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Published 7 October 2021
Hello and welcome to the DACB Q3 2021 Disease Update. In this edition we will be covering the latest developments in disease litigation including COVID-19 and secondary claims; dementia/CTE and sport; mesothelioma show cause and costs budgeting; and “forever chemicals”. There is no DACB Unreported in this edition but we shall be returning to that in Q4.
With the easing of COVID-19 restrictions the Government has issued guidance to aid employers return to normal . The guidance is designed to be practical and sector-specific to enable employers to identify risks that COVID-19 creates and to take pragmatic measures to mitigate them including: providing washing stations, frequent cleaning of work areas, PPE and face coverings, and increasing ventilation. The removal of social distancing is qualified with considerations about how contact between employees can be managed.
There is a clear expectation on employers to carry out a COVID-19 risk assessment and share it with the workforce. The assessment should identify control measures that need to be implemented to reduce risk of COVID-19 transmission to the lowest reasonably practicable level.
As we referred to in our recent article “COVID-19: the end is nigh” employers need to keep up to date with developments such as the Winter Plan A and potentially Plan B and be ready to adjust and adapt their risk assessments and working practices as new guidance is issued.
Many employees and employers alike will have welcomed the ending of restrictions and the ability to return to the workplace. However, flexible working is here to stay and there is a possibility that the Winter Plan B could require a return to home working in the future.
The ability to manage and supervise employees and the means by which they are supported remains an issue for employers when the employee is working remotely. It would be fair to say that there have been undoubted pressures on everyone during the last 18 months, some of it work related and some it not. Whether this pressure, which can be beneficial to some, develops into stress and a stress related condition will depend on the individual. In some cases people are able to deal with stress on a day to day basis without suffering an injury. However, chronic exposure to stress increases the risk of an individual suffering from burn out.
Burn out is a recognised condition which is a state of mental, emotional and physical exhaustion causing a range of symptoms. The risks of burn out can be managed in the same way as steps taken to reduce the risk of stress. Employers and employees both need to be aware of the risks of stress and burn out and be provided with the tools, resources and support to manage the risk of the same. These could include:
With remote working and the risks associated with that, which we have covered in detail before, it is important, given that flexible working and/or home working will be with us for the foreseeable future that employers have a plan to manage the risks of stress.
Most symptoms of COVID-19 resolve within 4 week of infection. Where symptoms last between 4 and 12 weeks the condition is known as “ongoing symptomatic COVID”. Where symptoms last more than 12 weeks the condition is known as “Post-COVID Syndrome” aka long COVID.
Long COVID is a collection of symptoms the nature, duration and extent of which vary from person to person but can include fatigue, shortness of breath, cough, headaches and tinnitus or earache.
There does not appear to be connection between the severity of the initial infection and the risk of developing symptoms associated with long COVID. Those who had been double vaccinated are thought to be less at risk.
The means of controlling the risk of long COVID are the same as managing the risk of direct COVID-19 infection.
The Industrial Injuries Advisory Council (IIAC) has so far declined to classify COVID-19, and by extension long COVID, as an industrial disease. If the IIAC were to recommend this and if the Government were to accept it then sufferers would be entitled to Industrial Injuries Disablement Benefit (IIDB). The IIAC has however said that:
“the evidence of a doubling of risk in several occupations indicates a pathway to potential prescription and the Council expects that future data will enable a better understanding of the effect that Post-COVID-19 syndrome may have on loss of function. The Council will recommend prescription if and when there is strong enough evidence that occupational exposures cause disabling disease on the ‘balance of probabilities’.”
This case involved an appeal from the CMC judgment of HHJ Gore QC in a mesothelioma claim. The Claimant, acting as widow and executrix of the Deceased, had previously sought and been granted permission to amend her Particulars of Claim. The CMC was effectively treated as a show cause hearing and judgment was entered against the defendant. The initial indication from Master Thornett was that the matter be listed for a split trial was dispensed with. The defendant appealed the order of HHJ Gore QC which was accepted by the Court of Appeal on the grounds that:
Whilst practitioners accept and work on the basis of speedy show cause hearings it is not the case that these can take place without notice and the parties are expected to be given notice of the procedure being followed so they can prepare accordingly.
Following on from the above this case highlights when the show cause procedure ought to apply and how the Masters will apply the test for liability on the available evidence. The claimant, a former pupil of the defendant’s school from 1969 to 1973, claimed damages in respect of mesothelioma caused as a result of asbestos present in the school. The claimant alleged that he used to dry his sports kit on asbestos lagged pipework in the boiler room. The claimant relied, inter alia, on a Department of Education (DoE) memo from 1967 which was issued to all schools regarding the dangers of asbestos exposure.
The Master at the show cause found that the defendant ought to have known of the risks of asbestos exposure and that there was no realistic prospect of a successful defence and judgment was entered. The defendant appealed arguing that the Master has applied too high a standard when considering whether there was a reasonable prospect of defending the claim.
The appeal was rejected on the basis that Master was right to take account of the available evidence i.e. the 1967 DoE memo and the 1965 Times article when considering the defendant’s date of knowledge and further that the Masters as specialist asbestos judges were correct to proceed in cases where there may not be full engineering evidence available. The show cause procedure is a rough and ready one but the question to be asked is whether the defendant can reasonably defend the claim. This is a relatively low bar but the defendant must be able to put forward a coherent defence at the show cause stage.
In this fatal mesothelioma matter the claimant claimed damages for financial dependency under the Fatal Accidents Act 1976. This included monies which the claimant depended upon as a result of the deceased acting as the primary care for foster children. The claimant worked full time prior to the deceased’s death but gave up work to look after the foster children. At first instance damages were awarded (see our 2020 Q1 update). However, following trial it came to light that the children were no longer in foster care and therefore the factual circumstances giving rise to the dependency no longer existed. The matter has therefore been remitted to the trial judge to reassess damages as regards the dependency.
In this case the deceased worked for the defendant at a third party’s premises between 1968/69 and 1972/73. The deceased’s medical records included an entry which referred to the use of asbestos materials at the third party’s site during the 1970s. There was no evidence from the deceased and the claimant relied on her own recollection of the deceased’s account of his work together with evidence from 2 other men who worked at the site who had unfortunately died before they could give evidence at trial. This evidence tended to show that the deceased would have been exposed to asbestos during his employment.
The judge considered that the evidence of the claimant fell within 3 main categories. Firstly, the claimant’s evidence based on her conversations with the deceased following his diagnosis and prior to his death as to his work. Secondly, the claimant’s recollection of her conversations with the deceased about his work between 1968 and 1978. Thirdly, the claimant’s recollection of events after 1973. Having considered the evidence the judge considered that the second category of evidence should be treated with caution but overall the claimant was a credible witness. Having accepted the claimant’s evidence and taking the whole of the evidence into account the judge was prepared to accept that the deceased was negligently exposed to asbestos whilst working for the defendant.
This claim serves as a reminder that claims can proceed on relatively remote evidence and the totality of the evidence needs to be considered in the round when assessing the merits of a claim. The absence of direct evidence from the deceased, or in this case his colleagues, does not necessarily mean that the claim will fail if there is sufficient alternative cogent and coherent evidence available.
We previously reported on his case in our 2021 Q1&2 update. By way of recap at first instance the judge refused to allow an award for lost years based on the claimant’s dividend income resulting from his ownership in the family business. This approach was rejected by the Court of Appeal in January 2021 who considered that the dividend income was a result of the claimant’s continued hard work, not a return on passive investment. It therefore formed part of the claimant's own future earning capacity and was a personal loss which could not be disposed of in his will. The matter was then remitted back to the High Court for an assessment of damages. The lost years claim was assessed at £2.44m in May 2021.
Following the assessment of damages the defendant sought to appeal on the grounds that (1) the judge had misinterpreted and misapplied the Court of Appeal judgment and (2) the judge had misinterpreted the claimant’s intention to transfer his shareholding to his wife and sons over time. The appeal was rejected on both grounds.
The claim concerned the discrete issue of what success fee ought to apply when the parties agreed settlement of all heads of loss at the doors of the court. The hearing proceeded only to approve the Tomlin order and decide the issue of whether the matter had settled “at trial” or “before trial”. If the matter was settled “at trial” then the claimant would be entitled to a 100% success fee but if not the success fee would be 27.5%.
At the initial hearing the judge was asked to determine the costs point which he did in the claimant’s favour. At the costs assessment the claimant submitted that the matter had concluded at trial under CPR 45.15(6) on the basis that the assessment of damages hearing had begun albeit only to determine the issue of costs and therefore the 100% success fee ought to apply. Master Rowley in the Senior Courts Office disagreed and found that the success fee was to compensate claimants for the risks of attending a contested hearing where there was a risk they may lose. This is was not the case here as all heads of loss had been agreed.
The claimant appealed. The appeal was dismissed and Calver J held that the wording of CPR 45.15(6) referred to the final contested hearing of the claim i.e. the substantive elements of the matter being damages and breach of duty. At the time that the original hearing to approve the Tomlin order had been opened in this case all the substantial elements had been dealt with and therefore the 100% success fee could not apply.
There is a general convention that costs budgeting will not apply to claims in the Asbestos List. 3DPD 5.3 of the White Book sets out the position as:
“The convention of dispensing with costs budgeting in asbestos disease cases has been reinforced by the introduction of PD 3E paragraph 2(b) which indicates that in all cases where there is limited or severely impaired life expectation (five years or less remaining) the Court will ordinarily disapply costs management.”
In this case the defendant sought to displace the convention against costs budgeting on the basis of;
Master Davison dismissed the defendant’s arguments. Whether a specific matter was a fatal or living claim was not relevant as the additional administrative burden of dealing with costs budgeting a specific fatal matter would naturally impact on the speedy resolution and progression of the living claims within the Asbestos List. The complexity of the issues and the fact that it was contested was not material as it was common place for asbestos claims to be highly disputed. Master Davison concluded:
“…these factors were considered corporately by the Asbestos Masters and by the senior judiciary who devised the present system and approved the convention that costs budgeting should not usually apply. The factors that are generally in favour of costs budgeting were judged to be subordinate to the factors that I have mentioned. I would make two further observations, which are related. The first is that there is no evidence that the process of detailed assessment is not adequately controlling costs in asbestos cases. If the costs of asbestos cases were placed against the costs incurred in other cases of industrial disease, which have been costs budgeted, I would be surprised if there were much, if indeed any, difference. At any rate, if a defendant wishes to displace an important and well-established convention, then it seems to me that it is for that defendant to show, rather than merely assert, that costs in asbestos cases are disproportionate or not adequately controlled. Secondly, QB Masters, Chancery Masters and Costs Judges do not necessarily share this defendant's expressed confidence that costs budgeting controls costs better, or more effectively, than detailed assessment. This is a large topic and a complex and somewhat sensitive issue. The present hearing is not, perhaps, the forum to debate it at any length. Suffice it to say that I do not agree with the Defendant's characterisation of this case as presenting a dichotomy between the tight control of costs on the one hand and a free-for-all on the other. That is, in my view, inaccurate.”
We have been tracking the issue of Chronic Traumatic Encephalopathy (CTE) in our previous updates (2020 Q4, 2020 Q1, 2019 Q3). New evidence and incidences of CTE and dementia associated with sport continue to develop.
The BBC reported in October 2019 on a study which showed that footballers were 3.5 times more likely to die of neurodegenerative brain condition. Further research shows that those playing in a defending position are the most at risk of developing dementia being 5 times more likely to have dementia than non-footballers. The research further indicated that the player’s risk was increased based on the duration of his career. New rules are being introduced to limit the amount of heading in the professional and amateur sport.
Football is not the only sport to be affected by the potential impact of CTE or dementia. The BBC again reported in August 2021 on a study which showed that a single season of playing professional rugby caused a decline in blood flow to the brain and cognitive function. The research suggests that not only concussive injuries but also repetitive contacts and sub-concussive injuries have contributed to the reduction in blood flow and cognitive function. Not all of the contacts occur during a match and many will take place during training.
This is an issue which is likely to continue to develop as new evidence emerges and research is completed. There are potentially profound implications for both professional and amateur sports.
There is an increasing focus on the rising tide of dementia in the UK’s aging population. Dementia arising from sport is only one of many potential causes of dementia and research continues apace into other potential factors.
Alzheimer’s Research UK refer to a published a study suggesting a link between transport noise and dementia. The research looked at almost 2 million people aged over 60 in Denmark. During the study period (2004-2017) over 100,000 new cases of dementia were identified. The research showed an association between the risk of dementia and exposure to road and railway noise. It is not possible to say whether the noise exposure was the sole cause of the condition and there may have been many other risk factors at play which were not covered by the study. Previous research has suggested a link between air pollution and dementia. Whilst this is of concern generally there are unlikely to be any significant claims risks at this stage given that dementia is a multi-factorial condition and proving that a single source of exposure caused the condition would be a very high hurdle for potential claimants to clear.
Another potential cause of dementia is hearing loss. There is emerging evidence that those suffering from mild hearing loss are 2 times more likely to develop dementia. Those suffering from moderate hearing loss see their risk increased 3 times. Many people have been exposed to excessive levels of noise during their lives and some of that exposure has been occupational. As with transport noise above proving that hearing loss caused dementia will be difficult on the present scientific evidence but as matters progress it may be possible that employers who have negligently caused their employees to suffer NIHL could be faced with claims involving dementia either current or prospective.
We have closely tracked the US litigation around glyphosate. In a related development litigation has begun in the US relating to chlorpyrifos. Chlorpyrifos is an organophosphate insecticide which has been available since the 1960s. Production of the chemical ceased in 2020. The US EPA had previously said that chlorpyrifos had the “potential” to cause neurodevelopmental defects in humans but did not ban the product. In April 2021 the US Court of Appeals ordered the EPA to either ban the product or declare it safe. Various states in the US have already banned the use of chlorpyrifos.
Litigation is ongoing against the manufacturers of chlorpyrifos in respect of children who are alleged to have suffered neurological injuries. Litigation is also ongoing from farm and packing plant workers who allege that chlorpyrifos caused them or their families injury. These cases have the potential to go the same way as the glyphosate litigation and could prove to be expensive especially if dealing with minors suffering brain injuries. A significant risk is that the manufactures could be penalised on punitive damages if they are found to have knowingly sold a product which was harmful without appropriate warning.
The use of chlorpyrifos has been restricted in the EU since January 2020 following EFSA’s finding that no safe exposure level could be determined. Chlorpyrifos was banned in the UK in 2016.
As with glyphosate this has the potential to become a significant area of litigation in the US and as we have seen it is likely that such litigation would extend to other jurisdictions.
PFAS or perfluoroalkyl and polyfluoroalkyl substances are a group of manmade chemicals which are widely used in variety of everyday products including makeup. PFAS are known as “forever chemicals” as they are incredibly resistant to heat, oil and water and do not break down in the environment. This makes them ideal for things from firefighting foams to non-stick pans. However PFAS have been associated with adverse health effects in humans including growth, learning and behavioural problems, to cancers, immune system disorders, thyroid disease, fertility issues and obesity.
As one would expect the US has been at the forefront of litigation with several successful class actions being made against producers and users of PFAS. Litigation is not just related to injuries sustained due to exposure but also as a result of the environment impact of the chemicals. For more information on this litigation see Duncan Strachan’s article PFAS: the risks that the “forever chemical” poses to the environment and the resulting claims.
In Washington State, USA, 3 teachers have been awarded $185m in damages following a claim against the manufactures of fluorescent lights. The teachers alleged that they suffered brain damage as a result of exposure to polychlorinated biphenyls (PCB) used in the lights at the school where they worked. This was a jury verdict and the defendant has reserved the right to appeal maintaining there is no evidence that the claimants were exposed to unsafe levels of PCB or that any such exposure caused injury. It was further noted that the products involved in the suit have not been made for more than 40 years although there is evidence to show that there are millions of the products still in use. PCBs were banned in the US in 1979 due to health concerns.
The use of PCBs is prohibited in the UK and products containing PCBs must be removed and disposed of once discovered save for very limited exceptions. The production of PCBs ceased in the UK in 1981.
In some ways this mirrors the dangers posed by asbestos which has not been used in modern buildings for a long time but where the risks are still real given the prevalence of the material. There does not appear at present to be a ground swell of further claims relating to PCBs in the US or other jurisdictions.
For more information or advice, please contact one of our experts in our disease team.
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