10 October 2014 Edition 67 BC DISEASE NEWS A WEEKLY DISEASE UPDATE

Transcription

1 10 October 2014 Edition 67 BC DISEASE NEWS A WEEKLY DISEASE UPDATE

2 CONTENTS PAGE 2 Welcome PAGE 3 QOCS protection lost in fraudulent case Mesothelioma reforms delayed as Grayling loses judicial review, again PAGE 4 CJC calls for tighter controls on links between claimant solicitors and experts in whiplash cases Welcome Welcome to this week s edition of BC Disease News. In the last week a claimant has lost the protection of QOCS for bringing a fundamentally dishonest claim, the reforms to additional liabilities in mesothelioma claims have been delayed after the Government lost a judicial review, and the High Court has ruled again on exposure to low levels of asbestos. This week we present the second part of our series on limitation law. We consider how to determine if limitation is in issue and how a limitation defence should be run. Any comments or feedback can be sent to Boris Cetnik or Charlotte Owen. As always, warmest regards to all. HSE survey reveals asbestos dangers Case note: low level asbestos exposure PAGE 5 Feature: Limitation in disease claims part 2 PAGE 7 In other news PAGE 2

3 QOCS protection lost in fraudulent case The insurer Admiral has claimed victory in a whiplash case where the customer it insured claimed there was no contact between the two vehicles. 1 District Judge Dudley said there was absolutely no doubt whatever in my mind that the claimant had been fundamentally dishonest in the evidence he gave during the trial at Southend County Court. In consequence the claimant lost the protection of qualified one way costs shifting (QOCS) and was ordered to pay the costs of the trial, which Admiral said were 6,000. He was also ordered to pay an additional 1,000 to cover the costs of the application DJ Dudley required before he was prepared to make the fundamental dishonesty ruling. Under QOCS, successful defendants can only recover costs against claimants in limited circumstances, including fundamental dishonesty. A spokesperson for Admiral said its insured customer was accused of driving into the back of the claimant s car after he performed an emergency stop to avoid colliding with a motorcycle. The claimant alleged he had suffered neck and back whiplash injuries which persisted for months and even went so far as to get GP reports for himself and his passenger. At the trial DJ Dudley dismissed the application, but asked for a separate application to be made to determine the issue of fundamental dishonesty. Lorna Connelly, head of claims at Admiral, said: We are understandably delighted with this significant ruling. The third party involved brazenly lied about the circumstances, putting our customer though undue stress and inconvenience so we were determined to prove they were fundamentally dishonest We hope it sends a warning that a dishonest individual could have a very significant costs liability should they pursue a case against us, as the judiciary are willing to make findings of fundamental dishonesty It will also hopefully make PAGE 3 solicitors think twice before bringing these cases to court in the first place. Mesothelioma reforms delayed as Grayling loses judicial review, again The High Court has ruled that the Government cannot abolish the recoverability of success fees and insurance premiums in mesothelioma cases because it failed to carry out the statutorily mandated review of the impact of the reforms on victims. 2 Ruling in R (Whitston) v Secretary of State for Justice [2014] EWHC 3044 (Admin), Mr Justice Davis ruled the Government s decision to implement sections 44 and 46 of the legal Aid, Sentencing and Punishment of Offenders Act 2012 must be set aside and a new review conducted, as required by section 48 of the 2012 Act. The ruling follows a demand by the Justice Select Committee for a second review. The judicial review was brought by Tony Whitston, chairman of the Asbestos Victims Support Groups Forum UK. Davis J recounted that the Government consulted on the handling of mesothelioma claims in the latter half of 2013, saying that the review required by section 48 would be carried out as part of the that exercise. However, that consultation was concerned principally with reforms to procedure through the introduction of a pre-action protocol and a fixed costs regime. The judge described the so-called review on the LASPO provisions as an adjunct. Davis J held: No reasonable Lord Chancellor faced with the duty imposed on him by section 48 of the Act would have considered that the exercise in fact carried out fulfilled that duty I do not find that a consultation exercise per se was an inappropriate means of fulfilling that duty. Rather, the nature of this consultation meant that it did not permit the Lord Chancellor to do so. Mr Justice Davis also added that he could not possibly share the view of the interested party, the Association of British Insurers (ABI), that no relief should be given because the Government s failings could not have made any conceivable difference to the outcome. Davis J added that this was not a case in which the procedural failing was minor or technical in nature. Noting that it was merely his role to review the legality of the Lord Chancellor s apparent consultation, Davis J said: It follows that it is not for me to set out the form of the review that will be required if the Lord Chancellor is to fulfil his duty under that section My task has been to identify whether what happened did satisfy the requirement under section 48. Having done so, it is now for the Lord Chancellor to carry out a proper review of the likely effects of the LASPO reforms in whatever manner he concludes will permit him reasonably to achieve the required purpose. The Ministry of Justice said: It remains our view that the Ministry of Justice review of this issue was conducted fully and openly and we are disappointed with this judgment. We will now consider our next steps. Richard Stein, of Leigh Day, who acted for the claimant, said that the judgement should send a clear message to the Government that it has to conform with the laws of the land and cannot ride roughshod over the interests of mesothelioma sufferers and their families to benefit the insurance industry. Mr Whitston called on the Government to see the judgment as an opportunity to take a new approach based on justice for victims and not the profits of big financial institutions. The old plans were rooted in a culture of secret deals with insurers and flawed consultations, which excluded the victims of asbestos. Now is the time for a change.

4 CJC calls for tighter controls on links between claimant solicitors and experts in whiplash cases The Civil Justice Council (CJC) has called for further controls on links between claimant solicitors and medical reporting organisations (MROs) and experts to be extended beyond circumstances of financial connection. 3 In its response to the Ministry of Justice s latest consultation on whiplash reform, the CJC also said claimants should be given a small choice of medical expert, rather than just the one allocated to them through the proposed MedCo portal. The CJC said it continued to endorse the Government s overall objective of developing a more streamlined procedure for soft tissue injury claims and one which is both transparent and proportionate. As we have previously noted in Disease News, the Government plans to sever the financial relationships between MROs, solicitors and claims management companies, which the CJC agreed is of fundamental importance to the reforms. The CJC said that it was particularly interested to see how this would be defined and policed: Any breaches should be a matter for the professional regulators, such as the Solicitors Regulation Authority. The CJC said efforts to sever links should not be limited to financial links: It would be equally undesirable for a selected MRO to be run by a member of the solicitor s family, for example, even if no financial benefit ensued. The CJC added: This is a complicated field in which the nature of the different possible business relationships both direct and indirect are varied and complex with links often not only with the commissioning party or intermediary but also with the subsequent treatment provider, eg a physiotherapy company or PAGE 4 CBT provider. The Council expressed the view that claimants should have a choice between directly instructing an individual expert and using an MRO, and that this choice should be one of the criteria selected by the claimant or their lawyer when using the new system. In addition, the CJC recommend that claimants should be given a small random selection of say three experts with sufficient background information to enable a choice to be made, rather than one individual. Finally, in relation to the proposal that claimant solicitors should conduct a previous claims data search on their client, the Council said where this is not done the defendant should be able to decline the claim notification form and require the claimant to resubmit the claim as though never presented, rather than simply allowing the claim to drop out of the Claims Portal with consequent risk of higher costs. HSE survey reveals asbestos dangers A recent survey by the Health and Safety Executive (HSE) has revealed the extent to which tradespeople are exposed to asbestos. 4 The surveyed showed that tradespeople, including construction workers, carpenters and painters and decorators, could come into contact with asbestos on average more than 100 times a year. In addition to illustrating the extent of exposure, the survey also revealed some common myths believed by those at risk, with 1 in 7 (14%) believing that drinking a glass of water will help protect them from the toxic dust and one in 4 (27%) thinking that opening a window will help to keep them safe. Just one third (30%) of those asked were able to identify all the correct measures for safe asbestos working, while more than half (57%) made at least one potentially lethal mistake in trying to identify how to stay safe. On average, 20 tradespeople die every week from asbestos related diseases. The survey, undertaken by Censuswide in September 2014, shows that while more than half (53%) of respondents knew that asbestos could be in old buildings built prior to 1970, only 15% knew that it could still be found in buildings up to the year Just 19% of respondents recognised that asbestos could be found in obscurer objects such as toilet seats and cisterns. To encourage tradespeople to direct their attention to asbestos, the HSE has launched a new safety campaign. A key feature of the campaign is the introduction of a new application for phones, tablets and laptops that helps tradespeople identify easily where they could come into contact with asbestos. Philip White, HSE s Chief Inspector for Construction, said: Asbestos is still a very real danger and the survey findings suggest that the people who come into contact with it regularly often don t know where it could be and worryingly don t know how to deal with it correctly, which could put them in harm s way. Our new campaign aims to help tradespeople understand some of the simple steps they can take to stay safe. Case note: low level asbestos exposure The High Court has ruled again on exposure to low levels of asbestos, specifically concerning exposure during the currency of HSE Guidance Note EH before its revision in Note EH10 included advice to duty holders (employers and occupiers) that exposure to asbestos should be reduced to the minimum reasonably practicable, and, in any event, should never exceed the standards set down in the guidance. Consequently, claimants often contend that there is no defence to a claim in negligence where some exposure to asbestos is proven but no precautions were taken to reduce the exposure to the lowest reasonably practicable level. Heward v Marks & Spencer plc [2014]

5 EWHC 3183 (QB) concerned a deceased contractor who had carried out property surveys for the defendant over many years in the North East of England. From 1984 onwards he wore a respirator when entering ceiling voids that contained asbestos debris but, between , he carried out this work without protection. Following the death of the deceased from mesothelioma, his widow brought proceedings against the defendant alleging breach of the common duty of care owed under the Occupiers Liability Act Although the experts agreed that the level of exposure to asbestos did not exceed the levels set down in EH10, the claimant contended that in order to discharge the duty of care, the defendant ought to have advised the deceased to wear a respirator, failing which it had not reduced the deceased s exposure to the lowest level reasonably practicable. David Pittaway QC, sitting as a Deputy High Court Judge, applied Williams v Birmingham University [2011] EWCA Civ 1242, which held that where there has not been exposure to levels of asbestos known at the time to be hazardous there is not a foreseeable risk of injury. Since the exposure did not exceed the EH10 guidance, there was no foreseeable risk of injury and thus no breach of duty. As to the argument that exposure was not reduced to the lowest level reasonably practicable, and that use of a respirator should have been enforced, the judge concluded that EH10 (1976), properly analysed, did not extend to the use of a respirator or protective clothing. He made specific reference to part of the guidance which required use of a respirator only if levels of crocidolite asbestos could not be kept below the standards in the guidance. Since no reference was made to use of a respirator beyond these circumstances it was held that the defendant was not in breach of duty in relation to the asbestos that the deceased was exposed to. The claim was dismissed. This judgment is likely to have an impact on claims alleging low level exposure after 1976 where the exposed individual was not directly working with asbestos but was exposed to levels in excess of background levels, such as from asbestos containing materials used in buildings such as schools. Low level asbestos exposure claims will be considered in a forthcoming feature article. Feature: Limitation in disease claims part 2 Introduction In last week s edition we considered the principles of limitation law that are applicable to disease claims. In this practical article we consider how to determine whether limitation is in issue and how to run a limitation defence. Determining whether limitation is an issue 1. In many NIHL cases limitation may be an issue because of the latency between exposure and onset of perceived disability. Claimants invariably provide a history of recent onset of symptoms despite historic exposure to noise. It is important to check that such a history is compatible with the extent of overall hearing loss (age associated loss + NIHL). 2. There is a reservoir of hearing which can be lost before there is any subjective disability. Subjective disability typically arises at around 20-25dB of loss (the low fence threshold ). Often, the effects of NIHL are not perceptible until age associated loss begins to increase and/or hearing loss caused by other exposures exceeds this reservoir of hearing. 3. NIHL is a non-progressive condition. Once exposure to noise ceases so does any NIHL there is no progressive deterioration other than arising as a result of natural ageing or some other pathology. The NIHL that exists today is the same as existed at the time exposure ceased. 4. If the claimant s overall loss is significantly greater than the low fence threshold then it is likely there has been longstanding disability or there is a third, recent cause of hearing loss which has caused disability to only recently onset. It is important to check that the degree of loss is compatible with the history of onset of disability: a. Estimate the claimant s likely hearing loss at the time exposure ceased (AAHL+NIHL). b. Would the overall binaural loss at this time exceed 20-25dB and so represent first disability? c. If the overall loss at this time would not exceed the low fence threshold at what point would this happen? PAGE 5 5. Questions may need to be put to the claimant s medical expert to establish the likely onset of disability. This exercise can also often assist on quantum as the medical expert may introduce a third, later cause of hearing loss to explain any incompatibility between the degree of loss and recent onset of symptoms. Even though this will not assist in any limitation defence, it will reduce the overall value of the claim.

6 Length and reason for delay 1. Explore the length and reasons for any delay by the claimant (and solicitors) in proceeding with the claim by way of questions/part 18 requests. 2. Be pro-active in how you handle the claim. Do not add to any delay in the claim by not responding promptly to the claimant s requests for information/documentation or investigating matters. Any such delay will adversely affect your limitation defence. Cogency of evidence 3. Examine the claimant s evidence to identify and highlight all inconsistencies and ambiguity. This shows how delay has affected the cogency of the claimant s evidence. 4. Examine the claimant s disclosure. Are there relevant documents which can no longer be obtained? This may include occupational health screening/testing of hearing with other employers. This shows how delay has affected the cogency of the claimant s evidence. Running a Limitation Defence Determining likely onset of symptoms PAGE 6 1. In any case where limitation may be in issue you will need to obtain full GP, hospital and occupational health records (if in existence). Occupational health records may also need to be obtained from other employers. The records may show/assist in determining the claimant s actual date of knowledge. 2. Questions will need to be asked of the claimant in respect of limitation sending template letters should be avoided and questions should always be relevant and tailored to each individual case. 3. Questions may need to be put to the claimant s medical expert regarding the development of NIHL, the extent of overall hearing loss at the time exposure ceased, likely onset of symptoms/inconsistency between (typically recent) onset and degree of loss and apportionment (quantum). Again questions should always be relevant and tailored to each individual case. 4. Once you have determined likely onset of symptoms then it is reasonable to assume that primary limitation starts at least within a year. The Court will assume that the claimant would be sufficiently curious about the causes of loss to explore the reasons for the same and so acquire knowledge. The claimant effectively has a year thinking time. Primary limitation starts at the end of this thinking time. 5. Examine and adduce evidence on how delay not just since the expiration of limitation, but since employment ceased has affected the cogency of the defendant s evidence: a. Does the defendant still exist? b. If so have there been changes in corporate structure/ownership? c. Do the premises/place of work still exist? If so has this changed and how? d. Do the source(s) of noise still exist? Is the same plant/machinery available? Has the system of work materially changed? e. Are witnesses still available? If so how has their recollection of events and evidence been affected? If there are no witnesses you should show reasonable attempts have been made to identify and locate them; f. How has the defendant s disclosure been adversely affected? You should show that documents existed but can no longer be located and why and what attempts have been made to locate the same rather simply saying no documentation exists; g. Even if there are relevant noise surveys which show a noisy workplace do not concede any issues on breach. If you cannot say where, or how long the claimant may have been exposed to noise or what (if any) hearing conservation programme was in place, then breach remains a live issue. If necessary you can admit that if the claimant s evidence on these issues is accepted by the court then breach would attach but you are simply unable to make any proper determination of these issues given the paucity of evidence;

7 h. Consider the strength of the claimant s case on breach and diagnosis/causation. If there is a genuine argument on any of these issues then there is less prejudice to the claimant in the court refusing to allow a claim to proceed out of time. Questions may need to be put to the claimant s medical expert to at least highlight genuine issues on diagnosis/causation even if the medical expert is unlikely to change their position; In other news And in other news, we present an interesting article on claimant firm Asons, showing their green credentials. It can be read here. Finally adduce evidence i. Consider the value of the claim. The lower the value the less the prejudice to the claimant if the court refuses to allow the claim to proceed out of time. Is there pre-negligent exposure or exposure with other employers who are not pursued? Introduce evidence on apportionment to reduce the value of the claim. Are there de minimis arguments? j. Are there gaps in insurance cover which mean a defendant/their insurers have to pick up the shortfall on costs? This increases the prejudice to the defendant in allowing the claim to proceed out of time. 10. Whilst the onus rests on the claimant to persuade the court to disapply the limitation period, the defendant must provide evidence by way of a witness statement on the above issues and the prejudice to the defendant in allowing the claim to proceed out of time. 11. Be aware of misplaced claimant arguments relying on Keefe v The Isle of Man Steam Packet Company Ltd [2010] EWCA Civ 683, to the effect that incomplete evidence resulting from delay does not cause prejudice to the defendant because the claimant s evidence should be judged benevolently and the defendant s judged critically in any event. This is incorrect: the Keefe principle only applies when the defendant s breach of duty causes a gap in the evidence. Conclusion As we noted in the first part of this series, limitation has become a complicated area. However, applying the distilled principles in a methodical way to the evidence can yield much improved odds of succeeding with a limitation defence. PAGE 7

8 References 1 Nick Hilborne, QOCS Protection Lost After Court Finds Claimant Faked Injury (Litigation Futures, 1 October 2014) < accessed 6 October Nick Hilborne, High Court Blocks Abolition of Recoverability in Mesothelioma Cases (Litigation Futures, 3 October 2014) < accessed 6 October Neil Rose, CJC Calls for Tighter Controls on Links Between Claimant Solicitors and Experts in Whiplash Cases (Litigation Futures, 8 october 2014) < accessed 8 October HSE, 1.3 Million Tradespeople at Risk from Dangers of Asbestos (9 October 2014) < Oct-2014> accessed 9 October PAGE 8

9 WHAT S NEW? The High Court is to consider the issue of whether NIHL is a disease for the purpose of the level of success fee to be awarded under the pre-jackson costs regime. There are a considerable number of such claims and the decision could have significant consequences. Mr Justice Phillips will hear the arguments in Dalton v BT on 16 October in Cardiff. We will report on the outcome as soon as it is known. 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 BC Legal is a Limited Liability Partnership registered in England and Wales under number OC 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 PAGE 9

10 PAGE 10 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: OC We are Authorised and Regulated by the Solicitors Regulations Authority (SRA No )