Welcome to the June 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 email us at jim.byard@weightmans.com The market place Exploring Disease claims in the portal, the sale of Quindell s legal services division to Slater and Gordon, Aerotoxic syndrome, Mesothelioma (Amendment) Bill 2015 and court fees. Case law update Covering Zurich Insurance PLC v International Energy Group Ltd [2015] UKSC 33, McCauley v Harland and Wolff Plc & Royal Mail Group Ltd 20 May 2015 and Ghoorah v West Essex Clinical Commissioning Group and others. On the horizon Looking at The development of successful treatments for mesothelioma and lung cancers, hearing loss and dementia, air pollution and Asbestos exposure.
The market place No real change for disease claims in the Portal A total of 28,379 disease claims have entered the Claims Portal to 30 April 2015 which includes 2,311 claims in April. However 78.5% (22,276 claims) have left the process and just 3.6% (1,022) of claims have settled. The biggest single category of claims leaving the process (35%) are those where a liability decision has not been made in time. It appears that the 30 day period for defendants to respond to the CNF remains a challenge if not unrealistic in many cases. Just 74 claims settled in April 2015. The average figure for general damages was 4,358 which represents a reduction to the 12 month rolling average of 4,632. 9000 Reasons for leaving EL Disease Portal (30 July 2013-30 April 2015) 8000 7939 7000 6000 5000 4809 4000 3913 3000 2000 1849 2367 1000 985 1022 414 0 Liability decision timeout Liability not admitted or admitted with contributory negligence Incomplete CNF Claim requires further investigation Duplicate claim Stage 2 Settlement Stage 2 exit (no settlement) Other exit through Exit Process The overall picture is that the Claims Portal continues to play a very limited role in disease cases with parties unable to gain the benefits of a simplified fast process and fixed costs until the Portal is better adapted to disease claims. In contrast, EL accident claims, to which the Portal opened for business at the same time as for disease claims, not only are the numbers entering the Portal significantly higher (73,830) but also the numbers leaving the process are lower, currently approximately 63%. Nearly three times as many cases (just under10%) settle. In the more mature RTA Portal the settlement rate is approximately 27.5%.
The ABI s paper Noise Induced hearing Loss claims: Improving the claims system for everyone published this month advocates:- Extending the fixed costs regime outside the Claims Portal to disease claims Amending the Pre-Action Protocol to enable multi defendant disease claims to be settled through the Claims Portal, and Considering extending MedCo to cover claims for NIHL Goodbye Quindell: Hello Slater and Gordon The sale of Quindell s legal services division to Slater and Gordon received regulatory clearance in May to enable completion of the 637m deal. Silverbeck Rymer, Pinto Potts, The Compensation Lawyers, costs firm Compass Law, Accident Advice Helpline and Mobile Doctors will all now come under the Slater and Gordon umbrella although it is understood that they will focus on the fast track personal injury market and may be branded separately. Meanwhile Quindell looks forward to a different future with a number of changes to their Board, including the appointment of former Conservative Party leader Michael Howard as senior non-executive director. Some of the findings of the independent review by PwC have been published, including that some policies in relation to NIHL revenues and related balances were "not appropriate". QLS are presently undergoing a rebranding process and a new trading name is likely to be announced this summer. The current focus on NIHL claims may not be maintained under the new regime although with reports of over 50,000 NIHL claims in the pipeline the claims market will be seeing Quindell NIHL claims for a good few years. Cabin fever: Aerotoxic syndrome Unite have announced that it is funding 17 claims by both former and current cabin crew for injury arising out of breathing cabin air contaminated with engine oil and other toxins, particularly organophosphates. Whilst claims of injury arising from cabin fumes are not new, it appears such claims have been given added impetus following a Regulation 28 Report to prevent future deaths which was issued by a coroner in February this year following the death of Richard Westgate who was a British Airways pilot. The report said that fumes pose a health risk to frequent fliers and air crew, particularly those genetically susceptible to the toxins.
It is alleged that faults in the system which circulates compressed air from aircraft engines into the cabin allow contamination of the air with oil particles and other toxins. Some ill effects may be immediate but more often it is thought that ill health results from toxins accumulating in the body. Aerotoxic syndrome is alleged to have caused a wide variety of symptoms including loss of consciousness during flights, headaches, respiratory problems, neurological damage and cognitive dysfunction including memory loss. There have been calls for increased air monitoring during flights and research into the range of ill effects. The Department for Transport s has said that cabin air conforms to current health and safety regulations. We expect the claims to be defended not only in respect of breach of duty but also on causation grounds as the alleged conditions all have constitutional and idiopathic causes. Mesothelioma (Amendment) Bill 2015 Lord Alton introduced this private members bill to amend the Mesothelioma Act 2014 (which provides for payments to those with mesothelioma who are unable to bring a claim for damages against a relevant employer or employers liability insurer). The bill is to provide for a revision to the levy on insurers to include a research supplement of an amount not exceeding 1% of the levy. The bill had its 1st reading in the House of Lords on 2 June 2015. Cost of claims: court fees HM Courts & Tribunals Service (HMCTS) annual report and accounts revealed that the civil courts recovered 92% of their expenditure in fees during the financial year 2014-15, an improvement on the previous year. Taking into account the huge fee increases which came into effect in March this year for civil claims worth more than 10,000 (the fee on issue of proceedings is 5% of the value of their claim, up to a cap of 10,000) recovery will surely now create a surplus whilst unsuccessful defendants will fund the resulting increase in claimant s costs. Case law update Mesothelioma: Apportionment and contribution. Zurich Insurance PLC v International Energy Group Ltd [2015] UKSC 33 IEG had paid compensation for a mesothelioma claim arising out of its employee s negligent exposure to asbestos over a 27 year period of employment in Guernsey. IEG then claimed indemnity from Zurich who had provided EL insurance cover to IEG for 6 of the 27 years. The Supreme Court had to consider the position as between an employer responsible for exposing an employee to asbestos and its insurers where insurance cover had only been taken out or was only traced for part of the exposure period. The case was subject to Guernsey law which did not include an equivalent of the Compensation Act 2006 and therefore it was held that the common law position, in accordance with Barker v Corus, must be applied. It was held that Zurich was liable to indemnity IEG for its proportionate share only. The court went on to consider the position where the Compensation Act 2006 applies. The majority accepted that an insurer for a part period of exposure would be liable to pay 100% of the sums due to a claimant but also held that the insurer would have a separate equitable right to recover a proportionate contribution from any coinsurers and from the insured in respect of any uninsured period. With Barker v Corus confirmed as good law, we now await the outcome of the claimant s appeal in Heneghan v Manchester Dry Docks Ltd & others which is due to be heard by the Court of Appeal before November if, in the light of this judgment, it does proceed.
Pleural plaques in Scotland and Northern Ireland McCauley v Harland and Wolff Plc & Royal Mail Group Ltd 20 May 2015 In this case, the Northern Irish Court of Appeal considered the assessment of quantum for asbestos related pleural plaques for the first time since the Damages (Asbestos Related Conditions) Act (Northern Ireland) 2011 came into force (which reversed the House of Lords decision in Rothwell v Chemical Engineering and made pleural plaques a compensatable injury in Northern Ireland). Mr. McCauley developed pleural plaques which caused him anxiety and stress. With reference to levels of awards in relation to lung injuries and scarring injuries, the court concluded that asymptomatic pleural plaques on their own would be valued in the region of 3,000. Using that figure as a starting point, the court acknowledged that the diagnosis of pleural plaques would at least, in the short term, cause anxiety and distress which was accepted by the trial judge in the present case. However, they also acknowledged that each case would turn on its own facts and circumstances. Finally, with the exception of cases which may involve serious psychiatric sequelae, it was unlikely that a claimant would recover more than 15,000 even with prolonged anxiety and stress. Following that analysis, the court upheld the trial judge s award of 10,000 and concluded that it was at the top end of the permissible range and that it was not open for it to intervene. We now await the judgment in the Scottish plaques case of Wales v MOD. Judgment was reserved in that case pending the decision of the Northern Irish Court of Appeal. The Court of Session in Edinburgh is to hear further submissions on 2 July. It remains to be seen whether and how the judgment may impact on the informal Framework Agreement between insurers and representatives of claimants solicitors in Scotland which established a tariff for full and final and provisional damages in respect of pleural plaques. Mesothelioma: damages Ghoorah v West Essex Clinical Commissioning Group and others This is a recently reported decision of HHJ Gore sitting as deputy High Court Judge in a fatal mesothelioma claim. The total award made to the claimant was 605,154. The judge awarded 87,500 for pain suffering and loss of amenity. The deceased s symptoms commenced in about April 2012. He underwent chemotherapy, several blood transfusions and a CT guided biopsy. He died 17 March 2013 and accordingly the disease ran its course over a little under a year. It appears the position was complicated by the fact that the deceased suffered a myocardial infarction in December 2012 and had a stent inserted in his right coronary artery but the judge s conclusion was that the myocardial infarction did not make any difference to the course of the mesothelioma and contributed only two or three days symptoms. An award of 5,000 was made in respect of the cost of flights for relatives to attend the funeral from Mauritius and for the widow to deal with the deceased s ashes in accordance with his beliefs and wishes. The judge awarded 15,000 for loss of intangible benefits/love and affection. The overall award reflected the extent of the dependency claim made by claimant on her own behalf and on behalf of two dependent children aged 9 and 5. It is presumed that the award for loss of intangible benefits also reflected the loss of the deceased to the two children as well as the claimant. Nevertheless an award of 5,000 each represents a generous award under this head of claim. The award for pain suffering and loss of amenity also appears high on the basis of the available information but, no doubt, the judge was sympathetic to the claimant. This is an example of a case which will be quoted on behalf of claimants in future although it has to be considered in the context of its own facts.
On the horizon The development of successful treatments for mesothelioma and lung cancers An analysis of 8,740 mesothelioma cases from England and Wales included in the U.K. National Lung Cancer Audit from 2008 to 2012 has highlighted that incidence of mesothelioma cases rose annually over the period of the study in line with predictions that the incidence of mesothelioma will continue to rise in the U.K. until it peaks in 2020. Average survival time in the study increased from 9.2 months in 2008 to 10.5 months in 2012. Use of chemotherapy was increasing but only 67% of patients underwent anti-cancer treatment and radical surgery was uncommon. The study also noted a variance in treatment and outcomes between different hospitals and recommended initiatives to improve access to the whole range of diagnostic and treatment options to improve outcomes for patients. A study in the United States found substantially increased survival times for patients with peritoneal mesothelioma. There was a median survival rate in excess of six years for those within the study. The increase was attributed to cytoreductive surgery coupled with heated intraperitoneal chemotherapy. Also in the United States a clinical trial of immunotherapy treatment has been undertaken with lung cancer patients in the United States. Those treated with immunotherapy survived on average for 3.2 months longer as compared to those treated with conventional chemotherapy. We may see more claimants seeking treatment outside their own area or even privately. The courts tend to deal with claims for additional cost and expenses in such cases sympathetically unless the medical evidence fails to give any support to the treatment. Hearing Loss and dementia A recent study by researchers at University of Colorado has said there may be a link between hearing loss and dementia. Evidence from brain scans indicated that the portion of the brain used in hearing can become re-organized and shrink possibly playing a role in memory loss. A link between hearing loss and dementia is a not new finding. Previous research has identified how genetic mutations in DNA can cause central and peripheral neurodegeneration associated with both dementia and hearing loss. Whilst there appears to be evidence to support an increased incidence of dementia in those with hearing loss, and, that shows that incidence of dementia increases in correlation with increased levels of hearing loss, it is not clear whether hearing loss is an indicator of early stage dementia or a risk factor for dementia. It appears to be age-related hearing loss that is associated with dementia but there are potential repercussions in the context of noise induced hearing loss claims. Any additional noise induced hearing loss may be considered to have a disproportionate effect on an already disabled claimant. Researchers advocate earlier use of hearing aids to protect against reorganization of the brain. Air pollution Last month we reported that environmentalists had successfully challenged the government s proposed emissions targets for diesel cars on the basis that they failed to comply with the current ED directive. Environmentalists are now challenging the emission limits proposed by the EC for updating the EC Industrial Emission Directive. An EA study commissioned by the European Environment Bureau (EEB) and Greenpeace says that emission limits proposed for an updated Directive are insufficient and will result on increased incidence of air pollution related cardiac and respiratory illness. The study seeks emission levels based on best available techniques for coal powered power stations which they calculate will save lives and improve health with consequential financial benefits as shown below.
Asbestos exposure: an ongoing problem Reports of risks and actual incidences of uncontrolled asbestos exposure continue to hit the press. Substantial quantities of asbestos containing materials containing materials remain in the Houses of Parliament amid a building fabric which has deteriorated faster than repairs can be carried out. A laboratory design and installation specialist was fined after exposing workers, pupils and teachers to asbestos material during refurbishment work at a school in Suffolk. It was found that the company had failed to arrange for a detailed Refurbishment and Demolition Asbestos Survey to be undertaken as required by current regulations as a result of which sub-contractors disturbed asbestos as they were removing a wall and channelling the floor. A council was prosecuted and fined after it was found that staff and visiting contractors were exposed to asbestos when working without protection in the basement of a council building. No adequate action had been taken after the asbestos had been identified in a survey in 2002. The Construction (Design and Management) Regulations 2015, which came into force on 6th April this year, bring many smaller operational and maintenance projects within its scope for the first time, and place new obligations on clients and facilities managers throughout the UK. The regulations make the client (the organisation or individual for whom a construction project is carried out) accountable for the impact of their decisions on an approach to health, safety and welfare on the project. The client must ensure that the principal contractor provides a Construction Phase Plan to set out how the work will be managed safely. In a property constructed before 2000 this will involve undertaking a full Refurbishment Survey to reveal any potential asbestos materials which might be in the vicinity of the area where works are planned.
For further information about Weightmans LLP or to discuss any of the issues in this newsletter, please contact: Jim Byard, Partner via jim.byard@weightmans.com or 0116 253 9747 Judith Peters, Consultant via judith.peters@weightmans.com or 0151 242 7962 Joanna Hector, Solicitor via joanna-louise.hector@weightmans.com or 0116 242 8916 Weightmans LLP June 2015 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, e-mail, 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.