Welcome to the October edition of Disease-i; the publication for busy disease practitioners!
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The market place
Exploring… Claimant firms in the news, disease portal figures, mesothelioma deaths and the delay of the introduction of LASPO as well as fraud QOCS and fundamental dishonesty.
Case law update
Covering… Asbestos: Pleural plaques claims in Northern Ireland: McCauley v Harland & Wolff plc [2014] NIQB 91, HMRC schedules of employment in fatal cases: Christine Yates (Dalton deceased) v Revenue & Customs Commissioners and APIL [2014] EWHC 2311, Cumulative neck/shoulder injury: Sloan v Rastrick High School Governors [2014] EWCA Civ 1063,
Mesothelioma: quantum: Knauer v Ministry of Justice [2014] EWHC 2553, Mesothelioma: Dowdall v William Kenyon & Sons Ltd & Beca (Engineers) Ltd & Greenfield & Payne Ltd , Ogden 7 or lump sum award: Billett v Ministry of Defence [2014] EWHC 3060 (QB).
On the horizon
Looking at… NIHL and the rise of deafness claims, NHS hearing aids, the Third Parties (Rights against Insurers) Act 2010 and COPD.
Disease conference 2014
Weightmans’ annual Disease conference is taking place at the Burlington Hotel, Birmingham on Wednesday 5 November 2014. Please view our events page on our website for further details and to reserve your place.
The market place
Claimant firms in the news
Some claimant firms are continuing to prosper in the aftermath of the Jackson reforms. Slater and Gordon issued
preliminary results in August 2014 which showed UK revenue of £100m, of which 77% came from its personal injury work. The firm, which has 1,300 employees in the UK, has confirmed it intends to continue to grow its market share and is currently in acquisition talks with Leo Abse & Cohen, which has 150 members of staff in offices in Bristol, Cardiff, Exeter, Newport, Swansea, Swindon, Taunton and Truro.
Cheshire based Roberts Jackson is also expanding with investment to the tune of £15m from NorthEdge Capital, a private equity firm, who have said of their investment “we are in no doubt that the coming months will see Roberts Jackson further increase its market share and continue to deliver unmatched specialist expertise.” The firm, which focuses on industrial disease, also announced a new marketing initiative comprising a number of one minute videos and a series of micro-sites offering advice from its solicitors and featuring first hand experiences from claimants of the effects of industrial disease. One video detailing the story of a cumulative back injury claim received over 2,300 views in just two months.
As well as hitting the news in respect of its forecast of initiating 6,000 NIHL claims per month, claims management firm Quindell’s share price has received press attention. Earlier in the year the company’s rate of growth and business model was questioned by American investment firm Gotham City Research and the company’s half year results were subject to market scrutiny causing a sharp decline in its share price. Quindell have since obtained judgment in default against Gotham City Research after obtaining permission to issue libel proceedings in the High Court. Its share price plummeted causing the company to issue a statement on 29 September 2014 confirming it knows of no reason for such falls. An update is expected from Quindell on its trading for the quarter ending 30 September 2014 on 15 October 2014. Disease portal figures
The portal statistics show that disease claims submitted via the Claims Portal are relatively steady with over 1,300 CNFs every month since April 2014. Nevertheless the 13,207 claims submitted since 31 July 2013 remains a very small proportion of low value disease claims. The numbers of cases falling out of the process remains just under 75.5%. In addition settlements remain disappointingly low at just 358 (2.7%).
General damages agreed at stage 2 averaged £4,740. This does not take into account any settlements negotiated after stage 2 has concluded but pre stage 3, or any claims finalised at stage 3. This indicates that the vast majority of low value claims have a modest value well below the £25,000 portal limit. Only 14 claims over 13 months have exited the process on the grounds that the value exceeds £25,000.
Mesothelioma deaths
The HSE has published headline figures for mesothelioma deaths for 2012 and has announced it will be publishing updated detailed statistics in relation to mesothelioma in the near future. The headline figures revealed the number of mesothelioma deaths has increased to 2,535 in 2012 from 2,291 in 2011. There were 2,126 male deaths and 409 female deaths in 2012. Constructions workers are now among those most at risk of mesothelioma, with the extensive use of insulation board containing brown asbestos (amosite) identified as a key factor.
Mesothelioma: Delay in introduction of LASPO
At the beginning of August the Justice Select Committee recommended a further consultation on whether the provisions of LASPO (to remove the recoverability of additional liabilities and introduce QOCS) should be applied to mesothelioma claims and that the consultation should not be undertaken until the effects of LASPO in non-mesothelioma claims has been properly assessed. The Asbestos Victims Support Group Forum took judicial review proceedings against the government in respect of the decision to bring mesothelioma claims within LASPO announced earlier in the year.
The court handed down its judgment in the judicial review proceedings on 2 October 2014 and held that the review carried out as part of the government’s consultation on the mesothelioma claims process last year failed to satisfy requirements of section 48 because the nature of the consultation was insufficient to assess the likely effects of the LASPO reforms on mesothelioma victims. However the judge concluded that section 48 did not require any particular form of review and therefore the Lord Chancellor’s choice and discretion in that respect was unfettered.
Comment: The Lord Chancellor must now carry out a proper review of the likely effect of those sections on mesothelioma claims before the government can remove the exemption and it is unlikely that this will occur prior to next year’s general election.
Fraud QOCS and fundamental dishonesty
Fraud in NIHL has been hitting the news regularly. The Insurers Fraud Bureau (IFB) is turning its attention to fraud in disease claims, calling for reforms similar to those imposed on whiplash claims to counter growing fraudulent claims involving industrial deafness.
Clause 45 has been included in the Criminal Justice & Courts Bill to deal with fundamentally dishonest claims in accordance with the government approach announced by Chris Grayling last June. The clause requires that where the court is satisfied on the balance of probabilities that the claimant has been fundamentally dishonest in relation to a claim for personal injuries, the court must dismiss the claim unless it is satisfied that in doing so the claimant would suffer substantial injustice. There is no definition or clear guidance as to the interpretation of the terms “fundamentally
dishonest” or “substantial injustice’”, however Lord Faulks, Minister of State for Civil Justice, was reported in Post magazine saying that the government did envisage genuinely injured claimants being sent home empty handed "if they have been fundamentally dishonest" in exaggerating the severity, or circumstances, of the injury. The clause passed the committee stage without amendment and the report stage is scheduled for 20 October 2014.
The question of how the courts will interpret “fundamental dishonesty” is also relevant in relation to QOCS (where a claim is found to be fundamentally dishonest a claimant loses the protection of QOCS and therefore a successful defendant can recover their costs). So far we have seen some encouraging decisions. A recent example is reported in Litigation Futures where a district judge found that a claimant was fundamentally dishonest in giving evidence that a collision had occurred and that he had sustained a whiplash injury. The district judge required a separate application to be made after the trial to consider the issue of fundamental dishonesty but then granted the application and also ordered the claimant to pay the costs of the application.
Case law update
Asbestos: Pleural plaques claims in Northern Ireland
McCauley v Harland & Wolff plc [2014] NIQB 91
The claimant in this Northern Irish case made a claim in respect of her deceased husband’s pleural plaques under the Damages (Asbestos-related Conditions) Act (Northern Ireland) 2011. The defendant argued that the damage was too small to sound in damages and that the “de minimis” argument could be a defence to the claim notwithstanding the 2011 Act. The judge rejected the defendant’s argument on the grounds it would have thwarted the intention of the act, which had made pleural plaques a statutory personal injury. The award was for pain, suffering and loss of amenity and was £10,000. HMRC schedules of employment in fatal cases
Christine Yates (Dalton deceased) v Revenue & Customs Commissioners and APIL [2014] EWHC 2311
This judgment arises from the policy of HM Revenue & Customs (HMRC) of refusing to disclose the employment history of a deceased mesothelioma victim outside court proceedings. Therefore, claimants could not obtain the employment histories needed to be able to identify and sue the correct tortfeasors. Master McCloud’s judgment sets out an interim procedure to apply to such claims in the Royal Courts of Justice’s specialist asbestos diseases list where the claimant seeks
disclosure from HMRC of the deceased's employment history. The interim procedure is set out in the first schedule to the judgment.
Lord Faulks has confirmed to the Justice Committee that the government will legislate by way of an amendment to the Deregulation Bill to enable HMRC to release information for the purposes of certain litigation including fatal accidents claims, claims for damages for personal injury for the benefit of an estate of a deceased person and claims under the Diffuse Mesothelioma Payment Scheme. The Deregulation Bill has completed its House of Commons stage and received its first reading in the House of Lords on 7 July 2014. The committee stage in the House of Lords is scheduled for 21 October 2014.
Comment: It is anticipated that HMRC will not oppose the approval of the order for disclosure in appropriate cases and therefore the costs of making the application (which will no doubt ultimately be claimed from the unsuccessful
defendants) should be modest. Cumulative neck/shoulder injury
Sloan v Rastrick High School Governors [2014] EWCA Civ 1063
The claimant was employed by the defendant as a learning support assistant. She claimed that she had suffered a soft tissue injury to her neck and shoulder as a result of her work, which involved pushing pupils between classrooms in their wheelchairs. The court had to consider whether the defendant had discharged its duty under Regulation 4(1) of the Manual Handling Regulations, whereby the defendant had to prove that it had taken appropriate steps to reduce the risk of injury to the lowest level reasonably practicable.
The Court of Appeal upheld the recorder’s finding that it was not reasonably practicable to avoid the use of manual wheelchairs, as pupils used their own wheelchairs in school, and their choice of wheelchair was based on medical and therapeutic considerations, and requiring manual wheelchair users to use powered wheelchairs would be contrary to their interests. The court also concluded that the steps taken to reduce the risk of injury by training, regularly rotating staff and keeping slopes to acceptable gradientsjustified the recorder's conclusion that the defendant were not in breach of their duty.
Mesothelioma: quantum
Knauer v Ministry of Justice [2014] EWHC 2553
The deceased contracted mesothelioma through exposure to asbestos while working as an administrator at a prison between 1997 and 2007. The MoJ admitted liability after exchange of witness evidence.
The deceased, who was 46 years old, was diagnosed with mesothelioma in March 2009 when she developed a hydro-pneumothorax and had to have a chest drain inserted. She underwent an incomplete left pleurectomy and lung
decortications in June 2009 and then was admitted to a hospice to try and control her vomiting, sickness and severe pain. She died in August 2009. The award for general damages was £80,000.
Past care was agreed at £11,520.
The judge rejected the claim for the cost of the reception following the funeral (following Gammell v Wilson).
The claimant unsuccessfully argued for a departure from the conventional approach of calculating the multiplier from death. Unsurprisingly the judge held that he was bound by Cookson v Knowles.
There was substantial argument between the parties on the services dependency and oral evidence was heard on this issue from two care experts (Kathy Kirby for the claimant and David Pawson for the defendant). The claim was based on the cost of a resident housekeeper to replace the household services the deceased had undertaken including cleaning, cooking, laundry, ironing, shopping, walking the dogs, gardening and decorating. In the five years since the deceased’s death, the
claimant had not engaged any paid help for any of the services. The judge accepted that the claimant was entitled to the value of the services provided by the deceased and assessed the loss on the basis of agency rates, allowing £16 per hour for the household services and £12 per hour for gardening and decorating. The multiplicand was £18,140.
The award for loss of spouse/intangible services was £3,000. The total award was £642,972.51.
Comment: The award for pain, suffering and loss of amenity was assessed applying the JC guideline bracket without 10% uplift (£51,500 to £92,500).
The multiplicand for services was very high, although based at least in part against the factual background, including that the deceased was just 46 years old, house-proud and energetic and the household division of labour was described by the judge as old fashioned (i.e. the deceased did everything).
Note the rejection of the claim for the wake and watch out for higher expectations in respect of claims for services and loss of spouse.
Mesothelioma
Dowdall v William Kenyon & Sons Ltd & Beca (Engineers) Ltd & Greenfield & Payne Ltd
The claimant could bring a claim for mesothelioma against three former employers notwithstanding his agreement to a full and final settlement in respect of a previous claim for asbestos related disease, albeit against different defendants. A copy of the legal update can be found here.
Ogden 7 or lump sum award
Billett v Ministry of Defence [2014] EWHC 3060 (QB)
The case concerned a non-freezing cold injury to a former lance corporal. It was found that the claimant would have left the army regardless of his injury and therefore would have been earning exactly the same if he had been uninjured; the only difference was that if he had to change jobs, he would have had more difficulty finding alternative work than he would otherwise have done.
The judge rejected the option of a traditional Smith v Manchester lump sum award and opted to make an award using Ogden tables A and B but, given that there were few who could be classified as "disabled" and yet remain as fit and able as the claimant, it would have been wrong to apply the reduction factors without deduction. Accordingly, the multiplier was substantially reduced for contingencies other than mortality to reflect the minor nature of the disability. Nevertheless the claimant recovered £99,062.04 for future loss of earnings, albeit against a claim of £427,151.
On the horizon
NIHL
The Independent reported on the rise in deafness claims referring to figures from the Institute of Actuaries (an estimated 80,000 claims were made last year, compared with 55,000 in 2012) but noted that only one in ten cases are being paid out amid claims of widespread fraud.
Hearing Aids
North Staffordshire Clinical Commissioning Group is planning to decommission aids for people with mild to moderate adult-onset hearing loss. It is said that the proposal would affect around 2,500 people and would save £1 million.
Members of the local authority’s Health Select Committee voted to oppose the plans and called for the plans to be referred to Health Secretary Jeremy Hunt.
Should we expect to see more rigorous claims for hearing aids if the plans are carried out and adopted on a widespread basis? Alternatively if NHS funding is maintained will this fuel the drive for recovery of NHS charges (including costs of hearing aids) in disease claims?
Third Parties (Rights against Insurers) Act 2010
The Third Parties (Rights against Insurers) Act 2010 is still not in force despite having received royal assent in 2010. The delay in bringing the act into force arises from the need to make certain amendments to the act in respect of the
circumstances when it will not be necessary to restore a dissolved company to the Companies Register. The act will allow a claim to be made against an insurer where the insured is insolvent and will remove the need for an insolvent company to be restored to the register of companies before proceedings can be commenced. Clause 17 of the Insurance Bill will make the necessary amendments. It has now reached committee stage and therefore in all likelihood will receive royal assent before the end of this parliament.
COPD
The Industrial Injuries Advisory Council had recommended amendment of the prescription requirement for PD12 Chronic Bronchitis and Emphysema. The modern name of Chronic Obstructive Pulmonary disease (COPD) will be used and the effect of treatments (such as inhalers) will be disregarded in assessing whether a claimant has sustained the required one litre loss of lung function.
And finally
Repetitive head injury: Chronic Traumatic Encephalopathy (CTE)
The Football Association’s senior doctor raised concern about the risks arising from on-field head injuries. In particular, he highlighted the potential consequences of managers ignoring team doctors’ advice and allowing concussed players to play on. This is against a background of the American NFL settling claims for early onset dementia arising from head injuries sustained during football games. The death of Jeff Astle, a former West Bromwich Albion player who died in 2002, was certified by the coroner as death due to industrial disease arising from repetitive heading of the ball. Post mortem examinations of some football and rugby players and boxers have shown signs of Chronic Traumatic Encephalopathy (CTE).
Mummy’s thumb
The Daily Mail has reported that an increasing number of women, particularly those with a sedentary lifestyle, are more prone to painful tendonitis caused by repeatedly lifting a baby.
For further information about Weightmans LLP or to discuss any of the issues in this newsletter, please contact:
Jim Byard, Partner via [email protected] or 0116 253 9747
Judith Peters, Consultant via [email protected] or 0151 242 7962
Joanna Hector, Solicitor via [email protected] or 0116 242 8916 Weightmans LLP
October 2014
This update does not attempt to provide a full analysis of those matters with which it deals and is provided for general information purposes only. This update is not intended to constitute legal advice and should not be treated as a substitute for legal advice. Weightmans accepts no responsibility for any loss, which may arise from reliance on the information in this update. The copyright in this update is owned by Weightmans © 2014
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