Welcome to the October edition of Disease-i; the publication for busy disease practitioners!

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1 Welcome to the October edition of Disease-i; the publication for busy disease practitioners! We always enjoy hearing from our readers, so if you have any suggestions for topics or experiences to share, please us at The market place Exploring Weightmans Disease conference 2014, mesothelioma claims, NIHL, chemical exposure and disease claims in the portal. Case law update Covering Asbestos: Occupiers liability and 1931 Regulations - MacDonald v National Grid [2014] UKSC 53, Mesothelioma: liability exposure not likely to be injurious - McCarthy v Marks & Spencer [2014] EWHC 3183 (QB), Atkinson v Secretary of State for the Department of Energy and Climate Change [2014] EWHC 3773 (QB), Asbestos related lung cancer: contributory negligence smoking -Shirley Blackmore v The Department for Communities and Local Government CC (HHJ Cotter QC) (2014) Exeter County Court, Limitation: constructive knowledge - Platt v BRB (Residuary) Ltd [2014] EWCA Civ 1401, Quantum: reduced life expectancy Ogden Table 28 v Table ½ - Reaney v University Hospital of North Staffordshire NHS Trust. On the horizon Looking at Aluminium exposure linked to Alzheimer s disease, mesothelioma research, new diseases for the age of social media: text neck and Blackberry thumb, impact of diesel fumes on lung and heart disease and IEG v Zurich.

2 The market place Weightmans Disease conference 2014 Wednesday 5 November 2014 saw Weightmans host the annual Disease conference at the Burlington Hotel in Birmingham. Over 100 delegates were in attendance with representatives from major insurers, brokers, the public sector and companies. In addition to talks from representatives of Weightmans, there were presentations from Paul Corver, Chairman of the Insurance and Reinsurance Legacy Association (IRLA) and James Dalton, Assistant Director of the Association of British Insurers (ABI). Paul Corver highlighted the challenges currently faced by the legacy run-off market, which is worth 49billion in the UK and Ireland. Retaining experience of an aging workforce and difficulties in recruiting the next (and possibly last) generation of claims handlers topped his list. Key points from James Dalton were The case for reform in the handling of mesothelioma claims ahead of the expected peak of cases in The lower than expected volume of claims being submitted to the Mesothelioma Scheme. The increase in noise induced hearing loss claims, describing this as the unforeseen consequence of the success in curtailing RTA whiplash claims. The lack of proportionality between average damages and average claimant s costs in NIHL cases. A call for fixed recoverable costs on NIHL claims. The theme arising from the conference was the changing landscape for disease claims over the last 12 months with NIHL claims dominating in terms of claim volumes. Katherine Bell discussed tactics and common behaviours seen across the industry. The increase in low level noise induced hearing loss of less than 5dB, particularly claims with losses at 4Khz but no losses at 1,2 and 3Khz, and whether such claims should be compensated (85% of delegates considered they should not) was identified as a key issue. Fraud in occupational disease claims remains a major issue. 96% of delegates considered the number of fraudulent NIHL claims were increasing. Paul Debney demonstrated the efficacy of detection and specialist handling methods by reference to Weightmans results highlighting the numbers of claims withdrawn or discontinued. Mesothelioma claims On 8 December the Ministry of Justice announced that there will be a further review of the likely effects of implementing the LASPO reforms to remove the recoverability of success fees and ATE premiums in mesothelioma claims. However no details of the format or timetable for the review have yet been announced. Changes are also to be made to help streamline the compensation process for mesothelioma sufferers. These changes will shorten the time taken to obtain medical records and facilitate the provision of employment histories of deceased victims by HMRC to dependants without court order. These measures to stem the delay and cost occasioned currently in obtaining this basic evidence are to be welcomed. The Diffuse Mesothelioma Payment Scheme (Levy) Regulations 2014 (SI 2014/2904) came into force on 28 November The regulations require active insurers (as defined in the Mesothelioma Act 2014) to pay a share of the total liability of an annual levy based on each active insurer's relative market share, for the purpose of meeting the costs of the diffuse mesothelioma payment scheme.

3 NIHL More examples of increasing deafness claims in contrast with reduction in motor claims post LASPO Both the Electrical Contractors Insurance Company (ECIC) and Department of Energy & Climate Change (DECC) have recently reported increases in NIHL claims. The ECIC reported a staggering rise in the number of deafness cases and over a period of just over three years the DECC has received 11,230 claims. The DECC said that in 2013/14 it paid out just over 3m in respect of 1,393 miner s NIHL claims as compared to 2.2m paid out on 953 claims in 2012/13, and 827,065 on 366 claims in 2011/12. A reminder that compliance with Control of Noise at Work Regulations is essential to stem the flow of future claims A firm specialising in foam and feather furnishings has been fined after failing to protect its workforce from excessive noise levels made by production machinery. The company had not made a suitable assessment of the noise levels in the factory between 2006 and Noise levels had become excessive from 2008 when a third machine was added to the feather pillow production process, reaching between two and three times higher than the maximum allowed; and from 2011 in the foam fabrication process when two glue-spraying booths were located side by side. Health surveillance and hearing protection were not introduced until Insurance Bill/ Third Parties (Rights against Insurers) Act 2010 The Insurance Bill is a Law Commission bill which with reform commercial insurance law. However clause 17 will make the necessary amendments to the Third Parties (Rights against Insurers) Act 2010 in respect of the circumstances when it will not be necessary to restore a dissolved company to the Companies Register before proceedings can be commenced. The 2010 Act can then be brought into force. The Insurance Bill is now progressing through the House of Lords and has reached Committee stage. The Special Public Bill Committee, chaired by Lord Woolf, started taking oral evidence on 2 December and will be considering any amendments to the bill on 15 December. If the progress is maintained it looks as if the Bill will be enacted before the end of this parliament and therefore the 2010 Act will also be brought into force. Scotland consults on e cigs and strengthening tobacco control The Scottish government has issued a consultation on a range of potential measures for the sale and use of electronic cigarettes and strengthening tobacco control in Scotland. The government seeks to ensure that non-smokers, particularly children and young people, are protected from harm caused by passive smoking. The consultation includes consideration of a proposal to ban smoking in cars carrying children under the age of 18. Chemical exposure The HSE has published a report on research to determine the incidence, prevalence and relative risk of ill health due to chemical exposure in the chemical and downstream oil industry sector (RR1013). Occupational asthma: the annual estimated rate of occupational asthma for the manufacture of chemicals and chemical products division of the chemical sector was similar to the estimated rate for the manufacturing sector, and higher than the estimated rate for all industries combined. Occupational dermatitis: the annual estimated rate of occupational dermatitis for the manufacture of chemicals and chemical products division of the chemical sector was higher than the estimated rate for both the manufacturing sector and all industries combined. Occupational cancer: certain cancers were identified that had significant occupational associations including bladder, breast, larynx, leukaemia, liver, lung, meningeal, mesothelioma, rectal, sino-nasal, soft tissue sarcoma and stomach cancers. Other conditions included uncommon lung disease (e.g. caused by diacetyl exposure, opiates, and phthalates), chemical induced hearing loss, neuro-developmental issues, chronic toxic encephalopathy and reproductive health issues.

4 Disease claims in the Portal By the end of October 2014 a total of 16,395 CNFs had been submitted as disease claims into the Claims Portal. The total for the 12 months to the end of October was 15,273. 1,658 CNFs were submitted in September and 1,619 in October. The highest monthly number of CNFs submitted was in July (1734). This represents only a small percentage of the low value disease claims made over the same period as the Portal excludes multi defendant cases. The number of claims leaving the Portal is now running at just over 77% (12,643 to the end of October 2014). This compares to approximately 60% EL accident claims that leave the process and just over 51% RTA claims. Claims settled at Stage 2 total 570 claims (3.48%). Whilst the statistics are still immature taking into account the disease Portal commenced accepting claims on 31/7/13 nearly 7% of EL claims (which were only accepted into the Portal at the same time) have settled. General damages averaged 4,804 in October and the average monthly general damages has never exceeded 5665 which indicates the majority of the claims are low value notwithstanding the Portal process applies to disease cases worth up to 25,000. Case law update Asbestos: Occupiers liability and 1931 Regulations MacDonald v National Grid [2014] UKSC 53 The Supreme Court has held that the application of the Asbestos Industry Regulations 1931 was not limited to factories manufacturing asbestos products, but included any factory or workshop where the regulated processes took place. The mixing of asbestos to make lagging in any factory or workshop engaged the regulations. It was not necessary for the claimant to have to be employed in the actual process of mixing. The legislation was designed to protect employees who might be affected by the process. Accordingly the claimant s claim succeeded in circumstances where the deceased periodically spent an hour in a power station and during that time he talked to power station workers whilst lagging activity was ongoing nearby. Claimants solicitors may rely upon the 1931 Regulations in circumstances where they may well not apply. It is necessary to check the regulations and the circumstances giving rise to the exposure to asbestos to determine whether they fall within the scope of the regulations. For example exposure may have occurred on premises which are neither a factory nor a workshop subject to the Regulations. Mesothelioma: liability exposure not likely to be injurious McCarthy v Marks & Spencer [2014] EWHC 3183 (QB) Mr. Heward (the deceased) was exposed to asbestos whilst working in proximity to contractors fitting asbestolux ceiling tiles in 1967 and whilst carrying out inspections and surveys at the defendant s stores from 1967 to The defendant as owner and occupier of stores was not liable in respect of the deceased s contraction of mesothelioma in circumstances where the level of asbestos exposure was below the guideline levels in Technical Data Note 13 (March 1970) and HSE Guidance Note EH 10 (1976) in force at the time of exposure. The defendant s duty to reduce exposure to the minimum that is reasonably practicable, judged by the standards of the time, did not extend to providing respiratory protective equipment to be used whilst the deceased was carrying out inspections. The defendant had made a claim for contribution or indemnity against the deceased s employer. The judge considered that the employers should have provided protective equipment to their employees including the deceased prior to 1983 (although not as early as 1967) taking into account that their business included repair of asbestos containing items. As

5 the main action was dismissed the claim for contribution failed but the judge concluded that if the main action had succeeded he would have apportioned liability 50/50 between occupier and employer. Atkinson v Secretary of State for the Department of Energy and Climate Change [2014] EWHC 3773 (QB) Mr. Atkinson (the deceased) had been employed as a colliery worker in the 1970s and 1980s and it was alleged that he had been exposed to asbestos while inspecting conveyor belts at a colliery between 1979 and The alleged source of asbestos was from the friction brakes used to control the belts. The brake pads on the friction brakes contained up to 50% chrysotile asbestos. The friction brakes were phased out and replaced with an anti-rollback system which did not contain asbestos over a period in the early 1980s. The brakes were protected by guards and did not fail regularly. The deceased inspected the conveyor belts but did not carry out repairs or maintenance on the equipment. The pathologist identified very occasional asbestos bodies on post mortem which he confirmed was consistent with asbestos exposure. The only relevant statutory duty was under section 74 of the Mines and Quarries Act 1954 which required the defendant minimise any dust given off that was likely to be injurious. The claim was dismissed. The judge found there were errors and inconsistencies in the deceased s evidence and other matters which undermined his evidence regarding the nature and extent of asbestos exposure. However he found that friction brakes with asbestos pads were in use from 1979 until 1982 or While the actual level of exposure to asbestos dust was never measured, there was no evidence of the release of any, let alone significant, amounts of brakepad dust from maintenance and repair activity. The judge concluded that the deceased had been very occasionally or intermittently exposed to asbestos dust, but the level of exposure was considerably lower than he had claimed and not at a level that was considered likely to be injurious over the period 1979 to Both these judgments are further examples of successful defences in cases involving low level asbestos exposure after 1965 and extending into the 1980s where the defendants were able to show exposure did not exceed recognised industry standards and recommended practices of the day. Foreseeability of the loss will be judged by this. Asbestos related lung cancer: contributory negligence smoking Shirley Blackmore v The Department for Communities and Local Government CC (HHJ Cotter QC) (2014) Exeter County Court The deceased, a smoker since the age of 14, was exposed to asbestos dust and fibre when stripping asbestos lagging in the Devonport Dockyard during the course of employment. Primary liability was not in dispute and the issue between the parties was contributory negligence. Expert evidence was called from two respiratory physicians with regard to the relative contribution to death caused by tobacco and asbestos exposure. The judge held that the relative risk from the two causes should be taken into account but he could not accept the defendant s mathematical model (which placed the relative risk from smoking at 88%) as a precise assessment because it did not take into account genetic and other factors that were relevant to development of lung cancer and the uncertain state of knowledge of the biological process of cancers. He concluded that the risk from smoking was probably between double and treble the risk from asbestos. However the concept of responsibility under section 1(1) Law Reform (Contributory Negligence) Act 1945 is not limited to the extent a party contributes to causation, but must also take into account relative blameworthiness. It will usually be wrong to give equal weight to a breach of statutory duty and the claimant s own failure on the other. Although the risk from smoking was probably between double and treble the risk from asbestos, having considered all relevant features, the judge assessed the degree of contributory negligence at 30%. The judge followed Badger v Ministry of Defence 2005] EWHC 2941 in his approach to the case. In Badger, the risk from smoking was double that from asbestos and the claimant was repeatedly advised to stop smoking. The reduction for

6 contributory negligence was 20%. In this case, the relative risk from smoking was much higher on the facts and this appears to have persuaded the judge to make the greater deduction of 30%. This case will be useful for negotiating arguments as to the extent of contributory negligence in asbestos related lung cancer cases. Limitation: constructive knowledge Platt v BRB (Residuary) Ltd [2014] EWCA Civ 1401 The claimant alleged he had sustained noise induced hearing loss arising for exposure to excessive noise during the course of employment with the defendant. The claimant saw an ENT consultant in 1997 following a GP referral where noise exposure was discussed, yet he did not enquire as to the cause of his hearing loss, neither was he told by the consultant that his hearing loss was wholly or in part due to past noise exposure. The Court of Appeal held that the claim was statute barred. It was reasonable to expect a person who was suffering from NIHL to ask his specialist whether the history of noise exposure which they had discussed had caused or contributed to his symptoms. The claimant was fixed with knowledge even though he was not told at that time that his hearing loss was associated with or caused by industrial noise exposure. NIHL claims remain comfortably the most prevalent of disease/condition claims intimated across the market. This judgment reinforces the previous authority of Johnson v MOD [2012], that a reasonable claimant ought to be curious as to the cause of his hearing loss and that by failing to enquire he will be fixed with constructive knowledge. Quantum: reduced life expectancy Ogden Table 28 v Table 1/2 Reaney v University Hospital of North Staffordshire NHS Trust The court considered whether in a case where the claimant s life expectancy was reduced the multiplier should be calculated from Ogden Table 28 or Table 2 (the claimant was female). It was the claimant s case that there was in effect a finding in respect of the claimant s predicted life expectancy and therefore Table 28 should be applied. It was the defendant s case that the finding was that the claimant s life expectation had been reduced but was still subject to other contingencies associated with mortality and therefore Table 2 applied. The claimant s argument and table 28 prevailed. This issue frequently arises in asbestos disease cases where death is accelerated. The principle remains that there should be no double counting for mortality. Therefore where mortality risks as a whole have been taken into account in assessing life expectancy in the absence of the fatal disease Table 28 is appropriate. Conversely where no allowance has been made for mortality Tables 1 and 2 will apply. On the horizon Aluminium exposure linked to Alzheimer s disease Christopher Exley Professor in Bioinorganic Chemistry at Keele University has published a report which considers exposure to aluminium in everyday life and its link to diseases. At some point in time the accumulation of aluminium in the brain will achieve a toxic threshold and a specific neurone or area of the brain will stop coping with the presence of aluminium and will start reacting to its presence. If the same neurone or brain tissue is also suffering other insults, or another on-going degenerative condition, then the additional response to aluminium will exacerbate these effects. In this way aluminium may cause a particular condition to be more aggressive and perhaps to have an earlier onset - such occurrences have already been shown in Alzheimer s disease related to environmental and occupational exposure to aluminium.

7 Mesothelioma research A report from the 12th International Mesothelioma Interest Group (imig) Conference on the preliminary clinical results of a drug treatment which targets the killing of cancer stem cells in patients with resectable pleural mesothelioma. New diseases for the age of social media: Text neck and Blackberry thumb Doctors in the USA say they increasingly have to treat the effects of poor posture in young people and teenagers which they attribute to texting and continual use of smartphones. If the head is held at a 60 degree angle the load on the spine is significantly increases and can cause neck pain. Texting can also cause painful tendons (Blackberry thumb) and according to the United Chiropractic Association texting for long periods could lower life expectancy because leaning the head forward and rounding the shoulders may place an individual at risk of developing hyperkyphosis (abnormal rounding of the upper spine that results in pressure on the heart and lungs). Impact of diesel fumes on lung and heart disease Frank Kelly professor of environmental health at King s College London has chaired a group of scientists considering the impact of nitrogen dioxide emitted from diesel engines. Studies have found that nitrogen dioxide contributes to the development of chronic obstructive pulmonary disease (COPD) and emphysema. In urban areas, where air pollution is higher, there is increased incidence of COPD. Currently approximately 29,000 premature deaths a year are linked to particulates in environmental air pollution but it is estimated that nitrogen dioxide may be responsible for twice that number. The effects of air pollution as well as smoking will need to be considered in the context of claims for occupational asthma and COPD. IEG v Zurich In an unprecedented move the Supreme Court have ordered a new hearing on the issues to include oral submissions to be heard on 27 and 28 January The case will now be heard before a panel of 7 judges. For further information about Weightmans LLP or to discuss any of the issues in this newsletter, please contact: Jim Byard, Partner via or Judith Peters, Consultant via or Joanna Hector, Solicitor via or Weightmans LLP December 2014 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. This update is not intended to constitute legal advice and should not be treated as a substitute for legal advice. Weightmans accepts no responsibility for any loss, which may arise from reliance on the information in this update. The copyright in this update is owned by Weightmans 2014 Data Protection Act Pursuant to the Data Protection Act 1998, your name may be retained on our marketing database. The database enables us to select contacts to receive a variety of marketing materials including our legal update service, newsletters and invites to seminars and events. It details your name, address, telephone, fax, , website, mailing requirements and other comments if any. Please ensure you update our marketing team with any changes. You have the right to correct any data that relates to you. You should contact James Holman, our Data Protection Officer in writing, at 100 Old Hall Street Liverpool L3 9QJ.

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