DOLMANS INSURANCE BULLETIN

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1 DOLMANS INSURANCE BULLETIN Welcome to the September 2012 edition of the Dolmans Insurance Bulletin REPORT ON In this issue we cover: Cutting a claim down to size - F v Caerphilly County Borough Council FOCUS ON Actionable injury in occupational deafness claims : the pleural plaques test litigation (Rothwell) applied to deny claim for damages - Paul Raymond Hughes v Rhondda Cynon Taf County Borough Council CASE UPDATE Costs orders - Part 36 and Part 44 Motor insurance - right of insurer to recover compensation from insured Negligence - causation Negligence - tree roots COMING UP Free employment law breakfast seminar - Friday, 12 October 2012 at The Vale Hotel, CF72 8JY - focusing exclusively on employers liability for violent employees and disciplinary and dismissal - see page 15 for further details Training opportunities : details on tailor-made training seminars aimed at Local Authorities, their Brokers, Claims Handlers and Insurers Employment briefing and workshops : overview on employment briefings and half day workshops If there are any items you would like us to examine, or if you would like to include a comment on these pages, please the editor, Justin Harris, Partner, at justinh@dolmans.co.uk 1

2 DOLMANS REPORT ON CUTTING A CLAIM DOWN TO SIZE F v Caerphilly County Borough Council The Claimant in this case was employed by the Council as a cover supervisor at a comprehensive school. It was the Claimant s case that on 11 November 2008, she entered the reprographics room at the school and tripped over a length of electrical cable from a portable fan unit which was allegedly trailing across the floor of the room. In her Particulars of Claim, the Claimant conceded that, prior to her accident, she was suffering from a bulging disc and a protruding disc in her lower back. Following the accident, the Claimant said she had developed a large central disc prolapse, which had caused compression of the nerves of the spinal cord. The Claimant underwent spinal surgery in an attempt to correct the disc prolaspe, but was left with nerve damage symptoms. The Claimant adduced expert orthopaedic and urological evidence. It was the opinion of the Claimant s orthopaedic expert that the accident had accelerated the Claimant s need for spinal surgery by 3 to 5 years. Together with damages for loss of earnings, care and other smaller items, the Claimant was seeking approximately 80, in damages, albeit her Claim Form was limited to 100, Liability was denied in full, a robust Defence was entered and detailed witness investigations were undertaken. Having fully investigated the Claimant s factual allegations, it became clear that the Claimant had a reasonable prospect of achieving a finding of liability against the Council. 2

3 DOLMANS REPORT ON The Claimant s medical records were reviewed in great detail. Save for an attendance at A&E on the day of the accident, the Claimant s records did not mention the alleged accident at all, nor in the context of increased symptoms. It was clear from the records that the Claimant had a history of back problems. One letter in the records, dated approximately one month prior to the accident, showed the Claimant was undergoing a continuous course of treatment for her bad back. In fact, one month prior to the accident, the Claimant s treating doctor ordered an x-ray, considered there may have been a significant progression of the Claimant s disc disease and ordered an MRI scan. The Claimant s accident took place one month before the Claimant had her MRI scan where the disc prolapse was diagnosed. It was telling, however, that the Claimant s trip to A&E on the day of the accident seemingly had no impact whatsoever on the course of the Claimant s ongoing treatment. The Claimant was simply discharged with advice and no x-rays or scans were undertaken. We advised the Council that in light of the liability risks, a low Part 36 offer should be made in the sum of 5, to protect the Council s position regarding costs. We formed the view from reviewing the medical records that this Claimant had, if anything, only suffered a flare up in an already deteriorating condition. The Part 36 offer of 5, was made and our concerns about the case were expressed to the Claimant s Solicitors. David J Pemberton, Consultant Orthopaedic Surgeon was instructed on behalf of the Council. In the meantime, the Claimant made a Part 36 offer of 10, Clearly, despite the Claimant s expert evidence, the Claimant s team was concerned about our observations from the medical notes. Mr Pemberton confirmed our suspicions in his report and opinion. He took the view that the Claimant probably suffered a minor and short lasting exacerbation of her condition and the accident either did not accelerate the need for surgery at all, but, if it did, it would be acceleration by a matter of weeks to months. 3

4 DOLMANS REPORT ON The Council wished to take a robust approach to the claim. Our Part 36 offer of 5, was withdrawn, the report of Mr Pemberton was served and a revised Part 36 offer of 3, was made. The Claimant accepted the offer. Comment This case highlights the importance of not taking expert medical evidence at face value. A detailed and forensic review of the medical records can uncover vital information which can then be used to challenge the medical opinions reached. In Fast Track cases this can be done by raising questions, and in Multi Track cases, the Defendant s Expert will be able to assess the effect of the records on the case. In the present case, we were able to ensure that the Claimant received damages which reflected the injury she sustained. In doing so, we achieved a significant saving for the Council. Paul Veysey Partner Dolmans Solicitors For further information regarding this article, please contact Paul Veysey at paulv@dolmans.co.uk or visit our website at 4

5 DOLMANS FOCUS ON ACTIONABLE INJURY IN OCCUPATIONAL DEAFNESS CLAIMS : THE PLEURAL PLAQUES TEST LITIGATION (ROTHWELL) APPLIED TO DENY CLAIM FOR DAMAGES In Paul Raymond Hughes v Rhondda Cynon Taf County Borough Council, the Claimant alleged that he was exposed to excessive noise throughout his employment by the Defendant Local Authority and its predecessors as a building labourer from 1969 to 2006 which had caused Noise Induced Hearing Loss ( NIHL ). The Claimant conceded that he was personally issued with hearing protection in the late 1980s, which he wore, and a cut off date for exposure was agreed at 30 April The Claimant s employment had commenced with Glamorgan County Council in about 1969/70. That employment transferred to Mid Glamorgan County Council on Local Government Reorganisation on 1 April The Claimant s employment had subsequently transferred to Caerphilly County Borough Council on Local Government Reorganisation in Wales on 1 April Proceedings were commenced in Cardiff County Court on 24 June A Defence was filed not admitting negligent noise exposure and causation. Shortly afterwards, the Claimant made a Part 36 offer in the sum of 6, A month before Trial, the Claimant made a revised Part 36 offer in the sum of 1, The Claimant s witness evidence on noise exposure could not be gainsaid and was supportive of excessive noise exposure. Accordingly, before Trial, the Defendant did not take issue with exposure or breach of duty (for the period from 2 June 1969 to 30 April 1986). The sole remaining factual issue at Trial related to causation and damage. In NIHL cases, a Claimant s actual overall hearing loss ( OHL ) typically consists of at least 2 elements; a diminution of hearing threshold levels caused by exposure to harmful levels of noise (ie - NIHL) and a diminution caused by the adverse effects of aging (ie - age-associated hearing loss or AAHL ). There may be other factors, some of which may be unexplained (socalled idiopathic loss). However, unsurprisingly, it is only the NIHL component which is compensatable. 5

6 DOLMANS FOCUS ON For diagnostic purposes, the level of hearing is measured at fixed frequencies; typically at 0.25 khz, 0.5 khz, 1 khz, 2 khz, 3 khz, 4 khz, 6 khz and 8 khz. Excessive noise most commonly affects the 4 khz frequency and a significant diminished level at this frequency (and, less commonly, at 3 or 6 khz) may be indicative of noise damage. The commonly accepted method of assessing whether a high frequency hearing loss is significant for the purposes of diagnosing NIHL is set out in the Guidelines 1. The Guidelines look for a notch or a bulge (ie - diminished hearing levels) at 3, 4 or 6 khz at least 10 db more than at 1 or 2 khz. In the present matter, it was common ground between the parties that the Claimant had impairment at 4 khz, which was probably attributable to exposure to noise. The outstanding issue was whether that impairment had amounted to a noise induced hearing disability ( NIHD ) such as to resound in damages. The Claimant s expert medical witness, Mr Alun Tomkinson, Consultant in Otolaryngology, Head and Neck Surgery, accepted that the standard UK method for calculating NIHD is the Black Book 2. The Black Book uses statistical data to predict hearing loss caused by the AAHL and, through the use of tables, provides a method for calculating NIHL and NIHD across the frequencies it considers to be most important to human speech recognition; that is 1, 2 and 3 khz. Mr Tomkinson relied on an audiometric examination of the Claimant that he had carried out on 26 October 2010 as the basis of his opinion that the Claimant s average hearing at 1, 2 & 3 khz corresponded to an overall hearing loss disability ( OHD ) of 10.9% and a NIHD of 4%. There was no evidence of tinnitus. Unbeknown to Mr Tomkinson at the time he compiled his report, the Claimant had already undergone workplace audiometry during his employment with Caerphilly County Borough Council in 1998 and again in Both audiograms showed significant bilateral notching at 4 khz. However, they did not indicate any NIHD. Subsequently, a hospital audiogram was obtained dated 2009 that had also not been provided to Mr Tomkinson which also did not indicate any NIHD. 1 Coles RRA, Lutman ME & Buffin JT, Guidelines on the diagnosis of noise induced hearing loss for medicolegal purposes (2000) Clin. Otolaryngol. 25, pp King, Coles, Lutman & Robinson - Guidelines for Medicolegal Practice - Assessment of Hearing Disability (1992) Whurr. 6

7 DOLMANS FOCUS ON The Defendant obtained its own expert medical evidence from Mr Philip H Jones 3. Mr Jones examined the Claimant on 28 February Mr Jones agreed that the Claimant may have suffered some noise damage of just a few decibels at 4 khz, and that his hearing ability was worse than it otherwise would have been, but he did not consider that such damage had caused any disability because the Claimant s hearing was still better then the average hearing for someone of his age. The results of the five audiograms as interpreted using the Black Book method can be compared as follows (negative values have been rounded up to zero): OHD 3% 3% 7% 11% 9% AAHD 4% 5% 7% 7% 8% NIHD 0% 0% 0% 4% 1% The matter came before Recorder Andrew Grubb on 22 June The lay witness evidence of the Claimant was agreed in its entirety and the evidence at Trial consisted solely of the medical experts. The Claimant s case was essentially that he had suffered some noise damage at 4 khz and that causation would be established. The Defendant s case was that whilst it was accepted that some of the notching at 4 khz had been probably caused by workplace noise, the Claimant was not disabled as a consequence and even if he was, such disability was slight and not sufficient to sound in damages (ie - was de minimis and/or consistent with the approach taken in Rothwell with regard to the condition of pleural plaques see below). Under cross-examination, Mr Tomkinson conceded that his own audiogram dated 2010 should not be relied on and that Mr Jones 2012 audiogram was to be preferred. Mr Tomkinson also conceded that the 1% disability on the 2012 audiogram was, in fact, caused by asymmetry due to aging and that the disability in the good ear was 0%. On that basis, each of the audiograms that could be assessed using the Black Book method produced disabilities of 0%. However, Mr Tomkinson then introduced an entirely new issue into the argument; that the loss at 4 khz was partly due to noise and was affecting the Claimant s hearing in noisy situations. 3 Consultant ENT Surgeon and author of the chapter on disability assessment in Noise and its Effects. 7

8 DOLMANS FOCUS ON Mr Jones did not agree that 4 khz ought to be taken into account in assessing disability because of the very small part played by 4 khz in normal human hearing and its unimportance in speech recognition. Mr Jones agreed that the Claimant s hearing threshold level at 4 khz had been worsened by a few decibels by the noise exposure, but argued that this was insignificant when compared to the increases due to ageing. It was submitted on behalf of the Council that the only measure of disability reasonably relied on in the Claimant s written medical evidence was the Black Book, which Mr Tomkinson had conceded produced no measurable disability. On that basis, the claim should fail as the introduction in oral evidence of 4 khz as an important frequency in disability assessment was not supported on the documents and was opportunistic. In the alternative, it was submitted that the additional effect of noise on the Claimant s hearing threshold levels was small when compared to the effect of aging and that the Claimant would not have been able to appreciate any adverse effects from the noise component. The Claimant then abandoned the Black Book as a method of assessing disability in this matter, submitting that the Black Book was unsuitable for low disability level claims, such as this case. It was submitted on behalf of the Claimant that 4 khz should be included in any Disability assessment and that 4 khz was having an effect on the Claimant s speech recognition in noisy environments and that at least part of the loss at 4 khz was recognised to be due to noise. 3, was suggested as a measure of damages by the Claimant. In a Reserved Judgment handed down in writing on 3 August 2012, the Claimant s claim was dismissed. Recorder Grubb held that (1) the Claimant was negligently and/or in breach of duty exposed to excessive noise levels at work by the Defendant until 30 April That exposure caused damage to the cochlea hair cells in the Claimant s ears. The result of that was noise induced impairment at the 4 khz level (as demonstrated in various audiograms undertaken between 1998 and 2012); (2) any effect upon the Claimant s hearing had not been caused, or contributed to, by exposure to that excessive workplace noise (and the resulting noise induced impairment at the 4 khz level) and the Claimant could not establish that he had, in fact, suffered a disability; (3) any change in the Claimant s hearing (if it could be described as a disability) was not such as to leave him appreciably worse off, despite its permanence, and that it fell within the de minimis principle such as not to be actionable, Johnston v NEI International Combustion Ltd : Rothwell v Chemical & Insulating Co Ltd & Ors : Topping v Benchtown Ltd (Formerly Jones Bros Preston Ltd) : Grieves v FT Everard & Sons & Ors (2007) ( The Pleural Plaques Test Litigation ) applied. 8

9 DOLMANS FOCUS ON Discussion As far as we are aware, this case represents only the second occasion where the Court has given Judgment in a claim for damages arising out of a de minimis hearing disability (the other claim was also dismissed on 2 May 2012 and the ex tempore Judgment has not been reported). The present matter, therefore, represents the sole written judicial authority on the issue of de minimis hearing loss. It is a first instance decision and, therefore, care is required in terms of seeking to derive any guiding principle for application to other cases of a similar nature. However, it is of considerable interest that the (essentially subjective) assessment of injury or damage, as propounded in the Rothwell case, has been applied in the context of a purported hearing damage claim. Arguably, as a consequence of limitation arguments centred upon the issue of knowledge of significant injury, modern claims for alleged Noise Induced Hearing Loss tend to deal with losses at the lower end of the spectrum of hearing loss and, in that context, this Judgement is of considerable (particularly local) interest. Jamie Mitchell Associate Dolmans Solicitors For further information regarding this article, please contact Jamie Mitchell at jamiem@dolmans.co.uk or visit our website at 9

10 DOLMANS RECENT CASE UPDATE Costs Orders - Part 36 and Part 44 Brit Inns Ltd and Barber and Lawless v BDW Trading Ltd and Reddington Ltd and Barber Lawless and Katx v BDW Trading and Reddington Ltd [2012] EWHC 2489 Queen s Bench Division In these two associated complex commercial cases, the parties had made a number of Part 36 offers and Part 44 offers to each other. The matter had proceeded to Trial, and the Claimant, in the main action, had recovered 25% of its claimed damages, and in the separate claim for uninsured losses, the Claimants recovered 3% of the damages sought. The only Part 36 offer made by the Defendant was beaten only by 35, and it was the offer which was the closest to the sums recovered by the Claimants at Trial. The Defendants had put forward higher Part 44 offers (which the Claimants had not beaten), but which allowed only a limited amount for costs. This was a case where the Defendant took a more realistic view as to the value of the case than the Claimants, but where they failed to make Part 36 offers to protect their position on costs. All parties claimed for costs against the others. The Court considered Part 36 and Part 44.3, which provides that the Court has discretion as to costs and must have regard to all the circumstances, including the conduct of the parties, whether a party has succeeded on part of his case and any offer to settle which is not an offer to which Part 36 costs consequences apply. The starting point was that a successful party would recover its costs. The only certain way for a Defendant to shift its potential cost liability was to make a Part 36 offer which it then bettered at Trial. The issue of whether a party had succeeded was considered. It is usually only where any exaggeration is deliberate that the Claimant will be ordered to pay the Defendant s costs. Where a Claimant had recovered something at Trial, costs would only be shifted so that the Claimant has to bear the Defendant s costs as a result of conduct if there was more or less total failure on the issues that went to Trial or a failure to accept a Part 44 offer that would have put the Claimant in a better position than going on. The Defendants in the main action were ordered to pay 60% of the Claimant s costs up to the Part 44 Offer, and the Claimant was ordered to pay the Defendant s costs from the date of the Part 44 Offer. In the uninsured losses claim, the Claimant was ordered to pay 90% of the Defendant s costs. 10

11 DOLMANS RECENT CASE UPDATE Motor Insurance - Right of Insurer to Recover Compensation From Insured Churchill Insurance Co Ltd v (1) Fitzgerald (2) Wilkinson : Evans v (1) Cockayne (2) Equity Claims Ltd and Secretary of State for Transport (Intervener) [2012] EWCA Civ 1166 These conjoined appeals concerned the interpretation of s.151 (8) of the Road Traffic Act The Claimants, who were the Insureds, had each allowed an uninsured driver to drive whilst they were passengers and each had been injured in road traffic accidents. Both sued the uninsured driver for damages. By virtue of s.151 of the 1988 Act, the Claimants Insurers would be obliged to meet any Judgment. However, pursuant to s.151 (8), an Insurer is entitled to recover that amount from an insured person under the policy, if that person had caused or permitted the use of the vehicle which gave rise to the liability. Thus, on the face of the terms of the Act, an insured passenger victim of the negligent driving of an uninsured driver who was permitted by the Insured to drive the vehicle would be excluded, or omitted, from the benefit of the compulsory motor insurance. The Claimants argued that this conflicted with various European Directives relating to insurance against civil liability in road traffic accidents. Two questions were referred to the European Court of Justice on the compatibility of s.151 (8) with EU law. The ECJ held that the Directives must be interpreted as precluding national rules whose effect is to "omit automatically" the requirement that the insurer should compensate a passenger who is a victim of a road traffic accident. This is so even when that accident was caused by a driver not insured under the insurance policy and when the victim, who was a passenger in the vehicle at the time of the accident, was insured to drive the vehicle himself and he had given permission to the uninsured driver to drive it. The Court of Appeal held that in order to allow s.151 (8) to be interpreted in accordance with EU Directives the notional addition of the words in bold italics was required:- "Where an insurer becomes liable under this section to pay an amount in respect of a liability of a person who is not insured in a policy.. he is entitled to recover the amount from.. any person who.. (b) caused or permitted the use of the vehicle which gave rise to the liability, save that where the person insured by the policy may be entitled to the benefit of any Judgment to which this section refers, any recovery by the insurer in respect of that Judgment must be proportionate and determined on the basis of the circumstances of the case". 11

12 DOLMANS RECENT CASE UPDATE Negligence - Causation Smith & Others v South Eastern Power Networks plc : (1) Mr Shaheen (2) Mrs Shaheen v London Power Networks plc : Rice v South Eastern Power Networks plc : Mead v Eastern Power Networks plc : (1) B Surtees (2) Mrs Surtees v South Eastern Power Networks plc [2012] EWHC 2451 (TCC) The Claimants were owners and occupiers of residential and retail premises which were damaged by fire as a result of resistive heating emanating from the cut-out assemblies which ran to the electric meters. The Defendants, electrical distributors, had not carried out routine maintenance on the cut-outs and did not routinely replace old cut-outs. The Court held that whilst the Defendants were in breach of duty for failing to institute an inspection regime and for failing to have in place a regime for replacing cut-outs, the Claimants had failed to establish that any breach of duty caused the fire damage. On the balance of probabilities, even a reasonably careful visual inspection would not have revealed any signs which would have put an inspector on notice that there was any or any impending problem. The evidence suggested that the period for routine replacement of cut-outs should be in the region of 50 years, as opposed to 25 years as submitted by the Claimants, and in none of the cases had the Claimants established that failure to make a routine replacement represented a culpable failing. Negligence - Tree Roots Robbins v Bexley London Borough Council [2012] EWHC 2257 Queen s Bench Division The Claimant claimed damages against the Local Authority in relation to damage to her property in 2003 and 2006 caused as a result of roots of Poplar trees growing in a park owned by the Local Authority that backed onto the property. 12

13 DOLMANS RECENT CASE UPDATE The Local Authority was found liable. It was on notice by 1998 that it was alleged that the roots were alleged to have caused damage to other properties in the Claimant s street. At that point, the Court considered that it was reasonably foreseeable that the roots could cause shrinkage of the clay subsoil and that there was a real risk that subsidence of the properties might occur. By 1998, the Local Authority could reasonably have been expected to respond to the foreseeable risk by embarking on a programme of crown reduction of the trees every 3 to 4 years which would have prevented the damage. For further information on any of the above cases, please contact Clare Hoskins at clareh@dolmans.co.uk or Amanda Evans at amandae@dolmans.co.uk Teleri Davies at telerid@dolmans.co.uk or 13

14 DOLMANS COMING UP Training Opportunities At Dolmans, we want to ensure that you are kept informed and up-to-date about any changes and developments in the law. To assist you in this, we can offer a whole range of training seminars which are aimed at Local Authorities, their Brokers, Claims Handlers and Insurers. All seminars will be tailored to make sure that they cover the points relevant to your needs. Seminars we can offer include:- Defending claims the approach to risk management Highways training Flooding and drainage duties and powers of landowners and Local Authorities for drainage under the Land Drainage Act Common law rights and duties of landowners in respect of drainage Flooding and drainage duties and powers of Highway Authorities for drainage and flooding under the Highways Act Consideration of case law relating to the civil liabilities of the Highway Authority in respect of highway waters Employers liability update Employers liability claims investigation for managers and supervisors Corporate manslaughter Ministry of Justice reforms Housing disrepair claims Public liability claims update Liability of Local Education Authority for accidents involving children The Display Screen Regulations duties on employers Bullying, harassment, intimidation and victimisation in the workplace personal injury claims Industrial disease for Defendants Apportionment in HAVS cases Pre-action protocol in relation to occupational disease claims overview and tactics Conditional Fee Agreements and costs issues If you would like any further information in relation to any of our training seminars, or wish to have an informal chat regarding any of the above, please contact our Training Partner, Clare Hoskins at clareh@dolmans.co.uk 14

15 DOLMANS COMING UP EMPLOYMENT FREE employment law breakfast seminar 8:00am to 09:30am on Friday, 12 October 2012 at The Vale Hotel, CF72 8JY focusing exclusively on: employers liability for violent employees & disciplinary and dismissal Please contact Keren Judd at should you wish to receive an e-flyer detailing more information regarding this seminar and/or should you wish to reserve a place to attend the seminar (subject to availability) Our employment team also run a series of employment breakfast briefings and half day workshops. These seminars will be of interest to all employers who want to minimise their exposure to costly tribunal claims and who want to ensure that their human resources procedures and managers are up-to-date with significant changes in the law. For further details please contact Bethan Walsh at bethanw@dolmans.co.uk or visit our website at One Kingsway Cardiff CF10 3DS Tel: Fax: