INTRODUCTION

In last week’s feature we looked at the potential dangers of reliance upon single audiograms for the diagnosis of NIHL. We concluded that single audiometry is likely to result in over-diagnosis of NIHL, lead to reduced repudiation rates and more claims paid which would provide cash flow to claimant organisations and in turn re-ignite a currently declining market.

This week, we consider the approaches adopted in NIHL claims where multiple audiograms have been available. 

IS THE AUDIOGRAM ACCURATE?

Where there is more than one audiogram in a NIHL claim the first question to ask is whether the audiograms are reliable. It may be that one (or both or more) of the audiograms is not a genuine measure of the claimant’s hearing thresholds.

We considered the numerous factors which may cause an audiogram to be inaccurate in last week’s feature and which may lead to errors and variability in hearing thresholds. Medical convention accepts variability of 10dB in hearing thresholds between 2 hearing tests carried out closely in time as audiometry is not a precise science even when properly conducted.

Where there are multiple audiograms, where one (or both) is not properly conducted then the margin of error and variability in measured thresholds between tests can be far greater than the ‘acceptable margin of error’ of up to 10dB. [In last week’s feature we examined the recent ‘Solent University Studies’ which suggest that variability between even properly conducted tests may in fact be greater than 10dB].

Whilst some sources of audiometric error can result in better than actual hearing, the vast majority of errors however increase the measured hearing thresholds i.e. show hearing worse than it actually is. As stated by Lawton (1991)^[i]:

‘…systemic errors [in pure tone audiometry] usually work to elevate the threshold, to make the hearing appear less acute than it really is’.

So where you have 2 audiograms carried out closely in time it follows that it is the audiogram which shows the best hearing thresholds which should be accepted as being more accurate and the best measure of a claimant’s hearing thresholds. Identifying inaccurate audiograms can be more troublesome where those audiograms are conducted many years apart. This was the case in Ross v Lyjon Company Limited (23^rd September 2016, Liverpool County Court), which was featured in edition 157 of BC Disease News here.

We illustrate this in our scenarios below involving a hypothetical claimant exposed to excessive noise in breach of duty with exposure ceasing in 1990. In both scenarios the claimant undergoes audiometry on cessation of exposure in 1990 and again in 2015 when presenting a NIHL claim.

In scenario 1 the 1990 audiogram shows no NIHL but the 2015 audiogram shows audiometric evidence of NIHL

In scenario 2 the 1990 audiogram shows NIHL but the 2015 audiogram shows no NIHL. Let us now consider these scenarios.

SCENARIO 1

Despite there being no more noise exposure between 1990 and 2015, the 2015 audiogram shows audiometric evidence of NIHL but the 1990 audiogram shows normal hearing on cessation of exposure. Medical convention is that NIHL is non-progressive. It doesn’t get worse once exposure ceases. The claimant might argue, as they did in Ross, that the earlier audiogram must be inaccurate and, in fact, the claimant had NIHL in 1990 (or argue for latency of onset of NIHL). However, it is often difficult to show that historic audiometry was not properly conducted in the absence of any proper evidence. This is even more so where an audiogram shows normal hearing. If the audiometry was not properly conducted one would expect audiometric errors to show worse than actual hearing. If a poorly conducted audiogram does not show NIHL then a claimant certainly doesn’t have NIHL.

Instead, one should consider whether the 2015 audiogram, which purportedly shows NIHL, is inaccurate and therefore showing hearing worse than it actually is. Alternatively, it could be that the audiogram is accurate but there are other causal factors-and not NIHL - resulting in losses worse than expected for age.

SCENARIO 2

We now reverse the position in scenario 2 with the 1990 audiogram apparently showing NIHL and the 2015 showing normal hearing. NIHL is a permanent condition. If it was present in 1990 it must be present today. If the 2015 audiogram does not show NIHL then it is either unreliable, or if it is reliable, then the 1990 audiogram must be unreliable (or there was a temporary cause of conductive hearing loss) and the claimant did not (and does not) have NIHL then.

AVERAGING AUDIOGRAMS?

The above scenarios relate to audiograms spaced widely over time and one of the audiograms being patently inaccurate or losses which cannot be attributable to NIHL.

How do we deal with audiograms which are performed closer in time-say within 1 to 2 years of each other and which, in theory, should show hearing thresholds within margins of acceptable audiometric variability and 10dB of each other at corresponding frequencies?

Can the results of these audiograms be averaged to provide a composite audiogram with the thresholds being the average of the two?

The CLB. (2000) ‘Guidelines on the diagnosis of noise-induced hearing loss for medicolegal purposes’,^[ii] state at Note 3:

‘If an average of two, several or many hearing threshold measurements at the relevant frequencies in a particular ear can validly be used, the “at least 10dB or greater” guideline may be reduced slightly, by up to about 3dB. In borderline cases, an average of all the audiograms available and acceptable for averaging should be used in assessing the evidence for or against the presence of a high-frequency hearing impairment, notch or bulge.’ [Emphasis added].

Therefore the guidelines state that if you are able to average the results of more than one audiogram then the diagnostic threshold in R3a i.e. that there be a notch or bulge in the audiogram of 10dB, may be reduced to 7dB. Naturally then, this issue is intrinsic to diagnosis.

As can be seen from the extract of Note 3 above, averaging of audiograms is only recommended in certain circumstances and unfortunately, the guidelines do not explain when audiograms ‘can validly be used’  or are ‘acceptable for averaging’.

There has been and remains much debate regarding when averaging of audiograms may be utilised. We will now go on to consider these issues and then consider the impact this has on the diagnosis of NIHL.

Professor Lutman (one of the principle authors of the CLB Guidelines), in open correspondence to questions arising from the ambiguity of averaging, initially indicated that audiograms should only be averaged if they agree closely with one another. He further stated that it would be unlikely that audiograms obtained on different occasions, especially if they were obtained under different test conditions and with different equipment, would agree closely enough to make averaging meaningful and this is what is meant by the phrase ‘acceptable for averaging’ in Note 3. Therefore, his approach was that Note 3 should not normally be applied to the average of audiograms obtained on different occasions or by different examiners. In other words averaging was restricted to audiograms obtained at the same sitting and presumably designed to identify any intra-test variability.

However, his approach since appears to extend to allow averaging of audiograms which are carried out at different times, as long as the audiograms are similar and are not ‘intrinsically different’. By this we assume that hearing thresholds between the audiograms should be within 10dB of each other.

Professor Cole, again as a principle author of the original guidelines, has stated in open correspondence, that it is acceptable to average audiograms over a period of ten years provided there has been ‘no major audiometric changes over the period concerned’. Again, there is no definition of ‘major audiometric change’. We assume this means that the hearing thresholds have not deteriorated beyond what would be accepted for normal AAHL over the period.

Other experts-such as Mr Jones and Mr Parker-appear to be more circumspect about the principle of averaging on the basis that errors between tests tend to be largely systemic rather than random and the use of averaging lowers the burden of proof required for a diagnosis of NIHL. Alternatively, if averaging is to be considered then it should be restricted to tests with the same sitting and where these closely agree.

Errors in an audiometric measurement can be either systematic or random.  A systematic error is an error that is constant or proportional across all measurements, for example, if an instrument is not calibrated correctly, all measurements may be 5 units larger than the ‘true’ values.  ‘True’ readings may be calculated if the size and nature of the systematic error is known.  A random error will be different across all measurements, sometimes resulting in lower or higher readings (and they will be higher or lower by different amounts) than the ‘true’ reading, and the ‘true’ reading may be determined by taking averages of multiple measurements.  The greater part of the random error is usually attributable to judgement variability on the part of the person being tested^[iii]. 

The impact that this has on averaging is illustrated by the review carried out by Lawton,^[iv] which found that both systematic and random errors are present in the determination of auditory thresholds.  Though random errors can result in thresholds appearing either higher or lower than they actually are, the authors report, systematic errors usually elevate the threshold, making the hearing appear poorer than it really is.  So effectively in averaging you are at risk of simply combining the results from an accurate test with the elevated results from an inaccurate test-with the average also being greater than a true average. To compound matters that inaccurate average is then compared against a reduced diagnostic R3a threshold of 7dB to establish a diagnosis. There is little guidance within the case law on averaging.

In Aldred v Cortaulds Northern Textiles Limited,^[v] the court was asked for the first time to consider the concept of averaging hearing threshold levels from different audiograms where minimal notching / bulging was present on some and not on others.

Mr Zeitoun for the claimant and Mr Parker for the defendant, disagreed on the meaning of ‘an average of all the audiograms available and acceptable for averaging’ as per Note 3. Mr Parker did not accept that this could apply to historic audiograms or those which were separated by distance in time. He claimed that he had discussed the approach with some of the authors of the guidelines and felt that re-testing was intended to be a reference to further cycles through the frequencies at the same sitting or test, rather than subsequent audiograms.

Mr Zeitoun also claimed to have discussed the approach of averaging audiograms with one of the authors and was of the firm stance that the use of audiograms from different days was perfectly acceptable.

HHJ Wood QC found that he preferred the approach of Mr Zeitoun as he felt it was ‘both logical and sensible that the guidelines should be interpreted to allow, within reason, the use of audiograms take at different times, and not within the same test setting’. He went on to say at para 26:

‘Apart from the obvious point made that the guidelines would have specified the exclusion of tests taken at more than one sitting (and elsewhere the advice is specific and proscribed), as one reads note 3, there are key indicators as to why this should be the case. First of all there is a reference to “many hearing threshold measurements”. It is difficult to see how this could contemplate such measurements being taken at one sitting. Second the qualification for providing a retest comes after a conclusion that a case is borderline and provides a specific process for repositioning the headphones. If the guideline authors have intended that this should be the reference to one or more of multiple tests then in my judgment it would have been stipulated’.

It should be noted that the audiograms in Aldred 2 audiograms spaced only 3 months apart and which were significantly similar were relied upon to find a diagnosis of NIHL. What is the approach to be taken when this is not the case?

In the de minimis decision of Harbison v The Rover Company Limited, discussed earlier in this edition of BC Disease News, it is probable that the averaging of 2 significantly different audiograms allowed a diagnosis of NIHL to be established where it did not in fact exist.

The claimant had undergone two audiograms, the first in May 2014 and the second in September 2015. The first audiogram showed a Coles compliant notch at 4kHz, however, the second audiogram did not with the hearing threshold level at 4kHz improving from 40dB to 20dB. However, to diagnose NIHL, Mr Sharma averaged the results for the right ear of both audiograms. After doing this, NIHL was found per Coles with a resulting 12dB audiometric bulge at 6 kHz satisfying a reduced R3a requirement of 7dB.

The defendant submitted that averaging of the audiograms was inappropriate as the hearing thresholds between the two differed by 20dB which was significantly more than the margin of acceptable audiometric variability of 10dB.The later 2015 audiogram demonstrated a significant improvement in thresholds which was not consistent with NIHL.

However in the absence of any medical evidence from the defendant, HHJ Carmel Wall stated:

‘In considering the strength of this argument I have regard to the fact that Mr Sharma was not challenged as to the appropriateness of averaging the two audiogram results; and that he had justified this method by reference to the CLB guidelines. His approach was thus a recognised mainstream approach to multiple audiograms designed to improve reliability of outcome. In those circumstances I conclude that I should be slow to reject his approach where there is no expert evidence to suggest that he was wrong to take that approach in this case’.

The judge found that when averaging the results at 6 kHz this satisfied the CLB requirement and so the claimant has proved the diagnosis of NIHL.

Although averaging multiple audiograms was accepted in this instance, it should be noted that the defendant did not have its own expert evidence to counter the use of averaging where it appeared to be clearly inappropriate to do so.

CONCLUSION

As mentioned above, audiometric error may be random or systematic. Random error is helped by averaging, systematic error is not, and most audiological error is systematic and tends to exaggerate hearing loss.

Averaging would certainly seem more appropriate for audiograms obtained at the same test to reduce intra-test errors - such repeat testing is advocated within the BSA Recommended Procedures for Pure Tone Audiometry^[vi].

There seems to be some disagreement amongst experts as to whether it is appropriate to average results from different tests performed at different times-albeit still relatively close in time. However, there does seem to be some consensus that it would only be appropriate to do so where those audiograms closely agree.

Surely averaging cannot be appropriate where thresholds between audiograms perfor['med closely in time –say within 1 or 2 years of each other-differ significantly and show differences greater than 10dB at corresponding frequencies. This method was adopted in Harbison and probably resulted in mis-diagnosis of NIHL.

In such cases it is arguably more appropriate to disregard the worse audiogram, as being less accurate, and rely on the better audiogram alone for diagnosis.

Finally it would appear to be even more fraught with difficulties to apply averaging of audiograms performed wide apart in time given how and why hearing thresholds might have deteriorated over time between the two.

It was established in Page v Hewetts Solicitors [2012] EWCA Civ 805, that a claim is ‘brought’ for limitation purposes when the claim form is delivered to the court office, accompanied by a request to issue and the appropriate fee. The issue raised in Dixon, was what was meant by ‘appropriate fee’.

Whilst still within limitation, the Claimant issued a claim form claiming a specific sum (£35,894.78) and tended the correct fee for a money claim of up to £50,000. Some months later when out limitation, the Claimant served Particulars of Claim seeking damages in excess of £400,000.

The defendant sought to amend to plead limitation on the grounds that because an incorrect fee had been paid the claim as it stood was statute barred-the claimant had failed to stop time running for the purposes of limitation.

Mr Justice Stuart-Smith noted that there was no statutory provision which stated that issued proceedings were invalid if the court had accepted a fee which was or became less than the proper fee for the claim. He stated:

‘In a case where abusive conduct was not present, the fact that a claimant intended to bring a claim which could not be articulated or quantified at the time of issuing proceedings should not require payment of the fee that would have been payable if that claim had been articulated or quantified. In those circumstances, where the court had issued proceedings but the correct fee had not been either paid or requested by the court, an action had nevertheless been brought for the purposes of the 1980 Act at the moment of issue’.

Thus, the ‘appropriate fee’ for the purposes of the principle in Page was to be determined by reference to the claims articulated in the claim form. In the absence of abusive behaviour, it was not to be determined by reference to claims which were articulated later, whether or not such later claims were ones which the claimant intended to bring later at the time of issuing proceedings.

The decision therefore turned on the distinction between abusive conduct (for example, issuing a claim that knowingly understates the ultimate intended value of the claim), and issuing a claim where aspects, such as the value of claim, have fairly yet to be developed.

We have reported extensively on the MedCo scheme within BC Disease News, particularly in relation to the controversial use of shell companies by Medical Reporting Organisations (MROs). Most recently in edition 152, we reported that the Ministry of Justice (MoJ) intended to introduce a new definition of MRO and related qualifying criteria.

This week the MoJ has published revised qualifying criteria for MROs. These will enable MedCo to ensure that MROs currently registered on the system, and MROs applying to register, are properly constituted businesses with satisfactory systems and sufficient resources in place to operate to the minimum required standards.

The new criteria also includes a new definition of MRO and the MoJ state that it is:

‘…designed to demonstrate the types of MRO model acceptable for the purposes of providing medical reports via MedCo. Under the definition, organisations set up purely as a ‘shell’ to gather instructions and forward them on to a related organisation are not allowed’.

The new criteria requires all aspiring MROs to provide documented assurances that they are independent, properly staffed and resourced, and directly and solely responsible for all work associated with receiving instructions. Additionally, MROs must also put forward a ‘financial instrument’ of £20,000 to show they have sufficient funds available to remunerate medical experts who are instructed to write reports.

MedCo has said that it will be contacting all ‘shell companies’ direct. It will also apply the new criteria in auditing MROs that are already registered on the system and when considering applications from MROs to register on the system. This is to ensure that MROs do not undermine the system’s random allocation model.

Failure to meet the revised criteria will result in removal from the MedCo system and rejection of applications to be registered.

It is hoped that this will present major tier 1 MROs from creating dozens of shell companies in order to farm more work.

The full set of Qualifying Criteria can be found here.

This month has seen another de minimis success for insurers in the case of Harbison.[i]

The 63 year old claimant was employed by the defendant over 29 years between 1975 and 2006 as a production operative in a car plant and alleged NIHL from exposure to excessive noise. The issues in this case were:

• Did the claimant have any NIHL caused by noise exposure and;
• If so, was the NIHL sufficient to be compensable?

The defendant admitted breach of duty and accepted the claimant’s evidence without cross-examination. There was no oral evidence given at the trial which was allocated to the fast-track. The defendant had no medical expert evidence to rely upon. The medical evidence was restricted to the written evidence of the claimant’s expert only, Mr Sharma.

The claimant underwent two audiograms for the purposes of the claim. The first was carried out on 10 May, 2014 as part of Mr Sharma’s medical report who diagnosed NIHL with a bilateral qualifying notch at 4kHz using the ‘CLB Guidelines’ 2000.

Following a request by the defendant, another audiogram was carried out on 24 September, 2015. However, at the time of that test, the claimant’s left ear was occluded with wax and so the left ear results from that test were deemed unreliable. In the right ear the 4 kHz notch found in the 2014 audiogram had disappeared and the hearing threshold improved from 40dB to 20dB. To continue supporting a diagnosis of NIHL Mr Sharma now relied upon a bulge of 8.6dB at 6 kHz. This fell short of the threshold of 10dB required to meet the R3a requirement in the CLB Guidelines. However, when he looked at the results for the right ear from the two audiograms he found that the bulge at 6 kHz averaged 12 dB and so was sufficient to meet the reduced threshold requirement of 7dB when averaging (see section 7.5 of the CLB Guidelines) and so maintained his diagnosis of NIHL. He also used the averaged results of both audiograms of the right ear over 1, 2 and 3 kHz to find an additional binaural hearing loss due to noise of 1dB over those frequencies.

The defendant submitted that averaging of the audiograms was inappropriate as the hearing thresholds between the two differed by 20dB which was significantly more than the margin of acceptable audiometric variability of 10dB. The later 2015 audiogram demonstrated a significant improvement in thresholds which was not consistent with NIHL.

However, HHJ Carmel Wall stated:

‘In considering the strength of this argument I have regard to the fact that Mr Sharma was not challenged as to the appropriateness of averaging the two audiogram results; and that he had justified this method by reference to the CLB guidelines. His approach was thus a recognised mainstream approach to multiple audiograms designed to improve reliability of outcome. In those circumstances I conclude that I should be slow to reject his approach where there is no expert evidence to suggest that he was wrong to take that approach in this case’.

The judge found that when averaging the results at 6 kHz this satisfied the CLB requirement and so the claimant had proved the diagnosis of NIHL. We discuss the topic of averaging multiple audiograms in greater detail in our feature article below.

De Minimis?

The judge then turned to consider whether or not the NIHL was compensable. Based on averaging the two audiograms, when measured across 1, 2 and 3 kHz the claimant’s NIHL was 1dB. Mr Sharma’s opinion was that when looking across these frequencies there would generally be no noticeable subjective effect or material disability from that level of NIHL. The judge concluded that when the claimant’s hearing was considered across 1, 2 and 3 kHz, he was not ‘appreciably worse off’ due to NIHL.

In relation to the loss at 4kHz on the first audiogram, which showed that that the claimant had a measured additional hearing loss after age adjustment of 19dB in his right ear and 29dB in his left, the claimant argued that Mr Sharma’s responses to the Part 35 questions supported the inference that the claimant was appreciably worse off as a consequence of this loss. However, the judge rejected this and accepted the defendant’s argument that Mr Sharma had suggested the possibility that hearing loss at high frequency could be subjectively noticeable or have a material effect but that that this fell short of discharging the claimant’s burden of showing that he was appreciably worse off as a consequence.

As such it was concluded that:

‘[…] on the evidence before me the claimant does have mild hearing impairment. However he has not discharged the burden of showing that on the balance of probabilities the NIHL hearing loss that is additional to the effect of age has made him appreciably worse off. I am not satisfied the injury caused by NIHL is compensable.

The outcome in this case differs from another 1^st instance decision of Briggs v RHM Frozen Food Limited,[ii] where there was again little or no NIHL at 1-3 kHz but a loss of up to 15dB at 4 kHz. That loss was found to be compensable. So why the different outcome to Harbison? In Briggs one of the factors that told in favour of compensation was the claimant’s accelerated need for hearing aids-an issue not advanced in Harbison. Additionally, in Harbison the judge indicated that in order to prove that loss at 4kHz had caused the claimant some disability, the audiogram alone would not be enough and that the claimant and his expert had failed to adduce any evidence that the claimant was ‘appreciably worse off’ as result of such loss - a failing on the claimant’s part not to provide written or oral evidence to this effect.

The raft of 1^st instance NIHL judgements on de minimis seen over the last few years are very fact-specific, but outcomes often seem determined on the absence of evidence presented by either of the parties. As we have previously cautioned do not run cases without your own expert evidence.

Further details about previous de minimis decisions and how to run a successful de minimis defence can be found in edition 133 of BC Disease News here.

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In edition 143 of BC Disease News, we reported on the decision of BNM V MGN Limited [2016] EWHC B13 (Costs) in which the harsh impact of the post-Jackson proportionality rule was demonstrated after Master Gordon-Saker halved the costs of a privacy action that he had deemed reasonable after a line-by-line assessment.

Further details about this judgment can be found in edition 143 here. However, in short, the Master halved the claimant’s costs from the sought after £241,817 to £167,389. In addition to this he ruled that the proportionality test applied to additional liabilities (which are still recoverable in privacy actions) and these should be considered together with the base costs. However, he went on to look at the ATE premium of £58,000 separately and also halved that as a result of it being disproportionate, notwithstanding the fact he found the premium was set at a reasonable level.

This decision was heavily criticised by the ATE insurer, Temple Legal Protection (reported in edition 144 here), which said that the proportionality rule should not apply to those areas of litigation where additional liabilities are still recoverable. A representative of the firm stated:

‘My deepest concern is that this judgment will be used by well-resourced defendants, who
can afford not to recover all of their costs, to run up their legal spend knowing full well that
a claimant would not be able to match this and, therefore, could only recover a level of costs
in line with their damages. This flies in the face of the recent judgment in Miller v Associated
Newspapers Limited where the Judge found that ‘ATE provides a legitimate social purpose’
and that the ‘burden imposed by the ATE premium scheme is not so large and not so lacking
in appropriate controls as to amount to a disproportionate inference in their right to freedom
of expression’.

The proportionality test was introduced in 2013 without guidance, however, it has been announced that the decision in BNM, has been leapfrogged to the Court of Appeal to consider the application of the rule.[i] The appeal has been expedited and will be heard by two Lord Justices probablye before Christmas.

We will continue to report on the progress of this appeal and this will be accompanied by a feature article on proportionality.

This month, in the decision of Re B (Litigants In Person: Timely Service of Documents) [2016] EWHC 2365 (Fam), the High Court has issued a warning to lawyers over bombarding litigants in person (LiPs) at the door of the court. [i]

The comments were in relation to a final hearing in a child abduction case in which a counsel’s 14-page position statement and four law reports which totalled 100 pages were given at the door of the court to a non-English speaking LiP.  Mr Justice Peter Jackson, noted that had this position statement been given to the LiP earlier, it could have helped her, despite the fact it was written in English.

The judge gave the following guidance in relation to service of documents on LiPs:

‘Where one party is represented and the other is a LIP, the court should normally direct as a matter of course that the practice direction documents under PD27A are to be served on the LiP at least three days before the final hearing, especially where the LiP is not fluent in English’.

He continued:

‘The method of service, usually email, should be specified. Where time permits, the court should consider directing that the key documents are served with a translation. In cases where late service on a LiP may cause genuine unfairness, the court should consider whether an adjournment of the hearing should be allowed until the position has been corrected’.

It was also noted that LiPs were less likely to make complaints about this kind of behaviour due to their unfamiliarity with the court process. Late service of documents to LiPs in particular creates unfairness and imbalance between the parties as they may not have time to seek advice ahead of the hearing.

Although this guidance came from the Family Division, it is equally as applicable to the civil courts and should be heeded by all those dealing with LiPs.

This week, speaking at a Law Society Commercial Litigation Conference, Professor Rachel Mulheron spoke on the topic of damages-based agreements (DBAs) which were introduced through a set of regulations in 2013 as part of the Jackson reforms. Since their introduction they have seen little take up by the legal profession.[i]

There have been many complaints regarding the regulations with many seeing them as poorly drafted and unworkable. The inability to provide hybrid DBAs was also criticised by practitioners, especially as hybrid funding measures were available for CFAs.

Following this criticism, the Civil Justice Council (CJC) were asked to recommend improvements to the 2013 regulations. As such, they produced a report in September 2015 which set out a blueprint of 45 recommendations designed to kick-start the use of DBAs.

Recommendations included:

-          Technical amendments to existing regulations to make them clearer and therefore more attractive;

-          Increasing some of the caps on payments for cases;

-          Allowing lawyers and clients to agree a ‘trigger point’ at which a DBA becomes payable and the circumstances under which it can be terminated.

Professor Mulheron reminded those at the conference that this report had been commenced on the request of the government and said it was ‘a great pity’ that the report had not been taken forward. It was noted that the recent government consultation ‘Transforming Justice’, did not make reference to DBAs at all.

We reported on the CJC’s recommendations for reforming DBAs in edition 109 BC Disease News here.

We reported in edition 157 of BC Disease News that Slater and Gordon (S&G) is being sued in relation to its tumultuous acquisition of Quindell. It has been announced this week that Australian law firm, Maurice Blackburn Lawyers, has now filed a shareholder class action against S&G. It is the first firm to have done so on behalf of S&G shareholders since its share price plummeted earlier this year.[i]

Maurice Blackburn claim that the shareholders it represents lost 95% of their investment between April 2015 and February 2016, which has been put down to the £637m acquisition of Quindell’s professional services division (we have reported previously on this acquisition and its consequences in edition 131 of BC Disease News here). It has been suggested that S&G’s due diligence processes were inadequate throughout the acquisition and it failed to provide shareholders with accurate and reliable information about the risks of the acquisition and its value to shareholders.

Maurice Blackburn state that:

‘Shareholders also suffered heavy losses when SGH abruptly withdrew revenue and earnings guidance only weeks after it was emphatically re-affirmed, and further losses followed when SGH released financial statements which not only suggest that the acquisition was under-performing, but also indicate systemic problems across the company as a whole’.

The statement of claim alleges that S&G made false and misleading statements, engaged in misleading and deceptive conduct, and/or breached its continuous disclosure obligations to shareholders which prevented shareholders from being able to make informed investment decisions based on complete, accurate and timely information about the Quindell acquisition and the true state of the company’s overall financial position and performance. As a result, they state that:

‘…by this conduct SGH contravened various provisions of the Corporations Act 2001 (Cth), ASX Listing Rules, the Australian Securities and Investment Commissions Act 2001 (Cth), and the Australian Consumer Law, and that these contraventions caused the price of SGH shares throughout the period to be higher than would have been the case had the true state of affairs been known to the market.  It is also arguable that, had the real risks and true value of the Quindell acquisition been adequately disclosed, SGH would not have been able to conduct the A$900 million capital raising, and the transaction would not have taken place’.

Elsewhere, however, S&G have already indicated their intention to sue Quindell, now known as Watchstone Group, arising from the purchase of Quindell. However, Watchstone Group has said that it does not believe there are grounds for such an action and it will defend it robustly.

We will continue to report on the progress of both these claims.

We have reported frequently on the Ministry of Justice’s (MoJ) plans for reforms to the personal injury sector and more specifically on the previous Chancellor, George Osbourne’s intentions to increase the small claims limit for personal injury claims from £1,000 to £5,000 and to remove the right to general damages for minor soft tissue claims i.e. whiplash claims.

However, following the Brexit vote in the summer of this year, we surmised that these reforms would likely take a back seat whilst the new Prime Minister Theresa May organised her new cabinet. Indeed, Michael Gove was replaced as Justice Secretary by Elizabeth Truss and George Osbourne was replaced as Chancellor of the Exchequer by Phillip Hammond.

It has been further reported this week that a representative at the MoJ has confirmed that the whiplash changes are not its priority, but claim reforms as a whole are ‘certainly not off the agenda’.[i] Insurers have reported ministers telling them that they are unenthusiastic about the proposals.. The Association of British Insurers has this week released a statement in which it reiterates the need for the Government to push ahead with these reforms. James Dalton, Director of General Insurance Policy said:

‘The Ministry of Justice seems to be rowing back from much needed reform to the civil justice system that will save motorists up to £50 a year on average. The UK has one of the most abused systems in Europe and the reforms would tackle the excesses of the compensation culture. Without action, claims management companies will continue to nuisance call and text honest motorists encouraging them to make fraudulent and exaggerated claims through claimant law firms. Every day of delay costs honest motorists across the UK nearly £3 million. The plans are drawn up and ready to go so there is no excuse for not pushing ahead’. [ii]

This news comes after a six month delay in the publishing of a consultation paper setting out how these reforms would be implemented. It is thought that the delay and possible setting aside of the reforms is due to resistance from the legal profession. Additionally, it has been made clear that the priority of the new Justice Secretary, Elizabeth Truss’ is prison reform as opposed to carrying on George Osborne’s legacy.

Many adults in the UK spend more than 7 hours a day sitting or lying (not including time spent sleeping), and this typically increases with age to 10 hours or more.[i]  This total daily sedentary time is comprised of occupational, leisure-time, domestic, and transport-related sedentary time. 

In this feature article we will focus predominantly on occupational sitting and the possible adverse health consequences associated with this. We will do this by analysing the available research which links sitting to conditions such as heart disease, diabetes, obesity and musculoskeletal disorders.

Prevalence of Sitting

A study carried out by Buckley JP et al, quotes data which suggests that on average office workers spend up to 75 per cent of the day sitting. Another recent study of workers in the Northern Ireland Civil Service found that men had a mean occupational sitting time of around 6 hours per day, and women almost 6 ½ hours per day. [ii]

If it is assumed that a typical working day includes 8 hours spent working and 8 hours spent not working, then the total potential for time spent sitting is split equally between work time and non-work time (in the UK, the average time spent working is 36.3 hours per week, and 42.7 hours per week among full time workers). [iii]  An Australian study found that those in full time work spent more time sitting at work than recreationally, with a mean of 4.2 hours sitting at work and a mean of 2.9 hours sitting recreationally. [iv]  A Dutch study found that the working population spent an average of 7 hours a day sitting, one third of which was at work. [v] Occupational groups and sectors differed significantly: the greatest amount of time spent sitting at work was among legislators and senior managers (181 minutes per day), followed by clerks (160 minutes per day), and the smallest amounts of time were among agricultural workers (74 minutes per day) and service workers (51 minutes per day).  Thus, for full time employees in physically inactive jobs, occupational sitting is likely to be the largest contributor to overall daily sitting time. [vi]

Given the increasing technological changes in the home and workplace, it is possible that modern humans have not yet reached their most sedentary, and that the average time spent sitting each day may still increase.  A recent Danish study found that between 1990 and 2010 the proportion of Danish workers who sat for at least three quarters of their work time gradually increased from 33.1 to 39.1 %, and that occupational sitting time increased by 18 %. [vii] It is estimated that in the United States the prevalence of sedentary jobs increased from 15 % in 1960 to 25 % of jobs in 2008. [viii]

Possible Health Effects of Sitting

In the past decade, research on the effects of sedentary behaviours i.e. prolonged sitting or lying down, as a health threat has increased exponentially and has shown that it may be associated with an increased risk of major health outcomes, including cardiovascular mortality, cardiovascular disease, musculoskeletal disorders and type II diabetes. [ix]

It is thought excessive sitting slows the metabolism – which affects our ability to regulate blood sugar and blood pressure, and metabolise fat – and may cause weaker muscles and bones.

One of the largest pieces of research to date on the subject – involving almost 800,000 people – found that, compared with those who sat the least, people who sat the longest had a: [x]

• 112% increase in risk of diabetes
• 147% increase in cardiovascular events
• 90% increase in death caused by cardiovascular events
• 49% increase in death from any cause  

This research comprised a systematic review and meta-analysis which summarised the results of all the observational studies that had looked at the association between the time spent sitting or lying down whilst awake and the risk of diabetes, cardiovascular disease, and death due to cardiovascular disease or any other cause.

Despite the fact that the studies were from a range of countries, and that each study was performed differently, the time spent sedentary was consistently associated with poorer health outcomes. However, this study cannot show that sedentary behaviour is the direct cause of the increases in risk as there may be other confounding factors associated with both sedentary behaviour and disease risk (for example smoking, alcohol, diet, or socioeconomic factors) which the individual studies may not all have taken into account.

For example, many of these conditions can also be linked with obesity. Whilst there has been research which suggests that excessive sitting is linked to obesity a 2008 study was able to establish that actually, being obese may cause sedentary time which is reversed causation from the assumption that sitting can cause obesity. [1]

Guidance for Employees and Employers

The strength of the evidence for a link between sitting and ill health is such that the World Health Organisation has published guidelines, adopted by Public Health England, which recommends 150 minutes of exercise a week in order to counter the effects of sitting, but some research suggests that even this is insufficient for some people. [xi]

A WHO spokesman said: ‘Recommendations related to sitting and sedentary behaviours are not available yet. However, WHO already recommends governments implement policy actions around making environments where people live and work more conducive to physical activity’.

The UK government issued new recommendations in 2011 on minimising sitting for different age groups.

The Start Active, Stay Active report published by the Department of Health recommends breaking up long periods of sitting time with ‘shorter bouts of activity for just one to two minutes’. A panel of leading experts who reviewed the evidence on sitting for the report recommended taking ‘an active break from sitting every 30 minutes’. [xii] The advice applies to everyone, even people who exercise regularly, because too much sitting is now recognised as an independent risk factor for ill health.

Ideally, to minimise the risk of adverse health effects, a worker should have the option to sit, stand, move around and vary the nature of work tasks. An expert statement commissioned by Public Health England and Active Working C.I.C., published in 2015, aimed to provide guidance for employers and staff working in office environments to combat the potential ills of long bouts of seated office work [xiii].  The core recommendations are as follows:

“For those occupations, which are predominantly desk-based, workers should aim to follow these recommendations:

• Initially progressing towards accumulating at least two hours per day of standing and light activity (light walking), eventually progressing to a total accumulation of four hours per day (pro-rated to part-time hours)
• Seated-based work should be regularly broken up with standing-based work and vice versa and thus sit-stand adjustable desk stations are highly recommended
• Similar to the risks of prolonged static seated positions, so too should prolonged static standing postures be avoided; movement does need to be checked and corrected on a regular basis especially in the presence of any musculoskeletal sensations.  Occupational standing and walking have however not shown to be causally linked to low back and neck pain and can provide relief.
• Those individuals new to adopting more standing-based work could expect some musculoskeletal sensations and some fatigue as part of the positive adaptive process.  If such sensations cannot be relieved either by an altered posture or walking for a few minutes, then the worker should rest, including sitting, with a posture that relieves the sensation.  If discomfort does persist, then seeking appropriate medical advice is recommended.
• Along with other health promotion goals (improved nutrition, reducing alcohol, smoking and stress), companies should also promote to their staff that prolonged sitting, aggregated from work and leisure-time, may significantly increase one’s risk of cardio-metabolic diseases and premature mortality.”

The NHS also recommends the following to reduce sitting time [xiv]:

• Take the stairs and walk up escalators
• Set a reminder to get up every 30 minutes
• Alternate working while seated with standing
• Stand or walk around while on the phone
• Take a walk break every time you take a coffee or tea break
• Walk to a co-worker’s desk instead of calling

The HSE booklet ‘Seating at work’ (1997) offers guidance on the safety and suitability of workplace seating. [xv] The advice does not mention reduction of the amount of seated time, but focuses on how to make seating comfortable. 

Stand-sit workstations and dynamic workstations have also been suggested as alternatives to sitting workstations.  The purpose of such devices is to encourage workers to change working positions.  They are used by over 90 % of office workers in Scandinavia and they can be easily adjusted to sitting or standing height. [xvi]

It is important when choosing a standing desk to ensure that it meets ergonomic requirements.  Such requirements are illustrated in the figure below[xvii], and include:

• Wrists should be flat to the keyboard
• Elbows should form a 90 degree angle when typing
• Eyes should look forward to the monitor

Figure:  Standing desk [xvii]

Less commonly used are treadmill workstations, these are desks attached to a treadmill, upon which the user walks whilst working.

Figure:  Treadmill desk [xix]

According to Get Britain Standing, it is surprisingly easy to type and speak while walking at a slow pace, but is less easy to write by hand[xx].  Treadmill desks can be desks that are designed to cover a traditional treadmill, a treadmill that is designed to fit under a standing desk, and a treadmill with desk included.

Occupational v Leisure Sitting

It has been suggested that different types of sitting may have different relationships with health.  This finding was reported by several studies.  For example, Periera[xxi] found that television viewing was associated with more biomarkers for disease than occupational sitting.

In general, it appears that comparisons between occupational sitting and health effects may show fewer or weaker effects than comparisons between overall sitting and health effects, or television viewing and health effects.  These differences may be due to socioeconomic factors, for example, sitting at work tends to be associated with higher socioeconomic status, whereas longer times watching television tend to be associated with lower socioeconomic status.  Thus, differences in other variables that result from social status may influence the effects of time spent sitting on health.

Conclusion

Whilst there is some evidence which supports a link between prolonged sitting at work and conditions such as, heart disease and diabetes for any cause of action to be established, an individual would need to show that their occupation doubled the risk of contracting that condition.

In edition 53 we provided a feature which considered the association of carpal tunnel syndrome (CTS) with exposure to vibration at work. We noted that in the case of Ward v Rotherham Metropolitan Borough Council (2013), the claimant could not prove that the use of vibration tools whilst at work doubled the risk of developing CTS and so it was held that the vibration had not been the cause of the claimant’s condition. The full feature can be accessed here. The same principles used in CTS can therefore be applied in claims for prolonged sitting whilst at work based on the research outlined in this article, that there is a lack of evidence that prolonged sitting doubles the risk of contracting the condition.

Next week we will be presenting a feature on the possible health consequences of prolonged occupational standing.

In a lecture at the Law Society’s commercial litigation conference last week, Lord Justice Jackson addressed the topic of disclosure and considered whether more effective use should be made of the rules which have been in place since 2013.

Disclosure can be a costly exercise, not only due to the process of identifying and handing over appropriate documents but also considering bundles from the other side which can be a lengthy process. Therefore, says LJ Jackson, getting a grip on disclosure is one of the keys to controlling litigation costs.

He went on to say that often, people are treating standard disclosure as the default option, with parties frequently agreeing it, seemingly without considering whether other options may be preferable, and the courts accept their agreements. However, it was suggested that it would be to the public benefit if all involved in the disclosure process gave more attention to the full range of options before simply proposing or agreeing to ‘standard disclosure’. These options include, e-disclosure, predictive coding and other types of technology assisted review.

In particular it was noted that more use should be made of CPR r. 31.5 (7) which contains the ‘menu’ of different possible disclosure orders. One possible form of order, which is not expressly set out but which is sometimes made under rule 31.5(7)(f), gives, by consent of each party, the other free access to all its documents (other than privileged documents), so that they can pick out whichever ones they want.

However, it was not just the parties to proceedings that needed to adapt their approach to disclosure. He said judges needed to do more than simply adjudicate upon the parties’ competing submissions:

‘It is necessary to test the opposing arguments’.

He quoted the experience of one unnamed judge:

‘When disclosure is an issue during case management, it is not uncommon to find that the parties’ counsel cannot describe the documents which they expect to be relevant, why they might exist or why they will benefit determination of the issues concerned. This is particularly the case for electronic documents, when requests for practical descriptions and examples are usually met with bluster’.

Despite the fact that this discussion was had in reference to commercial litigation, it is applicable to all areas of civil litigation.

The full speech can be found here.