enable a compensator to reach a satisfactory decision as regards limitation. For instance, there may be long latency periods in NIHL claims but the CNF makes no requirements of a claim to provide information as to crucial matters in respect of limitation, for instance when he first developed relevant symptoms, when he first considered these to be related to his occupation, what caused him to reach this conclusion and so on. It does seem as if the scheme opens the door for the submission of stale claims. The way forward? Of course, it is not suggested that no attempt should be made to deal with disease cases within the scheme. There are for instance NIHL and Hand-arm Vibration Syndrome claims arising from particular locations, employers, processes or industries where it is known exposure and breach will inevitably be established and, provided defendants can satisfy themselves (or are prepared to take the plunge) particularly as regards limitation, considerable costs savings can be made in dealing with the claim within the portal. Nevertheless, whilst a process enabling low value occupational disease claims, particularly NIHL claims, to be dealt with by compensators at a more proportionate cost than at present is clearly desired (86% of respondents at our London conference indicated that they thought disease claims should be dealt with within a portal, subject to appropriate modifications and more time being allowed), it does appear as if the portal extension in its present form is not the answer. Pressure should be maintained on government to come up with either changes to this scheme to make it fit for purpose or to provide a more appropriate vehicle to better ensure that Disease and the PAP for low value personal injury EL and PL claims_sgm,

4 deserving claimants receive the compensation that they are entitled to more quickly at proportionate cost, but that there is also no opportunity for fraudsters and the like to recover what they are not entitled to. Berrymans Lace Mawer LLP 2013 Disclaimer This document does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to clients of Berrymans Lace Mawer. Specialist legal advice should always be sought in any particular case. Information is correct at the time of release. O:\PUBLICATIONS\7 BLM PUBLICATIONS\E-BULLETINS AND STATS\DISEASE REVIEW\JULY 2013\ADDITIONAL ITEM FROM SIMON MORROW\THE EXTENSION OF THE MOJ LOW VALUE PERSONAL INJURY SCHEME SGM DOCX (2) HOUSE.DOCX Disease and the PAP for low value personal injury EL and PL claims_sgm,

5 This is a formal claim against you, which must be acknowledged by immediately and passed to your insurer. Claim notification form (ELD1) Low value personal injury claims in employers liability - disease ( 1,000-25,000) Before filling in this form you are encouraged to seek independent legal advice. Date sent / / Items marked with ( *) are optional and the claimant must make a reasonable attempt to complete those boxes. All other boxes on the form are mandatory and must be completed before being sent. What is the value of your claim? up to 10,000 up to 25,000 Please tick here if you are not legally represented? If you are not legally represented please put your details in the claimant s representative section. Name Claimant s representative - contact details Defendant s name Defendant s details Address Defendant s address* Postcode Contact name Postcode Policy number reference (If not known insert not known) Telephone number Insurer/Compensator name (if known) address Reference number ELD1 Claim notification form (04.13)

6 Section A Claimant s details Mr. Mrs. Ms. Miss Other Claimant s name Date of birth / / Is this a child claim? Yes No National Insurance number Address If the claimant does not have a National Insurance number, please explain why Postcode Occupation Period(s) of exposure (Please be as accurate as possible) Period(s) of employment (Please be as accurate as possible) Section B Disease and medical details 1.1 What type of disease was suffered? Respiratory Deafness Vibration injury Dermatitis 1.2 Please provide a further brief description of the disease suffered Other 1.3 Has the claimant had to take any time off work as a result of the disease? Yes No 1.4 Is the claimant still off work? Yes No If No, how many days in total was the claimant off work? 1.5 Has the claimant sought any medical attention? Yes No If Yes, on what date did they first do so? / / 2 this section continues over the page

7 1.6 Did the claimant attend hospital as a result of the disease? If Yes, please provide details of the hospital(s) attended Yes No 1.7 If hospital was attended, was the claimant detained overnight? If Yes, how many days were they detained? Yes No Section C Rehabilitation 2.1 Has a medical professional recommended the claimant should undertake any rehabilitation? Yes No Medical professional not seen If Yes, please provide brief details of the rehabilitation treatment recommended and any treatment provided including name of provider 2.2 Are you aware of any rehabilitation needs that the claimant has arising out of the disease suffered? If Yes, please provide full details Yes No Section D Exposure location and description 3.1 Where did the exposure take place? 3

8 3.2 In what circumstances did the exposure take place? e.g. excessive use of a keyboard, chemical/irritant exposure, use of hand grinder, exposure to loud machinery 3.3 Was the exposure reported? Yes No Not known If Yes, please confirm the date of the report and to whom it was reported (if known) Section E Liability 4.1 Why does the claimant believe that the defendant was to blame for the disease? 4

9 Section F Funding 5.1 Has the claimant undertaken a funding arrangement within the meaning of CPR rule 43.2(1)(k) of which they are required to give notice to the defendant? If Yes, please tick the following boxes that apply: Yes No The claimant has entered into a conditional fee agreement in relation to this claim, which provides for a success fee within the meaning of section 58(2) of the Courts and Legal Services Act 1990 Date conditional fee arrangement was entered into / / The claimant has taken out an insurance policy to which section 29 of the Access to Justice Act 1999 applies. Name of insurance company Address of insurance company Policy number Policy date / / Level of cover Are the insurance premiums staged? Yes No If Yes, at which point is an increased premium payable? The claimant has an agreement with a membership organisation to meet their legal costs. Name of organisation Date of agreement / / Other, please give details 5

10 Section G Other relevant information 6

11 Section H Statement of truth Your personal information will only be disclosed to third parties, where we are obliged or permitted by law to do so. This includes use for the purpose of claims administration as well as disclosure to third-party managed databases used to help prevent fraud, and to regulatory bodies for the purposes of monitoring and/or enforcing our compliance with any regulatory rules/codes. Where the claimant is a child the signature below will be by the child s parent or guardian or by the legal representative authorised by them. I am the claimant s legal representative. The claimant believes that the facts stated in this claim form are true. I am duly authorised by the claimant to sign this statement. I am the claimant. I believe that the facts stated in this claim form are true. Signed Date / / Position or office held (if signed on behalf of firm or company) I have retained a signed copy of this form including the statement of truth. 7

12 Compensator response Section A Liability Please select the relevant statement Claim notification form (ELD1) Low value personal injury claims in employers liability - disease ( 1,000-25,000) Defendant admits: Exposure occured Caused by the defendant s breach of duty Caused some loss to the claimant, the nature and extent of which is not admitted The defendant has no accrued defence to the claim under the Limitation Act 1980 The above are admitted The defendant makes the above admission but the claim will exit the process due to contributory negligence If the defendant does not admit liability please provide reasons below Section B Services provided by the compensator - Rehabilitation Is the compensator prepared to provide rehabilitation? Yes No Has the compensator provided rehabilitation? Yes No If Yes, please provide full details below

13 Section C Response information Date of notification / / Date of response to notification / / Defendant s compensator details Address Contact name Telephone number address Reference number

14 Wish list for disease claims The claims notification form (or what we are going to get for Stage 1 FRC of 300) Simon Morrow Partner, BLM t: e: Nigel Lock Partner, BLM t: e: July 2013

15 Required in CNF ELDI Form? Claimant s name, address, date of birth, national insurance number, clock/works number. Yes Part No Dates of employment, names of all employers receiving/ clarification re. other defendants. Addresses of all sites where the claimant alleges he/she worked and was negligently exposed. Hours of alleged exposure per day and week. Name of line manager throughout alleged exposure period. Names of colleagues working with the claimant at the time of the alleged exposure. Details of all training given with dates and details relevant to the disease alleged, with the names of anybody providing relevant training or advice. A declaration of whether or not such training was adhered to, and if not, why not. Details of all PPE provided or available and from what dates, to include manufacturer, model, and generic type where known. Declaration of whether or not such PPE was worn constantly, and if not, in what circumstances was or wasn t it worn. Details of all alleged exposure with each party receiving the CNF and other alleged exposing employers, to include makes and models of any relevant sources of exposure, processes or materials, to incorporate distances from the source, and an explanation of how exposure or processes are alleged to have caused the disease. Union membership details. Date the claimant first experienced symptoms, the level of symptoms at that time, and how and when the symptoms have Wish list for the disease claims (notification form)_sgm_njl_0713 1

16 progressed since that time. What the claimant first attributed those symptoms to. When the claimant first considered the symptoms may be caused or contributed to by employing conditions. What caused the claimant to consider such a link. When the claimant first contacted the claims management company or legal or other advisor about the possible cause of symptoms. When the claimant first contacted a GP or other medical practitioner regarding symptoms complained of. What the claimant was told by that practitioner about the symptoms and potential causes. What affect the symptoms had on the claimant s day-to-day life when first noticed, and what affect they have had since that time and from what dates. Details of any claims made for the same disease in the past and any compensation received from any other party in respect of the disease claimed for. Funding details so it is clear if the Retainer was entered into before or after 1 April Ideally we would also like to see the following documentation submitted with the CNF: Form of photo identification. Inland Revenue schedule of employment. ELTO search result if appropriate. GP records and records from any hospital where the claimant received treatment relevant to the alleged disease (the D and I PAP makes it clear that these documents should be disclosed but it is noted that the portal envisages that a medical expert will Wish list for the disease claims (notification form)_sgm_njl_0713 2

17 not need to review records for a case with a value up to 10,000). Audiogram on which the claimant relies in NIHL cases. Medical report in all other cases. Any other medical test results relevant to the disease the claimant alleges. Form of authority for release of the personnel and occupational health files. HMRC schedule or other evidence of employment. Witness statement dealing with limitation (NIHL cases) Berrymans Lace Mawer LLP 2013 Disclaimer This document does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to clients of Berrymans Lace Mawer. Specialist legal advice should always be sought in any particular case. Information is correct at the time of release v1 Wish list for the disease claims (notification form)_sgm_njl_0713 3

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