Disease Update: 2019 Q2

NIHL: Damages

Inglis v Ministry of Defence [2019] EWHC 1153 (QB)

In this NIHL claim a former Royal Marine was awarded £545,766 for his noise-induced hearing loss. Mr Inglis had mild hearing loss causing difficulties in his work environment including hearing conversations in meetings or speaking on the telephone. Hearing aids had improved the situation but not by much. These adverse effects impacted on his normal day-to-day activities. The claimant’s disability was substantial and affected the kind of work which he could undertake and he therefore met the definition of disability within the Ogden tables.

The judge accepted that a multiplier/multiplicand method is the conventional approach to calculating future loss of earnings and should normally be used, even in less severe cases of disability. In the present case the judge was able to

• make findings as to the claimant’s annual earnings on both an uninjured and injured basis;
• determine that the claimant was disabled within the meaning of the Ogden tables; and
• that that disability has a particular impact of his ability to carry out his day-to-day work.

The judge did however adjust the reduction factors to be applied to the multiplier to take account of the claimant’s individual characteristics, he was notably hard-working, his disability did not affect his mobility and he had been in work since he had left the Marines. An award of just over £257,000 was made for future loss of earnings. In addition the claimant’s early discharge also resulted in an agreed loss of pension of around £350,000. An award of £25,000 was made for pain, suffering and loss of amenity. The sum reflected the claimant’s mild hearing loss and that his need for hearing aids had been advanced by about 30 years. The cost of his hearing aids was assessed at around £55,000. A further award of £8,000 compensated the claimant’s loss of congenial employment. Whilst the facts in this case were fairly unique in comparison to the majority of NIHL claims, the judgment may see an increase in the level of damages awarded to successful claimants.

Glyphosate: Roundup

For those following this issue our latest update in partnership with the US firm Wilson Elser is available on our website here.

Monsanto continues to prepare its appeals to the cases which so far have not gone in its favour including the most recent judgment for damages in excess of $2bn.

In related news a similar class action has been filed in Australia. We hope to bring you further news on this case in partnership with our Legalign partners, Wotton + Kearney, in due course.

In a further development in the US the class action filed in Florida against General Mills in respect of glyphosate residues being present in Cheerios has been dismissed.  The claim was based on an allegation that General Mills ought to have disclosed the potential presence of glyphosate in its cereal products. The judge found that the plaintiff had failed to establish that she had suffered a concrete injury and had only asserted a hypothetical health risk.

Mesothelioma: Reinsurance: “Spiking”

Equitas Insurance Ltd v Municipal Mutual Insurance Ltd [2019] 4 Wluk 283

In our 2018 Q3 update we reported on the above case in which the court considered the issue of whether insurers could “spike” their reinsurance claims i.e. presenting claims to reinsurers on a year or years of choice.

Equitas Insurance Ltd appealed the first instance decision and the Court of Appeal has held that a term of “good faith” had to be implied to the reinsurance contract and therefore the insurers’ right to present a claim could be arbitrary, irrational or capricious.  In the context of occupational disease claims therefore claims should be presented on the usual time on risk basis.

Air Pollution: EL Risk

Will Potts was recently interviewed by Robert Preston for the Health & Safety at Work magazine regarding the risks of air pollution from an EL perspective:

…some lawyers are sceptical that employers’ duty of care exists.  Will Potts, a partner at law firm DAC Beachcroft, says that obligations are limited to fumes and emissions covered by the Control of Substances Hazardous to Health Regulations, and which are created by the employer’s own activity.  “There is no legal duty for employers to protect against environmental pollution,” he says.  

The key issue here, he explains, is that employers have no control over the pollutants released into the atmosphere by the activities of other parties. “It would be impossible for an employer to be required to deal with a risk they have not created,” says Potts, who sees air pollution as a wider societal issue that government, at local and national level, must tackle.

We shall continue to monitor scientific and regulatory developments in this area and bring you further updates if and when the issues around air pollution progress.

Mesothelioma: Show Cause

Andrew Helm v  William Kenyon & Sons Ltd Somewatch Ltd [2019] EWHC 1108 (QB)

The deceased claimed against D1 and D2 in respect of mesothelioma.  Judgment was entered against both defendants at the show cause hearing by Master Davison under CPR PD 3D.  Under the show cause procedure the claimant must establish a prima facie case against the defendant and if he/she can do so the burden of proof shifts to the defendant to show that there reasonable prospects of success i.e. more than merely fanciful prospects. 

The master at the show cause found that the deceased had used asbestos containing material (ACM) with both defendants and therefore judgment ought to be entered.  The alleged exposure with D2 was between 1973 and 1979.  D2 had presented evidence to show that some control measures were in place.  D2 appealed on the basis that insufficient weight had been given to its evidence in light of unequivocal evidence of exposure on the part of the claimant.

The appeal was allowed on the basis that D2 had, on the evidence, established the prospects of a successful defence were more than fanciful. 

This case reiterates that whilst in a majority of cases evidence will be lacking for defendants in mesothelioma claims, where such evidence is available the courts must give sufficient weight to it at the show cause stage.  The “more than fanciful” bar is not a high one to get over.

Mesothelioma: Bereavement Damages

To remedy that incompatibility between the Fatal Accidents Act 1976 and the European Convention on Human Rights, the Government proposes to make bereavement damages available to claimants who cohabited with the deceased person for a period of at least 2 years, immediately prior to the death.  At the same time it proposes to address the issue of potentially conflicting claims where both a qualifying cohabitant and a spouse are eligible (i.e. where the deceased was still married and not yet divorced or separated but had been in a new cohabiting relationship for at least 2 years) by providing that the award should be divided equally between the eligible claimants. A draft Remedial Order has been issued.

NIHL: Hearing Loss and Dementia

The charities Action on Hearing Loss and Alzheimer’s Research UK are working together to fund a £300k research project to consider the potential link between hearing loss and dementia.  Action on Hearing Loss refer to a previous study published in the Lancet in 2017 and suggest that:

“unaddressed midlife hearing loss was predicted to be the highest contributing risk factor for developing dementia, potentially responsible for 9% of cases.  Emerging evidence has shown that mild hearing loss is associated with a doubled risk of developing dementia, with moderate hearing loss linked to three times the risk, and severe hearing loss five times the risk.” 

In part the research aims to establish whether hearing loss is directly causative of dementia or whether dementia is an indirect result of social isolation associated with hearing loss.

NIHL: Stem Cell Treatment

Action on Hearing loss have also recently announced £1.4m in funding into stem cell research for treatment of neuropathic sensorineural hearing loss focusing on repairing cell damage to the inner ear.   The treatment is being developed by a private company Rinri Therapeutics, which incorporated in November 2018.   The treatment is based on the research of Chen et al published in Nature in 2012.

This could be a significant development for those suffering from hearing loss.  It remains to be seen whether the apparent preclinical benefits are replicated in clinical trials.  With the spectre of private immunotherapy treatment in mesothelioma claims it could well be that we see claims for private stem cell treatments in NIHL claims although this is likely to be some way off.

NIHL: Osteoporosis and sudden hearing loss 

A Korean study involving over 68,000 patients has found that people suffering from osteoporosis have a 40% increased risk of developing hearing loss.  The Korean study supports the findings of an earlier Taiwanese study.  When considering causation therefore one should look out for this condition and whether there is a sudden onset of hearing loss and where necessary the medical experts should be asked to consider the possible connection between osteoporosis and hearing loss.

MSD: Kerb Side Collections

The HSE has published its report on the risks of manual handling from kerbside collection of recyclable waste.  The preamble to the report notes that the HSE views the waste and recycling sector as a priority.  

The report highlights the need for employers responsible for kerbside collection to ensure that they have considered whether the collection systems; vehicle designs; and recycling container designs remain appropriate for the task in hand.  Employers should consider whether there are systemic changes that could be made to reduce the need for manual handling and/or lower the risk i.e. by limiting the size of collection containers for heavier items such as glass. 

The report contains many detailed recommendations and suggestions by the HSE to reduce the risk of musculoskeletal disorders (MSD) in kerbside collections.