Disease Update: Q3 2019

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Disease Update: Q3 2019

Published 26 September 2019

Welcome to the DAC Beachcroft Disease update from Q3 2019.

In this update, we discuss some of the latest legal and technical developments in occupational disease litigation, including updates in mesothelioma and asbestos.

Click here to listen to the Disease Q3 Update podcast.

Silicosis: Enforcement: HSE Prosecution

The HSE successfully prosecuted a stone masonry firm for failing to adequately control exposure to silica dust, leading to an employee developing silicosis.  The defending company plead guilty to a breach of s.2 of the Health and Safety at Work Act 1974, was fined £8,000 and ordered to pay costs of £10,000.  This prosecution makes clear that the HSE are willing to proceed against employers who are failing to control exposure to dust.

The issue of silicosis is likely to receive more attention in the coming months given the class actions which have been launched in Australia following a spate of construction workers being diagnosed with the condition.

Dichloromethane (DCM): Enforcement: HSE Prosecution

The HSE again successfully obtain a conviction against 2 companies totalling fines of £750,000 following the death of an employee using DCM as a flooring adhesive.  The employer failed to consider the correct RPE, which ought to have been used and delegated the selection of the RPE to the employee.  The supplier of the product pleaded guilty to failing to ensure, so far as reasonably practicable, that the product supplied was safe for use.

DCM is commonly found in paint strippers but can also be used as a degreaser or adhesive.  The HSE provides guidance on the control measures to ensure safe use of DCM-containing materials. Employers need to ensure that they are assessing the risk of any potential exposures and that they put in place suitable and sufficient control measures to address the risks identified.

Asbestos: Cape Intermediate Holding Ltd v Dring [2019] UKSC 38

This case has been long in gestation and relates to the provision of court documents and disclosure used in litigation to a third party.  The matter began with the case of Concept 70 v Cape International Holding Ltd.  Concept 70 settled claims for mesothelioma brought by its former employees.  A contribution to the claims was sought from Cape.  The case settled after the trial had ended but before judgment was handed down.

The Asbestos Victims Support Groups Forum UK sought an order under CPR Part 5.4C for access to the court record to preserve documentation and trial transcripts which it argued could be relevant to other cases.  At first instance Master McCloud ordered that Mr Dring, for the Forum generally, should be provided with a hard copy of the trial bundle including witness statements, disclosure, expert evidence, and submissions etc.

 

Cape appealed the decision and argued that the meaning of “records of the court” should be given a more restrictive meaning than that applied by Master McCloud and would not normally include the trial bundle. The Court of Appeal accepted Cape’s arguments and ordered that the Forum could be provided with the statements of case, witness statements, expert reports and written submissions.  Any other documents could be considered for disclosure if the trial judge had read or been invited to read it.

Both parties appealed the decision to the Supreme Court.  Cape argued that the Court of Appeal do not have jurisdiction to make the order that it did and Mr Dring argued that the order was not wide enough.

Lady Hale, giving judgment, found that the Court of Appeal did have jurisdiction to make the order that it did and that it could, if it chose, make a wider order.  The overriding principle was that of open justice, in that the public must be given access to information which helps them understand how decisions were arrived at and to allow scrutiny of those decisions.  

The order of the Court of Appeal was upheld save that the matter was to be remitted back to the High Court for consideration of any documents which ought to be disclosed in furtherance of the principles of open justice.

Defendants and their insurers need to be aware that third parties could seek access to documents which are deployed at trial in a particular case and that these materials could be used in further unconnected claims.

 

Mesothelioma: Treatment

Baylor College of Medicine Lung Institute’s Mesothelioma Treatment Centre in Texas is trialling a new form of treatment for mesothelioma which combines nivolumab with a modified adenovirus.  On its website the proposed treatment is described as:

“This clinical trial treatment includes an IV infusion of a standard immunotherapy drug called Nivolumab that is effective in many human tumors and injections of a modified adenovirus called MTG201 that targets cancer cells and results in cell death. [Dr Bryan] Burt has been studying the effectiveness of this combination treatment in the laboratory in animal models and said MTG201-induced cancer cell death releases tumor antigens, which allows the immunotherapy to target the cancer. The treatment also stimulated the immune system. Burt has seen remarkable results of this combination therapy in animals.”

12 patients are being sought to take part in clinical trials.

Mesothelioma: Treatment

Not specifically confined to treatment for mesothelioma, but covering various types of treatment, a clinical trial is being run at The Royal Marsden NHS Foundation Trust which looks to combine pembrolizumab with guadecitabine.  It is thought that the guadecitabine helps the immune system spot the cancer and increases the effect of pembrolizumab.  Stage 1 of the trial has been completed and Stage 2 is now open. 
 

Asbestos: Schools

For those that may have missed it, John Goodman and Thomas Jordan considered the risks posed by asbestos exposure in schools and the steps which can be taken to reduce those risks.  The article can be found here.

Life Expectancy Evidence: Dodds v Arif and Aviva Insurance [2019] EWHC 1512

Whilst not a disease claim, this case provides useful guidance on when “bespoke” life expectancy evidence can be obtained.  The claimant suffered a brain injury as a result of an RTA in 2017 when we was aged 73.  The claimant served evidence from a consultant neurologist which stated that the claimant’s injury would not significantly reduce her life expectancy.  The defendant, without permission, obtained a report from a consultant physician who considered that the claimant’s life expectancy had been reduced by some 5 years as a result of the brain injury and other comorbidities.  The claimant objected to the defendant relying on the life expectancy report which she argued should be addressed by clinical experts.

Master Davison refused the defendant permission to reply on its report.  His approach was that the normal starting point for considering life expectancy was the Ogden Tables and that these only ought to be departed from where the claimant was atypical from the general cohort.   In this case Master Davison did not consider that the comorbidities put the claimant outwith the general cohort, however the brain injury itself did.  Estimation of life expectancy was not simply a statistical exercise but required clinical and medical input.  In the ordinary course of events the clinical experts would be able to comment on life expectancy, by reference to the Ogden Tables.  Only where there was disagreement between the clinical experts as to how statistical evidence should be applied to the Ogden Tables would bespoke life expectancy evidence be required.

In the context of disease claims it is often the case that the condition has reduced life expectancy and the medical experts instructed by claimants and defendants are well versed in covering the necessary issues.  However, if specific life expectancy evidence is required parties will need to give careful consideration to the basis upon which they seek permission for the same.

 

NIHL: Gout

Hear-It.org reports a US study of 1.7 million Medicare users between 2006 and 2012 has found that adults over 65 have a 44% increased risk of hearing loss when suffering from gout.  Gout is a relatively common condition affecting around 2.5% of the UK population.  It is worth checking a claimant’s medical records to see whether there is a history of gout and if so raising questions of the medical experts.   It is most likely that gout would result in conductive losses which would be apparent by air/bone gaps on audiometry.

NIHL: Antibiotics

It has long been known that certain antibiotics can have an adverse effect on hearing. Hannah Volpe, a partner DACB’s Clinical Risk team, provides a brief comment on the measures healthcare professionals should have in place to reduce the risk.  From a claims perspective this provides useful guidance as to what signs/notes/comments we should be looking for in a patient’s medical records when considering whether antibiotics could be the cause or contributing factor to a claimant’s hearing loss.

Damage to the vestibular and/or cochlear will often manifest itself as a loss of balance and deafness respectively. Both forms of damage are usually irreversible. Vestibular damage is the more common, resulting in symptoms varying from acute Menier’s syndrome (a long term, progressive condition affecting the balance and hearing parts of the inner ear) to slight vertigo or tinnitus. Affected patients will struggle with their balance whilst moving or walking around, particularly in the dark.

 

Gentamicin toxicity is usually related to dose; not just concentration of individual doses but also the total amount of Gentamicin received (drug accumulation). In addition, toxicity is associated with prolonged therapy and it is now recognised that the length of a gentamicin course should be restricted to 7-10 days.

High peak blood levels can be prevented by adjusting the dose to take account of the patient’s size. Drug accumulation can be prevented by ensuring serum trough levels (the low concentration that occurs before the next dose) are below critical concentrations. Since gentamicin is excreted by the kidneys, the dose may also need to be adjusted to take account of the patient’s renal function. However, even patients with normal renal function clear gentamicin at different rates and therefore serum gentamicin levels must be monitored regularly and dosage adjusted appropriately.

 

HAVS: Exposure Calculator

An important part of controlling the risks from vibration and avoiding the development of HAVS is assessment of the vibration levels.  Many manufacturers will provide vibration levels for their tools however the time taken to reach the Exposure Action Value (EAV) or Exposure Limit Value (ELV), is not stated.

To assist employers, the HSE has produced a vibration calculator for exposure which has been updated to include pre-selected options with assumed vibration levels for commonly used tools.  This provides guidance on the presumed time to reach the EAV and ELV.  The calculator is a good starting point for considering whether there is a risk to employees but to determine the precise and accurate risk, based on the specific tool and task, further investigation will be required by health and safety professionals.

The link to the calculator is: http://www.hse.gov.uk/vibration/HAV/vibrationcalc.htm

Football: Brain Injuries

The Institute of Occupational Medicine (IOM) have partnered with researchers from the London School of Hygiene and Tropical Medicine at Queen Mary University London to investigate the link between heading the ball and brain injuries in professional football players.  300 former professional football players are to be recruited to consider the link between head impacts and neurodegenerative disease.  If a link is found it could have far reaching consequences not just for professional footballers but also local clubs, amateur associations and even on the school playing field.  The study of footballers follows the previous 2016 study involving rugby players.    There have been cases in the USA where former NFL players have been awarded damages in respect of chronic traumatic encephalopathy (CTE) based on a scientific study in 2002.

Could it be that if there was a regular football team organised or recognised by an employer, in light of the string of cases extending vicarious liability, that a social activity could be considered as part of work and could the employer be liable for failing to take steps to reduce any possible risk?

 

Glyphosate: German Ban

Germany has announced that it will ban the use of glyphosate by the end of 2023 when the current EU license expires.  Whilst the potential health impacts are recognised by the German government the overriding consideration appears to be the potential impact of the weed killer on bees and insects.  However the German environment minister Svenja Schulze is quoted as saying “what harms insects also harms people”.  As per our previous updates on this issue the science as to whether glyphosate is harmful is not conclusive and the EU regulator, the EFSA, does not consider glyphosate to be harmful.  The proposed ban in Germany follows a similar move in Austria and a proposed ban by France.  Restrictions on the use of glyphosates are in place in various European countries.  Whether the position will change when the EU reconsiders the licence for glyphosate at the end of year remains to be seen.  If the license is renewed there could be conflict brewing between individual Member State legislation and EU Regulations.

Authors

Thomas Jordan

Thomas Jordan

Bristol

+44 (0)117 918 2122

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