4 July 2014 Edition 54 BC DISEASE NEWS A WEEKLY DISEASE UPDATE

Transcription

1 4 July 2014 Edition 54 BC DISEASE NEWS A WEEKLY DISEASE UPDATE

2 CONTENTS PAGE 2 Welcome PAGE 3 Armed forces NIHL cases to be dealt with separately Updated Claims Portal MI Further Mitchell developments PAGE 4 Welcome Welcome to this week s edition of BC Disease News. In the last week there have been further Mitchell developments and the HSE has released its latest asbestos in schools inspection results. This week we present a feature examining the association between shift work and the development of cancer. We consider the evidence and the issues that are likely to arise in any future claims. Any comments or feedback can be sent to Boris Cetnik or Charlotte Owen. As always, warmest regards to all. Enter Mitchell-lite? Jackson reforms to stay under review Asbestos in schools update PAGE 5 Feature: Shifting claims shift work and cancer PAGE 2

3 Armed forces NIHL cases to be dealt with separately The High Court has held that the Senior Master was right to refuse to transfer various NIHL claims made by serving and former armed forces personnel to the High Court from the county courts. In Durrheim v Ministry of Defence [2014] EWHC 1960 (QB) a number of claims were being made against the MOD by serving and former armed services personnel for NIHL. The MOD had sought to transfer all the cases to the High Court as separate handling would be more expensive and less efficient. It was the initial step for establishing a scheme of common case management, such as the making of a group litigation order or directions for trial of lead or test cases. However, the Senior Master found that expense and efficiency were not sufficient reasons, given the factual differences between the cases (for example, there were at least 20 different light weapons to be considered, each with their own characteristics). He observed transfer would be likely to cause unnecessary delay and it was not easy to find funding for group actions. He further ruled that the possibility of the MOD running a common defence of combat immunity and denying that it owed a duty of care were not sufficient reasons for a transfer because both issues were fact sensitive. The MOD appealed. However, Patterson J dismissed the appeal. His lordship held that the scope of combat immunity was restricted to active operations against the enemy, in accordance with Smith v MOD [2013] UKSC 41. Whether that exception applied and whether it was fair, just and reasonable to impose a duty of care would depend on the circumstances and the evidence. PAGE 3 The Senior Master has correctly interpreted Smith and he had not been persuaded there were common issues of fact or law and that was a decision that was open to him. The noise exposure had occurred in a variety of circumstances and in a variety of ways; an assessment in one case could be of little utility in another. Although the common complaint was NIHL the issues of causation and breach of duty were sufficiently different to justify the decision not to transfer. Further, Patterson J held that the court had to make a decision which accorded with the overriding objective and was proportionate in terms of cost. This included taking into account the real risk of difficulty in funding for the claimants and delay in obtaining revised funding if the cases were transferred. In addition, although, in principle, the issues of disclosure and the instruction of expert evidence might be dealt with more expeditiously within a common case framework, no evidence had been adduced to support that proposition. It could not be said that convenience overall predicated a London venue: the cases were in geographically disparate county courts with various local solicitors, counsel and witnesses. The Senior Master was entitled to decide as he did. Therefore the claims would not be transferred to the High Court. Updated Portal MI Claims The Claims Portal has released its latest management information (MI). In May 2014, 1,377 disease claims entered the Portal. Of the 1,377 claims that entered the Portal in May, 545 left it at Stage 1. The majority of these, 449, were because of the time to reply expired. 96 cases were denied or admitted with an allegation of contributory negligence. 8 claims left the Portal at Stage 2 for reasons other than settlement. 596 were exited from the Portal: amongst these, 232 of these were for other reasons, 43 were duplicate claims, 84 were because of an incomplete claim notification form. 206 left the Portal because the claim required further investigation; this is unsurprising: complex disease claims do not lend themselves to full investigation within 30 days. Once all the claims that left the Portal are accounted for, just 168 (12%) of the claims that entered the Portal in May remained in it. Interestingly, there was a big increase in the number of claims that have now settled through the Portal: 43 claims settled in May bringing the total figure to 95. Meanwhile, an additional 4 cases have seen court packs completed so the court can adjudicate on quantum, bringing the total number of such cases to 9. Of those claims that have settled through the Portal, the average amount of damages in May was 5,003. In April the average amount was 4,802, down from 5,665 in December Further Mitchell developments Away from the three appeals currently being determined by the Court of Appeal on whether the Mitchell guidance should be modified, a steady flow of case law continues to interpret and apply the guidance the Court of Appeal originally gave in Mitchell itself. This time the High Court has ruled at first instance that an application to set aside default judgment is an application for relief from sanctions and has continued the apparently softening attitude to noncompliance by granting relief from sanctions despite finding that the noncompliance was non-trivial and deliberate, and that there was delay in

4 lodging the application for relief. 1 The parties in Newland Shipping and Forwarding Ltd v Toba Trading [2014] EWHC 1986 (Comm) agreed to forge ahead to a ruling notwithstanding the Court of Appeal currently considering three cases and whether to alter the Mitchell guidance. The application from one of the defendants was to set aside a default judgment, which followed his deliberate failure to acknowledge service. Males J held it had been established at first instance, and agreed between the parties, that it was an application for relief from sanctions. He noted that CPR 13.3 concerning the setting aside of default judgment crossrefers to CPR 3.1(3), thereby drawing attention to the court s powers to attach conditions on any order which it may make to set aside a judgment This indicates, to my mind, that when considering the exercise of under CPR 13.3, the court should bear in mind that the entry of a default judgment may operate as an extreme sanction and that justice may be done by making the setting aside of such a judgment subject to conditions That may represent a more proportionate sanction. As to liability, Males J said the prospect of the defendant being able to defend the claim was borderline. Nevertheless, he said the claim involved serious allegations of dishonesty, meaning that to maintain the judgment in default deprives him of any prospect of vindicating his defence and clearing his name, and importantly the judgment may well be for an excessive sum to which the claimant is not fully entitled. His lordship noted that setting the judgment aside would have no real adverse impact on the overall progress of the action and ruled that, in all the PAGE 4 the circumstances, it was a case where the usual expectation that the sanction would apply as stated by the Court of Appeal in Mitchell was not appropriate. Instead he made a conditional order requiring a $4.75 million payment into court within 28 days, and the payment of an outstanding costs order as well as the costs of the application within 21 days, failing which the default judgment would stand. This decision once again signals a softening in the approach to the Mitchell decision. However, it is unclear what value this guidance will have once the Court of Appeal has released its judgments in the appeals it has just heard. Jackson reforms to stay under review The Civil Justice Council (CJC) has formed a working group that will consider and advise the council on issues arising from implementation of the Jackson reforms. 2 The group, has been charged to consider all aspects of the reforms aside from damages-based agreements, which are currently under consideration by the Ministry of Justice. The group s terms of reference require it specifically to investigate and report to the CJC on transitional questions in conditional fee arrangements cases due to changes in the client s status or the lawyer s status, or basis of instruction, occurring after commencement; arguments for and against extending qualified one way costs shifting to other categories of cases categorised by an asymmetric relationship between the parties, such as solicitors professional negligence claims and actions against the police; to consider any other relevant topics, including points brought to the CJC s attention at its conference on 21 March 2014; and to make, where relevant, proposals for improvement designed to smooth the process of implementation and to facilitate access to justice. The members of the working group are: Steven Green (head of costs at Irwin Mitchell), Mark Harvey (head of claimant division at Hugh James), David Johnson (president of the Forum of Insurance Lawyers), Maura McIntosh (professional support consultant at Herbert Smith Freehills), John Mead (technical claims director at the NHS Litigation Authority), Professor Rachael Mulheron, Andrew Ritchie QC (chair of the Personal Injuries Bar Association), Jenny Screech (underwriting manager at Zurich) and Peter Smith (the former managing director of Firstassist Legal Expenses Insurance). Finally, the group will also include a district judge. Asbestos in schools update The Health and Safety Executive (HSE) has published the results of its recent asbestos in schools inspections, which took place in 2013/14. Click here A random sample of 153 non-local authority schools, including independent, voluntary aided and foundation schools, free schools and academies, were inspected between April 2013 and January The majority of schools (71%) required either no further action or were given straightforward, simple advice. However, 29% (44 schools) received written advice and 13% (20 schools) were subject to enforcement action, in the form of improvement notices. The notices set out a requirement for recipient schools to improve arrangements for managing asbestos. Enforcement action was taken over failures such as training staff and producing written management plans

5 not because staff or pupils were considered at significant risk of exposure. Compliance with the Control of Asbestos Regulations 2012 showed overall improvement compared with that found in a similar survey and inspection programme of 164 schools outside local authority control in 2010/11 where 41 improvement notices were served on 28 schools. Geoff Cox, the Head of HSE s Public Services Sector, said: Over the last few years there has been a lot of work by stakeholders across the school sector to raise awareness of the duty to manage asbestos. It is really encouraging to see that awareness of the requirements has increased since our previous inspection initiative...that said, schools should not be under any illusion managing asbestos requires ongoing attention. Schools now have access to a wealth of guidance setting out clear and straightforward steps to achieve and maintain compliance Where duty holders fall below acceptable standards, HSE has taken, and will continue to take, enforcement action. Feature: Shifting claims - shift work and cancer Introduction Does shift work cause cancer? And can claims successfully be made for cancer caused by shift work? That is the focus of this article. It considers the background, recent medical evidence and legal issues that would be faced in such a claim. Background The background is well set out by the classification made by the World Health Organisation s International Agency for Research in Cancer (IARC). In 2007, the Agency classified shift work as a class 2A carcinogen, when it involves a disruption of the body s circadian rhythm that is its natural, (approximately) 24 hour bodily clock. 3 Class 2A carcinogens are probably carcinogenic to humans. In the IARC s Mongraph 98 (2010) it was noted that shift work, that includes night work, involves around 15-20% of the total working population globally. 4 Shift work was most prevalent among workers in health care, transportation, communication, leisure and hospitality sectors, and in the service, mining, and industrial manufacturing sectors. As to UK shift work, the IARC noted that 15.4% of the working population was engaged in shift work, including night work. 5 Much of the research has focused specifically on an apparent link between shift work and female breast cancer. The IARC s monograph reviewed all the evidence and noted that 6 of 8 studies from various geographic regions which were designed to assess the relationship between breast cancer and shift work (including night work), including two cohort studies in nurses, consistently pointed towards a modestly increased risk of breast cancer among long-term employees who performed night shift work (which was defined in different ways across the studies). These studies reported a risk after controlling for potential confounding factors. For example, in 2001, Schernhammer et al found that those nurses who had done shift work for 30 or more years were 1.36 times more likely to develop breast cancer. 6 In 2006 Schernhammer found those nurses doing shift work for 20 or more years were 1.79 times more likely to develop breast cancer. 7 Also in 2006, Lie at al found those nurses doing shift work for 30 or more years were 2.21 times more likely to develop breast cancer. 8 In 2001, Davis et al found that 4.7 or more years of shift work result in a 2.3 times greater risk of developing cancer. 9 Two of the studies, however, found no increased risk at all. It is noteworthy that there were a limited number of studies which mostly focused on the nursing profession. Further the IARC reported potential for confounding and unknown risk factors, and inconsistent and inaccurate exposure assessments of shift work. 10 The IARC also considered evidence collected in relation to flight cabin crew personnel, who also experience circadian disruption owing to the crossing of time zones. The incidence of breast cancers was studied in 8 cohort studies of female flight attendants and all but one consistently reported an increased risk for breast cancer which was greater after a longer duration of employment. However, the IARC noted that there were high levels of screening and potential confounding factors by reproductive factors and cosmic radiation (to which flight personnel are exposed as they are high up in the atmosphere). 11 Aside from breast cancer, the IARC s PAGE 5

6 monograph noted that few studies have investigated the association between shift work and cancers at other organ sites, although increased risks of cancers of the prostate, colon and endometrium have been reported. While the earliest studies of airline pilots also showed a markedly elevated incidence of prostate cancer, limitations of these studies included the potential for detection bias due to a higher prevalence of screening. 12 The IARC s review of animal studies found the data strongly suggestive of a causal link between circadian disruption and the development of malignant tumours. 13 Taking all the evidence into account, the IARC concluded that there was limited evidence in humans for the carcinogenicity of shift work that involves night work. Meanwhile, there was sufficient evidence in experimental animals for the carcinogenicity of light during the daily dark period (biological night). Accordingly, shift work involving circadian disruption was probably carcinogenic to humans. 14 In summary the IARC s review of the data tells us there is limited evidence which raises an inference that shift work involving circadian can increase the risk of cancer, particularly breast cancer, over long periods of exposure, typically or more years. The apparent link between shift work and breast cancer appears to have been accepted in The Health and Safety Executive s Occupational Cancer Burden research which found that shift work results in individuals being 1.51 times more likely to develop breast cancer. Further, flight personnel who suffer similar circadian disruption are 1.44 times more likely to develop breast cancer. 15 Using this data, the HSE concluded that PAGE 6 shift work is the fifth highest contributor to the occupational cancer burden in the UK after asbestos, silica, diesel engine exhaust and minerals oils accounting for 0.37% of all cancers. 16 Further, shift work is the fifth highest contributor to deaths from occupational cancer, accounting for 552 deaths annually. When deaths among flight personnel were included as well, the total number of deaths attributed to shift work/circadian disruption was 1, This was 54% of all female occupationally related cancer registrations. 18 Nevertheless, the HSE conceded it was difficult to disentangle the effect of cosmic ionizing radiation in the case of flight attendants and that further large studies in other industry groups with a collection of good shift pattern data are needed. That said, it cautioned that the ramifications of its study could be significant given the large numbers of women working night shifts in Britain and worldwide. 19 Accordingly the evidence suggests an association between shift work and the development of cancer particularly breast cancer especially over long exposure periods. However, there is no definitive link. What has more recent research found? Recent Research In 2010, Pronk et al investigated whether there was an increased risk of breast cancer in those working night shifts in a cohort of Chinese women. 20 Information was obtained from 73,049 women from At a follow up in 2007 it was found that 717 cases of breast cancer had been diagnosed. However, cancer was not found to be associated with the night shift work. Risk was also not associated with the frequency, duration or cumulative amount of night-shift work. The authors concluded that their research added to the inconsistent epidemiological evidence and that it may be premature to consider shift work a cause of cancer. In 2011, Wang et al conducted critical reviews of research published before the end of They found that the evidence was suggestive but not conclusive for an adverse association between night work and breast cancer. There was limited and inconsistent evidence for other cancers. Nevertheless they concluded it was difficult to draw general conclusions and that additional research was necessary. In 2012, Hansen et al considered night shift workers and the risk of breast cancer in women in the Danish military. 22 They compared 218 cases of breast cancer with 899 controls. Overall the authors found that shift workers were generally 1.4 times more likely to develop breast cancer compared with those who never worked night shifts. The risk of developing cancer increased with the increasing number of years of night shift work and with the cumulative number of shifts. There was a neutral risk for those with fewer than three night shifts per week. Those with the highest night shift exposure were 2.3 times more likely to develop breast cancer. It was noted that night shift workers tended to sun bathe more than day workers. The authors concluded frequent night shift work increases the risk of cancer and there is an even higher risk with longer duration and intensive night shifts. Further those with a morning preference who worked night shifts had the highest risk. Also in 2012, Hansen et al examined the association between shift work and the risk of breast cancer in Danish nurses. 23 They found that, overall, nurses who worked rotating shifts after midnight were 1.8 times more likely to develop cancer compared to those nurses with permanent day work.

7 Those nurses who had periods of permanent night shift work in addition to rotating day and night shifts were 2.9 times more likely to develop cancer. Upon analysis of different rotating shift systems, it was found those working long term day-night rotating shifts were 2.6 times more likely to develop cancer. The authors concluded that their research showed night shift work may increase the risk of breast cancer, particularly in the case of the most disruptive shifts. In 2013, Ijaz et al conducted a metaanalysis of previous research, considering 12 case-control studies and 4 cohort studies. 24 Their analysis showed a 9% risk increase per five years of night shift work exposure in case-control studies, but not in cohort studies. Further none of the 16 studies had a low risk of bias and 6 had a moderate risk. The researchers concluded that based on the low quality of exposure data and the difference in effect by study design, their findings indicated insufficient evidence for a link between night-shift work and breast cancer. Further, in 2013, Grundy et al considered the relationship between shift work and breast cancer in 1134 cases of breast cancer in Canada. 25 No association was found between the two where the duration of night shift work did not exceed 29 years. However, those engaged in shift work for 30 or more years were 2.21 more likely to develop breast cancer. Interestingly, the results were similar for both healthcare workers (including nurses) and non-healthcare workers. Grundy et al concluded that longerterm shift work in a diverse mix of occupations was associated with increased breast cancer risk and not limited to nurses, as in most previous studies. Away from link between breast cancer and shift work, in 2014, Yong et al PAGE 7 looked at the risk of cancer developing in German male chemical workers engaged in shift work. 26 They considered 12,609 shift and 15,219 day workers employed for at least one year. Between 2000 and 2009, 518 and 555 cancer cases (excluding nonmelanoma skin cancer) occurred among shift and day workers, respectively. Compared with non-shift workers, shift workers experienced no increased risk of cancer at all sites, nor for prostate cancer in particular. The risks of leukaemia and oesophagus cancer were increased if smoking was not taken into account. However, there was no increased risk when smoking was considered. The researchers concluded that their analysis provided no evidence for a carcinogenic effect. The recent research shows associations continue to be made between shift work and cancer, particularly breast cancer but the epidemiological strength of the association is not strong and arguably in many cases not statistically significant. Any increases in risk is very slight and may well be accounted for by confounding factors, error and/or bias. Other studies show no link at all; the relationship is not established. Legal Issues If over time medical research does establish an association how might a shift work induced cancer claim be presented? Claims are made for a breach of statutory duty or a breach of the common law. In this scenario, claims are likely to be made for common law negligence. That of course requires proof that a duty of care existed, which was breached, causing the claimant s cancer. A claim for shift work induced cancer would face considerable problems in establishing a duty of care in respect the risk, and in relation to causation. Dealing with the duty of care first, it is axiomatic that a duty only arises when the risk is reasonably foreseeable; there must be knowledge of the risk or the risk ought to have reasonably been foreseen. It is arguable that many employers could not be expected to foresee the risk of cancer from shift work given that there is no accepted definitive relationship between cancer and shift work. While the HSE is publicly considering the issue and says that some cases of cancer may be attributable to shift work, its formal guidance to employers on managing shift work merely notes that the association between cancer and shift work is inconclusive; it makes no recommendations as to action to be taken. 27 It is far from clear that employers could be expected to take any action at all given the unknown risk; even if employers kept reasonably abreast of the research, as they are required to do so by Stokes v Guest, Keen and Nettlefold (Bolts and Nuts Limited) [1968] 1 WLR 1776, it is difficult to see what would be gained from it the research is inconclusive. What exactly is employer expected to do with such knowledge. Accordingly, it is highly arguable, based on the current research, that no duty of care arises in respect of cancer and shift work. Assuming for a moment that a duty was established, and breach proven, it is to be doubted if a claimant could prove any breach caused their cancer; the research has not demonstrated a proven link. A claimant would be required to prove on the balance of probabilities that shift work caused their cancer. It must be more likely than not that shift work was responsible. This is satisfied with the but for test would the damage have occurred but for the breach? It is suggested this would be difficult to prove given that shift work is thought only to be probably carcinogenic, let alone the likely carcinogen in a particular individual case it is not even clear that shift work is

8 carcinogenic. Even where research has found an association, this has, in most cases, been a slight elevation in risk; only a few studies have reported that shift work more than doubles the risk of cancer. A mere doubling of risk does not, however, according to current general common law, satisfy the but for test; the test may only be used in limited circumstances, such as lung cancer and bladder cancer claims. 28 It is unclear if the test would be adopted in other cancer claims. Even if the test was adopted, a claimant would have to satisfy a court that shift work had more than doubled their risk of cancer after confounding factors such as a lack of exercise, poor diet, smoking, genetic risk cosmic rays (in the case of flight personnel) were accounted for. On the current medical research, that would be difficult. negligence claims, however, these face considerable difficulties with the issues of duty and causation. Successful claims are unlikely in the short term. This may change in the longer term as the evidence develops further. Accordingly, any claim for shift work induced cancer faces particular issues with establishing a duty of care and causation. Claims would be unlikely to succeed in the short term. As to claims in the longer term, their success or failure will to a large extent depend upon the development of the medical knowledge and what guidance to employers might follow from such knowledge. Conclusion There is some evidence to link shift work to the development of cancer, particularly breast cancer. However, this association only appears to be present in the case of long term exposure, typically or more years. Where there is an association it appears to lead to a slight increased risk of cancer; few studies have found a more than doubling of risk. The strength of association is not strong and may be caused by confounding factors, and/or bias in the studies. Any claims for shift work induced cancer are likely to be common law PAGE 8

9 References 1 Neil Rose, High Court Grants Relief Despite Deliberate and Non-Trivial Breach (Litigation Futures, 24 June 2014) < accessed 26 June Neil Rose, Civil Justice Council Launches Working Group to Keep Jackson Reforms Under Review (Litigation Futures, 25 June 2014) < accessed 30 June See IARC, IARC Monogrpahs Programme Funds Cancer Hazards Associated with Shiftwork, Painting and Firefighting (5 December 2007, Press Release No 180) < accessed 2 July IARC, Painting, Firefighting, and Shiftwork (Volume 98, 2010) accessed 2 July ibid. 6 ibid ibid Ibid ibid ibid ibid. 12 ibid. 13 ibid Ibid HSE, The Burden of Occupational Cancer in Great Britain (RR 931, June 2012) 5 < accessed 3 July ibid ibid. 18 ibid ibid. 20 Pronk et al, Night Shift Work and Breast Cancer Risk in a Cohort of Chinese Women (2010) 171 Am J Epidemiol Wang et al, Shift Work and Chronic Disease: the Epidemiological Evidence (2001) 61 Occup Med Hansen et al, Nested Case-Control Study of Night Shift Work and Breast Cancer Risk Among Women in the Danish Military (2012) 69 Occup Environ Med Hansen et al, Case Control Study of Shift Work and Breast Cancer in Danish Nurses: Impact of Shift Systems (2012) 48 Eur J Cancer PAGE 9

10 24 Ijaz et al, Night Shift Work and Breast Cancer A Systematic Review and Meta-Analysis (2013) 39 Scand J Work and Environ Health Grundy et al, Increased Risk of Breast Cancer Associated with Long-Term Shift Work in Canada (2013) 70 Occup Environ Med Yong et al, A Retrospective Cohort Study of Shift Work and Risk of Incident Cancer Among German Male Chemical Workers (2014) Scand J Work Environ Health (advanced e-publication) < accessed 3 July HSE, Managing Shiftwork (HSG256, September 2009) 10 < accessed 3 July See Sienkiewicz v Greif [2011] UKSC 10 and Jones v Secretary of State for Energy and Climate Change [2012] EWHC 2936 (QB). PAGE 10

11 Disclaimer This newsletter does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to provide an update on issues that may be of interest to those handling occupational disease claims. Specialist legal advice should always be sought in any particular case. BC Legal LLP BC Legal is a Limited Liability Partnership registered in England and Wales under number OC We are authorised and regulated by the Solicitors Regulation Authority. The registered office is 1 Nelson Mews, Southendon-Sea, SS1 1AL. The partners are Boris Cetnik and Charlotte Owen. More details on the firm can be found at PAGE 11

12 PAGE 12 Partners: B. Cetnik, C. Owen Registered Office: 1 Nelson Mews, Southend-On-Sea, SS1 1AL BC Legal LLP is a Limited Lability Partnership registered in England and Wales Registered No: OC We are Authorised and Regulated by the Solicitors Regulations Authority (SRA No )