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Carbon Monoxide Poisoning Claims Impact Upon a Number of Parties Including Owner Occupiers, Gas Engineers, House Builders and Housing Authorities

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Carbon Monoxide Poisoning Claims Impact Upon a Number of Parties Including Owner Occupiers, Gas Engineers, House Builders and Housing Authorities CARBON MONOXIDE POISONING OCCUPATIONAL DISEASE GUIDE 8 OCCUPATIONAL DISEASE OCCUPATIONAL Carbon Monoxide Poisoning Occupational disease series – Guide 8 Contents Introduction 1. Insurance 2. Damages and the Reserve 3. The Landlord’s Duty 4. Investigations 5. Medical Causation 6. Expert evidence 7. CRU 8. Making a decision 1 Introduction Carbon monoxide (“CO”) is a colourless, tasteless, odourless non-irritant gas which, if inhaled, is acutely toxic. It can be formed when any type of fuel, such as gas, wood or coal, is burned. As a result, any fuel-burning appliance, such as a fireplace, woodstove and gas appliance, has the potential to produce dangerous levels of CO. Whilst only very small amounts of CO are produced by gas appliances which have been installed and maintained correctly, dangerous levels of CO can be emitted if gas burns incompletely – this is known as incomplete combustion. This can occur, for example, if the appliance has inadequate ventilation. There are a number of potential sources for the production of CO within the home (see figure 1), and given the difficulty in detecting the fumes, CO poisoning is a major domestic health hazard and a leading cause of death by poisoning throughout the world. The NHS estimates that CO poisoning causes approximately 50 deaths in the home per year in the UK. There are over 200 cases of non-fatal injuries per year including temporary or permanent brain damage. Incidents increase during the winter when the use of gas boilers and fires escalates. This guide is drafted from the perspective of a landlord/tenant claim. However, carbon monoxide poisoning claims impact upon a number of parties including owner occupiers, gas engineers, house builders and housing authorities. They can also result from other sources such as poorly serviced cars and motor vehicles. This guide is focused on Public Liability claims in the context of housing. If you should encounter a CO poisoning claim in the context of employment then the Control of Substances Hazardous to Health Regulations 2002 (COSHH) will apply. The BLM mini guide on Occupational asthma sets out the duties and handling tips for COSHH claims. 2 1. Insurance coverage 1.1 CO poisoning claims typically arise when tenants allege they have been exposed to fumes from a defective gas appliance, usually a fire or boiler, while living in a rented property. 1.2 Claims are typically directed against landlords and/or those who installed, serviced or maintained the appliance. As such it is generally PL rather than EL insurers who deal with these claims. 1.3 You will need to establish the date the condition first manifested itself, or was capable of being diagnosed, as the insurer which was on risk at this time will be responsible for handling the claim. 1.4 Other insurers may need to contribute if the period of exposure is not solely covered by your period on risk. Most report of symptoms is a short period of exposure to CO when symptoms appear however there are some cases of prolonged exposure to low levels of CO. 1.5 Most PL policies will cover a Landlord for their legal liability to pay damages and claimant’s costs and expenses for accidental bodily injury or illness happening during the period of insurance. However many policies contain an exclusion of indemnity for any loss, damage or liability arising from pollution or contamination. For example; loss, damage or liability arising from pollution or contamination can generally be excluded from cover unless caused by a sudden and unexpected accident which can be identified. 1.6 Most policies include a general term setting out the insured’s duty to prevent loss and damage. For example; “You and any other person this insurance applies to must take all reasonable precautions to prevent accidents, loss or damage. You must keep property that is insured under your policy in good condition.” Your policy is intended to cover you against unforeseen events like fire or theft. It does not cover wear and tear or damage which happens gradually over a period of time.” 1.7 If the claim has arisen due to failings upon behalf of the insured to undertake suitable and sufficient maintenance and repairs upon the gas appliances in the property you may feel that there has been non- compliance with the policy and may consider you do not wish to indemnify. If a policy exception applies or you consider the insured in breach of the policy you will need to advise the insured why indemnity is not being granted and that they ought to seek legal advice in respect of the claimant’s claim. 3 2. Damages and the Reserve General damages (awards for Pain Suffering and Loss of Amenity) 2.1 Damages are split into two categories: . general damages: for those losses which cannot be financially calculated such as suffering and pain. special damages: these are calculable losses which have already been incurring for things such as damage to property or loss of income. 2.2 The level of general damages depends on: . the claimant’s age; . duration, frequency and severity of symptoms; . whether the condition/symptoms are transient or leave more permanent symptoms; . whether exposure has caused any neurological damage; . general impact on work and lifestyle; 2.3 The Judicial College Guidelines do not provide specific guidance regarding general damages for CO poisoning. Reference should be made to category 6(A)e, chest injuries, for initial reserving purposes where the injuries do not appear serious. The parts of the guidelines which are relevant to CO poisoning are as follows:- Severity and description of condition Level of general damages PSLA Toxic fume/smoke inhalation, leaving some residual damage, not serious £4,460 to £10,530 £9,000 enough to interfere permanently with lung function If, however, there is a suggestion of brain damage as a result of the poisoning then the following (taken from Judicial College Guidelines category 3(A) should be used: Severity and description of condition Level of general damages PSLA (a) Very Severe Brain Damage In cases at the top of this bracket the injured person will have a degree of £235,790 to £337,700 insight. There may be some ability to follow basic commands, recovery of eye opening and return of sleep and waking patterns and postural reflex movement. There will be little, if any, evidence of meaningful response to environment, little or no language function, double incontinence and the need for full-time nursing care. The level of the award within the bracket will be affected by: . the degree of insight; . life expectancy; . the extent of physical limitations. The top of the bracket will be appropriate only where there is significant effect on the senses and severe physical limitation. Where there is a persistent vegetative state and/or death occurs very soon after the injuries were suffered and there has been no awareness by the injured person of his or her condition the award will be solely for loss of amenity and will fall substantially below the above bracket. 4 Severity and description of condition Level of general damages PSLA (b) Moderately Severe Brain Injury The injured person will be very seriously disabled. There will be £183,150 to £235,790 substantial dependence on others and a need for constant professional and other care. Disabilities may be physical, for example, limb paralysis, or cognitive, with marked impairment of intellect and personality. Cases otherwise within (a) above may fall into this bracket if life expectancy has been greatly reduced. Where there is a risk of associated future development of other severe medical problems such as blindness an award in excess of the bracket would be justified. The level of the award within the bracket will be affected by the following considerations: . the degree of insight; . life expectancy; . the extent of physical limitations. the degree of dependence on others; . ability to communicate; . behavioural abnormality; . epilepsy or a significant risk of epilepsy (unless a provisional damages order provides for this risk). (c) Moderate Brain Damage: i. Cases in which there is moderate to severe intellectual deficit, a £125,510 to £183,150 personality change, an effect on sight, speech and senses with a significant risk of epilepsy and no prospect of employment. ii. Cases in which there is a moderate to modest intellectual deficit, the £75,900 to £125,510 ability to work is greatly reduced if not removed and there is some risk of epilepsy (unless a provisional damages order provides for this risk) iii. Cases in which concentration and memory are affected, the ability to £36,000 to £75,900 work is reduced, where there is a small risk of epilepsy and any dependence on others is very limited (d) Less Severe Brain Damage In these cases the injured person will have made a good recovery and will be £12,820 to £35,760 able to take part in normal social life and to return to work. There may not have been a restoration of all normal functions so there may still be persisting problems such as poor concentration and memory or disinhibition of mood, which may interfere with lifestyle, leisure activities and future work prospects. At the top of this bracket there may be a small risk of epilepsy. The level of the award within the bracket will be affected by: . the extent and severity of the initial injury; . the extent of any continuing, and possibly permanent, disability; . the extent of any personality change; . depression. (e) Minor Brain or Head Injury In these cases brain damage, if any, will have been minimal. £1,840 to £10,870 The level of the award will be affected by the following considerations: .
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