29 August 2014 Edition 61
BC DISEASE NEWS A WEEKLY DISEASE UPDATE
CONTENTS
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Welcome Welcome
PAGE 3 Welcome to this week’s edition of BC Disease News. In the last week the Civil Justice Council has published new guidance on instructing expert Making defendant pay witnesses and the Government has said the new fundamental 10% more for rejecting Part dishonesty provisions will act as a deterrent. 36 offer would add a This week we present the first of two features on tinnitus. Solicitor Ashley penal element, says High Collins considers the nature and causes of tinnitus. Court Any comments or feedback can be sent to Boris Cetnik or Charlotte Government confirms fall Owen. in rogue CMC numbers As always, warmest regards to all. PAGE 4
CJC publishes new expert evidence guidance
Fundamental dishonesty provisions to act as a deterrent, says Government
Case note: subsequent claims against different defendants
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Feature: Tinnitus – part 1
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In other news…
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Mr Munro allowed the 21-day time limit figures show that robust enforcement Making defendant for accepting the offer to expire. At against claims management pay 10% more for the end of the trial, which concluded companies (CMCs) and stricter rules on 16 July, Warby J ruled that Elsevier raising standards have had a dramatic rejecting Part 36 offer was entitled to an injunction restraining effect. The number of firms regulated Mr Munro from working for another to handle compensation claims would add a penal employer until April 2015, thus Elsevier (which include personal injury matters) had done better than its Part 36 offer. has fallen from 2,693 in April 2013 to element, says High 2,907 in March 2014. In consequence, under CPR 36.14, Court Elsevier could claim, following the Jackson reforms to Part 36, an The Government attributes this fall to The High Court has ruled that making a additional 10% to the amount measures introduced to combat bad defendant who rejected a Part 36 offer awarded to it by way of costs in the business practices as well as increasing pay an additional 10% of the sum case of an injunction (had it been a regulation fees, and to the awarded for costs would introduce a money claim the additional amount 1 introduction of larger fines. This follows ‘penal element’ and be unjust. would have been 10% of the the ban on incentives, and the ban on damages). Mr Justice Warby said that ‘in some referral fees introduced with the cases it would be just to impose such a Warby J noted it had already been Jackson reforms. liability on a defendant’, such as when agreed that Mr Munro would pay costs an offer ‘ought to have been seen on an indemnity basis and interest on immediately as at least equal to the those costs from 1 July at 4.5% above Kevin Rousell, head of the Claims best outcome the defendant could the base rate. Mr Munro argued that Management Regulation (CMR) Unit reasonably expect.’ However, in the the Part 36 offer was made close to said: ‘We have made it very clear to case before him, it was said the trial, there was little time for negotiation businesses that we take a zero defendant had a ‘legitimate and he did not have the claimant’s tolerance approach to any argument’ for a shorter period of witness statements until the last day for malpractice or attempts to take restraint under an injunction preventing acceptance of the offer. advantage of victims of crime…Our him for working for another company. changes have made a clear impact, ‘Moreover, it would be unduly harsh to Warby J added that the imposition of for the benefit of consumers…But no criticise the defendant for failing to the additional 10% would impose a regulator can ever stand still and we accept the offer promptly given the liability in respect of some costs are going further. The new fines we are pace with which the proceedings incurred before any offer was even introducing this year will give us the were advancing, the pressures made. He concluded: ‘The imposition power to impose tough sanctions on imposed by that pace, that the late of an additional liability would those firms that flout the rules with stage during the 21 days at which he therefore involve an element of much more precision, power and obtained sight of the claimant’s penalty that I do not consider is just to proportionality than ever before’. statements. impose on this defendant, and I decline to make an order for an Justice Minister Lord Faulks said: ‘We Those observations were made in additional amount’. have made major reforms to turn the Elsevier v Munro (supplementary tide on compensation culture, drive judgement) [2014] EWHC 2728 (QB), down insurance premiums and help after Warby J had granted Elsevier an Government confirms honest people…What we have injunction restraining Robert Munro fall in rogue CMC already seen is that this has had a from joining another company before significant impact on the amounts the end of his 12-month notice period. numbers people are having to pay and the The claim had been issued on 4 June departure of a large number of claims The Government has confirmed that 2014, with Elsevier making a Part 36 companies will be welcomed by almost 600 of the claims companies offer on 9 June which would have seen many’. responsible for bombarding people Mr Munro work for a new firm on 1 with nuisance calls and texts have left January 2015, three months before the the industry.2 end of his notice period. The Government has said the latest
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has been assumed that, overall, the CJC publishes new Fundamental amount of legal work required to settle claims in future will remain broadly the expert evidence dishonesty provisions same, both on the part of defendants to act as a deterrent, and claimant lawyers…It could be that guidance less work is required to resolve some claims in future if the claim appears to The Civil Justice Council (CJC) has says Government defendants to be less exaggerated published updated guidelines for and if defendants accept the claim instructing experts.3 The Government has stated that it believes its new ‘fundamental with less discussion and negotiation. Conversely it could be that claimant The new guide is designed to ensure dishonesty’ provisions may have some lawyers devote more resource in future lawyers, litigants and experts follow ‘deterrent effect’ against exaggerated to demonstrating that a claim is best practice and comply with court claims, in addition to reducing the honest’. orders and Part 35 of the Civil number of personal injury claims.4 Procedure Rules, which contains the The Ministry of Justice has said the rules on expert evidence and The new provision, currently Government had made ‘no assessors. proceeding through parliament as Clause 45 of the Criminal Justice and assumption’ about the reduction in compensation paid as a result of some The guidelines, which have been Courts Bill, would require courts to settlements being lower. It did say, updated in a minor way, now include dismiss claims in their entirety where however: ‘The Government believes it a reference to ‘hot-tubbing’, which the claimant had been ‘fundamentally is reasonable to consider that the was introduced by the Jackson dishonest’, unless this would result in increased prospect of a claim being reforms and entails experts giving substantial injustice. dismissed with no compensation paid evidence simultaneously in court. The at all may have some form of a guidance recommends that experts In the recently published impact deterrent effect on other cases’. need to be told in advance of the trial assessment on the new rule, the if the court has made an order for Ministry of Justice said the change concurrent evidence. would ‘send a strong message to Case note: claimants that if they act in a The new guidance is not formally in fundamentally dishonest way there is a subsequent claims force yet, although it is intended that it greater probability that they will lose all should replace the Protocol on Experts compensation’. against different which currently appears alongside defendants Part 35 CPR. The Guidance has been The document continued: ‘The issued in anticipation of the Protocol’s Government anticipates that this will The High Court has ruled once again in removal from the Practice Direction in reduce the number of fundamentally another asbestos claim, this time the autumn of this year. The guidance dishonest PI claims, and the associated holding that a claimant, who in 2003 will then formally be in force. costs of paying compensation, which are met by insurers and by bodies such had settled a claim arising from The guidance can be found here. as the NHS which are not insured…In asbestosis against seven of his 10 addition, as a behavioural response, former employers, was not precluded the Government expects that other PI from pursuing a claim against the three claims may be exaggerated less, remaining employers, who had not again leading to lower compensation being pursued in the first action for paid by defendants’. legitimate reasons, in respect of the development of mesothelioma. The assessment said the Government does not record data on the number Dowdall v William Kenyon and Sons Ltd of claims involving ‘fundamental [2014] EWHC 2822 (QB) concerned a dishonesty’ and it also accepted that claim brought by the claimant (C) only a ‘small number of claims’ would against three defendants (W, B and G). be considered by the courts to be C had been exposed to asbestos by fundamentally dishonest. The many employers. In June 1998, he was assessment said: ‘In the absence of a diagnosed as suffering from asbestosis
firm body if evidence to the contrary, it and pleural plaques. An action was PAGE | 4
evidential prejudice sufficient to begun against seven of his former meet the claim. employers; it was settled in 2003 for outweigh the undoubted prejudice to £26,000. A claim for provisional As to the 2003 settlement, the question C should he lose the chance to pursue damages, relating to the risk that C was, following Heaton v Axa Equity his claim. The real argument was a would later develop a serious disease and Law Life Assurance Society Plc financial one. However, the increased or condition, was made but not [2002] UKHL 15, whether C had liability really followed from the pursued. C subsequently developed accepted a sum which was intended development of mesothelioma. The mesothelioma. The three defendants to represent the full measure of his fact that the defendants might have had employed C during the estimated loss. The answer was clearly had a chance to avoid paying for that 1960/1970s but they were not sued in not. He had elected to accept a sum by being joined in an action which the first action. for the risk of mesothelioma and in settled before the condition return decided not to seek an order developed really meant that they had As to W (William Kenyon), C recalled permitting him to return to court in the lost a chance of escaping without being employed by ‘Kenyons’ and event that mesothelioma actually paying C the damages to which he that they were based in Manchester. developed. The settlement was otherwise presumed to be However, information from HM deliberately excluded any sum which entitled. Viewed that way, the Revenue and Customs indicated that would follow from the development of financial consequences of what had he had been employed by Charles the condition. To adopt the other way occurred did not justify preventing C Kenyon and Sons Ltd. His solicitors in which Lord Bingham had framed the from seeking compensation for the made enquiries about that company, issue in Heaton, namely whether the harm which his very serious condition being informed that it had changed its claimant could prove that he had involved. Accordingly, C could name and then been dissolved. C’s suffered loss as a result of the allegedly proceed with his claim. actual employer had been W, who tortious conduct of the defendants, The judgement can be read here. remained in business. B and G were the answer was yes: C had suffered a dissolved companies. C’s present condition which developed after the solicitor explained that, when C first first action settled and for which he Feature: Tinnitus – part instructed solicitors in 1998, there was had not been compensated. no scheme in place for the purpose of 1 In relation to limitation, it was tracing the liability insurers who had determined that C had knowledge In the first of a two-part series on provided cover for the defunct within section 14(1)(b) of the 1980 Act tinnitus, solicitor Ashley Collins considers employers (the ELCOP and ELTO in June 1998 as far as B and G were the nature and causes of tinnitus. schemes were subsequently devised). concerned. As to W, he had Introduction The issues for determination were (1) knowledge 12 months later; he and his whether the present action was an solicitors could reasonably have been Tinnitus often forms part of a personal abuse of process; (2) whether D was expected to ascertain that William injury claim for NIHL and where present precluded from bringing the claim by Kenyon and Sons Ltd was the can significantly increase the value of the 2003 settlement; and (3) whether company which had employed him. the claim. the action was barred by the Limitation However, it was held it was Act 1980. appropriate to disapply the limitation It can be difficult to rebut a claim for period under section 33. There were noise-induced tinnitus as it is a Andrew Edis QC, sitting as a Deputy significant arguments both ways. The subjective condition and there is no High Court Judge, held that the action main factor was that C had a objective method of assessment. was not an abuse of process. The three substantial claim for a very serious Whether tinnitus even exists and the defendants were not parties to the first injury. He had very good prospects of grading of the tinnitus is essentially action. There was no evidence that C establishing that the three defendants based on the claimant’s own had manipulated the process of the had contributed to the causation of evidence. court with the intention of ‘having his the risk of contracting mesothelioma cake and eating it’. The decision not to and were liable for it. Although What and Why? proceed against the three defendants witnesses would have died or become in the initial action had been honestly unavailable since 1998, it had not What is Tinnitus? made; it was made because in each been shown that their evidence would The British Tinnitus Association provides case C and his solicitors had been have afforded any viable defence to the following definition of tinnitus: unable to discover an insurer liable to the claim. There was therefore no PAGE | 5
“The word ‘tinnitus’ comes from the Latin 4. Severe. Almost always heard, affected their quality of life would fall word for ‘ringing’ and is the perception rarely, if ever masked. Leads to into this percentage. Indeed, the of sound in the absence of any disturbed sleep pattern and Guidelines for the grading of tinnitus corresponding external sound. This noise can interfere with ability to state that for tinnitus to be graded as may be heard in one ear, in both ears or carry out normal daily severe there should be documentary the middle of the head or it may be activities. Quiet activities evidence of a complaint having been difficult to pinpoint its exact location. affected adversely. There brought to a general (or some other) The noise may be low, medium or high should be documentary practitioner prior to any medico legal pitched. There may be a single noise or evidence of the complaint claim. Therefore, if a claimant alleges two or more components. The noise having been brought to the tinnitus, which is graded as severe but may be continuous or it may come and general (or some other) the claimant has not attended his GP go.” practitioner (prior to any on the issue, such a grading should be medico-legal claim). Hearing robustly challenged and submitted The following sounds can be heard loss is likely to be present but its that a lower grading would be more when suffering from tinnitus: presence is not essential. appropriate. Given the epidemiological Buzzing data, grading in this group The Causes of Tinnitus should be uncommon. Humming Hearing Loss
5. Catastrophic. All tinnitus Grinding Tinnitus is generally associated with symptoms at level of severe or hearing loss. In simple terms, tinnitus is Hissing worse. Should be caused by the brain over- documented evidence of compensating for hearing loss8. Whistling medical consultation. Hearing loss is likely to be present but its There are two types of hearing loss. Sizzling presence is not essential. The first is conductive hearing loss, Grading of Tinnitus Associated psychological which arises from problems within the problems are likely to be found outer and middle ears so that sound There are various classifications for the in hospital or general cannot pass freely to the inner ear. A grading of tinnitus. The following practitioner records. Given cause of conductive hearing loss can guidelines for grading by McCombe et the epidemiological data, be infections in the outer ear (otitis al are commonly used5: grading in this group should be media) or a build-up of wax. extremely rare. 1. Slight. Only heard in a quiet The second is sensori-neural hearing environment, very easily The majority of people suffering tinnitus loss which arises as a result of damage masked. No interference with will fall into the mild and moderate to the inner ear. Specifically, it is sleep or daily activities. This categories. The grading of severe damage to the hair cells within the grading should cover most tinnitus should be uncommon. In the cochlea or the hearing nerve or both. people who are experiencing UK, around 6 million people (10% of the This damage can occur through a but are not troubled by tinnitus. population) are thought to have mild number of different ways, including as tinnitus, with about 600,000 (1%) part of the aging process or as a result 2. Mild. Easily masked by experiencing it to a severity where it of prolonged exposure to noise. environmental sounds and affects their quality of life1. As a result, easily forgotten with activities. written questions under CPR 35 should If the cochlea stops sending May occasionally interfere with always be raised to a medical expert information to parts of the brain (due sleep but not daily activities. whenever s/he grades a claimant’s to noise not reaching the inner ear due tinnitus as severe (or catastrophic – to problems in the outer/middle ears or 3. Moderate. May be noticed, although this is extremely rare), as it is parts of the cochlea being damaged), even in the presence of more likely to fall into the mild or these areas of the brain will then background or environmental moderate categories. actively ‘seek out’ signals. These noise, although daily activities signals are over-represented in the may still be performed. Less 7% of the population suffering from brain and cause the sound of tinnitus.9 noticeable when concentrating tinnitus in the UK consult their GP7. As a Not infrequently interferes with matter of course, one would expect an Both types of hearing loss can be sleep and quiet activities. individual suffering from tinnitus to associated with tinnitus, although it is PAGE | 6 4.
Acoustic Shock Exposure to a sudden and/or very loud noise. appears more common for sensori- neural hearing loss (i.e. inner ear Meniere’s disease A condition that affects part of the inner ear known as the damage) to be present when tinnitus labyrinth and causes balance problems. arises. Ototoxic drugs Ototoxic drugs can include: Tinnitus can affect people of all ages but is more common in people aged over 65. This would suggest that age associated hearing loss is one of the Aminoglycoside antibiotics – drugs used to treat very main causes of tinnitus. serious infections.
‘Hidden Hearing Loss’ Cytotoxic – drugs used to treat cancer.
In most cases, tinnitus is associated Loop diuretics – drugs used to treat heart failure, high with hearing loss, but around 10% of blood pressure and some kidney disorders.11 tinnitus patients do have a normal audiogram.
A 2011 study entitled ‘Tinnitus with a Some ototoxic drugs can cause permanent damage to an Normal Audiogram: Physiological individual’s hearing loss/tinnitus, although the majority only have Evidence for Hidden Hearing Loss and a temporary effect. Computational Model’10 shows that there may be something termed as Common drugs Drugs that are reported to cause tinnitus include: ‘hidden hearing loss’ causing tinnitus.
This is said to arise when an individual is exposed to excessive noise for a Antimalarial drugs – There is no evidence of permanent relatively short period of time, such as damage on hearing/tinnitus when taken in the low exposure to noise at night clubs (i.e. 2- dosage prescribed for malaria. However, if taken in 3 hours of 100dB(A) Leq). Although the high doses, such drugs can cause permanent damage. individuals hearing threshold levels would recover to normal levels and Aspirin – Use of this drug does not appear to cause produce the results of a normal permanent hearing loss/tinnitus, although it may affect it audiogram within days, there may still temporarily. be permanent damage on the inner ears. Although the damage is too Antihypertensives. minor to have an effect on an individual’s hearing, the damage may Antihistamines. cause either temporary or permanent Anti-inflammatories. tinnitus. Anaemia A reduced number of red blood cells that can sometimes cause Other Causes the blood to thin and circulate so rapidly that it produces a Other than hearing loss or ‘hidden sound. hearing loss’, the following are also Others Hypertension. possible causes of tinnitus:
Hyperthyroidism (an overactive thyroid gland).
A perforated ear drum.
A head injury.
Solvent, drug and alcohol misuse.
Paget’s disease.
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Contributing Factors In other news…
Although tinnitus is not generally August is a notoriously quiet month in the legal believed to be a direct cause of stress, world, but that has not prevented a rather in Tinnitus in the General Population unpleasant form of advertising personal injury with a Focus on Noise and Stress: A services from emerging.1 Public Health Study 1 it was reported that an individual’s exposed to stress For Claims Management Company, Amber can increase the possibility of tinnitus. Claims Management, being an ‘ambulance chaser’ did not appear to be good enough. It Further, the paper purports that a went one step further and has been driving connection can be made between an around in – you guessed it – a converted individual’s stress levels and the ambulance to promote its services. degree of discomfort they suffer due to tinnitus. In other words, if someone’s The following images evidence the offending stress levels worsen, potentially so will vehicle, which could formerly be seen in the the tinnitus. In their study involving North West of the country: 12,166 subjects, of the 2,024 that reported to have tinnitus, stress was calculated as being an attributable risk in 19% of cases.
A recent study from The Karolinska Institute in Sweden “found that tinnitus is 2.5 times more prevalent in people who are under long-term stress”1. It is therefore widely accepted there is a link between stress and tinnitus, although it is still unclear the extent that stress increases the risk of tinnitus.
Conclusion Unfortunately for Amber Management, they Having identified the nature and neglected to remove the NHS logo from the causes of tinnitus, the second part of vehicle, instead opting to modify it to read this article will go on to consider noise (somewhat originally) ‘National Help Service’. induced tinnitus in detail and future Naturally, this has not impressed the individuals potential claims. beavering away at the Department of Health, who are most displeased. A spokesman for the
Department said: ‘We have contacted the company concerned and asked them to remove the NHS logo. If they fail to do so, we will take legal action’.
Amber Management has said it will happily remove the logo, stating that the marketing ploy was nothing more than a creative ‘tongue-in- cheek’ departure from the business’s standard advertising in conventional media.
It is to be hoped that legal services advertising on ambulances will be banished to the darkest corner of the regulatory dustbin.
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References
1 Nick Hilborne, ‘High Court: Making Defendant Pay 10% More for Rejecting Part 36 Offer Would Add ‘Penal Element’ (Litigation Futures, 13 August 2014)
2 Ministry of Justice, ‘’Hundreds of Rogue Claim Firms Closed’ (18 August 2014)
3 ‘New Guidance for Instruction of Experts in Civil Claims 2014’ (Courts and Tribunal Judiciary)
4 Nick Hilborne, ‘New “Fundamental Dishonesty” Rule May Act “As Deterrent”, MoJ Says’ (Litigation Futures, 21 August 2014)
5 Guidelines for the grading of tinnitus: the results of a working group commissioned by the British Association of Otolaryngologists, Head & Neck Surgeons, 1999. McCombe A et al (2001) Clin. Otolaryngol.26,388-393.
6 http://www.nhs.uk/conditions/tinnitus/Pages/Introduction.aspx.
7 http://www.tinnitus.org.uk/tinnitus-explained-1.
8 Rauschecker J, Leaver M, Muhlau M. ‘Turning Out the Noise: Limbic-Auditory Interactions in Tinnitus’, Neuron, 2010; 66(6): 819-826.
9 http://www.nhs.uk/Conditions/Tinnitus/Pages/Symptoms.aspx.
10 Schaette R, McAlpine D (2011); J Neurosci 31:13452-13457. Discussed at: http://www.tinnitus.org.uk/tinnitus-and-hidden-hearing- loss.
11 http://www.actiononhearingloss.org.uk/your-hearing/tinnitus/what-is-tinnitus/what-causes-tinnitus/drugs-and-tinnitus.aspx.
12 Baigi, Amir; Oden, Anders; Almlid-Larsen, Vibeke; Barrenas, Marie-Louise; Holgers, Kajsa-Mia; November/December 2011 – Volume 32 – Issue 6 – pp 787-789.
13 Hasson, D; Theorell, T; Wallen, MB; Leineweber, C; Canlon, B ‘Stress and prevalence of hearing problems in the Swedish working population,’ BMC Public Health. 2011; 11:130.
14 Judge John Hack, ‘Ambulance Chasers Become the Ambulance’ (Legal Cheek, 28 August 2014)
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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 LLP 2013.
BC Legal is a Limited Liability Partnership registered in England and Wales under number OC379945. 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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Partners: B. Cetnik, C. Owen Registered Office: 1 Nelson Mews, Southend-On-Sea, SS1 1AL BC Legal LLP is a Limited Lability Partnership registered in England and Wales Registered No: OC379945 We are Authorised and Regulated by the Solicitors Regulations Authority (SRA No 590579)
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