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Legacy claims - 2019 in review

  • 16 January 2020 16 January 2020
Legacy claims - 2019 in review

Case law continues to provide the biggest talking points for the legacy claims market in the United Kingdom, with particular focus on noise induced hearing loss and HAVS claims over the past year. However, rumblings over where the next legacy risks will arise from have continued, with eyes and ears inevitably turned to the US, where conspicuous headlines regarding ongoing litigation continue to gain attention.

The High Court decision in Goldscheider in 2018 raised concerns of a deluge of claims for acoustic shock against concert venues and other public arenas. The Court of Appeal decision was eagerly awaited, and whilst the appeal of the Royal Opera House was dismissed, the reasoning differed from the findings given at first instance in the High Court. 

This difference meant the decision was viewed more positively by entertainment venues and insurers. The consequences of the initial High Court judgment would have placed a requirement on venues to enforce the wearing of ear protection at all times, effectively enforcing an artificially high standard which would not have been practicable.

In Scotland, Clyde & Co has successfully defended the first ever disease Proof run in the All-Scotland Sheriff Court, Edinburgh as part of the first Hand-Arm Vibration Syndrome (HAVS) proof in Scotland in more than 10 years.  This important judgment that clarifies the burden of proof in HAVS claims, clearly setting out what a pursuer must establish in HAVS actions. Following our success, it is not unreasonable to suggest that we may see a reduction in HAVS claims in Scotland.

Media reports on deaths from asbestos-related illness this year have commented on the figures reaching the top of the expected bell curve. However, important case law related to mesothelioma continues to be dealt with before the Courts.  In the case of Equitas v MMI, the Court of Appeal found that the practice of "spiking" (whereby insurers were entitled to present their reinsurance claims to any policy year of their choice) of mesothelioma claims settled under employers' liability insurance policies should not extend to a reinsurance context. Accordingly an insurer/reinsured which has settled without allocating the loss to any particular year of exposure must present claims to its reinsurer(s) on a pro rata, time on risk, basis. Permission to appeal to the Supreme Court has been granted.

On the issue of group litigation, the High Court refused an application by Tata Steel to have limitation tried as a preliminary issue in respect of a group action alleging historic exposure to dust and fumes at work.  The High Court also provided guidance on the issued to be considered when determining the 'lost years' entitlement.

In Scotland, there were two key decisions in late 2018 which provided guidance on the standard of proof required in mesothelioma cases, and also whether claims with incomplete evidence should be challenged.

The Independent Inquiry into Child Sexual Abuse produced its Accountability and Reparations Report in September, examining several recommendations to improve existing systems.   In Scotland, the commencement order introducing Qualified One Way Cost Shifting to Scotland has yet to be issued pending amendments to the Court Rules, but once implemented, we expect the improved access to justice for claimants may result in an increase in historic abuse claims.

The Supreme Court in Poole upheld the Court of Appeal that a local authority did not owe a duty of care to exercise its statutory powers to protect individuals from harm from third parties, however left open the prospect of such a duty being made where the particular facts of the case required it. 

Where claims have needed to be challenged this year, Clyde & Co have successfully defended a number of them using a range of strategies to bring about a positive result.  We ensured that a hearing loss claim was struck out when the Claimant's solicitors failed to adequately explain why their medical expert had not responded to Part 35 Questions; concluded the strike out of a NIHL claims in spite of allegation of GDPR breaches and defended an asbestosis claim despite judgment being entered at a show cause hearing.  These successes continue to place a squeeze on claimant representatives already finding revenues restricted by the drop in NIHL and holiday sickness claims.

Potentially placing further pressure on their income, the Government concluded a consultation this year on the extension of the fixed recoverable regime to include a new regime tailored for noise induced hearing loss claims up to £25,000.  Whilst the response concluded on 6 June 2019, the Government’s response has not yet been forthcoming.

Moving beyond current claims trends and into the handling of claims in the future, we have written in detail on the possible risks caused to those working in industries handling carbon nanotubes, diesel fumes and the general risk profile of electromagnetic hypersensitivity. The United States, however, continues to be the bellwether jurisdictions for legacy and disease claims.

This year has seen considerable movement in the multi-district litigations across the US in respect of opioid addiction, with trials have been listed in various locations against defendant manufacturers, distributors and pharmacies. 

Johnson & Johnson have been a lightning rod for many legacy actions, and were subject to a judgment ordering a payment of over $400 million to the state of Oklahoma to assist with the cost of care and rehabilitation of those suffering from opioid addiction.

The talcum powder litigation also heavily involves Johnson & Johnson, and it is understood that they alone are facing more than 15,500 lawsuits over their talc-based products, with other companies facing large numbers themselves.  Claimant solicitors from the UK are known to be assisting British citizens who want to bring claims in the US for alleged talc-related illnesses.

Following the test case in California in 2018 on the alleged toxicity of the Monsanto-manufactured weedkiller, Roundup (glyphosate), another trial in California resulted in a couple being awarded $55m in damages and a staggering $1bn each in punitive damages. They alleged glyphosate caused their lymphoma. Against this backdrop, the number of U.S. lawsuits brought against Bayer's newly acquired Monsanto has jumped to 8,000 since the San Franciscan jury decision, rose to 18,400 by July 2019 and again in October to 42,700 plaintiffs.

A new disease risk has emerged from the US this year, with e-cigarettes and vaping being subject to negative publicity with evidence linking their use to lung illnesses and deaths.  Several US states have banned the use of flavoured e-cigarettes outright in response.  In the UK, the messaging from Public Health England and Scotland remains that vaping is far less harmful than cigarettes, and whilst the full range of associated risks are unknown, vaping remains the lesser of two evils.  We will await developments from the US with great interest.

As with previous year, the US system remains subject to the vagaries of the jury trial system, the main obstacle for the successful pursuit of a raft of toxic tort claims in the UK remains with medical causation. With uncertainties remaining in the medical evidence of risks such as glyphosate, vaping and talcum powder, we expect the focus to remain on existing claims cohorts for the time being.


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