A round-up of recent news and cases including the Department of Work and Pensions (DWP) Mesothelioma Scheme, the Financial Services Authority (FSA) public consultation, the Phurnacite Workers Group Action, Local Authorities’ liability in disease claims and draft protocol for extending the RTA Portal to employers' liability (EL) claims. 

Mesothelioma scheme and FSA consultation

On 25 July the DWP announced a new scheme for mesothelioma suffers. It will make membership to the Employers' Liability Tracing Office (ELTO) compulsory, introduce a levy on insurers to fund the scheme and create a dedicated online portal and pre-action protocol. In support of the scheme, the FSA published a consultation paper which aims to require insurance firms who may have actual or potential EL claims to conduct effective searches of their records, regardless of the policy date. The consultation concluded on 17 October.

The Phurnacite Workers Group Action (disease)

The High Court handed down a decision on 23 October to allow the claims of four miners to proceed against the Department of Energy in relation to cancer and/or other forms of respiratory disease resulting from exposure to toxic dust and fumes. The Department of Energy took over the liabilities of the British Coal Corporation (BCC) for the Phurnacite Plant when the BCC ceased to exist. The decision will allow a further 166 cases of respiratory diseases and lung cancer to be brought - Jones v The Secretary of State for the Department of Energy and Climate Change.

The Phurnacite Workers Group Action (personal injury)

Two days' later on 25 October, the Court of Appeal rejected the miners' appeal of an earlier decision not to allow their claims for personal injury regarding the onset and development of osteoarthritis of the knee to proceed. They were time barred under s.33 of the Limitation Act 1980 as the claims were more akin to an accident case than an industrial disease case of continued exposure to toxic substances cases - Davies v The Secretary of State for the Department of Energy and Climate Change.

Longtail liability of local authorities

On 5 October 2012, the Scottish Court rejected the argument that the term "liabilities" could encompass liability for an injury which had not materialised at the time of a transfer order. By the time of diagnosis, the former employer did not exist – its rights and liabilities having been transferred to a local authority. The Court concluded that there was no contingent obligation to the deceased at the time of the transfer, suggesting that local authorities today might not be liable for claims where exposure took place before reorganisation and the disease developed afterwards. We suspect the case will be appealed and will watch progress closely - Bavaird v Sir Robert McAlpine & Others.

Is exacerbating a pre-existing condition a disease?

The Court of Appeal has been asked to decide whether a claim for an injury exacerbated at work should be considered an employers' liability or disease claim, and so attract either a 25 per cent or a 100 per cent success fee. The lower court rejected the idea, concluding that "an aggravation or worsening of symptoms" cannot be regarded as a disease "as usually understood or defined". We await the Court of Appeal’s decision with interest - Bird v Meggit Aerospace Ltd and Fountain v Volker Rail Ltd.

Asbestos levels in schools

The BBC has carried out a survey of local authorities and found 1,503 schools in Wales (84 per cent of the total) are said to contain asbestos. That is 10 per cent higher than schools in England. As a result Education Minister Leighton Andrews has demanded all schools to deliver reports on their asbestos levels. The Health and Safety Executive (HSE) and Public Health Wales have confirmed that while there were occupational limits for exposure to workers, there were no accepted safe levels in schools.

Consultation on referral fee ban

The Solicitors Regulation Authority (SRA) has published a consultation inviting views on its proposals for implementing the ban on referral fees in personal injury cases, as required by the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012. Any changes that it makes will come into effect in April 2013. The overriding purpose of the consultation is to discuss how the SRA can adopt a consistent and workable approach to implementing the ban. The consultation closes on 18 December.

Draft protocols for extending the RTA portal to EL claims

The Master of the Rolls has revealed a draft pre-action protocol for low value EL and public liability (PL) personal injury claims. The draft largely mirrors the RTA process. It will apply to claims of up to £25,000 in value, where the accident occurs on or after 1 April 2013, or in the case of a disease claim where no letter of claim has been sent to the defendant before 1 April 2013. The preamble confirms the expectation that use of the portal is mandatory. Kennedys has been invited by the MoJ to comment on the draft material - the consultation for which ends on 23 November 2012.