I hope you enjoy reading this edition and welcome any feedback.

Transcription

1 1 April 2011 Disease Brief Welcome to the latest edition of Disease Brief, the quarterly publication from Kennedys Occupational Disease Unit. In this edition, we include a report on the decision dismissing the Miners Knee Group Litigation and feature articles on a number of topical issues prepared by disease specialists from our Birmingham office including partner, Philippa Craven. Another important recent development has been the Supreme Court s decision on mesothelioma claims in Sienkiewicz v Greif (UK) Ltd and Willmore v Knowsley Metropolitan Borough Council. The full impact of the decision remains to be seen, although it is likely that there will be an increase in claims, given that a claimant needs only to establish exposure greater than de minimis. We explore this decision further in our recent e-update. [link to htm] We still await the Supreme Court s decision later this month on noise induced hearing loss in Baker v Quantum Clothing Group and others. We will send an e- update once the judgment is available. In the meantime, you may find our summary of the Court of Appeal decision useful. [link to Last week we held our annual Occupational Disease Conference in London. It was well attended and feedback proved it was enjoyed by all. Key topics included stress and harassment claims, suspect diagnoses of mesothelioma conditions and limitation. The event was rounded off with an interactive disease related quiz! We will be repeating the conference later in the year for our clients further north, details to follow. If you would like a copy of the slides from our recent conference please us. I hope you enjoy reading this edition and welcome any feedback. Kieron West, Partner Head of Kennedys Occupational Disease Unit Changing litigation landscape Following the Government s announcement this week there is to be root and branch reform of civil justice. Our e-update [link to: focuses on the Ministry of Justice s fresh consultation paper which suggests a new vision for civil justice. In a separate key development, the Supreme Court has ruled that expert Page 1 of 11

2 witness immunity should be abolished. Read more >> [[link to: Case law Miners knee Claims by all eight lead Claimants in the Miners Knee Group Litigation dismissed on limitation grounds Davies and others v Secretary of State for Energy & Climate Change The claims were part of a group litigation action pursued against the National Coal Board (NCB) by former miners for personal injury to their knees, further to working underground. The eight Claimants all suffered from knee osteoarthritis from repeated minor trips, falls, knocks and heavy lifting. All eight claims were found to be statute barred and the issue was whether the court should exercise its discretion under s.33 Limitation Act 1980 to reinstate. Held: A distinction was found between claims for osteoarthritis of the knee and other industrial diseases such as hand-arm vibration syndrome, deafness and dust. In these cases there were repeated minor traumas to the knees which fell into three categories: Traumas which were avoidable by the NCB i.e. breach of duty. Traumas which were unavoidable by the very nature of mining work i.e. non-negligent exposure. Traumas caused by the failure of a miner to take sufficient care i.e. contributory negligence. To determine which categories the cause of a trauma fell within was a far more complex exercise than in other industrial diseases. A claimant could not simply rely upon the establishment of the condition to prove his case. The following circumstances were to be taken into account by the court when exercising its discretion under s.33: The reasons for the delay from expiry of the limitation period, and how promptly a claim was brought thereafter. The effect that delay had on the fairness of the trial: whether the cogency of the evidence had been adversely affected as a result of the delay and whether it was fair and just that a claim should proceed. Page 2 of 11

3 The broad merits test, namely whether it would be inappropriate for the court to allow a trial to take place if the prospects of the Claimants success were only slight. The court accepted the Defendant s argument that, when determining the effect of delay on the fairness of a trial, it was legitimate to take account of difficulties that pre-existed the date of knowledge of the Claimant in each case. The court found that there would be little difficulty in finding a causal relationship between the knee conditions and the work. However the difficulty was determining the effect of the unavoidable conditions on the development of osteoarthritis, and that depended on the factual evidence. That was relevant to the broad merits test and the cogency of the evidence had been adversely affected by the delay. It was a tall order to expect anyone to now recall sufficient detail to explain whether conditions were avoidable at any given time or, if they were, what had been done to remedy them. In the circumstances the court chose not to exercise its discretion. Comment: It was anticipated that miners knee would be the next scheme, similar to vibration white finger (VWF) and chronic obstructive airways disease (COAD), but surprisingly it fell at the first hurdle. The causation of knee osteoarthritis was distinguished from other conditions and explains why a limitation defence was unsuccessful for the Defendant in the VWF and COAD actions. It seems peculiar that the Claimants argued that pre-limitation delay was immaterial, as they could have argued that the Defendant had not been prejudiced by this. The difficulties which it faced to defend the cases were arguably no greater than if the claims had commenced within the limitation period. The closure of the collieries, the redundancy of the workforce and disposal of documentation had all occurred many years before these claims materialised. We understand the Claimants intend to appeal against this decision. For further information contact Cameron Clark [[email protected]], Kennedys, Feature articles Challenging CRU certificates in disease claims At first glance the attribution of benefits in disease claims may seem straightforward, but this is not necessarily the case. It is not sufficient to ask whether a claimant has a disease. You should instead ask how badly affected he is as a result of the exposure to the harm. Did the claimant already have the condition and, if so, how much worse has the exposure made it? Page 3 of 11

4 Industrial Injuries Disablement Benefit (IIDB) is a good example of this. There is considerable guidance from the benefits rules themselves in the form of prescribed diseases. These derive from the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985, as amended by the Social Security (Industrial Injuries) (Prescribed Diseases) Amendment (No. 2) Regulations It should be remembered that IIDB is only paid to those injured at work. Someone with a purely constitutional or non-work related cause should not be receiving this benefit. In appropriate cases, be prepared to challenge whether a person should be receiving this benefit. Appendix 1 of the DWP DB1 Guide to IIDB (link to sets out a list of diseases and typical jobs in which disease is known to be a significant risk factor: If the job you are considering is not on the list of typical jobs, consider very carefully how much a job has affected a person s capability and whether there is an alternative non-negligent cause, for example in the case of vibration, hobbies such as motorcycling. If the job is included on the list, this will raise a presumption that the disease has been caused by that job, assuming the Claimant was employed in that job at or around the time of onset. Even though medically the debate still rages, the DWP does recognise carpal tunnel syndrome as arising from work-related vibration. Comment When assessing benefits in disease claims, look carefully at the actual level of disability caused by the work and at other possible causes. Do not assume the DWP has got the decision right challenge this with appropriate evidence. Ask yourself the same questions the DWP does in respect of each case: Is the claimant suffering from the disease at all? Is the disease a prescribed disease? Did the employment cause the disease? When was the date of onset of the disease? Is the claimant disabled, i.e. does he or she have restrictions due to the disease? Page 4 of 11

5 Finally, it should be noted that no NHS charges are recoverable in disease claims, except where the disease is attributable to a separate injury, which would then bring the entirety of the treatment within the ambit of NHS charges recovery. For further information contact Paul Morris, Kennedys, Employers Liability Tracing Office FSA publishes regulations setting out requirements to publish details of policies and claims. The Employers Liability Tracing Office (ELTO) has been set up to help claimants find the insurer of their former employer(s) in relation to industrial accidents or diseases. It replaces the previous Employers Liability Code of Practice Tracing Service. The ELTO has been set up as a voluntary organisation. Over 95% of the EL insurance market have to date joined the organisation. ELTO will build and maintain a database of all new and renewed EL policies, all old EL policies that have new claims against them and all successful traces from the existing tracing service and from ELTO. Its new website goes live from April (link to There will also be a new Employers Liability Database (ELD), which will be a centrally held record of new and renewed policies. This will be maintained by ELTO. The aim of the ELTO and the ELD is to increase the speed with which interested parties can search the databases for relevant insurers or policies and thus enable claims to be progressed more efficiently. FSA regulations New FSA regulations have been introduced taking effect from April 2011, requiring insurers to publish details on EL policies and new claims against EL policies. The regulations also provide that, from April 2012, the employer s reference number (sometimes called the PAYE number) and Companies House reference number are required to be included in the ELD. It is clear that this information will assist parties in identifying the correct insurer(s) for the correct defendant. In long, and even some short tail, disease claims insurance issues can be complicated as a result of incomplete information relating to the employer company. Company acquisitions and name changes mean that additional investigations may need to be undertaken. Information contained in Inland Revenue schedules regarding employers is not always accurate and, hence, this additional information will be of assistance to all. Extended access Page 5 of 11

6 Access to the ELD is to be extended to employers and relevant intermediaries for insurers. It is planned that this new search facility will be available from late April 2011 and that the search results will be instantly available. Where a search fails to return a result, a query will be generated and sent out to each insurance company to check their own records for older policies and any positive result then obtained will also be loaded onto the ELD. Comment Whilst the take-up from the insurance industry has so far been impressive, it is hoped that the ELTO will attract even more members. The FSA regulations also impose obligations on insurers, which should encourage their active participation in making the ELTO and ELD a success, including imposing an additional levy for failing to upload information in an agreed timescale. Nick Starling of the ABI has said that Insurers are determined to do all they can to ensure that people with a work-related injury or disease are able to trace their employer or its insurer to claim against. This is why the industry is committed to developing ELTO into a comprehensive service to help claimants. APIL, however, is less impressed with the new rules and believes the ELTO and FSA regulations fail to protect the rights of claimants, predominantly because the changes do not compel the publication of all policies. Karl Tonks, incoming vicepresident of APIL has said Many sick and dying workers who can t trace their employers insurers from decades ago still won t be able to claim the compensation they need APIL are calling for a fund of last resort for employers liability claims, similar to the Motor Insurers Bureau. The impact and success of the ELTO will undoubtedly be an issue under scrutiny and consideration over the coming months and years. For further information contact Philippa Craven, Kennedys, Tackling claims for HAVS/VWF and CTS Claims for hand arm vibration syndrome (HAVS), vibration white finger (VWF) and carpal tunnel syndrome (CTS) are increasing. We review recent developments and tactics for defendants. HAVS is the umbrella term used to describe injuries to blood vessels, nerves and muscles in the fingers caused by hand transmitted vibration. The principal constitutional condition is Reynaud s phenomenon, caused by Reynaud s disease. Other causes include arterial disease, drugs and trauma. The level of the symptoms suffered is measured against the Stockholm scale and cases are classified by staging the neurological and sensorineural symptoms. Page 6 of 11

7 The courts have wrestled with diagnosis and, following the Court of Appeal s decision in Montracon Ltd v Whalley [2005], approved a three step test for the diagnosis of HAVS/ VWF as follows: A history of exposure to vibration sufficient to cause risk of development of the condition. A clinical history and description of symptoms which is consistent with this. The absence of any constitutional explanation for the symptoms complained of. This Montracon or liability test has assisted claimants. Defendants have found it difficult to defend claims in the absence of evidence to determine vibration levels, exposure time, tool maintenance and training. However, since the more recent decision of the Court of Appeal in Vance-Daniel v Corus UK Ltd [2010], the question to ask now is whether the defendant should reasonably have foreseen the risk to the claimant. The claimant must now prove foreseeability and each case should be decided on its facts. Furthermore, there have been developments in diagnosis, with the use of a new cold provocation test, explained in an article by Salem and others in the Journal of Hand Surgery in October Essentially this test, if approved and adopted by medico-legal experts, can be used to isolate claimants with no vascular symptoms, those with non vibration related vascular symptoms and leave only those genuine HAVS/VWF sufferers to pursue their claims. Thereafter it will be for the defendant s insurers to consider whether the insured, acting as a reasonable employer, should have foreseen the risk of injury to the diagnosed claimant. CTS The carpal tunnel is a channel through which tendons pass to enable finger and wrist movements, in particular bending. The median nerve also passes through the channel, to control muscles in the hand and also to move the thumb. Symptoms of carpal tunnel syndrome (CTS) include numbness, tingling and burning in the hand and fingers, principally the thumb, index and middle fingers. Symptoms can extend to the forearm, shoulder and neck. Development occurs in people over 45 years of age. Those with thyroid problems and diabetes are at increased risk of development of symptoms. Carpal tunnel release is the most effective remedy. However, CTS is rarely caused by work. It is often exacerbated by repetitive manual activity and, it has been suggested, by exposure to vibration. Page 7 of 11

8 Often claims for HAVS/VWF have a CTS component. Vascular surgeons are often engaged to discuss medical causation at trial. Medical research casts doubt on the evidential link between vibration exposure and the onset of CTS. Causative factors play a greater role than occupational factors. The appropriate causation test set out by the Court of Appeal in Wilsher v Essex Area Health Authority [1988] still holds good today. The claimant has to prove on the balance of probabilities that vibration has caused CTS rather than medical causation e.g. diabetes or obesity. Tactics When investigating a CTS claim or CTS element in a HAVS/VWF claim, look to the claimant s medical records. If other potential causative factors appear, then there is the potential for a good defence based on clinical causation, especially where the claimant contends that vibration has caused the CTS complained of. Indeed, in such matters and even before litigation is commenced, it is certainly worth considering putting searching Part 35 questions to the claimant s medical expert, which may have the desired result of quashing the claim before proceedings are issued. Summary Where HAVS/VWF is alleged, there is a legal diagnosis test following Montracon. There is also a clear dose relationship between vibration and HAVS/VWF. However, as there is no (known) dose relationship between vibration and CTS, then in the presence of other causative factors, the claimant will struggle to prove causation by applying the test in Wilsher. Early challenges to the claimant s solicitors during the pre-action protocol period can pay dividends and save money in terms of damages and costs. For further information contact John Croucher, Kennedys, Updated pre-action protocol for disease and illness claims Although arguments for a separate pre-action protocol for mesothelioma claims have not succeeded, the updated general disease protocol, which comes into force on 6 April 2011, introduces some positive changes. In February 2010, a working party was set up to examine litigation practice and procedures for claims relating to mesothelioma. Kennedys made submissions to the Civil Justice Council, in which we argued that there should be a separate preaction protocol (PAP) for mesothelioma claims. In our view this would facilitate the more effective and time efficient handling of these claims, by providing specific Page 8 of 11

9 information at an early stage, thus enabling a speedier resolution of claims for claimants. It is disappointing that, after discussion and deliberation between interested parties, there is still no separate PAP dealing with mesothelioma claims. Instead, the 55 th update to the CPR incorporates some changes, specifically introduced to assist with mesothelioma claims, into the existing PAP. Defendants representatives had lobbied for early disclosure of witness evidence setting out employment and exposure history to be included within the PAP, but this was met with resistance by claimants representatives. Initiatives to assist the early payment of compensation were also discussed, but the unwillingness to agree to witness evidence meant that these too failed to result in any meaningful change. Updated pre-action protocol The main amendments to the PAP are: A provision relating to terminal disease and short life expectancy, such as mesothelioma claims, where it is accepted that the time scale of the protocol is likely to be too long. In such instances a claimant may not be able to follow the protocol and the defendant would be expected to treat the claim with urgency, including any request for an interim payment. In addition to providing a chronology of relevant events in the letter of claim, a claimant must also provide an HMRC schedule showing employment history. Where there is more than one employer, the claimant is to identify any relevant exposure during those periods of employment, including any period of self-employment. The claimant is to provide any response received from the ABI Employers Liability Tracing Service, both negative and positive, and, where insurance database results are received after sending the letter of claim, these results should be forwarded to the defendant as soon as is reasonably practicable. Insurers or defendants are to notify claimants in writing as soon as possible where it has not been possible to identify the full insurance history within 30 days and, in any event, to state which insurers have been identified within that period and state what steps are being taken to determine this information. The claimant is required to advise of any claims or payments under the Pneumoconiosis etc. (Workers Compensation) Act Page 9 of 11

10 It is recognised that expert evidence may be needed on issues of apportionment in addition to knowledge, fault, causation, condition, prognosis and valuing aspects of the claim. In addition, the PAP includes annexes C and D which relate specifically to mesothelioma claims: Annex C provides guidance, setting out that its purpose is to give as much advance warning as possible of claims to defendants and insurers and, in the case of limited life expectancy, to give advance warning as to the need for urgency. A specimen letter appears at Annex D, which suggests the information that ought to be included in early notification letters for cases involving mesothelioma. Comment The PAP does provide defendants and insurers with earlier access to some information, which will undoubtedly assist in dealing with claims more quickly. However, it is disappointing that there was resistance to some of the amendments being championed on behalf of defendants during the discussion process. It is acknowledged and accepted that victims of mesothelioma who have been negligently exposed to asbestos should be compensated. It is, however, only equitable that defendants and their insurers are provided with the necessary information to be able to properly assess their position, consider the extent to which others may have a responsibility and attempt to trace historic insurers. For further information contact Philippa Craven, Kennedys, Old war stories Philippa Craven and Kieron West recently acted for two of the three Defendants in a mesothelioma claim where the Third Defendant, the National Dock Labour Board (NDLB) denied liability on the grounds that it was a creature of statute with limited powers and no obligations or responsibility for any workers deployed by it to work for various port employers. The defence served on behalf of the Third Defendant raised arguments previously, and unsuccessfully, argued at first instance and at the Court of Appeal in the case of Rice and Thompson v Secretary of State for Business, Enterprise and Regulatory Reform and Stuntbrand Line Ltd [2008]. Notwithstanding the judgment in Rice and Thompson, in which it was held that the NDLB did owe duties and was on notice of risk, these same arguments were advanced in our case, with the Third Defendant maintaining its stance that it Page 10 of 11

11 would not contribute to the claim. The Third Defendant failed to respond to the challenge to differentiate the circumstances in this claim from the Rice and Thompson decision. In an attempt to deal with the Third Defendant s intransigence, we adopted a proactive strategy to deal with the claim and made a joint Part 36 offer on the issue of contribution. This was then accepted, with the result that the Third Defendant became the majority contributor and co-ordinator for the claim. Settlement with the Claimant was achieved fairly quickly thereafter. We always strive to achieve the best results for our clients. In this case we deployed a proactive and united approach to deal with the Third Defendant as expeditiously as possible given that, whilst the Defendants remained in dispute, the Claimant s costs were undoubtedly increasing. For further information contact Philippa Craven or Kieron West, Kennedys. Kennedys is a trading name of Kennedys Law LLP. Kennedys Law LLP is a limited liability partnership registered in England and Wales (with registered number OC353214). Page 11 of 11