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Published 27 March 2020
Click here to listen to the Disease Q1 Update podcast.
It would almost be remiss of a disease update not to mention Covid-19. However, as you will appreciate the situation is ever evolving. Rather than providing any specific advice we simply refer you to the NHS website which provides guidance on controlling the risk: https://www.nhs.uk/conditions/coronavirus-covid-19/
We have however provided some guidance for employers who have may a significant proportion of their employees working from home which can be found at:
For those who are not working from home we add that with increased washing of hands comes the increased risk of dermatitis and therefore employers may wish to consider providing hand cream to employees together with the usual soaps and alcohol gels.
There has been a move in California that the common pain killer, Tylenol, should be labelled as a carcinogen. Proposition 65 requires that products which can cause cancer should be labelled accordingly. This is the same requirement that potentially included coffee as a carcinogen. The IARC reviewed the drug in 1990 and 1999 and did not consider that it could be classed as a possible carcinogen. Whether this issue will take off is doubtful given the prevalence of the drug and the absence of evidence to support a link with cancer.
This is an edited version of Thom Jordan’s article on glyphosate which was featured in the edition of Stronger magazine.
Thousands of cases have been issued in the US by claimants alleging that the use of glyphosate has caused them to develop non-Hodgkin's Lymphoma (NHL). Three cases have gone to trial and the plaintiffs were awarded damages totalling more than $2 billion, although the cases are subject to appeal. Similar cases have been filed in Canada and Australia. Several countries, including Germany, France and Austria, have all proposed bans on products containing glyphosate notwithstanding that the EU Regulator (EFSA) maintains that the product is safe to use.
Any claim brought in the UK by an employee against an employer would primarily be based on the Control of Substances Hazardous to Health Regulations 2002 (COSHH). COSHH requires that exposure to substances hazardous to health ought to be avoided and, where this is not possible, reduced so far as reasonably practicable.
The first question that must be asked is whether or not glyphosate is a “substance hazardous to health”. It is arguable that given the absence of a work place exposure limit and that the glyphosate is not in, and of, itself harmful to humans as it acts on certain enzymes in plants not found in humans, it is not prima facie made out that glyphosate is “harmful”. However, the Regulations do not define “harmful” and, therefore, even if there is a low risk of harm from the exposure, it could still be considered harmful.
If COSHH does not apply, the application of glyphosate would still be covered by the Management of Health and Safety at Work Regulations requiring employers to produce and apply a risk assessment for controlling the product. Further, employees will need to be provided with training, information, and guidance explaining the risk of glyphosate use and what they should be doing to protect themselves.
If breach of duty is proven, a claimant will need to prove that the exposure to glyphosate has made a material contribution to the development of the cancer i.e. that it has more than doubled the risk. There is no evidence at this stage to suggest that glyphosate doubles the risk of NHL.
There is a risk of the litigation brought by employees as a result of glyphosate for which preparatory steps must be taken now.
An update from our DACB international offices and our Legalign partners will follow in Q2 2020.
In our 2019 Q3 update Jonathan Mitchell and Thom Jordan discussed the ongoing research into CTE by the IOM and London School of Hygiene and Tropical Medicine at Queen Mary University London. Since then many will have seen the Netflix series Killer Inside: The Mind of Aaron Hernandez
This is not the first time that the issue of CTE has caught the media’s attention with the film Concussion, starring Will Smith, detailing the life of the “discoverer” of the condition Bennet Omal. The Washington Post recently ran a series of articles questioning Omal’s role in the discovery of the condition and the science behind it.
We aim be bring you more on this subject via our Legalign partners shortly.
Below is an extracted preview of an update prepared by Jonathan Mitchell regarding the renewed in interest in silicosis:
MP’s from the All Party Parliamentary Group for respiratory health have recently called for more measures to protect workers at risk from developing silicosis. The Group first launched the enquiry in 2019 to help ministers gain a better understanding of silicosis. It is estimated that 60,000 construction workers are at risk of developing silicosis from breathing in dust from cut stone. As well as construction workers, kitchen fitters installing granite worktops could also be at risk as a high silica content can be found in granite.
Employers have a duty under the Control of Substances Hazardous to Health Regulations 2002 to assess the risks to employees health, consider where practicable substituting a material with a lower RCS content, prevent or control exposures to RCS by following good occupational hygiene practice to achieve adequate control of exposure, provide PPE where necessary and instruct and train employees how to use equipment properly and inform employees about health risks.
Figures on the HSE website suggest that 8 people died from silicosis in 2018, although this figure is considered to be underestimated with estimates of annual lung cancer cases due to past exposures to silica at nearly 800 deaths a year. This implies that those who develop silicosis or silica induced lung cancer may not be claiming Industrial Disablement Benefits that would assist the HSE in monitoring diagnosis levels.
MP’s are considering halving the current legal workplace exposure limit and if this is accepted by parliament, employers will need to carry out a complete review of current risk assessments and perhaps working practices. It is likely that interest in this subject will develop further traction whilst the class actions in Australia gain further momentum.
The report encourages dialogue between government, the health and construction sector in particular. It is important that an appropriate risk assessment is carried out for any tasks and roles involving the use of silica materials. For those working with silica, health surveillance should be carried out and those employees must be trained in the risk of working with silica and provided with PPE where appropriate.
The HSE has published guidance for employers regarding alcohol and drug misuse setting out what they consider to be the duty of care owed by an employer to an employee. Whilst an employer is not responsible for a employee’s behaviour outside of work they would have duty to see that the employee is safe whilst at work. It is perhaps self-evident that employees should not be allowed to drive or operate heavy machinery if he/she was under the influence. However, what may be more nuanced is whether the apparent or potential misuse of drugs or alcohol is a sign of the employee being unable to cope at work i.e. that they are at risk of suffering from occupational stress.
Employers should therefore be aware of the warning signs of substance abuse amongst their employees which may include
Employers should also consider how to assist an employee to deal with their alcohol or substance abuse and make reasonable adaptations to allow them to continue working if possible. Early intervention and management of the issues may well prevent a claim for occupational stress or indeed prevent an accident at work.
Employers need 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 them.
With employees becoming more forthcoming in respect of work related stress, those so minded to make claims will be better placed to overcome what has historically often been an insurmountable hurdle of foreseeability in light of the guidance from the Court of Appeal in Hatton v Sutherland (2002). In the changing mental health environment, employees are more likely to be able prove an employer’s actual knowledge of impending harm due to documented complaints such as sick notes, or will have better prospects of establishing constructive knowledge because of rising expectations in respect of what should have been foreseen, linked to the increased mental health awareness.
Whilst the present legal test requires impending harm to health arising from stress at work that must be plain enough for a reasonable employer to realise that they should do something about it. In particular supervision should be maintained, so as to avoid becoming wilfully blind to circumstances that should have been discovered.
Raising mental health awareness and expectations in terms of what employers ought to have foreseen combined with employees becoming more forthcoming in respect of the nature of their illness will improve claimant’s evidential positions and increase the risk of judges finding foreseeable risk. In effect there is a twofold increased risk in respect of both actual and constructive knowledge.
There is a real risk of a shift in what is quite a delicate balance. Employers are not obliged to make searching enquiries, but should be advised to undertake regular 121s and appraisals recording whether an employee is coping. An employer cannot afford to be wilfully blind to a spiral of factors, such as increasing backlogs, deteriorating performance indicators and changes in behaviours e.g. a ‘9-5 employee’ sending emails at 1am.
With new working styles (agile, flexible and home working) emerging it is advisable to have risk assessments and focus upon metrics that employers could reasonably be expected to be aware of so as to ensure that employees are coping. Quality supervision and oversight remain critical. That said, signs still have to be plain enough for a reasonable employer to realise that they should take action.
Most employers are keen to ensure that their employees do not find themselves overwhelmed or unable to cope, putting pressure on them and requiring additional resource from their colleagues and managers. Ultimately we know that employees are liable to take time off or eventually leave stressful jobs altogether. Employers can help to avoid this by undertaking a risk assessment and more importantly, acting upon the findings.
Many of us would assume that the risks of working with asbestos are now so well known that any reasonably prudent employer would take steps to ensure that the risks are effectively managed. Unfortunately this doesn’t appear to be the case and the HSE recently secured a successful prosecution of contractor who removed asbestos from a pig shed. The contractor prepared a plan or work for the removal of the asbestos but failed provide a copy of this to the employees completing the work and failed to adhere to it. The contractor pleaded guilty to breaches of the Control of Asbestos Regulations 2012, and was sentenced to 12 weeks imprisonment, suspended for one year, and ordered to pay costs of £1,000.
Clearly failure to comply with the Regulations will have significant reputational ramifications for a business specialising in asbestos removal but as can be seen by this case can lead to custodial sentences being imposed. Further, there is a clear risk that employees and others may have been exposed to asbestos which could cause harm in many years to come. The presence of asbestos should be considered in all construction or demolition works. This goes to show that asbestos will remain an issue for insurers for many years to come.
The ONS published updated mortality data in December 2019 showing a significant reduction from life expectancy predictions between 2008 and 2016. The new data generally predicts lower life expectancy than the 2008 data which was relied on for Ogden 7. The forthcoming 8th edition of the Ogden tables will use the 2018 mortality data, therefore life multipliers for males and females will reduce as a result. We can expect challenges to the new life expectancy figures from claimants’ experts. We previously covered the issue of life expectancy evidence in the 2019 Q3 and Q4 updates and it could well be that this will remain a fertile area of litigation.
The Supreme Court has heard oral arguments in the joint cases of Royal Mencap Society v Tomlinson-Blake and Shannon v Rampersad and another (T/A Clifton House Residential Home)  EWCA Civ 1641. The cases are not disease related but rather arise from an employment issue and what rates should be provided to carers providing sleep-in care and whether carers on where being paid below minimum wage.
This case is relevant to insurers in disease (and other personal injury litigation) in that it could have a significant impact on the care claims presented. In mesothelioma claims specifically extensive care is claimed and towards the end of the claimant’s life this is often sought on a 24 hour basis. This care is often provided by family members but claims are made frequently made for professional care.
Who provided, or will provide, the care is a matter of fact and clearly the witness evidence will be key to determining the loss. However, if this case finds that professional carers ought to be paid for all of their time, even when asleep, it could be that we see a significant increase the costs claimed.
A draft Order has been laid before parliament which, if made, will make amendments to the Fatal Accidents Act 1976 to provide for claimants, who have lived with the deceased individual for at least 2 years immediately prior to the death to be eligible for an award of bereavement damages in England and Wales. It will come into force on the 21st day after the day on which the Order is made.
The order was laid before Parliament on 19/03/20 and increases the award for bereavement damages from the present £12,980.00 to £15,120.00 and applies to causes of action which accrue on or after 1 May 2020.
Nature has published an article entitled “The Influence of Occupational Noise Exposure on Cardiovascular and Hearing Conditions among Industrial Workers”. This considers the association between noise exposure and hypertension and other cardiovascular conditions. The article suggests that there is an association between noise exposure and hypertension which could be due to a stressor response on exposure to noise. The most at risk group was found to be male workers aged between 30 and 45 who were exposed to noise for more than 10 years. The article says
“Some researchers have showed that occupational noise exposure is associated with a higher risk of hypertension or with a sustained elevation of blood pressure, which is consistent with our finding... Still, other studies have not suggested any significant link. The difference between these results may be attributed to the different usage of personal protective equipment among different workers who exposed to high-frequency noise. Hence, we need to choose outer-ear measurements of noise levels alone as a source of exposure bias because they do not influence the true intensity of inner-ear exposure.”
The authors accept that further animal and human studies are required to determine the correlation between noise exposure and cardiovascular conditions.
Hearit.org reports on a Korean study suggesting a link between migraines and sudden sensorineural hearing loss. The report considers that there is a 34% risk of sudden hearing loss if one suffers from migraines with men being more at risk than women. Age did not appear to have an impact on the risk
From a defendant point of view it is worth checking the medical records to see whether the claimant has reported suffering from migraines and whether this has any correlation to the onset of their hearing loss.
In another article Hearit.org discusses details of the connection between obesity and hearing loss reporting in Japanese study which could that being overweight lead to a 14% increased risk of developing hearing loss at 4 kHz. There was a 21% increased risk for hearing loss at 1 kHz. 4 kHz is a particularly relevant frequency when considering NIHL and therefore if the readings at 1 and 4 kHz appear to be disproportionately affected the claimant’s medical records should be checked for evidence of obesity. The Japanese study is reported to support the evidence found by earlier Turkish and American studies.
The HSE have produced guidance for those working with WMF. The guidance highlights the risks posed by MWF and in particular the risks associated with dermatitis. COSHH requires potentially harmful exposures to be prevented or where this is not possible to be reduced. Some considerations of relevance include
The importance of controlling the risk posed by MWF is highlighted by the recent prosecution of a company who exposed employees to MWF whilst using lathes and milling machines. The company was fined £20,000 and ordered to pay costs of £4,447.46 for failing to adequately control the risks.
The HSE have also prepared a short guide on how to manager WRULD i.e. conditions effecting the shoulders, arms, elbows, hands and fingers.
Tasks which may pose a risk of WRULD include:
Employers should consider the risks posed by each task undertaken and where necessary put suitable and sufficient control measures in place, such as:
The European Agency for Safety and Health at Work (EASHAW) study has confirmed that MSD are the most prevalent for or workplace injury in the EU with 3 of 5 workers in the EU-28 reporting symptoms of MSD. The report includes evidence that the most common source of exposure was as a result of repetitive movement.
By way of highlighting the risk the EASHAW conducted a study of MSD in hairdressers. This not necessarily a group of employees that one would consider to be at risk. However, the report highlights the following risk factors
The report highlights that whilst the risks involved in a specific task may not be immediately obvious careful consideration is required to ensure that any risks are effectively managed. In the case of hairdressing it may be that consideration of whether to sit or stand whilst cutting hair and/or rotation of tasks and/or regular breaks would be sufficient to control the risks.
The dangers of WBV can often be overlooked. However, those driving vehicles off-road, agricultural vehicles or commercial trucks are potentially at risk. WBV exposure usually leads to back pain and discomfort which, taken as a whole, is one the main causes of employee absence from work.
Most commercial trucks and indeed many modern tractors have very capable suspension systems which reduce the risks of vibration being transmitted through the seat to the driver. For agricultural workers however even the best suspension may struggle to cope with the uneven surfaces found in the fields and this could lead to excessive exposure. This combined with long working days, sitting in the same position, jumping in and out of the cab and twisting and turning in the seat could all increase the risk of back pain.
The Control of Vibration at Work Regulations 2005 require employers to assess the potential vibration exposure and ensure that the same does not exceed the Exposure Limit Value (ELV) or Exposure Action Value (EAV). Where there is a risk that the EAV may be exceeded steps must be take the reduce the exposure so far as practicable. If the ELV is exceeded immediate action is required to reduce the exposure.
The EAV is presently 0.5 m/s2 (A8) and the ELV is 1.15 m/s2 (A8). The ELV and EAV are both set by reference to an 8 hour day and account needs to be taken of the fact that in the agricultural sector it is often the case, especially during harvest, that employees will work for double this amount of time in a single day.
Steps to reduce exposure could include
The HSE has provided detailed advice and guidance on the dangers of WBV and how to manage the risks which can be found at: https://www.hse.gov.uk/vibration/wbv/index.htm?utm_source=linkedin&utm_medium=social&utm_campaign=guidance-push&utm_content=wbv
This is an extracted version of an article prepared by Will Potts regarding air pollution.
The issue of air quality and a link to ill-health regularly appears in the news. The significant increase of vehicles in the UK, said to be 38.4 million at the end of March 2019 compared to 4 million in 1950 goes to some way in explaining why air pollution still remains a major concern for the population at large. Public Health England estimates that there are between 28,000 and 36,000 deaths a year as a result of poor air quality.
The issue of atmospheric or environmental air pollution has tended not to be on employers’ radars. The generally held view was that employers should only be responsible for controlling and reducing exposure to harmful substances created by their own activities. DAC Beachcroft have certainly dealt with respiratory claims where there was alleged exposure to diesel fumes, albeit with other substances, within an employer’s own premises. The issue of determining liability in those cases is relatively straightforward. The COSHH regulations would apply and an employer would be expected to adequately assess the risk of exposure to harmful substances, eliminate where possible and if not reduce the exposure as far as is reasonably practicable. Presently there is no specific work exposure limit WEL) for diesel engine exhaust emissions under the COSHH regulations.
The UK government has not introduced a WEL for diesel exhaust fumes although a limit of 0.05mg/m3 will come into effect on 21 February 2023.
As matters stand the concept of a bus driver being able to successfully sue his employer for injury associated with exposure to poor air quality on the open road, seems a remote.
That said employers who regularly have employees working in outdoor areas of known high pollution may need to give some consideration to taking measures to protect them. Any civil actions are likely to be brought under the Health & Safety at Work Act rather than the COSHH regulations. There would need to be very detailed consideration an issue of reasonable practicability. Some employers organisations and trade unions are already suggesting that workers be given personal monitoring equipment and greater consideration of job rotation between sites would need to be investigated. There are apps that also advise on areas of high pollution. However, it not altogether clear whether RPE would be able to filter out all pollutants. Generally speaking the provision of RPE over a lengthy period of time is not popular with employees or practical.
The medical conditions linked to air pollution are diverse ranging from asthma, impairment to intelligence, depression, an increased risk of lung or bladder cancer. The vast majority of these conditions are multifactorial, many related to lifestyle and not just employment factors. Establishing that a specific exposure on a specific day caused the specific condition will not be straightforward.
The BBC reports that brake dust from vehicles could pose as much of a risk to health as diesel fumes based on a report from King’s College London. The report says that metallic brake dust can cause inflammation of the lungs and reduce immunity increasing the risk of infection. Modern brakes include vanadium, which is also present in diesel fume, and is thought to have a detrimental effect on immune cells. This highlights the complexity of the issue of air pollution in our cities and whilst electric vehicles will not produce exhaust fumes there may well still be a risk posed by other aspects of the vehicle such as the braking system.
Employees who may work on the maintenance of vehicles or indeed in busy marshalling yards or similar may be at risk of exposure to brake dust and this risk needs to be fully considered by employers to ensure that it is being appropriately managed.
The potential harmful impact of toner for laser printers has long been known. A recent study, looking at printing centres in Singapore, has looked at the risks posed by toner which contain engineered nanomaterials. The report suggests that high levels of nanomaterials such as titanium dioxide, iron oxide and silica were found in the air. Whether such exposure poses a risk to human health is not decided but the report does highlight the need to be aware of the risks associated with nanomaterials.
This matter went before the Court of Appeal on the point as to whether the order of HH Judge Rawlings sitting in the County Court was correct to strike out the claimant’s claim where the Defendant was dissolved and had not been restored to the register prior to the hearing.
At first instance HHJ Rawlings was asked to consider whether, given that the defendant company had not been restored to the register, the claim against it was a nullity and therefore ought to be struck out. The application was made by the defendant by way of CPR 11 and/or 3. The claimant disputed the application and relied on Peaktone to say that once the restoration had been completed the fault would be remedied. However, the claimant could not explain at the hearing what steps had been taken to restore the defendant or when such restoration would be completed. Given the absence of evidence as to what the position was regarding the restoration and the low value of the claim, limited to £5,000.00, the claim was struck out.
The Court of Appeal upheld the first instance decision and found that the court had inherent power to strike out a claim under CPR 3.4. The judgment does raise points as to whether the insurer of a dissolved company can properly come on the record and make an application for strike out/contest jurisdiction but it was not necessary to decide this point and it was found that the judge did not err in striking out the claim where the defendant was dissolved and there was no evidence before him that it had been or was due to be restored.
The Court of Appeal however did give general guidance to insurers
“First, what is to be done in the difficult position facing insurance companies in the circumstances such as those facing these Insurers when they heard of the claim in 2017? An order restoring a company to the register might render insurers retrospectively liable for significant sums in proceedings which they have been in no position to resist. Without being prescriptive, we think that the wise course would be for such an insurer to notify the claimant of the dissolution of the company (if he or she did not know of it already) and to invite/require him or her to make an application for restoration of the company to the register and to apply to the court seised of the main claim for a stay of the substantive proceedings in the interim. In the absence of co-operation in this respect on the part of the claimant, the insurer should write to the court notifying it of the situation and asking it to consider making an order for a stay of its own motion until notified of any order for restoration. Following such a stay, if nothing is done after a sensible time, it would (we think) be open to the insurer to invite the court (of its own motion) to strike out the proceedings.”
Whilst in practice most insurers and claimants can agree how to manage the restoration of a defendant the need for a company to be restored in order for the court to deal with the claim appears to be becoming more apparent.
The claimant claimed damages in respect of NIHL caused by excessive exposure to noise during his time in the army. The claimant joined the army aged 18 in 2000 and was medical discharged aged 30 on 2013 due to his hearing loss.
The claimant alleged the MOD failed to provide him with suitable and sufficient hearing protection and failed to provide sufficiently regular medical examinations to identify the onset and development of the hearing loss. Liability was agreed at 75/25 in the claimant’s favour.
The claimant suffered NIHL of 12.4 dB and moderate tinnitus. He required hearing aids and tinnitus-retraining therapy. The claimant claimed for his reduced earnings due to the loss of career and the difference between his military earnings compared to those in a civilian career. He also lost military benefits, allowances and his pension. The claimant experienced difficulties on the open job market. The tinnitus also interfered with his sleep.
Damages were awarded on a gross basis at £733,333.00. A significant proportion of the award (£270,000) was compromised of the claim for future loss of earnings. General damages was relatively modest at £25,000 although the costs of hearing aids and tinnitus were very high at £61,694.
Whilst a majority of noise claims settle well below £10,000 and in most cases well below that there is always a risk, with a young claimant with significant impairment, that damages can be large. This is the second NIHL case involving the MOD where damages and reached several hundred thousand pounds.
This was a fatal mesothelioma case where the court was asked to look at the issue of dependency and the scope of such claims under the Fatal Accidents Act 1976.
The deceased, aged 55, and the Claimant fostered 2 children who had autism. The deceased did not work and provided care to the children. Following the deceased’s death the claimant gave up her employment to look after the children. The claimant claimed her loss of career as a dependency and the defendant argued that as foster children were not included within the scope of the 1976 act this head of claim could not be pursued.
The court found that the loss could be considered as a dependency as the claimant had suffered a pecuniary loss as a result of the deceased’s death. The loss was assessed by reference to the value of the care which the deceased would have provided rather than the claimant’s loss of earnings. The costs were found not to be subject to the usual 25% reduction for gratuitous care and assistance. The total award of damages was in excess of £900,000.
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