December 2020 Edition
BC DISEASE NEWS A MONTHLY DISEASE UPDATE
CONTENTS
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Welcome Welcome
PAGE 3 Welcome to the 318th edition of BC Disease News.
Calculating In this issue, we provide a thorough review of the law on damages for special Accommodation Claims in accommodation in personal injury claims. We do so in light of the recent case of a Negative Discount Rate Swift v Carpenter & Anor [2020] EWCA Civ 1295, which offered an alternative Era: Swift v Carpenter & Anor means of compensating claimants to the traditional Roberts v Johnstone award. [2020] EWCA Civ 1295 Moreover, we analyse the full findings from the Institution of Occupational Safety and Health’s (IOSH) Diesel Exposure Mitigation Study (DEMiSt), which were PAGE 5 released several months later than expected.
Guideline Hourly Rates Our final article of the week is a review of newly published epidemiological Subjected to 35% Inflation- literature, which identified a range of occupational carcinogens, employment Related Uplift ‘as a Starting sectors, job titles and specific work tasks that are strongly associated with Point’: Cohen v Fine & Ors urothelial (bladder) cancer. [2020] EWHC 3278 (Ch) Any comments or feedback can be sent to Boris Cetnik or Charlotte Owen. PAGE 6 As always, warmest regards to all.
Professional Drivers
‘Surprised’ to Discover Their SUBJECTS Diesel Exposure Levels, as IOSH Publishes Full DEMiSt Special Accommodation Awards, Roberts v Johnstone and the Personal Injury Study Findings Discount Rate – Guideline Hourly Rates – Professional Drivers and Diesel Exhaust Emission Exposures – Occupational Stress, Brain Damage and Cognitive Decline PAGE 7 – Occupational Bladder Cancer Carcinogens.
Colorado State Researchers Find ‘First Evidence’ that Occupational Stress Accelerates Brain and Cognitive Ageing
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Sheffield University Academics Publish In-Depth Review of Occupational Bladder Cancer and its Associated Carcinogens
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Calculating Accommodation Claims in a Negative Discount Rate Era: Swift v Carpenter & Anor [2020] EWCA Civ 1295
In June of this year, legal commentators began to speculate that Swift v Carpenter & Anor [2020] EWCA Civ 1295 would depart from Roberts v Johnstone [1989] QB 878, which has been the leading case authority on assessments of damages for special accommodation in serious personal injury claims for many years.1
When claimants sustain life-changing physical injuries that impair mobility, their pre-injury accommodation is often no longer suited to their post-injury requirements and new accommodation is sought. It is normal for new accommodation to exceed the value of the victims’ previous accommodation.
For decades, claimants have disclosed the capital value of a replacement home, but Roberts dictates that courts should only compensate claimants for the annual loss of income brought about by spending their own money on accommodation, in preference to making investments.
To calculate damages awarded for special accommodation under Roberts, the correct procedure involves multiplying the capital property cost (the difference between the value of the old and new accommodation) by the prevailing personal injury discount rate (2% in 1989) and then multiplying that figure by the multiplier for pecuniary loss of life (using Tables 1 and 2 of the Ogden Tables2).
Even though moving, adaptation and running costs have always been recoverable, in order to fully fund new property purchases, claimants have often needed to supplement Roberts v Johnstone awards with damages from other heads of loss (invariably general damages, but potentially other heads of special damages if there has been a deduction for contributory negligence).
For example, under the previous 2.5% discount rate (effective up to 2017), a 51-year-old male claimant moving from a £300,000 home to a £550,000 home would have received:
In this scenario, there would be a £110,812.50 deficit to cover the whole value of the new property.
However, this would be deemed fair, because awarding claimants the full capital cost of special accommodation would result in over- compensation by the time that the claimant died, i.e. the value of the asset would be expected to have enhanced.
Since Roberts was handed down in the 1980’s, the personal injury discount rate in England & Wales has shifted upwards to 2.5%, then downwards to (-)0.75% and then back up to (-)0.25%.
So, what impact has successive negative discount rates in recent years had on special accommodation claims?
At first blush, the issue with the Roberts approach is plainly that the multiplicand can only be generated if the assumed rate of return is at or above 0%. This was foretold in the 19th edition of McGregor on Damages (published July 2014), at paragraph 38.204 of the section on special accommodation expenses:
‘It is high time that the Roberts v Johnstone problem was tackled and a fair and proper solution found and adopted. The Law Commission looked into the matter some time ago but found it too difficult to formulate an acceptable solution and so recommended that the Roberts v Johnstone method be retained. The Ogden Working Party is fully aware that the law needs to be righted and has it in mind to investigate the issue in the near future. What could trigger action on this front is a further reduction in the discount rate, the possibility of which, as we have seen, is very much in the air. It is true that, as the discount rate lowers, the multipliers increase, but an examination of the figures in the tables in Ogden shows that the increases in the multipliers do not come anywhere near to balancing, or off-setting the effect of, the fall in the discount rate. Ironically the injured party will get more for care but less for special accommodation. Indeed should the discount rate
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move into the negative, which is highly In June of this year, an opportunity to regarded as full, fair or reasonable unlikely but did happen in the Guernsey change the status quo arose at the Court of compensation to award nil damages in case in the Privy Council of Helmot v Simon, Appeal, in Swift v Carpenter & Anor [2020] respect of a large established need, on the the Roberts v Johnstone method becomes EWCA Civ 1295. The claimant in this action basis that, if all the relevant predictions hold unworkable; it would produce a nil award’. suffered leg injuries in a road-traffic good over many decades to come, there accident (RTA), which resulted in a below- will arise a windfall to a claimant's estate. Such an outcome materialised in the case knee amputation and the need for larger Nor is it fair or reasonable compensation to of JR v Sheffield Teaching Hospitals NHS accommodation, at a cost of £900,000. follow the Roberts v Johnstone approach Foundation Trust [2017] EWHC 1245 (QB), She was 43-years-old at the date of trial on the basis that if all the same predictions wherein Mr. Justice Davis deemed himself [43.58-years-old for the purpose of Ogden hold good, there will in addition be in bound to follow Roberts and the ‘proper’ (7th edition]). existence a suitable market to enable a consequence of doing so was to order a ‘nil claimant, by then elderly or aged, to award’, in respect of the cost of special To cut a long story short, the outcome of release equity at a reasonable cost and accommodation. Swift was that Lord and Lady Justices Irwin, without unacceptable disruption’. Davies and Underhill unanimously There was ‘no foundation’ for awarding any overturned Lambert J’s High Court ruling,4 By prioritising the need to avoid a windfall more (or less) than a ‘zero figure’ under the which had followed Roberts and made a above the need to establish fair and Roberts formula, seeing that there was ‘no ‘nil award’. reasonable compensation, Irwin LJ found ability to obtain any positive return on a that the present-day effect of Roberts is to capital fund based on risk-free investment’, In so doing, the judges rejected the ‘put the cart before the horse’. He therefore i.e. nothing to compensate for: defendant’s submission that they were proposed to bring an end to this by bound by the House of Lords’ decision in reinstating the ‘cardinal principle’ and ‘I consider that the editor of McGregor was Wells v Wells [1998] UKHL 27, which followed awarding 100% compensation. quite correct when he opined that a fair Roberts: and proper solution should be found to the Replacing Roberts, the Court of Appeal conundrum of providing a claimant with ‘It appears to me that the reasoning in decided that the correct approach would the means to purchase special Roberts v Johnstone was a means to an end be to compensate the claimant for the accommodation. He also was correct rather than a principle, or end in itself. If capital value of new accommodation, less when he suggested that a negative there is a justified call to alter the means by ‘reversionary interest’, i.e. the value of the discount rate would mean that the which that end (fair compensation but not ‘windfall’ that would be accrued over a approach in Roberts v Johnstone would overcompensation) is reached, and prolonged time period. This discount was lead to a nil award. But I am not in a another means is available, it appears to based on a ‘market valuation’, but is not to position to find "the fair and proper solution" me this court should be ready to be ‘regarded as a straitjacket to be to the problem as a whole. I am faced contemplate a change in the guidance to applied universally and rigidly’ – per the simply with the case of this Claimant. In his be given’. request of the Personal Injuries Bar case maintaining the conventional Association (an intervening party): approach would provide him with the full Providing justification for the Court’s capital cost of the accommodation, deviation from Roberts, Irwin LJ touched ‘There may be cases where this guidance is something which clearly would be wrong’. upon the ‘degree of conjecture, the inappropriate. However, for longer lives, complexity and uncertainty of outcome’, during conditions of negative or low Even though the Roberts approach had the ‘damage to the integrity and positive discount rates, and subject to previously been described as ‘imperfect coherence of the court's overall approach particular circumstances, this guidance but pragmatic’,3 Davis J accepted that to compensation’ and the significant should be regarded as enduring’. there would be cases where, in the constraint put on the capacity of the absence of substantial general and special claimants to protect themselves from future Taking a ‘deliberately cautious view’, the damages, claimants would be left with ‘no contingencies, all of which had been appropriate discount to be applied in Swift prospect at all of obtaining special symptoms of Roberts v Johnstone awards was based on a 5% rate, this being the accommodation which they ought to have’ under a negative discount rate: lowest individual return on investment in the wake of a ‘nil award’: indicated by expert actuary, Mr. Brian ‘It is my view that, in the context of modern Watson. ‘This … only serves to emphasise the need property prices and a negative discount to find a proper solution to the rate, the formula in Roberts v ‘Reversionary interest’ was assessed at accommodation conundrum’. Johnstone no longer achieves fair and £98,087, yielding an award of damages for reasonable compensation for an injured special accommodation of £801,913 – this claimant. In my view, it cannot be represents a dramatic reversal from the
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lower court’s ‘nil award’. Unhelpfully, though, the judgment transcript did not specify exactly how the final damages award was calculated, except for the fact that the formula incorporated the capital value of the property, a 5% discount rate and an Ogden multiplier of 45.43.
Obligingly, we turn to 39 Essex Chambers and Guildhall Chambers for advice, both of which derived the correct method of calculating ‘the sum in today’s money which will grow at 5% p.a. into the value of the windfall’.5
Full text judgment can be accessed here.
N.B, A week or so after judgment was handed down, the Law Society Gazette confirmed that the defendants in Swift intended to seek the Court of Appeal’s permission to take the case to the Supreme Court.6
Until an appeal is heard, though, it is safe to say that awards in the vast majority of ongoing cases will increase under the ‘reversionary interest’ approach, with practitioners and insurers being urged to review current schedules and offers.
Guideline Hourly Rates Subjected to 35% Inflation-Related Uplift ‘as a Starting Point’: Cohen v Fine & Ors [2020] EWHC 3278 (Ch)
A common theme in recent editions of BC Disease News has been the ongoing review of Solicitors’ Guideline Hourly Rates (GHR), which are currently based on figures that were fixed in 2010 and most recently reviewed in 2014.
Our articles have covered decisions in Ohpen Operations UK Ltd v Invesco Fund Managers Ltd [2019] EWHC 2504 (TCC) and PLK & Ors (Court of Protection:Costs) [2020] EWHC B28 (Costs), both of which emphasised the growing need for present day rates that are reasonable, equitable and satisfactory.
Most recently, in edition 316 (here), we reported that swathes of litigators had been inspired by the landmark ruling in PLK, wherein Costs Master Whalan (who was not personally empowered to review or amend GHR) inflated costs by 20% above current GHR, to request similar outcomes ‘across the board’ (i.e. not restricted to Court of Protection actions) – an ‘unprecedented step’ became spill-over litigation.
It is ‘optimistically’ hoped that the Civil Justice Council’s (CJC) GHR Working Group will publish new recommendations by the end of 2020, though this informal timeline is largely predicated on the level of legal professional engagement with the Group, which has been in short supply.
However, an end to the debate on legal professionals’ fees may not in fact be in sight, as the Ohpen case has now been used, not only to question the appropriateness of solicitors’ GHR, but also the Table of Counsel's Fees.
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This unfolded in the case of Cohen v Fine & At the time, we anticipated that Ors [2020] EWHC 3278 (Ch), with His Honour Professional Drivers comprehensive DEMiSt findings would be Judge Hodge QC (who incidentally sat on ‘Surprised’ to Discover published in Q1 of 2020. the CJC’s Foskett Sub-Committee during the 2014 rate review) stating as follows: Their Diesel Exposure However, it was only earlier this month that Imperial College London shared a link to ‘In my experience of sitting in the Business & Levels, as IOSH the full and final report.9 Property Courts, both in the North-west and in the Rolls Building, the present Guideline Publishes Full DEMiSt Within the report, the researchers stated Hourly Rates are considerably below the Study Findings that their baseline study conclusions rates actually being charged by the alluded to 11,492 hours of exposure data solicitors who practise in those courts. pertaining to 141 professional drivers – Likewise, the Table of Counsel's Fees bears Until recently, the MRC Centre for specifically exposure to black carbon no relationship to the fees which the courts Environment and Health was leading the (containing particulate matter), which was see being charged for counsel appearing Institution of Occupational Safety and a proxy measure (chosen ahead of in the Business & Property Courts. In my Health’s (IOSH) Diesel Exposure Mitigation hydrocarbons, carbon monoxide or judgment, pending the outcome of the Study (DEMiSt) – the centre for excellence is nitrogen oxides) of difficult-to-quantify DEE. present review, the Guideline Hourly Rates a partnership between Imperial College should be the subject of, at least, an London (the lead institution), King’s College On average, 18.6% of the professional increase that takes due account of London, the London School of Hygiene and drivers’ time was spent ‘at work driving’ and inflation. Using the Bank of England Inflation Tropical Medicine and St George’s this accounted for 36.1% of their total black 7 Calculator, it seems to me that an increase University of London. carbon exposure. Meanwhile, 54.4% of in the (Band One) figures for Manchester their time was spent ‘at home’, but this was and Liverpool broadly in the order of 35% DEMiSt was designed to investigate the only responsible for a 31.8% contribution would be justified as a starting point impact of exposure to diesel engine towards their total black carbon exposure. (appropriately rounded-up for ease of exhaust emissions (DEEE) on the health of calculation)’. urban professional drivers – an area of Moreover, drivers were exposed to 4-times ‘surprisingly little research’ – and is the more airborne black carbon [4.1 At first instance, DJ Matharu summarily ‘largest real-world in-vehicle personal micrograms per cubic metre of air (µg/m3)] assessed costs in the sum of £27,000 exposure study to date’. With around 1 when ‘at work driving’ than when ‘at home’ (inclusive of VAT, counsel's fees and million UK taxpayers working in the sector, it (1.1 μg/m3). Taxi drivers were among the was hypothesised that occupational health disbursements). most exposed (6.5 µg/m3), closely followed issues were being ‘under-appreciated’ and by couriers (5.5 μg/m3), waste removal even ‘overlooked’. On appeal, however, HHJ Hodge QC set drivers (4.3 μg/m3), heavy freight drivers (3.9 aside the existing order and conducted a μg/m3), utility service drivers (3.1 μg/m3) and The current epidemiological position is that line-by-line re-assessment of the claimant’s emergency service drivers (2.8 μg/m3), DEE likely increases the risk of developing costs bill. Accounting for the impact of while bus drivers were the least exposed lung cancer [see the International Agency inflation on GHR, he calculated costs in the (2.3 μg/m3). total sum of £35,703. for Research on Cancer’s (IARC) Group 1 8 carcinogen classification, in 2012 ], Full text judgment can be accessed here. chronic obstructive pulmonary disease (COPD), heart disease, type-2 diabetes and As 2020 draws to a close, we will be paying infertility. We also recently reported (here) close attention to the CJC’s press office for that air pollution, which comprises of DEE, any new developments on this enduring has been associated with heightened issue. incidence of Parkinson’s disease and dementias.
Back in edition 291 of BC Disease News (here), we notified our readers that preliminary DEMiSt observations had been presented at the European Respiratory Society (ERS) International Congress, on 29 September 2019.
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µg/m3 throughout the course of a shift. Albeit this indication was inconclusive and requires further research to be validated.
In the context of COVID-19, the British Occupational Hygiene Society (BOHS) not only welcomed DEMiSt findings, but also warned against drivers adopting mitigating measures to minimise exposure to coronavirus (SARS-CoV-2), e.g. opening windows or turning on external fan ventilation. In this way, it appears that the Society is more concerned about the prevention of inadvertent black carbon inhalation in vehicles than the risk of viral transmission.10
Colorado State
[Source: Flickr – Garry Knight (30 September 2016): ‘Taxi Traffic’] Researchers Find ‘First It was also the case that drivers experienced spikes of black carbon exposure, peaking at Evidence’ that 100 µg/m3 and lasting up to 30-minutes, as fumes lingered in vehicle cabins. These peaks typically occurred in congested Central London traffic, car parks, depots, tunnels and Occupational Stress ‘street canyons’ (between high buildings). Accelerates Brain and Lead researcher and Senior Lecturer at Imperial College, Dr. Ian Mudway, remarked that it was noticeable to see ‘just how surprised drivers taking part in the study were at the levels Cognitive Ageing of their exposure to diesel’. In the journal, Frontiers in Human Naturally, the researchers wrote that moving to zero tailpipe emission vehicles with airtight Neuroscience, academics at Colorado cabins would be the most effective way to curb DEE exposure, both for drivers and for the State University have not long published the general pollution. Widespread policy measures designed to ease congestion and limit results of an investigation of 99 adults (70 emissions have also been touted as ways to avoid adverse health implications for women and 29 men), between the ages of professional drivers. However, it was acknowledged by the experts involved in this project 60 and 79, to see what impact demanding that there are significant costs and technological obstacles to bringing about drastic work has on brain health.11 change. To enable this exploration, the research As a result, the following low-cost changes were also recommended as intermediate steps team characterised the study participants’ to lessen occupational exposure [additional to turning off engines, installing tailpipe most recent employment (full-time or part- exhaust extraction systems and wearing FFP3-standard masks, per the instructions of IOSH – time and lasting 2-years or longer) by see our article on the No Time To Lose (NTTL) Pocket Card on DEEE exposure, which featured measures of cognitive complexity (task in edition 294 (here)]: variety, job complexity, information • Always drive with windows closed. processing, problem solving, skill variety, • Use the recirculating ventilation function with vehicle windows closed, but only for and specialization), psychological stress short periods in high pollution areas. (workload and interpersonal conflict) and • Carefully consider route choice to avoid areas of high congestion and try to avoid physical stress (physical demands and work tunnels. conditions). • Reduce driving frequency during peak evening hours (4 pm to 7 pm). • Move shifts from weekdays to weekends. Interestingly, what they found was that • Rotate drivers if there is a risk of isolated workers being disproportionately exposed. physical stress had the strongest • Use in-cabin filters in certain circumstances. relationship with negative neurological consequences. Specifically, magnetic Underpinning this advice was the revelation that driving with windows open rather than resonance imaging (MRI) and tests of closed produced a 0.44 µg/m3 increase in exposure. What is more, DEMiSt’s supplementary cognitive function showed physical stress to intervention study of 42 drivers indicated that in-cabin filters decreased exposure by 0.40 be associated with smaller hippocampal
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volume and poorer memory performance. A weak association was also detected between older adults. In this instance, scores from a psychological stress and poorer memory performance. 10-item Physical Activity Scale for the Elderly (PASE) conveyed a positive Smaller Hippocampal Volume? association between heightened activity levels and size of the hippocampus. The hippocampus is a sea horse-shaped structure, located in the inner region of the temporal lobe of the brain, which is thought to be principally responsible for the storage It was therefore acknowledged that more and recall of long-term episodic memories, but also plays a role in the regulation of research is needed to appreciate the emotional responses, spatial processing and navigation.12 connection between occupational physical stress and the structure and function of the hippocampus, a site where occupational stimulation and stress may coalesce [it was originally hypothesised that those who experienced more cognitive complexity at work would have larger hippocampi and better cognition, per Suo et al (2012),14 but this theory was not confirmed by the Colorado investigation].
Worse Memory Retention?
Over the past decade, multiple published works have demonstrated that those who report high levels of physical work strain suffer drop offs of memory function and general cognition – see Gow et al (2014),15 Sindi et al (2017)16 and Dong et al (2018).17
(Source: Pixabay) Similarly, older epidemiological papers have professed that physically demanding Both healthy ageing and dementia can prompt the hippocampus to reduce in volume. occupations (e.g. farmers, service employees and blue-collar workers) carry a To-date, ‘the evidence for the effects of occupational stimulation and stress on the higher risk of memory or cognitive hippocampus is scarce’. deterioration than those in less physical occupations (e.g. professional and However, results from the present study endorsed Nyberg et al’s (2017)13 brain maintenance managerial roles) – see Dartigues et al model of cognitive ageing, which states that the presence of a stressor can result in the (1992a),18 Dartigues et al (1992b)19 and depletion of brain health and memory, while the absence of that stressor can be protective. Frisoni et al (1993).20
Looking more deeply at the individual components of physical stress as ‘the stressor’, The fact that participants in this latest study, correlations indicated that it was physical demands (e.g. the need for muscular strength, who endured greater levels of endurance, and physical effort), as opposed to work conditions (e.g. environmental occupational physical stress, performed hazards), that were mostly driving the observed negative association with hippocampal less successfully in episodic memory volume. testing, converges with the collection of extensive of research that preceded it and What is more, since the majority of the test subjects did not, objectively speaking, have does not appear to be coincidental. physically demanding occupations, it was significant that the workers themselves considered their own occupations (subjectively speaking) to be physically demanding, e.g. Nonetheless, more research has been excessive reaching or lifting of boxes onto shelves. requested to better understand the weak positive correlation drawn between Perhaps the most intriguing and unforeseen consequence of the team’s findings was that occupational psychological stress and occupational physical demands had the inverse effect of leisure-based physical demands. memory performance. This is warranted by the fact that cognitive regression is still yet Indeed, aerobic fitness, aerobic exercise and resistance training have all been shown, in to be definitively affiliated with stress of this extant literature, to increase hippocampal volume and improve cognitive performance in kind by neuroscientists.
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If validated, Agbenyikey et al (2015)21 Results were published last month, in the exhaust and tobacco cigarette plumes, signals that poorer memory performance Public Library of Science (PLoS) One isolating those unknown sources is fraught and intensified memory decline can be journal.23 with complications. expected around 15 to 21-years after experiencing psychological stress. In the introduction to the scientific paper, This latest UK study sought to build on prior the authors remarked that bladder cancer work, which attempted, albeit ineffectively, Conclusions is one of the most expensive malignancies to explore the hypothesis that patterns of to manage, affecting predominantly older occupational exposure would be linked to Despite having conceded that this study is men in the Western World. particular bladder cancer phenotypes ‘just one piece in the puzzle’ in a field of (observable characteristics).26 ‘fragmented’ research, co-author and According to Cancer Research UK, bladder Assistant Professor in the University’s cancer is the 11th most common cancer in Where previously, a large Scandinavian Department of Human Development and Great Britain, accounting for 3% of new dataset had been used, the present cohort Family Studies, Aga Burzynska, heralded it cases each year (around 10,200). It is also included 454 patients who had been as the ‘the first evidence that occupational the 9th most common cause of cancer treated at the Royal Hallamshire Hospital, in stress can accelerate brain and cognitive mortality, accounting for 3% of annual Sheffield, UK, with a male to female ratio of aging’. deaths (around 5,400). On average, 3 in 4 7:2 (352 men to 102 women). people diagnosed with bladder cancer It is of course possible that neither (England only) have a projected survival of These 454 participants constituted 85% of psychological stress, nor physical stress, 1-year or more, whilst approximately 1 in 2 respondents to a structured questionnaire were responsible for the patterns will go on to live in excess of 10-years or detailing employment, work tasks, known documented. Other potential causes, more.24 exposures, smoking habits, lifestyle and which were omitted from the research, family history. All of them had been include quality of sleep, metabolic The most common bladder cancer sub- diagnosed with primary urothelial bladder disorders (e.g. obesity and diabetes), type is urothelial cell carcinoma (UCC), cancers and held complete chronic pain and inflammation, depression which is caused by exposure to histopathological records. and earlier employment. Recall bias may carcinogens excreted in urine. also have played a part in skewing findings. Following treatment, 1 in 2 suffered with Typically, exposure to bladder cancer recurrent disease, 1 in 4 experienced carcinogens occurs via inhalation of disease progression and 1 in 3 died Sheffield University tobacco smoke and in the course of (average of 8 years post-diagnosis). Fewer Academics Publish In- employment. Up to 10% of bladder than expected deaths were seen in cancers are understood to arise following healthcare workers, whereas garage Depth Review of occupational exposures.25 workers exposed to diesel fuels/fumes, workers who undertook plumbing/gas- Occupational Bladder Bladder cancer carcinogens are broadly fitting/ventilation tasks, workers classified as either aromatic amines, making/handling rubber products, workers Cancer and its polycyclic aromatic hydrocarbons (PAHs), making/using cement, workers involved in Associated heavy metals, or mixed compounds. smelting and welders were all associated Exposure levels have been limited, to a with faster rates of disease progression Carcinogens large extent, by the Carcinogens and and/or more radical treatment methods. Mutagens Directive (CMD) 2004/37/EC, the
Chemical Agents Directive (CAD) 98/24/EC Survey responses revealed that 282 (62%) At the University of Sheffield, researchers and the Control of Substances Hazardous to participants had been in contact with up to have been collating and analysing Health Regulations 2002. Changes made 14 potential occupational carcinogens occupational histories of patients newly to manufacturing processes over time have (average of 3 carcinogens-per-worker), the diagnosed with bladder cancer.22 also had a positive impact on work-related most common exposures including diesel
health. fumes/fuels, coal/oil/gas by-products Tracing backwards, they were able to [combustion products, including polycyclic identify or confirm specific injurious Nonetheless, it is suspected that some high aromatic hydrocarbons (PAHs)] and substances, employment sectors, job titles risk urothelial carcinogens have not yet solvents. Out of a list of 33 tasks, the most and work tasks associated with the fatal been identified and, since those who suffer common tasks undertaken by bladder disease. What is more, they also from this latent condition have been cancer patients were welding, making investigated the level of health risk posed regularly exposed to a cocktail of cement, use of lubricating/coolant oils, by each type of exposure. commonplace carcinogens in diesel soldering/brazing, degreasing and work
involving forging/cooling operations. There
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were discernible differences between the welding, the use of mineral oil, lubricants was also accepted that non-occupational sexes too. Males with bladder cancer were and protective resins, as well as specific diesel exposure (e.g. related to hobbies) generally employed in engineering, steel, jobs that exposed workers to diesel could have impacted on their findings. mining, metalworking and building fumes/fuels. professions. By contrast, female test As regards to other possible study subjects largely occupied roles in service Aggressive bladder cancer was also limitations, the authors eluded to the fact industries, such as hairdressing, laundry especially common among electrical that the sample size was small (especially and healthcare. workers performing welding and soldering when compared against the earlier tasks, which give rise to lead oxide, heavy Scandinavian model), that follow-up time Bladder cancers were distinguished by metal (e.g. arsenic, cadmium, chromium, was immature (median 8.4 years) and ‘stage’ at diagnosis, separating premature nickel, etc.) and colophony (rosin-based could therefore have missed prospective ‘non-muscle invasive’ tumours (normally flux, consisting of acetone and carbon cancer outcomes, that the questionnaires 70% of all cases) in the bladder lining or monoxide) exposure. were self-completed and thus prone to bias connective tissue, from more advanced (exaggerated exposures)/mistake (missed ‘muscle invasive’ tumours (normally 30% of Confining analysis to females only, high key exposures) and finally that the broad all cases) in the muscle wall of the bladder). grading and high staging of bladder range of duration times reported could They were also stratified by ‘grade’, either cancer was shown to impact workers have disproportionately brought attention being categorised as ‘low-grade tumours’ undertaking electroplating processes, to the impact of dose-response [characterised by papillary (finger-like) cutlery manufacture, degreasing and relationships. growth patterns, few genetic alterations painting – evidence of a juxtaposition and indolent behaviour], ‘moderate-grade brought about by sex and occupational A knock-on effect of the small sample size tumours’, or ‘high-grade tumours’ demographics. Females also inhaled more and male-heavy bias was the likely (characterised by aggressive disease, passive cigarette smoke than their male underestimation of bladder cancers tied to genetic/epigenetic instability and multiple counterparts and were more likely to use aromatic amines, including 2- mutations). hair dye. naphythylamine, benzidine, 4- aminobiphenyl and o-toluidine. These Substances Conclusions exposures are common in dyestuff manufacture, rubber, printing, painting For workers exposed to chromium, coal Besides coming to terms with the fact that and textile industries and were associated products and diesel exhaust fumes/fuels, certain phenotypic patterns of bladder with some of the highest bladder cancer higher stage bladder cancer was more cancer had been instigated by a range of incidence rates in an earlier faculty frequently described. work-related factors, the research team investigation involving over 700,000 made a number of other observations, people.28 Evidence dictated that higher grade principally labouring on the theme of diesel bladder cancer affected those who had exposure. recalled exposure to crack detection dyes, chromium, coal/oil/gas by-products, diesel The article’s authors cited the International fumes/fuel and aircraft fuel and solvents Agency for Research on Cancer’s (IARC) (e.g. trichloroethylene). classification of diesel fumes as a Group 1 carcinogen, in 2012,27 and made direct Sectors reference to the fact that there was ‘limited evidence’ of bladder cancer risk at that As regards to higher stage bladder cancer, time. The fact that this latest study showed this predominantly affected workers in that contact with diesel fuels/fumes was engineering and metal industries. associated with high grading and staging of cancer, as well as greater risks of disease Higher grade bladder cancer was more progression, was said to bolster support for prevalent in workers who recounted the carcinogenicity of diesel fumes on the employment in steel, foundry, metal, urothelium. engineering and transport industries. Diesel exposure primarily occurred in male- Occupations and Occupational Tasks dominated welding, soldering, agriculture, building, transport and engine repair Both higher staging and higher grading of sectors and there was some evidence of a bladder cancer was associated with dose interaction with cigarette smoking. It
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References
1 John Hyde, ‘Swift v Carpenter: Accommodation costs dispute reaches Court of Appeal’ (23 June 2020 Law Gazette)
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20 Frisoni GB et al., Principal Lifetime Occupation and MMSE Score in Elderly Persons. Journal of Gerontology, Volume 48, Issue 6, November 1993, Pages S310–S314.
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CONTENTS
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Welcome Welcome
PAGE 3 Welcome to the 319th edition of BC Disease News.
Impact of ‘Lifestyle Choices’ Now commencing our Christmas and New Year sabbatical, this 319th issue is our on Loss of Earnings final publication for the year of 2020. Calculations: Constance v Ministry of Defence & Anor In acknowledgment of this, our extensive feature article is a ‘Horizon Scan’ of the [2020] EWHC 3029 (QB) disease (and wider personal injury) market for the year of 2021. Adopting the same format as last year’s feature, we produce a forensic examination of recent BC Disease News articles, as a means to predict the key topics of discussion for PAGE 4 the year ahead.
When CRU Recoveries One such topic is contact sport-induced brain injury, encompassing the alleged Breach the Human Rights association between heading of footballs and neurodegenerative disease. Act 1998: Aviva Insurance Today, we reveal that both ex-professional rugby players and footballers are Ltd & Anor, R (On the preparing hundreds of negligence claims against the sports’ governing bodies, Application Of) v The in the wake of dementia diagnoses. Secretary of State for Work and Pensions [2020] EWHC Moreover, we identify the specific circumstances in which an insurer’s liability to reimburse Compensation Recovery Unit (CRU) payments is incompatible with 3118 (Admin) Article 1 of the 1st Protocol (A1P1) to the European Convention on Human Rights
(ECHR), following High Court judgment in Aviva Insurance Ltd & Anor, R (On the PAGE 5 Application Of) v The Secretary of State for Work and Pensions [2020] EWHC 3118 (Admin). It Was ‘Only a Matter of Time’ Before Ex-Professional BC Disease News will return in January. Rugby Players Launched Neurodegenerative Disease Any comments or feedback can be sent to Boris Cetnik or Charlotte Owen. Group Litigation, as 40 Ex- As always, warmest regards to all. Professional Footballers with
Suspected CTE Wait in the
Wings SUBJECTS
PAGE 10 ‘Lifestyle Choice’ and Mitigating Loss of Earnings – CRU Payments Incompatible with ECHR – Rylands Law Acting for Rugby Players and Footballers with Dementia Forum of Complex Injury and CTE – Complex Injury Solicitors on GHR Review – ‘Horizon Scan’ of the Disease Solicitors Insistent on ‘Market Market for 2021. Rate’ Approach to Guideline Hourly Rates Review
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Feature: Horizon Scan of the Disease Market for 2021
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noise exposure and firing weapons’. Board damage from rapid changes in air pressure Impact of ‘Lifestyle meetings, which later took place in 2008, or blasts than anyone else’, had he been Choices’ on Loss of maintained a ‘prognosis … of chronic noise re-deployed to military combat, in 2008. induced hearing loss with low mood Earnings Calculations: associated’. On balance, it was likely that the claimant’s army career would have been ‘different’ Constance v Ministry of False diagnostics, based on an erroneous with a timely stapedectomy [more assumption, ultimately led to the claimant’s opportunities (e.g. becoming a UAV Defence & Anor [2020] discharge from the Army on medical instructor), more progression (promotion EWHC 3029 (QB) grounds, in August 2011. Thereafter, he from Sergeant to Staff Sergeant) and more worked as a postman. years of service (completing his 22-year commission in January 2017)]. On 11 November 2020, the High Court It was only in 2012 that the claimant came handed down judgment in the case of to fully understand that his hearing loss was Having addressed this hypothetical Constance v Ministry of Defence & Anor conductive, i.e. not caused by his alternate version of events, it was then [2020] EWHC 3029 (QB). employment. necessary for the judge to consider the claim for loss of congenial employment. This regarded a claim in negligence, What is more, it was not until this time that Such a claim was payable where, ‘as a brought by a former Royal Artillery soldier the claimant learned that hearing aids result of the negligence of the Defendant, who had suffered hearing impairment, and were not the only way to address his a Claimant loses out on a role which has dealt with issues surrounding quantum of otosclerosis. It was ‘quite a shock’ for him to given him purpose and fulfilment and damages – most intriguingly discussing the discover that a stapedectomy operation instead undertakes a job which provides duty to mitigate losses when compensation (where a small piston is inserted into the him with less job satisfaction’. for loss of earnings is sought. bones of the middle ear) could in fact cure him: Per Otton J, in Hale v London Underground Having initially noticed that his auditory Ltd. [1993] PIQR Q30, this type of loss is ‘well function was deteriorating in 2001, the ‘… it seems … likely that the fact that his recognised’ as a ‘separate head of claimant in Constance first reported hearing loss was caused by a defect in the damage’. concerns to his Medical Officer, in 2004. He bones in his middle ear was never was subsequently referred to see a discussed with him in a way that he was Thanks to David Foskett QC, in Pratt v Collie consultant otolaryngologist on multiple able to understand. If it was never Smith [Unreported, 2002], it has also been occasions, in 2005, followed by various explained to him that the problem with his confirmed that compensating loss of other GPs and an Ear, Nose and Throat (ENT) hearing was changes to the bone structure congenial employment is uncompromised surgeon thereafter. in his middle ear, it seems likely that he was by the prospect of double compensation. never advised that these bone structures Despite the fact that clinicians had could be corrected by surgery as an In the present case, it was therefore open correctly identified that the claimant was alternative to struggling on with hearing for Mr. Lock QC to award damages for the suffering from conductive hearing loss, aids’. claimant’s loss of employment satisfaction caused by otosclerosis, when his case was resulting in psychiatric illness, even though presented to the Army Medical Board, it The claimant went on to have surgery in there was some overlap with his distinct was clear that the Board members were 2013, which abated both his otological order of £9,000 to compensate the pain, under the impression (albeit in the face of condition and his psychiatric condition suffering and loss of amenity (general inconsistent audiograms) that he had (linked to his hearing loss). But for the damages) brought about by psychiatric developed permanent and untreatable defendants’ negligence, this same injury (100% paid by the 1st defendant and sensorineural hearing loss as a result of procedure would have been carried out by 78% paid by 2nd defendant). excessive noise exposure. Further, that September 2006, at the latest. hearing aids were not alleviating his From 2008 to 2011, when the claimant took condition. Undertaking a counterfactual analysis, up his ‘unfulfilling’, non-career Mess sitting Deputy High Court Judge, David Lock Manager post, and from 2011 to 2017, Illustrating this misunderstanding, in 2006, QC, reasoned that the claimant’s post- when the claimant was hired as a postman, the Board concluded that the claimant, operative hearing would have been, ‘for all there were 2 distinguishable levels of who was in the process of being transferred practical purposes, entirely adequate and congeniality experienced. The former from his role as Unmanned Aerial Vehicle he would not have needed to rely on period commanded damages of £1,500- (UAV) Mission Controller to working as a hearing aids’. Further, that he would not per-year and the latter period commanded Mess Manager, should be ‘restricted from have been ‘at any greater risk of further ear damages of £500-per-year – a total of
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£7,500 under this head of loss (100% paid health was fragile and the job with the Post Office offered him the opportunity to work in a by the 1st defendant and 67% paid by 2nd reasonably low-stress environment and thus rebuild his confidence after his experiences of defendant). the past few years. I reject the submission that his damages should be discounted because he should be treated as someone who ought to have chosen a career path after being The judge then moved on to discuss the medically discharged which would have led to him securing a higher paid role’. claim for loss of earnings, between the date of the claimant’s early discharge from the Full text judgment can be accessed here. Army (10 August 2011) until the date he would have left the army in any event (17 January 2017). When CRU Recoveries Breach the Human Rights Act 1998: Aviva Insurance Ltd & Anor, R (On the The defendants’ bone of contention, here, was that they should not be held Application Of) v The Secretary of State for Work responsible for the claimant’s ‘lifestyle choice’ to become a postman, earning a and Pensions [2020] EWHC 3118 (Admin) lesser salary than he could have brokered had he chosen to work as an HGV driver Under the Social Security (Recovery of Benefits) Act 1997, a tortfeasor [and their insurer(s)] is and realised his potential to rise to a junior liable to reimburse the State [in the form the Compensation Recovery Unit (CRU) – a division management position in the transport within the Department of Work and Pensions (DWP)] for specified social security benefits paid industry. Essentially, the defendants' case to a personal injury claimant, which are separate from damages. was that the claimant had ‘failed to mitigate his losses’ and that they should not However, in the recent case of Aviva Insurance Ltd & Anor, R (On the Application Of) v The pay damages for earnings which he had Secretary of State for Work and Pensions [2020] EWHC 3118 (Admin), the claimants argued depressed of his own volition. successfully that the 1997 Act was, in a number of specific circumstances, incompatible with Article 1 of the 1st Protocol (A1P1) to the European Convention on Human Rights (ECHR), Pursuant to South Australia Asset which protects the rights of insurance companies to ‘peaceful enjoyment of possessions’. Management Corp v York Montague Ltd [1996] UKHL 10 and Khan v Meadows [2019] ‘Possessions’, for the purposes of A1P1, mean the rights and obligations existing under an EWCA Civ 152, a tortfeasor is only liable for insurance policy. a particular type of loss claimed if there is an ‘adequate link’ to the identified breach For contextual purposes, the underlying action in this judicial review was an asbestos-related of duty. The tortfeasor will then be liable for occupational disease claim. all the ‘reasonably foreseeable consequences’. Not only were the claimants (an employers’ liability (EL) insurer and a reinsurer) held liable for full compensation, but also full State benefits. This was despite the fact that there were Irrespective of the fact that the claimant did unnamed parties to proceedings that could equally have been held liable for a fraction of not maximise his earning opportunities, Mr. the total exposure period. Lock QC ultimately found that his lost earnings arose ‘directly as a result of the Whilst the claimants broadly accepted their obligations under the 1997 Act, they contended negligence’ and within the scope of the that there were 5 situations that should exempt them from reimbursing CRU payments to the type of losses for which the defendants tune of 100%: were liable: 1. When an employee (victim) is contributorily negligent, e.g. to the extent of 50%. 2. When the employee (victim) suffers a divisible condition and the employers and/or ‘I accept Mr Constance's evidence that his their insurers are liable for a diminutive share of the liability – see Carder v The job choices were made at a time when he University of Exeter [2016] EWCA Civ 790, where the defendant was responsible for was recovering from a period when he had 2.3% of the claimant’s asbestosis. suffered fragile mental health, and that that 3. When there are untraceable negligent employers and/or insurers and the fragile mental health was brought on by the Fairchild/Barker1 principles apply (shift from the ‘but for’ test to the ‘material increase negligence for which the Defendants are in risk’ threshold leads to joint and several liability for an indivisible disease) – see liable. In those circumstances, I do not s.3 of the Compensation Act 2006, which enshrines this principle. accept that Mr Constance acted 4. When the employee (victim) is retired and does not seek damages for a specific unreasonably in deciding to take a job as head of loss (e.g. loss of earnings) in their civil action, but the objective of the a postman when he left the Army in August benefit inadvertently does. 2011 or that he made the decision solely as 5. When the employee (victim) settles a claim with an element of compromise, e.g. a "lifestyle choice". At that stage his mental without an admission of liability.
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Refuting this claim, the DWP averred that For almost identical application of logic, it However, as David Hart QC, of 1 Crown the 1997 Act (and its reimbursing scheme) could not be said that a rational affiliation Office Row, highlights, it is a genuine pursued a legitimate aim and that the existed between the principle of 100% possibility that the HRA may be revised or measures were rationally connected to that liability for social security benefits and the repealed in the near future.3 If such an aim. Further, that a fair balance had been principle of 100% compensation for victims eventuality were to transpire and in the struck between the claimants’ interest and of indivisible mesothelioma on a joint and absence of any ‘comparable remedy’ in the public interest. several basis, i.e. (3) was also incompatible general public law, the momentous with A1P1. decision in Aviva could foreseeably In the course of a long-winded 183 ‘disappear’. paragraph judgment, the Administrative In summation, it was evident that the Court assessed the claimants’ ‘5 situations’ direction of tort law post-1997 had been Full text judgment can be accessed here. in accordance with their rights conferred influenced by ‘social policy objectives under A1P1, which entailed proceeding which, exceptionally … led the courts and along the following line of questioning: Parliament to take a novel and particularly It Was ‘Only a Matter of • Is the objective of the 1997 generous approach to causation vis-à- Time’ Before Ex- Act/scheme sufficiently important vis the victims of asbestos-related to justify the limitation of a diseases’. Professional Rugby fundamental right? • Is the measure rationally As such, situation (2) was held to be Players Launched connected to the objective? incompatible with A1P1 from the handing • Could a less intrusive measure down of Carder and situation (3) was Neurodegenerative have been used? incompatible from the enactment of the Disease Group • Has a fair balance been struck 2006 Act. between the rights of the Litigation, as 40 Ex- claimants and the interests of the Taking stock of these ‘highly significant and community?2 unpredictable’ tort law developments, it Professional Footballers was deemed impossible to ‘reasonably The result of this exercise was to find 3 of the justify imposing on the insurers additional with Suspected CTE Wait ‘5 situations’ incompatible with A1P1, liabilities to the State’ that bore ‘no real in the Wings specifically (1), (2) and (3). relationship to the degree of injury or risk that those compensators had inflicted on With regards to (1), Mr. Justice Henshaw the injured person’. INTRODUCTION observed that the 1997 Act/scheme had been incompatible with the claimants’ Parliament understandably could not have As we reported in edition 259 of BC Disease rights from the date that the Human Rights contemplated the Fairchild principle when News edition 259 (here), ‘very early stage’ Act (HRA) 1998 was in force (in 2000), the 1997 Act was being created. research carried out by researchers at the reason being that he could not be Glasgow Brain Injury Research Group persuaded that ‘a scheme taking account Of additional interest, is the fact that (GBIRG) and led by neuropathologist, Dr. of contributory negligence would be Henshaw J analogised the present matter Willie Stewart, showed that 75% of rugby incapable of achieving the scheme’s to the case of In re Recovery of Medical players’ brains exhibited dementia objective’. Costs for Asbestos Diseases (Wales) pathology at a rate 6-times higher than in Bill [2015] UKSC 3, in which the Supreme the general population. Moving onto the rationalise why (2) was Court found that formerly proposed incompatible with A1P1, the High Court legislation in Wales [this has since been A fortnight ago, various Associated Press judge stated succinctly, that his justification reformulated and proposed in Scotland – outlets published a flurry of articles on a was rooted in the simple notion that: see the Liability for NHS Charges (Treatment breaking story that rugby players from of Industrial Disease) Scotland Bill], which around the world were preparing ‘game ‘Recovery from wrongdoers of the costs demands that tortfeasors reimburse the NHS changing’ and ‘potentially seismic’ group occasioned by their wrongdoing would be for the costs of treating any asbestos- litigation against several of the sport’s rationally connected with recovering State related disease, was also incompatible with governing bodies, which would be 4 benefits in proportion to the extent of the A1P1. commenced in the UK. wrongdoing in question, but not with recovering all State benefits without regard For now, Aviva opens the door to insurers’ to the extent of the wrongdoing’. claims for the recoupment of social security benefit payments from DWP.
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BRAIN INJURY AND SPORT IN GENERAL Dr. Stewart considers, on reflection, that it was ‘only a matter of time’ before ex- This personal injury action will bear some resemblance to the case advanced almost a professionals took legal action to seek decade ago by 4,500 former American Football players against the National Football ‘some sort of legal status as to what is going League (NFL), albeit for a smaller damages settlement than $765 million (actually ‘up to $1 on’:7 billion’ to compensate those who were not parties to proceedings). ‘In terms of rugby, although they’ve made The lawsuit is also highly topical in the UK at present, given the parallel research and great strides in attempting to identify brain campaign to elevate the profile of neurodegeneration among professional footballers. injuries on the park, the number of brain injuries in rugby is still phenomenally high. It is alleged that tens of international, male, ex-professional rugby players (potentially from In terms of the number of brain injuries and both Rugby Union and Rugby League) have, since retiring, presented with indicators of concussions identified, it is only a fraction of dementia, post-concussion syndrome, memory loss (amnesia), insomnia, migraines, mood the number that are actually occurring. swings and depression and that these symptoms have been caused by sub-concussive And then there is the problem of head head knocks and concussive collisions sustained throughout their careers.5 This is despite impacts themselves, never mind the fact that these men are otherwise young, incredibly fit and physically active. concussions. Cumulative exposure to head impacts, we believe, is just as much a risk HOW COMMON IS CONCUSSION IN PROFESSIONAL RUGBY? as a handful of concussions’.
Rugby Union boasts one of the highest concussion rates across all team sport. In fact, the Is this just the ‘tip of the iceberg’? Rugby Football Union (RFU), which runs the sport in England, oversees an injury surveillance project and found that concussions account for 1 in 5 matchday injuries. More than this, Although one insider pointed to an concussions have been the most common injury in the past 3 successive seasons. In the ‘epidemic’ of claims that will spur from 2017/18 season, 16% of English elite players suffered at least 1 concussion. ‘public’ awareness, candidly, Dr. Stewart acknowledged that that the scope of the issue is currently undetermined:
‘The difficulty we have is gathering enough experience from former rugby players to be able to say with certainty, but I think you would be foolish to ignore it’.
LEGAL REPRESENTATION
The ‘British law firm’, which has been contacted by claimants in these proceedings, is Rylands Law (trading as Aticus Law).8
At present, it is supposedly representing over 100 (highest quoted figure is 110) former players between the ages of 25 and [Source: Wikimedia Commons – Unofficial England Rugby's photos (4 February 2006) ‘Colin Charvis slides onto the ball, along with Ian Gough, while England's Thompson, Tindall and Noon approach (Wales v England).’] 65, ‘many [80 or so] of whom are showing symptoms of neurological problems’. ON THE BRINK OF WIDESPREAD LITIGATION? However, ‘many more’ are expected to get in contact, with the firm presaging a ‘ticking Until a few days ago, newspaper columnists had been alluding to the fact that it was ‘merely timebomb’ of players exhibiting brain a matter of time’ before multi-million-pound proceedings were served on 3 governing disease of serious concern (potentially up bodies: The Rugby Football Union, the Welsh Rugby Union and World Rugby. Sure enough, to 50% of retirees). last Thursday, it was officially revealed that the pre-action Letter of Claim had been sent. Another wave of claims is also being lined up against the Irish Rugby Football Union.6 Rylands’ sole Director, Richard Boardman, contextualised the players’ allegations of Some commentators have declared this to be the ‘most significant development of rugby's negligence as follows: concussion battle’, while others have branded developing events a ‘watershed moment for the sport’.
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‘We know that senior figures in the game others diagnosed with probable CTE, but lawyers were culminating ‘a pretty ever- have been discussing the issue of head they were ‘not yet signed up’. growing list [of players]’: injuries since at least 1975. Yet, inexplicably, the game's approach to THE CLAIMANTS ‘I think it's going to be something quite concussion seems to have become less substantial that's going to come from it’. progressive in the professional era, as The claimants embroiled in this dispute are evidenced by the three-week mandatory members of the 1st generation to have Subsequently, on 8 December 2020, print break following a concussion being played an entire career of full-time rugby, media revealed 3 more names: England’s reduced to just six days in 2011. Whilst after the game turned professional in the Steve Thompson and Michael Lipman, and health and safety has moved in the wrong mid-1990s. Wales’ Alix Popham, all of whom have been direction, the professional game has labelled test cases and all of whom become a game with increasing collisions Should their claims progress to court, they received an official early-stage dementia as players get heavier, stronger and faster’. will argue that the responsible overseeing diagnosis evidenced by diffusion tensor organisations have breached their duty of imaging (DTI) scan, neuropsychological N.B. the ‘three-week’ rule was established in care on 24 separate counts, having not testing and an interview with a neurologist. 1977 and the decision to overturn it was acted upon the ‘known and foreseeable’ purportedly on the advice of the risks of head injury to reduce or minimise Mr. Thompson (42), who plied his trade as a Concussion in Sports Group. Barry the risk of permanent damage, particularly hooker, is prone to panic attacks, mood O’Driscoll, who resigned as a Medical after the sport’s dynamics were clearly swings and memory loss. He frequently Commission Member at the International intensified by becoming professionally forgets the name of his wife and cannot Rugby Council (World Rugby’s accredited. However, it is acknowledged remember winning the 2003 Rugby World predecessor) in protest, believes that the that they would face ‘substantive legal Cup.11 move to a ‘six-day’ rule ‘will be one of the issues’ if their case went to court and a pre- crucial parts of the case’, as the policy trial settlement would be the likely Recalling some of his memories on the measure was guided by ‘very little scientific conclusion.9 training field, he said: basis’. When news reports on this topic were first ‘I went from working on a building site and Mr. Boardman added: feeding through, it was somewhat training twice a week to training every day, confusing, scrolling from article-to-article to sometimes twice a day. Many of those ‘We are now in a position where we believe understand exactly who was 1 of the 9 test training sessions were contact sessions the governing bodies across the rugby cases, 1 of the 3 remainder cases, or simply using a scrummage machine and I would world are liable for failing to adequately a retired professional that has been in be in the thick of things, with all the pressure protect their players on this particular issue. contact with Rylands. Chronologically, the pushed on me. It was not uncommon for Depending on how many people come facts have become easier to digest. me to be left dazed, seeing white spots and forward, the case could be worth tens of not knowing where I was for a few seconds, millions, maybe even hundreds of millions’. Early reports, dated 7 December 2020, in sometimes I would pass out completely. It the New Zealand Herald and The was just an accepted part and parcel of Rylands has already instructed Susan Telegraph, mentioned New Zealand All training.12 Rodway QC, of 39 Essex Chambers, as lead Blacks, Carl Hayman and Geoff Old, as well counsel for the suit in England and Wales, as England’s Mouritz Botha, in conjunction A serious neck injury forced him to retire in whilst John Foy QC, of 9 Gough Chambers, with an announcement that up to 70 2007, but he was given the all-clear to has been prospectively named lead players had been approached by a ‘British return. When his neck injury recurred in counsel for the Irish suit (with Dr. Steve Allder law firm’ seeking to discuss their post-career 2011, he was being forced to retire for the as the consultant expert neurologist). medical state and seek their engagement second time: in litigation.10 Since Thursday, it has been made plain that I really wished that I had ended my career the first 9 (formerly 8) claimants will be the Mr. Botha (38), who played as a lock, earlier, maybe my diagnosis might not be test cases in a group litigation order (GLO). retired through concussion and believes so bleak. There’s no getting away from it All 9 have been examined by neurologists that ‘rugby as a whole was quite negligent’. being a contact sport, but we have to give at King’s College London and diagnosed future generations a better and safer with early-onset dementia, plus suspected What is more, Mr. Hayman (41), a prop who game’. chronic traumatic encephalopathy (CTE), spent part of his career in the UK playing for the latter of which can only be confirmed the Newcastle Falcons and had not yet Without reform, Mr. Thompson, who is said post-mortem. Newspapers also spoke of 3 undergone medical testing, divulged that to be the lead case, is of the opinion that head injuries in rugby will continue to initiate expedited retirements.
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As for Mr. Popham (41), the flanker, he is Forced to retire aged 28,18 former Welsh centre, Adam Hughes (30), is the youngest of the 9 under the impression that he has registered test claimants. Unlike the others, he has not been diagnosed with dementia, nor provisionally a ‘minimum’ of ‘over 100,000 sub- with CTE, but has exhibited brain injury, additional to post-concussion syndrome and severe concussions’ in the duration of his career at motion sickness.19 a professional level.13 He blames this for his forgetfulness, his snappy and aggressive THE CLAIMANTS’ 15-POINT-CHARTER demeanour and his anxiety. For now, the MRI shows ‘no sign of any major problem’, On 9 December 2020, The Daily Mail reported that players had joined forces to put together though there were ‘a few white dots’ to a 15-point-charter, or ‘commandments’, which they were urging World Rugby to adopt, suggest measurable brain disease.14 alongside recent action taken to reduce high tackles, with a view to increasing safety and reducing the ‘intense scrutiny’ it is currently facing:20 Finally, Mr. Lipman (40), an openside 1. For World Rugby to accept that playing professional rugby can lead to CTE and flanker, remembers suffering at least 13 other neurodegenerative diseases. concussions (but estimates up to 30 • At present, World Rugby’s official guidance states that concussion is a concussions) during the course of his ‘traumatic brain injury’ and that all concussions are dangerous and ‘can professional career. Most notably, in 2009, be fatal’ and lead to ‘neurological complications’, but is no more specific he suffered several concussions in a short than that. space of time.15 2. For regulated training to be introduced, limiting contact to a certain number of sessions a year. Nonetheless, in an interview with the Sydney • The extent of World Rugby’s current ‘load management guidance’ Morning Herald, he brought to light the fact protocols is to advise against ‘spikes’ in work-load and for recovery to be that if he wasn’t ‘completely knocked out’, ‘planned and individualised’. he ‘played on’. When he was concussed, 3. For a limit on the number of substitutes-per-game and considerate use of he would allegedly ‘find an excuse to go off substitutions. to the blood bin’, give himself 10-minutes to • Research is ongoing, pursuant to the World Rugby Chairman’s manifesto. ‘help’ himself and then return to the pitch to 4. For all players’ unions to have greater independence. continue. • Since many players’ unions, e.g. the Rugby Players’ Association, are funded by World Rugby or national governing bodies. Describing himself as a ‘walking time bomb’ 5. For zero-hour contracts to be abolished, thereby quashing the monetary incentive and remembering being ‘carried off’ the to play when injured. pitch 5 times in a single season, Mr. Lipman • This is a matter for individual clubs and players’ unions to discuss. is now hesitant, uncertain, irritable, 6. For competent baseline testing each pre-season. impatient, suffers with severe migraines and • All Premiership clubs undergo this type of test, which forms the basis of mood swings, and has quite inhibited Head Injury Assessments (HIA) carried out mid-game when a concussion is speech. He scored 77/100 in cognitive suspected. 16 tests, signifying mild dementia. 7. For the adoption of better sideline testing. • World Rugby-compliant testing lasts a mandatory 12-minutes and is Once the Letter of Claim was dispatched, followed up by adherence to return-to-play protocols. details of 2 more litigants embroiled in the 8. For concussion spotters to have the authority to remove players showing visible group action surfaced. symptoms. • As matters stand, removal can only be ensured by spotters once they feed English former back row, Neil Spence (44), information to independent matchday doctors. joins Mr. Lipman, Mr. Popham and Mr. 9. For a career-long central database chronicling injury history. Thompson as an ex-professional diagnosed • GDPR (data protection) challenges are frustrating its implementation. with early-stage dementia and suspected 10. For the removal of Rugby Union’s reliance on various arch-conservative CTE. Much ike his fellow litigants, he alleges organisations, such as the International Consensus Group on Concussion in Sport having problems with his speech and (CISG), the International Concussion & Head Injury Research Foundation (ICHIRF) suffers with confusion, uncertainty, anxiety and select sports science departments. attacks, depression and extreme mood • The stance of World Rugby is that consensus groups add robust validity, as 17 swings (often manifesting in anger). does the work of independent experts and commissions. 11. Urgent research to be carried out on front row forwards. He recalls judging how well he had played • Where research to-date implies no proven risk of greater injury. by how ‘fuzzy-headed’ he felt at the final 12. For greater education on the issue of concussion. whistle of a game.
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• World Rugby claim they have educated more than 500,000 players on guidance. We will continue to use medical Head Injury Assessments (with the assistance of a dedicated concussion evidence and research to keep evolving App) and this is also mandatory for referees, coaches and medics. our approach’. 13. For every 3 concussions suffered by a player to instigate the receipt of full medical tests. WHAT ABOUT EX-PROFESSIONAL • This is mandatory under the HIA process, with players suspected of being FOOTBALLERS? concussed undergoing an off-field assessment by a doctor and a video review. There are other tests for those with delayed onset post-match Last month, claimant personal injury concussions. solicitor, Ipek Tugcu, warned that football 14. For the removal of reliance on MRI scans to prove brain trauma. clubs and authorities in the UK were at risk 15. For better aftercare for retirees.21 of facing multi-million-pound lawsuits if they continued to ‘fail to protect players from N.B. upon hearing point (4) of the Charter, The Telegraph reported that the Rugby Players’ brain injuries caused by heading the ball’.25 Association was prepared to start legal proceedings against Rylands and refute ‘damaging claims’ that the players’ union is ‘not fit for purpose’.22 Making reference to ‘indisputable’ evidence [principally the landmark FA- THE DEFENDANTS commissioned Football's InfluencE on Lifelong health and Dementia risk (FIELD) On 8 December 2020, BBC Sport journalists obtained comments from the organisations study] that ‘repetitive head trauma’ is linked which have been named as the defendants in prospective proceedings.23 to ‘increased risk of neurodegenerative disease such as dementia’, the Bolt Burden World Rugby (Global) Kemp Senior Associate expressed disappointment at how little the ‘While not commenting on speculation, World Rugby takes player safety very seriously and professional game has changed. implements injury-prevention strategies based on the latest available knowledge, research and evidence’. She went on to say that: ‘Identifying dementia as an industrial disease would be The Rugby Football Union (England) a huge step in formally recognising the risks of the sport and protecting players’ and ‘The RFU has had no legal approach on this matter. The Union takes player safety very could expedite limits on heading in seriously and implements injury prevention and injury treatment strategies based on the training. latest research and evidence. Ironically, only a matter of days after Ms. The Union has played an instrumental role in establishing injury surveillance, concussion Tugcu’s statements were published, it was education and assessment, collaborating on research as well as supporting law changes revealed that ‘ground-breaking’ legal and law application to ensure proactive management of player welfare’. action was due to commence on behalf of a number of former players.26 Nevertheless, Chief Executive, Bill Sweeney, has pledge to ‘make the game better and safer for future generations’.24 Instructed counsel, Nick De Marco QC, of Blackstone Chambers, shared details The Welsh Rugby Union (Wales) about the aims of this early-stage group action, amid a ‘pattern of silent suffering’ ‘[It] … supported and endorsed the World Rugby comment on the subject’. and a ‘serious endemic’ of fatal brain injury:
Joint Statement from World Rugby, The Rugby Football Union and The Welsh Rugby Union ‘By bringing this case we hope not only to provide our clients with adequate ‘We have been deeply saddened to hear the brave personal accounts from former players. compensation to pay for the future medical Rugby is a contact sport and while there is an element of risk to playing any sport, rugby treatment and care they will inevitably takes player welfare extremely seriously and it continues to be our number one priority. As need, but also to bring about much- a result of scientific knowledge improving, rugby has developed its approach to concussion needed reform to protect all players in surveillance, education, management and prevention across the whole game. sport, whether amateur or professional, adult or child’. We have implemented coach, referee and player education and best-practice protocols across the game and rugby’s approach to head injury assessments and concussion On 11 December 2020, it was uncovered protocols has been recognised and led to many other team sports accepting our that Rylands, the same claimant firm undertaking the rugby group action, would
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be proceeding with this action in the New the risk of injury through voluntary attributed at coroners’ inquests solely to Year.27 participation in the sport – as with certain heading the ball’. types of COVID-19 infection claims, there is It is understood that 40 families have scope for the rare volenti non fit injuria To-date, though, there is no intelligence to contacted Rylands on behalf of retired defence to be raised without also raising suggest that there has been a conspiracy, professionals with neurodegenerative eyebrows. much to the dissatisfaction of the victims of disease, most of whom are in their 50s, 60s dementia and their families. and 70s. Claimants will present a conceivably stronger case if they can prove that there Employing a similar tactic to the rugby has been a cover up, i.e. that governing Forum of Complex litigation, around 10 of all prospective organisations knew about the Injury Solicitors Insistent claimants under retainer would be put neurodegenerative risks of heading forward as test cases, followed by a larger footballs for many years and did nothing to on ‘Market Rate’ group litigation order. protect players’ health. Approach to Guideline It will be for Mr. De Marco QC, alongside The Guardian, in November, made John Foy and James Byrne, of 9 Gough reference to several articles in the 1960’s Hourly Rates Review Chambers, to prove negligence and and 1970’s, which intimated that the causation, but against whom? industry would not have been completely According to Litigation Futures, The Forum blind to the risk: of Complex Injury Solicitors (FOCIS) has Ian Stebbings, of 1 Chancery Lane called on the Civil Justice Council (CJC) Chambers, questioned who could be held Firstly, an article written in The Guardian by Working Group undertaking the review of responsible for these injuries in a detailed John Arlott, which read: solicitors’ guideline hourly rates (GHR) to and thought provoking piece, but was on meet its sector-specific desire for rates the whole doubtful of blameworthiness.28 ‘There were other professionals who which are higher than the 2010-established became physically nauseated by the GHR still in force today.30 Many of the potential defendants to constant impact of a muddy ball on their litigation (e.g. the clubs, the leagues, the foreheads. It is surprising that we do not In support of this argument, FOCIS players’ unions, the referees, etc.), despite hear of instances of brain damage similar submitted to the Working Group that the owing a duty of care to the players, simply to punch-drunkenness in those who went ‘market rate’ for solicitors handling complex owe a duty to ensure that the rules are through this constant battering’.29 injury cases is ‘markedly higher’ than both adhered to – which they are, because current GHR and rates allowed by Costs heading is not banned in training, nor in Secondly, private discussions among Judges in practice (these are typically ‘well match play. This runs contrary to what Chris members of the Manchester Association of above’ GHR).31 Bryant, the Labour MP and Chair of the Engineers (MAE), when, in 1973, they were Parliamentary Group on Acquired Brain presented with the article, ‘The Impact, Seeking to distance complex injury claims Injury, said on 16 November: Rebound and Flight of a Well Inflated from fast-track personal injury litigation, Pellicle as Exemplified in Association FOCIS also argued that the solicitors it ‘The Football Association’s response has Football’: represents have more in common with been shocking - they have been knowingly solicitors who deal with complex negligent’. ‘… the mechanics of boxing knockout and commercial disputes of equivalent value. heading footballs were debated … It was Even the law makers of the game, the noted that professional footballers Another factor put forward to justify ‘market International Football Association Board instinctively make no attempt to head a rates’ for complex injury claims was the fact (IFAB), may be too remote to control rules ball travelling over 40mph, to keep the that litigation can be long drawn-out on heading to minimise injury – see the impact damage to the brain to an (between ‘2 to 9-years’), thus leading to Australian case of Agar v Hyde (2000) 74 acceptable level’. ‘deferred payment’ of costs. A.L.J.R 1219, in which the International Rugby Football Board was deemed not to Thirdly and finally, an article published in What is more, FOCIS asserted that post- have owed a duty of care to players to the Sunday Times, in 1974, which remarked LASPO claims often result in liability for a change the rules on scrummages and that: costs shortfall (whereby the claimant has to reduce the risk of injury. top-up costs recovered from the defendant ‘… of the 55 players reported in the with a proportion of damages awarded) And of course, any prospective defendants newspaper who had died in football since and it considers that GHR should therefore to litigation will submit that players accept 1951, 26 had head injuries and eight were epitomise ‘real client rates’, as opposed to
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‘artificial rates’, so that the 100% compensation principle can be achieved.
Reinforcing FOCIS’ sentiments on this issue, its Chairperson, Julian Chamberlayne, who is also a Partner at Stewarts Law and Head of International Injury, stated as follows:
‘A party to a multi-track claim who makes a reasonable choice of solicitor for the type and scale of the claim in question ought to be able to recover at up to market rate for that work. Otherwise the full compensation principle is eroded.
These are claims of the utmost importance to our clients who have sustained life- changing disabling injuries and are reliant on the claim outcome to provide for their future financial wellbeing and care needs.
It is consequently very important that they are able to instruct solicitors with genuine expertise in catastrophic injury claims without resigning themselves to a costs shortfall’.
It will be interesting, in the coming months, to observe whether any other niche, sector- focused legal groups launch appeals for the CJC to advocate substantial increases in post-review GHR, especially pleas that request a ‘market rate’ assessment.
We make this observation because the Working Group’s approach so far has been to pay close attention to what courts are ‘generally allowing’ as the barometer for rate change and Vice-Chair, Master Gordon-Saker, has publicly defended this methodology in preference to being influenced by what solicitors charge, what it costs them do the work, or what the market rate happens to be.32
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Feature: Horizon Scan of the Disease Market for 2021
INTRODUCTION
At the end of last year, we produced a ‘Horizon Scan’ of the disease (and wider personal injury) market for 2020, which predicted the key topics that were expected to dominate legal news headlines over the past 12-months.
In the course of this feature article, we reflect on the past year of published articles in BC Disease News and assess the extent to which our predictions were correct.
Whilst carrying out this exercise, we also re-scan the disease market for any themes that we believe will recur in 2021.
For many months now, the COVID-19 disease pandemic has had a significant impact on all aspects of professional and personal lives. This is something that we could not have anticipated when we published our ‘Horizon Scan’ in 2019.
In the same vein as last year, we separate this feature article into distinct parts: 1. A ‘Horizon Scan’ of pre-eminent and emerging disease risks and claims strategies, separated by exposure type. 2. A ‘Horizon Scan’ of new-fangled COVID-19 infection claims. 3. A ‘Horizon Scan’ of new trends involving aspects of civil procedure, parliamentary affairs and the work of the Ministry of Justice (MoJ).
PART 1 – EMERGING RISKS BY EXPOSURE TYPE
ORGANOPHOSPHATES
Aerotoxic Syndrome
‘Aerotoxic syndrome’ is an as-yet unrecognised medical condition, which is allegedly caused by cumulative exposure to toxic organophosphates in aircraft cabin air (sourced from jet engine ‘bleed air’ supply), during ‘fume events’.
Such contaminants include volatile organic compounds (VOCs), low molecular weight organic acids, esters, ketones, and organophosphates, e.g. tricresyl phosphate (TCP).
The proposed ‘bleed air’ mechanism, by which toxic air apparently enters aircraft, is best described by the diagram, below.
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‘Bleed air’ systems are installed on all commercial aircraft, except Boeing 787 Dreamliners.
It is alleged that ‘aerotoxic syndrome’ poses a risk to pilots, cabin crew and frequent flyers on aircraft (besides Boeing 787’s), who may be repeatedly exposed to contaminated air. British Airways (BA), alone, employs 16,500 cabin crew and 3,900 pilots, so the scale of potential liability is vast.
Symptoms of ‘aerotoxic syndrome’ in those who claim to have been cumulatively exposed, include: • Adverse neurological symptoms (breathing and vision problems); • Chronic fatigue; • Memory impairment; • Cognitive difficulties; and • An inability to focus or concentrate.
One of the first presumed victims of the so-called syndrome was BA pilot, Richard Westgate, who died aged 43, in 2012, though the result of the inquest into his death revealed that sedative overdose was the underlying cause.
In spite of this, we reported, last year, that Mr. Westgate’s estate had sought a group litigation order, grouping together tens of former pilots and cabin crew (dubbed the ‘Aircraft Cabin Air Litigation’) against the likes of BA, EasyJet, Thomas Cook, Virgin Atlantic and Jet2. Judge Barbara Fontaine, who made the order for collective case management, specified that up to 8 cases, including Mr. Westgate’s case, would return to Court for a full trial.
Although our ‘Horizon Scan’ in 2019 predicted that we would know more by now about the progress of proceedings, currently, we do not. Nor can we inform our readers that Unite’s call for a full public inquiry into ‘aerotoxic syndrome’ has been authorised by the UK Government, or that Belgian research into the neurotoxic effects of aircraft cabin air on 50 ‘(ex-) cabin crew members and (ex-) pilots’ has been concluded.
We do, however, know that prospective litigants with suspected ‘aerotoxic syndrome’ will have been buoyed by news reports at the end of July 2020, that JetBlue pilot, Captain Myers, was awarded compensation following an ‘acute toxic inhalation’ event on an Airbus aircraft, in 2017, which left him with toxic encephalopathy, neuro-cognitive disorder and visual problems.33
This is the suspected to have been the 1st case in the US to establish that the fumes that the pilot was exposed to were injurious, albeit the decision was made by a state Workers’ Compensation Board as opposed to high calibre High Court Justices in England and Wales.
Nonetheless, the case was dubbed ‘groundbreaking’ and a ‘great step forward’ for the ‘Aircraft Cabin Air Litigation’.34
Reacting to the US ruling, Unite’s Assistant General Secretary for Legal Services, Howard Beckett, stressed that:
‘Unite will use every avenue, including calling for a public inquiry and pursuing legal action, to get the airline industry to take responsibility and clean up the cabin air on jet planes.
This must include using different oils to lubricate jet engines, better monitoring of cabin air, installing air filters and manufacturing planes that bring compressed air straight from the atmosphere’.35
Glyphosate Weedkiller
In June of this year, Bayer agreed to settle product liability claims involving glyphosate weedkiller, in the sum of $10.9 billion.36
Adjudged to be taking the ‘right action at the right time’, Bayer’s CEO, Werner Baumann, stated that the settlement brokered would ‘bring closure to approximately 75%’ of the current 125,000 filed and unfiled future claims.
Bayer acquired Roundup pesticide manufacturer, Monsanto, in June 2018 – and with it, the liabilities of the company.
For a long time, it has been alleged that glyphosate, the active ingredient in Monsanto-produced weedkillers, is carcinogenic.
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[Source: Flickr – Mike Mozart (30 April 2016): ‘Roundup, Monsanto’]
Specifically, it has been purported that prolonged exposure can cause non-Hodgkin lymphoma (cancer of the lymphatic system), as well as onset chronic kidney and liver disease.
As a result, those estimated to be most at risk include: • Farmers, • Gardeners; • Landscapers; and • Local Government Workers.
Up until June, cases had been ‘vigorously’ defended and as a result, it is not to be presumed that the mammoth US settlement is akin to an admission of guilt or wrongdoing.
Glyphosate is still licensed for sale and use as a Plant Protection Product (PPP) in the EU, until 15 December 2022, and applications for license renewal have been ongoing. That being said, B&Q removed Roundup from its shelves in May, apparently owing to safety concerns posited in US litigation.37
France, Hungary, the Netherlands and Sweden were appointed as joint ‘rapporteurs’ [the Assessment Group on Glyphosate (AGG)] for the next glyphosate assessment. This is followed by a peer-review process, overseen by the European Food Safety Authority (EFSA).
In light of events this summer, we feel that it is more likely than ever before that glyphosate-induced non-Hodgkin lymphoma claims could migrate to the UK in significant volumes, whether in an EL/PL context or otherwise.
ASBESTOS
Talcum Powder
Having frequently reported on talc-related product liability claims for the bulk of 2019, often in tandem with glyphosate claims, it will perhaps be surprising to many of our readers that these emerging risks were so often absent from BC Disease News editions in 2020, contrary to what last year’s ‘Horizon Scan’ might have implied.
A large part of this is because Johnson & Johnson has employed the same unforeseen strategy as Bayer – compromise a large number of claims to avoid strung-out court battles.
However, several months prior to agreeing a $100 million settlement figure in October of 2020,38 in respect of 1,000 product liability lawsuits (there are currently said to be around 21,800 cases pending39), the pharmaceutical giant announced that it would no longer be supplying new batches of talcum powder products for US and Canadian shelves.40
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[Source: Wikimedia Commons – Austin Kirk (26 February 2014): ‘Johnson's Baby powder, 2014’]
Whether or not the catalyst for this decision was the impact of the COVID-19 pandemic on sales, the scale of mounting litigation, the ‘constant barrage’ of litigation advertising, or pressure induced by last year’s voluntary recall of 33,000 bottles of Johnson’s Baby Powder (lot #22318RB) ‘out of an abundance of caution’ [the US Food and Drug Administration (FDA) detected sub-trace levels (no greater than 0.00002%) of chrysotile asbestos in a single sample], it is curious that J&J has stuck with its decision to continue selling talc-containing consumer products in the UK and the rest of the world.41
Or, perhaps not so curious, given that J&J has persisted in defending claims based on ‘steadfast confidence’ in the safety of its products, citing ‘decades’ of supportive science and ‘routine testing’. Indeed, the company has consistently overturned unfavourable mesothelioma and ovarian cancer verdicts on appeal, refuting claims that it has known, from at least 1971 until the early 2000’s, that its products were laced with asbestos and therefore defective. Further, that it failed to disclose this fact to regulators or to the public – see the landmark Special Report (2018), conducted by The New York Times and Reuters.
At present, J&J is attempting to appeal its most expensive loss at the US Supreme Court.42
In 2018, J&J was ordered to pay $4.69 billion in a combined suit of 22 women with ovarian cancer. This summer, the Missouri Court of Appeals for the Eastern District lowered the verdict to $2.11 billion. J&J was then refused its request for an appeal to the state’s Supreme Court.
Determined to challenge this verdict, which was grounded on a ‘fundamentally flawed trial … in a faulty presentation of the facts’, it will be intriguing to see whether the highest court in the land will choose to review this case in 2021. The US Supreme Court commonly receives around 7,000 applications every year and only takes on 100 to 150.
For British claimants, who may be more tempted than ever to bring a claim now J&J has shown an inclination to settle in bulk, claimant firm, Leigh Day, recently reported that the New York Supreme Court was allowing 45-year-old British woman, Hannah Fletcher, to file a talc- related mesothelioma claim in the US, against Estée Lauder, Avon, and Macys.
Ultimately, the Court held that: • Although the claimant resides in England, the defendants are located in New York. • ‘Defendants’ products were developed, manufactured, distributed and/or supplied from New York to England’. • Defendants would face no hardship litigating in New York. • The claimant would face significant hardship as the case could not proceed in England. • The potential need to apply English law did not phase New York Court, which are regularly called on to apply foreign law.43
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De Minimis Asbestos Exposure?
In May of this year, David Platt QC successfully defended a mesothelioma claim, on the basis that a single incident of asbestos exposure, whose total dose burden was 0.0004 fibre/ml years, was de minimis.44
Relying on epidemiological literature and regression analysis [Hodgson & Darnton (2000)], it was predicted that the claimant’s dosage of exposure would produce a lifetime risk of 0.2 deaths per 100,000, or an annual risk of 1:50,000,000.
Mr. Tattersall QC, the Deputy High Court Judge who presided over the case of Bannister (Estate of) v Freemans Public Ltd Company [2020] EWHC 1256 (QB), clarified how ‘materiality’, under the ‘material increase in risk’ (Fairchild45) test, is to be determined:
‘… a dose of asbestos which was properly capable of being neglected could be defined as a dose which a medical practitioner who is aware of the medical risks would define as something that the average patient should not worry about’ – Dr. Rudd’s formulation transposed from his answers under cross-examination, in the case of Sloper v Lloyds Bank Plc [2016] EWHC 483 (QB).
In our ‘Horizon Scan for 2022’, will we find ourself citing cases that operate Bannister in acceptance or rejection of this new de minimis threshold test?
Asbestos in Education and Healthcare Settings
In last year’s ‘Horizon Scan’, we presaged that asbestos harboured in school and hospital buildings could be responsible for delaying the downward trend of annual occupational mesothelioma mortality, documented by HSE’s industrial fatality statistics.
However, in edition 310 (here), we publicised that 80 fewer workers (2,446) died from mesothelioma in 2018 (the most up-to-date reporting year) than in 2017, which could infer a general reduction in exposure to asbestos-containing materials over time.
Indeed, the latest Office for National Statistics (ONS) data on mesothelioma deaths among teaching and educational professionals, up to 2019, would appear to support this presumption.
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Irrespective of the seemingly flattening mortality curve, the Education and Skills Funding Agency (EFSA) and the Joint Union Asbestos Committee (JUAC) assert that 80% of schools still contain asbestos and that the risk of asbestos-related disease is ever-present.
Of these schools, around 3,000 were designed in the late 1950’s, under the Consortium of Local Authorities Special Programme (CLASP), with asbestos-containing structural support columns and an intended lifespan of 40-years.
The fact that so many CLASP schools are still standing has been flagged as a matter for concern by Conservative party politician, David Morris MP, who stated earlier this year that the demolition of 1,000 active CLASP buildings would make a ‘considerable difference to the asbestos risk posed by the UK’s total building stock’.
Whether or not ‘well protected’ asbestos continues to be left in-situ and in ‘good condition’ in schools will depend (at least in-part) upon how the funds of a new, £1 billion, ‘transformative’, school 10-year rebuilding programme are divested – read our full report in edition 311 (here).
In next year’s ‘Horizon Scan’, will we write that the Government has caved into the of the National Education Union’s (NEU) Comprehensive Spending Review request, calling for earmarked funding for the ‘phased removal’ of asbestos from all educational buildings in the UK’s 32,770 schools?
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Joint and Several Liability in Reinsurance ‘Spiking’
In edition 271 of BC Disease News, we summarised the Court of Appeal’s judgment in Equitas Insurance Limited v Municipal Mutual Insurance Limited [2019] EWCA Civ 718.
The upshot of this landmark decision was that the employers’ liability (EL) insurer (MMI) could not allocate 100% of its liability (in an action called ‘spiking’) to a chosen year of reinsurance cover in an asbestos-related disease claim.
The position between EL insurers and reinsurers is noticeably different from the relationship between employers and EL insurers, where the Fairchild principle applies – see Zurich Insurance PLC UK Branch v International Energy Group Ltd (Rev 2) [2015] UKSC 33. The nature of liability was distinguished because there was a ‘seriously arguable case for treating the insurance and reinsurance positions differently’.
This year, we were expecting Equitas to reach the Supreme Court – an observation we made in last year’s ‘Horizon Scan’.
However, in edition 310 (here), we reported that the parties had settled proceedings, thus confirming the Court of Appeal decision as the established guiding authority for insurers’ ability to ‘spike’ reinsurers under excess of loss liability reinsurance policies.
‘Spiking’, for now at least, is prohibited. EL insurers must present EL asbestos claims to reinsurers on a pro rata, time on risk basis.
NOISE
Opportunistic Applications for Own Engineering Evidence in Spite of SJE Report
An emerging strategy in fast-track industrial disease litigation, this year, has been claimant parties seeking their own engineering evidence in noise-induced hearing loss (NIHL) claims, where a single joint expert (SJE) has already been agreed, instructed and published a report/answered Part 35 questions.
Opportunistic applications have been tactically advanced in instances where a SJE indicates that a claimant’s occupational noise exposure was not excessive – an observation which is terminal to arguments on breach of duty.
In edition 307 (here), we reported that we were handling several cases where such applications had been made and listed to be heard before County Court judges.
At that point in time, we were prepared for this to become a new characteristic of NIHL claims handling, as claimant firms tried their luck at adducing expert evidence from new acoustic engineers by seeking to vacate existing trial dates, seeking reallocation to the multi-track and seeking permission to rely on new reports.
However, in edition 313 (here), we summarised the High Court’s judgment in Hinson v Hare Realizations Ltd (2) [2020] EWHC 2386 (QB), which considered the established case authorities on this issue and found in favour of the defendant.
At first instance, the Recorder assessed the ‘balance of grievance’, were the claimant not to be permitted to rely on their own engineering evidence – the test laid out in Bulic v Harwoods & Ors [2012] EWHC 3657 (QB):
‘… the claimant will be aggrieved at not being able to rely on evidence which might enable him to win his case; but the defendant will also have a strong sense of grievance if this low value case is adjourned for the third time, on the date of trial, with the inevitability of the defendant incurring further very considerable costs, where the single joint expert was proposed by the claimant and where her evidence may well be preferred to that of [the claimant’s own expert] if the case went to trial’.
On appeal to the High Court, Mr. Justice Spencer was not convinced that the lower court decision was an ‘erroneous one’, not least because the SJE boasted ‘appropriate expertise from a well-known firm of experts’.
In line with Lord Woolf, in Daniels v Walker [2000] EWCA Civ 508, who stated that permission to obtain the desired new expert evidence could be permitted for ‘reasons which are not fanciful … subject to the discretion of the court’, Spencer J found that Recorder McNeill QC had acted ‘well within the generous ambit of her discretion’.
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Post-Hinson, we have seen some signs of claimant applications being rejected by County Court judges, which is only to be expected if the only reason why own engineering evidence is acquired is to sway the unfavourable opinion of a SJE.
We will resume our interest in this claimant ploy after the winter break.
Hearing Loss in the Music and Entertainment Industry
Following on from the Court of Appeal’s ruling in Goldscheider v Royal Opera House Covent Garden Foundation [2019] EWCA Civ 711, in which a violist was successful in bringing an ‘acoustic shock’ claim against his former orchestral employer, we presumed that there could be significant ramifications for the NIHL market.
Firstly, because ‘acoustic shock’ was accepted, for the first time, as being a ‘relatively new’ and ‘albeit developing’ medical phenomenon that does not exclusively affect call centre workers exposed to white noise through earpieces or telephone speakers.
Secondly, and arguably most importantly, because it created binding legal precedent that noise exposure does not have to be a by- product of work to be tortious – it may also be deliberately created noise exposure.
Thus far, we are yet to see any ‘cataclysmic’ effects on ‘music making in the UK’, instigated by Goldscheider, but we will be able to make the same sweeping statement in 2021?
Tinnitus in RTA Claims
On account of the fact that small claims limit reforms, predominantly affecting road-traffic accident (RTA) claims, have been delayed by exactly 1-year, last year’s ‘Horizon Scan’ warning that motor insurers could see increasing numbers of (RTA) claimants also seeking compensation for otologic injury applies equally to 2021 – assuming there are no more delays.
In edition 293 (here), we analysed a plethora of epidemiological literature to gauge whether there is a biomechanical or biochemical link between conventional soft tissue injuries and tinnitus, but were unable to definitively state that they were unconnected.
Unfortunately, tinnitus adds an unwelcome dimension, complexity and costly element to RTA claims at a time when such claims were finally supposed to become more manageable.
EXHAUST FUMES
Diesel Exposure Mitigation Study (DEMiSt)
Diesel exhaust emissions (DEE) increase the risk of developing lung cancer [see the International Agency for Research on Cancer’s (IARC) Group 1 carcinogen classification, in 2012], chronic obstructive pulmonary disease (COPD), type-2 diabetes and infertility.
We also reported, in edition 316 (here), that metal nanoparticles in environmental air pollution (comprising of DEE) were responsible for a ‘silent epidemic’ of cardiovascular disease, before going on, in edition 317 (here), to report that air pollution had been associated with heightened incidence of Parkinson’s disease and dementias.
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In last year’s ‘Horizon Scan’, we announced that the Institution of Occupational Safety and Health’s (IOSH) Diesel Exposure Mitigation Study (DEMiSt) had come to an end.
The ‘largest real-world in-vehicle personal exposure study to date’ was designed to investigate 141 professional drivers’ occupational exposure to DEE, or ‘black carbon’ (a proxy measure) over the course of almost 12,000 hours.
Later than expected, the full and final report was published, in July 2020.
This revealed that, on average, 18.6% of the professional drivers’ time was spent ‘at work driving’ and this accounted for 36.1% of their total black carbon exposure. Meanwhile, 54.4% of their time was spent ‘at home’, but this was only responsible for a 31.8% contribution towards their total black carbon exposure.
Moreover, drivers were exposed to 4-times more airborne black carbon [4.1 micrograms per cubic metre of air (µg/m3)] when ‘at work driving’ than when ‘at home’ (1.1 μg/m3). Taxi drivers were among the most exposed (6.5 µg/m3), closely followed by couriers (5.5 μg/m3), waste removal drivers (4.3 μg/m3), heavy freight drivers (3.9 μg/m3), utility service drivers (3.1 μg/m3) and emergency service drivers (2.8 μg/m3), while bus drivers were the least exposed (2.3 μg/m3).
[Source: Flickr – Garry Knight (30 September 2016): ‘Taxi Traffic’]
Drivers also experienced spikes of black carbon exposure, peaking at 100 µg/m3 and lasting up to 30-minutes, as fumes lingered in vehicle cabins. These peaks typically occurred in congested Central London traffic, car parks, depots, tunnels and ‘street canyons’ (between high buildings).
Lead researcher and Senior Lecturer at Imperial College, Dr. Ian Mudway, remarked that it was noticeable to see ‘just how surprised drivers taking part in the study were at the levels of their exposure to diesel’.
In 2021, we will be looking out for articles that promote the implementation of low-cost changes that were recommended by researchers as intermediate steps to reduce hazardous DEE exposures, which DEMiSt drew attention to: • Always drive with windows closed. • Use the recirculating ventilation function with vehicle windows closed, but only for short periods in high pollution areas. • Carefully consider route choice to avoid areas of high congestion and try to avoid tunnels. • Reduce driving frequency during peak evening hours (4 pm to 7 pm). • Move shifts from weekdays to weekends. • Rotate drivers if there is a risk of isolated workers being disproportionately exposed. • Use in-cabin filters in certain circumstances.
We will also continue to inspect the work of Government in implementing British Safety Council (BSC) advice, compiled in its Time to Breathe White Paper, (2019), which advocated for: 1. Health and Safety Executive (HSE) recognition of exposure to ambient air pollution as an occupational health issue and adopt a Workplace Exposure Limit (WEL) for Diesel Engine Exhaust Emissions (DEEE). 2. Improvements for pollution monitoring across the UK, so that all regions have the same accuracy as London for emissions data. 3. The UK’s adoption of World Health Organisation (WHO) exposure limits for the main pollutants of nitrogen dioxide, particulate matter and ozone: o PM 2.5: less than 25 μg/m3 (24-hour mean) or 10 μg/m3 (1-year mean); and o PM 10: less than 50 μg/m3 (24-hour mean) or 20 μg/m3 (1-year mean). 4. A nationwide-reduced carbon footprint reduction. P AGE | 31
RADIATION
UV Radiation
We alluded to future work of the Industrial Injuries Advisory Council (IIAC) in last year’s ‘Horizon Scan’ and we can now confirm that the investigation into the relationship between melanoma and airline crew exposure to ultraviolet (UV) radiation was conducted and findings published – the full report can be accessed here.
UV radiation from the sun is classified by the WHO as ‘carcinogenic to humans’ (Group 1 carcinogen).
[Source: Wikimedia Commons – NASA (26 October 2007): ‘EM Spectrum’]
And now, the Council recommends that malignant melanoma in pilots and cabin crew should be added to the list of prescribed diseases (PD) for which benefit is payable, following ‘5-or-more-years aggregated duration of employment’.
It was convinced by ‘substantial and consistent evidence that there is more than double the risk of malignant melanoma in pilots and cabin crew and for pilots in particular, after 5,000 aggregated hours’ flying time’. This happens to correspond to approximately 5-or-more- years of aggregated duration of employment.46
The consequences of prescription on volumes of civil claims for the same will be on our radar in 2020. As will our interest in allegations that there is also an increased risk of melanoma in air traffic controllers, an area of research which the Council identified when completing its widescale literature review. Additionally, we will keep an eye on the evolving tendencies of employers to adopt sun safety policies for outdoor workers.
Mobile Phones and the 5G Era
In last year’s ‘Horizon Scan’, we previewed a class action lawsuit which was alleging that smartphones (including iPhone 7s, iPhone X, iPhone 8, iPhone 8 Plus, Galaxy S9, Galaxy S8 and Galaxy J3) were exposing users to levels of radiofrequency radiation (RFR) that ‘far exceed federal guidelines’.
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In October 2020, however, it was disclosed that both Apple and Samsung had escaped legal proceedings and poured cold water over the Chicago Tribune investigation upon which these product liability claims were based.47
Mobile phones use non-ionising, ‘low power’ (low frequency) radio frequency electromagnetic radiation (RFR), emitted by in-built mobile phone antennae, in order to connect to networks wirelessly.
Although the latest 5th generation technology (5G) uses higher frequency RFR than its predecessors (reported here), it is still incapable of penetrating the body at a cellular level and therefore unlikely to cause cancer, as some people have alleged.
Tariff provider, EE, claims that RFR levels of 5G are within internationally agreed limits, specified by The International Commission on Non- Ionizing Radiation Protection (ICNIRP) Guidelines, but has previously been criticised for having stated, in 2017, that it could not provide ‘absolute assurance that research in the future won’t establish links between radio frequency emissions and health risks’.
In the space of the past year, though, the US FDA has reviewed the available epidemiological literature and assures that ‘there is no consistent or credible scientific evidence of health problems caused by the exposure to radio frequency energy emitted by [mobile] phones’.
Also in edition 312 (here), we gave an update on the progress of Imperial College London researchers’ involvement in the Cohort Study of Mobile Phone Use and Health (COSMOS), with preliminary findings demonstrating that those who use mobile phones extensively for making and/or receiving calls are reporting more frequent weekly headaches than other users.
However, the team considers that this is more likely to be associated with lifestyle factors than RFR emissions.
We will continue to monitor the science in the year ahead.
CONCUSSION AND SUB-CONCUSSIVE TRAUMA
We urge our readers to read our news article in this week’s edition to get up-to-speed with impending group litigation, advanced by ex- professional rugby players and ex-professional footballers with brain damage.
One could argue that of all of the ‘emerging risks’ to feature in last year’s ‘Horizon Scan’, this is the occupational health issue that has ‘emerged’ the most.
To-date, the academic literature in this field can be stratified into 1 of 4 groups: 1. The long-term prevalence of neurodegeneration in footballers. 2. The short-term effects of heading/sub-concussive impacts on cognition. 3. The biomechanics of heading/sub-concussions. 4. The influence of ball technologies (i.e. leather vs synthetic plastics) and styles of play on frequency and force of bodily impacts.
Most recently, researchers at the University of Leeds found that the speed of a football (up to 80mph in the modern professional game) in the air has more effect on impact damage than its weight or the material it is made from, thus denoting that modern footballers could be at even greater risk than those who played with older leather footballs:48
‘… the force experienced by the head during football heading is mainly influenced by the speed of the ball rather than its mass or stiffness’.49
Another recent study, conducted by Liverpool Hope University, exposed that the ‘working memory’ of a small sample of footballers declined by as much as 20% immediately after heading a ball 20 times.50
Elsewhere, data collected by Stats Perform, on behalf of the University of Glasgow, demonstrated that, at the highest level of global competition (World Cup tournaments), the number of headers-per-game has increased over time. World Cup matches from 1994 to 2018 averaged 93 headers-per-game, peaking at 105-per-game in 2002. Juxtapose this against an average of under 71 headers-per-game between 1966 and 1990, with a low of 59-per-game in 1970.51 In short, footballers’ heading exposure has been on the rise.
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[Source: Wikimedia Commons – Alasdair Middleton (23 May 2009): ‘Header (St Mirren 0-1 Hamilton Academical May 2009’]
Plainly, however, none of these studies/study types are poised to say conclusively that long-term repeated heading of a football causes dementia, CTE or any other neurodegenerative condition. One cannot escape from the fact that any such claims are mere deductions, persuasive or not.
An advocate of this position is Dr. Vincent Gouttebarge, Chief Medical Officer at FIFPRO (the international players’ union), who cautioned against illegitimate rule changes in the absence of reason:
‘I know in the UK you have referred to the very good study [FIELD] from Professor Willie Stewart, but I looked at the study again this morning and I didn't see the words “heading” or “concussion” mentioned one time in this study.
Based on that study a lot of media in the UK made the conclusion that heading the ball or concussion lead to dementia, and I don't think this is a very thorough conclusion.
I don't think we have the scientific evidence with this study that there is a causal relationship between heading the ball, concussion and dementia’.52
The Football Association’s (FA) Medical Chief, Charlotte Cowie, has repeatedly concurred with this line of thinking.53
With the British Associated Press noticeably taking little interest in the ‘scientific method’, the past few months has seen a whirlwind of tabloid outbursts.
In October of this year, Alan Jarvis became the second ex-professional footballer, after Jeff Astle, to have his death (in December 2019, aged 76) formally recognised as an ‘industrial disease’ by a coroner in Ruthin. The inquest heard how he had once been knocked unconscious after a ball struck his face, forcing him to spend 2-weeks in hospital with a detached retina:54
‘The situation is by no means unequivocal. It must be very clear I am not saying playing professional football always causes dementia … but, on the balance of probabilities in Mr Jarvis' case, his previous occupational history has been a factor in his neuro generative functioning and had led to Alzheimer's disease’.55
Both Mr. Astle and Mr. Jarvis were diagnosed with CTE by leading expert neuropathologist, Dr. Wille Stewart.
In what felt like a perpetual stream of news, we then discovered that Nobby Stiles had died with Alzheimer’s and vascular dementia and almost instantaneously went on to discover that Sir Bobby Charlton had been diagnosed with dementia. These were the 4th and 5th members of England’s 1966 World Cup-winning squad to receive a dementia diagnosis, respectively, in the wake of Martin Peters, Ray Wilson and Jack Charlton.
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Akin to the 1966 team, an investigation by Sky News Sport Correspondent, Martha Kelner, subsequently unearthed that more than half (6 out of 11) of the footballers who played for Burnley FC in their championship winning 1959/60 season have died from (or are suffering with) dementia.56
Dr. Stewart has, in recent days, confirmed post-mortem CTE in Mr. Stiles.57
As a consequence of high frequency media attention, a number of high-profile individuals in the sport have called for a complete ban on heading in training sessions at all levels of the game and for more research into the effects of heading on the brain.58 Others have called for ‘aerial challenges’ to be classified as ‘dangerous play’,59 while the Professional Footballers’ Association (PFA) has called for an ‘urgent intervention’ on heading.60
There has been an outpouring of former professionals who have now made their dementia diagnoses public61 and pledged to donate their brains for science, after death.62 It is believed that around 500 retired footballers have been affected, but a database is ‘desperately’ required to keep a record of this.63
What is more, Nike and Adidas have been called upon to create a ‘heading ball’, designed to minimise head impacts in training.64
On 16 November, The Daily Mail announced a new 7-Point Charter campaign, in conjunction with Alzheimer’s Society’s Sport United Against Dementia, insisting on: 1. Increased funding from the FA and PFA for independent research into dementia and its links to football. 2. The PFA to provide respite for families/carers of former professional footballers living with dementia. 3. The PFA to appoint a dedicated ‘dementia team’ and work with, promote and financially assist Alzheimer’s Society’s Sport United Against Dementia (SUAD) campaign and Dementia Connect support line. 4. The PFA to help fund regular social events for people living with dementia and their carers. 5. Dementia to be formally recognised as an industrial disease. 6. Football’s lawmakers, the International Football Association Board (IFAB), to immediately ratify temporary concussion replacements. 7. Clubs to limit heading at all levels including professional (maximum of 20 headers-per-session in training and minimum 48-hours between sessions. 65
How are governing organisations acquiescing to these demands?
Well, the PFA has already set up the Neurodegenerative Disease Working Group (NDWG), a task force with the specific purpose of examining the issue of brain injury diseases in football.66 Moreover, IFAB has approved concussion substitutes, beginning in January 2021.67
As regards to ‘industrial disease’ prescription, we are aware that Dr. Stewart will not present his case before the IIAC until January 2021 at the earliest and a decision is unlikely before next summer.68
Pre-emptively, the Council has cautioned proponents that it will require more than just a ‘single study’ to recommend prescription. There must be ‘clear and consistent evidence across a number of studies’.69
Nevertheless, Dr. Michael Grey, the eminent neuroscientist at University of East Anglia (UEA), who is leading the SCORES project, considers IIDB designation to be ‘realistic … I think it's a case of “watch this space”’.
SCORES will explore the early signs of dementia in footballers (35 former professionals have already signed up and will be added to a pool of 40 amateurs and 60 control subjects, all over the age of 4070). We await news of study results, which will be published in BC Disease News in due course.
TEXTURED BREAST IMPLANTS
A year ago, we announced that Leigh Day Solicitors had issued letters of claim on behalf of claimants who were alleging that textured breast implant had caused them to develop a rare form of non-Hodgkin lymphoma, called anaplastic large cell lymphoma (ALCL), or breast implant-associated (BIA) ALCL.
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BIA-ALCL was classified as a ‘disease’ by the World Health Organisation (WHO), in 2016, and 2-years later, cosmetics manufacturer, Allergan, removed its Biocell textured implants from European markets.
Contrary to presumption, however, the UK Medicines and Healthcare products Regulatory Authority (MHRA) subsequently stated, in regards to Allergan products, that:
‘There is currently no evidence of an increased risk to patients and there is no need for people who have Allergan breast implants to get them removed or have any additional clinical follow-up’.
As at 15 December 2020, there were 992 recorded cases of BIA-ALCL worldwide, which translates to almost double the figure disclosed last year (650).71
Nevertheless, the MHRA’s position has not budged and litigation has not received substantial press this year, except to divulge that High Court proceedings had been issued by 65-year old, Susan Axelby, in March 2020 – read our article in edition 307 (here).
Further, that Ms. Axelby’s product liability case has been advanced under Part 1 of the Consumer Protection Act 1987 and will assert that the product used was ‘defective’ i.e. that the ‘safety’ of her implants was ‘not such as persons generally are entitled to expect’. She would not have accepted them, had she known that there was a direct risk of ‘death or personal injury’ (see s.3 of the Act).
Perhaps the coming year will shed more light on this emerging health risk?
RESPIRABLE CRYSTALLINE SILICA: ‘THE NEXT ASBESTOS’
Ensuing last year’s ‘Horizon Scan’, in which we previewed the All-Party Parliamentary Group (APPG) for Respiratory Health’s extensive inquiry into the disease burden of silicosis on the construction industry, we were alarmed, earlier this year (here), to read that the APPG had dubbed respirable crystalline silica (RCS) ‘the next asbestos’ – to access the full report, click here.
RCS is created when silica-containing materials are ‘fractured’, i.e. cut, drilled into, or polished. These materials include: • Sandstone, gritstone and quartzite (more than 70% silica); • Concrete and mortar (25-70% silica); • Shale (40-60% silica); • China stone (up to 50% silica) • Slate (up to 40% silica); • Brick (up to 30% silica); • Granite (up to 30% silica); • Ironstone (up to 15% silica); • Basalt and dolerite (up to 5% silica); and • Limestone, marble and chalk (up to 2% silica).
RCS exposure can lead to irreversible and often fatal silicosis, which is the most common occupational lung disease worldwide and considered an ‘emerging occupational health epidemic’. It is also linked with tuberculosis, kidney disease, arthritis, chronic obstructive pulmonary disease (COPD), lung cancer and chronic bronchitis.
In spite of this, research has unearthed that there is a ‘profound lack of awareness among construction workers about the risk of RCS exposure’ – a workforce which constitutes 81% of an estimated 600,000 British workers exposed on an annual basis [where the remaining 19% includes kitchen worktop fitters, textile (denim) machine operators and other professionals].
By starting a ‘long-overdue’ conversation about how to tackle the adverse and ‘under-documented’ health risks among affected workers, it appears that the APPG has now ‘recognised the urgency of the issue’.
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Facing pressure from the British Occupational Hygiene Society (BOHS), in the year ahead, we intend to monitor the Government’s efforts to make good on several recommendations that emerged from the Report, namely: • To make silicosis a reportable condition for those who are currently in work and exposed to RCS, under The Reporting of Injuries, Diseases, and Dangerous Occurrences Regulations (RIDDOR) 2013. • To amend The Health Protection (Notification) Regulations 2010 to make silicosis notifiable through Public Health England, thereby creating a compulsory national silicosis register – in edition 283 (here), we reported that Unite and Thompsons Solicitors had created their own silica dust register. • To develop and implement a targeted industry awareness campaign for those at risk of developing silicosis. • To allow workers to hold their own occupational health records to encourage workers to make associations between symptoms and exposures. • To merge occupational health services into GP surgeries to allow for occupational histories to be accounted for where work- related ill health is suspected. • To introduce new Governmental health and safety regulations [outside of the Control of Substances Hazardous to Health Regulations 2002 (COSHH)] specifically relating to the control of respirable crystalline silica (RCS), so that it is afforded the same level of protection as asbestos. • To investigate (through the NHS) a screening programme for those exposed to RCS. • To provide access to occupational health services for RCS-generating industries. • To halve the workplace exposure limit (WEL) for RCS in the UK from 0.1mg/m3 to 0.05mg/m3 (see the 4th edition of EH40/2005), in line with the 2003 recommended exposure standard from the Scientific Committee on Occupation Exposure Limits (SCOEL), and ensure that statutory monitoring requirements are in place to reduce over-exposure. • To implement Health and Safety Executive (HSE) requirements, compelling compulsory use of masks, dust extraction and water suppression, along with annual reporting of inspection and compliance levels. • To increase HSE resources to raise the volume of on-site inspections of building contractors of all sizes.
BOHS estimates that every year, there are approximately 500 UK construction workers deaths from silicosis and approximately 4,000 deaths from chronic obstructive pulmonary disease (COPD), all attributed to RCS exposure.
PART 2 – COVID-19 INFECTION CLAIMS
WHAT IS COVID-19?
The virus, severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2), and the resulting disease, COVID-19, has gripped the world in 2020.
Those infected, who present with symptoms, typical complain of a high temperature, a new, continuous cough and/or a noticeable loss or change to their sense of smell or taste.72 However, skin rashes,73 hearing loss,74 muscle aches and pains, fatigue and gastrointestinal symptoms have also been recorded among COVID-19 sufferers.75
For some (including the elderly, smokers, pregnant women, members of the BAME community, those with comorbidities, those who are immunocompromised, etc.), these mild symptoms can become more serious, as the virus proceeds to the next phase – attacking the lungs. This can lead to severe pneumonia with breathing difficulties, or even respiratory failure [acute respiratory distress syndrome (ARDS)].76 In some cases, these adverse effects can be fatal. Over the past year, clinicians have also found that COVID-19 can cause ‘extrapulmonary manifestations’, i.e. sickness beyond the lungs.77
Whilst there is growing evidence to suggest that infections occur by way of airborne exposure to the virus [where viral particulates are less than 5 micrometres (µm) in diameter],78 established science has only confirmed thus far that the spread of disease occurs via droplet transmission.
For instance, if an uninfected bystander stands in close contact with an infected person (‘within 6 feet of an infected person for a cumulative total of 15 minutes or more over a 24-hour period’79) and inhales the respiratory droplets produced when an infected person coughs, sneezes, talks or breathes.80
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Alternatively, droplet transmission can arise if uninfected person touches a contaminated surface, or the hand of an infected person, before going on to touch their own mouth, nose or eyes.
TO WHAT EXTENT HAS COVID-19 AFFECTED THE UK PUBLIC?
As at 19 December 2020, a total of 2,004,219 people had tested positive for COVID-19, in the UK.81
Moreover, up to 19 December 2020, a total of 67,075 people had died within 28 days of a positive COVID-19 test result, while up to 4 December 2020, a total of 76,287 people had died with COVID-19 listed on their death certificate.82 The former metric of mortality is the work of the Department of Health and Social Care (DHSC), while the latter is the work of the Office for National Statistics (ONS).83
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Are cumulative case numbers and deaths set to continue rising?
We are currently in the 2nd wave of COVID-19 (also described as the 2nd phase of the 1st wave) and incidence of the disease is growing. On 18 December 2020, the rate of infection, or ‘R number’, was estimated to be between 1.1 and 1.2 for the whole of the England (with lows of 0.9 in the North and highs of 1.4 in the East).84 Mathematically speaking, this means that, for every 1 person exposed, between 1.1 and 1.2 people will be infected.
The mortality rate, meanwhile, was most recently analysed by Imperial College London.85 Researchers investigated fatalities in high income countries by screening 175 studies and identifying 10 representative antibody surveys. They concluded that 1.15% of people who are infected with COVID-19 go on to die and that the risk of death increases with age:
For those who have been infected, experts have remarked that the risk of being infected again is low, given that 6-months into the pandemic, there had only been 4 or 5 cases of confirmed reinfection across the entirety of Europe.86
However, journal articles have also chronicled that antibody levels in those who have produced a natural immune response to the virus have declined rapidly within a few weeks/months of infection (unlike SARS-CoV-1 antibodies, which lasted around 3-years before dwindling).87
The silver bullet to COVID-19 deaths is, of course, a 100% effective vaccine, which stimulates an immune response targeted to fight the virus and could potentially bring about herd immunity.
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On 2 December 2020, the Medicines and Healthcare products Regulatory Agency (MHRA) approved the first COVID-19 vaccine,88 which was developed and trialed by Pfizer/BioNTech and is supposedly 95% effective.89 By 16 December 2020, 137,000 people had been inoculated in a series of 800,000 scheduled doses. This included people over the age of 80, care home workers and NHS staff.90
The next serum to receive MHRA approval is likely to be the Oxford University/AstraZeneca vaccine, possibly in the week commencing 28 December 2020.91 This is 1 of 15 vaccines to undergo large-scale Phase 3 efficacy trials, with more than 170 teams of researchers worldwide having entered the race to develop a COVID-19 vaccine.92
In recent days, a new strain of SARS-CoV-2 has been identified in England and the World Health Organisation (WHO) has been warned about this novel variant, which appears to be up to 70% more transmissible, but less deadly.93
It is natural for viruses to mutate as they replicate, but it is not yet known whether the genomic changes recently seen in strands of SARS- CoV-2 will impair the success of vaccines and increase the long-term persistence of the virus.94
Back in June of 2020, the ONS revealed that 4,761 ‘deaths involving COVID-19’ in the ‘working age population’ had been registered in England and Wales between 9 March and 25 May 2020.95 No updated occupational mortality data for this geographical region has been published by the ONS since.
Although 75% of jobs that require frequent contact with people are undertaken by females, male workers had almost double the risk of dying from the virus (19.1 deaths per 100,000 people) than their female counterparts (9.7 deaths per 100,000 people).96 The ONS’s provisional mortality rates equated to 3,122 male deaths and 1,639 female deaths.
Below, we present bar charts to illustrate COVID-19 mortality (per 100,000) among workers of both sexes, separated by individual occupation [with reference to the 10th edition of the International Classification of Diseases (IDC-10)].
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It has been well publicised that those most at risk of COVID-19 infection outbreaks have been ‘key workers’ and those unable to work from home. For instance, NHS staff and care home workers,97 public transport workers,98 food delivery drivers,99 postal courier service workers100 and essential retail / factory workers.101
Another indicator of work-related SARS-CoV-2 infections is data collated under The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013, by which employers are duty bound to report cases of, or deaths from, COVID-19, which related to occupational exposures.102
The latest published figures show that between 10 April 2020 and 12 December 2020, there were 17,895 notifications of occupational COID-19 in workers, including 223 deaths. Around half of the notifications received were made after September, as the ‘2nd wave’ of infections began to spike.103
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EVIDENCE OF COVID-19 EMPLOYERS’ LIABILITY CLAIMS INFRASTRUCTURE?
The Law Society Gazette reported, in August, that ‘claims management companies haven’t tried to make money from coronavirus yet’. The Financial Conduct Authority has been preparing for an ‘epidemic of pandemic claims’ by allocating ‘extra resources to a potential surge in applications from [claims management companies] CMCs entering the Covid claims market’.104
Several newly incorporated entities with ‘CORONA’ or ‘COVID’ in the name began to appear on Companies House and these could foreseeably emerge as CMCs:
There may be some delay before CMCs become fully operational, but we will continue to survey the claims environment with interest in 2021.
As at 20 November, Litigation Futures revealed that around 30 compensation claims for COVID-19 infection had been registered with the Compensation Recovery Unit (CRU) – an early sign of increasing claims farming activity attracting both men and women disproportionately in the 50-59 age category. Thompsons has emerged as the dominant claims handling firm, with strong ties to trade unions.105
Another trend to look out in the coming months will be fraudulent claims (likely motor insurance claims) where COVID-19 is used as the ultimate ‘get out of jail free’ card to excuse inadequacies in the chronology of factual evidence, e.g. ‘COVID-19 symptoms’ prevented the victim from seeing their GP about ‘whiplash symptoms’ shortly after ‘accident’?106
COVID-19 INFECTION NEGLIGENCE CLAIMS
Should there be widescale COVID-19 infection litigation brought against employers next year, the issues that will be up for discussion will include: • Whether adequate PPE has been supplied; • Whether instructions to return to work have been delivered prematurely; and • Whether work environments are generally safe.
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Statutory Breaches?
Section 69 of the Enterprise and Regulatory Reform Act (ERRA) 2013 ultimately removed any claim for statutory breach of duty in a civil claim, whose origin stemmed from the ‘six-pack regulations’107 (technically seven-pack) by repealing s.47(2) of the Health and Safety at Work Act (HSWA) 1974.108
Thus, in cases where breach of duty is alleged to have occurred after 1 October 2013, the claim must be brought under principles of common law negligence: 1. Was the injury a foreseeable consequence of the claimant’s work? 2. Did the defendant breach the common law standard of care owed to the claimant?
However, when answering the 2nd question, on what level of care is expected of an employer, courts have consistently found that a ‘reasonable’ employer should be aware of the historic Regulations and the duties that they imposed on employers.
In practice, therefore, it is customarily assumed that s.69 of the 2013 Act has done nothing to substantially modify the employer’s duty of care, other than to reverse the burden of proof from the defendant to the claimant – see Gilchrist v Asda [2015] CSOH 77 – though COVID- 19 infection cases may ‘test’ this assumption. Courts may be ‘far more prepared than usual’ to ‘look beyond’ the ‘strict language’ in the Regulations and ‘seriously’ consider arguments relating to ‘reasonable practicability’.
If Regulations are considered relevant to breach of duty arguments in COVID-19 infection claims, several duties owed by employers under the PPE Regulations 1992 could be placed under the microscope: • REGULATION 4 – Ensuring the provision of suitable PPE (i.e. appropriate and fits well). o ‘… except where and to the extent that such risk has been adequately controlled by other means which are equally or more effective’ – a ‘last resort’? • REGULATION 6 – Ensuring that risk assessments are conducted. o As ‘a reasonably prudent employer’ would (Threlfall v Kingston-upon-Hull City Council [2010] EWCA Civ 1147) • REGULATION 7 – Ensuring the maintenance and replacement of PPE. • REGULATION 9 – Ensuring that information, instruction and training on use of PPE is given.
Where elements of the PPE Regulations, for instance, are cited, one might presume that the following questions could be asked:
Advice has changed drastically over time, in line with changing scientific opinion and technological advancement. • At the time of the alleged breach, what was the Government/WHO/PHE/HSE guidance regarding the effectiveness of certain PPE? • At the time of the alleged breach, should risk assessments have been re-done if there was a ‘significant change’ to the basis of the risk assessment, e.g. when members of the BAME community were found to be at disproportionate risk of COVID-19 outcomes?
Supply and demand chains have been stretched throughout the pandemic, affecting the accessibility, quality and cost of PPE. • At the time of the alleged breach, was authentic PPE readily available and at what price (versus the means of the employer)? • Was there enough PPE to prevent reuse, where such practice was ill advised by the British Standards Institute (BSI) and others?
The pandemic caused businesses to adapt to survive. • At the time of the alleged breach, what were market competitors simultaneously doing?
Some workers, (e.g. supermarket workers, bus drivers) may have never used PPE in their working lives before COVID-19. • Was action taken by the employer to ensure that enforced PPE would be properly donned, effective against infection and also comfortable?
Common Law Duty of Care
In light of s.69 of the ERRA, it is of course important to also consider the default common law duty of care in situations where there is fast- developing knowledge.
In occupational disease claims, the courts have commonly applied the test set out in Stokes v Guest Keen and Nettlefold (Bolts and Nuts) Ltd [1968] 1 WLR 1776, which established the ‘reasonable and prudent employer’ standard of care, whereby the employer may avoid
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liability in negligence if it takes precautionary action based on ‘what he knows or ought to know’ and keeps ‘reasonably abreast’ of developing knowledge and is ‘not … too slow to apply it’.
Stokes was also cited and followed by Simon J, in Asmussen v Filtrona United Kingdom Ltd [2011] EWHC 1734 (QB):
‘… the foreseeability of injury is to be tested against the standard of the well-informed employer who keeps abreast of the developing knowledge and applies his understanding without delay, and not by the standard of omniscient hindsight. An employer can rely upon a recognised and established practice to exonerate itself from liability in negligence for failing to take precautionary steps unless (a) the practice is clearly bad practice, or (b) in the light of developing knowledge about the risks involved in some location or operation, a particular employer acquired greater than average knowledge of the risks’.
By its own admission, the Government has elevated itself to a position of inspiring ‘confidence’ in providing the ‘most up-to-date’ and ‘transparent’ science advice, based on information supplied by the Scientific Advisory Group for Emergencies (SAGE):
We have … published the statements and the accompanying evidence to demonstrate how our understanding of COVID-19 has continued to evolve as new data emerges, and how SAGE’s advice has quickly adapted to new findings that reflect a changing situation’.109
Thus, it is essential in any COVID-19 infection claim that the employer’s duty of care is considered against what is known at the time of exposure, with specific reference to Governmental, industry and scientific knowledge of the time and disapplying later knowledge and hindsight. Ordinarily, they will not be burdened with special, earlier knowledge, or be held to a more onerous standard of care.
What reference point should be taken for the consideration of the ‘established practice at the time’? This is likely to be the state of knowledge and guidance as existed shortly before and during a claimant’s incubation period – up to 14 days from exposure / infection to the development of symptoms.
Thus far, the Government has, among a host of measures, intermittently introduced lockdowns and the 4-tier system; social distancing and grouping rules; restrictions to business opening hours and forced business closures; mandatory face coverings; air corridors; and various means of testing and tracing COVID-19 incidence and viral transmission. It has also produced various pieces of industry-specific practical guidance documents: • Work in construction and other outdoor work; • Work in factories, plants and warehouses; • Work in laboratories and research facilities; • Work in other people’s homes; • Work in offices and contact centres; • Work in restaurants, pubs, bars and takeaway services; • Work in shops and branches; • Work in or from a vehicle; • Work in close contact services; • Work in hotels and other guest accommodation; • Work in heritage locations; • Work in the visitor economy; • Work in the performing arts; and • Work for providers of grassroots sport and gym/leisure facilities
In kind, employers have enforced a host of protective procedures, including the mandatory wearing of surgical masks, respirators, spit hoods, plastic visors and gloves; the undertaking of COVID-19 risk assessments, checks on mental and physical wellbeing and record keeping of all staff and contractors on site; the installation of Perspex shields, protective screens; paperless filling systems and air filtration / purification units; the making available of antibacterial hand gels; the use of ultraviolet light sanitisers, robot cleaners and temperature screening equipment; the setting-up of one-way systems, enhanced cleaning regimes (handwashing and surfaces), separated workstations (for social distancing purposes) and limited person quotas in given locations; and the turning away of potentially infected staff.
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[Source: Geograph – Jaggery (6 April 2020): ‘Let's keep a safe distance - Please follow the one-way system, Tesco Express, Malpas, Newport’]
Contesting Breach of Duty
Contributory Negligence?
Failure on the part of an employee to follow proper social distancing, wash hands properly and on a regular basis, or adopt other required precautions, will likely work in a defendant’s favour when defending claims.
The Doctrine of Volenti Non Fit Injuria?
Many retirees have sought, albeit unselfishly, to return to the world of work and volunteer, in a time of crisis. If a person has comorbidities and is knowingly exposing themselves to the risk of adverse COVID-19 health consequences, have they consented to their employer’s negligence and does the defendant have a complete defence to the claim? Volenti is a rare defence, not least because it is unpopular for courts to reach such a finding (that a claimant has acquiesced to negligence). In certain circumstances, however, volenti may be a valid defence – and this may be one such circumstance.
Acting on Necessity?
If a defendant supermarket, for example, found itself unable to comply with its duty to keep employees safe in the midst of an outbreak, could it submit that its decision to continue regardless and not close operations was legitimised by its contribution to the ‘national effort’?
Waiting for Complete Guidance?
If a claimant were to propose that their employer failed to reassess risk in line with new science, defendants may seek to cite the military Q fever case of Bass v MOD [2020] EWHC 36 (QB), in which the High Court accepted that, whilst employers must be alert to changing evidence, they are entitled to take a cautious approach and wait for more complete evidence before undertaking a new risk assessment.
Defendant businesses may, to some extent, be absolved by the slow and incoherent action of the Government to define a clear and exhaustive strategy on COVID-19 prevention. As Professor Andrew Watterson, of the University of Stirling, rationalised in a New Solutions journal article:
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‘In due course, there will need to be a thorough analysis of the national and regional performance of the UK and devolved governments during the pandemic, why some decisions and actions varied between them and with what effect on employee health and safety across society. Also the wisdom of the devolved administrations accepting initial UK government policy and agency assessments of pandemic risks should be scrutinized. The first UK timetable for actions rather than those of the WHO with its extensive evidence-based reports on pandemics was seriously flawed. The implications for occupational health and safety were considerable’.110
The Duty to Dismiss Vulnerable Employees?
If a worker is particularly susceptible to COVID-19, questions may be asked of an employer’s duty to balance ‘freedom of the individual’ against the responsibility to ensure that their employee is safe.
The guiding authority on this issue is still the occupational dermatitis case of Withers v Perry Chain Co Ltd [1961] EWCA Civ 4, which found that there is no common law duty ‘requiring an employer to dismiss an employee rather than retain him or her in employment and allowing him or her to earn wages, because there may be some risk [of harm]’. On the contrary, it is generally for the employee to decide whether or not to take the risk, weighing that risk ‘against the desirability, or perhaps the necessity, of employment’. That being said, Withers does not always apply and is a matter for assessment on a case-by-case basis.
In the case of Coxall v Goodyear Great Britain Ltd [2002] EWCA Civ 1010, the Court of Appeal clarified, for the first time, that the ‘principal consideration in determining whether or not any particular case falls within the Withers principle’ is the ‘magnitude of the risk’ of injury, i.e. ‘the actual nature and extent of the known risk’.
However, an important obiter observation recognised that, were a claimant to ‘insist’ that they ‘wish to go on working’ after discussing all the available options with their employer, prospects of repudiating the claim would vastly improve.
Medical & Legal Causation
Medical Causation
We assume that proving medical causality between exposure within the workplace/public spaces and infection will be a more challenging hurdle to surpass than proving breach and this discrepancy was exacerbated in the early stages of the pandemic when testing and tracing capabilities were limited. That being said, determining exactly where (location), when (time) and how (source) an alleged tortious exposure took place is still an imperfect science.
Investigating medical causation will require a detailed forensic review of the likely incubation period, working back up to 14-days prior to the first onset of symptoms. What was a person’s activity during this period and what were all the potential periods, durations, frequencies and types and doses of exposure?
Legal Causation
Deciding which of the 4 legal causation tests (the ‘but for’ test / the ‘doubling of risk’ test / the ‘material contribution’ test / the ‘Fairchild v Glenhaven Funeral Services [2002] UKHL 22’ principle) applies to the facts of a specific occupational disease claim appears to depend on whether: • There is a single cause of disease or multiple causes of disease. • There is a single exposure source or multiple exposure sources. • Where there are multiple causes, whether they act independently or together to cause disease. • The scientific knowledge surrounding the aetiology of disease is well known or poorly understood. • The disease is divisible or indivisible. • The disease in question is mesothelioma.
Where there is a single cause of disease and a single exposure to the same, the ‘but for’ test is readily applied. However, the courts have had difficulty, in recent years, in applying the correct test of causation where (i) there are multiple sources of exposures to one known cause of disease, or (ii) there are multiple exposures to multiple causes of disease, or (iii) scientific and medical knowledge of aetiology of the disease is simply not sufficiently developed to say precisely how a disease has developed, or how potential multiple causes of the same may have contributed either to the disease itself, or to the risk of developing the disease.
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In Zurich Insurance PLC UK Branch v International Energy Group Ltd (Rev 2) [2015] UKSC 33, Supreme Court Justices assented to the prospect of the Fairchild exception (causation met by proving that breach merely contributes towards the risk of injury, i.e. beyond de minimis exposure) applying ‘to any disease which has the unusual features of mesothelioma’, i.e. indivisible diseases (almost) exclusively linked to a single known type of exposure.
At the present moment in time, we cannot say with confidence that COVID-19 is a divisible disease, as the medical science on a viral dose-response relationship is still in its infancy.
Willem van Schaik, Professor of Microbiology and Infection at the University of Birmingham, predicts that the ‘infectious dose’ of SARS-CoV- 2 is ‘in the region of a few hundred or thousand particles’. Similarly, Virology specialist at Imperial College London, Dr. Michael Skinner, tentatively considers that the ‘infectious dose’ is ‘around a hundred virus particles’ and being exposed to multiple infected sources is unlikely to make much difference to the course of disease, nor the outcome.
Owing to the fact that viruses reproduce exponentially, there may be no discernible dose-response relationship, but a 2015 study previously demonstrated that influenza did exhibit such a relationship, i.e. with higher viral dosages, the symptoms experienced worsened.111 MERS and SARS also follow this pattern.112 Veterinary Surgeon and Clinical Research Fellow in Viral Immunology at the University of Cambridge, Sarah Caddy, explains that this makes logical sense, as ‘the more starting virus particles there are, the more cells will be infected’.113
Needless to say, if the Fairchild principle does apply to COVID-19 infection claims, it would invariably lower the legal causation threshold.
Damages
Envisaging the probable value of EL/PL COVID-19 infection claims, in terms of general damages, we presume that the anecdotal sections of the Judicial College (JC) Guidelines (15th edition) would be: • For a collapsed lung (£1,880 to £4,540) – Chapter 6(A)(f); • For toxic fume/smoke inhalation (£4,540 to £10,750) – Chapter 6(A)(e); and • For permanent breathing difficulties short of permanent breathlessness (£26,710 to £46,780) would be of relevance – Chapter 6(A)(c).114
As such, a claimant who was admitted to ICU with COVID-19 and survived would likely seek general damages in the £26,710 to £46,780 bracket, while a claimant who is admitted to hospital with COVID-19, but not transferred to the ICU, would warrant an award between £12,000 to £36,000.
Of course, claimants may also seek special damages for lost earnings and potentially future care (especially if there are long-term consequences of the virus). Depending on the findings of studies into long-term impacts of COVID-19, claimants may also seek compensation for other physical and mental damage caused by infection, which would be assessed in line with other JC Guideline brackets.
Example basic COVID-19 infection claim: • A male care worker (aged 40/45/50/55/60/65) is on shift in a home where there is a COVID-19 outbreak. • Due to his employer’s negligence, he contracts COVID-19. • He is forced to take time off sick for 4-weeks, losing out on a proportion of his yearly salary [£18,237 per annum = Annual Survey of Hours and Earnings (ASHE) average for ‘Care workers and home carers’ (CODE 6145)]. • His symptoms are severe and he consequently dies, in May 2020. • Had he not contracted the disease, he would life expectancy would not have been shortened and from the age of 65 through retirement, he would have received a £10,000 pension. • He leaves behind his wife (and a temporarily dependent child), who has no personal income and an ordinary life expectancy. • She has a £2,000 annual dependence on his services, up to the age 80. • The deceased’s estate brings a claim against his former employer, producing a schedule of loss, comprising of general and special damages. • The trial goes ahead 1-year after the date of death.
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COMPLEX COVID-19 INFECTION CLAIMS
As time has gone by, the science has suggested that SARS-CoV-2 is not just a respiratory virus, but a ‘multi-organ killer’.115
There is a growing list of academic journal articles which link COVID-19 infection with a wide range of acute and serious health conditions, which include but are not limited to: • Encephalitis, psychosis/delirium, dementia, Alzheimer’s, Parkinson’s and other types of brain damage (prevalence of around 50% of patients with severe COVID-19 infection116).117 • Tinnitus – an Anglia Ruskin University study of 3,103 people with tinnitus from 48 countries (the vast majority coming from the UK and the US) has found that that 40% of participants displaying symptoms of COVID-19 simultaneously experienced a worsening of their tinnitus.118 • Large vessel stroke (particularly in young patients) – blood tests show that COVID-19 infection makes the blood very sticky, i.e. more prone to clot119 – ischemic stroke risk is 8-times greater than in influenza patients120.121 • Other types of blood clot (9-times as many in COVID-19 patients as in swine flu patients122), e.g. deep vein thrombosis and pulmonary embolism123.124 • Heart arrhythmia, congestive heart failure, myocarditis, pericarditis and other cardiovascular conditions (a global study of 1,261 COVID-19 patients found that 55% produced abnormal echocardiograms affecting the left and right chambers of the heart equally, even though 71% had never before been diagnosed with heart problems125).126 • Thrombocytopenia.127 • Sepsis (as many as 1 in 5 hospitalised COVID-19 patients, according to the UK Sepsis Trust).128 • Potentially ‘irreversible’ lung scarring (referred to as ‘ground-glass opacities’ in the literature129) affecting thousands (seen in 20 to 30% of patients, some of whom are asymptomatic).130 • Liver damage.131 • Gastrointestinal infection.132 • Sub-acute (De Quervain's) thyroiditis.133 • Acute and severe kidney injury (supposedly in up to 30% of patients134).135 • Diabetes (where the virus appears to damage the cells responsible for producing insulin136), including new-onset type 1 diabetes in children.137 • Cancer (with academics stressing that asymptomatic COVID-19 patients are at risk).138 • Testicular damage139 and male infertility.140 • A type of temporary hair loss, called telogen effluvium, which typically occurs post-shock or after traumatic event.141 • Rare inflammatory multisystem syndrome (Kawasaki disease) in children142 (especially in BAME patients and even more markedly so in those with African heritage143), which has been fatal for at least 2 British children144 and is caused by ‘significant changes in white blood cells’.145 • COVID-19 in newborn babies (transmitted by the mother in the womb), though the benefits and safety of an infected mother breastfeeding outweigh any risk, says the WHO and the Royal College of Obstetricians and Gynecologists.146 • Vulnerabilities in the development of human embryos in the womb (with issues commencing as early as the 2nd week of pregnancy) – University College London has devised a study to quell fear of increased miscarriages and less successful pre-term labour deliveries.147 148
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More and more information is also surfacing on a common grouping of debilitating longer-term health complications faced by a ‘significant minority’ of COVID-19-infected patients,149 which has been dubbed ‘post-COVID syndrome’ (or ‘long-COVID’).
‘An illness in its own right’,150 sufferers have endured fatigue, breathlessness, fever, blurred vision, difficulty concentrating, memory loss (‘brain fog’) and heart inflammation – this is evocative of post-viral fatigue syndrome.
According to the latest King’s College research, published in October (based on data compiled by the COVID-19 Symptom Study App, designed by ZOE, the health science company), 1 in 20 infected COVID-19 sufferers have gone on to suffer symptoms lasting longer than 8-weeks.151
To ascertain the full extent of the long-term health effects of COVID-19, the £8.4 million Post-hospitalisation COVID-19 study (PHOSP-COVID) has been devised and was officially launched on 7 August.152 The National Institute for Health Research (NHR) Leicester Biomedical Research Centre (BRC)-led project is recruiting 10,000 patients hospitalised with COVID-19 and will monitor post-symptomatic progression for up to 25-years.153
In July, the UK Government also launched ‘Your COVID Recovery’, an online portal for people in England to track symptomatic progress.154
ASYMPTOMATIC COVID-19 INFECTION CLAIMS?
As COVID-19 infection claims emerge and develop, it is inevitable that claims handling firms will look to convert what potentially could be a huge pool of asymptomatic individuals into negligence claims. Their success will surely depend on what evidence comes to light in respect of the long-term clinical sequelae of infection in the asymptomatic population.
Large numbers of COVID-19 infections have not translated with signs or symptoms of the virus and widescale antibody tests have already helped to confirm this – a University College London study of over 36,000 people living in Northern Ireland, England, and Wales found that as many as 86% were asymptomatic – the largest proportion to-date.155
Somewhat of a matter for future ‘concern’, therefore, is the growing body of research which has concluded that COVID-19 patients with mild-to-moderate symptoms, and even asymptomatic patients, are displaying signs of delayed onset health conditions, including lung scarring, thrombocytosis, stroke, cancer and brain damage – ‘hidden epidemics’.156
As a result, prospective COVID-19 infection litigation may involve complex discussion on principles of ‘actionable damage’ and de minimis non curat lex, as claimants, who have not yet suffered measurable pain, suffering or loss of amenity, seek compensation.
The question of what constitutes ‘actionable damage’ has been litigated before the courts in many disease claim types, such as pneumoconiosis (Cartledge v E Jopling & Sons Ltd157), asbestos-related pleural plaques (Rothwell v Chemical & Insulating Co Ltd158), asbestosis (Carder v The University of Exeter159), NIHL (Ross v Lyjon160) and most recently, platinum salt sensitivity (Dryden & Ors v Johnson Matthey Plc161).
The common denominator in each of these cases has been the perceived absence of any signs or symptoms of disease, but distinguishing them is the potential impact of the disease on future health and work.
The importance that future impact of disease plays is clearly highlighted in the platinum salt sensitisation claim of Dryden. Sensitisation was an asymptomatic condition, in this instance, but there was a risk of subsequent allergic reaction (running eyes or nose, skin irritation and bronchial problems) arising with further exposure. It was this future risk (and the impact that it could have on work) which converted the asymptomatic condition into an ‘actionable’ one, yielding compensation:
‘I would distinguish this case from Rothwell … As I see it, it is material that the pleural plaques were nothing more than a marker of exposure to asbestos dust, being symptomless in themselves and not leading to or contributing to any condition which would produce symptoms even if the sufferer were to be exposed to further asbestos dust. Similarly, the sensitization of the claimants in this cases marks that they may have already been exposed to platinum salts, but unlike the plaques, it constitutes a change in their physiological make up which means that further exposure now carries with it the risk of an allergic reaction and for that reason they must change their everyday lives so as to avoid such exposure. Putting it another way, they lost part of their capacity to work or, as the claimants put it in argument, they have suffered a loss of bodily function by virtue of the physiological change caused by the company’s negligence’.
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Could asymptomatic COVID-19 infection be distinguished from pleural plaques, as platinum salt sensitisation was?
SECONDARY EXPOSURE COVID-19 CLAIMS?
Secondary exposure claims have long been a feature of asbestos and other occupational disease claims. These claims involve (i) an employer who is at initial fault in exposing an employee to a damaging agent, (ii) the exposed employee exposing family members to the aforementioned agent and (iii) the secondarily exposed family member going on to develop a disease/illness.
In the context of COVID-19 infection claims, if the employer was not at fault in respect of their employee’s exposure to SARS-CoV-2 (primary exposure), then it follows that they would equally not be at fault in respect of any secondary exposure(s).
Conversely, if the employer was at fault in respect of their employee, then considerations relating to the ‘reasonable foreseeability’ of secondary exposure(s) would include: • How long the employee may have remained infective and/or the virus been live within the family home and onset within the secondary victim? • Whether the secondary victim could have been exposed elsewhere/likelihood of the same? • Whether secondary exposure brought about a ‘material increase in risk’ of COVID-19 (depending on the test of causation applied – see section on causation above)?
COVID-19 CLAIMS UNDER THE EMPLOYERS’ LIABILITY (DEFECTIVE EQUIPMENT) ACT 1969?
The Employers’ Liability (Defective Equipment) Act 1969 imposes strict liability on employers for the 3rd party supply of defective equipment, which causes injury to an employee in the course of his/her employment.
Interestingly, the 1969 Act is versatile enough for its sting to encompass slip/trip claims, i.e. a claim under s.1 would not be limited simply to coronavirus infection claims.
COVID-19 CLAIMS PURSUANT TO THE INDUSTRIAL INJURIES DISABLEMENT BENEFIT SCHEME?
No action has been taken by the Industrial Injuries Advisory Council (IIAC) to classify COVID-19 as a ‘prescribed disease’ eligible for Industrial Injuries Disablement Benefit (IIDB) awards.
For COVID-19 in (a sub-section of) workers to be meet the Council’s threshold of prescription, the ‘relative risk’ of disease would need to be more than 2, i.e. the risk of COVID-19 would need to be doubled for those working in a particular type of job or exposed to SARS-CoV-2 at work.
Only time will tell as to whether COVID-19 is added to Schedule 1 of the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985.
NON-COVID-19 INFECTION INJURIES CAUSED BY THE PANDEMIC?
Musculoskeletal Conditions Among Home Workers?
The shift towards homeworking, amid office closures during the COVID-19 pandemic, has led to a significant increase in new musculoskeletal complaints (neck, shoulder or back pain) and it is accepted that ‘there are going to be questions over whether people can sustain prolonged laptop working’.162
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Mental Health Conditions Among Home Workers?
Another occupational health risk connected to remote working practices and COVID-19 is stress, alongside other mental health conditions, such as depression and ‘burnout’ (included in the 11th Revision of the International Classification of Diseases as an ‘occupational phenomenon’163). The disease is exacerbating work pressures through threat of unemployment, increased workloads, ineffective management and loneliness.164
For the leading authority on work-related stress claims, see the then Lady Justice Hale’s list of 16 practical propositions for establishing liability, at para 43 of Sutherland v Hatton [2002] EWCA Civ 76.
Acoustic Shock Among Headset Users?
In recent months, there has been a ‘steep increase’ in Canadian workplace injuries, including acute acoustic shock and tinnitus among remote workers.165
This trend has been attributed to workers experiencing problematic sound quality issues with headsets and other communicative devices, e.g. loud feedback loops.166
If employers do not provide workers with headsets fitted with acoustic limiters (per the Department of Trade and Industry (DTI) specification 85/013), they may be at risk of noise exposure above 118 dB (130 dB exposure can be acoustic shock-inducing).
Alternatively, workers using limiter-controlled headsets without acoustic shock protection may suffer from ‘central auditory gain’ (increased susceptibility to acoustic shock), which poses more of a risk if feedback is more common than usual, i.e. through workers using cordless phones (which can pick up interference, in the form of static and reduced audio quality167), as opposed to their corded office phone.
Legionnaires’ Disease Among Workers Returning from Homeworking?
The HSE and IOSH have warned employers and occupiers that the risk of Legionnaires’ disease may have increased if work premises have been closed or had reduced occupancy throughout the COVID-19 crisis.168 Infrequent use of water systems during lockdown, could have encouraged legionella growth.
PART 3 – PROCEDURAL AND POLITICAL INFLUENCE
THE PERSONAL INJURY CLAIMS MARKET – A NOTABLE REDUCTION IN INSTRUCTIONS?
On 3 December 2020, the Ministry of Justice (MoJ) published its latest quarterly civil justice statistics for Q3 of 2020 (July to September).169
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So far this year, a total of 75,338 PI claims have been issued in the county courts, which is representative of an 13% decline compared to the combined total in Q1, Q2 and Q3 of 2019 (86,713).
The COVID-19 pandemic is suspected to have had an impact on these quarterly statistics. Indeed, in Q2 of 2020, just 16,309 personal injury claims were issued in the county courts, which was the 3rd lowest number ever recorded (only Q1 and Q2 of 2009 were lower). The fact that the number of claims issued in Q3 harks back to figures last witnessed in 2017 would seem to imply disjointed claimant behaviour (i.e. due to COVID-19) ahead of mundane seasonal fluctuation.
Of course, the general downward trend of personal injury claims over a number of years can also be attributed in part to civil justice reform enacted through the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) 2012: • The abolition of recoverable CFA success fees and ATE insurance premiums; • A 10% increase in general damages for pain, suffering and loss of amenity; • A ban on referral fees in respect of personal injury litigation; and • The introduction of qualified one-way costs shifting (QOCS) in personal injury litigation.170
Looking elsewhere at the latest available Compensation Recovery Unit (CRU) registrations data (July to September 2020), obtained by the Association of Consumer Support Organisations (ACSO), it is noticeable that EL/PL claims have been ‘broadly flat on the previous quarter’, but ‘well down compared to the same period last year’ and showing little increase since lockdown.171
This has been accredited to the fact ‘many people are still working from home’ and that, should this continue, we could see a fast contraction in personal injury claims across the board.
Finally, casting over to the EL (Disease MI) Claims Portal, the 12-month rolling bar chart of claims notification forms (CNF) sent paints a complementary picture – a general downward trend.172
Current estimates suggest that the largest 12 personal injury law firms currently occupy a combined market share of around 30%. Based on this estimate, the personal injury sector is ‘the most heavily concentrated sector’ in the field of consumer law.
Market forecasters, such as IRN Research, have predicted that, at least in the short-term future, to compensate for the drop in claims numbers, the impact of reforms and COVID-19, there will be a rise in individual practice restructuring and diversification; mergers/acquisitions; and more technology-driven solutions introduced at a faster-than-normal rate – see Slater and Gordon’s new ‘automate first’ approach.173 This has been described as a ‘watershed moment’ for the personal injury sector.174
Projections had the total value of the personal injury market falling this year by 1.5% to around £3.92bn. Next year, the value of the personal injury market is not expected to shift upwards or downwards, but 2022 and 2023 are due to foster growth of 2% and 4%, respectively.
Will there be a kick-start to the claims market in 2021? Will it be COVID-19 infection claims that prompt a surge? And will medical examinations, hearings and trials continue to take place on a predominantly remote basis?175 Only time will tell.
WHIPLASH REFORMS: THE RISE IN SMALL CLAIMS LIMIT
Last year, we informed our readers that the insurance industry had doubts over whether the Ministry of Justice (MoJ) would be able to meet its deadline to bring forward a package of whiplash reforms supplementary to the Civil Liability Act 2018 by April 2020, at the latest.
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Such reforms included a rise in the small claims track limit from £1,000 (unamended since 1991) to £5,000 for soft-tissue whiplash claims (and potentially to £2,000 for all other PI claims, including EL/PL claims), alongside a compensation tariff system, a ban on offering/accepting settlement of whiplash claims without first obtaining medical evidence and new IT-based RTA portal infrastructure.
However, in February, the Lord Chancellor and Secretary of State for Justice, the Rt. Hon Robert Buckland QC, announced that the Government would be postponing the implementation of reforms until 1 August 2020, in spite of ‘major progress’ having been made:176
‘The government has decided that more time is necessary to make sure the whiplash reform programme is fully ready for implementation. We have always been clear that we need to do this right rather than hastily. In particular, we need to provide sufficient time to work with the Civil Procedure Rules Committee to put in place the supporting rules and pre-action protocol and to give industry sufficient time to prepare their businesses for the changes to how small road traffic personal injury claims are managed. We will also lay the statutory instrument in parliament to introduce the tariff of damages for whiplash injuries’.177
Just weeks after this statement was made, the Lord Chancellor was forced, in the early stages of the COVID-19 pandemic, to push back reform even further, admitting that ‘now is not the time to press ahead with significant transformational change to the personal injury sector’.
Consequently, all small claims reforms were deferred until April 2021.178
The Government has stressed that it remains ‘firmly committed’ to increasing the small claims track to £5,000 for RTA claims, though the expected increase in litigants in person (due to less claimants being able to recover legal costs) may be a shock to the civil justice system. Nonetheless, consumers are said to be ‘growing in confidence’ to manage their own claims.179 Meanwhile, only 18% of claimant firms surveyed are ready for the reforms, one being Minster Law, having formally launched its self-service digital claims portal, called INK.180
It is becoming increasingly likely, though not at all guaranteed, that all EL/PL claimants will still be legally represented come April 2021, as both claimant and defendant stakeholders have been lobbying against EL/PL reform in recent months – an area which had ‘never’ been identified as a target for reform according to the Association of Business Insurers (ABI).181
Even now, though, there is still internal scepticism over the current timetabling. Minutes for the Civil Procedure Rule Committee’s November meeting stated that parties were continuing to ‘work together constructively [on the draft rules], but there is still much to do’.182
We do not know when the final version of the new pre-action protocol, practice direction (and draft whiplash injury regulations?) will be published, only that the MoJ is ‘determined’ to do so.183
EXTENDING THE FIXED COSTS REGIME
The Ministry of Justice (MoJ) launched a 2-month consultation into extending Sir Rupert Jackson’s fixed recoverable costs scheme in April 2019 and we have been eagerly awaiting the Government’s impending follow-up responses ever since.
Legal commentators had initially predicted some form of update in Autumn 2019 but our forecast in last year’s ‘Horizon Scan’ is still ultimately yet to bear fruit and is now well overdue.
To-date, there has been no official Government publication discussing fixed recoverable costs across all ‘fast track’ claims and ‘intermediate cases’, nor any developments on fixed recoverable costs in a ‘bespoke’ noise-induced hearing loss (NIHL) fast track.
Although it is impossible to say with certainty, in the midst of a global pandemic which has ground all manner of civil justice reform to a halt, the latest intelligence we have implies that the new regime could be in place by October 2021.184
In spite of radio silence from the MoJ, it is said that the government department remains ‘very keen’ on following through with its plans, after which it will supposedly begin work on a regime to almost entirely eliminate costs budgeting and post-settlement assessments, i.e. imposing matrices of fixed recoverable costs ‘up to the value of £250,000’.
The changes due to take effect in October 2021 are presented below.
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Extended Fast Track and ‘Intermediate Cases’
The upshot of current proposals is that EL/PL disease claims, valued up to £25,000, would be encompassed within the new and expanded fast track. Meanwhile, claims valued between £25,000 and £100,000 would be designated as ‘intermediate cases’ and would be assigned to an ‘extended fast track’.
Mesothelioma and other asbestos-related disease claims would fall outside of a broadened fixed costs regime, as would any claim whose trial is expected to last longer than 3-days, and also where more than 2 expert witnesses are scheduled to give oral evidence.
See the proposed grids of fixed costs, below.
Pre- and Post-Litigated ‘Fast Track Cases’:
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Pre- and Post-Litigated ‘Intermediate Cases’:
‘Bespoke’ NIHL Fast Track
For NIHL claims, a ‘bespoke’ fast track scheme has been conceived, but the appointed Civil Justice Council (CJC) Working Party pinpointed that certain claims would be exempted (i.e. subject to costs as standard), such as: • Single defendant cases, where the defendant puts their name on a list for all their cases to commence within the EL/PL portal; • Single defendant cases commenced within EL/PL portal, which subsequently fall out of the portal; • Military claims; • Claims valued at more than £25,000; • Claims with more than 3 defendants; and • Claims where a defendant, in their letter of response: 1. Argues that the work-related hearing loss is de minimis; 2. Submits a request for a repeat audiometry; 3. Submits a request for own medical evidence (ENT Consultant, etc.); or 4. That the claim is to be treated as a ‘test case’ (the scope of this has not been agreed).
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For eligible claims, expected costs [exclusive of VAT, reasonable disbursements (but not counsel fees) and restoration fees (£1,280 per defendant excl. VAT)] are displayed in the tables below:
Pre-Litigated NIHL Claims:
Litigated NIHL Claims:
In 2017, we compared current defence spend against fixed fee spend, the results of which were best illustrated by the table below:
USING THE NEGATIVE DISCOUNT RATE
For over a year, in England and Wales, the personal injury discount rate (otherwise known as the ‘Ogden rate’), which is used to calculate lump sum damages for future losses in high value personal injury claims, has been set at (-)0.25%. Meanwhile, Scotland’s discount rate has been fixed at (-)0.75%.
Contrary to our predictions in last year’s ‘Horizon Scan’, there has been no indication that claimants are employing ‘forum shopping’ tactics; that is to say where claimants, who are eligible to bring personal injury claims in multiple UK jurisdictions, choose to advance proceedings where the discount rate is lowest, i.e. where it is assumed that the claimant will receive a lower return from its invested damages.
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Several months ago, we became aware that that the insurance market would not be pursuing a judicial review challenge of the new discount rate in England and Wales, quelling concerns that we voiced in 2019. That being said, in recent weeks, the Association of Personal Injury Lawyers (APIL) has announced that it will be launching a judicial review challenge of Northern Ireland’s decision not to set an interim discount rate, pending its pledge to introduce a new mechanism for setting the rate (potentially in line with Scotland) through legislation. According to APIL’s spokesperson for Northern Ireland, ‘a formal letter to the Northern Ireland Department of Justice with a view to making an application for a judicial review of the decision announced in October should it remain unchanged’.185
One of the ways in which the negative personal injury discount rate made waves this year was in the case of Swift v Carpenter & Anor [2020] EWCA Civ 1295, which we analysed in edition 318 (here).
When claimants sustain life-changing physical injuries that impair mobility, their pre-injury accommodation is often no longer suited to their post-injury requirements and new accommodation is sought. It is normal for new accommodation to exceed the value of the victims’ previous accommodation.
Following the longstanding Roberts v Johnstone approach, courts have historically not awarded claimants the value of the new accommodation.
Instead, they compensated claimants for the annual loss of income brought about by spending their own money on accommodation, in preference to making investments, using the following 2-stage calculation:
Step 1: Multiply the capital property cost (the difference between the value of the old and new accommodation) by the prevailing personal injury discount rate.
Step 2: Multiply the figure from Step 1 by the multiplier for pecuniary loss of life (using Tables 1 and 2 of the Ogden Tables).
E.g., under the previous 2.5% discount rate (effective up to 2017), a 51-year-old male claimant moving from a £300,000 home to a £550,000 home would have received:
Ordinarily, during times when a positive personal injury discount rate was in force, this was fair, because awarding claimants the full capital cost of special accommodation would eventually result in over-compensation by the time that the claimant died, i.e. the value of the asset would be expected to have enhanced.
Any deficit (in the example above: £250,000 - £139,187.50 = £110 812.50) was typically topped up by damages for other heads of loss (invariably general damages).
However, since 2017, when the personal injury discount rate was negativised, McGregor on Damages (19th Edition) was correct to prophesise that ‘the Roberts v Johnstone method becomes unworkable; it would produce a nil award’.
The reason for this is plainly that the multiplicand in the Roberts v Johnstone formula can only be generated if the assumed rate of return is at or above 0%.
Devising a ‘fair and proper solution’ to the reality that some victims of serious personal injury would, in the absence of substantial general and special damages and ‘nil’ Roberts v Johnstone awards, be left with ‘no prospect at all of obtaining special accommodation which they ought to have’, Lord and Lady Justices Irwin, Davies and Underhill unanimously overturned the Roberts v Johnstone methodology.
In its place, it was considered appropriate, in a negative discount rate era, to compensate the claimant for the capital value of new accommodation, less ‘reversionary interest’, i.e. the value of the ‘windfall’ that would be accrued by a claimant over a prolonged time period, given a projected rate of return on the investment (‘discount rate’).
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In Swift, the claimant in this action suffered leg injuries in a road-traffic accident (RTA), which resulted in a below-knee amputation and the need for larger accommodation, at a cost of £900,000. She was 43-years-old at the date of trial [43.58-years-old for the purpose of Ogden (7th edition)]. The discount rate was set at 5%:
To our knowledge, the defendants in Swift are seeking the Court of Appeal’s permission to take the case to the Supreme Court and this is something to look out for in future editions of BC Disease News.
Until an appeal is heard, though, it is safe to say that awards in majority of ongoing cases in 2021 will increase under the ‘reversionary interest’ approach, with practitioners and insurers likely reviewing their schedules of loss and offers of settlement upwards.
EXTENDING ELIGIBILITY FOR BEREAVEMENT DAMAGES
In last year’s ‘Horizon Scan’, we predicted that there would be some progression with the Government’s proposed Fatal Accidents Act 1976 (Remedial) Order, which asserted that ‘a claimant who cohabited with the deceased person for a period of at least two years immediately prior to the death’ would be able to pursue a claim for ‘bereavement’ damages.
Laid before Parliament on 12 February 2020, the draft Order, was supposed to remedy the Court of Appeal’s judgment in Smith v Lancashire Teaching Hospitals NHS Foundation Trust & Ors (Rev 2) [2017] EWCA Civ 1916, as s.1A(2) of the Act had been declared incompatible with the European Convention of Human Rights (ECHR), pursuant to s.4 of the Human Rights Act 1998:
‘... in the context of bereavement damages under section 1A of the FAA, the situation of someone like Ms Smith, who was in a stable and long term relationship in every respect equal to a marriage in terms of love, loyalty and commitment, is sufficiently analogous to that of a surviving spouse or civil partner to require discrimination to be justified in order to avoid infringement of Article 14 in conjunction with Article 8 [of the European Convention on Human Rights] … it is the intimacy of a stable and long term personal relationship, whose fracture due to death caused by another’s tortious conduct will give rise to grief which ought to be recognised by an award of bereavement damages, and which is equally and analogously present in relationships involving married couples and civil partners and unmarried and unpartnered cohabitees’.
The draft Order was approved by the House of Commons on 15 June 2020, shortly after the Joint Committee on Human Rights, which had been tasked with scrutinising the Order under the ‘non-urgent’ procedure, published its 2nd Report (dated 18 May 2020) and reiterated its recommendation for a consultation on wider reform of s.1A ‘to ensure it is fully compliant with human rights law and reflects the reality of modern family life’ – read our full article in edition 308 (here).
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At that time, the Joint Committee was ‘disappointed’ that the Government had rejected any further consultation on the bereavement damages scheme because it considered that the list of eligible claimants in its present form is ‘still vulnerable to human rights challenges’, e.g.:
‘… fathers grieving the loss of children born outside of wedlock; parents grieving the loss of adult or married children; children grieving the loss of a parent; and siblings grieving the loss of a brother or sister’.
The Joint Committee was also quizzical over whether the equivalent Scottish model of assessing damages for ‘loss of society’ (under the Damages (Scotland) Act 2011), on a case-by-case basis, would present a fairer alternative for England & Wales than its fixed lump sum model.
Many of these concerns were regurgitated at the Grand Committee of the House of Lords, on 3 September 2020:186
‘… the noble Lord, Lord Hain, spoke about the provision for couples that may be together but not sharing a home …
A number of noble Lords, including the noble and learned Lord, Lord Falconer, mentioned that no provision is made for couples who have lived together for less than two years. The period of two years already applies in other cases; certainly, under Section 1(3)(b) of the 1976 Act, the Court of Appeal did not question the validity of the two-year period …
Several noble Lords brought up the fact that the law is not the same in England as in Scotland …
The noble Lord, Lord Hain, also asked why this measure is not in primary legislation …
… the Scottish system and primary legislation … was brought up by the noble Lord, Lord Thomas of Gresford.
The noble and learned Lord, Lord Falconer … talked about … the issue about a father and the loss of a child …
There has been a lot of talk from noble Lords about the Act itself, including how old it is and the fact that some of it uses inappropriate language, as we heard from the noble Baroness, Lady Jones of Moulsecoomb’.
In spite of these remarks, Baroness Scott of Bybrook maintained that the draft Order ‘accurately and effectively’ rectified the incompatibilities identified by the Court of Appeal in Smith and confirmed that it would be brought into effect ‘as swiftly as possible’.
And indeed it was, with The Fatal Accidents Act 1976 (Remedial) Order 2020 having been made on 15 September and entering into force on 6 October 2020. It is important to note that the Order does not apply retrospectively, i.e. it only applies to causes of action which accrue on or after the date of enforcement.
Concurrently this year, ‘damages for bereavement’, has also increased to £15,120 (from £12,980) for cases with causes of action accruing on or after 1 May 2020. This was effected by The Damages for Bereavement (Variation of Sum) (England and Wales) Order 2020 (laid before Parliament on 19 March 2020) – we reported this in edition 306 (here).
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The law in England and Wales is now in line with the position in Northern Ireland (£15,100 since May 2019).
Nonetheless, in the year ahead, it will be interesting to see whether the Government seeks wholesale reform, per the Joint Committee’s requests and demands from the Association of Personal Injury Lawyers (APIL). If so, this will therefore require primary legislation.
6-YEAR LONGSTOP FOR MILITARY DISEASE CLAIMS: OPERATIONS (SERVICE PERSONNEL AND VETERANS) BILL
As we first reported, in edition 311 of BC Disease News (here), Part 2 of the Overseas Operations (Service Personnel and Veterans) Bill will (pending Royal Assent) amend s.33 of the Limitation Act 1980 to limit the court’s discretionary power to disapply time limits for civil claims brought against the Ministry of Defence (MoD) by (ex-)service personnel, in respect of personal injuries or death, which relate to overseas operations of the armed forces (‘overseas armed forces actions’).
More specifically, this piece of draft legislation would insert, into s.33(1) of the 1980 Act, the clause:
‘The court shall not under this section disapply any provision of section 11 in its application to an overseas armed forces action if the action was brought after the expiration of the period of six years from the section 11 relevant date’ (pursuant to Schedule 2 of Part 1 of the Bill).
In practice, what would this 6-year longstop mean for a soldier who wished to commence legal action after developing a condition with a long latency period, such as post-traumatic stress disorder (PTSD), noise-induced hearing loss or mesothelioma, owing to exposure in the course of their employment outside of the British Islands?
Well, as usual, they would have 3-years from their ‘date of knowledge’ (this would ordinarily be acquired later than the ‘cause of action’ in such claims) to bring a claim in time.
Thereafter, they would have 3-years to bring a claim out of time (i.e. after the limitation period is deemed to have expired), subject to the success of a s.33 application.
Once 6-years from the ‘date of knowledge’ has elapsed, the Courts would no longer have jurisdiction to hear the claim on an indefinite basis. That being said, the claimant would (if they had not already) hypothetically still benefit from an additional 365-days to seek redress under the no-fault Armed Forces Compensation Scheme (AFCS), which sets a 7-year limitation period.
The purpose of this new Bill is supposedly to ‘stop vexatious and repeated claims’ against the MoD, as opposed to circumventing or frustrating the ability to bring military compensation claims.
However, the Bill has not escaped criticism, with the Law Society recently having warned that the proposed constriction of s.33 discretion may lead to ‘gross injustice’:
‘Only the MoD stands to gain from the proposed time limit on compensation claims, as it would avoid having to pay court-awarded damages and costs. If claims are blocked by the bill the MoD would also be less likely to learn from past mistakes and improve practices’.
Whilst the Government Bill was started in the Commons, it has now reached its 2nd reading in the House of Lords. The date of this reading is yet to be announced, but will likely take place sometime in the new Year.
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LIABILITY FOR NHS CHARGES (TREATMENT OF INDUSTRIAL DISEASE) (SCOTLAND) BILL
Ancillary to the Overseas Operations (Service Personnel and Veterans) Bill, which was a new legislative proposal for 2020, another new draft law to enter the fore this year was the Liability for NHS Charges (Treatment of Industrial Disease) Scotland Bill.
Even though we had, on several previous occasions over the past couple of years, theorised that such a proposal could be made, it was not until recently that the Bill was formally introduced through the Scottish devolved Parliament.
If the Bill were to receive Royal Assent, it would ‘enable Scottish Ministers to recover, from the party responsible for causing an industrial disease, certain costs incurred by the NHS in providing care and treatment to those suffering from that disease’ – in other words, increased liability for paying defendants.
Simply put, the Bill would overturn s.150(5) of the Health and Social Care (Community Health and Standards) Act 2003 – a provision which prevents there from being a mechanism through which NHS charges can be recouped from negligent employers (or their insurers) for the treatment of ‘primary diseases’ (excluding diseases that spur from an ‘accident’) sustained by claimant employees, which result from tortious exposures in the workplace.
In edition 311 (here), we reported that by 30 September 2020, the Health and Sport Committee would close its ‘call for views’ on the Bill in its extant form, namely: 1. How the Bill will lead to improved working conditions and health and safety practices in workplaces; 2. How the Bill will help prevent industrial diseases in the future; and 3. What impacts the Bill will have on (i) individuals, (ii) NHS boards, (iii) workplaces and (iv) the insurance industry.187
It is foreseeable that the Bill will progress through various stages of parliamentary scrutiny in 2021 and we will pay increased attention to Westminster debates in Hansard, on the proviso that ministers may be incentivised to establish a level playing field across the UK. Alternatively, Scottish ministers may be obliged to turn down the NHS Charges Bill in view of the judgment in Aviva Insurance Ltd & Anor, R (On the Application Of) v The Secretary of State for Work and Pensions [2020] EWHC 3118 (Admin) – the corresponding case comment is the 2nd article of this edition.
REVIEW OF SOLICITORS’ GUIDELINE HOURLY RATES
Fast approaching at the turn of 2020, ‘optimistically’ speaking, we should be able to report that recommendations from a review of Solicitors’ Guideline Hourly Rates (GHR), conducted by the Civil Justice Council’s (CJC) GHR Working Group, has been published.
Historically, GHR were always ‘locally-derived’, i.e. based on information collated by practising district judges and solicitors, in their respective county courts.
However, in conjunction with the Civil Procedure Rules coming into force in 1999, the Supreme Courts Costs Office (SCCO) published a Guide in 2002, laying out GHR on a national scale.188
In 2014, 2010-established GHR were frozen indefinitely and are thus effective today, separated by experience (‘Bands’ A-D) and location (‘London’ and ‘National’ Grades).
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However, in December 2019, the CPRC costs sub-committee published a report, criticising the 2014 review for seeking to rigorously establish ‘actual rates to a high degree of accuracy’, sooner than form ‘broad approximations of actual rates in the market’.
Pressure to bring about reform was also ‘welcomed’ by Mrs. Justice O’Farrell, in the case of Ohpen Operations UK Ltd v Invesco Fund Managers Ltd [2019] EWHC 2504 (TCC), who branded present guidelines ‘unsatisfactory’.
While the GHR review has been ongoing this year, swathes of litigators had been inspired by the landmark ruling in PLK & Ors (Court of Protection:Costs) [2020] EWHC B28 (Costs), wherein Costs Master Whalan (who was not personally empowered to review or amend GHR) inflated costs by 20% above current GHR, to request similar outcomes ‘across the board’ (i.e. not restricted to Court of Protection actions) – an ‘unprecedented step’ became spill-over litigation, as we reported in edition 316 (here).
We have since reported (here), similarly, on the case of Cohen v Fine & Ors [2020] EWHC 3278 (Ch), in which His Honour Judge Hodge QC found that GHR ‘should be the subject of, at least, an increase that takes due account of inflation’, increasing figures ‘in the order of 35% … as a starting point (appropriately rounded-up for ease of calculation)’.
CONTEMPT OF COURT AND CLAIMS FRAUD
Where 2019 was a year steeped in anti-fraud measures, civil contempt proceedings and findings of ‘fundamental dishonesty’, pursuant to CPR 44.16 and s.57 of the Criminal Justice and Courts Act 2015, 2020 has been comparatively meagre.
As with many of the themes discussed in this feature article, we can attribute the lack of content to the COVID-19 claims environment.
Nonetheless, in edition 314 (here), we discussed an important section of the 122nd Update to the Practice Directions, through which the Civil Procedure Rule Committee (CPRC) amended PD 35 para 3.3 on experts’ signed statements of truth, from 1 October 2020 onwards.
Ultimately, the Practice Direction has been modified to the effect that it now compels experts to produce more extensive signed statements, which recognise the risk of contempt applications being lodged against them, should applicants accuse them of having been dishonest.
The impetus for this amendment was, by and large, the case of Liverpool Victoria Insurance Company v Khan [2019] EWCA 392 (Civ), which featured in last year’s ‘Horizon Scan’, in which a motor insurer successfully brought a committal action against Dr. Asef Zafar, a medical expert who ‘recklessly’ drafted a fraudulent medical report for a road-traffic accident (RTA) claimant by exaggerating the claimant’s symptoms.
In that specific instance, the Court of Appeal found ‘little difference in culpability’ between ‘reckless’ fraud and ‘intentional’ fraud and therefore ruled that the lower court should have stipulated a custodial sentence ‘significantly longer than 6 months’, which should not have been suspended.
The new PD 35 para 3.3 should hypothetically contribute towards a dampening influence of claims fraud in 2021, as the personal injury market is exposed to reforms that might otherwise entice claimants to pursue fraudulent tactics for financial gain.
STANDARDS OF EXPERTS
On the topic of medical experts, in last year’s ‘Horizon Scan’, we stated that we would continue to monitor discussions between the Association of Personal Injury Lawyers (APIL) and the Forum of Insurance Lawyers (FOIL), throughout 2020, as they deliberate over a protocol governing the recording of medico-legal examinations.
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Of course, this was in relation to comments made by Master Davison, in the case of Mustard v Flower & Ors [2019] EWHC 2623 (QB), imploring both parties to ‘give attention to’ an agreed protocol as a means to address the issue of parties admitting ‘covertly’ (but not necessarily ‘unlawfully’) recorded evidence:
‘It is the interests of all sides that examinations are recorded because from time to time significant disputes arise as to what occurred. In that situation, it is important to have a complete and objective record of the examination, which is subject to appropriate safeguards and limitations on its use. It is desirable that the parameters of such recording should be on an "industry-wide" agreed model which caters for the many issues capable of arising and, I might add, which pays careful attention to the containment of the costs that might potentially be generated.
... an APIL / FOIL agreed protocol is the way forward. Such a protocol would provide an agreed scheme for the recording of examinations and for the reception of such evidence. There would then be no need or incentive for covert recording so that such cases would be unlikely to arise in the future. If they did arise, the protocol would dictate or steer the outcome of an application such as the present one. I hope that the relevant organisations can give attention to this topic in the future’.
Sure enough, we reported earlier this year (here) that a joint working party had been created so that APIL and FOIL could devise an answer to this issue, while the British Psychological Society (BPS) began the process of developing its own guidelines (for neuropsychologists and other professionals).
We also reported that Mr. Justice Spencer had echoed support for an APIL/FOIL-agreed protocol, in the case of Macdonald v Burton [2020] EWHC 906 (QB) and that there should be a ‘level playing field’ between claimant and defendant experts of all disciplines:
‘I hope that the BPS and the joint working party of APIL and FOIL will together work through these issues and come up with a solution which satisfies the interests of justice from the point of view of both claimants and defendants, and I would hope that that would allow for recording of some kind in certain cases. But in my judgment it is not appropriate for me to lay down any kind of ex cathedra guidelines or instructions in relation to that at this delicate stage’.
Spencer J reflected that it would be ‘disappointing’ if forthcoming guidelines were to ban all recordings, as they can offer the clear forensic advantage of disinterring ‘lack of competence of certain experts’ – expert competency being a frequently debated topic among practitioners and judges (this year being no exception).
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References
1 Fairchild v Glenhaven Funeral Services Ltd & Ors [2002] UKHL 22. Barker v Corus (UK) Plc [2006] UKHL 20 2 Jessica Woodliffe, ‘Certain Compensation Recovery Unit Payments Declared Incompatible with the European Convention on Human Rights’ (30 November 2020 Ropewalk Chambers)
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18 Andy Bull, ‘Two more named in players' dementia action against rugby authorities’ (17 December 2020 The Guardian)
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38 Jef Feeley, ‘J&J to Pay More Than $100 Million to End Over 1,000 Talc Suits’ (5 October 2020 Bloomberg)
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David Banner, ‘Heading footballs contributed to Welsh player's dementia, inquest concludes’ (16 October 2020 Shropshire Star)
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60 ‘PFA calls for “urgent intervention” to reduce and monitor heading in training’ (20 November 2020 The Guardian)
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68 Ian Herbert, ‘Battle to get brain injury among footballers recognised as an industrial disease - which would mean affected players being able to claim state disability benefits - is realistic, says expert’ (17 November 2020 Daily Mail)
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College London (29 October 2020 Imperial College London)
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ciaa1057.
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111 Memoli MJ et al., Validation of the Wild-type Influenza A Human Challenge Model H1N1pdMIST: An A(H1N1)pdm09 Dose-Finding Investigational New Drug Study. Clin Infect Dis. 2015 Mar 1; 60(5): 693–702.
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119 Fergus Walsh, ‘Coronavirus: What does Covid-19 do to the brain?’ (1 July 2020 BBC)
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Wang Y et al., Temporal Changes of CT Findings in 90 Patients with COVID-19 Pneumonia: A Longitudinal Study. Radiology. 2020 Mar 19;200843.
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Dufort EM et al., Multisystem Inflammatory Syndrome in Children in New York State. N Engl J Med (2020)
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Lara Keay, ‘Long-term COVID warning: ICU doctor reports having coronavirus symptoms for three months’ (25 June 2020 Sky News)
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170 Ministry of Justice, ‘Legal Aid, Sentencing and Punishment of Offenders Act 2012: Post-Legislative Memorandum’ (October 2017 GOV.UK)
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Disclaimer
This newsletter does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to provide an update on issues that may be of interest to those handling occupational disease claims. Specialist legal advice should always be sought in any particular case.
© BC Legal 2016.
BC Legal is a trading name of BC Legal Limited which is registered in England and Wales under company number 08963320. We are authorised and regulated by the Solicitors Regulation Authority. The registered office is 1 Nelson Mews, Southend-on-Sea, SS1 1AL. The partners are Boris Cetnik and Charlotte Owen. More details on the firm can be found at www.bc-legal.co.uk
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