Disease Matters 8

April 2012 – edition 8 Diseasematters Asbestos Jackson and costs Deafness Harassment Strategy Case law Contact BLM Birmingham Val Hughes T 0121 633 6625 E [email protected] BLM Cardiff Matthew Harrington T 02920 447621 E [email protected] BLM Leeds Chris Gannon T 0113 218 6522 E [email protected] BLM Liverpool Brian Goodwin T 0151 471 5455 E [email protected] BLM London Boris Cetnik T 0207 865 3358 E [email protected] Nick Pargeter T 0207 865 3361 E [email protected] BLM Manchester Vivienne Williams T 0161 838 6798 E [email protected] BLM Southampton Andrew West T 023 8038 2647 E [email protected] Changing your details If any of your details have changed, you would prefer to receive publications by email alert, or you no longer wish to receive this publication, please let us know by emailing Janet Willmott at [email protected] Disclaimer You have been sent this material because you have previously registered your interest in receiving information from Berrymans Lace Mawer LLP. If you no longer wish to receive the mailing, please unsubscribe. This document does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to clients of Berrymans Lace Mawer LLP. Specialist legal advice should always be sought in any particular case. Solicitors with offices in Birmingham, Bristol, Cardiff, Leeds, Liverpool, London, Manchester and Southampton. Berrymans Lace Mawer is a trading name of Berrymans Lace Mawer LLP, a limited liability partnership registered in England under number OC340981, which is authorised and regulated by the Solicitors Regulation Authority and accredited to quality standards ISO 9001 and Lexcel. The registered office is at King’s House, 42 King Street West, Manchester M3 2NU where a list of members is available for inspection. Information is correct at the time of release. © Berrymans Lace Mawer 2012 Editorial Welcome to the 8th edition of Disease matters Contents Will some collateral damage for insurers and employers from Lord Jackson’s reforms lie with disease? A particular feature of disease claims justifying a specialist approach is the fact that the negligent act or ‘exposure’ may occur over a long period rather than a specific point in time and a long time ago. This means liability is often contentious, for example, a risk of injury was not foreseeable when exposure occurred, the disease may have an alternative cause not related to employment, Page 2 - Back on the menu – or possibly a claimant will be deemed with limitation knowledge many years breach of duty in asbestos before proceedings were issued. claims I’m stating the obvious I know but please bear with me. These claims represent a significant risk to claimants’ lawyers and legal expenses Page 4 - EL Trigger Litigation – insurers. In particular RSI and stress claims have a CFA success fee fixed at status quo restored 100% and in HAVS and NIHL claims at 62.5%. These are high success fees for a reason. They reflect data that a claimant will be unsuccessful in approximately Page 5 - No more, and no less one out of two stress/RSI claims and one out of three NIHL/HAVS claims. in Guernsey Claimant lawyers have ‘bucked the system’ to ensure that the success rate in their portfolio of claims is better than the average. If this is assessed correctly Page 6 - Short term confusion over then there is good money to be made for claimant lawyers and ATE insurers. success fees This has acted as a filter though and claims with a marginal prospect of success will not be pursued when they don’t represent a comfortable risk. Page 8 - Mesothelioma – quantum One-way costs shifting marks an important change in the way disease claims and no solace? will be prosecuted and defended. And although claimants’ costs will generally be reduced because a CFA success fee is no longer recoverable the change Page 9 - Knowledge and belief: also means: Legal expense insurance and a claimant’s liability to pay Nuclear Test Veterans in defendant’s costs has barred speculative claims. That barrier is to be lifted. the Supreme Court The commercial justification to defend a disease claim takes into account the recovery of defence costs if the defence is successful. Following the reforms Page 10 - Damages for dismissal defence costs will only be recoverable rarely. The costs of defending a claim will be more difficult to justify commercially. Page 12 - Löfstedt review and A CFA will act as the most important deterrent. The claimant’s lawyer will not short-tail disease claims take on a claim unless he/she believes they will be paid. But many will remember Legal Aid funding of claims and the type of claims that were prosecuted with legal aid backing. Legal Aid similarly applied one-way costs Page 13 - Stress and harassment: shifting. An increase in claims by litigants in person has also been predicted. e-disclosure Whatever the effect of these changes, we will keep you informed. Page 16 - Common sense in Nick Pargeter statutory duty Partner Berrymans Lace Mawer page 1 1 (11 and seven years ago respectively) the issue of breach of duty in mesothelioma claims has not received the same level of judicial attention. There was a hint, however, that senior judges may be supportive of a more forensic analysis of this issue in Willmore in which Lord Mance in particular encouraged trial judges not to make findings of fact about exposure to asbestos on a ‘slender and speculative basis’. Even in Williams v University of Birmingham itself, so focused on causation was the trial judge that she conflated the issues of breach of duty and causation in formulating the wrong test when she put it as follows: The University plainly had a duty to take all reasonable measures to ensure that [Mr Williams] was ‘not exposed to a material increase in the risk of mesothelioma. That test, as the Court of Appeal confirmed, is plainly’ wrong. The re-emergence of the breach of duty issue A re-appraisal of the importance of the prior issue of breach of duty in ack on the menu associated with the aetiology of that mesothelioma claims, and asbestos condition. With roots in the 1970s, claims in general, was made possible B– breach of duty following Fairchild v Glenhaven by the approach taken by the Funeral Services Ltd [2002] UKHL 22 Supreme Court in one of the few in asbestos and ultimately section 3 of the Noise-induced Hearing Loss claims Compensation Act 2006, in ever to reach the Supreme Court, claims mesothelioma the test for causation Baker v Quantum Clothing Group now is, uniquely, a material increase Limited [2011] UKSC17. The Williams v University of Birmingham in risk, with liability (after breach of principles considered in that case [2011] EWCA Civ 1242 duty and causation are established) have a resonance well beyond the being joint and several. field of NIHL. For present purposes, The battle lines in mesothelioma and the key points to emerge, or at least other asbestos-related disease claims Even the most recent Supreme Court be restated, in Baker were perhaps have in recent years been drawn decisions in relation to mesothelioma as follows: around the issue of causation, with (Sienkiewicz v Greif (UK) Ltd and prospects for defendants on breach Willmore v Knowsley Borough 1 At common law the test of of duty being regarded increasingly Council [2011] UKSC10) were cases negligence, or breach of duty, is pessimistically. focusing on the causation issue. whether the defendant ought Other than in the well known cases reasonably to have foreseen the Mesothelioma claims have driven of Shell Tankers v Jeromson (Dawson risk of contracting the disease much legal development in the area v Cherry Tree Machine Company) concerned. of causation over the last 10 years [2001] EWCA Civ 100 and Maguire due to the almost unique difficulties v Harland & Wolff [2005] EWCA Civ 2 The standard of conduct to be page 2 Berrymans Lace Mawer expected of the defendant is that levels concerned. argument that, in the absence of any of a reasonable and prudent special knowledge on the part of a employer at the time – what is not Williams was considered by the CA particular defendant, controlling acceptable now may have been after the Supreme Court judgment in exposure to below the published regarded as acceptable at the Baker v Quantum Clothing. The case guidance as to limit values from time time. To borrow an old analogy followed a trickle of mesothelioma to time would not give rise to a of Denning LJ, we must not look cases which looked at the breach of foreseeable risk of injury. It was not at what happened perhaps a duty issue at High Court level, pre- until the publication of EH10 in number of decades ago through dating Baker. Some of these cases 1976 that the guidance was 2012 spectacles. will be familiar to readers, and amended to recommend that included Abraham v G Ireson & Son employers control exposure to below 3 The need to allow a period of (Properties) Limited and another these limits as far as reasonably implementation of developing [2009] EWHC1958 (QB), Asmussen practicable. knowledge, or guidance related v Filtrona United Kingdom Ltd [2011] to it, and to make changes to EWHC1734 (QB) and Reynolds v The landscape following Williams industrial or other processes. Secretary of State for Energy and Climate Change [2010] EWHC1191 Arguably, opportunities for defending 4 Section 29 of the Factories Act (QB).

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