UK: Legacy Claims - 2018 In Review

Last Updated: 18 January 2019
Article by Clyde & Co LLP

Most Read Contributor in UK, March 2019

Practitioners in the legacy claims market are sensitive to case law and legislation of relevance to them. The decision of the Supreme Court of Dryden regarding sensitivity to platinum will prove to be important to the claims market in the long term.

The decision has broadened what constitutes an actionable personal injury, which will have significant implications going forward.  

Dryden made clear that should an employer's negligence result in a 'physiological change' to an employee, then the employee may be entitled to claim compensation for any financial losses resulting, even in the event that the physiological change is asymptomatic. The judgment may prompt additional claims for minimal and imperceptible injuries, with the argument likely to be advanced that the physiological change has left a claimant worse off in some measure. Nonetheless, there do remain issues of causation for claimants to cross.

The decision in Dryden could be relevant in noise induced hearing loss claims, where any de minimis yet measurable hearing loss could now be argued as precipitating deafness in a claimant. However, any such impact is only hypothetical, and realistically claim numbers for NIHL claims have stabilised.

Clyde & Co have had success this year in defending de minimis hearing loss claims, as part of our continuing initiative to tackle these claims. Our strategic litigation expanded the de minimis threshold, under which claims will not be compensable.

Moving forward, the proposed fixed recoverable costs regime for NIHL claims has yet to come into effect, but any changes would likely affect the profitability of handling these claims. Therefore, any possible claims migration following the impending whiplash reforms may be limited by these changes.

Whilst the volume from noise induced hearing loss claims generally may have been turned down, the decision in Goldscheider made a big noise due to its possible implications for all manner of venues and professions. 

The Court found that the Claimant had suffered from 'acoustic shock' following exposure to excessive sound pressure during his employment at a concert. There are some concerns that this may have a large impact on concert venues and other public arenas and result in a deluge of claims of this nature, hence why an appeal was made and will be heard this year.

The High Court also provided some much needed commentary on the issue of contribution claims in legacy actions. The Court confirmed that time in these actions moves quicker than legacy insurers would prefer. 

A contribution claim brought by RSA following settlement of a mesothelioma claim against another employer's liability insurer was founded to be statute-barred as two years, not six years, was the relevant limitation period – per the Civil Liability (Contribution) Act. Once again, it should be noted that the decision has been referred to the Court of Appeal, and we await the outcome of that hearing in February with great interest.

The Court of Appeal also provided limitation guidance for abuse claims in Catholic Child Welfare Society. The Court of Appeal ruled that a judge should not have exercised his discretion under the Limitation Act 1980 when allowing a claim in relation to historic sexual abuse to proceed.

Moving beyond current claims trends, and into the handling of claims in the future, the High Court considered practice points in the rapidly developing area of immunotherapy. The case of Hague addressed the issue of where a different form of immunotherapy was recommended than that initially agreed to. The Court found that as the compromise agreement did not define the immunotherapy treatment to be used, the proposed new treatment was to be considered re-treatment and not a separate third-line therapy, such as surgery. This will provide food for thought for those insurers who agree to immunotherapy without specifying the exact terms of the treatment to be given.

Clyde & Co have also identified steady numbers of claims from individuals who allege that they have suffered personal injury as a result of occupational exposure from diesel fumes. There is significant scope to defend claims of this nature, as seen with our successful defence of such a claim for exposure to diesel fumes (and ammonia).

Outside of the UK, there have been eye catching headlines regarding litigation currently underway in the United States, which may give an insight into the future of the legacy market.

The world's most popular weed killer, Glyphosate (marketed as Roundup) was placed under the microscope in a test case in California which hit the headlines globally this year. The jury found Roundup was unsafe and was a substantial factor in causing the Plaintiff school groundskeeper's lymphoma. Awarding $39.25 million in compensatory damages and $250 million in punitive damages, the jury also found that Monsanto had failed to adequately warn consumers of the risks associated with its products and that the company acted with malice or oppression. The award was subsequently reduced to $78.5m on appeal (comprising $39.25 million each for both compensatory damages and punitive damages).

Similar allegations have been made against Johnson & Johnson in ongoing litigation alleging asbestos contamination in talcum powder resulting in a significant number of ovarian cancer cases. Once again, a spate of high profile cases has resulted in significant punitive damages being awarded by juries despite uncertainties in the scientific evidence. 

Whilst the main hurdle for these claims progressing in the UK lies with medical causation, further research is expected. Dryden may mean that it is more likely that claims will be advanced for physiological changes which have left claimants worse off in some measure.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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