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LUG Conference 2007
Non-traumatic harm: risk factors & legal
issues
Alistair Kinley & Vanessa Latham
business services construction & property insurance & indemnity leisure media & technology public sector retail transport
overview
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Introduction
Asbestos compensation – legal & judicial agendas
Policy coverage & triggers (Bolton v MMI)
Noise-induced hearing loss
Asymptomatic conditions & pleural plaques
Harassment & discrimination
Conclusions
introduction
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By non-traumatic harm we mean conventional
occupational disease risks and also psychiatric injury
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why is it topical?
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interest for insurers
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social issues
“ Liability for psychiatric injury … is in general no
different in principle from liability for physical injury … It
is foreseeable injury flowing from the … breach of duty
that gives rise to the liability.”
Scott-Baker LJ, Hartman v South Essex Mental Health [2005]
Asbestos compensation
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mesothelioma update case law & legislation
recent government activity
claims numbers
& claims handling
mesothelioma update
A
?
B
?
C
issue
year
consequence
Fairchild v Glenhaven
2002
House of Lords decides on joint & several
liability for multiple tortfeasors
Barker v Corus
2006
House of Lords allows apportionment (discount)
for unsued / untraced exposure
Compensation Act
2006
statutory reversal of Barker v Corus, to reimpose joint & several liability
FSCS reform
2006
for the first time allows FSCS to repay codefendants and insurers & retains 90% pre-72
recent Government activity
current developments
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Child Maintenance &
Other Payments Bill
Draft CPR Pre-Action
Protocol for Mesothelioma
Claims?
Fatal Accidents Act reform
(Scotland as example)?
a standardised judicial
approach?
Ministry of Justice’s
damages consultation
1800
1600
Exposure Index
1400
1200
Central estimate
Observed Mesothelioma
deaths
1000
800
600
400
Year
2047
2040
2033
2026
2019
2012
2005
1998
1991
1984
1977
1970
1963
1956
1949
1942
1935
1928
1921
1914
200
0
Number of deaths
2000
1907
200000
180000
160000
140000
120000
100000
80000
60000
40000
20000
0
1900
Asbestos Exposure index
claims numbers & claims handling
claims numbers & claims handling
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quicker handling
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larger interim payments
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DWP reforms & draft CPR protocol
more expensive claims
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draft CPR protocol, standardised judicial approach
DWP reforms will introduce CRU mechanisms
retrospective costs
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DWP reforms (CM&OP Bill clause 49(3))
Policy coverage
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Divisible
Pleural Thickening
Asbestosis
Indivisible
Mesothelioma
Lung Cancer
Divisible injury
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Defendant only pays for the period of their
exposure
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Insurer pays only for the period on risk
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Holtby v Brigham & Cowan (2000)
Indivisible injury
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“each defendant liable in full for a claimant’s
damage, although a defendant can seek a
contribution against another employer liable for
causing the disease”
(Hoffman, Fairchild)
Phillips v Syndicate 992 (2003)
Insurer liable for full extent of C’s damages even
though it only insured for part of C’s employers
culpable exposure
ABI mesothelioma guidelines - EL
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Time based apportionment
Pay and be paid.
Apportionment
first by employer
then by insurer
Ignore void periods – no solvent employer
and no insurer
Gap period paid by solvent employer or if
insolvent, by its insurer
BUT Phillips
Policy Triggers
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Wording of policies differ
Long tail claims – cause and effect can be many
years apart.
Mesothelioma - historically, EL coverage usually
when the exposure occurred and PL, when
malignancy occurs 10 years prior to symptoms.
Bolton v MMI and CU (2006)
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PL claim
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CU 1960-65
when injury/illness “occurred”
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MMI 1979-91
when injury/illness “occurs”
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Court of Appeal found that injury occurs when the
malignancy develops or symptoms identified
Implication on Policy Trigger
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PL polices usually worded ‘occurs’ so will be
when malignancy occurs/symptoms develop
EL policies post 1 January 1972 should state
injury or disease “sustained” by employee and
“arising” out of their employment so will be when
exposure occurred.
Pre-1972 policy wording varies – some which
use wording ‘occurs’
Following Bolton
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“caused” – can you argue that can’t be
provide you caused it, just that materially
increased the risk?
Pre-1972 EL cover
BAI, MMI, test cases
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US – Triple Trigger approach?
Compensation Act 2006
Reinsurance position
Noise-induced hearing loss
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Long tail – reservoir of 20dB
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Divisible dose related and cumulative
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Noise related deterioration stop with
exposure
Incidents of NIHL
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1996 – 1.1 million-1.3 million people
exposed to noise in excess of 85dB(A)
Self-reported work related illness survey
2001/2002 – 87,000 in GB believe they
are suffering from hearing problems
caused or made worse by work
The number of claims peaked in the 80’s
Nottinghamshire Textile Cases
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General date of knowledge
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Noise and the Worker - June 1963
Code of Practise
- 1973
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Special or actual dates of knowledge
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Noise at Work Regulations 1989 and 2005
Nottinghamshire Textile Cases
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7 Test cases
Daily exposure 80-86bD (A)
Breach
- no general liability below
90dB(A)
Diagnosis
- History of exposure
PLUS
- “notch” on audiogram at
4kHz
Potential for Future Claims
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Insurers reporting increase
New Legislation – Noise at Work
Regulations 2005
New Areas of Litigation
call centres
leisure industry
motorcycles
Acoustic Shock Syndrome
Asymptomatic conditions
& pleural plaques
Pleural plaques
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Duty, breach, causation, loss
Pleural plaques are asymptomatic, so what is the ‘loss’?
The basic test case argument is, essentially:
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exposure + plaques + anxiety = £ compensation
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however, doesn’t 0 + 0 + 0 = ??
House of Lords ruling expected before end of year
Prospects of Government intervention thereafter?
“There was a lack of evidence of associated disability to
justify adding pleural plaques to the list of prescribed
diseases.” - IIAC Annual report 2004/05
Asymptomatic conditions
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The focus for now is pleural plaques, and there was an
unsuccessful amendment to the Compensation Bill
“The lodging in the body of a chemical or substance which
may cause injury as a consequence of negligence or
breach of statutory duty, shall give rise to a cause of action
whether or not the lodging has caused symptoms at the
time the action is commenced or brought to trial.”
Any other examples?
Harassment & Discrimination
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Protection from Harassment Act 1997
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S1(1) A person must not pursue a course
of conduct which he know or ought to
know amount to harassment of another
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Criminal offence to breach s1
Damages for any anxiety and financial
loss
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Protection from Harassment Act
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Limitation 6 years
Course of Conduct
Harassment – criminal liability
Foreseeability
Quantum – Singh v Bhakar & Bhakar
(2006)
Majrowski v Guys and St Thomas’
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Vicarious liability
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“course of employment”
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Lister v Hesley Hall
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No defence for employer
Insurance Coverage
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EL policy
Anxiety/distress – is this covered?
“Mental Anguish”
Intentional Acts
PL Policy
Discrimination
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Sex
Race
Disability
Sexual Orientation
Religion/belief
Age
Key Issues
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Time limits – 3 or 6 months
Conduct must relate to status
Foreseeability not required
Damages for injured feelings
- £500-£25,000
Costs
Employment Tribunal Statistics
115,039 claims in 2005/06
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23,810 discrimination claims
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4,383 successful at tribunal
 £10,807
- £30,361 average award
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1,038 costs orders
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Insurance Considerations
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Employment Practises Insurance
EL Policy wording
Injury to Feelings – is this covered?
Intentional Acts
Exclusion of ‘claims arising solely out of
the contract of employment’
PL Policy – DDA Service Providers
Conclusions
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There is a continuing political and judicial
focus on UK mesothelioma claims
We are entering a period of uncertainty
regarding ‘asymptomatic’ conditions
Legislation against discrimination and
harassment is drawing EL & PL insurers
into unforeseen areas
LUG Conference 2007
Non-traumatic harm: risk factors & legal
issues
Alistair Kinley & Vanessa Latham
business services construction & property insurance & indemnity leisure media & technology public sector retail transport