BC DISEASE NEWS

A MONTHLY DISEASE UPDATE

May 2018 Edition

PAGE | 2

CONTENTS

PAGE 2

Welcome

PAGE 3

‘Good Reason’ to Depart from

the Budget: Jallow v Ministry of

Defence [2018] EWHC B7

(Costs)

PAGE 4

Update on Cold Calling Ban

PAGE 5

Updated Claims Portal MI

PAGE 6

IIAC Information Note on Non-

Melanoma Skin Cancer and

Occupational Exposure to

Ultraviolet Radiation

PAGE 7

IIAC Information Note on

Occupational Risk of Urolithiasis

PAGE 8

Lung Cancer Burden of

Occupational Diesel Exhaust

Exposure

PAGE 9

Feature:

Non-Asbestos-Related Causes

of Mesothelioma

Welcome

Welcome to the 229th edition of BC Disease News.

In this week’s edition, we review the latest High Court authority of Jallow v Ministry

of Defence [2018] EWHC B7 (Costs), which dealt with the question: was there

‘good reason’ to depart from the budgeted costs contained in the costs

management order (CMO)?

We also discuss two decisions, taken by the IIAC, to add to the list of prescribed

diseases eligible for disablement benefit. The Council, firstly, considered basal

cell cancer and squamous cell cancer, caused by UV radiation; and secondly,

recurrent kidney stones, caused by heat and dehydration.

In this week’s feature article, we evaluate a review, published in the Archives of

Pathology and Laboratory Medicine, which consolidates alleged non-asbestos-

related causes of mesothelioma into a single document. Current evidence on

alternative causes is widely inconclusive. We consider, therefore, the likelihood

that mesothelioma, not caused by asbestos, has an identifiable cause.

Any comments or feedback can be sent to Boris Cetnik or Charlotte Owen.

As always, warmest regards to all.

SUBJECTS

‘Good Reason’ and Costs Budgeting – Financial Claims and Guidance Bill –

Claims MI Portal March 2018 – Non-Melanoma Skin Cancer and UV Radiation –

Occupational Urolithiasis – Occupational Diesel Fumes and Lung Cancer – Non-

Asbestos Related Mesothelioma.

PAGE | 3

‘Good Reason’ to

Depart: Jallow v Ministry

of Defence [2018]

EWHC B7 (Costs)

In this article, we report on another High

Court authority, which has ruled on whether

there was ‘good reason’ to depart from an

agreed budget. As recently as edition 225

(here), we reported on the judgment of

Nash v Ministry of Defence [2018] EWHC B4

(Costs), which dealt with the same issue.

Jallow v Ministry of Defence (Jallow) [2018]

EWHC B7 (Costs) is the latest case to

examine the impact of a costs

management order (CMO) and the powers

of costs judges at detailed assessment.

The claimant had suffered ‘Non-Cold

Freezing Injuries’ to his hands and feet

during a tactical exercise with the British

Army. Liability was agreed between the

parties, but quantum was disputed.

Subsequently, a CCMC was listed on 12

October 2015 and heard by Master Leslie.

The claimant’s budget was reduced to a

single figure of £120,000 from around

£148,000, of which £78,500 were

budgeted costs and the remainder were

incurred. It was the view of the defendant

that the budget had been set by Master

Leslie on the basis that the claim had been

valued at £300,000. Claimant counsel,

however, argued that quantum had been

calculated twice in the schedule of loss:

£185,000 and £312,000.

After numerous Part 36 Offers, the claimant

accepted an offer for £90,000, four weeks

before the hearing on quantum.

At detailed assessment, the claimant

served its bill of costs, seeking in the region

of £188,000. Master Rowley, who handed

down his reserved judgment, reduced the

hourly rates in respect of incurred costs. The

question was whether the reduction, in

principle, provided ‘good reason’ to depart

from the claimant’s approved budget. The

defendant also argued that the reduction

in damages, by 70%, constituted ‘good

reason’ to depart. Had the ‘true value’ of

the claim been known at the time of the

CMO, the defendant submitted that the

approved figures would have been much

lower. Counsel for the claimant attributed

the reduction in valuation to the risks of

litigation.

Master Rowley dealt, firstly, with the

‘valuation issue’.

The claimant’s position was that the

defendant should have appealed the

order of Master Leslie at the CCMC, as

opposed to arguing that the CMO was

inappropriate at detailed assessment.

The judge, sitting in the Senior Courts Costs

Office, applied the ‘previous regime

regarding proportionality’, in the Court of

Appeal case of Lownds v Home Office

[2002] EWCA Civ 365, to the new regime.

He further stated that what was relevant to

his decision was:

‘… whether it was reasonable for the

claimant to believe that his case was worth

the sum that he claimed. It is only if he

could not reasonably have had that belief,

because his claim was exaggerated in

some way, that the budget might be

considered to have been set on a false

premise and as such should be departed

from on assessment’.

As such, Master Rowley reasoned that the

claimant had not exaggerated his claim

and rejected the defendant’s argument on

the valuation tranche. There was no ‘good

reason’ to depart from the budget on this

basis.

Master Rowley went on to consider the

defendant’s second submission on the

‘hourly rates issue’. He acknowledged that

judges at costs and case management are

‘exhorted’ by Costs Practice Direction 3E

paragraph 7 to approve total figures of

budgeted costs:

‘That approval is not achieved by

undertaking a detailed assessment of the

costs in advance but by considering

whether the budgets as claimed fall within

a range of reasonable and proportionate

costs. If they do not, he or she will revise the

budgets until they do so’.

In doing so, the judge reasoned that hourly

rates are not fixed or approved. They are

‘for reference purposes only’.

Harrison v University Hospitals Coventry &

Warwickshire NHS Trust [2017] EWCA Civ 792

established the concept of ‘good reason’,

but did not define what might amount to it.

Davis LJ did, however, suggest that it is a

sensitive matter to be judged on a case by

case basis, taking into account the

individual facts. The judge also cautioned

against costs judges adopting a lax or

overindulgent approach to the need to find

‘good reason’. We examined this decision

in edition 182 (here), much of which was

echoed by Mrs Justice Carr in Merrix v Heart

of England Foundation NHS Trust [2017] 1

Costs LR 91.

Claimant counsel argued that the ‘good

reason’ test is essentially the same as the

‘significant development’ test. Master

Rowley did not favour this interpretation,

however, reasoning that the ‘good reason’

test has a wider scope. Instead, he opined:

‘It seems to me that a similar test to the

"genuine issue" test is intended by the

"good reason to depart" terminology in CPR

3.18. In place of the solicitor's certificate is

the approval of the budget by the court. In

either situation, the judge at the detailed

assessment is not going to entertain a

challenge unless something is raised which

is specific to the case before the court.

There is nothing specific to this case

regarding the hourly rates challenge. If they

are reduced here, exactly the same point

would apply in any other case. That, in itself

in my view points to the conclusion that a

reduction in the hourly rates ought not to be

a good reason to depart from the budget’.

Tension, in this area of costs law, exists on

one side, with the certainty of recovery

afforded by the CMO, and on the other

side, with the need for reasonable and

proportionate costs, afforded by detailed

assessment proceedings.

PAGE | 4

In the case of RNB v London Borough of

Newham [2017] EWHC B15 (Costs), reported

in edition 197 (here), Master Campbell

made reductions to the hourly rates

claimed for incurred costs and considered

that this constituted a ‘good reason’ to

depart from the budget. Master Rowley

shared Master Campbell’s concern over a

lack of court scrutiny on assessment:

‘If it is the case that the receiving party can

claim any hourly rate (as long as it does not

offend the indemnity principle) in the

budgeted costs without it being assessed

by the court, that does not sit easily with the

assessing judge's responsibility to allow only

reasonable and proportionate costs on an

item by item basis. This is all the more so

where that judge has already found that

the hourly rates claimed in the incurred

costs parts of the bill were unreasonable.

Assuming they are the same rates in the

budgeted parts then then they are, by

definition, unreasonable hourly rates. This is

essentially the high watermark of the

defendant's argument’.

Master Rowley rejected the defendant’s

remaining argument. There was no ‘good

reason’ to depart from the budget, even

though the hourly rates had been reduced,

in respect of incurred costs:

‘The assumption on the part of the

defendant is that if each item is claimed at

an unreasonable hourly rate in the

budgeted part of the bill, then the totality of

the items in each of those parts must

equally be unreasonable. This would be so

in a conventional detailed assessment.

However, the budgeted part of the bill is not

dealt with by a conventional detailed

assessment. The court has to accept that

the budgeted figures for taking the case to

trial (as recorded in the CMO) are

reasonable and proportionate. Therefore, if

the sums subsequently claimed in the bill

are within that budget they are, on the face

of it, also reasonable and proportionate.

Where, as here, the case got to within a

short period before trial, and therefore it

can be assumed that much, if not all, of the

work had been done within the various

phases and the costs were still within

budget, the presumption is all the stronger

in my view that the costs incurred are

reasonable and proportionate’.

On reflection of the somewhat

contradictory judgement, the judge

professed that ‘two odd numbers added

together will still make an even number’.

On the contextual landscape of cost

budgeting and detailed assessments, the

judge concluded:

‘My concern, and I suspect Master

Campbell's, is that the lack of scrutiny at a

detailed assessment of the hourly rates

claimed will encourage parties to incur

costs up to the budget set for each phase

on the basis that they are unlikely to have

to withstand scrutiny at a detailed

assessment. As such there will be an

inflationary element which is only kept in

check by conventional detailed

assessments. But this concern is something

which has to yield to the aims of costs

management in making detailed

assessments shorter. For a long time, the

work of the costs judge has been described

as the compounding of "much sensible

approximation" to achieve justice.

Ultimately the use of CMOs is simply a

further example of that pragmatism’.

Full text judgment can be found here.

Cold Calling Ban

Accepted by the House

of Lords

We last discussed the Financial Guidance

and Claims Bill in edition 223 (here), when

we reported that MPs were considering

amendments, during the committee stage

of the Bill. A clause was inserted, prohibiting

live unsolicited direct marketing telephone

calls in relation to claims management

activities, except where the recipient has

given explicit consent to receiving such

calls.

The Financial Guidance and Claims Bill

underwent its third sitting last week, with the

Government and opposition still in

disagreement over whether the

Government’s proposed ban goes far

enough.1

As mentioned in previous

editions, the Labour position is to implement

a ‘complete ban’ on cold-calling,

including communication by text message.

At the 3rd

sitting, Jack Dromey, Labour

Frontbench Spokesperson, said:

‘Around 51 million personal injury-related

calls and texts are sent by regulated claims

management companies each year. The

Association of Personal Injury Lawyers has

long called for a ban on personal injury

cold calls from CMCs, especially as

solicitors themselves are already banned

from cold calling.

Ironically, only recently, the justice

secretary said that there would be a

‘forthcoming ban on cold calling’ when

discussing personal injury claims. If the

justice secretary believes that there is a

forthcoming ban, why do we not act now

and include it in this bill?’

In response, Treasury Minister, John Glen,

assured that the Government would

‘continue to have a meaningful dialogue

on the outstanding concerns ...’

This week, the Bill entered into the ‘ping

pong’ stage, with the House of Lords able to

amend, reject or accept existing

amendments but add no extras. By this

stage, any opportunity to institute a total

ban was likely to have passed.2

In the minutes of proceedings, Department

for Work and Pensions Minister, Baroness

Buscombe, told peers:

‘This amendment takes the onus away from

the individual to opt out of such calls being

made to them and puts the responsibility

back on the organisation to do its due

diligence before making such calls ... I am

confident that the amendment will have the

effect of making unwanted calls about

claims management services unlawful’.

She went on to say that:

‘The measures in the bill will be

complemented by existing and

PAGE | 5

forthcoming data protection legislation. Where personal data is obtained through an unlawful cold call, the further use of that data—for

example, to make further calls in the future—would be contrary to the Data Protection Act. The Information Commissioner’s Office can

issue fines of up to £500,000 for breaches of the Data Protection Act, although this will be raised significantly—to approximately £17m or

4% of a company’s turnover—through the forthcoming General Data Protection Regulation and the Data Protection Bill that is currently

going through Parliament’.

The House of Lords accepted the ban in its present form, rejecting Labour’s proposals to go further. The Bill will insert a provision into the

Privacy and Electronic Communications (EC Directive) Regulations.3 Liberal Democrat peer, Lord Sharkey, who had previously pursued

amendments, was satisfied with the Government’s commitments.

Updated Claims Portal MI

The Claims Portal has recently released its latest management information (MI) for March 2018.

In March, 696 disease claims entered the Portal. Of these 696 claims, 325 left it at Stage 1. The majority of these, 268 were because of

the time to reply expired. 57 cases were denied or admitted with an allegation of contributory negligence. The following graph shows a

12 month rolling summary of the number of CNFs that left the Portal at Stage 1 in 2017-2018. A 12 month summary takes into consideration

the total sum of CNFs for each month, adding them together and then subtracting the last month before adding the next month’s amount

to get the overall number for the previous 12 months. This is why the numbers in the graph below do not constantly increase.

Ministry of Justice Portal: EL/Disease Statistics March 2018 – Rolling 12 Month Summary of CNFs Leaving Portal at Stage 1.

The figures include CNFs that have not had a response at the end of Stage 1 – CNFs where liability has not been accepted and CNFs

where liability has been accepted with contributory negligence. The figures do not include CNFs that were taken out of the process using

the Exit function during Stage 1.

7 claims left the Portal at Stage 2 for reasons other than settlement. 342 were exited from the Portal: amongst these, 34 were duplicate

claims and 31 were because of an incomplete claim notification form. 165 claims left the Portal because the claim required further

investigation.

Consistent with the trend seen throughout the past four years, March has shown a decreasing number of claims settled through the Portal,

registering a low of 44. Meanwhile, 4 additional cases saw court packs completed so the court was able to adjudicate on quantum. Of

those claims that have settled through the Portal, the average amount of damages in March 2018 was £4,167, £663 more than the

amount recorded in March 2017 (£3,504). In January of this year, when we last reviewed portal figures (here), the average general

PAGE | 6

damages payment was £4,234, £67 more than March 2018 damages. The table below shows the trend in the amount of damages

secured from 2015-2018;

Ministry of Justice Portal: EL/Disease Statistics March 2018 – Average General Damages on Settled Claims

IIAC Information Note on Occupational Risk of Urolithiasis

The Industrial Injuries Advisory Council (IIAC) has published an information note on the occupational risks of recurrent kidney stones

(urolithiasis)4. The note was published following an inquiry into a former seaman, who had served long periods in hot regions and

developed urolithiasis. Currently, urolithiasis does not appear on the list of prescribed diseases for which disability benefit may be claimed.

Urolithiasis is the formation of stones anywhere in the upper urinary tract, including the bladder, the ureter or the kidneys. Stones most

commonly originate in the kidneys, and often cause no symptoms. The stones may cause pain, known as ureteric colic, when they move

from the kidney or obstruct the flow of urine. Sudden-onset, intense uretic colic is fairly common, and affects 1-2 people per 1000, every

year. Around 12% of men and 6% of women will have one episode of ureteric colic at some stage in their life, and over 80% of stones

are passed within a month without requiring treatment. In two-thirds of men, the stones can be recurrent. As the pain is usually intense,

most people with stones seek medical attention. An individual could claim they were disabled by stones if they have caused significant

damage to the kidneys or ureter, and perhaps if they had frequent recurrent episodes of ureteric colic.

There have been a few studies of occupational risks, which may cause stones to form. These studies are based on self-reported data. The

incidence or prevalence of stones recorded may therefore be less reliable.

The Council did not find any published systematic reviews of occupational risk factors of urolithiasis, so it undertook its own review, and

found the evidence to be limited. The review found that several occupational exposures have been described, but few associations

have been replicated in other studies. The strongest evidence in support of occupationally induced urolithiasis is in those whose work

entails exposure to renal toxins and in those who work in hot environments and suffer from dehydration. Although these groups showed

the strongest evidence, the evidence could not be described as strong. The Council’s review focused on three areas: cadmium, other

chemical exposures, and work at high ambient temperatures.

Cadmium is known to have toxic effects on kidney function. Two Swedish studies have reported that the risk of kidney stones increases

with increasing exposure to cadmium: a study of soldiers found that prevalence of stones was highest in those with the highest levels of

blood cadmium5, and; a study of male employees at a battery factory found that incidence of stones was higher in those with highest

estimated cumulative exposure to cadmium6. Similarly, a study from Glasgow found that the prevalence of stones in coppersmiths

exposed to cadmium was 40%, compared to 3.5% in an unexposed population7.

Chemical exposure was also identified as potentially increasing the risk of kidney stones. 18% of workers in a plastics factory, exposed to

trimethyltin, a chemical used in the manufacture of PVC, developed kidney stones, compared to 6% in another factory where there had

been exposure8. The prevalence of renal colic in Norwegian workers exposed to oxalic acid, which was used to clean railway carriages

PAGE | 7

before repainting, was 53%, compared to

12% in co-workers who were not exposed9.

It is also possible that exposure to ethylene

glycol may cause changes in urinary

chemistry that could lead to the formation

of kidney stones10

, but the incidence in

exposed workers has not been studied.

A few studies of work in hot conditions have

provided useful estimates. A study of

Brazilian steel industry workers found that

the prevalence of kidney stones was 8% in

those working in temperatures hotter than

45C, compared with 1% among other

workers11

. In a study of machinists in an

Italian glass factory, the prevalence of

kidney stones was 8.5%, compared to 2.4%

in employees working at normal

temperatures. In workers exposed to heat

stress, the prevalence of stones was 39%12

.

A study from Glasgow compared kidney

stone patients with the local population,

and found that 67% of patients had

occupational exposure to hot metals,

compared to 26% of the local

population13

. In Singapore, a study found

that the prevalence of kidney stones was 5

times higher in outdoor workers than in

indoor workers, with 5.2% versus 0.85% of

workers affected14

.

The Council only found one study relevant

to seamen, published in 1965. In a study of

350 Royal Navy personnel with confirmed

urolithiasis, between 1958 and 1964, the

estimated prevalence among non-officers

was highest in engineers and cooks, which

are the two occupations in which workers

are exposed to the highest temperatures.

In respect of all personnel, the rates were

highest in those who had served in the

Middle East or Far East15

.

The Council concluded that both working

with renal toxins and working in a hot,

dehydrating environment probably

increases the risk of urolithiasis. However,

this assumption is based on a small pool of

evidence, which lacks quality. Thus, the

Council concluded that there was

insufficient evidence to recommend that

urolithiasis should be added to the list of

prescribed diseases.

IIAC Information Note

on Non-Melanoma Skin

Cancer and

Occupational Exposure

to Ultraviolet Radiation

The Industrial Injuries Advisory Council (IIAC)

has released an information note on non-

melanoma skin cancer (NMSC) and

occupational exposure to natural

ultraviolet (UV) radiation16

. An information

note on melanoma is also going to be

released, as a separate document. In this

article, however, we discuss the IIAC’s

debate on the proposed addition of NMSC,

caused by exposure to occupational

sunlight, to the list of prescribed diseases.

This was considered in the wake of an

enquiry into a former seaman, which was

also the basis of the IIAC information note

on urolithiasis, above.

‘Primary carcinoma of the skin’, following

exposure to arsenic or arsenic compounds,

tar, pitch, bitumen, mineral oil (including

paraffin) or soot, currently appears on the

list of prescribed diseases. The entry on the

list does not include skin cancer arising

from exposure to sunlight during outdoor

working.

The main types of NMSC are basal cell

carcinoma (BCC) and squamous cell

carcinoma (SCC). Both are much less

dangerous than melanoma, as they are

less aggressive and less likely to spread to

other parts of the body. Around 3% of SCC

spread from the primary site and around

2% cause death. Of the NMSCs,

approximately 75% of cases are BCC and

the remaining 25% are SCC. Single or

multiple SCC and BCC tumours are

generally treated successfully with surgical

excision, usually with ‘excellent’ or ‘good’

cosmetic results. Any secondary tumours

that appear, in the rare event that the

cancer spreads, are treated by excision

and, in some cases, radiotherapy. Thus,

there are likely to be very few cases of

NMSC, particularly BCC, that would qualify

as being significantly disabling.

Occupational Exposure to Sunlight

Both BCC and SCC are caused by UV

radiation from sunlight. However,

measuring occupational exposure to

sunlight has its difficulties. Different studies

apply different methods to estimate sun

exposure. Some simply classify workers as

outdoor workers without being more

specific as to the exposures faced. Other

difficulties with measuring sunlight exposure

include overestimation, or incorrect/poor

recollection of exposure, as well as

mitigating factors, such as the optional

application of skin protection against UV

rays.

The Council noted that studies conducted

at lower latitudes than the UK were only

indirectly relevant to its decision, as the

duration and intensity of UV radiation is

much higher in those regions.

Basal Cell Carcinoma of the Skin

The information note refers to a high quality,

systematic review of the relationship

between BCC risk and occupational UV

exposure, published in 201117

. The review

included 24 relevant studies that gave

considerably varied risk estimates, partly

due to latitude. There was some evidence

for a dose-response relationship. 2 studies

were undertaken at latitudes similar to the

UK and showed a doubling of risk. These

were examined in more detail by the

Council. One of these studies referred to

‘outdoor workers’, but there was no

information on the type or duration of such

work18

. The other study referred to ‘frequent

or sometimes’ occupational UV exposure19

.

Again, there was no mention of the type or

overall duration of such employment to

clearly gauge the presence of a dose-

response relationship.

The Council also conducted a review of the

literature published post-2011. Few

informative studies were found and were

limited by the methods of occupational

exposure assessment. A case-control study

from Southern Germany reported an

increased risk with farming20

, and a case-

control study with participants from several

European countries found that there was

increased risk with farm or construction work

PAGE | 8

of any duration. There was also an

increased risk in patients with more than five

years of outdoor work experience.21

Squamous Cell Carcinoma of the Skin

The Council found a high quality systematic

review and meta-analysis of the risk of SCC

with occupational UV exposure, published

in 201122

. Similar to the findings for BCC,

the risk estimates varied considerably

between studies, due, in part, to the quality

of exposure assessment and differences in

latitude. The Council selected studies from

latitudes similar to the UK to analyse in

greater depth. In a study of Finnish

seafarers, the incidence of BCC and SCC

together was increased in those whose

cancer was identified 20 or more years

after first employment, and in those with 10

or more years on board the vessel23

. The

risk was more than doubled in male deck

officers, but not in male deck crew.

Elsewhere, a Swedish study of more than

320,000 male construction workers found

no increased risk of NMSC24

. In the group

with the highest outdoor exposure, there

was an increased risk of lip cancer, but this

was not statistically significant. Another

study reported a more than doubled risk of

SCC with outdoor work, without giving

further details of exposure duration. There

was also a study from Alberta, Canada,

which showed a ‘strong trend toward

increasing risk’ of SCC with outdoor

occupational exposure25

, while one study

reported a more than doubled risk of SCC

with outdoor work, but gave no further

details about the work or exposure levels26

.

Nevertheless, a study of workers in several

European countries found more than

doubled risks of SCC with farm or

construction work and with five or more

years of outdoor work experience27

.

As was also the case with BCC, the Council

reviewed all literature published since

2011. A very large study from four Nordic

countries noted an increased risk of SCC in

14 occupations. However, the risk was more

than doubled only in male physicians and

female administrators and among these

workers, SCC was only diagnosed in

subjects under the age of 5028

. There were

some increased risk estimates in farmers

and seamen, but there was no evidence of

increased risk in construction workers,

gardeners or forestry workers. In a German

study, researchers used a complex job

exposure matrix to estimate the lifetime

occupational exposure of participants29

,

but the Council considered this method to

be impractical for use in the context of UK

benefits assessment.

The Council concluded that it is probable

that the risks of both BCC and SCC are

augmented by outdoor work, e.g. in the

farming and construction industries. In

some cases, the risk is more than doubled.

It is a precondition of the IIAC that the risk

must be doubled for a disease to qualify for

addition to the list of prescribed diseases.

However, the evidence for these elevated

risks comes primarily from countries with

more intense UV exposure than the UK;

studies from latitudes similar to the UK

suggest that the risk is less than doubled.

It is not possible at this stage for the Council

to define occupational circumstances that

would lead to a doubling of risk. Though

some studies suggest that employees in

farming, construction and seafaring work

may be at an increased risk, no consistent

evidence has been found which

comprehensively associates risks with the

duration of such work.

On this occasion, the Council did not

recommend that SCC or BCC, caused by

occupational exposure to sunlight, should

be added to the list of prescribed diseases.

Lung Cancer Burden of

Occupational Diesel

Exhaust Exposure

A new study has estimated the proportion of

lung cancers in Canada which

occupational diesel engine exhaust fumes

are responsible for30

. The number of

workers exposed to diesel engine exhaust

fumes, between 1961 and 2001, were

estimated using data from the Canadian

Census and Labour Force Survey data,

while the risks of lung cancer were

calculated by pooling results from studies in

the literature. The proportions of lung

cancer due to occupational diesel fumes

were calculated and assessed with respect

to 2011 lung cancer statistics.

The analysis led to an estimate that 2.4% of

lung cancers in Canada were attributable

to occupational diesel engine exhaust

exposure. This corresponded to

approximately 560 (range 380 to 1570)

new cases and 460 (range 310 to 1270)

deaths in 2011. Overall, 1.6 million

individuals alive in 2011 were

occupationally exposed to diesel fumes

between 1961 and 2001, 97% of whom

were male. The occupations with the

highest burden were underground miners,

truck drivers and mechanics. Half of the

attributable lung cancers were found in

workers exposed to low levels of diesel

fumes.

In 2012, the proportion of lung cancer

deaths in the UK, onset by occupational

diesel exhaust exposure, was estimated to

be 1.84%. This corresponded to 695 (range

313 to 1269) new cases and 605 (range

272 to 1107) deaths31

.

The attributable fraction derived from the

Canadian study differs slightly from the

study conducted in the UK. Differences in

the number of diesel-related lung cancers,

recorded in Canada and the UK, are down

to variation in the number and proportion

of workers occupying affected industries

and job roles, variation in workplace

practice, and variation in exposure

prevention methods employed. Moreover,

exposure to other lung cancer-causing

agents, such as cigarette smoke, may have

skewed the percentage of diesel fume-

related lung cancer deaths.

The latest Canadian study was the first to

quantify the burden of lung cancer

attributable to occupational diesel exhaust

fumes in the country. The authors

concluded that their findings underscore a

large potential for prevention and a

significant public health risk.

PAGE | 9

Feature:

Non-Asbestos-Related Causes of Mesothelioma

A new academic review, published in the Archives of Pathology and Laboratory Medicine (APLM), has identified evidence in support of

non-asbestos-related causes of mesothelioma.32

Though it is well-known that many mesothelioma cases are due to the latent effects of

asbestos exposure, it is also clear that not all mesothelioma is related to asbestos. In this feature article, we consider whether exposure to

alternative substances, listed in the review, are also valid causes of mesothelioma.

ASBESTOS-INDUCED MESOTHELIOMA

Currently, most cases of pleural mesothelioma (70% to 90%) in European and North American men are attributable to asbestos exposure.

The proportion is lower for peritoneal mesothelioma. In women, the proportion of asbestos-related mesothelioma varies geographically;

in North America, few cases are attributable to asbestos. In Europe, the proportion is higher, and varies considerably by location.

Knowledge of asbestos-related diseases, such as mesothelioma, grew throughout the 20th century. Asbestos prohibition laws were first

introduced in the UK in the 1980’s. Indeed, in 1985, the Government banned the importation and use of blue (crocidolite) and brown

(amosite) asbestos. In 1992, this ban was extended to include specific use of white (chrysotile) asbestos, which were subsequently extended

in the Asbestos (Prohibitions) (Amendment) Regulations 1999, one month after the EU banned chrysotile.33

The UK’s Control of Asbestos Regulations Act 2006 (as amended in 2012) combined all previously existing legislation (the Control of Asbestos

at Work Regulations 2002, the Asbestos (Licensing) Regulations 1983 and the Asbestos (Prohibitions) Regulations 1992) into one single Act,

prohibiting the use, supply and importation of all asbestos. However, the Law still allows for existing asbestos to remain intact if it is in good

condition and is undisturbed.

As knowledge of alternative mesothelioma causes develops, such as those highlighted in the review, law making bodies may have to

strengthen regulations to align with emerging exposure risks.

MESOTHELIOMA-CAUSING MINERAL FIBRES?

In certain locations, mineral fibres, such as erionite, fluoroedenite, and possibly balangeroite, may cause mesothelioma.

Erionite

Erionite is a mineral with physical properties similar to amosite and crocidolite. It is found in volcanic regions associated with rhyolitic tuffs,

such as parts of Turkey, Italy and the United States. In North Dakota, hundreds of miles of roads were surfaced with gravel that contained

erionite, leading to high airborne concentrations of the mineral. An outbreak of mesothelioma in two villages in Turkey was studied, and

was found to be the result of exposure to erionite fibres used in the whitewash on the walls of houses. Some asbestos has also been found

in the region. It was determined that more than 50% of mesothelioma cases in the villages were caused by erionite, and some researchers

have suggested that the families involved could have a genetic predisposition to fibre-induced cancers. However, other authors have

challenged this view. In the United States, a high incidence of mesothelioma has been identified in rural areas with erionite contamination,

and there have been several cases of Mexican-born residents of the United States diagnosed with mesothelioma. Considerable quantities

of erionite fibres were found in lung tissue. Studies in experimental animals have also demonstrated increased risk of mesothelioma with

erionite exposure.

Source: Erionite (Wikipedia)

PAGE | 10

Fluoro-Edenite

Fluoro-edenite has similar properties to lesser-used asbestos amphiboles, actinolite and tremolite. The mineral has been found in Sicily,

and has been used in road paving and plaster and mortar construction of residential and commercial buildings. A study has found a 10-

fold increase in pleural neoplasms in those who are exposed, while pleural plaques have also been reported.

Source: Fluoro-edenite (E-Rocks)

Balangeroite

Balangeroite is a mineral that has some similar physical properties to amphibole asbestos fibres.34

It is found as a contaminant in chrysotile,

mined in Balangero, Italy. Some authors have attributed mesothelioma cases in this area to balangeroite. Others have questioned its

toxicity. Crocidolite and amosite have also been found in lung tissues in Balangero mining workers, the source of which is likely to be

South African amphiboles that were occasionally milled at Balangero. Since these workers were exposed to chrysotile, amphibole asbestos

and balangeroite, it is difficult to determine the contributions of each separate mineral to mesothelioma cases.

Source: Balangeroite (Mineral-Forum)

MESOTHELIOMA-CAUSING MAN-MADE FIBRES?

A variety of man-made fibres, such as rock wool, slag wool, glass fibre and glass filament have been studied to evaluate whether they

have the potential to induce mesothelioma in humans. Systematic reviews have found little evidence of any toxic effects. There have

been anecdotal case reports of metals, beryllium and nickel, and crystalline silica, found in sugar cane, causing mesothelioma. However,

this is insufficient to claim that there is an association.

MESOTHELIOMA-CAUSING RADIATION?

Radiation is a known cause of cancer. There are three different types of radiation exposure that have been linked with mesothelioma:

radiation received as treatment for a previous cancer; use of the medical imaging medium, ‘Thorotrast’ (thorium dioxide); and work in the

nuclear energy industry.

Radiation treatment for previous abdominal cancers, such as Hodgkin and non-Hodgkin lymphoma, Wilms tumour of the kidney and

breast cancer, are associated with mesothelioma. The latent period has been shown to be between 5 and more than 50 years.

PAGE | 11

The radioactive material, Thorotrast, was used in X-ray imaging until the 1950s. It has been implicated in causing a range of tumours,

including pleural and peritoneal mesothelioma. Thorotrast decays slowly in the body after it is administered, and emits radiation for the

duration of its presence in the body.

A link between mesothelioma and work in the nuclear energy industry has also been suggested. British Atomic Energy workers, employed

between 1946 and 1990, and workers at the Idaho National Engineering and Environmental Laboratory, have been found to be at

increased risk of mesothelioma.

MESOTHELIOMA-CAUSING INFLAMMATION?

It has also been suggested that chronic pleural and peritoneal inflammation may be a cause of mesothelioma. There have been

anecdotal reports of pleural mesothelioma following conditions, such as tuberculosis and emphysema, and of peritoneal mesothelioma

in patients with disorders such as Chron’s Disease.

MESOTHELIOMA-CAUSING VIRUSES?

The SV40 virus has been suspected as a cause of mesothelioma, as there have been positive findings in animal experiments. However,

the epidemiological evidence suggests that there is no causative role in humans.

Source: SV40 Virus (Wikipedia)

Simian virus 40 (SV40) is a virus that commonly infects Asian macaque monkeys. In normal monkeys, the infection is usually symptomless,

but it can have different effects on other species. Tumour-causing effects have been reported in cell and animal studies.

Human exposure to SV40 is believed to occur as a result of polio vaccinations, prepared from infected monkey cells. The authors estimate

that between 1954 and 1963, hundreds of millions of people may have been infected in the Soviet bloc, China, Japan and several

countries in Africa. That means hundreds of millions could have been exposed to SV40 after 1963.

In 2004, the US Food and Drug Administration (FDA) was a defendant in lawsuits alleging that the SV40-contaminated polio vaccine used

in the US has caused cancer.35

In spite of cell and animal study evidence, researchers of the review are uncertain as to whether SV40 causes mesothelioma in humans,

because SV40 it is difficult to detect. As such, the proportion of mesothelioma patients infected with SV40 is largely unknown and even if

evidence of SV40 infection is detected in a mesothelioma patient, this does not mean that the virus is causative of mesothelioma.

MESOTHELIOMA CAUSED BY GENETICS?

There is also some evidence that genetics may play a role in mesothelioma development. There has been much recent interest in the

role of the gene known as BAP-1 (BRCA1-associated protein-1). This gene produces a protein that is believed to function as a tumour

suppressor, and it has been suggested that a mutation in this gene may be associated with mesothelioma onset. Mutations that may lead

to increased susceptibility to cancer are hereditary.

Some sources claim that the mutation is found in an estimated 70% of mesothelioma cases.36

However, the review submits that studies of

mesothelioma patients have shown only a small proportion to have such a mutation. In spite of this, experiments in mice have found that

PAGE | 12

these genetic mutations may make individuals with low level exposure to asbestos more susceptible to mesothelioma, inferring an

interaction between genetics and asbestos exposure. Other studies have found that the mutation itself is enough to increase the risk of

mesothelioma alone, i.e. without exposure to asbestos.

The reviewers are aware of only one study in humans in which the link between genetics and asbestos exposure has been investigated.

In this instance, BAP-1 mutations were found in 9 of 150 patients with mesothelioma and a family history of cancer. Meanwhile, BAP-1

mutations were found in no patients, in a group with history of asbestos exposure but no family history of cancer. However, this study

classified asbestos exposure as either exposed or not exposed. Unfortunately, when it is clear that factors, such as fibre type and exposure

duration can have significant effects on the risk of mesothelioma, this study was insufficient to determine differences between the two

groups of participants.

Although there are complex proprietary issues on the ‘right to control the use and disclosure of … genetic information’, it is possible that

the BAP-1 gene could be adduced as a defense to liability in EL claims. Ortwein v Certainteed Corporation was the 1st case to rule on

this. The claimant was a 50 year old woman suffering with pleural mesothelioma. At the California Superior Court, Judge Jo-Lynne Lee

granted the defendant’s motion to compel production of the claimant’s lung tissue samples for genetic testing.37

MESOTHELIOMA-CAUSING NANOTUBES?

More recently, carbon nanotubes have emerged as a potentially new and emerging cause of mesothelioma.

Carbon nanotubes are long, thin tubes that have a wide range of applications. Concerns have been expressed about its physical

similarities with asbestos fibres. Though the findings from such studies do not necessarily indicate risks in humans, cell studies have shown

toxic effects and rodent studies have shown development of mesotheliomas resulting from carbon nanotube exposure. In issue 208 of

BCDN (here), we reported on a study in mice, in which 10% to 25% of test subjects exposed to carbon nanotubes developed

mesothelioma. Then, in issue 221 (here), we reported that a small study had found cardiovascular effects in exposed humans. Some

studies have found that carbon nanotube fibres may lead to inflammation, and that the length of the fibres correlates with inflammation.

Source: Carbon Nanotubes (Extreme Tech)

At this stage, there is little epidemiological information associating carbon nanotubes with mesothelioma. When mesothelioma has been

the result of asbestos exposure, exposure occurred many years earlier. Quite simply, humans are yet to be exposed to carbon nanotubes

for a long enough period of time. If carbon nanotubes can cause mesothelioma in humans, it is unlikely that significant epidemiological

evidence will be available for several decades. At that point, it is assumed that latency periods will have begun to elapse. In the

meantime, studies of carbon nanotubes in animals and studies into other adverse health effects in humans must be monitored carefully

to understand the full extent of risks posed by nanotubes.

MESOTHELIOMA WITHOUT CAUSE?

The latest review reports that all of the etiologies discussed in the above sections account for a small proportion of mesothelioma cases,

and, after excluding tumours caused by asbestos exposure, spontaneous onset of mesothelioma is the most common cause. Evidence in

support of a ‘background’ rate of spontaneous mesothelioma includes:

Lack of changes in the number of cases in women with time and commercial use of asbestos in the USA;

The occurrence of mesothelioma in children too young to have undergone a latency period typical of asbestos exposure;

Cases of mesothelioma in persons with no history of asbestos exposure, despite extensive investigation; and

The spontaneous occurrence of various tumours, including malignant mesothelioma, in laboratory animals.

PAGE | 13

The review includes a table, which collates the proportions of mesotheliomas attributable to asbestos, recorded in each study. Different

studies report different figures, due to varying study designs, different patient selection schemes, different views of which occupations

entail significant asbestos exposure, and differences in the historic use of amphiboles and chrysotile in different countries. It can, however,

be seen from the table that:

1. there is a definite fraction of mesotheliomas that have no identifiable cause;

2. this fraction is greater in women than in men (because more men had occupational asbestos); and

3. the fraction is greater in peritoneal than pleural mesothelioma.

In edition 213 of BC Disease News (here), we reported on an Italian study, which found that 38% and 13% of female and male cases of

pleural mesothelioma, respectively, were the result of ‘unknown’ or ‘not probable’ asbestos causes. The same was observed in 47% of

females and 21% of males with peritoneal mesothelioma. The observations in the table above are consistent with the findings in the Italian

study.

Consideration of age, sex and site of mesothelioma provides further evidence that mesotheliomas can arise without asbestos exposure.

Recent analysis of mesotheliomas diagnosed between 2003 and 2008, in the USA, showed that male rates are declining as female rates

remain unchanged. During this 5 year period, mesothelioma was more common in women than men below 45 years of age, of which

51% of cases were peritoneal. These findings suggest that there is a background of cases that are not caused by asbestos. In addition,

recently updated trend analysis shows that the incidence of peritoneal mesotheliomas among both males and females has little or no

association with commercial trends in asbestos use in the USA.

CONCLUSION

Overall, the proportion of mesothelioma cases attributable to asbestos varies according to sex, anatomic location, fibre type, occupation

and industry. The APLM-published report concludes that the alternative causes of mesothelioma account for only a small proportion of

cases, and that most cases not clearly attributable to asbestos are spontaneous, or the result of no particular cause. More research is

needed to prove that the factors discussed are causative of mesothelioma if successful claims are to be brought, either in respect of

public exposure, or workplace exposure.

PAGE | 14

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cases/> accessed 3 May 2018.

PAGE | 16

CONTENTS

PAGE 2

Welcome

PAGE 17

BC Disease News – Keep Connected

Application of the Two Year

Limitation Period in Contribution

Claims: R.G. Carter Building Limited

v Kier Business Services Limited

[2018] EWHC 729 (TCC)

PAGE 19

Good Reason for Shifting Costs

Burden Post-Discontinuance: Harrap

v Brighton & Sussex University

Hospitals NHS Trust [2018] EWHC

1063 (QB)

PAGE 20

Conspiracy to Commit Misconduct

in Sale of Information to GT Law

S&G UK Closes Two Regional Offices,

as £30 Million Investment is Prepared

PAGE 21

Further Personal Injury Reform

Scrutiny

Erroneous Link Between Brain Cancer

and Mobile Phones

PAGE 22

Private Treatment in Non-Melanoma

Skin Cancer Claims?

Global Melanoma Data and UV

Radiation

PAGE 24

Mesothelioma Onset by Asbestos:

Environmental Versus Occupational

Exposure

PAGE 25

Increased Risk of Chronic

Obstructive Pulmonary Disorder with

Occupational Exposure to Biological

Agents

PAGE 25

Feature:

40-Fold Increase in Sheep Dipping

Treatment for Sheep Scab Since

2013

Welcome

Welcome to the 230th edition of BC Disease News.

This week, we hosted the first of our mesothelioma breach of duty conferences,

titled: ‘Bussey: Where Next?’ in Leeds. Our London conference will be taking place

on 31st May. If you wish to book a place at the conference later this month, you

can find the appropriate contact details here.

In this edition, we examine the High Court authority of R.G. Carter Building Limited

v Kier Business Services Limited [2018] EWHC 729 (TCC), in which the judge gave

an answer to the question: from what point does limitation begin, under s.10(4)

of the Limitation Act 1980, if a party wishes to proceed with a contribution claim,

in respect of the costs of settlement.

In addition, we report on a recent study, which did not find evidence of a

definitive link between mobile phone use and brain cancer development,

despite newspaper headlines implying the opposite. In the same article, we

report that legal proceedings have been brought against Nokia. The claimant

developed an acoustic neuroma tumour and attributed this to years of mobile

phone use.

In this week’s feature article, we look into sheep scab and the effect of a common

treatment method, sheep dipping, on associated workers. We do so after

recently published data conveyed a 40-fold increase in sheep dipping over the

past half-decade.

Any comments or feedback can be sent to Boris Cetnik or Charlotte Owen.

As always, warmest regards to all.

SUBJECTS

GDPR – Limitation in Contribution Claims – Cost Burden and Discontinuance –

Data Protection Sanctions in RTA Claims – Slater and Gordon Office Closures –

Civil Liability Bill – Brain Tumours and Mobile Phones – Non-Melanoma Skin Cancer

Costs – Worldwide Melanoma in 2012 – Environmental and Occupational

Asbestos Exposure and Mesothelioma – Brain Cancer and Mobile Phones –

Chronic Obstructive Pulmonary Disorder and Biological Agents – Sheep Dipping

and Sheep Scab.

PAGE | 17

BC Disease News – Keep Connected

The General Data Provision Regulations come into force on 25 May 2018.

To continue receiving BC Disease News and any other news updates from BC Legal, click the banner in the

Newsletter email, or alternatively, contact Boris directly.

If you do not opt in, you will be removed from our circulation list.

A copy of BC Legal’s Privacy Notice, with details on how we store and use your personal data, can be found here.

Application of the Two Year Limitation Period in Contribution Claims: R.G.

Carter Building Limited v Kier Business Services Limited [2018] EWHC 729

(TCC)

On 5 April, the High Court handed down judgment in the case of R.G. Carter Building Limited v Kier Business Services Limited [2018] EWHC

729 (TCC). This case questioned the proper construction of s.10(4) of the Limitation Act 1980 in respect of a contribution claim. Was the

claim statute barred?

Arbitration proceedings were brought against the claimant. A settlement agreement, in principle, was reached during April of 2015, but

the official agreement was signed on 29 June 2015. Subsequently, on 20 September 2017, the claimant issued proceedings against the

defendant for a contribution of £205,908.60, in respect of the costs of settlement. The defendant submitted that the contribution claim was

statute-barred, under the Limitation Act, when the parties entered into a standstill agreement, on 28 April 2017.

Section 1 of the Civil Liability (Contribution) Act 1978 states that ‘any person liable in respect of any damage can recover contribution from

another person liable in respect of the same damage’ and, specific to the case of Carter, s.1(4) provides that:

‘A person who has made or agreed to make any payment in bona fide settlement or compromise of any claim made

against him in respect of any damage… shall be entitled to recover contribution in accordance with this section…’

However, contribution claims are subject to restrictions afforded by the Limitation Act. Section 10(1) provides that no action to recover a

contribution may be brought from the date on which the right to recover is accrued. Pursuant to s.10(3), the right is deemed to have been

accrued after the expiry of a two year period from the date of judgment or settlement award against the party seeking contribution.

Alternatively, pursuant to s.10(4), the right is accrued from the earliest date on which an agreed settlement is made.

PAGE | 18

For the purpose of Carter, the issue was ‘whether time runs under section 10(4) only once the parties have entered into a binding agreement

for the payment of compensation, as Mr Walker QC [claimant Counsel] submits, or whether something short of a binding agreement is

sufficient to start time running, as Miss McCafferty [defendant Counsel] submits’.

Mr Pepperall QC, at the High Court, considered the case authorities on the s.10(4) requirements. In Aer Lingus plc v Gildacroft Ltd [2006]

EWCA Civ 4, Rix LJ found that an agreement, under the sub-section, must be in relation to ‘the amount of the payment and not merely as

to liability’. Further, Morris J, in Spire Healthcare Limited v Brooke [2016] EWHC 2828 (QB), ruled that the date of agreement runs ‘from the

date of agreement of the final sum to be paid’.

Counsel for the defendant argued that the sub-section did not necessitate a binding agreement, instead that an agreement in principle

would suffice. It was submitted that, even though the defendant’s interpretation of s.10(4) was to be contrasted with s.1(4) of the 1978 Act,

which requires binding settlement, Parliament could have explicitly stated, within the Limitation Act, that a binding agreement is obligatory,

if that had been its intention.

Moreover, defendant counsel cited McGee on Limitation (7th edition), at paragraph 15-024:

‘Section 10(4) states quite clearly that time runs from the date on which the amount of compensation is agreed. In

out-of-court settlements there may well be a number of other matters requiring to be agreed, such as date of

payment, possibility of instalments and method of payment. However, none of these has any relevance. Agreement

on them will not set time running but absence of agreement on them will not prevent it from running – it is only the

amount of compensation that must be agreed’.

Indeed, Knight v Rochdale Healthcare NHS Trust [2003] EWHC 1831 was a case where the agreement as to the settlement sum, without

agreement as to the method of payment, was enough to start the limitation clock.

By contrast, counsel for the claimant submitted that the natural meaning of ‘agreed’, under s.10(4), infers the existence of a binding

agreement. On the interpretation pursued by the defendant, limitation would begin running before the claim for contribution, under the

1978 Act, arose. The claimant cited the case of Baker & Davies plc v Leslie Wilks Associates [2005] EWHC 1179 (TCC), which, unlike Knight,

found that limitation ran from upon the execution of the subsequent settlement agreement, rather than from the agreement of a proposed

settlement on a subject to contract basis.

Mr Pepperall QC agreed with Rix LJ, in Aer Lingus, in stating that s.10(3) and (4) are mutually exclusive and, as a result, limitation cannot

start to run if an unenforceable agreement is reached.

PAGE | 19

The judge favoured the construction of the

defendant, i.e. that a binding agreement is

relevant to the date on which the right to

recover is accrued. He perceived this to be

necessary for the ‘interplay’ between the

1980 and 1978 Acts, as claimant counsel

had highlighted. Following the approach

taken in Baker, Mr Pepperall QC

determined:

‘It will be evident from my earlier review of

the evidence that the negotiations during

April 2015 were expressly conducted on a

subject to contract basis ... Binding terms as

to the payment in kind were only agreed

upon the execution of the settlement

agreement on 29 June 2015.

In view of this finding and my conclusions

as to the proper construction of section

10(4), it follows in my judgment that this

contribution claim is in time’.

The judge went on to set out his conclusion,

in the event that he was wrong as to the

proper construction of s.10(4). Earlier in his

judgment, he stated that ‘if something less

than a binding agreement suffices, it is

entirely unclear what lower standard is to

be applied’. Mr Pepperall QC established

that there had not been, in any event,

agreement as to the payment.

Consequently, the defendant’s limitation

defence failed.

Full text judgment can be accessed here.

Good Reason for

Shifting Costs Burden

Post-Discontinuance:

Harrap v Brighton &

Sussex University

Hospitals NHS Trust

[2018] EWHC 1063 (QB)

Last week, judgment was handed down in

the case of Harrap v Brighton & Sussex

University Hospitals NHS Trust [2018] EWHC

1063 (QB). The ruling demonstrates the

importance of reviewing witness evidence and the adverse costs consequences of failing

to do so.

The case involved a clinical negligence claim. It was alleged that the defendant Hospital

Trust had failed to perform a cardiology review, which could have prevented the claimant’s

stroke, in 2012. The claim was discontinued on the 3rd

day of the trial.

In her judgment, Mrs Justice Lambert DBE considered the costs consequences of the action.

The claimant argued that it should only bear the burden of costs up to the date of witness

statement exchange, as evidence, fatal to the claimant’s case on factual causation, was

adduced for the first time during trial cross-examination.

Did the ‘wholly new evidence’ create a change of circumstances?

The claimant submitted that the defendant had ‘failed to set out the full story’, thereby

constituting good reason for the Court to depart from the general default position that

discontinuing claimants should pay the defendant’s costs in their entirety.

The defendant argued that the discontinuance was ‘merely a smokescreen to avoid the

inevitable costs consequences of a trial which was doomed to failure from the outset’ and

the evidence relied upon having accelerated the discontinuance was irrelevant.

Rules on costs liability following discontinuance is provided for in CPR 38.6:

Claimants may escape the presumption that the liability for costs may shift, however. In

Teasdale v HSBC Bank Plc [2010] EWHC 612, Judge Waksman QC stated:

‘i) When a claimant discontinues the proceedings, there is a presumption by reason of CPR

38.6 that the defendant should recover his costs; the burden is on the claimant to show a

good reason for departing from that position;

ii) the fact that the claimant would or might well have succeeded at trial is not itself a

sufficient reason for doing so;

PAGE | 20

iii) however if it is plain that the claim would

have failed, that is an additional factor in

favour of applying the presumption;

iv) the mere fact that the claimant's

decision to discontinue may have been

motivated by practical, pragmatic or

financial reasons as opposed to a lack of

confidence in the merits of the case will not

suffice to displace the presumption

v) if the claimant is to succeed in displacing

the presumption he will usually need to

show a change of circumstances to which

he himself has not contributed;

vi) however, no change in circumstances is

likely to suffice unless it has been brought

about by some form of unreasonable

conduct on the part of the defendant

which in all the circumstances provides a

good reason for departing from the rule’.

These requirements were approved by

Moore Bick LJ in the case of Erica Brookes v

HSBC Bank [2011] EWCA Civ 354. Further,

the displacement of CPR 38.6(1) is a high

threshold to satisfy, per Beatson LJ in

Nelson's Yard Management Co v Eziefula

[2013] EWCA Civ 235.

As such, the judge highlighted that she

‘must find that there has been a change of

circumstances (and if so, separately, that ...

it is due to the unreasonable conduct of the

Defendant ...) to which the Claimant has

not contributed’, to displace the burden.

CHANGE OF CIRCUMSTANCES?

Firstly, Lambert J stated, at paragraphs 20

and 21:

‘I find that there has been a change of

circumstances as a consequence of the

new evidence which was elicited at trial.

The new evidence had a direct bearing

upon the Claimant's case and its effect was

to shut down the claim on factual

causation. Mr Mylonas found himself

confronting a new factual scenario in

respect of which he had no effective

means of challenge.

Nor do I find that the Claimant or his team

contributed to the change in

circumstances.

UNREASONABLE CONDUCT?

On this question, Lambert J went on to

reason, at paragraph 23, that:

‘I accept Mr Mylonas' submission that, by

oversight, salient details were omitted from

the witness evidence. This failure to set out

the full story was unreasonable. I note that

no explanation for the absence of this

evidence has been provided by the

Defendant at any stage.

For these reasons, I therefore conclude

that, on the unusual facts of this claim, the

default position that, following

discontinuance, the claimant should bear

the entirety of the defendant's costs should

be displaced. I accept that the threshold

for rebutting the presumption in CPR 38.6 is

high, but I find that the threshold has been

reached in this case’.

The judge ordered that the claimant should

bear the defendant’s costs in the usual way,

up to the date of the cardiologist’s

December 2017 report, as opposed to the

date of exchange of witness evidence, in

July of 2016. Thereafter, each party was

responsible for its own costs.

Full text judgment can be accessed here.

Conspiracy to Commit

Misconduct in Sale of

Information to GT Law

An ex-police officer has been ordered to

repay £368,000 at a Chester Crown Court

hearing, following an RTA claims

conspiracy1.

An investigation, conducted by Lancashire

Constabulary’s Professional Standards,

Integrity and Anti-Corruption Team, found

that the former immediate response officer

had sold over 20,000 accident logs to a

business development manager at GT Law,

over the course of 7 years.

Subsequently, the claimant personal injury

firm contacted members of the public to

whom the logs concerned, inviting them to

pursue compensation claims. This was met

with complaints, as affected individuals

had not disclosed their personal details to

anyone outside of the police. GT Law

entered into administration in October of

2015.

In October of 2017, the discharged officer

was given a 5 year jail sentence (reduced

on appeal to 4) after pleading guilty to

misconduct in a public office, conspiracy

to commit misconduct in public office,

money laundering and unauthorised

access to a computer. Last week, at a

proceeds of crime hearing, he was ordered

to pay £368,000.

As for the conspiring business development

manager, he had previously been given a

two-year suspended sentence and a

£115,000 confiscation order for conspiring

with to convert criminal property (money

laundering) and commit unauthorised

access to a computer.

Ben Fletcher, Director of the Insurance

Fraud Bureau, in reaction to last week’s

Crown Court ruling, said:

‘This result is another victory in this shocking

case. Mungur used his position as a trusted

member of the police to capitalise on

other’s misfortune, by selling their

information illegally to companies that

encouraged fraudulent insurance claims. It

is only right that money he used to fund his

extravagant lifestyle is recuperated, hitting

him exactly where it hurts. Our message is

clear, punishment doesn’t stop at a prison

sentence, you will pay for your crimes in

every possible way’.

S&G UK Closes Two

Regional Offices, as

£30 Million Investment is

Prepared

Last week, Slater and Gordon’s UK

operations, now separate from the

Australian Stock Exchange listed entity,

announced that it would be closing two of

its regional offices (Fareham and Sheffield),

PAGE | 21

while also revealing plans to invest £30

million in new technology and services over

the next three years.2 We last spoke about

closures of S&G offices in Chester,

Wrexham, Milton Keynes and Preston, in

edition 210 (here).

The proposed cash injection of £30 million

will be invested in ‘legal technology and

growing areas of the law’. Chief Executive

of S&G, David Whitmore, has said that the

investment will attempt to grow the firm’s

market share and capitalise on

opportunities created by a reforming

personal injury sector.

More Personal Injury

Reform Scrutiny

We last spoke about personal injury reforms

in edition 228 (here), when the House of

Lords undertook the second reading of the

Civil Liability Bill.

We also reported that the House of Lords

Delegated Powers Committee were not

convinced by proposals for vesting powers

with the Lord Chancellor to set the tariff for

damages, over judges or independent

medical experts.

However, last week, Lord Keen argued that

the Government should set out

compensation for soft tissue injuries within a

statutory instrument, after the Bill has been

passed:3

‘Our view is that it is right to set the tariff

through regulations, which will help to

control those costs and ensure greater

certainty to both claimants and defendants

when they come to deal with these claims

[and] This is essentially a matter of policy to

deal with a very particular problem. It is a

political decision; it is not one that we

consider is for the judges; it is one that is

ultimately for the lord chancellor to deal

with in his capacity as a minister’.4

Since the committee stage of the Bill, MPs

on the Justice Select Committee have

voiced issues with the Government’s plans.

The Committee recommends that the PI

small claims limit should be £1,500 (uprated

by the consumer price index since 1999),

rising with inflation. 5

It finds little credibility

in the Government’s decision to raise RTA

and PI claims to the figures suggested:

‘Given the potential complexity of these

claims and the role of litigation in

maintaining safe and healthy workplaces,

MPs recommend that they be subject to a

small claims threshold of £1,500’.6

The Committee also advised that the

implementation date of the Bill should be

delayed until April of 2020, in order to make

sure that the Government can assure a ‘fully

functional electronic platform’. This would

require significant work and testing on a

wide range of users. The Committee

stressed that a ‘new online platform’ would

not be appropriate for EL and PL claims,

given the associated complexities.

The electronic platform system was also

criticised by the Justice Select Committee

for not yet overcoming the issue of

‘inequality of arms between professionally

represented insurers and self-represented

claimants’, especially regarding disputes

on liability and quantum:

‘… we conclude that the government has

not done enough to explain how claimants

of limited means with legitimate claims are

expected to finance court fees and expert

reports’.7

Bob Neill MP, Justice Committee Chair,

concluded that:

‘The small claims limit for personal injury

should not be increased unless ministers

can explain how it will make sure that

access to justice is not affected.’

We will provide additional Civil Liability Bill

updates in due course.

Erroneous Link Between

Brain Cancer and

Mobile Phones

Several news articles have reported that

mobile phones use leads to an increase in

brain cancer cases in England.8 9 10

However, in a recent study, although

researchers reported that there had been

an increase in the incidence of one type of

brain tumour in England, no association

with mobile phone use was identified.11

The researchers investigated the number of

brain cancer cases in England, between

1995 and 2015, and observed the variation

of tumour incidence over time. Analysis

showed that diagnoses of an aggressive

tumour, known as glioblastoma multiforme

(developing in the front temporal lobe),

rose sharply during the study period. The

numbers of cases of other brain tumours

have either remained constant or

decreased.

The study used data from the Office of

National Statistics to determine the number

of cancer diagnoses. There were no

investigations into the lifestyles of the brain

cancer patients, nor comparisons made

between brain cancer patients and the

remainder, who did not develop cancer.

Since all that was investigated was the

number of cases, the design of this study

does not allow any conclusions to be made

in respect of the cause of any changes.

There are, however, a number of factors

that could explain the increase in this type

of brain cancer, including improvements in

diagnosis and changes in the way brain

tumours are classified.12

Other potentially

causative factors, discussed in the paper,

include mobile phones. It would seem that

news articles have reported mobile phone

use as a ‘likely cause’ of brain cancer

cases, although the paper did not explicitly

say this.

In spite of dramatic newspaper headlines,

this British study does not provide evidence

PAGE | 22

of a link between mobile phone use and

brain tumours.

However, this week, the Daily Mail has

reported that an ex-salesman, in the UK,

has brought a claim against Nokia worth

‘up to £1 million’.13

Neil Whitfield, 60,

developed an acoustic neuroma tumour

between his ear and brain. After a tumour

removal operation, in 2001, he was left

deaf in one ear and was subsequently

unable to work. In this landmark case, Mr

Whitfield has attributed long periods of

mobile phone use to the cancer suffered.

The implications for the mobile phone

industry, should this claim succeed, could

cost the mobile phone industry millions.

Nokia’s spokesman echoed the position of

the Journal of Public Health and

Environment article, on medical causation:

‘All products comply with international

exposure guidelines and limits that are set

by public health authorities. The World

Health Organisation factsheet states that “A

large number of studies have been

performed over the last two decades to

assess whether mobile phones pose a

potential health risk. To date, no adverse

health effects have been established for

mobile phone use”’.

Private Treatment in

Non-Melanoma Skin

Cancer Claims?

A new study has estimated the total costs

and the costs per case of newly diagnosed

non-melanoma skin cancer (NMSC)

attributable to workplace sun exposure, in

Canada, in 2011. An estimated 2,846

(5.3%) cases of basal cell carcinoma (BCC)

and 1,710 (9.2%) cases of squamous cell

carcinoma (SCC) were attributable to

occupational solar radiation.

The researchers investigated direct costs

and indirect costs of NMSC. Direct costs

included healthcare costs, out-of-pocket

costs (travel to healthcare appointments,

medicines, vitamins and supplements, and

hotel costs) and informal caregiver costs.

Indirect costs included loss of income and

home production costs (the cost of

domestic tasks that the patient would not

be able to do). They also considered

intangible costs, i.e. the monetary value of

the loss of health-related quality of life.

The combined total for direct and indirect

costs of 4,556 occupational NMSC cases

was $28.9 million, of which $15.9 million

was for BCC and $13.0 million was for SCC.

The total intangible costs for NMSC cases

was $5.7 million, of which $0.6 million was

for BCC and $5.1 million for SCC.

In terms of broken down costs per case, the

average cost of a BCC case was $5,670

and the average cost of a SCC case was

$10,555. The costs are higher for SCC

because SCC has a lower survival rate,

which results in higher indirect and

intangible costs.

Canada sits at a similar latitude to the UK,

which means that outdoor workers in both

countries will be exposed to similar levels of

solar radiation: Fort McMurray (Canada)

and Dundee (UK) are both at 56°F degrees,

Calgary and Winchester are both at 51°F,

and Plymouth and Winnipeg are both close

to 50°F. Some major Canadian cities are

slightly further South, with Ottawa at 45°F

and Toronto at 43°F.

Roughly 1 in 10 workers in Canada are

exposed to solar radiation at work, and the

majority of these spend 6 hours or more

outdoors per day. In the UK, workers in

agriculture, leisure, landscaping and

construction are the most likely to be

exposed to solar radiation.

The study’s main investigator, Dr. Emile

Tompa, said:

‘The findings suggest that policy-makers

might give greater priority to reducing sun

exposure at work by allocating

occupational cancer prevention resources

accordingly’.

Recently, in issue 229 of BC Disease News

(here), we reported that the Industrial

Injuries Advisory Council has undertaken a

review of occupational NMSC, and found

that there is insufficient evidence to add

NMSC to the list of diseases for which

industrial injury disablement benefit may be

claimed. As a result, it is possible that

patients will attempt to bring private claims

against their employer for direct, indirect

and intangible costs in NMSC claims.

Global Melanoma Data

and UV Radiation

The International Agency for Research on

Cancer (IARC) has published a study into

the global burden of melanoma of the skin

attributable to UV radiation in 2012.14

The

information is also presented on a website,

where data can be filtered to produce

tailored representations of data.15

In the study, the researchers quantified the

number of melanomas of the skin that are

attributable to UV radiation. Figures for 153

countries were collected and then

separated by age and gender.

Comparisons were then made between

melanoma cases and those with minimal

exposure to UV. Researchers also

compared melanoma cases with dark-

skinned African populations who have low

susceptibility to the effects of UV.

Results of the study found that Worldwide,

there were at least 168,000 cases of

melanoma, attributable to UV radiation, in

2012. This corresponded to 75.7% of all

new melanoma cases and 1.2% of all new

cancer cases. Positive cases were

concentrated in highly developed

countries and was most pronounced in

Oceana, where 96% of all melanomas

were attributed to UV radiation. If

incidence rates in every population were

equivalent to those in low-risk (dark skinned,

skin with lots of pigment) populations, there

would be approximately 151,000 fewer

melanoma cases each year.

The IARC concludes that these findings

underline the need for public health action.

Its findings show an increasing risk of

melanoma. It is important to improve public

awareness as to the risk posed by UV

radiation, especially, and to promote

PAGE | 23

changes in behavior as a means to reduce sun exposure worldwide.

The IARC has also launched a new website that allows users to explore the results of the study. The database gives information about the

proportion of cancers, such as melanoma, that are attributable to UV radiation in different countries:16

Figure 1:

The first figure shows how the cases of melanoma attributable to UV radiation are distributed by age, for different continents.

Figure 2:

The second figure shows what proportion of melanomas in each country are attributable to UV exposure.

PAGE | 24

Figure 3:

The third figure shows the numbers of cases of melanoma attributable to UV exposure among men aged 35-49 in different continents.

Relevance to the UK?

This large set of data reveals which countries have similar patterns of melanoma, caused by UV exposure, to the UK. Employers may be

able to extrapolate this data and estimate the extent of melanoma caused by occupational exposure to UV radiation.

Mesothelioma Onset by Asbestos: Environmental Versus Occupational

Exposure

A new Turkish study, investigating malignant mesothelioma (MM) patients, has found that ‘Environmental asbestos exposure is as important

as occupational exposure to develop MM and it has its own unique exposure features on the risk of MM’.17

Mesothelioma is known to be strongly associated with asbestos exposure. Although the predominant source of asbestos exposure is found

in workers who have been exposed to asbestos-containing materials, non-occupational exposure is also common. Sources of non-

occupational exposure include:

Handling clothing belonging to an asbestos-exposed worker which contains asbestos fibres (this may be referred to as para-

occupational exposure);

Living close to an asbestos mine, thereby susceptible to airborne fibre exposure;

Living in a building with damaged asbestos materials, such as insulation boards; and

Undertaking recreational activities, such as hiking in areas where asbestos is commonly occurring.

Cases of mesothelioma have been reported in three villages in Turkey, in which the mineral, erionite, is present. Erionite has a similar

fibrous structure to asbestos, and it suspected to be the cause of these mesothelioma cases. We discussed the risks posed by erionite,

along with other non-asbestos related sources of mesothelioma, in edition 229 of BC Disease News (here).

The new study compared data from multiple studies. Participants were exposed to both environmental (8 groups) and occupational (13

groups) asbestos.

In groups exposed to asbestos in the course of their employment, the incidence rate of MM increased as median cumulative exposure

dose increased.

PAGE | 25

Interestingly, among the groups with

environmental exposure, incidence of

mesothelioma increased with median

duration of exposure. However, incidence

decreased as the median cumulative dose

increased.

Moreover, prevalence of mesothelioma in

those with environmental exposure was

higher in women than in men. By contrast,

occupationally exposed patients tended to

be primarily male, as more men have

historically been employed in workplaces

where asbestos is present than women.

The findings of this study suggest that

environmental factors play a significant

role in the onset of mesothelioma. As

different consequences were observed in

occupational cases and environmental

cases, increased knowledge of the

geography and duration of exposure is

vital.

Increased Risk of

Chronic Obstructive

Pulmonary Disorder with

Occupational Exposure

to Biological Agents

A new study of more than 3,000

participants has linked occupational

exposures to biological dusts, gases, fumes

and pesticides to a higher incidence of

chronic obstructive pulmonary disorder

(COPD)18

. This finding is not surprising, as

many earlier studies have suggested links

between COPD and these agents.

However, this latest study is well-designed,

and provides stronger evidence of

associations than past studies with less

robust designs.

The strength of the design of this study lies

in how the occupational exposure was

assessed, the type of sampling method

used, and the way COPD was defined.

The study group was a random sample of

the population. They were followed for 20

years to see whether or not they developed

COPD. The participants provided

information on what their past jobs were,

and a job exposure matrix was used to

estimate the exposure to the agents of

interest from each type of job. This meant

that participants were asked to recall only

their previous job types or titles, and were

not asked to recall their exposure to various

agents. In doing so, this avoided the

collection of biased results through loss of

memory or exaggeration of exposure.

At the start of the study, none of the group

had COPD or asthma. Whether or not a

participant developed COPD was

determined by the difference in spirometry,

or lung function, between the test results

when subjects were first recruited and the

final tests 20 years later.

Out of 3,343 participants, 89 of them had

COPD at follow up. Participants exposed to

biological dust had a higher incidence of

COPD compared with those that were not.

Those exposed to gases and fumes were

also at higher risk, as were those exposed

to pesticides. Overall, 21% of COPD cases

were associated with occupational

exposures.

‘Previous studies had estimated that about

15% of COPD cases are attributable to

workplace exposures. Our results

strengthen this evidence base

substantially,” says Jan-Paul Zock, lead

author of the study’.19

PAGE | 26

Feature:

40-Fold Increase in Sheep Dipping Treatment for Sheep Scab Since 2013

In our feature, we discuss the occupational risks associated with sheep dipping, in light of new evidence, suggesting that sheep scab is

becoming more prevalent. Could this emerging trend result in future EL disease claims?

INTRODUCTION

Farmer’s Weekly has reported a large increase in the numbers of sheep being infected with, and treated for, sheep scab since 2013.20

One of the most effective ways to treat sheep scab is to dip sheep into a liquid containing organophosphate insecticides. Use of

organophosphate insecticides is now heavily regulated, as long-term exposure to the pesticides is suspected of causing diseases, such

as Parkinson’s.

WHAT IS SHEEP SCAB AND HOW IS IT TREATED?

Sheep scab is a parasitic disease caused by a mite that lives on the skin of sheep, and is highly contagious; an infection can start from a

single mite. The main symptoms are itching and scratching. As the disease progresses, wool is lost and the skin underneath becomes

covered with scabs. This causes rapid weight loss in affected sheep and lowers the birthweight in lambs born to infected mothers, with an

increased of premature death. Increased feed costs and possible loss of stock can be costly for farmers. In Scotland, sheep scab is

regulated by the Sheep Scab (Scotland) Order 2010, as amended by the Sheep Scab (Scotland) Amendment Order 2011.

Figure: The Psoroptes Ovis Mite, which causes sheep scab.21

Sheep scab was eradicated from the UK in 1952, but reappeared in 1973. Between 1973 and 1984, there were numerous UK scab

outbreaks.22

In the 1980s and early 1990s, dipping sheep to prevent the spread of scab was compulsory in the UK. During the compulsory

dipping era, organophosphate plunge dips were the treatment of choice (they were a safer alternative to organochlorine products that

had been used earlier). Sheep are dipped into a large container of liquid that contains pesticides effective against the mites that cause

scab, as well as lice, blowflies and ticks. Typically, dipping was performed by the famers themselves. During the 1980’s, there was little

awareness of the potential health hazards associated with pesticide exposure.

In 1992, the sheep dipping process ceased to be compulsory. This change was implemented by the Government because its eradication

policy had failed and because the farming industry was undergoing deregulation. However, many farmers and activists attributed the

change in approach to increasing awareness of the adverse health effects of long-term exposure to OPs.

The use of OPs is a controversial topic. We have previously discussed the risk of organophosphate exposure in the context of so-called

‘Aerotoxic Syndrome’, last mentioned in edition 201 (here). Elsewhere, we reported on an academic study, in issue 126 (here), which found

that children in agricultural communities, frequently exposed to organophosphates, were associated with decreased lung function.

PAGE | 27

As an alternative to plunge dipping with OP insecticides, injections have also been effective against scab in the past. Pour-on and shower-

based treatments are also available, but according to Farmers Academy23

and Vet Times,24

these are not effective and should not be

used.

However, in early 2018, it was reported that scab-causing mites had developed a resistance to macrocyclic lactones, found in certain

injectable solutions25

. If resistance spreads, the range of treatment options available will be constricted to a smaller range of injectables

and OP dipping.

Current OP regulations require any person dipping sheep to have a license to use and dispose of the product. Suggested preventative

measures include the use of visors against eye protection; respirator masks for respiratory protection; and 300 mm rubber gloves, hazard

chemical suit/lined waterproofs and wellington boots for skin protection.

Post-treatment, there is a withdrawal period of 49 days before sheep may be processed for meat or offal production. The Health and

Safety Executive (HSE) advises that OP sheep dips are only to be used with ‘closed transfer systems’. These devices are designed to reduce

the risk of operator exposure to the dip concentrate while dipping baths are filled26

. HSE guidance also includes advice on engineering

controls, PPE and risk reduction throughout the dipping procedure.

Figure: A typical sheep dip setup27

HEALTH EFFECTS OF ORGANOPHOSPHATE INSECTICIDE EXPOSURE

It is well known that, like many other pesticides, single, intense doses of OP insecticides can result in death by poisoning. OPs are known

to affect the nervous system by preventing an enzyme called acetylcholinesterase from functioning normally, resulting in muscles being

continuously instructed to contract. Sheep dipping farmers are concerned with the effects of long-term exposure to small doses. Many

have reported chronic symptoms, such as fatigue, memory loss, weakness, joint and muscle pain and depression. These symptoms have

been attributed to chronic exposure to OPs. There have also been reports of short-term ‘dipper’s flu’, in which dippers report flu-like

symptoms shortly after dipping. However, as these chronic and acute symptoms are vague and have non-discernable causes, clinicians

are unable to attribute them to OP exposure, or define a particular condition caused by OPs.

Clinical Studies

In 2013, a meta-analysis of 14 studies, investigating the neurotoxic effects of long-term exposure to low levels of OPs in occupational

settings, was published. Data from more than 1,600 participants was considered.

The authors of the study reported that:

PAGE | 28

‘The majority of well-designed studies found a significant association between low-level exposure to OPs and impaired

neurobehavioural function which is consistent, small to moderate in magnitude and concerned primarily with

cognitive functions such as psychomotor speed, executive function, visuospatial ability, working and visual memory.’28

By contrast, in 2014, the Committee on Toxicology issued a statement which indicated that29

:

‘The current balance of evidence suggests that there is no long-term risk of clearly demonstrable peripheral

neuropathy from exposure to organophosphates that does not cause overt short-term poisoning; a conclusion that

has strengthened with the passage of time.’

It went on to state, in terms of low-level OP exposure, that:

‘Overall there is no consistent evidence that low-level exposure to organophosphates has adverse effects on any

specific aspect of cognitive function. If organophosphates do cause long-term neuropsychological impairment in

the absence of overt poisoning, then the effects at least in the large majority of cases, must be minor and subtle’.

Since the 2014 report, studies have hinted at possible links between OPs and cancers30

31

, reproductive effects32

, lung function33

and

Parkinson’s disease34

. However, assessment of the extent to which study participants have been exposed to OPs is difficult to quantify. As

such, many studies have presented weak evidence at best, in support of associations with diseases.

In March of 2015, the International Agency for Research on Cancer (IARC) classified OP insecticides, malathion and diazinon, as ‘probably

carcinogenic to humans’, along with insecticides, tetrachlorvinphos (banned in the EU) and parathion (also banned in the EU).35

Further, the Veterinary Medicines Directorate publishes figures on the number of adverse health conditions onset by veterinary medicines.

In its latest publication, it reported on incidents in 2016. Two incidents were related to skin dip products, both in large/food animal

owner/handlers, but no more detail was provided, in respect of these incidents.36

RECENT INCREASE IN CASES OF SHEEP SCAB

Ever since compulsory dipping ceased, the number of sheep scab cases in the UK has risen.37

However, accurate figures recording the

number of sheep affected do not exist, as many cases go unreported.

However, in a Farmer’s Weekly article, contract sheep dipper, Neil Fell, alleged an increase in sheep scab, from 2,500 sheep in 2013, to

more than 107,000 in 2017. Mr Neil’s automatic dipping tank can dip up to 300 ewes an hour.

He believes that ‘sheep scab is definitely a worsening problem’, and ‘the fact that scab is a taboo subject makes the condition harder to

address’. Indeed, among livestock farmers, sheep scab is a source of embarrassment.

SHEEP DIPPING CASE LAW

The only successful UK court settlement was brought by a farm worker, John Amos Hill, in 1997.38

It was found that he ‘had not been given

adequate warnings of the health risks of using the chemical or protective clothing’. 39

Elsewhere, a former farm college shepherd was forced to retire from his job after his health deteriorated over a 12 year period.40

He

claimed that he was suffering from fatigue, mood swings, tingling, numbness, and memory problems. His job was the twice-yearly dipping

of the college sheep flock. As a result, he sought compensation from his employers (Lancashire County Council) and an out of court

settlement was reached for £80,000.41

Snell & Ors v Robert Young & Co Ltd. & Ors

This was a landmark UK group litigation case, involving 25 farmers who alleged that they had been poisoned by OP sheep dip. In this

case, the farmers pursued the chemical companies responsible for making the dip.

A pilot study was undertaken and the farmers were subjected to ‘conduction analysis, bone examinations, immune testing and

psychometric tests’ to identify if there was a link between the use of OPs and the range of symptoms presented amongst the group.

PAGE | 29

On review of the test results, Dr Sarah Myhill opined:

‘Taken as a whole, if you look at all the tests done among all those farmers there’s a very clear pattern that emerges

which I think, on the balance of probabilities, one can say is almost certainly is almost due to pesticide or chemical

poisoning’.42

The judge at first instance suggested that a consultant should review the report. However, the defendant chemical companies applied to

strike out the claim, on the basis that there was no evidence in support of OP poisoning.

The High Court struck the claims out on causation arguments.43

It could not be proven that the claimants’ symptoms were directly caused

by OP exposure. On appeal, Morland J upheld the High Court decision.44

45

CONCLUSION

If the numbers of sheep scab are indeed increasing in Britain, it is likely that the amount of OP sheep dip being used will increase. Many

users of OP sheep dips are likely to be contractors, as was the individual featured in Farmer’s Weekly. Users of OP dips are required to limit

the exposure of anyone directly involved in dipping, and dispose of the product carefully, thus limiting exposure to others. Since 2006/2007,

there has been far tighter control and regulation on the use of OP sheep dip, and working practices have improved significantly. Therefore,

the potential for success in sheep dip exposure claims will be reduced if exposure is alleged to have occurred post-2006/2007. However,

an increase in the use of OP-based products to treat the 40-fold increase in sheep scab will no doubt increase the probability of exposure

incidents.

PAGE | 30

References

1 John Hyde, ‘Police officer to repay £368k made through PI conspiracy’ (13 May 2018 Law Gazette)

<https://www.lawgazette.co.uk/news/police-officer-to-repay-368k-made-through-pi-conspiracy/5066103.article> accessed 15 May

2018.

2 John Hyde ‘Slater and Gordon opens £30m warchest – but two offices to close’ (10 May 2018, Law Gazette)

https://www.lawgazette.co.uk/practice/slater-and-gordon-opens-30m-warchest-but-two-offices-to-close/5066083.article Accessed

14 May 2018

3 John Hyde, ‘Keen: We’ll decide whiplash damages, not the judges’ (11 May 2018, Law Gazette)

https://www.lawgazette.co.uk/law/keen-well-decide-whiplash-damages-not-the-judges/5066105.article accessed 14 May 2018

4 Ibid

5 Neil Rose, ‘MPs blast government’s approach to PI reform as they call for £1,500 small claims limit’ (17 May 2018, Legal Futures)

https://www.legalfutures.co.uk/latest-news/mps-blast-governments-approach-to-pi-reform-as-they-call-for-1500-small-claims-limit

accessed 17 May 2018

6 Ibid

7 Ibid

8 Mobile phone cancer warning as malignant brain tumours double. The Telegraph. 2 May 2018.

https://www.telegraph.co.uk/science/2018/05/02/mobile-phone-cancer-warning-malignant-brain-tumours-double/ (Accessed 10

May 2018)

9 PHONE SCARE Is your phone zapping your brain? Mobiles could be to blame for surge in deadly brain tumours, experts say. The

Sun. 3 May 2018, https://www.thesun.co.uk/news/6197371/mobile-phone-cancer-link/ (Accessed 10 May 2018)

10 Sharp rise in aggressive brain cancer is linked to mobile phones with cases more than doubling over two decades. Daily Mail. 3

May 2018 http://www.dailymail.co.uk/news/article-5685037/Sharp-rise-aggressive-brain-cancer-linked-mobile-phones-cases-

doubling-two-decades.html (Accessed 10 May 2018)

11 Philips A, et al. (2018) Brain tumours: rise in Glioblastoma Multiforme incidence in England 1995–2015 suggests an adverse

environmental or lifestyle factor. Journal of Environmental and Public Health. https://www.hindawi.com/journals/jeph/aip/7910754/

(Accessed 10 May 2018)

12 Press release links rise in aggressive brain tumours to mobile phones, but study doesn’t. Cancer Research UK. 3 May 2018.

http://scienceblog.cancerresearchuk.org/2018/05/03/press-release-links-rise-in-aggressive-brain-tumours-to-mobile-phones-but-

study-doesnt/ (Accessed 10 May 2018)

13 Lara Keay, ‘Salesman father-of-six sues Nokia for 'up to £1million' in landmark legal case after claiming heavy mobile phone use

caused his brain tumour’ (13 May 2018 Daily Mail) <http://www.dailymail.co.uk/news/article-5723005/Wigan-Neil-Whitfield-sues-

Nokia-brain-tumour-UK-case-suing-mobile-phone-company.html> accessed 15 May 2018.

14 Arnold, M. et al. Global burden of cutaneous melanoma attributable to ultraviolet radiation in 2012. International Journal of Cancer

0, <https://onlinelibrary.wiley.com/doi/abs/10.1002/ijc.31527> (Accessed 17 May 2018)

15 https://gco.iarc.fr/causes/uv/home (Accessed 17 May 2018)

16 Arnold M, Lam F, Ervik M, Soerjomataram I (2018). Cancers attributable to UV radiation. Lyon, France: International Agency for

Research on Cancer. Available from: https://gco.iarc.fr/causes/uv (Accessed 17 May 2018).

17 Metintas, S., Ak, G. & Metintas, M. A review of the cohorts with environmental and occupational mineral fiber exposure. Archives of

Environmental & Occupational Health 0, 00–00 (2018). https://www.tandfonline.com/doi/abs/10.1080/19338244.2018.1467873

(Accessed 3 May 2018)

18 Lytras, T. et al. Occupational exposures and 20-year incidence of COPD: the European Community Respiratory Health Survey.

Thorax thoraxjnl-2017-211158 (2018). doi:10.1136/thoraxjnl-2017-211158 http://thorax.bmj.com/content/early/2018/03/23/thoraxjnl-

2017-211158 (Accessed 16 May 2018)

19 Occupational exposures linked with increased risk of COPD. ScienceDaily. 9 May 2018.

https://www.sciencedaily.com/releases/2018/05/180509104948.htm (Accessed 16 May 2018)

20 Dipping sheep to control scab – what you need to know. Farmer’s Weekly. 3 May 2018 http://www.fwi.co.uk/livestock/dipping-

sheep-to-control-scab-what-you-need-to-know.htm (Accessed 5 May 2018)

21 Figure from https://www.fwi.co.uk/academy/lesson/scab-in-sheep

22 ‘Sheep Scab’ (30 January 2017 Scottish Government) <http://www.gov.scot/Topics/farmingrural/Agriculture/animal-

welfare/Diseases/disease/SheepScab> accessed 17 May 2018.

23 Scab in sheep. Farmers Academy. Last updated 12 October 2015. https://www.fwi.co.uk/academy/lesson/scab-in-sheep (Accessed

9 May 2018)

PAGE | 31

24 Increase in sheep scab cases decreases treatment options. Vet Times. 17 October 2011.

https://www.vettimes.co.uk/app/uploads/wp-post-to-pdf-enhanced-cache/1/increase-in-sheep-scab-cases-decreases-treatment-

options.pdf (Accessed 9 May 2018)

25 Sheep Scab. National Animal Disease Information Service. http://www.nadis.org.uk/bulletins/sheep-scab.aspx (Accessed 9 May

2018)

26 Sheep dipping: Advice for farmers and other involved in dipping sheep. HSE Information sheet. Health and Safety Executive. March

2014. http://www.hse.gov.uk/pubns/ais41.pdf (Accessed 9 May 2018)

27 Image from HSE

28 Ross, S. M., McManus, I. C., Harrison, V. & Mason, O. Neurobehavioral problems following low-level exposure to organophosphate

pesticides: a systematic and meta-analytic review. Critical Reviews in Toxicology 43, 21–44 (2012).

29 Freire, C. & Koifman, S. Pesticides, depression and suicide: A systematic review of the epidemiological evidence. International

Journal of Hygiene and Environmental Health 216, 445–460 (2013).

https://www.tandfonline.com/doi/abs/10.3109/10408444.2012.738645 (Accessed 10 May 2018)

30 Statement on long-term neurological, neuropsychological and psychiatric effects of low-level exposure to organophosphates in

adults. Committee on toxicology of chemicals in food, consumer products and the environment.

https://cot.food.gov.uk/sites/default/files/cot/cotstate.pdf (Accessed 10 May 2018)

31 Lerro, C. C. et al. Organophosphate insecticide use and cancer incidence among spouses of pesticide applicators in the

Agricultural Health Study. Occup Environ Med 72, 736–744 (2015). http://oem.bmj.com/content/72/10/736.long (Accessed 9 May

2018)

32 Jones, R. R. et al. Incidence of solid tumours among pesticide applicators exposed to the organophosphate insecticide diazinon

in the Agricultural Health Study: an updated analysis. Occup Environ Med oemed-2014-102728 (2015). doi:10.1136/oemed-2014-

102728 http://oem.bmj.com/content/early/2015/04/23/oemed-2014-102728 (Accessed 9 May 2018)

33 Omoike, O. E., Lewis, R. C. & Meeker, J. D. Association between urinary biomarkers of exposure to organophosphate insecticides

and serum reproductive hormones in men from NHANES 1999–2002. Reproductive Toxicology 53, 99–104 (2015).

34 Raanan, R. et al. Decreased lung function in 7-year-old children with early-life organophosphate exposure. Thorax thoraxjnl–2014–

206622 (2015). doi:10.1136/thoraxjnl-2014-206622

35 Paul, K. C. et al. Organophosphate Pesticide Exposures, Nitric Oxide Synthase Gene Variants, and Gene-Pesticide Interactions in a

Case-Control Study of Parkinson’s Disease, California (USA). Environ. Health Perspect. (2015). doi:10.1289/ehp.1408976

36 Some organophosphate insecticides and herbicides. IARC Monographs Vol 112. Lyon, France, 2017.

http://monographs.iarc.fr/ENG/Monographs/vol112/mono112.pdf (Accessed 9 May 2018)

37 Veterinary Pharmacovigilance in the United Kingdom. Annual review 2015. Veterinary Medicines Directorate.

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/609505/PhV-

Annual_Review_2015_v7.pdf (Accessed 9 May 2018)

38 Sheep Scab. Scottish Government. 30 January 2017. http://www.gov.scot/Topics/farmingrural/Agriculture/animal-

welfare/Diseases/disease/SheepScab (Accessed 9 May 2018)

39 Hill v William Tomkins Ltd, 17 October 1997 (unreported).

40 Tom Levitt, ‘MPs call for inquiry into sheep dip poisoning scandal’ (27 April 2018 The Guardian)

https://www.theguardian.com/environment/2015/apr/27/cross-party-support-from-mps-for-inquiry-into-sheep-dip-poisoning>

accessed 17 May 2018.

41 Alan Barker, ‘£80,000 for shepherd sick with OP exposure’ 6 February 1998 Farmers Weekly) <http://www.fwi.co.uk/news/163-80-

000-for-shepherd-sick-with-op-exposure.htm> accessed 17 May 2018.

42 ORGANOPHOSPHATES: POST 122 (December 1998 UK Parliament) <https://www.parliament.uk/documents/post/pn122.pdf>

accessed 17 May 2018.

43 ‘OP claimants hopes are dashed as case collapses’ (20 October 2018 Farmers Weekly) <http://www.fwi.co.uk/news/opclaimants-

hopes-are-dashed-as-case-collapses.htm> 20 October 2000.

44 High Court (QB), 31 July 2001 (unreported).

45 Catherine McLaughlin, ‘Policy Statement: The use of Organophosphate sheep dips and implications for operator safety’ (June 2014

NFU) <http://www.sheepdipsufferers.uk/support%20groups/June-2014-OP-Dip-Policy-Statement.pdf> accessed 17 May 2018.

46 [2002] EWCA Civ 1644 <http://www.bailii.org/ew/cases/EWCA/Civ/2002/1644.html> accessed 17 May 2018.

PAGE | 32

CONTENTS

PAGE 32

Welcome

PAGE 33

Costs Following

Discontinuance: Ashany & Ors.

v Eco-Bat Technologies

Limited [2018] EWCA Civ 1066

PAGE 34

Leaving the EL/PL Portal:

Nicholls v The Ambassador

Theatre Group

PAGE 35

Warning Against 3 Year

Discount Rate Review

Former Asons’ CEO Suspended

with £115,000 Costs Order

PAGE 36

Identifying Occupational

Carcinogens: IARC Update

PAGE 37

Effects of Smoking and

Asbestos Exposure Periods on

Lung Cancer Risk

PAGE 38

Higher Levels of Physical

Activity Linked to Earlier Death

in Men

Welcome

Welcome to the 231st edition of BC Disease News.

This week, we consider the case of Nicholls v The Ambassador Theatre Group, in

which the defendant argued that the claimant was unreasonable in bringing new

Part 7 proceedings when the claim had been started under the EL/PL Protocol.

In business news, we report that ex-CEO of Asons Solicitors, Kamran Akram, has

been suspended from practice for 18 months and ordered to pay £115,000 in

costs, on the basis that he had ‘caused or permitted Asons to act in

circumstances giving rise to a conflict of interest’.

Elsewhere, we discuss the findings of a recent study into the carcinogenic burden

of asbestos and cigarette smoking. The authors state that timing of exposure is

more determinative of an increased lung cancer risk than magnitude of

exposure.

Any comments or feedback can be sent to Boris Cetnik or Charlotte Owen.

As always, warmest regards to all.

SUBJECTS

Fixed Costs and EL/PL Portal – Costs Burden and Discontinuance – Discount Rate

Review Cycle – Asons CEO Suspension and Costs Order – IARC and Occupational

Carcinogens – Smoking and Asbestos Exposure and Lung Cancer – Physical

Activity and Life Expectancy.

PAGE | 33

Leaving the EL/PL Portal:

Nicholls v The

Ambassador Theatre

Group

In the recent case of Nicholls v The

Ambassador Theatre Group, the defendant

argued that the claim should not have

exited the EL/PL Portal at Stage 2, and thus,

should have attracted fixed Portal costs.1

The claimant sustained personal injuries in

an accident on the defendant’s premises.

The claim was started under The Protocol for

Low Value Personal Injury (EL/PL) Claims (the

EL/PL Protocol). However, the claim was

exited from the Portal after the defendant’s

insurer questioned the claimant’s

arguments on factual causation.

The claimant subsequently commenced

proceedings under Part 7, rather than Part

8. The defendant contested this, on the

basis that bringing new Part 7 proceedings

was unreasonable. Although the claim was

settled after the defence was filed, the

defendant challenged the costs

implications of exiting the Portal and

starting proceedings under Part 7.

Ordinarily, Part 8 EL/PL Portal claims engage

the fixed costs regime, specified by the

EL/PL Protocol. Part 7 proceedings,

however, are not subject to this limitation

and, as such, the costs burden on

defendants is higher.

Had the Claimant Acted Unreasonably?

At a Provisional Assessment, the judge

found that the claimant’s decision to exit

the Portal was not unreasonable, given that

causation of the main injury was in dispute.

At an Oral Review of the Provisional

Assessment, requested by the defendant,

the judge found that the claim had been

reasonably exited, as the defendant

insurer’s accusations questioned the

credibility of the claimant, amounting to a

suggestion of ‘dishonesty’.

The defendant appealed this decision, on the basis the claim could have been suitably

resolved under Part 8. As such, it argued that there had been a failure to comply with the

EL/PL Protocol, pursuant to CPR 45.24, and costs should be limited to the relevant Stage 3

fixed costs.

On appeal, HHJ Simpkiss reasoned that there was a significant issue of fact. This, in isolation,

was enough to preclude the claim from continuing under Part 8. A potential finding of

fundamental dishonesty was disproportionately significant. As a result, the claimant

escaped fixed costs liability. The judge upheld the decision of the District Judge and

dismissed the defendant’s appeal.

Other than comments on disputed causation and Part 8 suitability, this decision highlights

the likely consequences of scepticism over claimant credibility and honesty. If arguments

of this nature are raised, judges may find it arbitrary if defendants then claim that Part 8

would have been appropriate and expose themselves to increased liability on costs.

PAGE | 34

Costs Following

Discontinuance: Ashany

& Ors. v Eco-Bat

Technologies Limited

[2018] EWCA Civ 1066

In the recent case of Ashany & Ors. v Eco-

Bat Technologies Limited [2018] EWCA Civ

1066, the defendant appealed the

preliminary findings of the Costs Master, on

the basis that she had ‘failed to have

regard to the default rule as to costs on

discontinuance, set out at CPR 38.6(1)’.

Although Ashany was not a personal injury

action, the comments of the judge on

appeal may be applicable to claims of

that nature.

The pertinent facts of the case were as

follows. Proceedings were commenced on

1 November 2013. The claimants sought

delivery of an email, dating back to 2006,

from the defendant company, which was

embroiled in anti-competitive behaviour

allegations and was subject to EU

Commission investigations. In an amended

defence, dated 4 August 2014, the

defendant stated that the 2006 email was

being sought for an ‘improper purpose’. A

copy of the email was made available to

the claimants on 1 May 2015. However, on

14 July, the claimants ‘indicated in general

terms that the proceedings would not be

pursued’ and subsequently, on 24 July, the

claimants served their notice of

discontinuance.

In edition 230 of BC Disease News (here), we

reported on the case of Harrap v Brighton &

Sussex University Hospitals NHS Trust [2018]

EWHC 1063 (QB), in which the defendant’s

failure to comprehensively review witness

evidence constituted ‘good reason’ to shift

the default burden of costs following

discontinuance.

Pursuant to CPR 38.6(1), claimants are

liable for defendant costs incurred on or

before discontinuances are served:

In order to reverse this presumption, the claimant ‘must provide cogent reasons for doing so

and is unlikely to satisfy that requirement save in unusual circumstances’, per Moore-Bick LJ

in Brookes v HSBC Bank PLC [2011] EWCA Civ 354, at paragraph 10.

At the High Court, Costs Master Clark divided the costs liabilities into four periods. In respect

of the 4th and final period, the Costs Master found that the defendant was entitled to its costs

from the date that the email was provided until 14 May, when the claimants indicated that

the action would be discontinued. She went on to rule that the defendant was not entitled

to costs from 14 July to 24 July, when the notice of discontinuance was served. In terms of

total liability, out of 21 months of extant proceedings, 17 months of costs were recovered by

the defendant, in accordance with CPR 38.6(1).

The defendant appealed this decision. Although it accepted that the Costs Master had set

out the correct legal principles on CPR 38.6(1), it argued that she dealt with costs as if it were

‘an ordinary case under r.44.2’.

At the Court of Appeal, in the latest hearing, Coulson LJ reasoned that, with exception to the

4th period of liability, the Costs Master was correct in dismissing any further displacement of

the default rule.

The judge stated, at paragraphs 21 to 23:

‘The presumption in r.38.6 arises because, in the ordinary case, the discontinuance of a

claim by a claimant against a defendant will usually amount to an admission or an

acceptance that the proceedings should never have been commenced. In such a case,

the starting point must be that the defendant is entitled to its costs, and that is reflected in

the default rule.

But here, the proceedings were commenced ... and had been frustrated, over many months

... Eventually, after considerable prevarication and delay (most of which was their fault ...),

the ... action was discontinued at least in part because the claimants’ original aim had been

achieved.

PAGE | 35

... The default rule was properly considered

and applied, and only disapplied after a

proper consideration of the facts’.

Between 14 July and 24 July, no costs order

was made by the Costs Master. Coulson LJ

reviewed her decision, as follows:

‘... by 14 July, it had been made sufficiently

clear that the claimants would not be

proceeding to trial. The Master concluded

that at that point, the appellant’s solicitors

“ought reasonably to have stopped

incurring costs” so that, to the extent that

they did, they would have to bear their own

such costs’.

Coulson LJ, however, considered that the

judge had erred, as the letter dated 14 July

was not ‘unequivocal’ in saying that the

action would be discontinued and did not

have to do so, for the purpose of CPR

compliance, until the end of July. As such,

‘the defendant’s solicitors were not entitled

to assume that the action was definitely

coming to an end’:

‘Unless and until the defendant’s solicitors

received an unequivocal assurance that

the action was to be discontinued, they

had no alternative but to continue to

prepare for trial’.

In conclusion, Coulson LJ ruled, with the

agreement of Gross LJ:

‘... the Master’s order should be varied so

that the defendant is entitled to its costs, not

up to 14 July, but up to close of business on

24 July 2015 (in other words, for the whole

of the fourth period). However, for the

reasons that I have given, I would dismiss

the remainder of the appeal’.

Full text judgment can be found here.

Warning Against 3 Year

Discount Rate Review

Former Justice Minister, Lord Faulks QC,

spoke at the House of Lords last week,

during the Committee Stage of the Civil

Liability Bill and warned against current

proposals surrounding Governmental

review of the personal injury discount rate. 2

He stated that reviewing the discount rate

every three years was ‘definitely too short’,

as ‘parties to litigation will have a quite

understandable tendency to try to guess

the outcome of the determination of the

new discount rate and to game the system’.

He warned that currently, ‘parties are either

anxious to conclude their cases before the

putative date of the variation of the

discount rate or to delay matters’ and

therefore, ‘such manoeuvring will take

place almost continuously if the three-year

period is maintained’.

At the Committee meeting, he suggested

that seven years would be a more

appropriate time limit for review, but in his

amendment, tabled a ‘compromise’ limit of

five years, else there would be a ‘very real

increase’ in the number of unsettled claims.

On behalf of the Government, Baroness

Vere promoted a three year review cycle,

to allow for ‘smaller adjustments’ and to

‘reduce concerns about the size of any

change in the rate ... which should also

reduce any temptation to distort the

litigation process in the hope of benefiting

from a significant advantageous change to

the rate’.

Indeed, when Elizabeth Truss, the former

Lord Chancellor, announced that the

discount rate would be changing from

2.5% to (-)0.75%, in February of 2017, the

insurance industry lobbied the Government

to reconsider. Since, it has been predicted

that the rate will increase to between 0%

and 1%.

Baroness Vere maintained that a maximum

three year review period represented a

‘reasonable compromise between the

different views held in this House and

outside it’.

Ultimately, none of the ‘probing

amendments’, proposed at the Committee

Stage, were voted on by peers last week.

On the subject of the expert panel, tasked

with assisting the current Lord Chancellor

with setting future discount rates, Lord Keen

stated that ‘preparatory work’ on the panel

was already under way and that the

Government would progress the

appointment process as far as it could

before the Bill received Royal Assent. Panel

‘terms of reference’ are expected before

the Report Stage, on 12 June.

It is expected that the Lord Chancellor, in

setting the rate, will account for ‘investment

management costs’, which do not currently

constitute a recoverable head of loss.

Lord Keen also advised that ‘appropriate

guidance’ on ‘the respective benefits of

lump sums and PPOs ... and ... any ways in

which the use of PPOs could be increased

within the present system’, are intended to

be completed by summer of 2019.

Former Asons’ CEO

Suspended with

£115,000 Costs Order

On 21 May, submissions in the SDT hearing

of Kamran Akram closed.3

The Solicitors Regulation Authority (SRA)

intervened Asons Solicitors last year. We last

reported, in edition 226 of BC Disease News

(here), that Mr Akram, Asons’ former CEO,

was facing charges of dishonesty.

The 6 SRA charges alleged that Mr Akram

had:

1. ‘Caused or permitted the

presentation of applications for

costs in PI claims which

misrepresented the grade of

relevant fee-earners so as to

increase the level of recoverable

costs.

2. Caused or permitted the

presentation of claims for special

damages which contained

particulars that were false in that

the event, loss or treatment

alleged to have given rise to the

PAGE | 36

special damages claim had not

occurred or did not exist.

3. Caused or permitted Asons to act

in circumstances giving rise to a

conflict of interest.

4. Provided misleading information

to the court and/or the SRA in

relation to the false and inflated

claims.

5. Caused or permitted payments of

prohibited referral fees.

6. Failed to run his practice or carry

out his role as sole principal, COLP

and COFA of Asons effectively’.

Alison Banks, Chair of the Tribunal Panel,

reasoned that Mr Akram had ‘jeopardised

all of this by failing to run ... [his] ... practice

effectively’. The fact that Mr Akram had ‘not

supervised the supervisors’, constituted a

‘serious failure’.

As such, the 3rd

allegation was proved in

full, ‘specifically in relation to the resolution

of personal injury claims where the firm’s

applications for costs and/or special

damages were the subject of challenge by

the defendant insurers (and/or their

representatives)’.4

Mr Akram was suspended from practice for

18 months from 22 May and was ordered to

pay £115,000 in costs. However, he was

cleared of dishonesty in all charges.

Identifying

Occupational

Carcinogens: IARC

Update

The International Agency for Research on

Cancer (IARC) has published an article,

both reviewing and updating the list of

recognised occupational carcinogens.5

The objective of the IARC is to promote

international collaboration on cancer

research. One of the Agency’s main

activities is to elucidate the role of lifestyle

and environmental factors on the role of

cancer development, and to determine

whether cancer-causing agents interact with other factors, such as genetics.

Occupational cancer is the cause of an estimated 666,000 deaths worldwide per year.

Knowledge of cancer hazards, as a result of occupational exposure, supports the

introduction of prevention and surveillance activities. Knowledge of occupational risk is

required if claims are to be successful. Over time, the number of known occupational

carcinogens has grown.

As we go on to discuss below, in 2017, 47 agents were identified as occupational

carcinogens, compared with just 28, in 2004.

List of Occupational Carcinogenic Agents

Prior to the latest study, there had not yet been a single, definitive source of data on

carcinogenic agents, nor had there been a consensus definition of such agents. This latest

IARC study sought to review the list of ‘known occupational carcinogens’, previously reported

by the IARC between 1971 and 2017.

The researchers proposed a new, universal definition for occupational carcinogens, namely

that:

The agent is a defined substance, mixture, type, or source of radiation;

The agent is classified in IARC Group 1, with ‘sufficient evidence of carcinogenicity’

in humans (to ensure that observed exposure-disease associations are causal);

‘Sufficient evidence of carcinogenicity’ in humans is obtained entirely, or in part,

from epidemiologic studies of exposed workers (to ensure that the carcinogen has

documented occupational exposure); and

The occurrence of exposure in workers is documented in a pertinent monograph.

The researchers reviewed data from all of the 120 agents previously classified as

‘carcinogenic to humans’. Epidemiological studies were analysed and data on the types of

cancer, caused by exposure to the agent, were noted. Of the 120 agents, occupational

exposure was observed in 70 monographs. 63 agents showed sufficient evidence of cancer

in human subjects and 59 agents were discussed in epidemiological evidence. 47 agents

had been defined as substances, mixtures or types of radiation. Therefore, of the 120 filtered

agents, 47 satisfied the researchers’ new criteria for defining an occupational carcinogen.

PAGE | 37

Emphasis was placed on physical agents

with strong evidence of a carcinogenic

effect. Consequently, agents which were

‘probably’ or ‘possibly’ carcinogenic to

humans were excluded.

The number of occupational carcinogens

recognised in this paper is likely to be lower

than the actual number of possible

occupational carcinogens. One reason for

this is that new substances are introduced

into workplaces quicker than information

on potential health effects can be

generated. Secondly, among many of the

1000 agents that the IARC has evaluated,

evidence for cancer in humans has been

deemed inadequate if studies are of low

quality, lacking the support of similar

studies, or offer no relevant

epidemiological studies in support of

carcinogenic allegations. However, this

does not necessarily mean that suspected

agents are not carcinogenic.

Cancer Types Caused by Agents Identified

in the IARC Study

The 47 agents, identified by the review, are

causally associated with 23 different types

of cancer. Some cancers, such as lung,

bladder and skin cancer, as associated

with multiple agents, and some agents are

associated with more than one type of

cancer.

Lung cancer was the most common cancer

type, comprising 23% of agent-cancer

associations. Other common cancer types

were skin cancer (10%), bone cancer (9%),

bladder cancer (7%) and cancer of the

nasal cavity and sinuses (6%). The number

of cancers associated with a particular

agent can increase over time if new data is

made available. For example, asbestos

was found, in early evaluations, to be

associated with mesothelioma and lung

cancer. Later evaluations found larynx and

ovarian cancers to also be associated with

asbestos exposure.

Inhalation and skin exposure are the

principal routes of exposure for most

cancers. Unsurprisingly, inhaled agents

tend to be associated with lung, nasal and

sinus cancers.

Chemicals, as a group, are associated with

a diverse range of cancer types. Most

individual chemicals are associated with

only one cancer site, with the exception of

formaldehyde, which is associated with

both leukaemia and cancer of the

nasopharynx. Another exception is ionising

radiation. This causes many different

cancers, as it can penetrate the whole

body. Moreover, ultraviolet (UV) radiation

from the sun is associated with several types

of skin cancer, while UV from welding is

associated with cancer of the eye.

Trends

Compared to earlier attempts by various

authors to pull together a list of

occupational carcinogens, the IARC list

includes many more agents. This is

because evidence in support of new

associations continues to emerge, and

because IARC classification has changed

over time. For example, where earlier

studies grouped different types of ionizing

radiation together, they have now been

investigated separately. Further,

carcinogenic exposures, previously

defined as ‘an occupation, industry or

process’, have decreased with time and

been replaced by the particular agent that

causes the cancer. For example, ‘furniture

and cabinet making’ has since been

replaced with ‘wood dust’. This due, in part,

to improvements in the quality of

epidemiological studies.

Conclusions

The number of identified occupational

carcinogens has increased progressively in

recent decades. This trend may have been

facilitated by advances in study quality

and growth in the literature base. However,

there is still a need for research into work-

related causes of cancer. The

epidemiological evidence is inadequate

or lacking altogether for many agents that

have been investigated, and there are

many more potentially-carcinogenic

agents that are yet to be evaluated.

Effects of Smoking and

Asbestos Exposure

Periods on Lung Cancer

Risk

It is well established that both smoking and

exposure to asbestos are associated with

an increased risk of lung cancer. A new

study, published in the British Medical

Journal: Occupational and Environmental

Medicine, reports that the intensity and

timing of these exposures play an important

role in an individual’s risk.

Data was collected from 2,026 male lung

cancer patients and 2,610 males without

lung cancer, who were participants in the

French ICARE (Investigation of

occupational and environmental causes of

respiratory cancers) study.

Based on their occupational history,

asbestos exposure was estimated using a

job-exposure matrix. The daily intensity of

smoking was measured by the average

number of cigarettes smoked per day,

while asbestos exposure was measured by

the average daily air concentration of

asbestos fibres at work. This was calculated

on an annual basis.

The researchers found that the intensity of

cigarette smoking in the 10 years

preceding diagnosis had a much stronger

association with the risk of lung cancer than

the intensity many years earlier. Whereas,

the intensity of asbestos exposure more

than 40 years before diagnosis was more

strongly associated with risk of lung cancer

than recent exposure.

These findings infer that cumulative

cigarette smoke and asbestos exposure is

not determinative of risk. Timing of exposure

is more important for lung cancer

association.

This could potentially have implications

when calculating apportionment in legal

claims.

For example, if a claimant was exposed to

similar concentrations of asbestos by

multiple employers, the most distant

employment will have made the greatest

contribution to the increased risk of lung

cancer. The same could be said for

mesothelioma.

PAGE | 38

References

Luke Ashby, ‘When is it reasonable to leave the EL/PL Portal’ (29 March 2018 3PB Barristers)

<https://www.3pb.co.uk/content/uploads/3PB-PI-Newsletter-April-2018.pdf> accessed 21 May 2018.

2 Nick Hilborne, ‘Former justice minister warns of discount rate ‘gaming’ under Civil Liability Bill’ (Litigation Futures)

<https://www.litigationfutures.com/news/former-justice-minister-warns-of-discount-rate-gaming-under-civil-liability-bill> accessed 24

May 2018.

3 John Hyde, ‘Akram: Ignore the Asons hype - I'm not a dishonest solicitor’ (23 May 2018 Law Gazette)

<https://www.lawgazette.co.uk/news/akram-ignore-the-asons-hype-im-not-a-dishonest-solicitor-/5066211.article> accessed 23 May

2018.

4 Mondipa Fouzder, ‘Former Asons boss suspended - and faces £115k costs’ (22 May 2018 Law Gazette)

<https://www.lawgazette.co.uk/practice/former-asons-boss-cleared-of-dishonesty-but-faces-115k-costs/5066222.article> accessed

23 May 2018.

5 Loomis D, Guha N, Hall AL, et al Identifying occupational carcinogens: an update from the IARC Monographs Occup Environ Med

Published Online First: 16 May 2018. doi: 10.1136/oemed-2017-104944 <http://oem.bmj.com/content/early/2018/05/16/oemed-

2017-104944

PAGE | 39

Disclaimer

This newsletter does not present a complete or

comprehensive statement of the law, nor does it

constitute legal advice. It is intended only to

provide an update on issues that may be of

interest to those handling occupational disease

claims. Specialist legal advice should always be

sought in any particular case.

© BC Legal 2016.

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