Disease Update: 2020 Q2

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Disease Update: 2020 Q2

Published 16 July 2020

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COVID-19 


DACB have prepared a wealth of information on all aspects of COVID-19 and how it may impact our clients.  Full details of the articles and documents prepared can be found on our COVID-19 webpage.

Legionnaire’s disease

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.

Legionnaires’ disease is a serious lung infection caused by inhaling air contaminated with tiny droplets of water infected with legionella or by drinking the water. The symptoms of Legionnaires’ disease are very similar to flu, which could lead to an incorrect diagnosis and advice to self-isolate in the current COVID-19 climate.

Employers and occupiers of buildings have a duty to protect people by identifying and controlling the risk associated with legionella. In light of the UK Government’s advice to work from home, it is unsurprising that most office premises have been closed to staff over the last 3 months. However, with a focus now shifting towards a return to the workplace, albeit with control measures in place, employers and occupiers need to be aware of the risks associated with legionella and take steps to control and manage this risk.

If a person is diagnosed with Legionnaires’ disease then his/her GP must report the diagnosis to the Local Authority who will investigate the source of the exposure. Employers and occupiers should take steps to check the water supply and put in place control measures to avoid investigations by the HSE, Local Authority and potentially a personal injury claim.

The person responsible for making the premises safe, which could be the employer or he occupier should:

  1. Ensure that the water system is inspected and cleaned at regular intervals;
  2. Keep cold water below 20 degrees and hot water above 60 degrees as legionella cannot replicate at these levels.

Who is responsible 

There were reports in the legal press of the discovery of legionella bacterium at Lincolns Inn, which affected a number of companies whose staff were told not to return to work. The discovery was made by the landlord and tenants were informed they could not return to the office.

The potential impact is not only on offices but also spas, gyms and health clubs that offer the use of pools and hot tubs. In the event that the likes of pools and hot tubs are not being used, employers and landlords must take steps to drain, clean and disinfect the water system.

This issue is likely to become more prominent as UK businesses reopen with recent Government advice lifting further restrictions on UK activity and movement from 4 July in England and Wales. 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.

Occupational Stress: Boredom

An interesting case from France considered whether boredom could be classed as a workplace illness.

The Paris Court of Appeal awarded €50,000 to an employee who alleged he became ill as a result of his employer deliberately giving him little work to do. It was further alleged that this was an attempt by his employer to try and force him to leave the company. The case has been bubbling away since 2016 with the employee originally claiming €360,000 in compensation.

The substance of the claim is that the claimant was given more menial tasks over the course of 4 years which caused him to suffer “bore-out” and develop depression. This appears to be the opposite of “burnout”, which can lead to stress which is seen more regularly in the context of UK claims.

The case is certainly relevant and there is a risk that claims of this nature could be brought in the UK, especially with some industries and employers suffering a downturn in work following COVID-19. However, the facts of this case are quite specific in that the claimant alleges a 4 year history of being assigned menial tasks, having so little to do that his employer did not care what time he arrived into the office and there is also reference to a co-worker expressing suicidal tendencies. As always each case would need to be considered on the facts and its own merits.

Glyphosate: Non-Hodgkin Lymphoma

Bayer has reached a settlement with over 100,000 claimants seeking damages in respect of claims that the product Roundup, containing glyphosate, caused cancer.   The $10bn (£8bn) settlement agreement concludes around 75% of the existing claims brought against the company including 95% of the cases listed for trial.   There remain around 30,000 cases which are not covered by the agreement.

The settlement agreement comprises of an immediate payment of between $8.8bn to $9.6bn and a further $1.25bn to cover potential future litigation.  The agreement does not include any admissions of liability or wrongdoing on the part of Bayer or Monsanto as the manufacturers of Roundup.

Individual plaintiffs will reportedly receive between $5,000 and $250,000 in damages.  Part of the $1.25bn reserved for future claims will be used to establish and fund an independent panel of experts to consider whether glyphosate can cause cancer and if so what level of exposure is to be considered as dangerous.  The findings of the independent panel are set to be binding on parties to the settlement agreement including the lawyers who may act for any future plaintiffs.

The settlement follows 3 trial losses for Bayer where damages were awarded to plaintiffs who suffered from non-Hodgkin’s lymphoma which they alleged was due to the use of Roundup.  The combined award of damages in those 3 trials was over $2bn although this sum was later reduced on appeal.   These cases are unaffected by the current settlement agreement.

The US Environmental Protection Agency (EPA) had filed a legal brief in the appeal case of Mr Hardeman in support of Roundup saying the risk of cancer from the use of Roundup “does not exist”.  The EPA issued a further interim report in January 2020 which stated:

“there are no risks of concern to human health when glyphosate is used in accordance with its current label…[and] that glyphosate is unlikely to be a human carcinogen.”

Further support for Bayer’s position was given in June 2020 when a court in California rejected a requirement, under Proposition 65, that Roundup ought to carry a warning that it may cause cancer with the judge concluding:

“that every government regulator of which the court is aware, with the exception of the I.A.R.C., has found that there was no or insufficient evidence that glyphosate causes cancer.”

What does this mean for potential litigation in the UK? 

Whilst a win for the plaintiffs in the US the settlement does not include any admissions of fault and Bayer have made clear that the settlement was driven by commercial factors rather than acceptance of the alleged risk of harm from the use of Roundup.   However, clearly such a significant and high profile settlement will attract the attention of claimant lawyers in the UK and potentially encourage them to bring claims here. 

The weight of the scientific evidence appears to remain that glyphosate is not a carcinogen.  For the reasons we have covered in our previous articles on the subject, claims in the UK would struggle to prove, based on the current evidence, that the use of glyphosate in accordance with the manufacturers’ instructions, would be causative of non-Hodgkin’s lymphoma or any other form of cancer.

Employers who use glyphosate products should continue to act as they have done previously, when using any chemical, by completing a suitable and sufficient risk assessment, devising safe systems of work and training employees how to safely use the product in accordance with the manufacturer’s instructions.

Asbestos: Limitation: Low level exposure: Bannister v Freemans PLC (2020) EWHC 1256 (QB)

This is a low level exposure claim that reached the High Court in March 2020. Mr Bannister died in March 2019 and the claim was brought by his estate. The claimant alleged that the deceased had developed mesothelioma as a result of brief exposure to asbestos in 1983-84.

The defendant is a well-known mail order catalogue company and the deceased was employed by the defendant as a manager in the accounts department. This is not a typical claim for asbestos exposure in that the deceased did not work with asbestos. The claimant alleged that the deceased was exposed to asbestos on one occasion following a weekend of asbestos removal works, with asbestos dust being left in his office. The residue dust was left in the deceased’s office when he came into work the Monday morning. The works involved the removal of infill panels from office partitions. It was alleged that the removal works left visible dust all over the deceased’s desk and floor after the works. It was not cleaned up until that evening by company cleaners. The primary allegation was of 1 day exposure, however there were some additional allegations relating to attenuated exposure for the rest of the week.

Liability

The 2 primary issues considered were:

  1. Was the deceased exposed to asbestos dust, or some other dust such as that from construction?
  2. If he was exposed then was the level of exposure sufficient to cause mesothelioma? This involved consideration of Fairchild and whether such a low exposure resulted in a material increase in risk.

The crux of the claimant’s case was that a memo had been circulated in advance of the works outlining that asbestos boards were going to be removed. This document was not retained or produced during the trial, however the claimant relied upon a witness who was the author of the memo. The Court ultimately accepted that the memo had been produced and circulated. However, the Court considered the deceased’s evidence was lacking in credibility when he tried to link this episode with the presence of dust in his office and determined he had no independent memory of the memo. This conclusion was reached on the basis that the deceased had denied exposure to asbestos to medics on 3 separate occasions and had only been reminded of the existence of the memo when he met with his supportive witness in 2018. But for the witness reminding the deceased of the memo, he had no independent recollection of asbestos exposure. The judge did credit some of the evidence of the supporting witness, however not sufficiently to prove that the relevant dust which was in the office was in fact asbestos.

The Court found that it was unlikely the defendant would have identified asbestos panels, warned employees about the removal and then allowed the contractors to remove the asbestos panels without precautions. The judge also gave guidance on viewing witness evidence in historic disease claims with particular care, having regard to the backdrop of the ongoing litigation process.

Ultimately the claimant failed to identify that the dust found was asbestos dust and the claim failed.

Fairchild

The Fairchild principle is long established in mesothelioma claims. Under Fairchild a claimant is required to prove that any exposure to asbestos was of sufficient magnitude to create a material increase in risk. In this case, the Court approved the use of a dose estimate to guide any risk analysis. The Court preferred the defendant’s expert engineering and medical evidence and epidemiological evidence was considered.

The Court accepted the defendant’s submission that “a dose of asbestos which was properly capable of being neglected could be defined as a dose which a medical practitioner who is aware of the medical risks would define as something that the average patient should not worry about”. The Court concluded that exposure at such a level could not be characterised as a material risk and was therefore de minimis.

It is important to remember that the Court considered specific evidence in reaching this decision. When comparable cases arise expert medical evidence will be required to determine whether the alleged exposure would be something that an average patient should not worry about.  

Asbestos: Limitation: Gregory v HJ Haynes Ltd [2020] EWHC 911

The claimant first instructed solicitors in 2009 in respect of DPT however proceedings were not issued until 2017.  The defendant was a dissolved company having been wound up in 1992 but subsequently restored to the Register in 2015.  At the time that the claimant instructed his solicitors no insurers could be traced for the defendant.   However, serendipitously for the claimant insurers were identified for the defendant on another unrelated claim in 2014 the details of the insurer having been added to ELTO in 2013.

In the first instance the claimant’s claim was struck out by reason of limitation and the court refused to grant the claimant s.33 discretion.  However on appeal HHJ Mann held that: 

““The district judge held that this was culpable delay on the basis that something could and should have been done in this period to further the claim. In my view this was an error. It is not possible to see what more the claimant could realistically and sensibly have done in this period. There was a dissolved and, even if restored, apparently penniless defendant”

On that basis HHJ Mann granted the claimant’s appeal regarding s.33 discretion allowing his claim to proceed.  This case is interesting in that the judge was not just looking at any prejudice suffered by the parties but also considering the culpability to be ascribed to any delay and whether the claimant effectively had a reasonable excuse for his in action in bringing the claim.

Asbestos: The Homes (Fitness for Human Habitation) Act 2018

We have previously covered the impact of The Homes (Fitness for Human Habitation) Act 2018 in our article in May 2019 .  Before the coming into force of the act landlords would not be liable for asbestos exposure due to the presence of asbestos in the property (Cavalier v Pope [1906] AC 428).  However the combination of the Homes Act and the Housing Health and Safety Rating System (England) Regulations 2005 could now mean that the presence of asbestos in a rented property could render it unfit for human habitation.   The initial grace period within the Homes Act has now come to an end and all short term rentals are now covered by the Act regardless of when the tenancy commenced.   It is important to remember that landlords would not be liable where

  • The defect was caused as a result of the tenant’s actions or by storms, fires and floods and the like beyond the landlord’s control
  • The landlord has been unable to obtain the necessary permissions from the freeholder
  • The tenant is not an individual

This applies to England only.

Mesothelioma: Immunotherapy treatment

A study from Johns Hopkins Kimmel Cancer Centre reported an improved survival rate from the use of durvalumab in combination with either cisplatin or premetrexed as a first line treatment.  The combination treatment appears to disrupt the PD-L1 proteins of the mesothelioma cells.  This is an initial stage study (55 participants) which showed some evidence of increased life expectancy with the treatment.  The study is to be expanded in the US and Australia.

Talc and cancer

Whilst the cases and the debate continues regarding the potential contamination of talcum powder with asbestos Johnson & Johnson have said they will no longer sell baby powder in the USA.  Talc based baby powder will continue to be sold in other countries and a talc free version of the baby powder will be available in the USA.  As recently as October 2019 trace amounts of talc were found in baby powder products leading to a recall of 33,000 bottles of the product.

Tomlin Orders: Zenith Logistics Services (UK) Ltd v Coury [2020] EWHC 774 (QB)

This case deals with instances where the confidential aspects of the settlement agreement were mentioned in the schedule to the Tomlin order but were not set out in detail.

First we should consider the effect of a Tomlin order which is a valid way to compromise a claim.  The terms included in the schedule annexed to the order are not part of the order of the court per se but rather they are the terms of contractual settlement agreed between the parties.  The terms of the schedule cannot be enforced in the same way as the terms of a consent order for example and an application is required to enforce if necessary.

This being the case there is no need for the full terms of the confidential agreement to be included in the schedule itself so long as it is clearly referred to.  If the court is asked to adjudicate or enforce the terms of the agreement then the terms of any such agreement would then need to be provided.  However the court would not have power in any event to vary or amend the terms of the agreement reached between the parties.

Asbestos: Mesothelioma: Witham v Hill [2020] EWHC 299 (QB): dependency

We reported on this case involving the “income” from foster care forming part of the dependency.  At trial the income was accepted as part of the dependency claim and the damages awarded exceeded £900,000. 

For more information on the topics mentioned above, or anything else, please contact one of our experts in our disease team.

Authors

Thomas Jordan

Thomas Jordan

Bristol

+44 (0)117 918 2122

Jonathan Mitchell

Jonathan Mitchell

London - Walbrook

+44 (0)20 7894 6895

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