Disease Update: 2019 Q4

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Disease Update: 2019 Q4

Published 2 January 2020

Glyphosate: Non-Hodgkin Lymphoma

In an unusual development Thailand briefly joined the list of countries proposing to ban glyphosate in light of new evidence suggesting a link between the weed killer and ill-health.  The ban was due to come into force on 01/12/19. However, having announced the ban on glyphosate, and other chemicals, Thailand has since reversed its decision citing a lack of reasonable alternatives to the product and the impact the ban may have on the agricultural industry.

Mexico recently banned the import of 1,000 tons of glyphosate into the country in November 2019.  According to the Associated Press the environment department of the Mexican government is quoted as saying “glyphosate represents a high environmental risk, given the credible presumption that its use can cause serious environmental damage and irreversible health damage.”

In Germany 10,000 farmers took to the streets of Berlin in November to protest at the proposed ban on glyphosate, amongst other issues.  The German protests were followed by a similar demonstration by French farmers who are likewise concerned about the potential impact that a glyphosate ban could have on their industry.

In Canada the first class action has been filed for $500m in respect of glyphosate exposure.  There are several individual suits pending in Canada as well as the class action.  The CBC reports that there are some 60 named individuals in the class action.  The plaintiffs in this case do not just allege that glyphosate as caused non-Hodgkin’s lymphoma but also brain and lung cancer.    It will be interesting to see what, if any, evidence is used from the US cases in this action.

In Australia a class action, led by an Australian farmer Nando Maisano, has been filed.  Mr Maisano alleges that he used Roundup since the 1970s with little or no precautions.  In a pleading similar to that of Mr Johnson in the USA Mr Maisono alleges that he was drenched in the pesticide.   Mr Maisono and the other 100 claimants allege that the use of glyphosate has caused them to develop non-Hodgkin’s lymphoma.

For those that missed it I covered the issue of glyphosate at our Disease Conference in October together with Carolyn O’Connor from Wilson Elser in the US and Christian Viti from Wootten Kearney in Australia.  Working with our Legalign partners and our international DACB offices we shall continue to bring you the latest developments in this area.

Cancer: Firefighters

Wildfires in the US, Brazil and Australia have hit the headlines this year.  2019 also saw an increase in wildfires in the UK.

Increasingly these wildfires involve not just wild open spaces but also homes or other sites of human habitation.  As a result the fumes produced by the fires contain increasing levels of harmful substances.  Given the location of the fires it is often the case that full respiratory protection cannot be used by the those fighting the fires.

These is some evidence that firefighters are, in general, more likely to suffer from cancer based on a National Institute for Occupational Safety and Health (NIOSH) report from 2010.  This report supported the work of the Institute of Occupation Medicine (IOM) reports regarding the risks of cancer from firefighting.

If the rate of increase in wildfires continues in the UK fire services may need to consider carefully the risks posed by fumes/dust/particulates and the like to those fighting the fire. However, it will remain a challenge for specific claimants to show that a specific exposure resulting from a particular event has doubled the risk of development of any cancer suffered.

Occupational Stress: Finance Sector

This was another subject which was covered at our Disease Conference in some detail. The Guardian reported the London Stock Exchange (LSE) was looking at reducing the trading day.  At present the LSE is open between 8 am and 4.30 pm. Traders work longer hours before and after the exchange has closed.  Combined with commutes this can lead to excessively long working days which in turn could increase mental ill health. This shows that occupational stress and mental ill-health can be an issue in a wide range of sectors and all employers must consider the risks to employees. 

Our multi-disciplinary experience in dealing with occupational stress claims ensures full and effective handling of a claim for occupational stress whether for personal injury or under employment law. We ensure that the claims, if presented together are run in a complimentary way and that neither the civil nor employment action prejudices the other and that information gathered in respect of one claim is used to support the other.

Occupational Stress: Blue Light Workers

Recently released data has shown that between 2014 and 2018 the number of fire, police and ambulance service employees taking time of due to mental ill-health increased by a third.  Mental ill-health included PTSD, anxiety, depression and stress.

Figures quoted by the BBC and obtained as a Freedom of Information request showed that the number of employees taking time off for mental-ill health had increased year from 2014.

Various measures have been put in place by all 3 emergency services in an attempt to break the perceived stigma around mental ill-health and provide support to employees. 

Early recognition of mental health issues is welcomed and should  lead to better management, treatment and support.  However this highlights the need for employers to ensure that their strategies in respect of managing stress in terms of policies, risk assessment, prevention and intervention measures are up to date and staff trained to effectively implement.

With employees becoming more forthcoming in respect of work related stress, those so minded to make claims will be better placed to overcome the hurdle of “foreseeability” as set out in the Court of Appeal Decision of Hatton v Sutherland (2002).  Therefore employers should ensure that their good practices are well evidenced and sensible claims defensibility measures adopted wherever carefully defined trigger events occur.

A stitch in time, by way of legal input, when managing a return to work that may require reasonable adjustments or when dealing with a grievance, may well be the best use of resource, to ensure the overall benefit of substantial investment in well-being programmes is maximised. Failure to consider claims defensibility will not only put employers at risk of significant financial liability, but  more importantly,  staff absence and diversion of financial resource will impact upon service delivery and potentially lead to a vicious circle of departmental stress with associated consequences.

Opioid “crisis”

The issue of over prescription of opioid medications in the US have been well publicised.  Whilst there is unlikely to be the same level of litigation (if any) in the UK given the controls exercised by the NHS however, insurers in the UK could still be at risk from the US litigation as many US manufacturers are insured with UK based insurers/reinsurers via Lloyd’s of London for example.   If the cases proceed they have the potential to follow the same path as the tobacco litigation which lead to the Master Tobacco Settlement which included a minimum payment of $206 billion to 46 US states over 25 years.

Air Pollution: Long term health impacts

There have been a plethora of articles in the press over the last few months revealing the increasing knowledge of the adverse effects of air pollution on people.  Connections have already been made between air pollution and heart attacks, strokes, lung diseases, asthma, and cognitive impairment in children.

The Independent reported that parts of the London Underground had higher levels of pollution (in the form of PM2.5) than would be experienced by those travelling by bike, car or bus.   The research found that the levels of exposure to PM 2.5 varied on the line used with the Victoria Line listed as the most contaminated.  The exposures are taken from a passenger point of view and may not include any exposure levels for staff working on the trains or platforms who may spend considerable longer underground in the network than the average passenger.

WRULD - Chefs

 

The Daily Mail reports that a chef at Heston Blumenthal’s Fat Duck restaurant is bringing a claim for £200,000 in damages as a result of an alleged wrist injury resulting from repetitive tasks in the kitchen where she worked from June 2014.   This case makes clear that the risks of the WRLUD, and other occupational diseases, are present in all manner of jobs and industries.  Employers should always take care to ensure that they have adequately and sufficient assessed the risks associated with any job, role or task and ensure that any identified risks are reduced to the lowest possible level.

As an ancillary point this is also a useful reminder that journalists do keep an eye on the cases issued in the High Court and will publish details of cases they consider to be relevant.  In some instances it is possible for the court file to be sealed as is often the case with some mesothelioma claims albeit generally on the application of the claimant.   Copies of the statements of case can be obtained by third parties for payment of a fee under CPR Part 5.4C.  We reported in our 2019 Q3 update on the case of Cape Intermediate Holding Ltd v Dring that more substantive items of disclosure can be obtained by non-parties to the litigation if they are referred to in open court.

Dust: Construction Sector

The HSE has published a series of guidance notes regarding the dust created during specified construction tasks together with guidance on how to minimise and control exposure.  Given the recent publicity surrounding the spate of silicosis claims in Australia and the HSE’s willingness to prosecute employers for failing to control exposure (see our 2019 Q3 update), employers need to be ensuring that steps are being taken to control the risks of exposure.

Asbestos: New York 9/11

In a rather sad but unfortunately predictable development it appears that the first death from mesothelioma has been reported as a result of asbestos exposure in the aftermath of the attacks in the New York on 9/11.  Mr Nick Ursta, 52, was a construction worker and fireman who helped with the recovery efforts in the days after the attacks.

The World Trade Centre was, as were many buildings of its time, constructed with asbestos containing materials.  When the towers fell this asbestos was released into the atmosphere and subsequent rescue and clear up efforts would have disturbed it further.  This is a salutary lesson that the human cost of the attacks on 9/11 are not yet fully known and further that blue light workers need to balance the risks to themselves when working in an emergency situation against their reasonable and admirable desire to save others.

MSD: Cumulative Back Conditions: Surgeons

The Telegraph reports that 1 in 5 surgeons may have to retire early due to back pain.  Around 75% of surgeons carrying our keyhole surgeries have reported experiencing back paid whilst working and 1 in 6 have had to seek medical help.   The data has been collated by CMR Surgical and was based on a survey of 462 surgeons in the UK and Europe.

Mr Jonathan Morton, a consultant surgeon at the Addenbroke’s Hospital, is quoted as saying

 “Over the last 20 years the operations have got longer because we’re now doing far more complex operations through keyhole surgery than ever before. So you’re more likely to be in an awkward position for greater lengths of time.  On top of that, quite frequently we are having to operate in one direction while turning our head to the other direction to have a look at the screen. From an ergonomic point of view that’s difficult.”

There are many benefits to keyhole surgery and it has clearly been a welcome advance in medical science.  This issue, if supported by peer reviewed scientific study, is an example of the need for employers to keep up with developments in technology and ensure that the risks of new and novel technical aids are fully assessed and controlled.  As more automation and technological advances are incorporated in to the workplace employees will need to carefully consider the risks to employees as a result.

Cancer: Night Shifts and Health Diet

The link between ill-health, physiological and psychological, and night work has long been debated. A new study by Ferri et al considers the impact on diet and ill-health.  The study appears to show that a healthy balanced diet can mitigate some of the risks associated with night work.   There is no duty on employers to provide advice and guidance to employees working nights  on diet or other lifestyle factors which may keep them healthy but doing so may reduce incidences of ill-health and improve productivity.

Mesothelioma: Treatment

A new treatment for pleural mesothelioma is being trialled by the Miami Cancer Institute involving Tumour Treating Fields.   The non-invasive treatment works by seeking to disrupt cancer cell division with low voltage electric fields in combination with chemotherapy.   The treatment was initially developed for brain cancer treatment and is now being adapted to mesothelioma.  The Federal Drugs Administration (FDA) has approved the treatment but there does not appear to be any specific mesothelioma scientific studies to show whether the treatment is effective.

Mesothelioma: Expert Care Evidence

In many living mesothelioma (and other asbestos cases) claimant’s will often seek to rely on expert care evidence regarding the past and future level of care required.  Defendants have long argued that expert care evidence on past care is not required as it is question of fact to be dealt with in the witness evidence.  As to future care given, the variability of the potential symptoms which may be suffered and the speed at which they progress mean that predicting what level of care may be required, and when, is difficult and therefore the probative value of the expert care evidence is limited.  Increasingly the Masters in the Asbestos List are taking the view that care reports are of “no value” and denying claimants permission to obtain or indeed rely on reports which have been served previously.  It is worth giving careful consideration in each case as to whether expert care evidence has any value in the context of the claim presented.

Life expectancy evidence: Russell v Davies

We previously considered the case of Dodds v Arif (see our 2019 Q3 update) regarding whether and when life expectancy evidence could be obtained.

Lea Brocklebank, a partner in our Winchester office and David Williams, a partner in our Leeds office have considered the issue in light of the decision in Russell v Davies. In Russell the defendant was granted permission to obtain life expectancy evidence as the claimant’s medical history (ADHD, smoking and illegal drug use) was sufficient to make him atypical and such that he fell outwith the cohort on which the Ogden tables are based.

A full copy of Lea and David’s article can be found here: https://www.dacbeachcroft.com/en/articles/2019/november/can-defendants-rely-on-life-expectancy-expert-evidence-following-dodds/?

Expert Evidence: Mesothelioma: Trial: Mitchell v Precis 548 LTD (2019)

In a claim for mesothelioma the defendants sought to vacate the trial 2 working days before it was due to start as a result of its expert not being available.  The court refused the application on the basis that the 84 year old claimant, a widow suing on behalf of her deceased husband, would be serious prejudiced if the trial did not proceed.

The defendants had known about the trial for some considerable time and their defence of the claim rested solely on the medical evidence.  The defendants knew that their expert could not attend trial well in advance of the hearing but no steps were taken to vacate the trial date until the present application made 2 days before the trial was due to begin.   The court appears to have had little sympathy for the defendants and the impact the lack of evidence would have on the ability to defend the case as the circumstances had been of their own making for failing to take proactive steps earlier.

Expert Evidence: Mesothelioma: Life Expectancy Evidence: Bhaloo V Fiat Chrysler Automobiles UK Ltd (2019)

The claimant brought a claim for damages in respect of mesothelioma.  The defendant was granted permission at the CMC to obtain its own medical evidence and the claimant attended an appointment with the proposed expert.  However, the report from the defendant’s medical expert was not served in accordance with the directions provided and the defendant indicated to the claimant that their expert agreed with the claimant’s expert.   The court subsequently provided permission for the parties to obtain engineering evidence to consider liability as a result of which the claimant’s lifetime exposure became an issue. The defendant then sought permission to obtain a further medical report to consider the point of lifetime exposure.  Permission was refused as diagnosis and causation could and should have been considered by the defendant’s expert as the issue was a known point of dispute. The defendant had not sought to question the claimant’s expert on potentially de minimis exposure and if the defendant’s application to rely on further evidence was granted the trial date would inevitably be lost which was of significant concern in a living mesothelioma claim.  

This case, taken with that of Mitchell above, make clear that the court is unlikely to look favourably on any last minute applications which prejudice the a trial date in mesothelioma claims.  Defendants and their insurers need to ensure that any potential areas of disagreement or challenge are identified early and all reasonable and necessary evidence is obtained in timely manner to avoid a last minute scramble for evidence, which is unlikely to prove successful.

Wasted Costs: NIHL: Hoy v Secretary of State for Transport, unreported 17/10/19

The claimant sought damages for NIHL against a number of Defendants. QOCS applied in the case.  Causation was the only matter of dispute between the parties heading into trial.   The parties had permission to rely respectively on expert medical evidence and the experts disagreed as to whether the claimant was suffering from NIHL.   Permission was granted for oral evidence from the medical experts.

The issue in this case arose as the claimant discontinued the claim at 4pm on the Friday before the trial was listed to start on the following Monday.  The claimant had previously confirmed that his medical expert would not be called to give oral evidence at trial.  The defendant applied to have the notice of discontinuance set aside or for a wasted costs order to be made.

In order to determine whether a wasted costs order was appropriate the judge was required to consider whether the claimant’s case was or had become hopeless.  The first defendant submitted that there were a number of points where the claimant’s case became hopeless. 

  • September 2018 when the defendant’s report was served which challenged causation.
  • 3 June 2019 when a Joint Statement of the medical experts was served.
  • 13 June 2019, when the claimant informed the first defendant that he had no intention to call his medical expert to give evidence.

District Judge Robinson placed weight on the fact that an order had been made allowing oral expert evidence at trial.  The inference of this, was that such evidence was required to resolve issues between the experts. The burden rests upon the claimant to prove the case on causation, and this burden could not be discharged without the oral evidence of his medical expert.  Therefore, a finding was made that the claim was hopeless at the stage where the Claimant decided not to call his medical expert. 

Further dishonesty

The judge had further criticism for the claimant’s solicitor.  An email of 8 July 2019 explicitly confirmed a named counsel from a specific chambers was attending trial.  The first defendant’s chambers contacted that chambers several days later and were told that the named barrister was not instructed in a case called Hoy.  The court found that the claimant’s solicitor emailing was disingenuous and further that the solicitor who sent the email was dishonest by the standards of an ordinary, reasonable individual.  The court agreed with the first defendant’s submission that the likely explanation for this dishonesty was a “dangerous game of chicken”, with the claimant was waiting it out for a nuisance offer ahead of trial.  On this basis, the Notice of Discontinuance was set aside.

Wasted costs

The Court applied the 4-stage approach on making a wasted costs order in a hopeless case, which includes

  • Whether the case is hopeless, or whether it became a hopeless case;
  • If the answer is yes, whether “no reasonable competent legal representative would have continued with the action”;
  • If the answer is again yes, then consider the conduct of the parties;
  • Finally, the judge must consider whether a wasted costs order is just in all the circumstances.

The court found that no reasonable or competent legal representative would have continued with the case once all hope of success was extinguished by the claimant’s expert not attending trial.  As the first defendant continued to prepared for trial, further costs were incurred that could have been avoided.  It is further of note that discontinuance was filed at 4pm the Friday before trial, whereas a reasonably prudent solicitor would have acted diligently to explore options at the earliest juncture and not leave matters to the wire.  Therefore wasted costs were ordered from the 13 June 2019 onwards, in the sum of around £14,000.00

Fraud: Committal for Contempt: Jet2 Holidays Limited v Hughes & Hughes [2019] EWCA Civ 1858

In this case the court has confirmed that a person can be committed for contempt if he/she makes a false statement verified by a statement of truth even if proceedings have not been issued.   In this case the respondents booked a package holiday in 2016 and in 2017 served statements in support of a claim that they had become unwell whilst on holiday.  Social media searches undermined the respondent’s claims which were subsequently withdrawn.   The appellant sought to comment committal proceedings which was rejected in the first instance by the High Court but allowed on appeal to the Court of Appeal.

This decision significantly extends the potential reach of the court to look whether a claimant has been fraudulent and whether that could lead to a finding of contempt with all of the ancillary sanctions that come with it.

NIHL: Mackenzie -v- Alcoa Manufacturing GB Ltd [2019] EWCA Civ 2110

We last covered this case in our 2019 Q1 update.  The matter proceed to the Court of Appeal which has resolved some of the issues raised in this case.

Background

This appeal judgment covers circumstance in which it will be appropriate to draw adverse inferences in NIHL cases where no noise surveys are available.  Whilst the appeal was successful and it was found that the trial judge’s opinion that it could not be determined whether a noise survey was undertaken was correct, this success was a finding based on the facts presented in the case.  The risk of adverse inferences remains in matters where there is a failure to address the absence of noise surveys in pleadings.

Key Facts

Trial and High Court Appeal

The claimant worked for the first defendant from 1963 to 1976 and as part of his duties was sent to work on the premises of Alcoa at their factory in Swansea.  Engineering evidence was obtained which concluded that it is not possible to show, on the balance of probabilities, that the claimant’s daily average noise exposure would exceed 90dB(A).  At trial the engineering evidence was accepted and the trial judge refused to draw adverse inferences under Keefe, stating that the passage of time meant it was unsurprising that no noise surveys were available and there was no evidence to say whether they had been taken or not.  The judgment was appealed at the High Court and it was found that the decision in Keefe could not be rejected due to the passage of time and therefore the evidence of the engineer was disregarded; the claimant’s evidence was treated benevolently and a breach of duty at common law was found.

Court of Appeal Decision

The Court of Appeal reversed the decision of the High Court and supported the trial judge.  The finding distinguished this matter from the judgment in Keefe.  The most significant facts were that the factory where the claimant worked had closed down, and by the time a claim was brought it was around 39 years since the alleged negligent exposure.  The engineer’s evidence was a further relevant consideration to not draw adverse inferences, as the trial judge was entitled to accept that evidence and the reasoning it was based on.

Principles Confirmed

  • The High Court judge was wrong with his approach to Keefe and adverse inference as it risked elevating Keefe to a rule of law, rather than a finding of fact where evidence showed the defendant had not carried out noise surveys.  In contrast, the trial judge was correct to conclude that due to the passage of time and closure of the site, he should not draw adverse inferences from the defendant’s inability to produce noise surveys.
  • There is a common law duty to undertake noise surveys from “about” mid-1974 onwards.  This allows for some time from the publication of Noise and the Worker 1971, with employers being expected to be “turning their minds” to the problem by mid-1973 and having completed measures by about mid-1974.
  • The judge was rightly able to conclude that given passage of time and the closure of the plant, he should not draw adverse inferences.  This was on the facts of the case and does nothing to change the outcome of Keefe which remains good law.
  • Whether a noise survey has been undertaken is a factual finding, and evidence is needed on this point from both parties in pleadings.  It was explicitly stated that in future cases

“it would be helpful if both parties addressed…in pre-trial questions…the existence of documents or in the evidence at trial…this would help to avoid a situation where the trial judge is left to deal with the factual finding about whether a noise survey was carried out on the basis only of submissions about lists of documents”. 

Practice Points

  • When drafting a list of documents, in the section for documentation no longer in the defendant’s possession, a statement such as ‘it is not known what happened to any other documentation, including noise surveys and personnel records, which may have existed due to passage of time, site closure, dissolution, sale of company, loss of documents’ should be included.
  • Witness evidence should address the issue, covering site closures, dissolution, time since exposure, investigations made and say whether it can or cannot be concluded whether noise surveys were undertaken (if appropriate)
  • When putting the claimant to proof in a defence and there is an allegation that no noise surveys were carried out, it may assist to plead that it cannot be said whether surveys were carried out.

Outstanding Issue - Peripatetic workers

In the High Court appeal the claimant submitted that the trial judge wrongly did not consider submissions that the duty for peripatetic workers was to avoid any exposure at or exceeding 90dB(A), not just an average exposure at that level, from 1972 onwards. The High Court accepted that the failure to address this was a legitimate point of appeal, but did not resolve the issue itself, instead referring it back to the County Court.  The Court of Appeal did not address this point, as it was not relevant in this matter given that a finding could not be made that noise levels exceeded 90dB(A). Therefore the point remains unaddressed.

Authors

Thomas Jordan

Thomas Jordan

Bristol

+44 (0)117 918 2122

Key Contacts

Thomas Jordan

Thomas Jordan

Bristol

+44 (0)117 918 2122

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