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Published 1 abril 2019
The claim came before Master Thornett essentially to consider whether a PPO was an appropriate mechanism to resolve the issue of payment of immunotherapy costs. Liability and damages (except treatment costs) were agreed. The insurers had agreed in principle to fund the costs of private immunotherapy treatment and had offered to do so by way of an indemnity agreement.
The Master concluded that a PPO was not appropriate to deal with the issue of treatment costs given that the future treatment and costs were unknown at the date of the hearing and that would not remain the same in the future. When reaching is conclusion the Master noted that a PPO had not been pleaded by the claimant during the currency of the claim and that the issue had been raised only shortly before the hearing. Given the late notice of the issue the medical experts were not given the opportunity to comment on the duration of cost of immunotherapy or any future treatment and there was insufficient time for the defendant/insurers to consider how such future treatment could be defined within the scope of a PPO.
It was acknowledged that whilst a PPO can incorporate a provision to vary, there is no obligation to do so and so no provision for the defendant to question or challenge any change in treatment. The order sought by the claimant at late notice did not address these concerns (although the claimant did suggest that he was amenable to amendments).
Master Thornett found that drawing upon interim payments was a far more flexible and appropriate tool than a PPO, especially when short notice hearings can be obtained in the Asbestos List. Master Thornett was not persuaded that a PPO through a trust was proportionate for anyone with a limited life expectancy and felt that interim payments were preferable to PPOs by a ‘wide margin’. In cases where the claimant has better evidence on future treatment, has pleaded and sought a PPO throughout and serves witness evidence regarding suffering anxiety as a result of this claim, this wide margin could be narrowed.
Following the decision in Deborah Blake (as widow and Executrix of Paul Blake (Dec’d)) v Mad Max Ltd  EWHC 2134 Peter Morton of Crown Office Chambers provides a useful and informative assessment of the rationale for a Regan award in respect of the loss of society of a spouse which can be found here.
Peter's conclusion is reproduced below:
Mesothelioma: Secondary Exposure: Overalls
John Carey (as representative of Lydia Carey (Dec’d)) v Vauxhall Motors Limited  EWHC 238
The claimant worked for the defendant between 1973 and 1979. The Claimant did not allege that he worked with asbestos directly but it was alleged that he came into contact with asbestos whilst at work. The Claimant wore overalls at work which he took home and the deceased would wash them.
The defendant accepted that it owed a duty of care to the deceased (Magereson v JW Roberts Ltd  PIQR 358, Maguire v Harland & Wolff Plc  EWCA Civ 01)
The defendant argued that any exposure to the asbestos suffered by the claimant was trivial and did not give rise to a foreseeable risk of injury either to the claimant or the deceased. It was further argued that the deceased could have been exposed to asbestos from other sources i.e. the claimant’s subsequent employment.
In respect of the defendant’s submissions HHJ Walden-Smith stated:
“…as it is currently impossible to identify the ‘guilty’ fibre or fibres, all employers are subject to a duty to take reasonable care to prevent exposure of its employees, and members of their families, from inhaling the asbestos that might cause mesothelioma. The court has to consider whether Vauxhall fulfilled its duty to take reasonable care by taking all practicable measures to prevent Lydia Carey, in the light of the known risk that asbestos dust, in inhaled, might cause mesothelioma. That is the case regardless of any potential exposure attributable [elsewhere].”
In any event the court found, notwithstanding the conflicting evidence, that the claimant was exposed to significant levels of asbestos whilst working for the defendant. Accordingly the exposure was more than trivial and in light of the decision in Bussey it gave rise to a foreseeable risk of injury and the defendant was found in breach of duty.
This case supports the court’s approach taken in Bussey and pushes the reasoning adopted in Williams v University of Birmingham further into the past.
Mackenzie v Alcoa Manufacturing (GB) Ltd  EWHC 149
The case of Keefe v Steam Packet Ship Co continues to have a renewed impact in disease litigation (see our Q4 update from 2018).
This appeal was in relation to a deafness claim relating to employment from 1968 to 1976 in an aluminium processing plant. The Claimant was an electrician and alleged he work in various areas of the factory where he alleged was exposed to noise. The amount of time spent on different machines would vary but the Claimant alleged he was exposed to noise throughout his day.
He claims he was never more than a few feet from machinery and had to shout or use hand signals to communicate.
The expert engineering evidence concluded that there were some areas of an aluminium processing plant where the noise levels exceed 90dB(A), but that the average level for someone carrying out the Claimant’s work would be unlikely regularly to exceed such a level. The calculations were based on measurements the expert had taken at a similar factory in 1989, where noise levels varied widely. The report also said:
“…without observation of contemporaneous noise surveys/measurements from the premises at which the Claimant worked, it is not possible to demonstrate, on the balance of probability, that his average daily noise exposure level would have reached or exceeded 90dB(A) during these period of employment. Hence substantiation of this claim on engineering grounds would be very difficult.”
At the original trial the Claimant sought to rely on the lack of noise surveys, as evidence that none had been carried out and that the Claimant’s evidence should be assessed benevolently as per Keefe. The Defendant argued that as the exposure was 50 years ago it is not surprising that no documents were available and did not necessarily mean none were carried out. There was a discrepancy between the Claimant’s evidence as to noise levels and that of the engineer. At first instance the judge preferred the evidence of the engineer that average noise levels would not exceed 90dB but accepted that there were areas of the factory where noise levels would have exceeded 90dB.
On appeal it was accepted that the trial judge’s assessment was careful and considered having heard the live evidence. However, it was held that the trial judge was wrong in saying that a duty to conduct noise surveys only arose from 1973 with the publication of the Code of Practice. On appeal it was held that such a duty arose from 1970 being 2 years after the 1968 edition of ‘Noise and the Worker’. Both ‘Noise and the Worker’ and the 1972 Code of Practice are non-binding but we can expect Claimants to seek to argue that there is a binding duty to undertake noise surveys from 1970 if one of the 6 factors from ‘Noise and the Worker’ are met being:
Often there will be limited evidence on these issues, but we can imagine that it will not be difficult for Claimants to establish that Defendant employers should have answered ‘yes’ to one of these questions.
The trial judge distinguished Keefe on an number of grounds, mainly that in that case there was positive evidence that no noise surveys were carried out but in the index case documentation is likely to have been lost. It was also distinguished on the basis that Keefe involved post-1989 exposure so there was a statutory duty to undertake noise surveys. The greatest reliance was placed on the fact that in the index case there was engineering evidence to more accurately assess noise levels.
On appeal it was held that it was wrong to distinguish Keefe as there was limited evidence that no noise surveys had been carried out. The engineering evidence simply served to explain why it was now not possible to establish what level of noise workers would have been exposed to and so serves to underline the significance of the absence of such surveys. Had the Claimant’s evidence been assessed benevolently there would have been a finding of breach of duty. Given the finding on there being a duty to conduct noise surveys from 1970, distinguishing Keefe on the basis that the 1989 Regulations did not apply, did not hold water.
It was held that a benevolent interpretation of the Claimant’s evidence would be that the noise level would reach or exceed 90dBA and that the expert evidence was unable to disprove that this could not have been the cause of his hearing loss.
The Claimant argued that post the Code of Practice in 1972 any exposure above 90dB(A) was in breach of duty irrespective of whether the exposure over a working day, the lep’d, was lower. This argument was not addressed by the trial judge other than the broad conclusion that his finding was that it was unlikely that the appellant was exposed to noise above 90dB(A).
On appeal it was held that this should have been explicitly dealt with by the court as it formed a large part of the submissions and it was incumbent on the judge to explain why he was rejecting the claimant’s arguments or why he preferred the defendants. The Court of Appeal judgment does not give a view as to whether the Claimant’s argument is correct in principle, only saying that “the judge ought expressly to have addressed this issue and given his reasons for rejecting it, if reject it he did”.
The trial judge also failed to deal with an issue of whether the duty changes from 1972 from above 90dB(A) to 90dB(A) or above. It was held that the judge erred in not addressing this. The judgment proposed remitting this to the county court for resolution but the parties did not seek this and the order indicates that the Defendants will be appealing.
Whilst potentially unfavourable this case may only really be of benefit to claimants in matters where the defendant is still trading. Where companies are dissolved we can seek to distinguish Keefe on the basis that it cannot be known whether noise surveys were undertaken and when documentation would have been lost.
NIHL: Smoking and Hearing Loss
A Japanese study of more than 50,000 employees has found that smokers have a 60% increased risk of suffering from high frequency hearing loss and a 20% increased risk of suffering from low frequency hearing loss compared to non-smokers.
The report concludes:
“The prospective association between smoking and hearing loss has not been well studied. To the best of our knowledge, our study is the largest to date investigating the association between smoking and incident hearing loss. Our results indicate that smoking is associated with increased risk of hearing loss in a dose–response manner. Quitting smoking virtually eliminates the excess risk of hearing loss, even among quitters with short duration of cessation. These results suggest that smoking may be a causal factor for hearing loss, although further research would be required to confirm this. If so, this would emphasize the need for tobacco control to prevent or delay the development of hearing loss.”
There is a clear relationship with active smokers and hearing loss but further evidence is required to understand this further. It does not appear that previous smokers remain at risk of suffering from hearing loss.
This is the latest in a long line of scientific studies which have established a relationship between smoking and high frequency hearing loss. The evidence suggests that smoking leads to a smooth pattern of hearing loss on pure tone audiometry.
Serious consideration should be given to the medical records/smoking history of claimants and the pattern of the audiometry and whether part 35 questions should be raised of experts on the causal impact of smoking and hearing loss.
It has long been an argument in NIHL claims that any HTL could have been caused by ototoxic medications. The Centres for Disease Control and Prevention (CDC) in the US has published a bulletin which considers the wider issues of ototoxicants which may be encountered in the workplace.
The bulletin outlines a number of potential substances which may be harmful to hearing such as:
The CDC also identify a number of occupations which may be more at risk of exposure to ototoxicants:
It may well be the case that the claimants now claiming damages in respect of NIHL could well have been exposed previously to ototoxicants (whether with the defendant or otherwise) which could be s cause of their apparent hearing loss. As with the potential connection between smoking and hearing loss careful consideration will need to be given to whether any exposures to ototoxicants could be considered as an alternative cause. One would also need to consider whether the defendant was the party responsible for the exposure and whether taking this line of defence could be more detrimental than defending a claim on a conventional basis.
Asbestos: Beer and Wine
The presence of asbestos in the beer and wine manufacturing process has been known of for some time. Asbestos support/action groups have previously prepared “guidance” on the subject some of which has recently been republished. Asbestos was used in the filters for brewing/fermentation processes. The presence of asbestos in the filters is unlikely to pose a rise to health as a result of ingestion.
Workers involved with the production and fitting of asbestos filters may have been exposed to asbestos during that work although if the filters were removed whilst wet the risk of exposure would be very low. Not all brewers used asbestos filters and careful consideration would need to be made of the brewing process employed by a particular brewery if such a claim were presented. Given the historic levels of wine production in England and Wales the risk of claims being presented against wine producers is low.
MSD: Musculoskeletal Disorders and Mental Ill Health
The HSE have recently published a report by its Workplace Health Expert Committee (WHEC) assessing the impact between MSD and mental health. The report set out to consider (1) whether improving mental health could reduce the incident of MSD and (2) whether preventing MSD could reduce the incident of mental health issues.
MSD and mental health issues are both individually significant causes of lost working time and disability. In 2016/17 there were some 500,000 reported cases of stress, anxiety of depression, related to employment resulting in some 12.5 million lost working days. In the same period reported MSD cases were of the same order (500,000) with 159,000 new cases being reported and 8.9 million lost working days as a result.
The report considers that there is a clear connection between mental health and MSD and that one condition can have an adverse or positive impact on the other. The evidence is not sufficient at this stage to consider whether the joint treatment of the conditions yields additional benefits and further research is required.
Whilst the evidence is inconclusive the report confirms the ever increasing focus of mental health in the work place. Employers should be aware that those suffering from MSD are more likely to develop mental ill health and this may delay their return to work and the duration of symptoms. In the context of claims made against the employer the longer the employee is absent from the work the greater the potential award of damages. When insurers are considering rehabilitation under the Rehabilitation Code they should take into account not just the physical symptoms which need addressing but whether there is benefit in tackling any mental health issues at the same time.
MSD: Sedentary Work and Associated Health Risks
The HSE published a second report on MSD considering the health risks of sedentary work. The report considers some of the supposed risks from sedentary work such as cancers; obesity; Type 2 Diabetes; MSD; and mental ill health.
The report concludes that there is no sufficient evidence to suggest direct links between sedentary work and an increased risk of development of any of these conditions and that further study is required.
An interesting corollary of the report is that a more active workforce may well be more productive and this is something that employers may wish to consider more generally.
Lung Cancer: Diesel Fumes
The WHEC has prepared a report on diesel fumes and lung cancer. The report concludes:
“Epidemiological evidence suggests that the increased risk of lung cancer occurs at very low exposure levels (near environmental levels) and therefore WHEC believes that workers in the UK regularly exposed to diesel engine exhaust (above environmental levels) will be at an increased risk of developing lung cancer.”
The precise causative agent in diesel fumes has not been identified but is thought to be either elemental carbon or poly-aromatic hydrocarbons (PAH). The particulate matter produced by diesel engines is likely also to play a part.
The latency period for diesel induced lung cancer is not known but it is likely to be measured in many years if not decades. Diesel became increasingly popular from the mid-1990s in an effort to tackle climate change. Since around 2011 the sale of new diesel cars in the UK has surpassed the sale of petrol cars. It may well be therefore that the effects on employees (and the general population) is not seen until the 2020s or beyond. Workers particularly at risk could be those working in vehicle maintenance or those working in close proximity to diesel powered vehicles i.e. on construction sites.
Heart Disease: Low Toxicity Dust
Connected to the study on diesel fumes and lung cancer a further study published by the HSE considers the risk of exposures to low toxicity dust and the connection to cardiovascular disease. The report considered the risks from exposure to bauxite and alumina, carbon black, coal mine dust, diesel engine exhaust particulate, inorganic dust, welding fumes and World Trade Centre dust.
“Overall, the evidence from epidemiological and toxicological studies suggest that it is possible that occupational exposure to low-toxicity particles causes a small increase in the risk of cardiovascular disease, particularly ischaemic heart disease.” (emphasis added)
Given that the causes of heart disease are multi-factorial based on a number of social, health, and genetic markers establishing a material contribution on the basis of the exposures to low toxicity dusts may well be too great a hurdle for claimant’s to overcome.
Legionella: HSE Prosecution
The HSE recently successfully prosecuted Tendring District Council (who plead guilty) under 3.(1) of the Health and Safety at Work Act 1974 resulting in a fine of £27,000 with costs of £7,500. The prosecution arose following a member of the public contracting Legionnaires’ Disease after visiting the council’s leisure centre. The council admitted that it did not have adequate control measures in place for Legionella control.
This case serves as a reminder that where there is a risk of Legionella developing companies need to ensure that that they have sufficient control measures in place and that staff are aware of the those measures and how to assess their efficacy. Case of Legionella outbreak may not only result in prosecution by the HSE with a hefty fine, but also civil claims which can be expensive not to mention potentially severe reputational damage.
Lung Cancer & Kidney Cancer: Mild Steel Welding Fume
The International Agency for Research on Cancer (IARC) has concluded that mild steel fume is now to be classified as a human carcinogen. As a result the HSE have issued a Safety Alert. The HSE will no longer accept LEV as a suitable control measure in and of itself and employers must now consider what other measures, such as RPE, should be employed to reduce the risk of exposure as there is “no known safe level of exposure”. Failure to adequately control exposure to welding fume could lead to prosecution by the HSE.
The following recommendations are suggested by the HSE:
In addition to the cancer risks welding fume can cause a variety of other conditions such as Welding Fume Fever; occupational bronchitis; or asthma.
Further detailed guidance regarding control measures, and the COSHH Regulations can be found in the DAC Beachcroft Disease Digest.
Asbestos: Talc and Cosmetics
Our previous post in September 2018 discussed the issue of asbestos contamination in talcum powder. As highlighted in that post some 7% of talc produced is used in cosmetics. The Federal Drug Administration (FDA) in the USA, acting on a 2017 report, concluded in a press release on 5 March 2018 that 3 cosmetic products produced by Claire’s Accessories were found to have contained asbestos. Claire’s Accessories disputes the FDA’s findings but has nonetheless removed the products from sale.
Occupational Stress: Foreseeability
Piepenbrock v London School of Economics and Political Science  EWHC 2572
Tom Walshaw, John Goodman and David Knapp’s assessment of the successful defence by DACB of a claim for occupational stress can be found here.
The case confirms that foreseeability remains the keystone to the defence of claims for occupational stress.
Our disease team deal with disease claims on a regular basis. For more information or advice, please contact one of our experts.
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