Disease update Q4 2022 – Lexology

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Hello and welcome to the DACB Q4 2021 Disease Update. In this edition we will be covering the latest developments in disease litigation including COVID-19, glyphosate litigation in the US as well as the usual asbestos and NIHL developments. This edition includes a brief DACB Unreported.
COVID-19: Winter update
We previously provided an update on COVID-19 in light of the omicron variant which can be accessed here. Since then various changes to restrictions have been made with differences between the various jurisdictions. The position remains variable and fast changing. The UK Government has recently set out its plan to keep ‘Plan B’ restrictions in England and we will bring you an update on any changes once details of restrictions are finalised. However for now it is suffice to say employers should remain aware of the ever changing position and ensure that they are continually updating the COVID-19 risk assessment in accordance with the local guidance in place.
Glyphosate – Defendant's success
We have reported on numerous successful claims against the manufacturers of glyphosate in the USA in respect of non-Hodgkin’s lymphoma (NHL) alleged to have been caused by the use of the product. However in the latest case to go to trial the jury rejected the plaintiff’s claim. Donetta Stephen’s alleges that she used Roundup between 1985 and 2017. The plaintiff has indicated that the decision will be appealed and had expressed dissatisfaction about conducting trial remotely. A further decision has also gone in favour of Bayer in the case of Ezra Clark (a minor). In that case the Plaintiff’s mother alleged that her son developed Burkitt’s lymphoma after he was exposed to Roundup used at home.
Notwithstanding the above the California Supreme Court has upheld the $86.2m settlement in the case of Mr and Mrs Pilliod who successfully argued that their use of Roundup caused them both to suffer from NHL.
Mesothelioma: Haggerty-Garton v ICI
This is an interesting case procedurally in that proceedings were brought in the High Court, however owing to an agreement between the claimant and defendant, the case was subject to Scottish Law. This enabled the claimant to bring a claim for loss of society on behalf of the deceased’s immediate and wider family members, which would not have been available to the claimant under English law.
The deceased alleged exposure to asbestos during the 1970s. Liability and causation were not in dispute, and the only outstanding issue was that of quantum.
The deceased had met the claimant just before his diagnosis when he was in his 60s and the claimant was in her 30s with 3 children from previous relationships. The deceased had met the claimant’s children and had a relationship with them for around 2 years before he died. The claimant prepared witness evidence detailing that the deceased had forged a strong relationship with her children, and the 2 older children had helped care for the deceased as his illness progressed. The deceased had 2 children from a previous relationship, a granddaughter and 2 sisters. A loss of society claim was made on behalf of the aforesaid relatives.
The deceased’s 2 children received £50,000.00 each, the granddaughter £18,000.00 and the 2 sisters each received £28,000.00 before Trial.
The issues to be decided at trial related to solatium (Scottish version of general damages), loss of society to the claimant and her children, and the services claim. The High Court accepted as fact that the marriage would have endured and there was a genuine dependency on the deceased’s house husband role, based on the witness evidence served by the claimant. The Judge also found that even though the relationship was relatively short, the deceased’s step-children had forged a warm and strong bond with him that would have lasted into adulthood.
The Judge awarded £97,250.00 for solatium. For loss of society he awarded the Claimant £115,000.00, the 2 older sons £40,000.00 each and £35,000.00 to the younger son, as he lived with his biological father. The services claim was assessed at £52,390.00. Of interest, the Judge rejected the claimant’s reliance on the 2016 Household Satellite account on household service work done throughout the UK, published by the ONS. The Judge considered this be unclear in its relevance, which will be of interest to cases in which claimant’s seek to rely on this in support of services claims.
An important case for those operating in the Scottish jurisdiction when loss of society claims are considered, and the methods used by claimant’s in calculating lost services claims.
NIHL: Goose v Hi-TEN
This is an NIHL claim in which our Leeds office acted for the defendant. The parties were given permission to rely on the single joint evidence of an expert engineer, as is usual practice in claims of this nature. However, the claimant filed an appeal seeking permission to rely on an additional report they had obtained from a different engineer, notwithstanding the fact that the Court had appointed a single joint engineer.
The claimant’s application to rely upon the further expert report was denied in the first instance and the decision was upheld on appeal. This case will no doubt be of use in cases in which defendants are faced with applications to rely on additional expert evidence in instances whereby a single joint expert has been appointed by the Court.
NIHL – Ho v Adelekun [2021] UKSC 43: QOCS and offsetting costs
Whilst this was a claim arising out of an RTA and not a disease, it is a useful case nonetheless for defendants when considering the issue of QOCS and what costs can potentially be offset.
By way of background, the claimant was injured following a road traffic accident with the defendant on 26 June 2012. Negotiations took place and the defendant offered to pay the claimant £30,000 to settle her claim. The defendant also offered to pay the claimant’s legal costs up to that point. The claimant accepted the offer and a settlement agreement was concluded. There was however a dispute regarding the extent of the pre-settlement costs owed by the defendant. The Court of Appeal upheld the defendant’s contention that she was only liable for £16,700 of the pre-settlement costs. As the defendant succeeded on this point, the Court of Appeal made a costs order that the claimant should pay the defendant’s legal costs of about £48,600 for the hearings dealing with that dispute.
The defendant accepted that because she had agreed to pay the claimant £30,000 by way of a settlement agreement rather than being ordered to pay that amount by a Court, this meant that there were there were no orders for damages and interest for the purposes of CPR 44, which deals with QOCS. Therefore, there was nothing against which the defendant could enforce the £48,600 costs order under the QOCS regime. That was the result of an earlier decision in Cartwright v Venduct Engineering Ltd [2018] 1 WLR 6137.
The issue in this case was whether the defendant could nonetheless avoid paying the £16,700 that she owed the claimant for the pre-settlement costs, because it was cancelled out by the £48,600 the claimant now owed her. The Court of Appeal concluded that the defendant could which resulted in the claimant appealing to the Supreme Court.
The Supreme Court allowed the appeal unanimously meaning a defendant cannot offset its costs order against the claimant’s costs where a claim is settled (and so there is no order/judgment for damages to offset against). The most likely situation for this is a claimant accepting a Part 36 offer out of time. Whilst obviously unfavourable to defendants, good early Part 36 costs would limit any claimant costs recoverable if not beaten at Trial or accepted late. However claimant’s may be more emboldened to oppose interim applications which now have little to no risk of enforceable orders and many claimants will have ATE policies meaning that if the claim went to trial and an enforceable order was made against them they would be indemnified.
Lung Cancer claim Ward v Welcome
This claim for asbestos induced lung cancer was dismissed by the High Court in November 2021. Breach of duty and causation were an issue in the claims against both Defendants, with causation being the primary issue due to the claimant’s heavy smoking history.
The claimant’s lung cancer was initially detected during the course of investigations for bowel cancer, at which time he denied any past history of asbestos exposure, save for possible exposure whilst working on car brakes as a hobby. In due course he instructed solicitors and make applications for DWP benefits, by which time he was alleging extensive exposure to asbestos through working in the vicinity of workmen stripping asbestos lagging.
The medical experts agreed that in order to show that his lung cancer had been caused by asbestos exposure rather than smoking, the claimant would need to satisfy the Helsinki criteria. When making her decision HHJ Clarke firstly considered the claimant’s allegations of exposure and whether the alleged exposure would have been sufficient to satisfy the Helsinki criteria, and secondly the impact of the claimant’s smoking history on his diagnosis.
The second defendant was a well-known department store, which had produced contemporaneous records and witness evidence suggesting that any refurbishment work had been undertaken in compliance with the relevant duties. The first defendant’s evidential position was a little weaker, however it relied on 2 witness statements served under Civil Evidence Act notices and guidance relating to industry practice at the time. HHJ Clarke concluded that the claimant’s description of work, if accepted, amounted to a complete dereliction by the second defendant of its duties in relation to asbestos, which HHJ Clarke considered to be inherently improbable. HHJ Clarke was not prepared to conclude that the dust from the refurbishment work was asbestos dust as opposed to dust from other materials. Whilst the first defendant’s evidence was not as robust, HHJ Clarke concluded that the evidence served made it improbable that the first defendant had disregarded the risks posed by asbestos or had failed to put in place control measures to protect the claimant from exposure.
HHJ Clarke could not accept that the claimant’s case that he was exposed to asbestos in breach of duty, even less that his exposure reached the 25 f/ml years threshold under the Helsinki criteria. It was concluded that the claimant’s lung cancer was due to his lifelong smoking habit and the claim was dismissed with costs.
An important case for defendant’s when considering evidence served by claimant’s against a background of a heavy smoking history.
Fernadez v Iceland Foods Ltd [2021] 12 WLUK 201: expert shopping
In this case the claimant suffered an injury at work causing him to lose sight in his left eye. Initially expert evidence was obtained which supported the claimant’s case that the injury was due to work activities. However, the defendant obtained evidence which did not find a causal connection between work and the injury. The claimant’s expert having seen the defendant’s evidence changed his view to agree with the defendant’s experts. The claimant sought permission for further expert evidence arguing that the expert had changed his view without good reason.  The court at first instance disagreed and found that the expert had changed his view for good reason and had therefore acted in accordance with his duties as an independent expert. Permission was denied and the claimant appealed.  The appear was dismissed for essentially the same reasons as given by the trial judge i.e. that the expert had given a good reason for his change in opinion. The Court was further keen to avoid expert shopping notwithstanding the impact this would have on the claimant's ability to proceed with the action.  
DACB Unreported
NIHL claim discontinued after receipt of unfavourable engineering evidence
The claimant, a machine operator alleged that he was exposed to excessive noise when he worked as a litho printer for the defendant between 1968 and 1972.  
The defendant dissolved long  before the claim was made, and there were no documents or witnesses available to assist.  The key issue was breach of duty.  The defendant, a dissolved company had no records or evidence to rebut the allegations of exposure.  Based on our experience of previous claims for this type of work we did not consider that the claimant would likely have been exposed to noise in excess of 90 dB(A) and expert evidence was sought.  The expert engineer concluded that noise levels would not have reached 90 dB(A), meaning that based on the relevant standard at the time the employer did not need to provide hearing protection.  The claim was discontinued.
Mesothelioma claim abandoned following robust denial
The claimant alleged that he had developed mesothelioma due to being exposed to asbestos fibres from the upholstery of chairs he was refurbishing.  It was denied that there was any such risk or that the upholstery contained asbestos.  To support this stance we contacted a furnishing trade association and obtained a report to confirm that no literature could be found to support that composition. 
The claimant produced extracts from various brochures but they all related to American products.  The defendant was adamant that it had never received any warnings about the potential for asbestos being in upholstery from any of the trade organisation of which it was a member, or from the HSE. 
DAC Beachcroft maintained a robust stance and reminded the claimant’s solicitors that it was for him to prove his case and not for us to disprove it.  We also pointed out that having worked for the defendant, their client then set up his own refurbishment company and so, if he was exposed with us, it likely followed he was exposed whilst self-employed as well. The claim was discontinued.
NIHL claim discontinued to avoid the Defendant securing own medical evidence
The claimant alleged exposure to excessive noise during the course of his employment at a ceramics factory from 1990 to 1999.  He pleaded that he was exposed to noise from kilns, ovens and production lines in making tableware.  
The claimant relied on the expert medical evidence with a supportive audiogram.  A second audiogram was obtained which the claimant’s expert agreed showed no evidence of NIHL.  A third audiogram was proposed as “a tiebreaker” which was arranged jointly with the claimant’s solicitor. 
This also showed no noise induced hearing loss, and so questions were sent to the claimant’s expert who maintained his diagnosis of NIHL.  The defendant obtained its own medical evidence which disputed causation.  An application was made to rely on that report and as a result the claimant discontinued the claim
Costs recovery secured following allegations of fundamental dishonesty in NIHL claim
The claimant alleged exposure to excessive noise whilst working for the defendant from 1968 to 1971 and again from 1973 to 1975 as a bakery operative. DAC Beachcroft sought to defend the claim on limitation. The matter reached disclosure and the claimant provided his medical records showing that he saw an ENT surgeon several times between 2002 and 2005 for hearing loss. The records referred to a noisy job 20 years ago and an awareness of hearing loss for around 12 months prior. The claimant had several hearing tests during this time and his noisy work was discussed again. The records showed that the claimant’s solicitors had been in receipt of these records prior to service of proceedings.
Following disclosure of these medical records and the issues being pointed out, the claimant quickly discontinued his claim. DAC Beachcroft, not content with allowing the claimant to walk away wrote to the claimant’s solicitor and asked that they explain the entries failing which we would take instructions on a fundamental dishonesty application, as clearly the claimant’s statement of truth on his pleadings could not be accurate.
The explanation given was that the claimant forgot about these, despite having the records at the time of service and at the time of his medical report. The claimant agreed to pay a contribution towards the defendant’s wasted costs.
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