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Published 8 October 2020
Hello and welcome to the DACB Q3 2020 Disease Update. In this edition we will be covering the latest developments in disease litigation from COVID-19 to NIHL and asbestos claims.
COVID-19 is impacting all aspects of our lives. The owners/occupiers of outdoor playgrounds could potentially face a liability in respect of COVID-19 claims if they were found to be in breach of their duties under s.2 Occupiers’ Liability Act 1957. Simply stated the Act requires occupiers to take reasonable steps to ensure that visitors to the premises are reasonably safe. It is worth noting that liability for personal injury, which would include COVID-19, cannot be excluded or limited. Before reopening a playground:
The risk assessment ought to consider
Control Measures If a playground is reopened then signs should be placed at all entrances detailing the control measures to be observed including
The Government advises the regular cleaning of high traffic facilities. There will be a cost associated with the cleaning of these areas. It may therefore be more prudent, given the additional risks and costs associated with employees accessing the playground, to exclude high traffic facilities from operation. This could be done by enclosing the facilities or marking them with tape and signs as being out of action.
This case considered the issue of service of proceedings during COVID-19. The claimant served proceedings on the defendant’s offices following the national lockdown imposed by the UK Government on 23 March 2020. The defendant was unable to acknowledge service of proceedings as its staff were working from home and unaware that proceedings had been served as the claimant had failed to notify the defendant of the service or provide a copy by email.
This was an interesting decision in that it considers the general discretion of the court when facing procedural default caused by COVID-19 and the lockdown. The judgment sets out that the courts are aware of the practical difficulties caused by coronavirus and that litigants, and litigators, are expected to act accordingly. The judge said
“The world shifted on its axis on 23 March 2020 and it was incumbent on him as a responsible solicitor and an officer of the court to contact the Council to acknowledge that the situation had changed, and to discuss how proceedings could best and most effectively be served…It would be unconscionable in my view for the Claimant to benefit from the unprecedented health emergency which prevailed at the end of March (and which is still subsisting today).”
Unsurprisingly the Judge set aside the judgment in default, granted relief from sanctions and gave the defendant permission to file and acknowledgement of service and defence. This is an important case for any defendant who may have received judgment in default due to a failure to acknowledge proceedings when the UK Government message was work from home if possible and the defendant’s premises were closed.
We have previously covered the issue of ‘spiking’ in respect of reinsurance for mesothelioma matters. MMI had been granted permission to appeal to the Supreme Court but the matter was settled shortly before the hearing was due to take place. The decision in the Court of Appeal will therefore stand albeit the issue may not have gone away and could be subject to further challenge in the future.
The above order came into force on 06/10/20 and amends the Fatal Accidents Act 1976 to extend the class of persons entitled to bereavement damages to include cohabitees. The Order inserts s.2(A) into the Act which defines a cohabitee as any person who
(a) was living with the deceased in the same household immediately before the date of the death; and(b) had been living with the deceased in the same household for at least two years before that date; and(c) was living during the whole of that period as the wife or husband or civil partner of the deceased.
This remedies the incompatibility of the Act with the European Convention of Human Rights (Articles 14 and 8) following the decision in Jacqueline Smith v Lancashire Teaching Hospitals NHS Foundation Trust and others  EWCA Civ 1916
This claim related to asbestos exposure during the claimant’s employment with British Rail between 1956 and 1963. The issue between the parties was liability and causation. The Secretary of State, who had taken over British Rail's liabilities, asserted that the claimant had idiopathic pulmonary fibrosis, for which British Rail could not be held responsible. It was common ground that some of those carriages on which the claimant worked were likely to have contained blue asbestos/crocidolite. A key issue between the parties was the extent to which the ceiling panels which may have contained asbestos had been removed and the likely quantities of asbestos released. The experts agreed that the claimant could be considered to have asbestosis if his cumulative exposure to asbestos amounted to 25 fibres per millilitre per year (f/ml year). There was also an issue as to how the claimant's oral evidence should be treated, given that he had suffered a stroke in 2001 which affected his speech, memory and concentration.
The claim succeeded on the basis that the Court considered the claimant to be an honest witness and his evidence went unchallenged. There was no live lay evidence at trial with the claimant having given evidence which was recorded prior to the trial. The experts diverged in their estimations of the claimant's exposure to asbestos dust due to their differing views as to the factual reality of his working life, and both parties were content for the court to make broad findings about cumulative exposure.
The Court found that the claimant would have been exposed to concentrations of asbestos dust in the range of 20 to 100 f/ml on a regular basis. Therefore, on the balance of probabilities, his total exposure would have exceeded 25 f/ml years meaning his claim succeeded on breach and causation.
It is likely that claimants will rely on this decision in support of claims relating to historic exposure to asbestos. The only evidence before the Court was the claimant’s and given his difficulty in communicating claimant’s may rely on this decision when producing statements from claimant’s dealing with exposure decades ago. This case is disappointing for defendants, particularly in the context of the guidance in Bannister regarding the credibility of evidence.
Netflix have launched legal action against a North London studio after the discovery of asbestos halted production. Papers filed at the High Court show that the production had a troubled stint at the studio with a leaking roof, ceiling tiles falling down and on one occasion asbestos is said to have allegedly fallen down on to a construction managers face. Netflix ultimately deemed the studio unfit for use and are now suing the studio for damages incurred in delaying production. Following investigations asbestos was discovered in the roof voids and on top of high beams, which had allegedly not been treated. The defendant contends that Netflix were made aware of the presence of asbestos and has launched a counter claim.
It is easy for us to think of asbestos as a historic issue. This is an interesting example of how people are potentially still bring put at risk of exposure to this hazardous substance in 2020.
Chris Gower from our Bristol office covers the decision in Hoy v Secretary of State for Transport, where the judgment against the claimant’s solicitors firm for wasted costs in pursuing a hopeless case was successfully appealed in March 2020.
On it appeal it was re-affirmed that once it was clear that the Claimant’s expert was not attending trial the case was hopeless. However, whilst the judge found that on balance counsel had not been booked for trial he did not consider the email from the claimant’s solicitors regarding the identity of counsel instructed to be ‘dishonest’ as the claimant’s solicitors believed they were constrained by privilege in the information provided and it was therefore inappropriate to draw the adverse inference.
It was found that this was not an application where the defendant could properly allege that the advice given by the claimant’s solicitors was negligent because as the claimant had not waived privilege, the defendant could not identify what advice had been given. Therefore, the defendant had to show that claimant’s solicitors’ conduct was improper or unreasonable. The judge at first instance did not consider fully whether claimant’s solicitors’ conduct amounted to an abuse of process/was improper and so was flawed.
Whilst any competent solicitor would have advised the claimant to discontinue in the circumstances, it was not considered improper for the solicitor to continue to act once he had given firm advice about the prospects of success. An attempt to succeed on the basis of a legitimate evidential foundation is not improper and does not amount to an abuse of process even if the claim was hopeless and the prospect of success “fanciful”.
There was no duty for claimant’s solicitors to inform the defendant that the expert was not attending trial and doing so weakened any negotiating position which undermined the finding at first instance that claimant’s solicitors were playing a ‘dangerous game of chicken’ to extract a commercial offer. In light of this and there being no dishonesty, this did not constitute abuse.
“If a client of substantial means instructed his solicitors to run a claim to which QOCS did not apply right up to trial in the hope of an offer and then discontinue in no offer was made the court would order the client to pay the costs if he discontinued. In my judgment that would be a risk for the client. I do not consider that it would be improper for the solicitors to continue to act on those instructions. Further, I do not consider it to be an abuse of process to continue with a claim in the hope of an offer of compensation even if one is not prepared to go to trial.
Further, I do not consider that the position is changed simply because QOCS applies.”
Holmes v S & B Concrete Limited  EWHC 2277 (QB) has thrown into the spotlight the issue of restoring dissolved companies to the Register for the purposes of bringing a personal injury claim.
The claimant brought a NIHL claim against one of his former employers. The relevant time line is:
In the Particulars of Claim, the claimant pleaded his date of knowledge was less than 3 years before the issue of proceedings or in the alternative that he should be granted s.33 discretion to proceed out of time.
The case was listed for a preliminary hearing on limitation at which it was found that the claimant’s date of knowledge was mid-2007 and that it would not be equitable dis-apply the limitation period pursuant to s.33. At this point the claimant’s counsel raised a fresh argument based on the case of Financial Services Compensation Scheme Limited v Larnell (Insurances) Limited (in liquidation)  EWCA Civ 1408.
The argument was that the restoration of the company had retrospective effect such that the company was deemed to have been in voluntary liquidation throughout that period and that limitation had ceased to run and therefore the general moratorium on limitation would apply. This argument was rejected by the judge at first instance.
The claimant appealed, submitting that the Financial Services case ought not to be distinguished because his claim was for personal injury and that case was not and that the judge erred, in the light of the authorities which it was asserted supported a general proposition that limitation periods in respect of claims against a company cease to run when it goes into liquidation: the judge’s findings in respect of S.33 were not appealed
The appeal was dismissed by Mr Justice Martin Spencer who held that the interpretation that the Claimant sought to place on the Financial Services case could not have been intended by Parliament when it enacted the provisions of the Companies Act 2006 that deal with restoration. Had that been so the limitation period would never have run and a direction that the period between the dissolution of the company and the order to restore being made would be unnecessary.
The appeal judge ruled that the trial judge had correctly distinguished the Financial Services case. In the vast majority of cases the liability of the insurance company would be well under the statutory minimum level of insurance of £2 million, the result being that the whole of the claim would be covered by the insurance and would therefore be “outside the liquidation" whereas in Financial Services the claim was not “outside the liquidation"
Acknowledging that there could be some cases in which the liability of the insurance company could be insufficient to cover the whole of the claim, the judge suggested that it could be made a condition of restoring the company to the register that any claim against it be restricted to the liability of the insurer under the insurance policy with the result that the desirable result of keeping the claim distinct from the situation in Financial Services. This would ensure that a claimant whose claim was otherwise unmeritorious because the necessary knowledge was acquired more than 3 years before the issue of proceedings and in respect of whom for the court to exercise its discretion to extend the limitation period would be inequitable would not gain an undeserved windfall.
At appeal Mr Spencer J made an observation which could prove to have a significant impact on insurers were his suggestion to be adopted stating:
“It is unfortunate that, in the present case, the defendant company was restored to the Register without notice of the application being given to the company’s insurers who were the ultimate target for the claimant in making his application for restoration, and that the order was made without, apparently, consideration being given to the resolution of any issue between the claimant and the defendant’s insurers in relation to a possible defence under the Limitation Act 1980. I would encourage the Rules Committee to give consideration to a change in the rules, requiring such notice to be given to a relevant insurer when such an application is made for restoration.”
If adopted, this would give insurers in such situations the opportunity at an early stage to bring forward for determination any limitation challenge that there may be and, if successful, prevent the restoration of the company to the Register.
However, any provision which would require notification to the insurer, if it is going to be effective in the way envisaged by Spencer J, will need to have around it appropriate provisions to enable the insurer to identify and deal with any limitation issues that there may be. This would require the prospective claimant being obliged to give full disclosure and provide both their expert and lay witness evidence without which the insurer would be unable to investigate and identify and limitation issues. In the absence of such an open approach, the judge’s vision of a unified approach to limitation and restoration could not be achieved.
If we do see a move towards insurers being notified of applications to restore then it will be necessary for them to be alert to applications and to ensure that their legal advisers are instructed in a timely manner in order that steps can be taken to identify and limitation arguments so that they can be properly argued at the restoration hearing.
The processing of seafood, specifically fish and shellfish ready for consumption can lead to employees in the industry developing occupational asthma. A review recently undertaken by the HSE Principal Scientist reminds us of the risk of occupational asthma to workers employed in the seafood processing industry. The review stemmed from surveillance work carried out by the University of Manchester in relation to the SWORD reporting system as well as airborne allergen monitoring data recorded at HSE’s Science and Research Centre.
The review concluded that there was an excess incidence of occupational asthma in the UK seafood processing industry during 1992–2017. The review highlighted that the incidence rate for occupational asthma in seafood processors was 70 per 100,000 workers compared to 2.9 in all other industries.
The conclusions recommend that further investigations of current levels of respiratory ill-health and the sources of allergen exposure are warranted. Employers and insurers must be alive to this risk and ensure that adequate control measures are in place to protect workers in the seafood industry. As has been the case with silicosis recently, it is highly possible that the sector may find itself subject of a review by the HSE and/or Parliament with additional control measures considered in order to protect worker’s health.
In continuing developments around Chronic Traumatic Encephalopathy (CTE) and Australian Football player, Shaun Smith, has been awarded AU$1.4 million as a result of brain injuries suffered after he was knocked unconscious whilst playing.
In other news another player, Danny Frawley was posthumously diagnosed with CTE following his death in a car crash last year. This is the latest in a string of diagnoses for former Australian Football players.
Some positive news reported in recent months regarding a new potential treatment for lung cancer. In July it was reported that AstraZeneca had signed a deal with a Japanese drug company to develop and market a potential new cancer treatment. The deal, said to be worth up to £4.7billion, will target the Trop2 protein which is over produced in most breast and lung cancers. The treatment would work by honing in on the cells that produce too much of the protein allowing the treatment to deliver selective chemotherapy to certain areas, rather than subjecting the body to whole treatment. There is still a long way to go as the treatment would require market approval, but it is certainly a positive move towards treatment for lung cancer, which would hopefully include mesothelioma.
There have also been positive reports coming from America with regards to immunotherapy. The results of a US Trial showed that immunotherapy with chemotherapy improved survival rates from 12 months to 20.4 months. The patients received a combination of the drugs on a 3 weekly cycle for up to 1 year, improving the survival rate. We expect that trials into the use of immunotherapy drugs will continue and this will continue to be a live issue in mesothelioma claims certainly for the foreseeable future.
The HSE confirmed in July that there was almost no decline in the number of mesothelioma deaths for the previous 5 years. 2, 446 people died from mesothelioma in 2018, with similar numbers expected to pass away from the disease in 2019 and 2020. The figures show that we are still in the peak number of deaths from mesothelioma.
Whilst deaths are expected to eventually decline given the decline in the production of asbestos products in the 1980’s, the UK Government did not completely ban the import of asbestos until 1999. To this day asbestos remains present in schools, hospitals, houses and buildings across the country and only time will then when the numbers will begin to decrease.
There have been reports of a former bakery worker having died from mesothelioma following the use of asbestos gloves in the 1970s. During an inquest at Oxford Coroners Court the Coroner read evidence that the deceased had worn asbestos gloves whilst working at a bakery. The deceased’s job was to a make sure that there was the correct number of tins ready for the bread mixture which would then go into an industrial oven. The deceased was allegedly advised by his employer that even though the gloves were made from asbestos, they were not dangerous as the asbestos was in cloth form. The deceased is said to have worn the gloves at intervals throughout the working day and the gloves were shared by colleagues.
We are reminded by incidents such as this of the changing profile of the mesothelioma claimant from the traditional occupational exposure to cases such as this.
The link between toxic chemicals and Parkinson’s Disease has gained attention recently with the publication of a book by a retired astronaut, who was diagnosed with the illness in his 40s following exposure to toxic chemicals in his 20s. The author studied the astronaut, who had previously worked at a petrol station using degreasers to clean car engines and on a farm using pesticides. As an aviator he would also clean engines readying them for test flights. The suggestion in the book is that we can no longer ignore a connection between the use of toxic chemicals and Parkinson’s.
The primary issue in these types of cases is causation. It is difficult to prove a causative effect between the use of toxic chemicals and developing Parkinson’s. It is possible with time that studies will be conducted and causation may be established. Whilst we are not currently there, we consider that this is certainly a developing issue and one to watch for the future.
For more information or advise on any of the topics coverd above, please contact one of our experts in our disease team.
+44 (0)117 918 2122
London - Walbrook
+44 (0)20 7894 6895
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