DISCUSSIONS ON CAUSATION and apportionment in disease claims are filling the boardrooms of insurance firms across the UK. This Pandora's Box was recently opened again by the high-profile Fox and Matthews mesothelioma claims and it has left insurers with a real headache.
The House of Lords will soon deliver its judgment in these claims and while insurers keep everything crossed for a sugar-coated aspirin, another complex migraine has been partly relieved.
The problem of apportionment of damages for Vibration White Finger/Hand Arm Vibration Syndrome (VWF/HAVS) has lived in the shadows of other diseases for some time. The resulting questions over the weighting of apportionment in dealing with these claims has led to a great deal of industry uncertainty.
It is generally accepted that HAVS is a dose-related, divisible disease like deafness. With HAVS the symptoms may not develop for years and symptoms and disability progress not in a straight line, but in stages, which owe more to personal susceptibility than to any particular vibration dose. However, the damages are cumulative and all vibration exposure contributes to the condition.
In deafness claims the courts have ruled that defendants should be liable only for the damage caused by their own negligence. This judgment was followed in the HAVS case of Allen v BREL [1998] and damages were apportioned not only for pre-knowledge exposure (before 1976), but also for the post-knowledge innocent exposure, which was the inevitable consequence of some vibration in jobs involving vibrating tools.
The recent appeal judgment in Burrows and Billington v BREL [2002] has cemented the earlier decision in Allen to extend innocent exposure to both before and after the 1976 date of knowledge, potentially securing a reduction in damages. This has led engineering evidence to indicate insurers could be looking for settlement discounts of up to 50%.
While the courts recognise the processes of assessing dose and disability are beset by uncertainties, in assessing damages they have tended to adopted a broad brush approach, giving greater weight to the exposure after symptoms had begun than to early exposure.
In the real world insurers rarely have the luxury of looking at these claims in isolation. However, with such a large discount up for grabs it could lead to insurers (which cover the various firms a claimant worked for) battling it out in the future to determine when the symptoms first occurred.
The claimant may have an interest in determining when the symptoms were evident and the courts are in their hands ,as there is heavy reliance on their information about the time spent on equipment more than 20 years ago.
Insurers should not think this is the end. The Health and Safety Executive's hard-line approach to combating HAVS coupled with the proposed regulations expected in 2004, means they need to start planning now how best to use Burrows and Billington to prepare themselves for the future of these claims. The most effective approach for insurers is to seek a pragmatic time-exposed solution. n
Dr Tony Prichard is head of workplace litigation at Weightmans
