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dolmans insurance bulletin welcome to the march 2012 edition of the dolmans insurance bulletin in this issue we cover report on further success in defending havs claims on limitation and/or medical causation david jason williams v newport city council idiopathic fibrosis v asbestosis differential diagnosis requires a meticulous and resolute approach to ensure success ac deceased v derbyshire county council focus on new civil procedures for `designated money claims nhs injury cost recovery scheme annual increases case update duty of care landlord and tenant judge s failure to address unanimous evidence medical expert evidence part 36 offers provision and use of work equipment regulations 1998 vicarious liability for assault by a non-employee coming up training opportunities details on tailor-made training seminars aimed at local authorities their brokers claims handlers and insurers employment briefing and workshops overview on employment briefings and half day workshops a date for your diaries dolmans defendant litigation team s ever popular key note seminar will be held on thursday 14 june 2012 at the vale of glamorgan hotel full details regarding this seminar will be forthcoming shortly if there are any items you would like us to examine or if you would like to include a comment on these pages please e-mail the editor justin harris partner at justinh@dolmans.co.uk www.dolmans.co.uk 1

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dolmans report on further success in defending havs claims on limitation and/or medical causation david jason williams v newport city council in last month s edition we featured an article on the case of tidey v blaenau gwent county borough council where the council had defeated a havs claim at trial in january 2012 on medical causation limitation and date of knowledge the claim which features in this follow up article revolved around similar issues albeit for another local authority client and was conducted by the same firm of solicitors for the claimant in david jason williams v newport city council the claimant of risca newport born on 18 february 1972 alleged in his particulars of claim that during the course of his employment by the defendant local authority as a sewage operative from around 1995 up to 2001 he was exposed to excessive vibration from his workplace use of vibratory hand tools causing personal injury and loss in the form of hand/arm vibration syndrome havs the claimant s solicitor s wixted co ltd letter of claim was sent on 24 february 2009 and proceedings were issued on 27 july 2010 the claimant s employment with the defendant appears to have commenced on 9 december 1996 initially as a bricklayer in the housing department where there was no vibration exposure after about 2 years the claimant transferred to the highways section as a sewerman the claimant in his statement stated that this transfer was in early 1998 at which point he alleged he began to be exposed to vibration the claimant was absent from work with a whiplash injury following a road traffic accident from 3 april 1999 to 5 june 2000 the claimant s employment with the authority terminated on 31 march 2001 the claimant s main duties were the repair and/or installation of sewerage pipes as part of a gang of two and he alleged that he used vibratory tools consisting of pneumatic jackhammers petrol powered disc cutters wacker plates and diesel powered pedestrian vibrating rollers the defendant adduced evidence from supervisors detailing the task times for the activities carried out by the claimant which is our usual approach to such matters where such evidence can be obtained www.dolmans.co.uk 2

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dolmans report on the parties obtained a single joint expert engineering report from mr ken garner of rhma who was of the opinion that the claimant s vibration exposure on his own evidence from 1998 to 2001 would have been in the region of between 4.4 and 5.6 m/s² a8 on the defendant s evidence on the other hand the exposure according to mr garner would have been in the region of 1.3 to 1.4 m/s² a8 for the same period risk assessments which appeared to have been undertaken on 12 may 1994 included vibration as an identified hazard with a high risk and identified the departmental safety policy as an existing control measure and manufacturers handbooks and specific training on new machinery as additional control measures the defendant s former health and safety officer provided witness evidence that regular health and safety toolbox talks were given from about 1987 at the canteen at telford street depot which included general awareness training on the risk of injury from vibration including information on the early symptoms and instructions to report early symptoms to supervisors however this officer had left his employment with the defendant on 22 april 1996 shortly before the claimant s employment with the defendant commenced and well before his duties as a sewerman began see above unfortunately but perhaps not surprisingly the relevant supervisors could not recall whether the claimant himself had been warned to report the onset of havs symptoms the claimant told the defendant s medical expert that there was talk about special gloves but his foreman said have these gloves we can t afford special gloves it seemed clear therefore that the risks of vibration were being discussed in the workplace during the claimant s employment an employee of the raglan training centre gave evidence that information concerning havs was given out on a course run by the centre and attended by the claimant commencing on 10 october 2000 www.dolmans.co.uk 3

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dolmans report on the claimant s symptoms had been graded by his expert on the stockholm scale bilaterally at 2v 1sn the claimant conceded that he had been troubled by hand symptoms since 2000 when he was then aged 28 it would have been startling if the claimant had been troubled by such intrusive symptoms at such a relatively young age without mentioning the same on his many contacts with medical professionals had he done so it was likely that he would have been diagnosed with the condition if present and he would probably have been fixed with constructive knowledge for the purpose of section 14 of the limitation act 1980 by 31 march 2001 at the latest the claimant made an application pursuant to s.33 contained within paragraph 2 of his formal reply which was embarrassing in its lack of particularity the claimant s delay of nearly 10 years lacked any credible explanation and it was felt likely that memories had faded in the intervening period and certainly the case that documents had been destroyed the claimant completed distribution of symptoms diagrams as part of his part 18 further information the claimant relied on the expert medical evidence of mrs sandy shiralkar vascular/general surgeon dated 14 november 2009 mrs shiralkar was of the opinion that the claimant was suffering from havs on the stockholm workshop scale bilaterally as 2v for vasospasm and 1sn for sensorineural the claimant s symptoms as measured by mrs shiralkar could be described as moderate the defendant relied on the expert medical report of dr roger a cooke consultant occupational physician dated 22 april 2011 the claimant s description of his symptoms to dr cooke and in his part 18 further information diagram were not consistent with raynaud s phenomenon ie finger blanching in addition the vibration dose up to the onset of symptoms was provided within a period of less than 15 months which even at the level of exposure set out in the claimant s evidence was unlikely to produce vascular symptoms dr cooke agreed that the claimant s description of his symptoms to mrs shiralkar were consistent with raynaud s phenomenon mrs shiralkar agreed that the symptoms described in the report of dr cooke and in his further information diagram were not consistent with vascular havs dr cooke did not consider that the claimant s sensorineural symptoms were consistent with a diagnosis of havs because since 2000 when on his own case symptoms first appeared the claimant had been subjected to medical examination on at least 10 occasions when either an entry of no neurological deficit in the upper limbs was recorded or the presence of symptoms in the hands would be expected to be recorded if present but there was no such record www.dolmans.co.uk 4

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dolmans report on the 2 day trial of the claimant s claim was due to commence on 25 january 2012 on 17 january 2012 around 1 week after the trial in the unrelated but similar tidey case the claimant offered to discontinue his claim on the basis that each party do bear its own costs a so called `drop hands discontinuance this was rejected on 18 january 2012 on 19 january 2012 the claimant discontinued his claim and thus became liable to pay the defendant s costs of the proceedings which will be subject to detailed assessment in the usual manner comment we continue to monitor carefully which havs cases proceed to trial this case would undoubtedly have proceeded to trial if the aforesaid discontinuance had not taken place the similarity of issues in the previously reported tidey case is important not just in terms of understanding the decision by the same firm of solicitors to discontinue this claim but also in our view in relation to the nature of havs cases regularly being seen by us some years ago havs claims were problematic for defendants in part because limitation issues were difficult to successfully argue as these claims have become more and more common and the condition has achieved greater public prominence any remaining claims referable to similar periods of exposure are becoming more and more difficult to prosecute due to limitation problems and if/when claimants seek to circumvent the difficulties presented by limitation by unreliable and/or differing accounts of their symptoms they find themselves rightly in difficulties as to medical causation havs claims require careful scrutiny at the best of times but our recent successes in the context of both medical causation and limitation give rise for some degree of optimism that the tide of `easy claims for claimants of this nature may be turning again claims still require careful scrutiny before any decision can be taken in terms of proceeding to trial and we will continue to keep our readers advised of the position in this respect jamie mitchell associate dolmans solicitors for further information regarding this article please contact jamie mitchell at jamiem@dolmans.co.uk or visit our website at www.dolmans.co.uk www.dolmans.co.uk 5

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dolmans report on idiopathic fibrosis v asbestosis differential diagnosis requires a meticulous and resolute approach to ensure success ac deceased v derbyshire county council this successfully defended claim concerned the perennial difficulty of differentiating between idiopathic fibrosis which is not compensable and asbestos induced fibrosis asbestosis which does attract compensation it underlines the need to ensure that `no stone is left unturned in the context of examining the evidence in relation to cases of this type and also emphasises the need for defendants to remain both patient and resolute in their approach to such cases ac deceased was employed at the raynesway incinerator in derby from 1967 until 1995 he began his career there as an electrician in the then newly constructed incinerator plant which had been commissioned for the purpose of disposing of virtually all of the domestic waste produced by derbyshire at that time soon after his appointment ac was promoted to deputy superintendent of the facility and soon after that to superintendent of the facility indeed he spent the majority of his career from the very early 1970s onwards in a managerial role at the incineration plant this claim was initially intimated in late 2007 and we were instructed pre-action in early 2008 at that time the claim was a straightforward living claim for asbestosis arising out of ac s employment at the aforementioned incinerator during the course of which allegedly he was exposed to injurious levels of asbestos dust and/or fibre we immediately commissioned a report from dr charles hind consultant chest physician who concluded that the pattern of the deceased s illness particularly its sudden severe onset many years after the last possible exposure to asbestos was such that he was not suffering with asbestos induced fibrosis asbestosis but was rather suffering with idiopathic fibrosis and on that basis the likely course of the disease would be that ac would die within 2 to 3 years of manifestation of symptoms thereafter the claimant s solicitors who were conducting the claim by way of conditional fee agreement obtained a report from dr ruth aldridge consultant chest physician who concluded predictably that ac was in fact suffering with asbestosis as a result of his previous exposure to asbestos at the aforementioned incinerator plant www.dolmans.co.uk 6

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dolmans report on as a result of this disagreement the stage was set for the usual controversy as to diagnosis and therefore the question of an objective assessment of the deceased s exposure to asbestos in order to establish or refute the diagnosis of asbestosis the site of the deceased s alleged exposure had already been the subject of a number of mesothelioma claims and there was no doubt that in the past the site had contained an amount of asbestos thermal insulation utilised in the context of the furnaces within the incinerator which was eventually removed in the early 1980s the key issues in this claim were the extent to which the deceased was actually exposed to respirable asbestos his alleged condition unlike mesothelioma being a `dose-related condition giving rise to certain parameters pursuant to the so called helsinki consensus of exposure before a confident diagnosis could be made the difficulty for the claimant s solicitors was of course the deceased s employment in a predominantly managerial capacity throughout his career and therefore the logical conclusion that he would not have been engaged in work `at the coalface giving rise to exposure set against this analysis was evidence from former colleagues of the deceased to the effect that he was throughout his career conscientious to the point of being obsessional about his job and would frequently `pitch in to assist members of the workforce in order to keep the incinerator plant operational upon the basis that it was a 24 hour day 7 day a week facility this included allegedly his assistance with repairs to the furnaces themselves by which mechanism he would have been exposed to significant amounts of asbestos dust due to its presence in the furnaces for thermal insulation purposes to complicate matters even further this evidence was by no means uncontroversial and it became necessary to seek to investigate as far as possible both the objective extent of the deceased s exposure and as part of that investigation the extent of thermal insulation and/or asbestos containing thermal insulation within the incinerator plant itself in particular the furnaces within the plant had been the subject of a number of refurbishments and/or partial refurbishments over the years during which asbestos insulation would have been removed and replaced with non-asbestos alternatives www.dolmans.co.uk 7

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dolmans report on following issue of proceedings in spring 2010 the deceased died as a result of his lung fibrosis in early september 2010 entirely consistent with the prediction provided by dr hind immediately prior to the deterioration in the deceased s health leading to his death in early september 2010 a decision was taken to offer a litigation risk based offer with a view to seeking to dispose of the claim and an offer of £20,000.00 plus costs was at that stage put forward at the point of the deceased s death this offer was in fact still open for acceptance and remained open for such acceptance for approximately a week after his death following the expiry of the relevant part 36 period the offer was withdrawn pursuant to the formal process for the withdrawal of such offers provided by part 36 of the cpr the reason for the withdrawal of this offer was obviously the fact that following the death of the deceased the availability of post mortem lung tissue samples and therefore the ability for both parties to undertake a mineral fibre burden analysis came to the fore obviously this was not an easy decision for the defendant at that point in time because such an offer may well have offered some degree of costs protection in the event that the results of the post mortem analysis were less than completely favourable to the defendant but equally not entirely favourable to the claimant either an inquest in relation to the deceased s death took place in late 2010 and the result of that inquest was death by occupational disease following the provision of evidence from the home office pathologist to the effect that there were sufficient asbestos bodies within the deceased s lung tissue to conclude that significant exposure had taken place and therefore to diagnose asbestos induced fibrosis asbestosis following the death of the deceased the claim became one of dependency damages pursuant to the fatal accidents act and/or the law reform miscellaneous provisions act on behalf of the deceased s widow by that stage the claim had a realistic valuation of between £150,000.00 and £200,000.00 dependent upon life expectancy issues as to the widow www.dolmans.co.uk 8

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dolmans report on despite the diagnosis provided by the home office pathologist following his examination of the post mortem samples we were not satisfied that this was in fact a genuine case of asbestosis by reason of the minimal numbers of asbestos bodies within the deceased s lung tissue we therefore sought a consensus with the claimant s solicitors as to the obtaining of appropriate histopathology evidence and in particular a report from dr richard attanoos of the llandough hospital in south wales a national centre of excellence in relation to the analysis of post mortem tissue samples in regard to asbestos induced disease initially the claimant s solicitors resisted any involvement of an alternative pathologist relying upon the evidence of the home office pathologist given at inquest the matter eventually came before the circuit judge in nottingham county court in march 2011 for a case management hearing in relation to our application for permission to obtain the aforementioned report from dr attanoos in the meantime extensive enquiries as to actual exposure continued including the obtaining of engineering evidence by both parties and the obtaining of and analysis of the engineering drawings for the incinerator plant itself this latter aspect of the evidential investigation took many hours of painstaking examination of the drawings themselves and their accompanying text in order to determine the extent to which asbestos containing materials had been used in the initial construction of the furnaces and/or removed in later refurbishments not to mention extensive enquiries by the legal department of derbyshire county council to locate these drawings at the incinerator site which is now owned by another company at the initial case management hearing before the circuit judge in nottingham county court the issue of histopathology evidence was adjourned pending finalisation and exchange of engineers reports and/or pending their joint statement as to their assessment of likely exposure levels predictably there was a huge disparity between the two engineers assessments of the deceased s exposure the defendant s engineer dr alan jones of the institute of occupational medicine in edinburgh calculated that the deceased s exposure to respirable asbestos was of the order of 5-10 fibre/ml years whereas the claimant s expert engineer calculated such exposure to be in the order of 80-100 fibre/ml years www.dolmans.co.uk 9

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dolmans report on in simple terms the defendant s calculations placed exposure well below the level required for asbestosis causation by reference to the helsinki consensus whereas the claimant s calculations placed exposure considerably in excess of this threshold at this stage neither set of calculations had been verified by reference to a post mortem mineral fibre count arising from the deceased s lung tissue or an independent analysis of the presence or absence of asbestos bodies within the deceased s lung tissue however this `legacy of exposure provided an obvious opportunity to objectively consider the engineers views in their joint statement the engineers predictably agreed to disagree as to their respective assessments of exposure at the adjourned hearing before the circuit judge in nottingham county court in june 2011 both parties were provided with permission to obtain histopathology evidence based upon the tissue samples obtained from the deceased s body at post mortem the defendant instructed dr richard attanoos and the claimant s solicitors instructed professor michael sheaff consultant histopathologist following his examination of one set of tissue samples taken from the deceased s lung tissue dr attanoos concluded that there was insufficient histopathology evidence to support a diagnosis of asbestosis in this case in that regard he relied upon his analysis of the tissue slides and his inability to detect sufficient numbers of asbestos bodies therein to satisfy the necessary criteria under the helsinki consensus further dr attanoos relied upon the pattern of the deceased s fibrosis at post mortem which in his view was inconsistent with asbestos induced fibrosis finally dr attanoos referred to the mineral fibre burden analysis undertaken at his request by professor frank pooley at cardiff university which revealed levels of amphibole asbestos fibres well outside the levels to be expected in an occupationally exposed individual by reference to the cohort maintained at llandough hospital entirely inconsistent arguably even allowing for the usual `back counting to allow for clearance of fibres since exposure ceased with the alleged extent of asbestos exposure postulated by the claimant s engineer interestingly in his report professor michael sheaff effectively agreed with dr attanoos views in relation to both the numbers of asbestos bodies and the pattern of the deceased s disease professor michael sheaff did not undertake a mineral fibre burden analysis of the deceased s lung tissue and for a short period of time it was unclear whether or not the claimant s solicitors would seek to rely upon a separate report in relation to this aspect which they had previously obtained permission for but had not disclosed within time from professor victor roggli of the united states of america www.dolmans.co.uk 10

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dolmans report on following the exchange of the histopathology reports the directions provided by the circuit judge in nottingham county court in june 2011 provided for further views to be supplied by the chest physicians dr hind reiterated his view that this was not a case of asbestos induced fibrosis and perhaps surprisingly dr aldridge maintained her view that this was a case of asbestos induced fibrosis asbestosis a further joint statement between dr hind and dr aldridge had been due to be finalised by the end of january 2012 prior to a further case management hearing before the circuit judge in nottingham county court for listing purposes on 10 february 2012 in the weeks leading up to that latter hearing we received an approach from the claimant s solicitors and negotiations regarding the case as a whole were engaged as a result of those negotiations it was resolved that the claim would be discontinued by the claimant certain concessions were provided by the defendant in relation to legal costs in the context of this discontinuance however the claim was obviously unsuccessful following the incurring of presumably significant legal costs and disbursements on behalf of the claimant as indicated above this case illustrates the extent to which it is necessary in claims of this nature to effectively ensure that absolutely all avenues of enquiry in relation to evidence medical evidence and expert engineering evidence are pursued as vigorously as possible this was certainly a claim where for significant periods of time it appeared likely that the claimant would succeed in achieving a finding as to causation it was only through the perseverance of the defendant that the matter continued to be defended and/or investigated to the very fullest extent this represents a significant victory for the local authority given the previous claims albeit in another context arising out of the same site and the view taken by hm coroner at inquest in december 2010 a potentially significant claim for which insurance was only partially available given the era involved has been avoided and a far better understanding of the position in terms of the presence of asbestos within the incinerator plant has been achieved in the context of any possible future claims of a similar nature peter bennett partner dolmans solicitors for further information regarding this article please contact peter bennett at peterb@dolmans.co.uk or visit our website at www.dolmans.co.uk www.dolmans.co.uk 11

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dolmans focus on new civil procedures for `designated money claims in the current financial climate the ministry of justice like many other organisations is keen to save costs by streamlining its resources where appropriate with this in mind the civil procedure rules cpr have recently been amended under the civil procedure amendment no 4 rules 2011 si 2011/3103 to implement changes in the way in which certain claims are dealt with between issue and allocation of proceedings the relevant rule changes can be found within parts 7 23 and 26 of the cpr together with practice directions 7a and 7d under the amended rules all `designated money claims from 19 march 2012 must be issued through the county court money claims centre ccmcc in salford no claims will be heard in the ccmcc which will act as an administrative centre only claims will actually be issued in the name of northampton county court there is no counter service at the ccmcc but a telephone helpline on 0300 123 1372 is available and e-mail enquiries can be sent to ccmcccustomerenquiries@hmcts.gsi.gov.uk what is a `designated money claim a `designated money claim is defined within the civil procedure rules cpr as any claim commenced in a county court under part 7 for either or both a specified or unspecified amount of money and is not a claim for which special procedures are provided within the cpr the definition therefore covers the majority of claims for debt and or damages including claims for compensation for personal injuries however not all claims are included within the definition for example claims that are excluded include those that include a claim for an injunction claims commenced under part 8 of the cpr and claims issued in the high court www.dolmans.co.uk 12

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dolmans focus on `designated money claims ­ from issue to allocation all `designated money claims must be sent to the ccmcc at salford business centre po box 527 m5 0by or salford business centre dx 702634 salford 5 the ccmcc will thereafter deal with all preliminary issues up to the filing of allocation questionnaires including any requests for default judgment after allocation questionnaires are filed cases will be transferred accordingly as referred to below allocation questionnaires will be sent to `unrepresented parties only where a party is represented the representative will merely receive notification of the date by which allocation questionnaires must be filed documents that do not require a fee can be filed by e-mail at ccmcce-filing@hmcts.gsi.gov.uk court fees still need to be paid by cheque although it is hoped that electronic payments will be implemented in due course at present therefore court proceedings cannot be issued electronically notices of issue should be received within 10 working days of the date when proceedings were sent for issue if requested by marking the claim form `solicitor service in bold proceedings will be returned to solicitors for service limitation concerns where there are limitation concerns proceedings will be date stamped by a local county court before being sent by dx to the ccmcc the date received by the county court rather than the date issued will be the relevant date for limitation purposes where limitation concerns are not imminent and there is sufficient time proceedings should be sent direct to the ccmcc as above transfer of proceedings unless a particular rule requires transfer to the defendant s `home court the claimant can nominate a `preferred court within the new form n1 claim form to which proceedings should be transferred if necessary notwithstanding this a district judge sitting in the `transferee court may decide that another court is more appropriate potentially leading to a `double transfer of proceedings www.dolmans.co.uk 13

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dolmans focus on enforcement processes warrants of execution will be processed at the ccmcc and appropriate documents should be filed there all other enforcement applications on ccmcc cases must be made to the debtor s home court the ccmcc will provide notification when judgment has been entered at which point enforcement can be requested from the relevant court conclusion although claimants and more precisely their representatives will initially face most of the changes implemented by the above amendments to the cpr it is important that defendants are also familiar with the same the first changes that defendants are likely to notice are that all `designated money claims served upon them will be issued `in the northampton county court and that the claimant will have included details of his/her `preferred court within the claim form proceedings may not necessarily be transferred to the defendant s `home court and there are likely to be more scenarios than present at least where matters are subjected to `double transfer before reaching their final court destination some cases will certainly fall foul of the limitation laws particularly in the early stages of the new regime as some representatives particularly those not specialising in such claims will undoubtedly be slow to appreciate the extent of the above changes in addition there have been various `pilot schemes where county courts have provided a limited counter service if this is implemented nationally as expected then claimants representatives will face even more difficulties in attempting to get `last minute proceedings issued in time undoubtedly there will be some `satellite litigation in light of these changes which will of course have to be dealt with by the courts whether this is offset by the resources saved by all `designated money claims being issued centrally remains to be seen tom danter associate dolmans solicitors for further information regarding this article please contact tom danter at tomd@dolmans.co.uk or visit our website at www.dolmans.co.uk www.dolmans.co.uk 14

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dolmans focus on nhs injury cost recovery scheme annual increases readers may be aware that the compensation recovery unit cru on behalf of the department of health currently administers the nhs `injury cost recovery icr scheme for england and wales the scheme allows for the recovery of nhs costs following injuries where people claim and receive personal injury compensation the tariff and ceiling on charges cap payable by compensators for the recovery of nhs treatment and ambulance charges under the nhs `icr scheme will increase from 1 april 2012 the increases will apply only to injuries sustained on or after this date this `annual uplift in the level of charges reflects hospital and community health services inflation as a `quick reference guide readers are referred to the following table that has been provided recently by the cru nhs treatment and ambulance journey charges accident date on or after out-patient in-patient cap ambulance charges per person per journey pre 2.7.1997 02.07.1997 01.01.2003 01.04.2003 01.04.2004 01.04.2005 01.04.2006 29.01.2007 01.04.2008 01.04.2009 01.04.2010 01.04.2011 01.04.2012 £295 £354 £440 £452 £473 £483 £505 £505 £547 £566 £585 £600 £615 £435 £435 £541 £556 £582 £593 £620 £620 £672 £695 £719 £737 £755 £3 000 £10 000 £30 000 £33 000 £34 800 £35 500 £37 100 £37 100 £40 179 £41 545 £42 999 £44,056 £45,153 £159 £165 £171 £177 £181 £185 further information regarding these changes can also be found on the department of health s website at www.dh.gov.uk for further information regarding this article please contact tom danter at tomd@dolmans.co.uk or visit our website at www.dolmans.co.uk tom danter associate dolmans solicitors www.dolmans.co.uk 15

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