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Claims club
November 2016, Exeter
Asbestos claims
What do you need to know?David Maggs
Mesothelioma claims
Represent about 80% of the cost of asbestos basedclaims to the insurance industry
Mesothelioma is a type of cancer that develops in thelining that covers the outer surface of some of thebody's organs (often the lungs). It is linked toasbestos exposure.
Mesothelioma
Typically develops more than 20 years after exposureto asbestos.
Mesothelioma claims - what ischanging?• 2002 – 1,600 claims• 2006 – 2,500 claims• 2010 – 3,250 claims• 2014 – 3,500 claimsRecent experience shows a stable but increasingnotification trend of claimsThe increases in claims notified appears to be slowingdown
Mesothelioma claims – what’schanging – average costs2002 - £69,0002006 - £75,0002010 - £87,5002104 - £97,500
Inflation is running at about 3-4% per annumPaid at nil are running at between 21% and 23%
Mesothelioma – what’s changing –Claimant age at notification2002 – 672006 – 692010 – 732014 – 74
Which means that you are dealing with older claimsfor your authority (or a predecessor authority)
Mesothelioma claims – what’schanging - % of living Claimants2002 – 20%2006 – 18%2010 – 61%2014 – 69%
NHS mesothelioma framework 2007 – increasedawareness and improved diagnosis
Mesothelioma claims –Male/female % Claimants• 2002 - 96% male/4% female• 2006 - 96% male/4% female• 2010 – 94% male/6% female• 2014 – 95% male 5% female
The proportions are relatively consistent with a slightincrease in claims from women
Mesothelioma claims – what’schanging – deaths HSE projection2002 – 1,5002006 – 1,7502010 – 1,9002014 – 2,5152020 – 2,0002024 – 1,8002028 – 1,500
Mesothelioma claims – deathratesHSE projection peaks in 2016
Other projections peak higher and later (2018)
Revised HSE projection moved back to 2015 butpeaked higher (about 1%)
Mesothelioma claims – whatmight changeMedical advances –longevity (40% of sufferers survive one year, 20%survive two years)Cure – impact on claims depends on how the cost ofthe cure compares to the cost of death benefits
A double lung transplant costs £360,000,chemotherapy cost £26,000
Mesothelioma claims – whatmight change?Mortality improvements – increased longevity meansmore exposed lives develop mesothelioma
Exposure pattern – the long latency period means weknow little about underlying exposure from late1970’s onwards
Mesothelioma – what mightchange
Inflation –
Medical - costs e.g. drugs
Legal – court fee increases, changes to Ogdendiscount rates, case law
Mesothelioma claims – MMI
Annual Report and Accounts for year ending 30 June2016
“An increase in the provision for mesothelioma claimshas not been required this year as reportingpatterns for new mesothelioma claims havestabilised”
Mesothelioma claims – MMI
“The Employers Liability mesothelioma accountremained stable due to slightly fewer new claimsbeing reported compared with the previous year, butthe very nature of these claims makes futureprojection uncertain”
Mesothelioma claims – what youare seeingClaims from –
Caretakers/DLO?Teachers/pupils?Tenants?Others?
Mesothelioma claims – therelevant timelineEarly 1960’s – two tier local government – countiesand municipal boroughs/county boroughs/ruraldistricts and urban districts
1965 – London boroughs created
1974 – Shire counties and non-metropolitan districtsor metropolitan counties and metropolitan districts
Mesothelioma claims
1965 – Newhouse & Thompson paper & Sunday Timesarticle – Serious injury could be caused by lowasbestos exposure
Even though 1970 - HM Factories InspectorateTechnical Data Note 13 – tolerated some exposure
Mesothelioma claims
• Pre 1965 – unless there was substantial exposure toasbestos dust - you shouldn’t be paying out onclaims
• E.g. Clark v LB Enfield (1) 7 Balding & Mansell (2)
• Alleged exposure, judged by the standards of thetime, did not present a foreseeable risk of injury
Mesothelioma claims
• Living Claimant
• Evidence upon Commission
• Occupational Hygienist’s report
• Claim discontinued against Enfield with costs
Mesothelioma claims - insurance
• Policy (or predecessor authority’s policy) lost
• Look in the archives – relevant minutes – sufficientevidence?
Mesothelioma claims – the searchfor evidence
Archives – committee minutes – asbestos policy andmeasures
Mesothelioma claims
• The tide may be on the turn
• The cost makes it worthwhile expending some timeand money exploring a defence
• Claims are winnable
Case update
Richard Johnson
Albert Victor Carder v TheUniversity of Exeter (2016)Court of Appeal
Material Contribution• Asbestosis claim arising from exposure between
1950s to the 1980s.• Claimant was 87 years of age where exposure by
defendant amounted to 2.3% of total lifetime dose.• Asbestosis is a divisible disease and so dose
related.• Claimant had other health issues and any
contribution by the defendant to the claimant'srespiratory symptoms or disability was likely to bevery small.
• At the earlier hearing below, the court had found for theclaimant on the basis that:
• 2 .3%, although small was not de minimis (this was concededon appeal)
• The extent of asbestos increase was an indicator that theclaimant had become worse off physically even though it wasnot noticeable or measurable. The dose of 2.3% had made acontribution to the overall condition.
• The claimant was at an increased risk of developing lung cancer• The claimants condition was likely to worsen to the point
where the claimant will be virtually confined to bed and bedependent upon others.
• Unlike cases such as pleural plaque, where damage ismeasurable but symptomless and no damages are payable, thecondition of asbestosis cannot be described as benign.
• What is ‘actionable damage’- Was the Claimantworse off?
• Court decided 2.3% was material- appeal dismissed.
• What dosage will be de-minimis?
Carl Henegan (Son & Executorof James Leo Henegan,Deceased) –v- Manchester DryDocks Limited and 5 others(2016) EWCA
• Different approach to divisible and indivisiblediseases.
• Claimant developed lung cancer due to asbestosexposure.
• Defendant sued exposure made up 35.2% of wholelife exposure.
• Court awarded 35.2% of any damages awarded.
• Claimant appealed relying upon the BonningtonCastings Ltd v Wardlaw 1956 AC: argued that:-
• It was established that the lung cancer had beencaused by the deceased exposure to asbestos.
• The causal connection between the lung cancer and theasbestos was established by reason of the cumulativedose.
• Each defendant therefore materially contributed to thecontraction of the disease.
• Argument rejected by court. Test is whetherexposure by defendant contributed to the injury.
• Divisible cases- severity is proportional to theamount of exposure.
• Indivisible cases such as lung cancer not possible toapply same test as cannot say which fibres fromwhich employer caused lung cancer.
• Application of Fairchild exception as qualified byBaker v Corus applies.
• Section 3 of the compensation act which reversedeffect of Baker did not apply as only applied tomesothelioma cases.
Mosson –v- Spousal (London) Ltd
Contributory Negligence• Mesothelioma claim brought against defendants
successors in title for period of employmentbetween 1963/64.
• Primary liability was admitted.
• Contributory negligence alleged for period of self-employment with two separate companies betweenperiods 1976/7 to 1992/3.
• Consideration given to whether claimant was self-employedrather than employee - court decided claimant was self-employed.
• Claimants statement denied asbestos exposure while self-employed.
• In forms completed for benefits claimant had admittedworking with asbestos during period of self-employment.
• Medical records also confirmed exposure during this self-employment period.
• Claimant accepted possibility of exposure duringdeposition.
• Court considered decision in Williams v University ofBirmingham 2011 EWCA . Did degree of exposure while selfemployed make injury foreseeable by standards of thetime?
• Reliance was placed on Badger v MOD (2005) EWHC wherethe court stated:
“Once contributory negligence has been established, thecourt must take into account both the extent of theclaimants responsibility for his injury and damage and theblameworthiness of his conduct as opposed to that of thedefendant in deciding on the reduction in damages that isjust and equitable”.
The judge described the evidence of how the claimant wasexposed to asbestos while self-employed was either ‘thin’ or‘non-existent’.
• The judge rejected the allegation that the deceased wasguilty of contributory negligence.
Smith v Portswood House Ltd
The Importance of a Good Engineering Evidence
• Claimant diagnosed with mesothelioma in 2013died in 2015 aged 60.Claim pursued by estate.
• Claimant alleged that he had been exposed toasbestos in the manufacture of fire doors.
• Alleged breaches of the Asbestos Regulations 1969and section 63 of the Factories act 1961 in relationto the failure to control dust emissions.
• The court when considering the legal principles relied uponWilliams v University of Birmingham 2011 EWCA:-
• The defendant owed a duty of care not to unreasonablyexpose him to asbestos fibre's and the consequent risk ofasbestos-related injury, including mesothelioma.
• The claimant must show the defendant was in breach of thatduty by being negligent and exposing the victim to asbestosfibres and consequent asbestos-related injury that was thereasonably foreseeable result of that negligence.
• The claimant must prove on balance of probability that thedefendants negligent breach of duty had caused a materialincrease in the risk that the claimant would developmesothelioma.
• The claimant must also prove the loss and damage sufferedis within the usual ‘remoteness’ rules.
• The court confirmed the Supreme Court decision inBaker v Quantum Clothing Group Limited 2011 thatthe standard of conduct expected is that of thereasonable and prudent employer at the timetaking into account developing knowledge aboutthe particular danger concerned.
• Conflicting engineering evidence
• Defendant expert evidence preferred. Judge concludedexposure to asbestos fibres did not exceed standardsof the time.
• Court stressed onus not on Defendant.
• “It is for the Claimant to prove both that theDefendant company was negligent and that its breachof duty caused a material increase in the risk that thevictim would develop mesothelioma.”
General Data Protection Regulation
Megan Larrinaga
Will GDPR apply to the UK?
• Yes• No information as to how it will apply• Tinkering with GDPR post-Brexit?• Favourable exemptions?
General Data ProtectionRegulation(GDPR)• New definitions• New principles for Data Processing• Data Subject Rights• Consent• Information to be provided to Data Subjects• New Data Controller Obligations• Data Processor Obligations• Data Protection Officers• Mandatory Breach Notification• Increase in Liability and Sanctions
Aim of the Reform
• A uniform regime• Greater rights for data providers• Enhancing confidence in security• Increased accountability• Reduction in bureaucracy
Territorial Scope
• All data controllers and processors– Operating within the EU – whether or not the
processing takes place in the EU– Outside the EU that offer goods and services to data
subjects in the EU– Outside the EU that monitor the behaviour of data
subjects to the extent that the behaviour takesplace in the EU
Definitions – personal dataCurrentData relating to a living individual who can be identifiedfrom those data or from those data and other informationwhich is in the possession of, or likely to come into thepossession, of the data controller.FutureAn identifiable person who can be identified directly orindirectly, in particular by reference to an identifier suchas name, identification number, location data, onlineidentifier or to one or more factors specific to the physical,cultural, physiological, genetic, mental, economic, culturalor social identity.
Special categories of data• Data revealing-
Race or ethnic originPolitical OpinionsReligious or Philosophical BeliefsTrade Union MembershipHealth or Sex Life and Sexual OrientationGenetic or Biometric data in order to uniquely identifya person
• Processing of any/all of the above prohibited subject toexceptions
Definitions – data processing• Current – obtaining, recording or holding the
information or data or carrying out any operationor set of operations on the information or dataincluding altering, retrieving, disclosing, blockingerasing or destroying the information
• Future – any operation or set of operations whichis performed on personal data whether or notautomated including collecting, recording,organising, structuring, storing, adapting, altering,disclosure, erasure or destruction.
Principles for data processing• Data must be processed lawfully, fairly and in a transparent
manner• Data must only be collected for a specified, explicit and
legitimate purpose• Data must only be processed to the extent that it is adequate,
relevant and limited to what is necessary in relation to thepurpose for which they are processed
• Data must be accurate and up to date. Data which is inaccurateshould be erased or rectified without delay
• Identifiable data should not be kept longer than is necessary• Ensure appropriate security of the data• Ensure compliance with the Regulations.
Lawful basis of processing
• Consent• Contractual necessity• Legal Obligation• Vital Interests of the data subject or of another
natural person• Public Interest or exercise of official authority• Legitimate interests of data controller or third
party to whom data is disclosed (but not to a publicauthority).
Consent• Must be freely given, specific, informed and unambiguous• Must be given by a statement or a clear affirmative action• If written, should be distinguishable from any other
matter• Withdrawal of consent should be as easy as grant of
consent• Purpose limited – loses validity when the purpose ceases
to exist• Burden of proof on the data controller to show consent
freely given
Data subject rights
• Data subjects can require:Inaccurate personal data be corrected or incomplete data becompleted including by way of supplementing a correctivestatementPersonal data in a machine readable and structured formatcommonly used by the data subject and allows for furtheruseThe data controller to delete their personal data wherecertain conditions are met
Data subject rights: continuedRestriction of processing of personal data – so that this canonly be held by the controller and used for limited purposesTransfer of personal data from one data controller toanother (“data portability”)Processing of personal data not take place for directmarketing, including profilingNot to be subject to a decision based solely on automatedprocessing, such as in connection with insurance premiums
The rights of access, rectification, erasure and the right toobject must be given effect free of charge
Information to be provided• Data controllers must provide the following to data subjects on
request:Identity and contact details of data controller and data protectionofficerIntended purpose of processing and period for which data will bestoredExistence of rights: access, rectification, object and erasureRight to lodge a complaint internally and to a supervisory authorityRecipient or categories of recipients to whom data will be disclosedIntention to transfer to another country or international organisation
• Information must be concise, transparent, intelligible and easilyaccessible
• Must be provided in writing unless otherwise requested.
Controller vs Processor
• The GDPR applies to ‘controllers’ and ‘processors’• Broadly the same as under DPA
Data controller says why and how personal data isprocessedData processor acts on behalf of the controller
• Data processors now have direct obligations
Data controller obligations• Designate a data protection officer (where required)• Appoint a sub-processor• Adopt policies and implement appropriate technical
and organisational measures to ensure and be able todemonstrate compliance with GDPR
• Implement security requirements• Deal with privacy impact assessments• Comply with requirements of supervisory authority• Report breaches to the supervisory authority and
affected data subjects
Data processor obligations• Designate a data protection officer (where required)• Appoint a sub-processor only with authorisation of a data
controller• Adopt policies and implement appropriate technical and
organisational measures to ensure and be able to demonstratecompliance with GDPR
• Implement security requirements• Comply with requirements of supervisory authority• Maintain a written record of all personal data processing carried
out on behalf of a data controller• Notify data controllers without undue delay after becoming aware
of a breach
Non-compliance by dataprocessors• Sanctions by regulator• Damages claims from data subjects
– failure to comply with lawful instructions of datacontroller
– apportionment between data controller and dataprocessor
• Damages claims from data controllers
Data Protection Officer
• Data controllers and data processors mustdesignate a Data Protection Officer where:– The processing is carried out by a public authority– The processing requires regular and systematic
monitoring of data subjects on a large scale– The core activities consist of processing large scale
special categories of personal data
Responsibilities of DataProtection Officer
• Inform and advise the data controller/processor• Monitor the implementation and application of the
Regulations and the data protection policies• Monitor Impact Assessments and breaches• Point of contact for Supervisory Authority
Mandatory breach notification
• Notify data protection authority without undue delayand, where feasible, within 72 hours of awareness –reasoned justification required where timeframe is notmet
• Notify the affected data subjects without undue delay –where there is a “high risk” to their rights andfreedoms
• Not required if breach is unlikely to result in a risk tothe rights and freedoms of individuals
• Adopt internal procedures for data breaches
Consequences of a data breach• Level 1: €10,000,000 or 2% total worldwide annual
turnover• Level 2: € 20,000,000 or 4% total worldwide annual
turnover• Factors taken into account when determining fine:
Nature, gravity and duration of the breachWhether breach intentional or negligentPrevious breaches by the data controller/processorTechnical and organisational measures in place.
Next steps• Enforceable from 25 May 2018• Where consent is relied upon as the basis for processing, consider
whether this is valid under the GDPR• Review all communication and information to ensure all necessary
information is stated• Review systems to ensure that new obligations can be met, such as
data portability• Review processes and procedures for reviewing and reporting data
breaches, and implement appropriate policies• Consider whether it is necessary to appoint a DPO
Next steps
• Consider the relationship between various parties to anagreement, who is the data controller/processor in relation towhat personal data, and the obligations on each
• Review agreement between controllers and processors to ensureappropriate arrangements are in place
• Consider the rights of the data subject. How will you deal withrequests for erasure?
• Consider the impact of Brexit, including which parts of youroperations are within the UK or elsewhere
• Consider where personal data of individuals within the EU andoutside of the EU is processed and how this impacts on yourobligations
