COVID-19: TTJ
COVID-19 has impacted all areas of our lives for the best part of 2020 and will likely do so for a significant proportion of 2021. We have covered the potential risks from an EL and PL point of view in the UK in our many online sessions to which we have delivered to nearly 1,000 attendees. For those insurers and employers with an international dimension to their business we have utilised our connections in DACB’s international offices and with our Legalign partners to consider the risks posed by COVID-19 from an global insurance perspective.
Regardless of the jurisdiction and whether the civil or common law system applies there is globally a risk of claims being presented either as EL for breach of the common law duty of care or specific EL regulations together with PL/general liability claims. The means of avoiding claims, in broad terms remains the same with duty holders having to assess the risk of COVID-19, implement control measures to manage that risk and keep those control measures under review.
There is significant commonality in terms of the global risks. However, it is important to consider local cultural and legal differences.
Europe:
All EU States have a common requirement to ensure safe places of work and safe working environment and issued guidelines regarding safe working practices and although there are nuances between those guidelines, the principles are the same and breaches may give rise to potential civil and criminal liability.
LATAM:
Each country, different solutions and public policies in place. A significant consideration is that 53% of the workforce is informal. Work is limited to essential activities. However, the lack of preventive health measures raise questions of where and when a person may have been infected.
ASIAPAC:
A large region, similar issues but with differences in terms of infection rates, government response employment issues, health & aged care. Cultural differences are driving divergent claims experiences/outcomes. Many Asian-based workers ill-equipped to work remotely (home office v living space), higher percentage of labour in manufacturing and low skilled. There is a different experience in Australia and New Zealand which have a different labour market, legislative protections, unionised workforce and fewer cultural inhibitions to remote working.
North America:
The situation in North America is broadly similar to the rest of world but there has already been litigation on COVID-19 which gives a useful indication of the direction of travel in claims around the world. Class actions are more likely in the USA which could set the benchmark for litigation in other jurisdictions.
CTE - TTJ
We have talked about CTE previously and the issue has now gained traction in the UK with claims being proposed by former rugby players for dementia. This follows on the back of numerous reports of footballers suffering from similar symptoms.
CTE is a form of brain injury caused by successive blows to the head. There is no objective diagnosis of for CTE during lifetime and a definitive diagnosis can only be provided post mortem on examination of the brain. When subject to excessive forces the brain is forced against the interior of the skull causing damage to the neurones. These neurones do not have the capacity to heal once damaged.
In the UK players for any professional sports club would be owed a common law duty of care by his/her employer to provide him/her with a safe place of work. The club, as employer, must as a general rule assess the risks associated with employment and having assessed the risk take steps to reduce or avoid any such risk. In the context of CTE this would involve assessment the risk of high impact head injuries together with repeated and successive lower impact head trauma. Control measures would include the avoidance of head on tackles, high impact tackles, or heading of the ball excessively.
The symptoms associated with CTE are generally multi-factorial which may risk factors associated with them. In many cases there may not be one singular cause in any event. In addition to general damages claims could be made for care, rehabilitation and loss of earnings. There is a wide range of damages in such cases with much depending on the nature, extent and severity of any symptoms suffered.
Clubs and professional associations need to be mindful of new and emerging evidence of CTE and records kept of what steps can be taken to reduce the risk. Some measures are already in place regarding concussive injuries and these need to be kept under review to ensure that they remain reasonable and proportionate.
Procedural: Azam v University Hospital Birmingham NHS Foundation Trust [2020] EWHC 3384
This case involved an uncommon example of an appeal against a Judge at first instance exercising their discretion under Section 33 of the Limitation Act to disapply the limitation period. The case was a clinical negligence action and the judgment highlights the balancing exercise that the court has to undertake when considering the Section 33 discretion, the fact that a defendant alleging prejudice is best advised to adduce direct evidence of it, and the very difficult nature of an appeal against the exercise of judicial discretion. The Judge said
“… the Trust adduced no evidence at all of any steps it had taken to try to trace any other witnesses it had identified (but which it could not trace), let alone any issue with their likely recall of events, if traced. I note in this regard that the witness statement of Ms Morris-Thomas, Legal Officer of the Trust, prepared 4 years after the first notification of a claim, makes no mention of any untraced or untraceable witnesses. These are matters which mandate evidence if a party wishes to assert prejudice given the evidential burden is on the party asserting prejudice”.
This is an important practice point for those dealing with disease cases whereby limitation is almost always inevitably a live issue. This is of particular importance for those who carry out investigations into liability documents and witnesses, who will be expected to demonstrate to the Court the steps taken to locate documents/witnesses and how prejudice has arisen.
Bereavement Damages and co-habitees – The Fatal Accidents Act 1976 (Remedial) Order 2020
The Fatal Accidents Act 1976 (Remedial) Order 2020 came into force on 6 October 2020.
The effect of the Order is to extend the eligibility for bereavement damages to cohabiting partners, provided that such partners are able to satisfy the same criteria they currently have to satisfy to qualify for dependency damages under section 1 of the original Act. The Order is not retrospective and applies only to causes of action which accrue on or after the 6 October 2020.
The Order defines a co-habiting partner as someone who:
- was living with the deceased in the same household immediately before the date of the death; and
- had been living with the deceased in the same household for at least two years before that date; and
- was living during the whole of that period as the wife or husband or civil partner of the
The award in respect of bereavement damages, currently set at £15,120 is intended as a global award to be shared between all eligible claimants.
Under the old regime, the only circumstance in which two claimants could jointly claim bereavement damages was if there were two parents of a “legitimate” unmarried child. That specific scenario was therefore expressly catered for: “Where there is a claim for damages under this section for the benefit of both the parents of the deceased, the sum awarded shall be divided equally between them”.
However, the inclusion of a cohabiting partner as an eligible claimant gives rise to various other scenarios in which more than one claimant may claim bereavement damages, for example: a claim by the parent(s) and cohabiting partner of deceased who was an unmarried child, or a claim by both the cohabiting partner and a (separated) husband, wife or civil partner of the deceased. The result is that where more than one person claims bereavement damages, the award of £15,120 shall be divided equally between them.
Mesothelioma: Weyer v Prescot
We have seen a general trend of late for claimants to claim the full amount under the JC Guidelines for general damages in respect of mesothelioma claims. It would be noted that the full sum under the JC Guidelines is for the most severe of cases. The issue of quantum for general damages was considered in Weyer v Prescott, a fatal mesothelioma claim arising from secondary exposure. The claimant was exposed to asbestos as a result of cleaning the overalls of her husband which had been contaminated with asbestos.
In this case the deceased was noted to have been fit and well before diagnosis. The deceased had some chemotherapy treatment and suffered from weight loss and intense pain. The deceased died 14 months after diagnosis and her life expectancy was reduced by some 10 years. Damages for PSLA were awarded at £90,000.00.
Mesothelioma: Rix v Paramount Shopfitting Company Limited [2020] EWHC 2398
This is a latest in a line of cases considering what constitutes financial dependency in fatal claims under s.3 of the Fatal Accidents Act 1976. In this case the claim was brought by the widow of Mr Rix who died due to asbestos exposure. Mr Rix built up a successful joinery business following his employment with the Defendant. At the time of death the company was owned by Mr Rix and his sons with 40% of the share belonging to the Deceased. Following the death the shares were inherited by the claimant who then held 80% of the shares in the company with the remaining 20% owned by the 2 sons.
Following the death of the Deceased the company continued to make a profit and became more profitable. The Court, applying the principles in Welsh Ambulance Services v Williams [2008] EWCA Civ 81 (amongst others) considered that the claimant has suffered a loss of financial dependency. The dependency was based on the continued effort that the Deceased would have made to grow the business. In short the increased profitability of the company after the death was not a relevant consideration when looking at financial dependency.
Mesothelioma: Statistics HSE
The most recent figures from the HSE state that 2,446 deaths due to mesothelioma occurred in 2018, which suggests that diagnosis of mesothelioma remain relatively static show no signs of decreasing. This suggests that we are not yet through the peak of this epidemic.
Mesothelioma: Federal Drug Administration (FDA): Mesothelioma treatment approval
Advances in treatment for mesothelioma continue with the FDA approving nivolumab with ipilimumab for the first line treatment of mesothelioma patients with unresectable disease. Previously chemotherapy tended to be approved for first line treatment.
Whilst this is an important step forward in the treatment of mesothelioma patients it is important to note that 23% of patients in the study had treatment discontinued due to adverse effects, with 52% of patients having 1 dose withheld due to adverse effects. Whilst new lines of treatment continue to be developed, it seems we are still some way off effective long term treatment for mesothelioma. In practical terms, as treatment standards improve this is likely to lead to inflated claims for special damages such as care and travel costs.
Mesothelioma: Gendered experience of mesothelioma study
Mesothelioma UK has commenced a gender study with regards to how mesothelioma effects females compared to males. Evidence indicates that women may have a different experience to men in terms of awareness of the disease, diagnosis, access to treatment and compensation. Mesothelioma UK suggest that there are many potential reasons for this, but little research has been carried out in this regard.
The study aims to explore the experiences of men and women with mesothelioma, their family and carers as well as the various staff they come into contact with. The aim of the study is to establish how services should be best delivered to be accessible to both genders.
The study is ongoing and we will report on the results once available.
Mesothelioma: Hamilton v NG Bailey Ltd [2020] EWHC 2910
In this case the High Court sought clarity from the editors of the Judicial College Guidelines about the proper application of the guidelines in asbestosis and pleural thickening cases. Liability was admitted in this asbestosis claim, which came before the Court for an assessment of damages hearing. The claimant sought provisional damages with 3 specific return conditions, which the defendant was content to agree. The only substantial issue at the hearing was as to the correct valuation of general damages for pain, suffering and loss of amenity assessed on a provisional damages basis.
The claimant had a respiratory disability of 10%, which it was submitted on behalf of the defendant put the claimant in the lower of the two potentially relevant brackets for asbestosis and pleural thickening as contained in the JC Guidelines, namely £14,140 to £36,060. The wording of this lower bracket expressly stated that it was applicable to awards for up to a 10% disability assessed on a final or a provisional basis. With no evidence of any particular anxiety, the claimant being of relatively advanced years and with a modest impact upon him, consistently with the assessed level of 10% disability it was submitted by the defendant that the award should be no more than £30,000 on a full and final basis and that it should be further discounted to about £24,000 to £25,000 to reflect a deduction of the element of a final damages award, which on a provisional damages basis would be covered by the return conditions.
It was argued on behalf of the claimant that the higher of the 2 potentially relevant brackets was the appropriate starting point on the basis that whilst the claimant’s current disability was 10%, the medical evidence was that he was likely to deteriorate, so that the level of disability would increase above 10%. The higher bracket in the Guidelines provides for an award between £36,060 to £99,330. On the basis of the likely progression of the respiratory disability to 15-20% it was submitted that the higher bracket was appropriate, with a provisional damages award on the cusp of the two brackets at £36,000.
The Court accepted the defendant’s submission that the claimant came within the lower of the 2 brackets on the basis that the claimant’s current disability was assessed at 10% meaning he fell within the lower bracket. The fact that the claimant’s disability was likely to increase was relevant to the assessment of quantum, but did not mean that he should move to the higher bracket. In essence, the key factor separating the brackets was the level of current impairment.
However, when considering how to approach the assessment of damages within one of the 2 relevant brackets, the judge identified a difficulty in ensuring a consistency between the brackets due to the wording of the brackets in the Guidelines. This was due to the top end of the lower asbestosis bracket and the lowest end of the higher bracket both having the same value of £36,000. The judge therefore queried whether this was intended to be a figure for claimants receiving full and final damages whose injuries lie on the boundary between the brackets or those receiving a provisional award or some combination of the two. Having heard submissions from both parties, he concluded that both suggested approaches to the application of the Guidelines created difficulties and he sought clarity from the authors of the Guidelines, particularly in cases near the borderline of different brackets.
This case has identified an issue about whether the higher and lower asbestosis/pleural thickening brackets as presently written can be applied as intended to ensure consistency in awards with the lowest end of one bracket being the same as the highest end of the bracket below. It is hoped that the editors of the Guidelines might now take the opportunity to re-draft the wording of the relevant brackets to better achieve the stated aim of ensuring consistency in awards of damages.
NIHL: Constance v Ministry of Defence and another [2020] EWHC 3029
This regarded a claim in negligence, brought by a former Royal Artillery soldier who had suffered hearing loss. There were issues surrounding diagnosis and treatment, but the interest point in this case concerned the duty to mitigate losses when compensation for loss of earnings is sought.
The claimant was discharged from the army and took up a role as a Postman. The defendants’ case was that they should not be held responsible for the claimant’s ‘lifestyle choice’ to become a postman, earning a lesser salary than he could have had he chosen to work as an HGV driver and realised his potential to rise to a junior management position in the transport industry. The defendants' case was that the claimant had ‘failed to mitigate his losses’ by taking choosing a lesser paid career and that they should not pay damages for earnings which he had failed to secure as a result of his own choice.
The Court ultimately found that the claimant’s lost earnings arose ‘directly as a result of the negligence’ and within the scope of the type of losses for which the defendants were liable. The Court did not accept the defendant’s submissions that the claimant had failed to mitigate his loss, and this decision is important to all defendants’ who may seek to argue the failure to mitigate point. Should defendant’s wish to run a similar argument in the future, then we would recommend obtaining evidence from an employment expert should the need arise.
NIHL: Motorbikes
Those who deal with NIHL claims will be all too familiar with ENT experts commenting on whether a claimant has a history of motorbike use. This begs the question, in cases of more significant motorbike use, how much an impact does this have on a claimants hearing loss?
Engineers often refer to a paper called Noise Induced Hearing Loss in Motorcyclists, which was a paper commissioned by the Association for European Transport in 2002. The paper was designed to consider occupational exposure for motorcyclists including delivery drivers and Police motorcyclists.
An assessment in both wet and dry conditions was undertaken with noise levels 5-8dB louder in wet conditions compared to dry. Unsurprisingly, higher speeds across both conditions resulted in higher levels of noise exposure.
In conclusion, the assessment shows that personal or occupational exposure in the weeks, or even months is unlikely to cause any significant contribution to a claimant’s hearing loss. However, if there is a claimant with a significant level of motorcycle use then this could have an impact on the claimant’s lifetime Noise Immission Level (“NIL”) and have an impact on apportionment. Insurers should continue to question claimant’s on motorcycle use, particularly in cases where there is evidence of former motorcycle use in a personal or occupational setting. If significant exposure can be identified then this could lead to a reduction in damages.
NIHL: Dementia
Several previous studies have found a potential link between hearing loss and dementia and we have covered the issue in previous updates. However, a recent study from the USA has suggested that even a mild hearing loss can cause a mental decline in seniors. The researchers found that there was an association between decreasing hearing and decreasing cognition among people classically considered to have normal hearing.
The study’s lead author suggests that whilst people with worse hearing use more brain power to decode words, they do not get to process the meaning of what was said, which is the intellectually stimulating part. Whilst we do not see any immediate risk to claims for dementia from claimant’s who can show past exposure to noise, this issue is certainly not going away and is likely to prompt further research.
Windfarms
We have all heard complaints regarding wind farms and turbines. However, in Ireland 3 children have secured damages as a result of symptoms alleged to have been caused by living close to a wind farm. The children received an award of €225,000 in a deal made without an admission of liability.
It was alleged that the noise, vibrations and flicker from the wind farm resulted in symptoms of nosebleeds, ear aches, skin rashes, swollen and painful hands, loss of power in their limbs, sleep disturbance, and headaches being suffered. It was alleged that the symptoms improved once the family left their home after some 6 months of living next to the windfarm when it became operational.
The basis for bringing the claims in Ireland differs to what we would see in the UK however, this case could encourage similar litigation here especially given the increased demand for green electricity. Those owning and operating windfarms will need to consider the potential impact of the turbines living close by. It is important to note however that the medical evidence presented in this case was not accepted and there is no clear well established evidence of any ill-health effects caused by living close to wind turbines.
NIHL: Cadmium
Cadmium is a relatively common metal element most commonly found in batteries. A Korean study reported by Hear.it.org has found that excessive exposure to cadmium can increase the risk of hearing loss. The study suggests that HTL at all thresholds can be adversely effected.
NIHL: Northern Ireland
Member firms of the Northern Ireland Disease Sector Focus Team have produced a protocol focused on improved communications between member firms, where there are co-defendants to streamline the process. Foil’s work on the protocol was led by Sean McGahan of DAC Beachcroft.
Carbon Monoxide: Cookers/Ovens
An inquest in Cornwall has revealed that a leading UK appliance brand traced and made safe only around half of the cookers it had sold of a model linked to a series of deaths from carbon monoxide poisoning.
The company was able to trace customers who had purchased the potentially dangerous cooker relatively easy from high street retailers, but struggled to locate those who purchased the cooker from smaller retailers.
This current inquest relates to the death of 5 people, who are now part of a group of 18 people in the UK whose deaths have been linked to the defective cooker. The company had been aware of issues with the cooker following the death of a customer in 2008. To date the company has reached 58% of affected buyers and enquiries continue.
The inquest continues, but given only 58% of affected users have been located this issue is likely to attract further headlines for some time to come.
Bladder Cancer
The issue as to whether there is a link between occupation and severity of bladder cancer has been examined by the University of Sheffield recently.
The study suggests that workers exposed to diesel fumes or who undertake plumbing, gas fitting, ventilation and welding work may be more likely to suffer from high-grade and high-stage bladder cancers.
Around 10% of bladder cancers arise following occupational exposure to carcinogens. Whilst many high-risk carcinogens have been identified, it is suspected that more are still in use.
- Bladder cancer arises in at least two distinct types:
- Low-grade tumours are characterised by few genetic alterations and indolent behaviour. High-grade bladder cancer is an aggressive disease characterised by multiple mutations.
The experts running the study suggest that the above types could reflect different carcinogenic exposures and occupational tasks. The following findings were made:
- High-grade bladder cancer was more common than low-grade bladder cancer in workers from the steel, foundry, metal, engineering and transport industries.
- Engineering and metal workers also had higher than expected risks of certain high-risk bladder cancers.
- High-grade bladder cancer was more common than low-grade bladder cancer in workers exposed to crack detection dyes, chromium, coal/oil/gas by-products, diesel fumes, aircraft fuel and solvents.
- Higher-stage bladder cancers were more frequent than expected in workers exposed to chromium, coal products and diesel fumes.
- Cancers of higher than expected grades and stages were also associated with occupational tasks such as welding, the use of mineral oil lubricants, the use of protective resins and with tasks that included diesel contact.
If the findings of the study are correct then these will be of significance in that they suggest a link between certain occupational tasks and a more aggressive, or severe, form of bladder cancer. Whilst this is an important study, the sample size was small and the data should be treated with caution. Research into bladder cancer is however growing and should be kept under close review. It is likely that more claims will be presented as further research is carried out, more data becomes available and knowledge increases.
Legionella
Legionella continues to cause concern, particularly as the UK Government imposes a third lockdown. This has resulted in specialists across the insurance industry voicing concerns about the potential for a build-up of legionella bacteria in buildings left empty over lockdown.
We discussed the issue of Legionnaire’s disease in our Q2 update. In essence, occupiers of premises need to be aware of the potential risk posed by Legionnaires’ disease. Buildings closed during lockdown could suffer from water system stagnation due to lack of use, increasing the risk of legionnaires disease.
Whilst employer’s should always be taking steps to ensure the water supply is free of legionella bacteria, the issue will continue to be prominent as lockdowns are imposed and employees remain working from home. Whilst government restrictions due to COVID-19 may delay the process, the need for employers to carry out assessments continues.
Employers and occupiers must take steps to ensure that those responsible for the building water supply have taken steps to inspect and clean the water supply to protect users from legionella.
Stress and metal health
The BBC has reported on ONS figures which suggested that the number of people suffering from depression has doubled during lockdown. This time last year 10% reported symptoms of depression but this now increased to 20%. The cause of this increase may be self-evident with people worried about work, money, and their health combined with feelings of social isolation loneliness. Whilst the initial cause of the depressive symptoms may not be work-related employers need to be aware of the additional risks faced by employees. If an employer becomes aware that an employee is suffering from stress or anxiety, whether initially work related or not, steps should be taken to conduct a risk assessment of the employee and ensure control measures are in place to avoid a exacerbation or deterioration of the condition.
For more information or advice, please contact one of our experts in our disease team
