Looking forward: where next for occupational disease?
As we head towards a new year, we look at the issues that have shaped occupational disease litigation over the past 12 months and look ahead to what the next 12 months have in store for us.
The scale of the problem with regard to noise induced hearing loss (NIHL) claims is well known. In the past few years, insurers and other compensators, including large corporate and public bodies, have experienced a significant rise in the number of claims being submitted for NIHL. Whilst claims notified reached a peak in 2013 following the introduction of the Jackson-led civil justice reforms, claims up until 2014 have remained high with the estimated number of claims notified in 2014 39% higher than in 2012.
The extent of the problem was reflected in the final report of the Insurance Fraud Taskforce (published in January 2016), noting that the figures for total compensation in NIHL claims rose from £83 million in 2010 to £360 million in 2014.
However, the news is not all bleak. According to data from the Compensation Recovery Unit (CRU) NIHL claims have fallen significantly in the past 12 months with a drop of 30% in the number of reported claims in 2015. There are various reasons for this decrease.
Working in collaboration with our clients and other defence lawyers, we have identified the key fraud indicators arising out of deafness litigation. By adopting a robust stance against suspected fraudulent activity, a significant number of claims are not now being pursued beyond the first letter of claim, or are not proceeding to litigation after initial investigations.
For now, while the current tidal wave may be ebbing, we believe that issues remain within occupational health surveillance in industry that continue to expose compensators to a claims risk. In particular, inadequate hearing monitoring and testing exposes employees to the risk of injury. Unless steps are taken to review and redress deficiencies now, there will be another surge in years to come.
Mesothelioma and risks of e-cigarettes are just two aspects of occupational chest disease.
There is a rising incidence in the numbers of reported chronic obstruction pulmonary disease patients, where smoking is not a main or linked cause. We expect to see a rise in the numbers of claims being brought in the future.
Fumes and dust are known irritants. Many of the risks are known and industry acts upon them to minimise any impact. For instance, there remains a high number of claims arising from diesel fume exposure that are being brought. The Institution of Occupational Safety and Health (ISOH) reported in September 2014 that there are 650 recorded deaths each year as a result of lung or bladder cancer. In response, IOSH has introduced its ‘No Time to Lose’ campaign, which aims to get carcinogenic exposure issues more widely understood and help businesses take action.
Nanotechnologies – based on the application and use of carbon nanotubes - have also raised speculation around adverse health conditions similar to those seen in asbestosis.
Health and Safety Executive statistics have not shown any major changes in the number of occupational stress claims being recorded in recent years. Nevertheless, concern remains that these claims will increase in the next few years. We live in uncertain times politically and economically. The impact of Brexit may result in our workforce being put under greater pressure to deliver more for less, which may in turn, create increased levels of stress. Where employees are able to demonstrate a link to employment and any recognised psychiatric injury, claims may follow.
Employers need to remain alert to the risks of hand-arm vibration (HAV) claims from the use of vibratory tools. In addition to the risk of a personal injury claim, a number of health and safety prosecutions have been made in the past 12 months against companies’ safety failings following reported HAV claims. With the introduction of the new Definitive Guideline of the Sentencing Council on Health and Safety in February 2016, the financial impact of such claims poses significance to UK Plc. Increased fines higher insurance premiums to reflect an increased claims risk and the cost of the claims themselves, mean that employers need to remain vigilant over the workforce and maintain stringent risk management processes.