Horizon Scan of the Disease Market for 2022

INTRODUCTION

In the course of this feature article, we reflect on the past year of published articles in BC Disease News and make predictions about recurring themes in 2022. The final section of our Horizon Scan of the disease and wider personal injury market delves deep into the current state of the COVID-19 pandemic, with a view to appraising the ongoing threat to occupational health and the maturing appetite for EL claims.

We omit from this article discussion on the progress of litigation involving talcum powder exposure and the development of mesothelioma/ovarian cancer; glyphosate herbicide exposure and the development of non-Hodgkin lymphoma; head impacts in professional sport and the development of neurodegenerative disease; and air travel and the development of so-called ‘aerotoxic syndrome’. An update on these topics will feature in edition 340 of BC Disease News, in January 2022.

DECLINING MESOTHELIOMA MORTALITY?

Earlier this year (here), we revealed that, in 2019, 2,369 employees died from mesothelioma as a result of occupational exposure to asbestos-containing materials. This is 3% (77) less than in 2018 (2,446) and 7% less than the average number of deaths (2,540) over the period from 2012-2018.

Whilst the number of deaths among females (424) remained constant, deaths among males (1,945) fell (9% down versus 2012-2018 average).

In 2019, there were also 2,025 cases of mesothelioma assessed for Industrial Injuries Disablement Benefit (IIDB), compared with 2,230, in 2018. There were 5 fewer (240) female cases assessed for the scheme in 2019, than in 2018 (245). Despite this decrease, the proportion of female-to-male IIDB assessments was 2% higher in 2019 than in 2018.

To a large extent, this aligns with the statistical modelling, which anticipated that mesothelioma deaths would peak ‘up to around 2020’, before stabilising for a period and dipping thereafter.

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[Source: HSE (based on projections up to 2050)]

At the time, HSE considered that the COVID-19 pandemic was unlikely to have adversely affected the 2019 statistics, despite the fact that some deaths took longer to be registered because of it. It based this presumption on the number of late registrations (by the March 2021 cut-off date) being ‘similar to the number expected based on patterns of late registrations in previous years’, i.e. there was no indication towards a backlog of unregistered mesothelioma deaths.

We will have to wait until next year’s release of statistical analysis to see whether this positive outlook is accurate, but it is clear from BCDN editions published this year that concern over future asbestos-related disease incidence has remained a focal point in the media and in politics.

In edition 335 (here), we reported that the Commons Work and Pensions Select Committee had launched an inquiry into ‘the current risks posed by asbestos in the workplace, the actions taken by HSE to mitigate them and how its approach compares to those taken in other countries’.

It did so with the intention of obtaining feedback to influence the HSE’s Post Implementation Review (PIR) of the current iteration of the Control of Asbestos Regulations 2012, which had been commissioned by the Government in response to ResPublica’s influential Report on the UK’s policy of managing the continued presence of asbestos in public buildings: DON’T BREATHE IN: BRIDGING THE ASBESTOS SAFETY GAP.

Subsequently, in edition 338 (here), we reported that the Committee had gathered for its first oral evidence session, during which panellists jointly called for the phased, safe removal of asbestos from some 3,000 pre-fabricated ‘CLASP’ schools still in use today; for the creation of a central register for asbestos in public buildings; for the abandonment of a policy of ‘management in situ’; and for the better training of designated ‘duty holders’, assigned by HSE.

The Committee is due to release its final report on inquiry findings in 2022, the details of which we will be sure to share with our readers.

At the same time, we will attempt to identify trends of asbestos exposure in ‘at risk’ occupational environments. This year, we remarked the increasing regularity of fatal mesothelioma claims resulting from alleged historic exposure in the arts (see here, here and here) and, in particular, the BBC.

NEW NIHL CLAIMANT TACTICS?

We warned our readers, in edition 334 (here), that a ‘novel battle ground’ in an ‘ever-decreasing pool’ of viable industrial deafness claims could be instigated by claimants arguing in favour of a ‘sliding scale’ approach to the diagnosis of NIHL.

Traditionally, under the ‘Guidelines on the diagnosis of noise-induced hearing loss for medicolegal purposes’ (2000), written by Coles, Lutman and Buffin (the CLB Guidelines), in addition to high frequency hearing impairment (R1), a claimant must have either:

  • A cumulative noise immission level (NIL) above 100 dB(A) [R2(a)] AND an audiometric notch/bulge exceeding 10 dB [R3(a)]; OR
  • A cumulative noise immission level (NIL) above 90 dB(A) [R2(b)] AND an audiometric notch/bulge exceeding 20 dB [R3(b)].

This makes for binary diagnostic criteria on the issue of proving causation, because there are two distinct routes for fulfilling conditions R2 and R3.

Whilst a flexible ‘sliding scale’ approach (see table below) would appear to make some mathematical sense, a strict, literal reading of the CLB Guidelines does not accommodate it.

See, for instance, the mandatory language used in paragraph 6.1 of the Guidelines, which ostensibly leaves no room for interpretation:

Where the estimated total exposure is in the range of 90 to 99 dB(A) NIL, thereby meeting noise exposure guideline R2(b) but not R2(a), the audiometric guideline must be met instead of R3(a).

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It will nonetheless be intriguing to see whether the ‘sliding scale’ approach is tested at trial, next year.

Concurrently, we will keep an eye out for court judgments in 2022 that cite the Scottish case of McDonald v Indigo Sun Retail Limited [2021] SC EDIN 20. This was a significant decision (reported here), in that it appeared to validate the legitimacy of ‘sudden exposure’ NIHL claims, irrespective of the fact that ‘traditional’ NIHL claims generally allege lengthy periods of historic exposure to loud noise in heavy industry.

Elsewhere, we have come across several noteworthy studies that have examined the effects of noise-induced stress reactions on the body. It is said that such reactions have the ability to activate the autonomic nervous and endocrine system and subsequent release of stress hormones, affecting various physiological functions.

In edition 334 (here), we reported that those who had experienced a noisy workplace environment were more likely to suffer from cardiovascular disease complications than never exposed workers, while in edition 336 (here), we reported that high levels of transport noise from road traffic and railways had been associated with ‘an increased risk of all-cause dementia and dementia subtypes, especially Alzheimer’s disease’.

From a claims perspective, the biological mechanism linking excessive noise exposure with multi-organ damage is curious, as it begs the question whether NIHL claims are the only feasible EL claim type to stem from such exposure, or whether the disease market also has room for noise-induced dementia/noise-induced cardiovascular disease claims in years to come.

LATENT DANGERS OF TECHNOLOGY

As time goes by, it is inevitable that we will stumble upon academic journal articles and media posts that shine a spotlight on the potentially adverse effects of technology use on the body.

This year, we reported (here) on a scientific paper (dated 1 March 2021), which identified the ‘high probability’ that mobile phone radiofrequency radiation (RFR) can cause growth of gliomas and acoustic neuromas (brain tumours).

With the added factor of the COVID-19 pandemic, there has been a noticeable shift towards caring about indoor ambient air quality (both inside homes and offices). One might imagine that this is due to a re-imagining of priorities, as remote working has made workers appreciate the comfort of their work environment.

Perhaps it is no coincidence, therefore, that in edition 338 of BC Disease News (here), we reported that researchers at the University of Toronto had detected ‘significant levels’ of highly reactive and potential harmful volatile organic compounds (VOC) being ‘heavily emitted into the air’ by thin film transistor liquid crystal display (TFT-LCD) panels found in smartphones, computer monitors, laptops and televisions

In the year ahead, we will keep tabs on the scientific literature, with study authors having pinpointed TFT-LCD screens as a ‘previously unrecognised’ and ‘potentially important’ source for indoor VOC.

CONSEQUENCES OF OCCUPATIONAL AND ENVIRONMENTAL POLLUTION

Back in edition 328 (here), we reported that a team of University College London (UCL) researchers had, in the first study of its kind, found that those exposed to higher concentrations of fine particulate matter (PM2.5) were 8% more likely to have self-reported age-related macular degeneration (AMD).

AMD is an irreversible, degenerative eye condition that occurs when the small, central portion of the retina (the light-sensing nerve tissue at the back of the eye) wears down, producing distorted middle vision.

At the time, the Chief Executive of the British Safety Council (BSC), Mike Robinson, called on the UK Government to act as soon as possible to adopt the World Health Organisation’s (WHO) ambient air pollution targets, including an annual PM2.5 limit of 5 µg/m3, and a daily limit of 15 µg/m3.

The Environment Act 2021 has since been passed, which requires the Government to set at least one long term air quality target, as well as a target for fine particulate matter (PM2.5), both of which need to be brought forward by 31 October 2022.[i] This target is something to look out for in BCDN next year.

In the context of the coronavirus pandemic and the advent of homeworking practices, new areas of study on occupational pollutants have been prompted with startling preliminary results.

We reported (here) that it was likely that undiagnosed work-related asthma is more common than one might presume, after clinicians at the University Hospitals Birmingham NHS Trust detected ‘clusters of cases in specific offices’ and were able to pinpoint several substances that could trigger irreversible disease, including floor tile adhesive, printer toner, cleaning products, mould circulating in incorrectly installed air conditioning/ventilation shafts, as well as paint, vehicle and workshop fumes emanating from the immediate environment. Senior investigators acknowledged that the list of pollutants generated was not exhaustive.

Seeing that there has been ‘very little’ research into the issue to-date, it is possible that work-related asthma has been stigmatised  and thus ‘overlooked’ in white collar workers.

With COVID-19 seemingly here to stay and hybrid working arrangements now a staple part of normal everyday life, it would be reasonable to expect that the work of the Birmingham NHS Trust will inspire others to commence follow-up studies in 2022.

CLIMATE CHANGE IMPACTING OUTDOOR WORKERS

This year, the UK hosted the COP26 summit, bringing nations together to accelerate action towards the goals of the Paris Agreement and the UN Framework Convention on Climate Change.

Much of the summit, of course, focused on the ambition to limit global warming to a level that the planet can sustain. The desired target of 1.5°C by 2030 is still alive.[ii]

With this in mind, it would be astonishing if, in 2022, we did not report on emerging diseases linked to the effects of climate change. This year, for example, we reported (here) that America’s epidemic of chronic kidney disease of non-traditional origin (CKDnto), particularly among manual labourers, was likely due to work-induced heat stress. Heat stress is becoming an ever-present occupational risk factor, as a consequence of global warming bringing  ‘longer, more extreme and more frequent’ heat waves.

REPORTING THE GLOBAL WORK-RELATED BURDEN OF DISEASE AND INJURY

A few months ago (here), we analysed  the ‘first fruit’ of the collaboration between the World Health Organisation (WHO) and the International Labour Organisation (ILO), to deliver global estimates on the work-related burden of disease and injury, including 165,356 premature deaths from cardiovascular disease due to long working hours (≥ 55 hours per week) – a relatively new, psychosocial risk factor.

The Collaboration Agreement, signed by both UN agencies in 2019, made commitments to produce these estimates ‘regularly’.

As such, in 2022, we will checking to see whether the Global Monitoring Report is reproduced with new more up-to-date statistics on the 41 pairs of occupational risk factors and health outcomes.

UNINTENDED COVID COMPLICATIONS

Last year, we warned that coronavirus measures could foreseeably lead to a significant increase in new musculoskeletal disorders (MSKD) among office workers and, in 2021, we reported on various data to back this up.

In edition 323 (here), we discussed the findings of a nationwide study, carried out by Opinium (on behalf of Versus Arthritis), which concluded that 81% of desk workers who became remote workers in lockdown have since had back (50%), neck (36%) or shoulder pain (28%). Further, that 23% of those suffering claimed to be affected ‘often or all the time’, that 89% had not informed their employer about their struggles and that 35% had received no kit, support, or advice on homeworking from the outset.

Subsequently (here), we reported that optometrists had detected a 30% increase in incidence of digital eye strain (also known as ‘computer vision syndrome’) – an ‘emerging public health issue’? We stated that workers had ‘sharply rising’ rates of ocular irritation, affecting as many as 90% of screen users. After an Opinium poll of 2,000 workers revealed that 22% had noticed a worsening of vision during lockdown (with 32% attributing this to an increase in screen time), the College of Optometrists coined the term ‘coronavision’.

In 2022, we will monitor the work of Anglia Ruskin University academics, investigating the effects of coronavirus pandemic on the management of eye disorders, as well as any data on increasing prevalence of work-related upper limb disorders (WRULD).

WHICH CAUSATION TEST APPLIES?

Earlier this year (here), we reported on the case of Mather v Ministry of Defence, which has the potential to become a ‘leading precedent on causation in the law’.

The case in question is an occupational disease action, commenced by a former RAF painter and finisher. He is seeking damages for multiple sclerosis (MS) and psychiatric injury, allegedly caused by workplace exposure to organic solvents, from 1989 to 2003. It is argued that the defendant was negligent and breached its duty of care under the Control of Substances Hazardous to Health (COSHH) Regulations.

Central to a determination on liability, the court will have to first be persuaded that the claimant’s exposure could have caused his MS (generic causation), and second, that it did cause his MS (individual causation).

Next year, the trial judge will have to tackle the issue of whether MS is a divisible or indivisible condition, being a disease generally of unknown aetiology. What will be the relevant test on causation?

LEVELLING-UP BEREAVEMENT DAMAGES

In April 2021, the Association of Personal Injury Lawyers (APIL) published a Report that echoed the Joint Committee on Human Rights’ call for wider consultation on the law on bereavement damages. We reported this (here).

Bereavement damages: A dis-United Kingdom’ argued that The Fatal Accidents Act 1976 (Remedial) Order 2020, which rectified the Court of Appeal’s declaration of incompatibility, in the case of Smith v Lancashire Teaching Hospitals NHS Foundation Trust & Ors (Rev 2) [2017] EWCA Civ 1916, to allow 2+ year cohabiting couples to qualify for bereavement damages, remains ‘subject to a postcode lottery’.

The Report proceeded to denounce the Government’s continued resistance to change as ‘unacceptable’, claiming that the law remains ‘unfit for the 21st century’, ‘unprincipled’‘discriminatory’ and ‘stigmatising’.

Further, it argued that the cross-jurisdictional disparity of compassion and support shown to bereaved families has created a ‘dis-United Kingdom’ and pointed to Scottish ‘loss of society’ awards for unanimity. These damages are assessed ‘case-by-case basis, with personal circumstances and relationships taken into consideration’.

In edition 338 (here), we reported that the High Court had, in the landmark case of Haggerty-Garton & Ors v Imperial Chemical Industries Ltd [2021] EWHC 2924 (QB), applied Scots law as part of its determination on quantum for mesothelioma injury. This included compensation for ‘loss of society’.

If courts in England & Wales are, with increasing frequency, requested to make awards in accordance with Scottish law, this may tip the scales towards wider reform of the 1976 Act.

DO CRU PAYMENTS CONTRAVENE INSURER RIGHTS?

At the start of this year (here), we reported that the Government had successfully sought permission to appeal the High Court’s ruling in the case of Aviva Insurance Ltd & Anor, R (On the Application Of) v The Secretary of State for Work and Pensions [2020] EWHC 3118 (Admin).

At present, EL insurers are able to recover a proportion of social security benefits that have been paid to the Department for Work and Pensions (DWP), on the basis that the Social Security (Recovery of Benefits) Act 1997 is, in a number of specific circumstances, incompatible with Article 1 of the 1st Protocol (A1P1) to the European Convention on Human Rights (ECHR).

By the end of 2022, we will hopefully have seen the Court of Appeal’s decision on whether the lower court made an erroneous decision, i.e. that the 1997 Act strikes a fair balance between the interests of insurers and the public interest, or instead whether the decision did not go far enough to protect the rights of insurers.

PD 57AC GIVES EFFECT TO GESTMIN

This year, we reported (here) that the key principles from Mr. Justice Leggatt’s ratio in Gestmin SGPS SA v Credit Suisse (UK) Ltd & Anor [2013] EWHC 3560 (Comm), on the handling of witness evidence that refers to events from the distant past, was enshrined in para 1.3 of the Appendix to Practice Direction 57AC:

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Although the Practice Direction applies to the Business and Property Courts, we anticipated that this addition would be regarded as relevant to ‘any civil matter’, including personal injury cases.

Indeed, we reported (here), in a case summary on Jackman v Harold Firth & Son Ltd [2021] EWHC 1461 (QB), that His Honour Judge Bird (sitting as a High Court judge) had referred to para 1.3 of the Appendix in relation to an asbestos disease claim.

In the new year, we expect to see more cases making consistent reference to the Appendix.

INCOMING NATIONAL ARCHIVES REPOSITORY OF JUDGMENTS

Back when the UK was still a member of the European Union (EU), it was the lowest ranked Member State, in terms of general public access to online judgments.

This threatened to undermine the ‘constitutional right of unimpeded access to the courts’, as emphasised by the Supreme Court, in UNISON, R (on the application of) v Lord Chancellor [2017] UKSC 51.

Remedying this, in the new year, specifically by April of 2022, the Government’s 20-year contract with the British and Irish Legal Information Institute (BAILII) will come to an end and the National Archives will be launching the 1st phase of its repository of court documents.

This will likely resemble the legislation.gov.uk website (launched by the National Archives, in 2010).

As we reported in this final edition of 2021, 47,366 court judgments, in the form of rich-text and PDF documents, will be uploaded when the free-to-use service goes live.

In the year ahead, we are bound to trial the repository and examine its growth with interest, as more and more judgments are added.

DWINDLING PERSONAL INJURY CLAIMS?

On 2 July 2021, the Government updated its Compensation Recovery Unit (CRU) performance figures, which conveyed the lowest number of EL and PL cases registered to CRU in a decade – 45,687 and 51,286, respectively.[iii]

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The latest Employers’ Liability Tracing Office (ELTO) figures, which we evaluated in edition 335 (here), mirrored this downward trajectory and this was primarily attributed to a plummeting numbers of NIHL and mesothelioma enquiries.

Next year, we will take great interest in the health of the EL/PL market and review the elements contributing towards growth and decline.

EFFECTS OF SMALL CLAIMS TRACK LIMIT REFORMS

After several postponements to the rise in small claims track limit, from £1,000 to £5,000, for road traffic accident (RTA) claims, The Civil Procedure (Amendment No.2) Rules 2021 enforced this reform, on 31 May 2021.

We subsequently reported (here), that the Government saw it as a ‘sensible and pragmatic decision’ to defer the implementation of an increase in the small claims limit from £1,000 to £1,500, for all other personal injuries [employers’ liability (EL) and public liability (PL) claims], to April 2022.

Whether this deadline is met is a question we will revisit in the new year.

By exercise of powers conferred by the Civil Liability Act 2018, the Government passed The Whiplash Injury Regulations 2021, through which new fixed injury duration-dependent tariffs for ‘whiplash injury’ in road traffic accident claims entered into force, from 31 May 2021.

We reported (here) that the Motor Insurers’ Bureau (MIB) was establishing a Working Group [with representation from the Association of Personal Injury Lawyers (APIL), the Association of British Insurers (ABI) and the Motor Accident Solicitors Society (MASS)] to create a functioning framework for assessing damages in ‘mixed claims’. Indeed, the House of Lords has warned that whiplash reforms could generate an ‘explosion’ of quasi-bogus ‘mixed claims’, farmed by claims management companies (CMCs) and claimant law firms.

It is said that around 130,000 people involved in RTAs annually go on to develop ‘multiple injuries’.

However, the Regulations make no attempt to address how one would value pain, suffering and loss of amenity (PSLA) in an RTA claim where, for example, the claimant has been diagnosed with whiplash injury alongside tinnitus and/or psychological injury.

As claimant law firms adapt to the new small claims environment in 2022, we will examine trends  of ‘multiple injury’ RTA claims, which could yield recoverable costs.

One of the ‘biggest legal acquisitions of the year to date’, namely the sale of Irwin Mitchell’s book of fast-track PI business [comprising of 20,000-25,000 road-traffic accident (RTA), employers’ liability (EL) and public liability (PL) claims] to Minster Law, in the wake of Civil Liability Act whiplash reforms, was reported in edition 336 (here). We expect more streamlining of personal injury law firm business in the coming year.

PUSHING ON WITH FIXED RECOVERABLE COSTS EXTENSION

On 6 September 2021, the Ministry of Justice (MoJ) announced (here) that it would be pressing ahead with its introduction of fixed recoverable costs (FRC) for all other civil claims up to the value of £25,000 in the fast track (a new process and separate grid of FRC for NIHL claims in the fast track up to the value of £25,000 will also be initiated). Moreover, the MoJ announced that the fast track would be stretched to include ‘simpler’ so-called ‘intermediate’ claims up to the value of £100,000, which would also be governed by FRC. The MoJ’s Impact Statement claimed that the FRC reforms would afford solicitors the opportunity to take on an at least 17,000 more claims under fast track FRC and a minimum volume of 11,000 new ‘intermediate’ claims on an annual basis.

When we reported that the go-ahead for FRC reform had been confirmed (here), an Autumn 2022 start date was speculated, though some commentators predicted that the amount of work required would tip implementation over into 2023.

However, last week, Legal Futures revealed that October 2022 is when the extension of fixed costs should take effect – now less than 1-year away. This much has been substantiated in the latest CPRC minutes (dated 5 November 2021).[iv] Will plans materialise as planned? Only time will tell.

Cases encapsulated by FRC reform will be those ‘where the accident or cause of action arises after the implementation date, or in disease and equivalent cases where no letter of claim has been issued before the implementation date’.

CLARIFYING QOCS

The Supreme Court, this year, handed down judgment in Ho v Adelkun [2021] UKSC 43, which observed that a defendant may only recover costs ordered in its favour against claimant-awarded costs up to the level of ‘damages and interest’ made in favour of the claimant.

This case (analysed here) dealt with the interplay between qualified one-way shifting (QOCS) provisions on costs ‘enforcement’ and residual CPR 44.12 powers relating to ‘set-off’.

Nonetheless, Lady Rose, in particular, was displeased that the issue had reached the Supreme Court, requesting that the Civil Procedure Rule Committee (CPRC) wade in to bring transparency:

‘We should say at the outset that we doubt the appropriateness of a procedural question of this kind being referred to this court for determination … If the true construction of the QOCS scheme set out in Section II of CPR Part 44 has adverse policy consequences, that is a matter for the CPRC to put right’.

Interestingly, in the latest CPRC minutes (dated 5 November 2021), it was recorded that the Costs Sub-Committee would not concern itself with the Supreme Court’s judgment in Ho until further consideration has been given to the wider work on fixed recoverable costs and costs generally.

We will no doubt return to this issue in the new year.

COMPREHENSIVE GHR REVIEW ANTICIPATED

Updated solicitors’ guideline hourly rates have been in place since 1 October 2021 and have even been applied retrospectively (see our review on the case of Goodwin, earlier in this edition).

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Even though rates have been uplifted by between 7% and 35% and represent the first inflationary change in 11-years, the Master of the Rolls’, Sir Geoffrey Vos, is adamant that a deeper review is needed within 2 years to address how GHR are affected by COVID-19 working practices and court modernisation.

Given the short timeframe allotted to this comprehensive review, we will stay poised for new CJC publications as 2022 unfolds.

MAKING ADR COMPULSORY

We alerted our readers (here) to the fact that alternative dispute resolution (ADR) was being increasingly promoted by claimant firms, in lieu of ongoing pilot studies. Seeing that the serving CJC Chair and Master of the Rolls, Sir Geoffrey Vos, supports the role of ADR in civil justice, especially so in the personal injury (PI) sector, it would be unwise to assume that this topic of discussion would not re-emerge in 2022.

Following on from a CJC Report (dated June 2021) on the legality of compulsory ADR, authored by Lady Justice Asplin, the High Court made its first compulsory ADR order only a day or so ago.

More specifically, Master Davidson ordered a stay of proceedings until the end of February 2022 to enable the parties to attempt resolution of the proceedings via mediation. The parties were ordered to ‘meaningfully engage in the mediation process in a genuine attempt to reach settlement of these proceedings’.[v]

HMCTS DAMAGES CLAIMS PILOT SCHEME INVOLVEMENT

At some point in the new year, we are likely to update readers on the HM Courts & Tribunal Service’s (HMCTS) Damages Claims Pilot scheme established via Practice Direction 51ZB, which allows parties to manage and progress civil litigation online. Currently, the bulk of the claims accommodated by the scheme are personal injury claims (as we reported here). It is the Government’s ultimate ambition to develop an ‘end-to-end transformed digital service for claims in the county court, from pre-action to enforcement’.

PROSPECTIVE COVID-19 INFECTION CLAIMS

The virus, severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2), and the resulting disease, COVID-19, has continued to grip the world in 2021.

As at 12 December 2021, a total of 10,819,515 people had tested positive for COVID-19 in the UK.[vi] Around one-third of these people were asymptomatic, while others (40% of the symptomatic population) initially developed mild symptoms (without hypoxia or pneumonia), e.g.:

  • A high temperature;
  • A new, continuous cough; and/or
  • A loss or change in sense of smell (anosmia) or taste (ageusia).[vii]

Other examples of other early-onset symptoms include shortness of breath, fatigue, loss of appetite, muscle ache (myalgia), sore throat, headache, nasal congestion, runny nose, diarrhoea, nausea and vomiting.[viii]

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The UK Health Security Agency (UKHSA) has consistently reported that around 40% of symptomatic patients that tested positive went on to suffer moderate symptoms and non-severe pneumonia, 15% developed significant disease, including severe pneumonia, and 5% experienced critical disease with life-threatening complications.[ix]

Up to 12 December 2021, a total of 146,439 people had died within 28 days of a positive COVID-19 test result. With regards to people having died with COVID-19 listed on their death certificate, a total figure of 170,001 was recorded up to 26 November 2021.[x]

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We are currently in the 3rd wave of COVID-19 pandemic, with a 4th wave spreading in Europe.[xi] On 10 December 2021, the average rate of infection, or ‘R number’, was estimated to be between 0.9 and 1.1, on average, for the whole of the England (peaking at 1.2 in London).[xii] Mathematically speaking, this means that, for every 10 people exposed, between 9 and 11 people will be infected.

It is not surprising that thousands of SARS-CoV-2 variants have developed since 2019, because mutation is a natural consequence of viruses replicating and thriving.

The UK Government is currently investigating 7 strains of the virus (VUI), while 5 variants of concern (VOC) are domestically at large.[xiii]

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Delta has been the predominant variant in England for the most part of 2021, accounting for approximately 99.8% of sequenced cases, from 10 October 2021 to 30 November 2021.[xiv]

However, Professor Paul Hunter, of the University of East Anglia, has warned that the new Omicron variant could become the dominant strain ‘within weeks’.[xv] Strength in this claim was bolstered by Imperial College Professor and member of the UK Government’s Scientific Advisory Group for Emergencies (SAGE), Neil Ferguson, who posited that Omicron was ‘doubling every two to three days’. By 13 December, its ‘phenomenal rate’ of spread meant that 40% of new infections in London were due to the Omicron variant.[xvi]

With the Prime Minister announcing ‘early indications’ that Omicron is more transmissible than Delta, by the festive period, early forecasts from the Clinical Operational Research Unit at University College London suggested that all-variant COVID-19 cases may surge to 90,000-per-day – a ‘worst case’ scenario.[xvii] Further, scientists at the London School of Hygiene and Tropical Medicine (LSHTM) warned that Omicron alone could cause up to 75,000 deaths in England, by April 2022, ‘without tougher restrictions’ – again, a ‘worst case’ scenario.[xviii]

Government-mandated public/occupational health measures have customarily been instigated with reference to numbers of COVID-19 cases, hospitalisations and deaths, toughening and weakening with the coming and going of each wave.

This includes (tiered) lockdowns; social distancing and grouping rules; restrictions to business opening hours and forced business closures; mandatory face coverings; air corridors; and various means of testing and tracing COVID-19 incidence and viral transmission. It has also produced various pieces of industry-specific practical guidance documents for employers.[xix]

The question moving forwards will be whether the significant immunity afforded by vaccines and by earlier COVID-19 infection continue to stabilise low hospitalisation and death rates, in spite of a ‘tidal wave’ of Omicron cases.

Three COVID-19 vaccines are currently being used in the UK, all of which have been authorised for supply by the Medicines and Healthcare products Regulatory Agency (MHRA), following a thorough review of safety, quality and efficacy in clinical trials:

  • Pfizer/BioNTech (1st jab administered on 8 December 2020[xx]);
  • AstraZeneca (1st jab administered on 4 January 2021[xxi]); and
  • Moderna (1st jab administered on 7 April 2021[xxii]).

As at 11 December 2021, 51,254,510 people had received their 1st coronavirus vaccine dose, 46,742,069 had received their 2nd dose and 23,124,829 had received their booster.[xxiii]

In clinical trials, the vaccines showed very high levels of protection against symptomatic infections with COVID-19. High levels of efficacy have been attributed to decreased rates of death in the 3rd wave.

Work completed by Public Health England (PHE)/UKHSA and Cambridge University’s MRC Biostatistics Unit allowed them to infer that, up to 24 September 2021, the vaccine had led to 24,144,000 fewer cases and 127,500 fewer deaths. What is more, it was estimated that around 261,500 hospitalisations have been prevented through vaccination in those aged 45-years and over, up to 19 September 2021.[xxiv] Similarly, the Office for National Statistics (ONS) divulged that, between 2 January and 24 September 2021, the age-adjusted risk of death involving COVID-19 was 32-times greater in the  unvaccinated population than the fully vaccinated population.[xxv]

UKHSA continues to monitor and report on the effectiveness of the vaccines to-date.[xxvi]

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For the double-jabbed, whilst their risk of Omicron-induced hospitalisation should still be greatly reduced, they are believed to have almost no protection against infection.[xxvii]

Nonetheless, early data suggests that a 3rd booster dose of vaccine gives an individual around 70% to 75% protection against symptomatic infection from Omicron (compared to 90% against Delta[xxviii]), but the data pool is still small to say definitively.[xxix] Immunity provided by the 3rd dose is said to be ‘bigger broader and more memorable’ than prior doses.

On the matter of transmission, SARS-CoV-2 is still understood to be primarily transmitted when an infected person (droplet and/or aerosol) expels respiratory particles through breathing, speaking, coughing or sneezing, which are then inhaled or come into contact with the eyes, nose or mouth of an uninfected person. Alternatively, SARS-CoV-2 can be transmitted through indirect contact with fomites (objects/materials/surfaces likely to carry infection). Naturally, therefore, transmission risk is highest when people are in close proximity to eachother (particularly within 2 metres) in poorly ventilated indoor spaces for extended periods of time.[xxx]

Apart from legal obligations, initiated by the Government to reduce rates of transmission (see above), private enterprise has also trialled various PPE, technology and working arrangements to further circumvent transmission. This includes surgical masks, respirators, spit hoods, plastic visors and gloves, Perspex shields, protective screens; antibacterial hand gels; ultraviolet light sanitisers, enhanced personal cleaning regimes, robot cleaners, temperature screening equipment; paperless filling systems, air filtration/purification units, one-way systems, separated workstations, limited person quotas and daily testing.

Despite best attempts, there have, of course, still been clusters of infection (symptomatic and asymptomatic), hospitalisation and death arising from workplace transmission.

On 25 January 2021, the ONS published its 3rd and latest batch of data on ‘coronavirus related deaths’ in workers, aged between 20 and 64, in England and Wales. Figures showed that 7,961 ‘deaths involving COVID-19’ in the ‘working age population’ had been registered in England and Wales between 9 March and 28 December 2020.[xxxi]

Although 75% of jobs that require frequent contact with people are undertaken by females, male workers had a statistically higher (almost doubled) risk of dying from the virus (31.4 deaths per 100,000 people) than their female counterparts (16.8 deaths per 100,000 people). The ONS’s provisional mortality rates equated to 5,128 male deaths (64.4% of total deaths) and 2,833 female deaths (35.6% of total deaths).

17 specific occupations were identified as having raised rates of death involving COVID-19 among working men, including:

  • Security guards [74.0 deaths per 100,000 (104 deaths)].
  • Care workers and home carers [71.1 deaths per 100,000 men (70 deaths)].
  • Taxi and cab drivers and chauffeurs [65.3 deaths per 100,000 (134 deaths)].
  • Food, drink and tobacco process operatives [64.3 deaths per 100,000 men (32 deaths)].
  • Nursing auxiliaries and assistants [58.9 deaths per 100,000 men (30 deaths)].
  • Chefs [56.8 deaths per 100,000 men (49 deaths)].
  • Vehicle technicians, mechanics and electricians [44.3 deaths per 100,000 men (36 deaths)].
  • Bus and coach drivers [44.2 deaths per 100,000 men (53 deaths)].
  • Book-keepers, payroll managers and wages clerks [34.5 deaths per 100,000 men (26 deaths)].
  • Sales and retail assistants [34.2 deaths per 100,000 men (43 deaths)].
  • Van drivers [26.7 deaths per 100,000 men (66 deaths)].

4 specific occupations were identified as having raised rates of death involving COVID-19 among working women, including:

  • Care workers and home care workers [25.9 deaths per 100,000 women (134 deaths)].
  • National government administrative occupations [23.4 deaths per 100,000 women (22 deaths)].
  • Sales and retail assistants [15.7 deaths per 100,000 women (64 deaths)].

Another indicator of work-related SARS-CoV-2 infections is data collated under The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013, by which employers are duty bound to report cases of, or deaths from, COVID-19, which related to occupational exposures.[xxxii]

The latest published figures show that between 10 April 2020 and 27 November 2021, there were 37,723 notifications of occupational COVID-19 in workers, including 427 deaths.[xxxiii]

Around 40% of all reports received after 29 August 2021 were for workers in the health and social work sector. In the same period, workers in the education sector accounted for 16% of reports, with the public administration & defence and manufacturing sectors close behind, making up 9% and 7% of reports, respectively.

By its own admission, the RIDDOR notification system suffers from widespread under-reporting which has the potential to distort the impression of the scale and spread of COVID-19 cases.

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As and when COVID-19 infection claims are commenced against employers on a wide scale, there are multiple potential causes of action:

  • Negligence claims for breaches of employer’s common law duty of care.
  • Negligence claims for breaches of statutory duty of care owed to employees.
  • Strict liability claims against employers for 3rd party supply of defective equipment, under s.1 of the Employers’ Liability (Defective Equipment) Act 1969.
  • Applications for Industrial Injuries Disablement Benefit (IIDB) payment, assuming the Industrial Injuries Advisory Council (IIAC) eventually finds sufficient evidence to recommend COVID-19 as a ‘prescribed disease’.[xxxiv] Position Paper 48 deemed evidence of a doubling of risk in several occupations to be indicative of a pathway to potential prescription.

In respect of common law negligence claims, there will be questions to answer over the standard of care expected of a ‘reasonable and prudent employer’. Defendants will likely avoid liability so long as they have taken precautionary action based on what they ‘know or ought to know’ at the time of exposure and keep ‘reasonably abreast’ of developing Governmental, industry and scientific knowledge of the time (shortly before and during the incubation period) and are ‘not … too slow to apply it’.[xxxv] It is foreseeable that breach will be harder to prove early on in the pandemic, when the science was inconsistent and Government/World Health Organisation (WHO)/HSE policy was ever-changing and/or inconsistent (even to the point of negligence).

In respect of claims alleging statutory breaches of duty, the fact that the claimed breaches will have occurred post-1 October 2013 will generate discussion on whether a ‘reasonable’ employer should have been aware of historic Regulations, such as the PPE Regulations 1992, and whether duties owed under such Regulations were breached.[xxxvi]

Assuming that they are, defendants will be required to prove that ‘suitable’, well-fitting personal protective equipment (PPE) was provided with training and guidance and was maintained or replaced where necessary. They will have to show that risk assessments were conducted and re-conducted when faced with ‘significant changes’ to the basis of such risk assessments. It is no secret that defendant businesses, at the height of the pandemic, often had difficulty sourcing PPE, as supply and demand chains were stretched. This would have affected the quality and cost of PPE used by staff. Defendants’ standards of compliance with their duties may be measured by the actions of their market competitors.

Complex issues for determination on the topic of breach and causation in a hypothetical COVID-19 infection claim could be:

  • What is the ‘infectious dose’ of SARS-CoV-2?
  • Which of the legal causation tests (‘but for’/‘doubling of risk’/‘material contribution’/‘material increase in risk’[xxxvii]) applies?
  • Is COVID-19 a ‘divisible’ disease? Is there a discernable dose-response relationship?
  • What is the long full extent of ‘long-COVID’, which describes signs and symptoms that continue or develop after acute COVID-19? ‘Long-COVID’ includes both ongoing symptomatic COVID-19 (from 4 to 12-weeks) and ‘post-COVID-19 syndrome’ (12-weeks or more). Attention should be paid to impending outcomes of the post-hospitalisation COVID-19 (PHOSP-COVID) study and a host of other Government funded projects.[xxxviii]
  • Will evidence of ‘hidden epidemics’ (acute and serious) come to light in respect of the long-term clinical sequelae of infection in the population, e.g. lung scarring, brain damage, cancer, etc.?
  • Are asymptomatic infection claims a matter for future ‘concern’? Might there be disagreement surrounding ‘actionable damage’ and de minimis non curat lex, where claimants present with physiological changes caused by the virus, but have suffered no measurable pain, suffering or loss of amenity?
  • Is there ‘reasonable foreseeability’ of secondary exposure(s) to SARS-CoV-2 (e.g. through fomite transmission), as with asbestos overall cases?
  • What will be the relevant sections of the Judicial College (JC) Guidelines (15th edition), upon assessment of general damages?
  • Will defendants be able to fully or partially defend claims, e.g. due to contributory negligence, under the doctrine of volenti non fit injuria, by acting out of necessity, by waiting for ‘complete guidance’, by adhering to its duties when considering dismissal of a vulnerable employee, etc.?

At present, there are 5 active companies on Companies House with ‘CORONA’ or ‘COVID’ in their name that could foreseeably operate as claims management companies (CMCs) to farm infection claims against employers, the latest being ‘COVID CLAIMS 247 LTD’:

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On 17 December 2021, the Department for Work and Pensions (DWP) responded to a freedom of information (FOI) request that we submitted on 22 November 2021, to inform us that 186 ‘COVID-19, Covid, Coronavirus, or Disease Code 80’ claims had been registered with the Compensation Recovery Unit (CRU), 115 of which were EL claims and 26 of which were PL claims.

In the new year, will we begin to see infection claim volumes rise and test cases emerge?

For more information on the legal implications of COVID-19 infection claims, read our Guide, here (accurate to March 2021).

 

[i] GOV.UK) https://www.gov.uk/government/publications/fine-particulate-air-pollution-pm25-setting-targets> accessed 15 December 2021.

[ii] ‘COP26 KEEPS 1.5C ALIVE AND FINALISES PARIS AGREEMENT’ (13 November 2021 COP26) <https://ukcop26.org/cop26-keeps-1-5c-alive-and-finalises-paris-agreement/> accessed 15 December 2021.

[iii] DWP, ‘Compensation Recovery Unit performance data’ (2 July 2021 GOV.UK) <https://www.gov.uk/government/publications/compensation-recovery-unit-performance-data/compensation-recovery-unit-performance-data> accessed 17 December 2021.

[iv] Neil Rose, ‘Fixed costs extension set to happen in less than a year’ (10 December 2021 Legal Futures) <https://www.legalfutures.co.uk/latest-news/fixed-costs-extension-set-to-happen-in-less-than-a-year> accessed 15 December 2021.

[v] Nick Hilborne, ‘High Court makes “first” compulsory ADR order in commercial case’ (15 December 2021 Legal Futures) <https://www.legalfutures.co.uk/latest-news/high-court-makes-first-compulsory-adr-order-in-commercial-case> accessed 15 December 2021.

[vi] ‘Cases in United Kingdom’ (12 December 2021 GOV.UK) <https://coronavirus.data.gov.uk/details/cases> accessed 13 December 2021.

[vii] ‘Main symptoms of coronavirus (COVID-19)’ (25 November 2021 NHS) <https://www.nhs.uk/conditions/coronavirus-covid-19/symptoms/coronavirus-in-children/> accessed 8 December 2021.

[viii] ‘COVID-19: epidemiology, virology and clinical features’ (6 October 2021 GOV.UK) <https://www.gov.uk/government/publications/wuhan-novel-coronavirus-background-information/wuhan-novel-coronavirus-epidemiology-virology-and-clinical-features> accessed 8 December 2021.

[ix] Public Health England, ‘COVID-19: epidemiology, virology and clinical features’ (6 October 2021 GOV.UK) <https://www.gov.uk/government/publications/wuhan-novel-coronavirus-background-information/wuhan-novel-coronavirus-epidemiology-virology-and-clinical-features> accessed 10 March 2021.

[x] ‘Deaths in United Kingdom’ (12 December 2021 GOV.UK) <https://coronavirus.data.gov.uk/details/deaths> accessed 13 December 2021.

[xi] Robin McKie, ‘Is Europe’s Covid wave coming here – or is Britain ahead of the curve?’ (13 November 2021 The Guardian) <https://www.theguardian.com/world/2021/nov/13/is-europes-covid-wave-coming-here-or-is-britain-ahead-of-the-curve> accessed 8 December 2021.

[xii] Government Office for Science and Scientific Advisory Group for Emergencies, ‘The R number and growth rate in the UK’ (10 December 2021 GOV.UK) <https://www.gov.uk/guidance/the-r-number-in-the-uk> accessed 12 December 2021.

[xiii] ‘SARS-CoV-2 variants of concern and variants under investigation in England (Technical Briefing 31)’ (10 December 2021 UK Health Security Agency) <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1040076/Technical_Briefing_31.pdf> accessed 12 December 2021.

[xiv] ‘SARS-CoV-2 variants of concern and variants under investigation in England (Technical Briefing 30)’ (3 December 2021 UK Health Security Agency) <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1040076/Technical_Briefing_31.pdf> accessed 8 December 2021.

[xv] Josh Salisbury, ‘Omicron could become dominant Covid strain in UK “within weeks”, says expert’ (6 December 2021 Evening Standard) <https://www.standard.co.uk/news/uk/omicron-dominant-variant-covid-paul-hunter-pandemic-b970211.html> accessed 8 July 2021.

[xvi] Guy Faulconbridge and Michael Holden, ‘“Phenomenal” Omicron spread accounts for 40% of London infections’ (13 December 2021 Reuters) <https://www.reuters.com/world/uk/britain-says-omicron-spreading-phenomenal-rate-2021-12-13/> accessed 13 December 2021.

[xvii] Samuel Lovett, ‘UK could reach 90,000 infections a day by Christmas, experts warn’ (7 December 2021 The Independent) <https://www.independent.co.uk/news/health/covid-omicron-variant-vaccine-latest-cases-b1971580.html> accessed 8 December 2021.

[xviii] Daniel Smith, ‘Professor says 75,000 Omicron deaths in UK by April “unlikely” to happen’ (11 December 2021 Wales Online)   <https://www.walesonline.co.uk/news/uk-news/professor-says-75000-omicron-deaths-22434296> accessed 13 December 2021.

Tom Ambrose, ‘Omicron could cause 75,000 deaths in England by end of April, say scientists’ (11 December 2021 The Guardian) <https://www.theguardian.com/world/2021/dec/11/omicron-covid-variant-could-cause-75000-deaths-in-england-by-end-of-april-say-scientists> accessed 14 December 2021.

[xix] Department for Business, Energy & Industrial Strategy, ‘Working safely during coronavirus (COVID-19)’ (12 December 2021 GOV.UK) <https://www.gov.uk/guidance/working-safely-during-covid-19/updates> accessed 13 December 2021.

[xx] ‘Covid-19 vaccine: First person receives Pfizer jab in UK’ (8 December 2020 BBC) <https://www.bbc.co.uk/news/uk-55227325> accessed 14 December 2021.

[xxi] Covid: Brian Pinker, 82, first to get Oxford-AstraZeneca vaccine’ (4 January 2021 BBC)  <https://www.bbc.co.uk/news/uk-55525542> accessed 14 December 2021.

[xxii] Connor Sephton, ‘COVID-19: First dose of Moderna vaccine given in UK as 24-year-old carer Elle Taylor gets jab’ (7 April 2021 Sky News) <https://news.sky.com/story/covid-19-first-dose-of-moderna-vaccine-given-in-uk-as-24-year-old-carer-elle-taylor-gets-jab-12268074> accessed 14 December 2021.

[xxiii] ‘Vaccinations in United Kingdom’ (12 December 2021 GOV.UK) <https://coronavirus.data.gov.uk/details/vaccinations> accessed 13 December 2021.

[xxiv] UKHSA, ‘COVID-19 vaccine surveillance report: Week 49’ (9 December 2021 GOV.UK) <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1039677/Vaccine_surveillance_report_-_week_49.pdf> accessed 14 December 2021.

[xxv] Charlotte Bermingham, Jasper Morgan and Vahé Nafilyan, ‘Deaths involving COVID-19 by vaccination status, England: deaths occurring between 2 January and 24 September 2021’ (1 November 2021 ONS)  <https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/deaths/bulletins/deathsinvolvingcovid19byvaccinationstatusengland/deathsoccurringbetween2januaryand24september2021> accessed 14 December 2021.

[xxvi] UKHSA, ‘Monitoring reports of the effectiveness of COVID-19 vaccination’ (10 December 2021 GOV.UK) <https://www.gov.uk/guidance/monitoring-reports-of-the-effectiveness-of-covid-19-vaccination> accessed 14 December 2021.

[xxvii] James Gallagher, ‘Omicron: Why do boosters work if two doses struggle?’ (14 December 2021 BBC) <https://www.bbc.co.uk/news/health-59639973> accessed 14 December 2021.

[xxviii] Alistair Smout, ‘Boosters significantly restore protection vs Omicron, UK says’ (11 December 2021 Reuters) <https://www.reuters.com/world/uk/boosters-give-70-75-protection-against-mild-disease-omicron-uk-health-security-2021-12-10/> accessed 14 December 2021.

[xxix] Francesca Gillett, ‘Covid: Boris Johnson sets new booster target over “Omicron tidal wave”’(13 December 2021 BBC) <https://www.bbc.co.uk/news/uk-59631570> accessed 13 December 2021.

[xxx] UKHSA, ‘COVID-19: epidemiology, virology and clinical features’ (6 October 2021 GOV.UK) <https://www.gov.uk/government/publications/wuhan-novel-coronavirus-background-information/wuhan-novel-coronavirus-epidemiology-virology-and-clinical-features> accessed 14 December 2021.

[xxxi] Dr. Ben Windsor-Shellard and Rabiya Nasir, ‘Coronavirus (COVID-19) related deaths by occupation, England and Wales: deaths registered between 9 March and 28 December 2020’ (25 January 2020 ONS)  <https://www.ons.gov.uk/peoplepopulationandcommunity/healthandsocialcare/causesofdeath/bulletins/coronaviruscovid19relateddeathsbyoccupationenglandandwales/deathsregisteredbetween9marchand25may2020> accessed 7 March 2021.

[xxxii] ‘RIDDOR reporting of COVID-19’ (1 December 2020 HSE)  <https://www.hse.gov.uk/coronavirus/riddor/index.htm> accessed 21 December 2020.

[xxxiii] ‘Management information: Coronavirus (COVID-19) disease reports’ (HSE) <https://www.hse.gov.uk/statistics/coronavirus/index.htm> accessed 8 December 2021.

[xxxiv] i.e. adding COVID-19 to Schedule 1 of the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985.

[xxxv] Stokes v Guest Keen and Nettlefold (Bolts and Nuts) Ltd [1968] 1 WLR 1776.

Asmussen v Filtrona United Kingdom Ltd [2011] EWHC 1734 (QB.

[xxxvi] Post-enforcement of s. 69 of the Enterprise and Regulatory Reform Act (ERRA) 2013, which repealed s.47(2) of the Health and Safety at Work Act (HSWA) 1974 and thereby removed any claim for statutory breach of duty in a civil claim, whose origin stemmed from the ‘six-pack regulations’.

[xxxvii] An extension of the Fairchild v Glenhaven Funeral Services [2002] UKHL 22 principle.

[xxxviii] New research into treatment and diagnosis of long COVID <https://www.gov.uk/government/news/new-research-into-treatment-and-diagnosis-of-long-covid> accessed 14 December 2021.