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Source: http://www.doksinet Disease matters August 2004 – edition 3 Contents Mesothelioma - Apportionment issues remain unresolved . 2 Secondary exposure asbestos claim . 4 Pleural plaques litigation . 5 Funding the voids, minding the gaps: The ABI mesothelioma claims handling agreement . 7 Vibration white finger: Constructive knowledge. 9 Deafness and notching . 10 Fybromyalgia - the new RSI epidemic? . 11 Jurisdiction - Work-related stress . 12 Work-related stress . 14 The advent of passive smoking litigation . 16 Disease matters 1 Source: http://www.doksinet Mesothelioma - Apportionment issues remain unresolved The long-awaited judgment of the Court of Appeal in Barker v St Gobain Pipelines plc [2004] EWCA Civ 545; (2004) 148 S.JLB 570 was handed down on 5 May The claimant, Sylvia Barker, is the widow of Vernon Barker who died in June 1996 at the age of 57 of mesothelioma resulting from exposure to asbestos dust. Between 1960 and 1968 Mr Baker had been intermittently

exposed to asbestos at Shotton Steel Works in Deeside. He had also been intensively exposed over a six week period whilst employed by Graessers Limited in 1958. (For technical reasons, the proceedings against Graessers were abandoned) Unusually, the deceased suffered further exposure working as a self-employed plasterer between 1968 and 1975. At first instance, the defendant argued that the principle enunciated in Fairchild should not be extended to this case as it could not be proved that the deceased was a victim and that a breach of duty by someone else had caused his mesothelioma. However, the court was not persuaded that justice would be served by denying the claimant any damages simply owing to the period of self-exposure. Judge Moses J recognised that apportionment had been left open in Fairchild. The defendant argued that if (as in Fairchild) the orthodox test of causation for mesothelioma is relaxed to the detriment of employers generally, justice demanded an apportionment

exercise, in terms of contribution to the risk, notwithstanding the medically indivisible nature of the disease. The judge declined to adopt this imaginative solution, taking the view that this would be contrary to authority. Contributory negligence was assessed at 20% on the basis of Mr Barkers exposure whilst self-employed. The defendants raised two main arguments in support of the appeal: 1 The case fundamentally differed from Fairchild, since to fall within the Fairchild rule of causation, the claimant had to establish that he was a victim. The judge at first instance failed to deal headon with the situation in which the culpable employed exposure was minimal compared with long periods of self-employment. 2 The judge erred in considering himself bound by authority. The application of the Fairchild principle to different situations would become more straightforward - and indeed just and certain if an apportionment-based approach was adopted. It would be unjust not to apportion

the damages in this case. The court should look at the position imaginatively by adopting the principle of distributive justice commended by Lord Justice Steyn in McFarlane v Tayside Health Authority (HL) [2000] 2 A.C 59; [1999] 3 WLR 1301; [1999] 4 All ER 961, namely that a solution regarded as socially and morally acceptable by the average person should be preferred to one based on precise legal formulations. For the claimant the counter-arguments were:  That the modified approach to causation in Fairchild was supported not only by principle and authority, but also policy considerations. The injustice of denying redress to a victim would arise if the defendants could avoid liability owing to a certain period of self-exposure.  Whilst in a divisible injury, the defendant is only liable to the extent to which his breach of duty contributes to the injury (Holtby v Brigham & Cowan) [2000] 3 All E.R 421; [2000] ICR 1086; [2000] P.IQR Q293) the position in relation to an

indivisible injury is critically different Indeed, the defendant in Fairchild conceded that as mesothelioma was an indivisible injury, the Fairchild claim was an all or nothing case, and not appropriate for apportionment. This creates an injustice for the defendants in particular cases which could be improved by bringing proceedings under the Civil Liability (Contribution) Act 1978 against other potential wrongdoing, or by (as here) applying a reduction for contributory negligence in view of self-exposure. The Court of Appeal dismissed both of the defendants arguments and wholly endorsed the first instance decision of Moses J. Accepting that Fairchild led to potentially unfair scenarios on both sides, in the leading judgment Kay LJ said: Disease matters 2 Source: http://www.doksinet It seems to me inevitable that whatever solution the law finds, it will always be possible to suggest an extreme situation in which the answer may not seem to be entirely fair to one or other party.

The policy decision has to be made on the basis of the generality looking for the fairest solution when the matter is considered in the round. The approach of Moses J was the one most likely to achieve the proper objective of the law, and as there is fault on the part of the claimant, this could be reflected by a finding of contributory negligence. Similarly, there was insufficient justification in law or policy to alter the normal rule against apportionment. The validity of the employers arguments appears to have been recognised, but the court simply preferred the claimants arguments. Indeed Keene LJ conceded that he: Was for a time attracted by the defendants argument that if one is dealing with an exceptional or novel situation, as is the position in these mesothelioma cases in the current state of medical knowledge, then one should be prepared to develop the law in a new direction to achieve a just result. On reflection, he took the view that there was no need to depart from the

long-established principles applicable in the case of an indivisible injury. Two similar cases involving British Shipbuilders were dealt with in the same way. Arguing that mesothelioma should be apportioned like a divisble disease is the employers last resort to derive some relief from the intractable post-Fairchild problems. This is an important issue for the insurance industry in view of the escalating numbers of mesothelioma claims. The House of Lords needs to consider this issue, not having had the opportunity to do so in Fairchild. Leave has been given for appeal to the House of Lords. Brian Goodwin, BLM Liverpool Disease matters 3 Source: http://www.doksinet Secondary exposure asbestos claim In Maguire v Harland & Wolff plc (QBD, 26 March 2004) LTL 6/4/2004 : Times, April 29, 2004 the claimant was the wife of a boilermaker who worked at the defendants shipbuilding premises between 1961 and 1965. During this time he was heavily exposed to asbestos dust which

contaminated his work clothes The claimant handled his work clothes on a daily basis and removed the dust by shaking and brushing them down before washing them. As a result of this exposure she developed mesothelioma in 2000 The claimant alleged that the defendant owed her a duty of care not to expose her to the risks associated with the inhalation of asbestos dust and that the defendant breached this duty. Whilst the defendant accepted that it was in breach of its duty of care in exposing the husband to asbestos dust, it denied any such duty of care to the claimant on the basis that, between 1961 to 1965, it was not foreseeable to the reasonably prudent employer that there was a risk of mesothelioma from this secondary and relatively light exposure. Knowledge of mesothelioma itself did not generally emerge until after 1965 The court found that the defendant should have been aware from the 1930s that the inhalation of asbestos dust gave rise to a risk of serious pulmonary injury and

towards the end of the 1940s it was also known that asbestos exposure could result in lung cancer. The defendant must have known that when the husband went home he would take asbestos back on his work clothes and the claimant would be exposed to this. Following the line of authorities of Margereson v J W Roberts Limited (Court of Appeal, [1996 PIQR19] and Jeromson and Dawson v Shell Tankers and Cherry Tree (Court of Appeal, [2001 PIQR19] it was found that the defendant ought to have foreseen the risk of some pulmonary disease from secondary exposure, even if it could not foresee a particular risk of mesothelioma. The dangers of asbestos were sufficiently well known and sufficiently uncertain in their extent and effect for employers to reduce the exposure to the greatest possible extent. The defendant failed to take any steps to prevent or reduce either the employees or his wifes exposure. It was held that the risk of serious injury to the claimants health from such secondary exposure

was reasonably foreseeable and, in fact, obvious. This decision contrasts with an earlier secondary exposure claim of Gunn v Wallsend Slipway & Engineering Co Limited (1988) Times, January 23, 1989. In that case the husbands wife was also exposed to asbestos dust that he brought home on his work clothes for washing between 1948 until 1965. However, it was found that the defendant did not owe the wife a duty of care as no one in the industrial world had considered the risk of mesothelioma from secondary exposure to asbestos dust before October 1965. Maguire demonstrates the courts increasing tendency to retrospectively burden employers with a greater degree of knowledge regarding the dangers of asbestos than may have existed at the time. Following this line, a defence that risk of injury was not foreseeable is increasingly difficult to maintain for occupational exposure to asbestos after the 1930s. Helen Weston, BLM London Disease matters 4 Source: http://www.doksinet Pleural

plaques litigation The value, incidence and legal standing of pleural plaques claims has become an increasingly topical issue for employer liability insurers over recent years. Test litigation has now been commenced to determine: 1 2 3 Whether pleural plaques are compensable. The general damages tariff for this asymptomatic condition. Whether compensation should be paid at the same time for the risk of other asbestos diseases and if so, how that should be assessed. At present the test litigation comprises of 12 claims being managed by Master Whitaker at the Royal Courts of Justice, London. The trial is due to take place at the Manchester High Court on 8 November 2004. The only certainties are that the first instance judgment will be appealed and that BLM will keep you advised of the developments. Background to the test litigation An analysis of asbestos-related claims for one major Chester Street policyholder over a two year period revealed 75% of all asbestos claims and 51% by

settlement value have been for pleural plaques. Mesothelioma, historically perceived as the most expensive asbestos-related condition amounted to only 12% by number and 38% by value. In the United States the asbestos litigation crisis has been blamed for the bankruptcy of several asbestos manufacturers - with most of Americas industrial, oil, chemical and utility companies now ensnared in asbestos litigation. So whilst pleural plaques are the least serious of the asbestos conditions for claimants, they look set to be the most serious in terms of financial consequences for the insurance industry. Pleural plaques are seldom disabling, rather they are markers that confirm previous exposure to asbestos. They indicate a higher risk of developing other asbestos-related disease. Their presence does not cause the development of malignancy or loss of lung function. The House of Lords in Cartledge v Jopling [1963] AC 758 considered whether compensation should be awarded for an asymptomatic

condition. The case involved limitation arguments in a group of pneumoconiosis cases. The appeal turned on whether asymptomatic pneumoconiosis (of which the claimants had knowledge) constituted an injury from which a cause of action could flow. In finding that the asymptomatic condition constituted injury Lord Pearce stated: It is a question of fact in each case whether a man has suffered material damage by any physical changes in his body. Evidence that those changes are not felt by him and may never be felt tells in favour of the damage coming within the principle of de minimis non curat lex. On the other hand, evidence that in unusual exertion or at the onslaught of disease he may suffer from his hidden impairment tells in favour of the damage being substantial. Whether the condition of asymptomatic pleural plaques constituted substantial damage, and so actionable inury, was considered at first instance in a series of well known cases in the 1980s. In Sykes v MOD, HC 19/3/1984 [TLR

23 March 1984], the judge accepted the structure of the pleura had been irrevocably altered by the scarring and had to decide on the basis of Lord Pearces speech in Cartledge whether the: Physiological damage which was done to the plaintiff is to be treated as minimal or negligible or falling within the principle of de minimis. He came to the conclusion that: There has been definite change in the structure of the pleura due to the presence of asbestos. In my judgment, that amounts to a significant and definite degree of damage which entitles the plaintiff to compensation, as he has established actual damage. In Morrison v CEGB (Nottingham CC 15/03/86 unreported) Simon Brown J found that symptom-free physiological change to the pleura did not alone constitute an actionable injury. Damages were awarded Disease matters 5 Source: http://www.doksinet to the claimant on the basis of the combination of symptomless pleural plaques, the risks of developing other asbestos-related disease

and the associated anxiety caused by knowledge of those risks. Damages tariff Claimants are often awarded provisional damages which enables them to seek further damages in the event of a serious deterioration of their condition. Recent provisional damages awards for asymptomatic pleural plaques show a steep increase, far exceeding inflation. In Paterson v MOD 1986, a provisional award for asymptomatic pleural plaques was made of £1,250 and in Mustard v Sunderland Ship Builders Limited (1987, unreported) an award of £2,000 was made. These awards would today be £2,324 and £3,558 respectively However, recent awards have been in the region of £5,000 - £6,000: Heath v Cape Distribution Limited (Oct, 2002, Current Law) and Greenhow v Wilmac Limited (1998, Kemp F2-073/1). Where claims are settled on a full and final basis, the claimant is compensated for the risk of deterioration and any other asbestos related disease developing. In so doing, insurers may of course be paying for risks

that never materialise but have the benefit of claims closure. Conversely, the claimant would have been grossly under compensated were he to develop mesothelioma or lung cancer at a later stage. The latest Judicial Studies Board Guidelines provide the bracket of £15,000 - £20,000 for pleural plaques involving some but limited disability. Such bracket is of no assistance when valuing an asymptomatic condition. Where claimants apply contingent risk percentages to schedules of loss pleaded on the basis of a malignancy, pleural plaques claims can mount up to £60,000- £70,000. Such an arithmetic approach to the assessment of future risks has little merit. The recent decision of Hooper v Prescot (No 1) Limited (Central London City Court 8/9/03, HHJ Reid) highlights that such awards vary considerably depending on the risks of future deterioration and the individual circumstances of a claim. Mr Hooper, aged 71, was awarded £5,765 on a full and final basis for asymptomatic pleural plaques.

He was generally of poor health and his life expectancy short (due to non-asbestos related illness). So there is plenty for the courts to consider. We can anticipate a judgment in the test litigation before the end of the year and considerable media interest as the litigation proceeds to appeal. Nick Pargeter, BLM London Disease matters 6 Source: http://www.doksinet Funding the voids, minding the gaps: The ABI mesothelioma claims handling agreement Background Fairchild left the insurance industry with a host of problems on several levels: the political fall out of attempting to avoid a liability to a fatally injured claimant or his widow was especially damaging at a time when there was (and remains) a real crisis in the EL market. The insurance market was asking for assistance at a regulatory level and the case was creating some of the worst press in recent memory. The claimant lobby was incensed at the defence that was run to the House of Lords and was politically in the

ascendancy. The issue of apportionment that is now being examined and adopted in a series of appellate judgments was not pursued (to the regret, expressed to the writer, of the some of the most senior judiciary of England and Wales). The ABI mesothelioma guidelines needed to address a number of constituencies: The political If the agenda of the Insurance Market was to return to centre stage. The claimant lobby If the souring of relations between the claimant and defendant camps were to be improved. The FSCS The substantial interests of the insolvent market with its continuing long tail liabilities had to be included in any workable agreement. The commercial sector It will continue to have a liability for long tail claims where there may be gaps in cover if that cover can be traced at all. Overriding principles That the claimant should receive prompt and full compensation for his injury from the co-ordinator generally the insurer with the longest period of cover. Thereafter, the

co-ordinator recovers proportionate contributions (based on time of culpable exposure but ignoring dose) from other employers and insurers. Funding the void Culpable employers must meet the damages that are attributable to a void period (a period of culpable exposure where no solvent employer or insurer can be traced). When there are two employers, one of whom is able to meet the damages payable, but the other is insolvent without traceable insurance, the solvent employer will have to satisfy the judgment and fund the void period. Minding the gap A gap is where the employer is self-insured, uninsured or unable to trace cover for part of the period of exposure (there being solvent insurance for the balance of the period). This gap in cover is met by the employer or if the employer is insolvent by the other insurers on risk for that employer. Parallel payment Where an insurer is insolvent, contributions may be due from the employer (if solvent) the estate of the insolvent insurer or the

FSCS. Parallel payment is the process by which these contributions are paid separately to the claimant or his representatives because the FSCS can only pay a claimant direct. A payment must never be made on behalf of the FSCS because it is unable to reimburse the contribution. As a simple rule of thumb payments by the solvent market and the insolvent market should be made separately. Top down v bottom up There was considerable debate within the ABI steering group whether gaps where the employer is insolvent should be filled by just the other insurers for that employer (bottom down) or by all the other parties contributing to the claim (top up). An example The following diagram explains the consequence of alternative approaches: Disease matters 7 Source: http://www.doksinet Situation 1 Employer 2 is an insolvent employer whose claim will be met by Insurer 3 or the FSCS where the insurer is insolvent. If it proves impossible to trace cover for Employer 2 this void period will be

met by Insurers 1, 2, 4, 5 and 6. The top down or bottom up approach has no impact on the apportionment of void periods Situation 2 Employer 3 is on this occasion the insolvent employer and the period represented by Insurer 5 the period of untraced cover. The bottom up apportionment would require Insurers 1 to 4 and 6 to fund the gap The mesothelioma guidelines adopt the top down approach. Apportionment is fixed at the employer level, this being the approach likely to be adopted by the courts. The guidelines indicate that the gap will be met by Insurers 4 and 6 only. Situation 3 Where Employer 2 is insolvent and Insurer 3 is now insolvent the situation is subject to the parallel payment mechanism. The contribution of Employer 2 will be met by the FSCS Bottom up clearly benefits Insurers 4 and 6 in situation 2, but there is likely to be an even spread of gaps depending on the size of an employer liability insurers portfolio of historic risks. The top down mechanism has a number of

advantages. As mentioned above it broadly reflects the apportionment of damages that it is anticipated would be adopted at law. Also once the employment history of the claimant is known, the proportionate contribution of the employer can be ascertained. Payment schedules are easier to establish as the bottom up mechanism would in contrast leave insurers vulnerable to an iterative process of apportionment as the history of gaps relating to other employers gradually became apparent. This latter point is of fundamental importance to participants where there is a parallel payment: an inadvertent funding of a contribution of the insolvent insurer would be irrecoverable. Conclusion The guidelines reflect custom and practice of many years standing. However, in stating the principles that should be followed they adopt a best practice guide. A common approach of all insurers is designed to speed up the handling process of mesothelioma claims, and to avoid the costs associated with different

interpretations of a largely unwritten market convention. Effective implementation of the agreement will lead to a saving in the largest controllable variable of the mesothelioma claim - the legal costs. The guidelines provide the mechanism to achieve that end; the insurance industry must take up the task of implementation. BLM partners Cathy Hawkins, Nick Pargeter and Terry Renouf advised the ABI on the drafting of the Mesothelioma Claims Handling Guidelines and the law associated with it. Terry Renouf, BLM London Disease matters 8 Source: http://www.doksinet Vibration white finger: Constructive knowledge In Doherty & Others v Rugby Joinery (UK) Limited (Court of Appeal 17 February 2004) [2004] EWCA Civ 147, eight claimants appealed against dismissal at trial of their VWF personal injury claims against their former employer. All had been employed for various periods between 1970 – 1999 in the manufacture of doors and windows and used a variety of hand-held vibratory

tools. It was common ground between the parties that the claimants did suffer VWF as a result of their work but that none had made any complaint or reported symptoms of the same during their employment. Claimant The defendant did not have actual knowledge of the risk of VWF at any time during the exposure and the issues were whether it had constructive knowledge and if so what steps it should have taken to protect employees and when. The claimants contended that the employer was burdened with constructive knowledge from around 1976, the generally accepted date of knowledge for work in heavy, national industries such as engineering, shipbuilding and mining. From that point it was contended that the defendant was under a duty to assess the extent of employees exposure to vibration, monitor them for symptoms of VWF and also to provide warnings of the risk of developing VWF. The defendant contended that such knowledge only arose in 1991/92 following publication of the Handbook of Human

Vibration by Professor Griffin of the University of Southampton in 1990 and that the woodworking industry generally did not have regard to the risk of VWF before this. The Court of Appeal found that the date of knowledge for any particular employer will vary from case to case and depend on not only the general nature of the industry in which an employer operates but also the particular type of work conducted, the tools used, nature and extent of exposure and the presence or otherwise of complaints. Each case must be determined on its own facts to see whether and when the employers duty to do something about a risk of harm is triggered by this combination of circumstances. The overall test of this is still best defined by Mr Justice Swanwick in Stokes v GKN (Bolts & Nuts) Limited [1968] 1 WLR 1776 as follows: The overall test is the conduct of the reasonable employer taking positive thoughts for the safety of his workers in the light of what he knew or ought reasonably to have known

where there is developing knowledge, he must keep reasonably abreast of it and not be too slow to apply it. The Court of Appeal held that by virtue of the near harmony on the expert evidence relating to foreseeability this particular defendant did not have constructive knowledge until 1991/92. However, it went on to make it abundantly clear that this was not to be misinterpreted as a finding that for the woodworking industry in general the date of knowledge should be taken as arising this late. On this basis the claims of four of the claimants whose exposure arose before 1991/92 were dismissed. The claims of the remaining four, where all or part of the exposure arose after this date, succeeded on the appeal. Whilst their daily exposure to vibration was found to be below the then guidance level as to safe exposure, the Court of Appeal found that the defendant still ought to have warned employees to be on the lookout and report symptoms if they occurred. If this had been done then the

claimants would likely have reported their symptoms, at which point it would have been the reasonable response to remove them from work with the vibratory tools. Chris Bruce BLM London Disease matters 9 Source: http://www.doksinet Deafness and notching Exposure to excessive noise over a sufficient period of time can give rise to a noise-induced hearing loss (NIHL). The extent of the hearing loss is generally measured by audiometry and the results plotted on a graph called an audiogram. NIHL is often demonstrated by a characteristic dip or notch seen in the audiogram between the hearing test frequencies of 4-6 khz. It is therefore commonly assumed that such a notch is a pre-requisite for a diagnosis of NIHL. In the as yet unreported case of Bell v GTRM handled by BLM, District Judge Harrison in the Chester County Court accepted that the presence of a notch was insufficient evidence of a noise-induced hearing loss where the claimant had worn hearing protection for the majority of

his employment with the defendant. In fact, it has long been established that notched audiograms can occur without noise exposure and may arise as a result of:      ototoxic (damaging to the ear) drug exposure. sudden and idiopathic hearing loss. alcoholic poisoning. generic hearing impairment. head trauma. The fact that noise also produces a characteristic notch leads some medical experts to wrongly assume that this must be produced by noise - an error that can lead to an initial misdiagnosis from which it may be difficult to retreat. Whilst a notch is therefore not unique to NIHL it is equally true to say that it is also not a pre-requisite for such a diagnosis. In other words NIHL can occur without notching It is essential that any expert obtains a history of noisy hobbies, exposure to ototoxic drugs or familial hearing loss and carries out a thorough review of the claimants medical records so that alternative causes of hearing loss can be excluded. The expert must

also be given guidance as to the likely noise exposure dose and issues of hearing protection so that a properly considered diagnosis can be made and causation properly addressed. It is too easy for an expert to assume that if there is hearing loss and occupational exposure to noise then the two are causally related as to believe that is to believe working in noise protects the ear from all forms of disease which cause hearing loss Professor PW Alberti, Noise and the Ear 1987. Nigel Lock, BLM London Disease matters 10 Source: http://www.doksinet Fybromyalgia - the new RSI epidemic? In Alexander & Others v Midland Bank (Court of Appeal July 1999) [1999] I.RLR 723 five female bank employees successfully pursued claims on the basis that they were suffering from regional fybromyalgia. The claimants medical evidence confirmed that since 1991 they had suffered pain in the neck, various parts of the right arm, wrist and hand, of varying in intensity. Regional fybromyalgia was

diagnosed, a diffuse condition which exhibits no patho-physiological symptoms except pain. The pain for each claimant was initially a transient discomfort but later became more persistent and intense and the claimants argued that at that point their pain could be classed as an actionable personal injury. The defendant accepted that each claimants pain was genuine but that for the claims to succeed the claimants had to prove an organic or physical cause for the pain and that the diagnosis of fibromyalgia did not discharge that burden of proof. The Court of Appeal held that where there were only two competing causes of pain - physical or purely psychogenic - the court had to decide which was more credible. As there was no evidence suggesting a psychological cause, the court decided there was no obligation for the claimants to prove a physical pathology. Prior to Alexander it was widely held that unless the claimants had been diagnosed as suffering from a clinically recognized upper limb

disorder, for instance tenosynovitis, then the claim would fail. Alexander shows that claimants can succeed on the basis of diffuse symptoms if these are diagnostically labelled in some way eg fybromyalgia. There is a disagreement within the medical community as to whether fybromyalgia exists as a discrete medical condition, how it is defined, the way it is diagnosed and most importantly, what causes it. The major symptoms of fibromyalgia appear to be pain, stiffness and fatigue. The location of the pain may be determined by mechanical problems in the neck and lower back and its severity is influenced by other factors, especially poor sleep and physical unfitness. A rheumatologist may diagnose the condition on the basis of tender points and will generally examine muscles for tender points by applying pressure. One theory suggests that if tenderness is present in at least 11 of 18 tender points, then a diagnosis of fybromyalgia may be made. Medical literature does not confirm a causal

link between fibro-myalgia and repetitive work. This was clearly illustrated in a BLM case of Hadoulis v Trinatours Limited 1 October 2002. The claimant alleged that as a result of a combination of intensive keyboard work, a poorly ergonomically designed workstation and a defective chair, she suffered fibromyalgia. It was conceded that the claimant experienced pain which might be fybromyalgia (or indeed any number of nebulous conditions such as chronic pain syndrome or chronic fatigue syndrome). The key issue in dispute was whether the pain was caused by her keyboard work. The claimants medical records confirmed that she was suffering from symptoms similar to fybromyalgia prior to the period of alleged negligent exposure. The claimants own physiotherapist had specifically questioned at that time whether she was suffering from fybromyalgia. In addition, the claimants medical expert was unable to find any medical literature which linked fibromyalgia to keyboard work. The claim was

dismissed. It is crucial in these types of claims to instruct the correct specialist, this usually being an orthopaedic surgeon. There may also be cases where it is appropriate to instruct a psychiatrist especially where a psycogenic cause for the pain is suspected. It is too early to say whether fybromyalgia is the new RSI epidemic but claimants experts are more frequently labeling diffuse pain as fibromyalgia when the diagnosis of a specific work-related upper limb disorder such as tenosynivitis is difficult to make. Invariably the chances of successfully defending an RSI claim are always better when such a vague diagnosis is made. Michelle Penn BLM London Disease matters 11 Source: http://www.doksinet Jurisdiction - Work- related stress Eastwood and Williams v Magnox Electric plc (House of Lords - 15 July 2004) McCabe v Cornwall County Council and Others (House of Lords - 15 July 2004) Dunnachie v Kingston upon Hull City Council (House of Lords - 15 July 2004) The House of

Lords has clarified jurisdiction issues in cases for stress-related illness arising out of a dismissal. Background Eastwood Mr Eastwood and Mr Williams were the victims of a series of events, the sole purpose of which was to secure evidence to found disciplinary proceedings against them. This included management seeking to obtain false evidence against the two men to be used in the disciplinary process. By the time of the disciplinary hearings, both men complained of suffering from anxiety and were diagnosed either at the time or subsequently as suffering from depressive illnesses. Both claimed unfair dismissal but following a finding in favour of Mr Williams at the employment tribunal both claims settled. Williams and Eastwood subsequently brought claims in the county court for damages for personal injuries and losses due to psychiatric injury. At first instance and in the Court of Appeal, the claims were dismissed. The Court of Appeal found, following Johnson v Unysis [2003] 1 AC

518, that the manner and circumstances of a dismissal may stretch to a patternof events lasting over a period of time. Applying that interpretation the claims arose out of the dismissal and the jurisdiction for the claims lay with the employment tribunal. Mr McCabe, a teacher, was dismissed after allegations of inappropriate behaviour towards female pupils. He pursued a claim in the industrial tribunal and succeeded on the basis that the dismissal was in breach of disciplinary procedures as the allegations had not been investigated by a senior member of staff. He subsequently brought a claim in the High Court for damages for psychiatric injury. His claim was struck out at first instance but the Court of Appeal overturned that decision making it increasingly more difficult to determine the extent of the employment tribunals jurisdiction. The House of Lords’ decision The House of Lords in Eastwood and McCabe gave guidance on where this jurisdictional boundary should be drawn for

personal injury claims which relate to and overlap with Employment Tribunal proceedings. In the lead judgment, Lord Justice Nicholls said that if, before a dismissal, an employee has an accrued right of action, that cause of action remains unimpaired by his subsequent dismissal. In cases such as Eastwood and McCabe, where the losses flow from conduct that precedes the dismissal, that cause of action is independent of any claim to the employment tribunal for unfair dismissal. Lord Nicholls recognised that the courts will need to draw a distinction between losses that flow from the dismissal and losses that flow from antecedent conduct. Comment The House of Lords has effectively confined employment tribunal injury awards to situations where personal injury arises from the actual act of dismissal itself. Inevitably, in these cases the dividing line between the effect of the events leading up to a dismissal and the actual dismissal itself will not be easy to discern and will lead to

detailed investigations of the facts and careful analysis from medical experts on causation. Where the dismissal was the last straw tipping a claimant into psychiatric injury then such an injury claim should be dealt with by the tribunal. In cases of constructive dismissal the courts will have to consider and distinguish between injury caused by the behavior of the employer and employee. The House of Lords was clearly unhappy at the state of the law and the conflict between the common law remedies and those provided by statute confirmed by the Johnson case. They invited the government and legislature to give it urgent attention. Lord Steyn suggested Johnson be reconsidered on another occasion and said that Johnson has left the law in an unsatisfactory state. Dunnachie Mr Dunnachie alleged that he had been constructively dismissed by his employers and included in the employment tribunal proceedings a claim for humiliation and injury to feelings for the events that occurred in the

several months before his departure. Disease matters 12 Source: http://www.doksinet Relying upon Lord Hoffmans comments in Johnson, the tribunal included an award of £10,000 for injury to feelings. The Court of Appeal, by a majority held that those comments were incidental and by a different majority that an award for non-economic loss could be made. The essential questions for the House of Lords was whether Lord Hoffmans comments were incidental and if not, should they depart from them, and did the Employment Rights Act 1996 permit compensation for non-pecuniary loss. The House of Lords’ decision Lord Steyn gave the lead judgment in the House of Lords and determined, overturning the Court of Appeal, that the employment tribunal does not have power to award damages for injury to feelings and upset. This had been the established state of affairs for many years until the comments of Lord Justice Hoffman in Johnson where he expressed views to the contrary. Comment Employees whose

losses flow solely from the manner of dismissal will not be able to obtain an award for injury to feelings. The inevitable consequence is that claimants will seek, wherever possible, to show that they have a psychiatric injury (rather than upset or distress) and that is was due to conduct preceding the dismissal itself. Conclusion Whilst these cases have provided some certainty on jurisdiction issues in what was becoming an increasingly difficult area, the practical effects for insurers, employers and those advising them remain challenging and parties need to be alive to the necessity for a quality investigation of the circumstances to see if there is a jurisdiction issue or other defence. Vivienne Williams BLM Manchester Berrymans Lace Mawer represented the respondent in the Eastwood case. Disease matters 13 Source: http://www.doksinet Work- related stress The Court of Appeals judgment of Hatton v Sutherland [2002] EWCA Civ 76 laid down 16 principles to be applied to claims of

stress at work: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 The ordinary principles of employers liability apply to these claims. Was psychiatric harm to the particular employee foreseeable? Foreseeability depends on what the employer knows about the individual. An employer is entitled to assume that an employee can withstand the normal pressures of the job. Psychiatric injury is harder to foresee than a physical injury. There is no employment, which is more inheritantly stressful than others. What is important is the individuals interaction with the job. Factors relevant to foreseeability include:  The nature of the work done, and whether: - the workload is high or particularly demanding - it exceeds the demands placed on similar employees - there are signs of others doing the same job suffering harmful levels of stress.  More importantly are signs from the employee. Do they have a particular vulnerability or have they suffered from previous stress-related illness or

uncharacteristic absences. An employer is generally entitled to take what it is told by an employee at face value. The warning signs of impending psychiatric harm must be plain enough for the employer to realise that he should act. The employer is then only required to do what is reasonable in the circumstances The size and scope of the employers operation will be a factor in deciding what is reasonable. An employer should only take steps which are likely to help the situation. An employer who offers confidential advice is unlikely to be found in breach of duty. If the only solution is to dismiss or demote the employee, the employer is not in breach of duty for allowing a willing employee to continue. In all cases, the court will need to identify the steps, which the employer should have taken. The claimant must show that the employers breach has caused the harm. Where injury has more than one cause, the principle of apportionment applies. An assessment of damages will take account of

any pre-existing disorder and the chance that the claimant would have suffered a psychiatric illness in any event. The Hatton judgment (consisting of four conjoined appeals) was up in which the defendant employers had all appealed against a finding of liability at first instance. Mr Barbers case was one of these and was appealed to the House of Lords who handed down their much awaited judgment in Barber v Somerset County Council on 1 April 2004. Mr Barber was a secondary school teacher who took early retirement in 1997 after suffering a mental breakdown, allegedly as a result of overwork, the schools failure to react to the warning signs of an impending breakdown or to provide him with some form of assistance or support. He was awarded damages of £101,000 on 8 March 2001 at Exeter County Court, which was subsequently overturned by the Court of Appeal. The case was appealed to the House of Lords, not on the basis that the principles of law set out by the Court of Appeal were wrong,

but that even when applying the principles, the defendant had been in breach of its duty of care. Mr Barber had joined the school in 1983 as head of mathematics. There was a restructuring of the school in the autumn of 1995 and in order to maintain his salary, he had to take on further responsibilities. It was undisputed that this involved working between 61-70 hours per week. By the end of 1995, he was feeling the strain and mentioned work-overload in a regular meeting to one of the schools deputy heads in February 1996. Unknown to the defendant he saw his GP in March and April 1996 about work stress In May 1996, Mr Barber had a three week absence from work due to stress/depression. Following his return to work in June and to the end of term, he had meetings with senior management about the burden of work and how he could not cope. Nothing was done and the situation remained the same on his return to work after the summer holidays in the autumn of 1996 until he suffered a breakdown on

12 November 1996. In Lord Walkers lead judgment, it was accepted that the issue of breach of duty was close to borderline but that the defendant had a duty to take some action from June/July 1996 after Mr Barbers absence and when he saw senior management. This action could have been no more than a small reduction in Disease matters 14 Source: http://www.doksinet workload to ease his return to work, coupled with the feeling that senior management were on his side. His condition could then have been monitored and if it did not improve, more drastic action taken. The appeal was allowed and judgment restored in the claimants favour in the reduced agreed sum of £72,547. Despite the claimants success, the House of Lords approved the 16 principles laid down by the Court of Appeal. It was simply the Lords majority finding that when applying the principles, the claimants psychiatric injury was foreseeable and the defendant had failed to take reasonable steps. Whilst the effect of Hatton

has been a decrease in the number of stress claims due to overwork; employers and insurers cannot assume that this situation will remain. Lord Walker, when addressing the issue of foreseeability and breach of duty, preferred the now well known statement of L J Swarwick in Stokes v Guest, Keen and Nettlefold (Nuts & Bolts Limited) [1968]1WLR1776 as still being the best statement of the general principle: The overall test is still the conduct of the reasonable and prudent employer taking positive thought for the safety of his workers in light of what he knows or ought to know where there is developing knowledge, he must keep reasonably abreast of it and not be too slow to apply it and; where he has in fact greater than average knowledge of the risks, he may be thereby obliged to take more than the average or standard precautions. In Hatton only HSE Stress Guidance up to 1995 was initially considered by the court. At that time the HSE advocated a reactive approach by employers, in

that they could assume employees were capable of withstanding the normal pressures of work unless there was good reason to believe otherwise. Since then the HSE has commissioned a huge body of research of occupational stress and its causes and knowledge has developed considerably. The HSE now expect employers to be far more pro-active. Key to this is risk assessment as advocated in their Management Standards, which set out objective measures by which employers can assess their performance in tackling work-related stress. The issue of risk assessment in stress claims has not been addressed by the courts. However, with the change in HSE stance and a failure to risk assess under the Management of Health and Safety at Work Regulations 1999 now conveying civil liability, it will undoubtedly be a central issue in future litigation. As knowledge of occupational stress and its causes develop, so the duties and standards of care of employers will become more onerous. With this will no doubt

follow a new generation of stress claims Vanessa Latham, BLM London Disease matters 15 Source: http://www.doksinet The advent of passive smoking litigation What is passive smoking? Passive smoking is the exposure to other peoples tobacco smoke commonly referred to as second hand smoke (SHS) or environmental tobacco smoke (ETS). Whilst passive smoking likely results in exposure to many of the carcinogenic agents and chemical poisons of tobacco smoke - albeit at far lower levels - does it have the same or similar adverse health effects as smoke inhaled by smokers? Is passive smoking dangerous? The first evidence to suggest that passive smoking is dangerous came from a 1981 Japanese study published in the BMJ which found an increased risk of lung cancer in non-smoking Japanese women married to men who smoked. Since then, over 200 epidemiological studies on passive smoking would appear to suggest that it:      increases the risk of lung cancer by 20-30%. increases

the risk of coronary heart disease by 25-35%. increases the risk of a stroke by 66-82%. is a cause of acute and chronic respiratory illness in children. is a common trigger for asthmatic attacks in children and adults and also increases the severity and extent of attacks. Whilst some believe these health risks to be unfounded, independent scientific reviews of the epidemiological studies have been carried out by some 20 countries and public health agencies and all appear to accept the findings that passive smoking is a danger to health. Who is exposed and to what extent? In the UK, there are about 13 million adult smokers and about 20 million people encounter ETS in the home as a result of living with a smoker. There are also about three million people who may be exposed in the workplace. Of these, workers in the hospitality industry – up to 300,000 bar staff, wait staff and musicians - are likely to have higher and more sustained exposure to ETS than other occupational groups as

they work alongside the smoking public. Recent reports from University College, London, suggest that non-smoking adults working in bars have a nicotine intake equivalent to half a cigarette per day and carbon monoxide levels consistent with light smoker status. What is the likelihood and extent of risk? Any reported increase in the risk of disease from passive smoking is relative to the underlying risk for the non-smoking, non-exposed population. For example, the risk of lung cancer in such a population is ten cases per 100,000 and a 20-30% increase in the risk would result in a rate of 12-13 cases per 100,000. In other words, there would be an additional two or three lung cancer cases each year per 100,000 nonsmokers regularly exposed to ETS. The charity, Action on Smoking and Health (ASH), believes that 900 office workers, 165 bar workers and 145 manufacturing workers die each year in the UK as a result of passive smoking at work. This may be an overestimate of the mortality risk as

the BMA have recently estimated that about 1,000 people die each year in the UK from passive smoking and this would of course include those exposed both in the home and the workplace. The reality is that no-one is as yet able to accurately predict the extent and likelihood of ill health which may arise from occupational or public exposure to ETS. Guidance on passive smoking The HSE first issued guidance: Passive Smoking at Work (IND(G) 63) in 1988 which was substantially revised in 1997. In summary, the guidance recommends a hierarchy of measures to protect non-smokers: Disease matters 16 Source: http://www.doksinet    Ban smoking in the workplace. Where a complete ban is not possible then to only allow smoking in designated smoking rooms with a smoking ban in common areas. Where a complete or partial ban is not possible, to separate smokers and non-smokers and provide an adequate ventilation system where smoking is allowed in common areas. Under the Workplace (Health,

Safety and Welfare) Regulations 1992, employers also have to make arrangements to protect nonsmokers from discomfort caused by tobacco smoke by ensuring rest rooms have non-smoking areas. The regulations also require that ‘effective and suitable provision should be made to ensure that every enclosed workplace is ventilated by a sufficient quantity of fresh and purified air’. Will smoking in public places be banned? In December 1998, the government set out its policy on smoking in the White Paper: Smoking Kills. Whilst accepting the health risks associated with passive smoking it confirmed no plans to introduce legislation to ban smoking in the workplace but would consider an approved code of practice (ACOP) to restrict smoking in most workplaces. A draft HSC ACOP followed in 1999 (with a similar hierarchy of protective measures as set out in the HSE guidance) which is now being updated and still being considered by the government. The original ACOP dismissed a complete ban on

smoking in workplaces such as pubs and restaurants and residential homes as impractical on the grounds of commercial viability and interference with personal freedom. However, recent studies suggest that the HSE recommended measures of segregation and ventilation to protect non-smokers in common areas where smoking is allowed may be largely ineffective in preventing exposure. As a result, the BMA has called for a complete ban on smoking in public places and with such bans seen in an increasing number of countries and cities, it will be interesting to see if the HSC maintain their position in the updated ACOP. The government has also recently indicated that discretionary powers may be given to local authorities to introduce and enforce any ban on smoking. Prospects of litigation Passive smoking litigation to date, in the UK and abroad, is limited. However, in January 2004, ASH and Thompson Solicitors together sent a registered letter to over 4000 of the UKs leading hospitality employers

warning that the date of guilty knowledge of the risks associated with passive smoking has now passed and that employers who continue to permit smoking in the workplace are therefore likely to be held liable by the courts for any damage to health caused. Thompsons intend to use the letter in any future litigation as evidence that employers have been fully informed of the issues. Assuming there is a risk to health from passive smoking then considering the widespread dissemination of warnings by bodies such as the BMA and WHO, it may be difficult to argue that a reasonable and prudent employer would not now be burdened with constructive knowledge. If that is the case then what common law duties and standards of care would fall upon the employer? This will be determined by the usual balancing act between the severity and likelihood of risk and the cost and practicality of eliminating/reducing the risk. At present no-one is able to say whether there is a safe level of exposure to ETS. On

this basis, many argue that nothing other than a complete ban can be a reasonable response. This may be too onerous a duty but at the very least it would be sensible for employers to follow the measures set out in the HSE guidance and draft HSC ACOP. What we have seen in asbestos litigation is that where the true nature of the risk is unknown then employers must adopt a precautionary approach to try and limit exposure as far as possible. Another issue is whether the Control of Substances Hazardous to Health (COSHH) Regulations would apply to any claim. It is arguable that they do not as exposure does not arise out of, or in connection, with the work process. This may be too strict an interpretation If they do apply then strict liability as imposed by the Court of Appeal in Dugmore v Swansea NHS Trust (2002) [2003] 1 All ER 333 would make issues of knowledge and foreseeability irrelevant. Disease matters 17 Source: http://www.doksinet Passive smoking claims are with us today. It

is likely that less medically controversial claims where ETS is alleged to exacerbate a pre-existing respiratory condition, will be used to determine issues of foreseeability, breach and the applicability or otherwise of statutory regulations and pave the way for more complex and high value claims such as for lung cancer. Whilst these cases are likely to involve multiple exposures (with other employers or environmentally), given the very strong association between smoking and lung cancer and the recent relaxation of the but for test on causation by the House of Lords on Fairchild, such cases could still succeed. With the potentially large number of people exposed to ETS and increasing incidence of respiratory illness in the general population, the potential for future litigation may be significant. Many claims will undoubtedly be spurious and must be robustly defended to prevent the present trickle of claims turning to a torrent. Boris Cetnik, BLM London O:3 PUBLICATION

ADMINISTRATIONPUBLICATION BACK ISSUESNEWSLETTERSDISEASE MATTERSWORD VERSIONSDISEASE MATTERS 3 AUG 04.DOC O:3 PUBLICATION ADMINISTRATIONPUBLICATION BACK ISSUESNEWSLETTERSDISEASE MATTERSWORD VERSIONSDISEASE MATTERS 3 AUG 04.DOC Disease matters 18