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BC DISEASE NEWS A MONTHLY DISEASE UPDATE October 2016 Edition
BC DISEASE NEWS
A MONTHLY DISEASE UPDATE
October 2016 Edition
PAGE | 2
Welcome
Welcome to this month’s edition of BC Disease News, our monthly disease
update in which you will find news, legislative updates, case law
developments and extensive features on everything from the world of
insurance/disease and defendant occupational disease litigation.
This month, Slater & Gordon released its annual report showing it made 640
redundancies in the UK since its restructuring earlier in 2016. It was also
revealed that an Australian law firm has been the first to file a class action
against Slater & Gordon on behalf of their shareholders, for losses suffered as
a result of the bungled acquisition of Quindell. Elsewhere, a study has been
published which links stressful employment factors in high-income countries
to cardiovascular disease. It has also been reported that the Ministry of
Justice (MoJ) may be scrapping PI reforms due to pressure from the legal
profession.
This month, we present the 3 following features: a feature article in which we
look at the possible adverse health consequences related to prolonged
sitting at work; an article which considers whether NIHL claims handling
schemes based upon a single audiogram would simplify and speed up the
claims process and reduce claim costs, and; an article in which we look at
the issue of multiple audiograms in NIHL claims.
We would like to take this opportunity to wish our warmest regards to all
members of IRLA and invite you to contact the directors here at BC Legal,
Boris Cetnik or Charlotte Owen with any comments, feedback or questions
that you may have.
PAGE | 3
Contents
News
Start of the New Legal Year
Slater & Gordon Annual Report Shows 640 UK Job Cuts
PI Firm Enters Administration
Workplace Stress Contributing to CVD in Advanced Industrialised Countries
HSE Five Year Strategy
Witness Statements Crucial To Trial Success
Recent Developments in Mesothelioma Treatment and Detection
HMCTS Note on Tomlin Orders
New Bill of Costs Will Be Mandatory By October 2017
Government Fails to Address Recommendations on DBAs
Slater and Gordon First Class Action Filed
Government Whiplash Reform Proposals Dropped?
Jackson Shuns Standard Directions for Disclosure
Changes for Fixed Fees in Clinical Negligence Claims
Cleaning Products Contain ‘Potent Allergens’
Night Shifts and Cancer
MPs to Lobby Truss over Whiplash Reforms
BC Legal Launches Revolutionary New NIHL Claims Software and Analytics System
MoJ Publishes Revised MedCo Qualifying Criteria
Case Law
Proportionality Ruling Heads To Court of Appeal
Lawyers Must Treat Litigants in Person Fairly
The Relationship between Costs Budgeting and Costs Assessment: Merrix v Heart of England NHS Foundation Trust
De Minimis Case Update: Harbison v The Rover Company Limited
Incorrect Court Fee and Limitation Periods: Dixon v Radley House Partnership [2016] EWHC 2511(TCC)
Features
Excessive Occupational Sitting: A Review of the Risks
Single Audiometry: A Basis for NIHL Claims Handling Schemes?
Handling Multiple Audiograms in NIHL Claims
PAGE | 4
PI Firm Enters
Administration
A personal injury firm which handles NIHL
claims has entered administration and has
been reported to have been absorbed into
another practice.2
ProLegal Limited, based in Canary Wharf,
now named Prolegal Solicitors, is thought to
have transferred ownership to Gordon
Dadds.
The accounts for the year 2013 show that
turnover had fallen from £4.5m to £3.82m
within 12 months, suggesting that the firm
was struggling to adapt to the reforms in the
personal injury market.
It is unknown whether Prolegal Solicitors will
continue to handle any NIHL claims.
Workplace Stress
Contributing to CVD in
Advanced Industrialised
Countries
This month, the University of California, Irvine
and SUNY Downstate Medical Centre
researchers have created a model,
demonstrating how economic
globalisation may create stressful
employment factors in high-income
countries, contributing to cardiovascular
disease.3
Cardiovascular disease has become a
global epidemic, which is now responsible
for approximately 30% of deaths
worldwide. Mortality rates have been
declining in advanced industrialised
nations, however, some risk factors ,
including obesity and diabetes, have been
increasing everywhere.
Researchers have been investigating the
social causes of CVD, including work-
related factors, and say they have
produced a strong body of evidence
documenting the effects of work
environments and the mechanisms of
psychosocial job stressors. Stressors can
produce chronic biologic responses,
such as hypertension, and promote
unhealthy behaviours, which all
increases the risk of contracting CVD.
In edition 120 of BC Disease News we
looked at the relationship between stress
at work and hypertension, with the body
of evidence showing no causal
association.
HSE Five Year Strategy
The Health and Safety Executive (HSE) has
recently released a five year strategy
which sets out wide-ranging measures to
further improve Great Britain’s health and
safety track record. The strategy is
entitled ‘Helping Great Britain Work Well’
and consists of six priority themes which
the HSE say they will focus on over the
coming five years.
The six strategic themes include:
1. Acting together: Promoting
broader ownership of health
and safety in Great Britain.
2. Tackling ill health: Highlighting
and tackling the costs of work-
related ill health.
3. Managing risk well: Simplifying
risk management and helping
business to grow.
4. Supporting small employers:
Giving SMEs simple advice so
they know what they have to do.
5. Keeping pace with change:
Anticipating and tackling new
health and safety challenges.
6. Sharing success: Promoting the
benefits of Great Britain’s world-
class health and safety system.
The HSE claim that wider recognition is
needed of the business benefits that
come with proportionate approaches to
risk and that too many small and medium
enterprises are still unaware that
straightforward advice and simple
guidance is available that can help
them manage their health and safety
responsibilities. The HSE say that one
News
Start of the New Legal
Year
This week has seen the start of a new legal
year, marking the beginning of the
Michaelmas Term for the High Court, Court
of Appeal and Supreme Court. These courts
have been in vacation since 29th
July 2016
and have heard no trials or appeals.
Elizabeth Truss, the Lord Chancellor formally
opened the legal year at Westminster earlier
this week. With the start of the new judicial
year, we anticipate an increase in the
volume of interesting and noteworthy
judgments which we will continue to report
on.
Slater & Gordon Annual
Report Shows 640 UK Job
Cuts
This week Slater & Gordon (S&G) has
released its annual report for 2015/16 which
discloses that since its restructuring, the firm
has reduced headcount in its UK business by
16% with 640 redundancies.1
We reported in edition 135 of BC Disease
News on S&G’s UK restructure plan which
involved major city centre offices being
consolidated in order to create three
principal divisions of fast-track personal
injury claims, serious and specialised
personal injury law and general law. The
annual report states that the strategic
priorities of S&G are now ‘building market
share and improving operating leverage in
the serious and specialist practicing division
and growing market share and scale in
selected areas of general law’.
This restructuring is set to be completed by
the first quarter of 2017 but the report was
silent on how this would affect staff numbers.
The full annual report can be found here.
PAGE | 5
Cancer Therapeutics journal in early
August, Berger’s team focus on the
development of novel strategies for
therapy-refractory cancers, such as
mesothelioma, brain tumours and lung
cancer. The study demonstrates how
trabectedin serves as an effective
chemotherapy-like agent, which targets
DNA and has been delivering an immune
response. It also showed good synergy
when combined with cisplatin, a cytotoxic
drug currently used in chemotherapy for
cancer treatment.
Trabectedin could prove to be a major
development in the treatment of malignant
pleural mesothelioma.
Five sites in Italy are currently conducting
the only clinical trial involving trabectedin
and mesothelioma. Early results are again
said to be promising.
Elsewhere, there is new evidence that
manipulating the process of protein
synthesis inside cancer cells could be vital
to improving outcomes for certain
mesothelioma patients.6
A new study, published in the Journal of the
American Medical Association (JAMA)
Oncology suggests that using a drug to
lower the levels of the amino acid, arginine,
can slow the spread of pleural
mesothelioma and extend survival in
patients who are deficient in a particular
enzyme.
Malignant mesothelioma is highly resistant
to most kinds of cancer treatments and
patients are often at a loss as to what to try
next when chemotherapy, surgery and
radiation fail. This new study suggests that
the new type of therapy could help
conventional treatments to work more
effectively.
The JAMA Oncology research demonstrates
the importance of arginine, an amino acid
necessary for mesothelioma cells to
produce the proteins that allow them to live
and replicate.
A multi-centre, randomised clinical trial
demonstrated that 68 of 201 mesothelioma
tumours were deficient in
argininosuccinate synthase (ASS1), an
enzyme necessary for arginine synthesis.7
In ASS1-deficient patients, using a drug to
artificially reduce the amount of arginine
in the body made their malignant
mesothelioma cells more responsive to the
effects of standard chemotherapy
treatments. After four months of weekly
doses of the arginine-lowering drug, more
than half of the 68 mesothelioma patients
experienced stability.
Elsewhere, this month, a new case report
has led to researchers’ optimism about the
potential benefits of a highly targeted
radiotherapy technique called Intensity
Modulated Radiotherapy (IMRT) in people
with malignant pleural mesothelioma.8
IMRT is a form of radiotherapy that allows
radiologists to precisely deliver radiation in
a shape that conforms to the shape of a
mesothelioma tumour. This is important
because mesothelioma tumours grow on
the pleural membrane and tend to be
irregularly shaped, which makes it difficult
to treat them with less conformal
radiotherapy techniques. Furthermore,
tumours are typically located adjacent to
critical organs such as the lungs and heart.
Radiotherapy plans must take this into
account to protect tissues from radiation
damage.
The Italian case report details the
treatment of a 73-year-old mesothelioma
patient who was administered a
potentially lethal dose of radiation into his
tumour, following a relapse 10 months
after a surgery and chemotherapy. He
suffered no serious side effects from the
high dose of radiation and there was no
progression in the mesothelioma in the 14
months after the IMRT. The patient is still
alive 32 months after diagnosis.
Finally, it is not only the treatment of
mesothelioma which has seen recent
developments, it has also recently been
reported that breath screening may aid in
detecting early mesothelioma.9
In a study at Ghent University, researchers
analysed the breath of 66 study
participants, including 23 with malignant
pleural mesothelioma, for
way to tackle this problem is to ‘horizon scan’
and ‘design-in’ effective risk management
of new or emerging technologies and
business models.
More information on each of the strategic
themes can be accessed here.
Witness Statements
Crucial To Trial Success
Speaking at a recent Law Society
conference, District Judge Etherington
made some noteworthy comments
regarding the importance of witness
statements for trial success and identified
them as the number one area for
improvement among litigators.4
His main gripe was with those firms that leave
the preparation of witness statements to the
most junior members of staff without
providing adequate supervision and without
checking their work.
It was recommended that all litigators
familiarise themselves with the Chancery
Guide to Witness Statements here.
Recent Developments in
Mesothelioma Treatment
and Detection
In edition 109 of BC Disease News we
examined new mesothelioma research.
Now we can report that in August 2016, a
unique drug derived from the Caribbean
Sea squirt has shown promise in stopping the
growth of mesothelioma tumour cells. 5
Researchers at the University of Vienna in
Austria have discovered that trabectedin, a
toxin the coral-like animal uses against
predators, may be an effective
mesothelioma treatment. Group leader at
the University of Vienna, Walter Berger, has
said it looks “very promising” at this point.
In the study, published by the Molecular
PAGE | 6
for volatile organic compounds.
The study found that people with
mesothelioma (and those who have been
exposed to asbestos) tend to exhale
different levels of volatile organic
compounds than healthy people do.
According to a summary of the study
published in the Journal of Breath Research,
the test was 76% accurate at distinguishing
the mesothelioma patients from either the
asbestos-exposed people or the healthy
controls.
When it came to distinguishing between the
asbestos-exposed people and those with
mesothelioma, the test had an 87%
accuracy.
At present, there is no reliable way to screen
for mesothelioma. Belgian researches say
they are hopeful that breath analysis may
improve the odds. The paper concludes:
“Breath analysis by MCC/IMS allows
malignant pleural mesothelioma patients to
be discriminated from controls and holds
promise for further investigation as a
screening tool for former asbestos-exposed
persons at risk of developing malignant
pleural mesothelioma.”10
The study could prove vital in the future early
detection of mesothelioma in patients which
may improve survival rates.
HMCTS Note on Tomlin
Orders
The HM Courts and Tribunal Service has
released an important note in relation to
Tomlin Orders which came into effect this
week. The note states that from 3rd
October
2016, a Court Associate of the Royal Courts
of Justice will approve and seal Tomlin
Orders only if:-
- The Order is headed ‘Tomlin Order’
- The Order concerns only a claim for
money (i.e. debt or damages
including any interest and costs)
- No other relief (e.g. injunction) has
been sought
- The request for sealing includes a
signed solicitors’ statement with the
following wording: ‘we certify that
the only relief sought in this
claim/counterclaim is the payment
of money including any interest
and costs, and that no ancillary
relief has been sought at any
stage’.
- The proceedings are stayed
without any time limit (not
discontinued or dismissed)
- The Order includes permission to
apply
- The Order refers to an attached
schedule or to a dated
schedule/agreement (which may
be confidential) which is held in a
specified place. If the Order refers
to an attached confidential
schedule it will be returned as no
confidential schedules will be
accepted by the court.
The note specifies that if the Order does not
meet these requirements it will be returned
for correction and re-submission.
For further information on the correct
wording of a Tomlin Order please see the full
note here.
New Bill Of Costs Will Be
Mandatory By October
2017
In edition 138 of BC Disease News we
reported on one of the unfinished elements
of Lord Justice Jackson’s civil reforms, the
new format bill of costs. In April, LJ Jackson
advocated for the new format to be used
from October 2017 but recommended that
this should be decoupled form the J-Codes
to make it more palatable to the
profession.11
It has been announced this week that the
updated Practice Direction 51L, in force
from 3 October 2016, will extend the
voluntary pilot of the new format for a further
year, ‘with a view to establishing
a mandatory form of bill of costs to apply to
all work done after 1 October 2017’.
It has been reported that most of the
criticisms about the new format bill of costs
have been aimed at the J-Codes, with
them being described as too complicated,
labour-intensive and causing time spent on
costs to increase by at least 100%.
The revised practice direction which can
be accessed here, aims to simplify the new
format.
PAGE | 7
Government Fails to
Address
Recommendations on
DBAs
This week, speaking at a Law Society
Commercial Litigation Conference,
Professor Rachel Mulheron spoke on the
topic of damages-based agreements
(DBAs) which were introduced through a
set of regulations in 2013 as part of the
Jackson reforms. Since their introduction
they have seen little take up by the legal
profession.12
There have been many complaints
regarding the regulations with many
seeing them as poorly drafted and
unworkable. The inability to provide
hybrid DBAs was also criticised by
practitioners, especially as hybrid
funding measures were available for
CFAs.
Following this criticism, the Civil Justice
Council (CJC) were asked to
recommend improvements to the 2013
regulations. As such, they produced a
report in September 2015 which set out a
blueprint of 45 recommendations
designed to kick-start the use of DBAs.
Recommendations included:
- Technical amendments to
existing regulations to make
them clearer and therefore
more attractive;
- Increasing some of the caps on
payments for cases;
- Allowing lawyers and clients to
agree a ‘trigger point’ at which
a DBA becomes payable and
the circumstances under which
it can be terminated.
Professor Mulheron reminded those at the
conference that this report had been
commenced on the request of the
government and said it was ‘a great pity’
that the report had not been taken
forward. It was noted that the recent
government consultation ‘Transforming
Justice’, did not make
reference to DBAs at all.
We reported on the CJC’s
recommendations for reforming DBAs in
edition 109 BC Disease News here.
Slater and Gordon First
Class Action Filed
We reported in edition 157 of BC Disease
News that Slater and Gordon (S&G) is being
sued in relation to its tumultuous acquisition
of Quindell. It has been announced this
week that Australian law firm, Maurice
Blackburn Lawyers, has now filed a
shareholder class action against S&G. It is
the first firm to have done so on behalf of
S&G shareholders since its share price
plummeted earlier this year.13
Maurice Blackburn claim that the
shareholders it represents lost 95% of their
investment between April 2015 and
February 2016, which has been put down
to the £637m acquisition of Quindell’s
professional services division (we have
reported previously on this acquisition and
its consequences in edition 131 of BC
Disease News here). It has been suggested
that S&G’s due diligence processes were
inadequate throughout the acquisition and
it failed to provide shareholders with
accurate and reliable information about
the risks of the acquisition and its value to
shareholders.
Maurice Blackburn state that:
‘Shareholders also suffered heavy losses
when SGH abruptly withdrew revenue and
earnings guidance only weeks after it was
emphatically re-affirmed, and further
losses followed when SGH released
financial statements which not only suggest
that the acquisition was under-performing,
but also indicate systemic problems across
the company as a whole’.
The statement of claim alleges that S&G
made false and misleading statements,
engaged in misleading and deceptive
conduct, and/or breached its continuous
disclosure obligations to
shareholders which prevented shareholders
from being able to make informed
investment decisions based on complete,
accurate and timely information about the
Quindell acquisition and the true state of the
company’s overall financial position and
performance. As a result, they state that:
‘…by this conduct SGH contravened various
provisions of the Corporations Act 2001
(Cth), ASX Listing Rules, the Australian
Securities and Investment Commissions Act
2001 (Cth), and the Australian Consumer
Law, and that these contraventions caused
the price of SGH shares throughout the
period to be higher than would have been
the case had the true state of affairs been
known to the market. It is also arguable
that, had the real risks and true value of the
Quindell acquisition been adequately
disclosed, SGH would not have been able to
conduct the A$900 million capital raising,
and the transaction would not have taken
place’.
Elsewhere, however, S&G have already
indicated their intention to sue Quindell, now
known as Watchstone Group, arising from
the purchase of Quindell. However,
Watchstone Group has said that it does not
believe there are grounds for such an action
and it will defend it robustly.
We will continue to report on the progress of
both these claims.
Government Whiplash
Reform Proposals
Dropped?
We have reported frequently on the Ministry
of Justice’s (MoJ) plans for reforms to the
personal injury sector and more specifically
on the previous Chancellor, George
Osbourne’s intentions to increase the sma ll
claims limit for personal injury claims from
£1,000 to £5,000 and to remove the right to
general damages for minor soft tissue claims
i.e. whiplash claims.
However, following the Brexit vote in the
summer of this year, we surmised that
PAGE | 8
these reforms would likely take a back
seat whilst the new Prime Minister Theresa
May organised her new cabinet. Indeed,
Michael Gove was replaced as Justice
Secretary by Elizabeth Truss and George
Osbourne was replaced as Chancellor of
the Exchequer by Phillip Hammond.
It has been further reported this week that
a representative at the MoJ has confirmed
that the whiplash changes are not its
priority, but claim reforms as a whole are
‘certainly not off the agenda’.14
Insurers
have reported ministers telling them that
they are unenthusiastic about the
proposals. The Association of British
Insurers has this week released a
statement in which it reiterates the need
for the Government to push ahead with
these reforms. James Dalton, Director of
General Insurance Policy said:
‘The Ministry of Justice seems to be rowing
back from much needed reform to the
civil justice system that will save motorists
up to £50 a year on average. The UK has
one of the most abused systems in Europe
and the reforms would tackle the excesses
of the compensation culture. Without
action, claims management companies
will continue to nuisance call and text
honest motorists encouraging them to
make fraudulent and exaggerated claims
through claimant law firms. Every day of
delay costs honest motorists across the UK
nearly £3 million. The plans are drawn up
and ready to go so there is no excuse for
not pushing ahead’.15
This news comes after a six month delay in
the publishing of a consultation paper
setting out how these reforms would be
implemented. It is thought that the delay
and possible setting aside of the reforms is
due to resistance from the legal
profession. Additionally, it has been made
clear that, the priority of the new Justice
Secretary, Elizabeth Truss’ is prison reform
as opposed to carrying on George
Osborne’s legacy.
Jackson Shuns
Standard Directions for
Disclosure
In a lecture at the Law Society’s
commercial litigation conference last
week, Lord Justice Jackson addressed the
topic of disclosure and considered
whether more effective use should be
made of the rules which have been in
place since 2013.
Disclosure can be a costly exercise, not
only due to the process of identifying and
handing over appropriate documents but
also considering bundles from the other
side which can be a lengthy process.
Therefore, says LJ Jackson, getting a grip
on disclosure is one of the keys to
controlling litigation costs.
He went on to say that often, people are
treating standard disclosure as the default
option, with parties frequently agreeing it,
seemingly without considering whether
other options may be preferable, and the
courts accept their agreements. However,
it was suggested that it would be to the
public benefit if all involved in the
disclosure process gave more attention to
the full range of options before simply
proposing or agreeing to ‘standard
disclosure’. These options include, e-
disclosure, predictive coding and other
types of technology assisted review.
In particular it was noted that more use
should be made of CPR r. 31.5 (7) which
contains the ‘menu’ of different possible
disclosure orders. One possible form of
order, which is not expressly set out but
which is sometimes made under rule
31.5(7)(f), gives, by consent of each party,
the other free access to all its documents
(other than privileged documents), so that
they can pick out whichever ones they
want.
However, it was not just the parties to
proceedings that needed to adapt their
approach to disclosure. He said judges
needed to do more than simply
adjudicate upon the parties’ competing
submissions:
‘It is necessary to test the opposing
arguments’.
He quoted the experience of one
unnamed judge:
‘When disclosure is an issue during case
management, it is not uncommon to find
that the parties’ counsel cannot describe
the documents which they expect to be
relevant, why they might exist or why they
will benefit determination of the issues
concerned. This is particularly the case for
electronic documents, when requests for
practical descriptions and examples are
usually met with bluster’.
Despite the fact that this discussion was
had in reference to commercial litigation,
it is applicable to all areas of civil
litigation.
The full speech can be found here.
Changes for Fixed Fees
in Clinical Negligence
Claims
It has been well documented in BC
Disease News that the government initially
intended to introduce fixed fees for
clinical negligence claims worth at least
£100,000 from 1 October 2016 with a
consultation on the plan being due since
autumn 2015. Whilst this deadline for
implementation has been and gone and
we are still awaiting the publication of the
consultation (which is said to be
imminent), it has been revealed this week
that the Department of Health (DoH) has
amended its position.
The Civil Procedure Rule Committee
(CPRC) held a meeting in July, the minutes
of which have recently been released,16
and they reveal that the DoH now only
intend to introduce fixed recoverable
costs for those clinical negligence cases
worth up to £25,000.
Amanda Stevens, chair of the CPRC sub-
committee, reported the news and noted
that these claims comprised
approximately 60% of all clinical
PAGE | 9
negligence claims. She said:
‘The material worked up by the
subcommittee on a draft protocol and
illustrative rules would be amended
accordingly. The date of publication of
the consultation was unknown’.
Organisations such as, the Association of
Personal Injury Lawyers (APIL), the Law
Society and the Society of Clinical Injury
Lawyers have been lobbying the
government since these proposals were
announced in August 2015, accusing the
DoH of being irresponsible. It is thought
that this change in approach will be seen
as a significant win for them.
APIL president, Neil Sugarman stated:
‘…it would show that the government has
listened to arguments that a quarter of a
million pounds is not a low-value case,
and that cases of such magnitude do not
suit a fixed process. A fixed-fee system for
cases up to £25,000, however, could be
workable. The fees would have to be fixed
at a level which makes the work viable,
and the process itself must also be fixed’.
He continued:
‘Other conditions, such as admission of
liability and requirement of just one
medical report would need to be met for
such a scheme to be effective. This would
give the Department of Health the
opportunity to reduce costs for the NHSLA,
control defendant behaviour and secure
representation for injured patients by
specialist lawyers at a fair rate of pay’.
Whether or not the government will
actually implement this new limit for fixed
fees in clinical negligence claims remains
to be seen and will not be known for
certain until the publication of the
consultation paper which we await with
anticipation.
Cleaning Products
Contain ‘Potent
Allergens’
A research study published in the journal,
Occupational and Environmental
Medicine has suggested that genetically
modified enzymes used in food, perfumes,
medicine and cleaning products are
‘potent allergens’ and should be tested
like other potentially hazardous
chemicals.17
In the study, researchers took blood
samples from 813 workers routinely
exposed to genetically modified enzymes
from working in the food, drinks,
chemicals, detergents and
pharmaceutical industries. In just under a
quarter of the blood samples, they found
antibodies, which are proteins produced
in response to the presence of the GM
enzymes. The most commonly detected
antibodies were derived from exposure to
alpha amylase, stainzyme, and
pancreatinin, which are predominantly
used in detergents and home care
products. Further to this, the researchers
examined a subgroup of 134 workers and
found around a third of them had possible
allergic symptoms such as runny nose,
eye irritation or shortness of breath.
The highest levels of sensitisation was
produced by alpha amylase, with
antibodies showing up in 44% of workers
exposed to it, followed by stainzyme (41%)
and pancreatinin (35%). These three
genetically modified enzymes are all
predominantly used in detergents ,
cleaning products and homecare
products.
These results led the researchers to
conclude that:
‘Genetically engineered enzymes are
potent allergens eliciting immediate-type
sensitisation…The assessment of
allergenicity should be mandatory for all
new products…Enzymes should be tested
like any other potentially hazardous
chemical’.
The use of enzymes has increased over
recent years, particularly within the food
industry as it is used to boost flavours and
aromas, including in low-fat foods. As well
as creating artificial flavourings, industrial
applications for enzyme technology
range from cheese ripening through
speeding up the baking process to
enhancing the power of detergents and
medicines.
Night Shifts and Cancer
The World Health Organisation (WHO), in
2007, published a review which identified
seven studies suggesting that sleep
disruption may be carcinogenic to
humans. A number of studies suggested
an association between shift work and
breast cancer. However, the University of
Oxford, funded by the UK Health and
Safety Executive, Cancer Research UK
and the Medical Research Council, has
recently found that ‘working night shifts
has “little or no effect” on a woman’s risk
of developing breast cancer.18
The review looked at data from 10
different countries and pooled the
evidence of three large UK-based studies
of post-menopausal women, The Million
Women Study, EPIC-Oxford and the UK
Biobank.
In all three studies, participants were
asked about their employment and
whether their job involved working night
shifts. The answers were categorised into:
never/rarely
sometimes
usually
always
The participants were followed via records
linked to the NHS Central Registers which
provide information on cancer
registrations and deaths. The outcomes of
interest in this analysis were the first
diagnosis of breast cancer or death from
breast cancer.
Overall, it was found across the three
PAGE | 10
studies, that there was no significant link
between night shift work for any number of
years and risk of breast cancer. Even
when combining these results with the
seven non-UK studies included in the
previous 2007 WHO review, there was still
no evidence that night shift work was
associated with breast cancer.
The research did point out that the studies
reviewed were all observational studies
and so the possibility that other health and
lifestyle factors associated with night-shift
work, such as obesity or smoking, could
increase breast cancer risk still can’t be
ruled out.
We will be reviewing the evidence further
in a future feature.
MPs to Lobby Truss over
Whiplash Reforms
We reported in last week’s edition of BC
Disease News that the long-awaited
consultation on raising the small claims
limit and removing general damages for
low-value soft-tissue injuries has
been delayed, it seems, indefinitely.
However, this week it has been reported
that a group of Conservative MPs will next
week lobby the justice secretary, Elizabeth
Truss, to follow through with the proposed
personal injury reforms. The group of 10
backbench MPs are eager to point out
that this is a delay rather than a
cancellation and are due to meet with Ms
Truss early next week. 19
Elsewhere, the Association of British
Insurers (ABI) Motor Conference was held
this week in which former Labour justice
secretary, Lord Falconer, was a guest
speaker. He said few people in Parliament
were focused on personal injury reform
given Brexit, and predicted that Truss
would be similarly distracted from the
issue. Instead he said, that insurers should
focus on investing in fraud detection and
taking legal action against those that
commit fraud.
The ABI published its report ‘Lifting the
Bonnet on Car Insurance’ this week, which
sets out what motor insurance premiums
pay for. The report highlights that bodily
injury claims make up 37% of insurers’
costs despite accounting for only 9% of
total motor claims. Given these figures, it is
likely that insurers will continue to lobby for
the reforms with the ABI putting them at the
top of its list of five action points it set to
ensure a ‘fairer deal for honest customers’.
The full report and the ABI’s five action
points can be found here.
BC Legal Launches
Revolutionary NIHL
Claims Software &
Analytics System
We are excited to announce the launch
of our unique and innovative disease
software system ABCNoise 3.
ABCNoise 3 is a complete software
solution and business intelligence
analytics tool designed for the fast,
efficient and cost effective handling of
volume NIHL claims.
We believe the system is revolutionary and
will offer users significant costs savings.
ABCNoise 3 goes live today and
demonstrations can be arranged at any
of our offices or at your own
offices. Please email abcnoise3@bc-
legal.co.uk to arrange a free, no
obligation demonstration.
Further information can be found in the
ABCNoise 3 brochure, here.
MoJ Publishes Revised
MedCo Qualifying
Criteria
We have reported extensively on the
MedCo scheme within BC Disease News,
particularly in relation to the controversial
use of shell companies by Medical
Reporting Organisations (MROs). Most
recently in edition 152, we reported that
the Ministry of Justice
intended to introduce a new definition of
MRO and related qualifying criteria.
This week the MoJ has published revised
qualifying criteria for MROs. These will
enable MedCo to ensure that MROs
currently registered on the system, and
MROs applying to register, are properly
constituted businesses with satisfactory
systems and sufficient resources in place
to operate to the minimum required
standards.
The new criteria also includes a new
definition of MRO and the MoJ state that it
is:
‘…designed to demonstrate the types of
MRO model acceptable for the purposes
of providing medical reports via MedCo.
Under the definition, organisations set up
purely as a ‘shell’ to gather instructions
and forward them on to a related
organisation are not allowed’.
The new criteria requires all aspiring MROs
to provide documented assurances that
they are independent, properly staffed
and resourced, and directly and solely
responsible for all work associated with
receiving instructions. Additionally, MROs
must also put forward a ‘financial
instrument’ of £20,000 to show they have
sufficient funds available to remunerate
medical experts who are instructed to
write reports.
MedCo has said that it will be contacting
all ‘shell companies’ direct. It will also
apply the new criteria in auditing MROs
that are already registered on the system
and when considering applications from
MROs to register on the system. This is to
ensure that MROs do not undermine the
system’s random allocation model.
Failure to meet the revised criteria will
result in removal from the MedCo system
and rejection of applications to be
registered.
It is hoped that this will present major tier 1
MROs from creating dozens of shell
companies in order to farm more work.
The full set of Qualifying Criteria can be
found here.
PAGE | 11
Proportionality Ruling
Heads To Court of
Appeal
In edition 143 of BC Disease News, we
reported on the decision of BNM V MGN
Limited [2016] EWHC B13 (Costs) in which
the harsh impact of the post-Jackson
proportionality rule was demonstrated
after Master Gordon-Saker halved the
costs of a privacy action that he had
deemed reasonable after a line-by-line
assessment.
Further details about this judgment can be
found in edition 143 here. However, in
short, the Master halved the claimant’s
costs from the sought after £241,817 to
£167,389. In addition to this he ruled that
the proportionality test applied to
additional liabilities (which are still
recoverable in privacy actions) and these
should be considered together with the
base costs. However, he went on to look
at the ATE premium of £58,000 separately
and also halved that as a result of it being
disproportionate, notwithstanding the fact
he found the premium was set at a
reasonable level.
This decision was heavily criticised by the
ATE insurer, Temple Legal Protection
(reported in edition 144 here), which said
that the proportionality rule should not
apply to those areas of litigation where
additional liabilities are still recoverable. A
representative of the firm stated:
‘My deepest concern is that this judgment
will be used by well-resourced
defendants, who can afford not to
recover all of their costs, to run up their
legal spend knowing full well that a
claimant would not be able to match this
and, therefore, could only recover a level
of costs in line with their damages. This flies
in the face of the recent judgment in Miller
v Associated Newspapers Limited where
the Judge found that ‘ATE provides a
legitimate social purpose’ and that the
‘burden
imposed by the ATE premium scheme is
not so large and not so lacking in
appropriate controls as to amount to a
disproportionate inference in their right to
freedom of expression’.
The proportionality test was introduced in
2013 without guidance, however, it has
been announced that the decision in
BNM, has been leapfrogged to the Court
of Appeal to consider the application of
the rule.20
The appeal has been
expedited and will be heard by two Lord
Justices probably before Christmas.
We will continue to report on the progress
of this appeal and this will be
accompanied by a feature article on
proportionality.
Lawyers Must Treat
Litigants in Person Fairly
This month, in the decision of Re B (Litigants
In Person: Timely Service of Documents)
[2016] EWHC 2365 (Fam), the High Court
has issued a warning to lawyers over
bombarding litigants in person (LiPs) at the
door of the court. 21
The comments were in relation to a final
hearing in a child abduction case in
which a counsel’s 14-page position
statement and four law reports which
totalled 100 pages were given at the door
of the court to a non-English speaking LiP.
Mr Justice Peter Jackson, noted that had
this position statement been given to the
LiP earlier, it could have helped her,
despite the fact it was written in English.
The judge gave the following guidance in
relation to service of documents on LiPs:
‘Where one party is represented and the
other is a LIP, the court should normally
direct as a matter of course that the
practice direction documents under
PD27A are to be served on the LiP at least
three days before the final hearing,
especially where the LiP is not fluent in
English’.
He continued:
‘The method of service, usually email,
should be specified. Where time permits,
the court should consider directing that
the key documents are served with a
translation. In cases where late service on
a LiP may cause genuine unfairness, the
court should consider whether an
adjournment of the hearing should be
allowed until the position has been
corrected’.
It was also noted that LiPs were less likely
to make complaints about this kind of
behaviour due to their unfamiliarity with
the court process. Late service of
documents to LiPs in particular creates
unfairness and imbalance between the
parties as they may not have time to seek
advice ahead of the hearing.
Although this guidance came from the
Family Division, it is equally as applicable
to the civil courts and should be heeded
by all those dealing with LiPs.
The Relationship
between Costs
Budgeting and Costs
Assessment: Merrix v
Heart of England NHS
Foundation Trust
In the recent judgment of Merrix v Heart of
England NHS Foundation Trust
(Birmingham District Registry, 13 October
2016), Regional Costs Judge District
Judge Lumb considered the extent to
which the costs budgeting regime in CPR
Part 3, fettered the powers and discretion
of the Costs Judge on detailed
assessment under CPR Part 47.
DJ Lumb pointed out at the start of his
judgment, that:
‘Both processes share a common
objective to identify reasonable and
Case Law
PAGE | 12
proportionate costs. However, looking from
opposite ends of a procedural timeline they
are not necessarily focussed on exactly the
same thing’.
The matter was a preliminary issue in a
clinical negligence claim and the
defendant was the paying party. The
claimant submitted that a budget fixed the
amount of recoverable costs and can be
reduced only if the paying party can show
good reason to depart from it. This, it was
said, was the meaning behind the words in
CPR r. 3.18 which states:
‘In any case where a costs management
order has been made, when assessing costs
on the standard basis, the court will –
a) Have regard to the receiving party’s
last approved or agreed budget for
each phase of the proceedings;
and
b) Not depart from such approved or
agreed budget unless satisfied that
there is good reason to do so.
Therefore, said the claimant, if her costs are
claimed at or less than the figure approved
or agreed for that phase of the budget then
they should be assessed as claimed without
further consideration.
The defendant’s position was that the Costs
Judge’s powers and discretion are not
fettered by the budgeted figure for the
phase but that the budget is but one factor
to be considered in determining reasonable
and proportionate costs on assessment.
Additionally, it pointed out that costs
budgeting was not intended to replace
detailed assessment, if this were the case
then there would be no test of
proportionality for these costs, which is
carried out at the detailed assessment
stage.
Before giving his judgment, DJ Lumb noted
that:
‘Although aspects of costs budgeting have
been considered in a number of authorities
there appears to be no direct case authority
on the relationship between costs
budgeting and costs assessment. The
debate in the legal profession concerning
this issue reflects
wide-ranging views and interpretations
and the parties in the present case have
taken entrenched positions which can
only be described as polar opposites’.
Having regard to this, he concluded that
the defendants must be correct in its
submission that costs budgeting was not
intended to replace detailed assessment
and that the receiving party’s last agreed
or approved budget is just another factor
that the Court will have regard to. This the
judge said, was clear from the fact that
the Rules Committee did not make
changes to CPR Parts 44 and 47 to give
importance to the budget. Further
evidence that there was no intention to
preclude the availability of detailed
assessment can be found in the Practice
Direction. PD 3E which expressly states that
in budgeting the Court is not carrying out
a detailed assessment in advance. DJ
Lumb stated:
‘The words “in advance” must mean that
this will be available at the conclusion of
the case. PD 3E also states that the hourly
rates and time to be expended are for
guidance purposes only to assist the Court
in setting a budget. The time to consider
those in detail must therefore come later,
at assessment’.
Instead, he stated that, what must have
been intended was that effective costs
and case management would greatly
reduce the need for detailed assessment
of some or all of the parties’ costs by
ensuring that the costs budgets were
within the range of reasonable and
proportionate costs for each phase. In so
doing the scope for disagreement should
be reduced to a level where a paying
party would be unwise to risk incurring the
significant costs of the detailed
assessment process for what would only
be limited potential gains.
Therefore he concluded that the strict
answer to the question in issue in this case
was that the powers and discretion of a
costs judge on detailed assessment are
not fettered by the
costs budgeting regime save that the
budgeted figures should not be
exceeded unless good reason can be
shown. However, he added:
‘… the full answer to the issue is more
nuanced than the defendant’s position of
“open season” and complete discretion
to attack a bill on detailed assessment,
and the claimant’s opportunistic attempt
to impose a straight-jacket on the costs
judge and claim a fixed figure’.
Therefore, he granted permission to
appeal and the claimant representative
has said it is considering its position on the
matter.
De Minimis Case
Update: Harbison v The
Rover Company
Limited
This month has seen another de minimis
success for insurers in the case of
Harbison.22
The 63 year old claimant was employed
by the defendant over 29 years between
1975 and 2006 as a production operative
in a car plant and alleged NIHL from
exposure to excessive noise. The issues in
this case were:
- Did the claimant have any NIHL
caused by noise exposure and;
- If so, was the NIHL sufficient to be
compensable?
The defendant admitted breach of duty
and accepted the claimant’s evidence
without cross-examination. There was no
oral evidence given at the trial which was
allocated to the fast-track. The defendant
had no medical expert evidence to rely
upon. The medical evidence was
restricted to the written evidence of the
claimant’s expert only, Mr Sharma.
The claimant underwent two audiograms
for the purposes of the claim. The first was
carried out on 10th
PAGE | 13
May, 2014 as part of Mr Sharma’s medical
report who diagnosed NIHL with a bilateral
qualifying notch at 4kHz using the ‘CLB
Guidelines’ 2000.
Following a request by the defendant,
another audiogram was carried out on 24
September, 2015. However, at the time of
that test, the claimant’s left ear was
occluded with wax and so the left ear results
from that test were deemed unreliable. In
the right ear the 4 kHz notch found in the
2014 audiogram had disappeared and the
hearing threshold improved from 40dB to
20dB. To continue supporting a diagnosis of
NIHL Mr Sharma now relied upon a bulge of
8.6dB at 6 kHz. This fell short of the threshold
of 10dB required to meet the R3a
requirement in the CLB Guidelines. However,
when he looked at the results for the right
ear from the two audiograms he found that
the bulge at 6 kHz averaged 12 dB and so
was sufficient to meet the reduced threshold
requirement of 7dB when averaging (see
section 7.5 of the CLB Guidelines) and so
maintained his diagnosis of NIHL. He also
used the averaged results of both
audiograms of the right ear over 1, 2 and 3
kHz to find an additional binaural hearing
loss due to noise of 1dB over those
frequencies.
The defendant submitted that averaging of
the audiograms was inappropriate as the
hearing thresholds between the two differed
by 20dB which was significantly more than
the margin of acceptable audiometric
variability of 10dB.The later 2015 audiogram
demonstrated a significant improvement in
thresholds which was not consistent with
NIHL.
However, HHJ Carmel Wall stated:
‘In considering the strength of this argument
I have regard to the fact that Mr Sharma was
not challenged as to the appropriateness of
averaging the two audiogram results; and
that he had justified this method by
reference to the CLB guidelines. His
approach was thus a recognised
mainstream approach to multiple
audiograms designed to improve reliability
of outcome. In those circumstances I
conclude that I should be slow to reject his
approach where there is no expert
evidence to suggest that
he was wrong to take that approach in this
case’.
The judge found that when averaging the
results at 6 kHz this satisfied the CLB
requirement and so the claimant had
proved the diagnosis of NIHL. We discuss
the topic of averaging multiple
audiograms in greater detail in our feature
article below.
De Minimis?
The judge then turned to consider whether
or not the NIHL was compensable. Based
on averaging the two audiograms, when
measured across 1, 2 and 3 kHz the
claimant’s NIHL was 1dB. Mr Sharma’s
opinion was that when looking across
these frequencies there would generally
be no noticeable subjective effect or
material disability from that level of NIHL.
The judge concluded that when the
claimant’s hearing was considered across
1, 2 and 3 kHz, he was not ‘appreciably
worse off’ due to NIHL.
In relation to the loss at 4kHz on the first
audiogram, which showed that that the
claimant had a measured additional
hearing loss after age adjustment of 19dB
in his right ear and 29dB in his left, the
claimant argued that Mr Sharma’s
responses to the Part 35 questions
supported the inference that the claimant
was appreciably worse off as a
consequence of this loss. However, the
judge rejected this and accepted the
defendant’s argument that Mr Sharma
had suggested the possibility that hearing
loss at high frequency could be
subjectively noticeable or have a material
effect but that that this fell short of
discharging the claimant’s burden of
showing that he was appreciably worse
off as a consequence.
As such it was concluded that:
‘[…] on the evidence before me the
claimant does have mild hearing
impairment. However he has not
discharged the burden of showing that on
the balance of probabilities the NIHL
hearing loss that is additional to the effect
of age has made him
appreciably worse off. I am not satisfied
the injury caused by NIHL is compensable.
The outcome in this case differs from
another 1st
instance decision of Briggs v
RHM Frozen Food Limited, 23
where there
was again little or no NIHL at 1-3 kHz but a
loss of up to 15dB at 4 kHz. That loss was
found to be compensable. So why the
different outcome to Harbison? In Briggs
one of the factors that told in favour of
compensation was the claimant’s
accelerated need for hearing aids-an
issue not advanced in Harbison.
Additionally, in Harbison the judge
indicated that in order to prove that loss at
4kHz had caused the claimant some
disability, the audiogram alone would not
be enough and that the claimant and his
expert had failed to adduce any
evidence that the claimant was
‘appreciably worse off’ as result of such
loss - a failing on the claimant’s part not to
provide written or oral evidence to this
effect.
The raft of 1st
instance NIHL judgements on
de minimis seen over the last few years are
very fact-specific, but outcomes often
seem determined on the absence of
evidence presented by either of the
parties. As we have previously cautioned
do not run cases without your own expert
evidence.
Further details about previous de minimis
decisions and how to run a successful de
minimis defence can be found in edition
133 of BC Disease News here.
PAGE | 14
Incorrect Court Fee and Limitation Periods: Dixon v Radley House
Partnership [2016] EWHC 2511 (TCC)
It was established in Page v Hewetts Solicitors [2012] EWCA Civ 805 that a claim is ‘brought’ for limitation purposes when the claim
form is delivered to the court office, accompanied by a request to issue and the appropriate fee. The issue raised in Dixon, was what
was meant by ‘appropriate fee’.
Whilst still within limitation, the Claimant issued a claim form claiming a specific sum (£35,894.78) and tended the correct fee for a
money claim of up to £50,000. Some months later when out limitation, the Claimant served Particulars of Claim seeking damages in
excess of £400,000.
The defendant sought to amend to plead limitation on the grounds that because an incorrect fee had been paid the claim as it
stood was statute barred-the claimant had failed to stop time running for the purposes of limitation.
Mr Justice Stuart-Smith noted that there was no statutory provision which stated that issued proceedings were invalid if the court had
accepted a fee which was or became less than the proper fee for the claim.
He stated:
‘In a case where abusive conduct was not present, the fact that a claimant intended to bring a claim which could not be articulated
or quantified at the time of issuing proceedings should not
Thus, the ‘appropriate fee’ for the purposes of the principle in Page was to be determined by reference to the claims articulated in
the claim form. In the absence of abusive behaviour, it was not to be determined by reference to claims which were articulated later,
whether or not such later claims were ones which the claimant intended to bring later at the time of issuing proceedings.
The decision therefore turned on the distinction between abusive conduct (for example, issuing a claim that knowingly understates
the ultimate intended value of the claim), and issuing a claim where aspects, such as the value of claim, have fairly yet to be
developed.
PAGE | 15
Excessive Occupational
Sitting: A Review of the
Risks
Introduction
Many adults in the UK spend more than24
hours a day sitting or lying (not including
time spent sleeping), and this typically
increases with age to 10 hours or more. This
total daily sedentary time is comprised of
occupational, leisure-time, domestic, and
transport-related sedentary time.
In this feature article we look at the issue of
excessive occupational sitting and the
possible adverse health consequences
associated with this. We will do this by
analysing the available research which links
excessive sitting to conditions such as heart
disease, diabetes, obesity and
musculoskeletal disorders.
Prevalence of Sitting
A study carried out by Buckley JP et al,
quotes data which suggests that on
average office workers spend up to 75 per
cent of the day sitting. Another recent study
of workers in the Northern Ireland Civil
Service found that men had a mean
occupational sitting time of around 6 hours
per day, and women almost 6 ½ hours per
day. 25
If it is assumed that a typical working day
includes 8 hours spent working and 8 hours
spent not working, then the total potential
for time spent sitting is split equally between
work time and non-work time (in the UK, the
average time spent working is 36.3 hours
per week, and 42.7 hours per week among
full time workers).26
An Australian study
found that those in full time work spent more
time sitting at work than recreationally, with
a mean of 4.2 hours sitting at work and a
mean of 2.9 hours sitting recreationally.27
A
Dutch study found that the working
population spent an average of 7 hours a
day sitting, one third of which was at work.
28
Occupational groups and sectors differed
significantly: the greatest amount of time
spent sitting at work was
among legislators and senior managers
(181 minutes per day), followed by clerks
(160 minutes per day), and the smallest
amounts of time were among agricultural
workers (74 minutes per day) and service
workers (51 minutes per day). Thus, for full
time employees in physically inactive jobs,
occupational sitting is likely to be the largest
contributor to overall daily sitting time.29
Given the increasing technological
changes in the home and workplace, it is
possible that modern humans have not yet
reached their most sedentary, and that the
average time spent sitting each day may
still increase. A recent Danish study found
that between 1990 and 2010 the proportion
of Danish workers who sat for at least three
quarters of their work time gradually
increased from 33.1 to 39.1 %, and that
occupational sitting time increased by 18
%. 30
It is estimated that in the United States
the prevalence of sedentary jobs increased
from 15 % in 1960 to 25 % of jobs in 2008. 31
Possible Health Effects of Sitting
In the past decade, research on the effects
of sedentary behaviours i.e. prolonged
sitting or lying down, as a health threat has
increased exponentially and has shown that
it may be associated with an increased risk
of major health outcomes, including
cardiovascular mortality, cardiovascular
disease, musculoskeletal disorders and type
II diabetes.32
It is thought excessive sitting slows the
metabolism – which affects our ability to
regulate blood sugar and blood pressure,
and metabolise fat – and may cause
weaker muscles and bones.
One of the largest pieces of research to
date on the subject – involving almost
800,000 people – found that,
compared with those who sat the least,
people who sat the longest had a: 33
112% increase in risk of diabetes
147% increase in cardiovascular
events
90% increase in death caused
by cardiovascular events
49% increase in death from any
cause
This research comprised a systematic review
and meta-analysis which summarised the
results of all the observational studies that
had looked at the association between the
time spent sitting or lying down whilst awake
and the risk of diabetes, cardiovascular
disease, and death due to cardiovascular
disease or any other cause.
Despite the fact that the studies were from a
range of countries, and that each study was
performed differently, the time spent
sedentary was consistently associated with
poorer health outcomes. However, this study
cannot show that sedentary behaviour is the
direct cause of the increases in risk as there
may be other confounding
factors associated with both sedentary
behaviour and disease risk (for example
smoking, alcohol, diet, or socioeconomic
factors) which the individual studies may not
all have taken into account.
For example, many of these conditions can
also be linked with obesity. Whilst there has
been research which suggests that
excessive sitting is linked to obesity a 2008
study was able to establish that actually,
being obese may cause sedentary time
which is reversed causation from the
assumption that sitting can cause obesity. 34
Guidance for Employees and Employers
The strength of the evidence for a link
between sitting and ill health is such that the
World Health Organisation has published
guidelines, adopted by Public Health
England, which recommends 150 minutes
of exercise a week in order to counter the
effects of sitting, but some research
suggests that even this is insufficient for
some people.35
A WHO spokesman said:
‘Recommendations related to sitting and
sedentary behaviours are not available yet.
However, WHO already recommends
governments implement policy actions
around making
Features
PAGE | 16
environments where people live and work
more conducive to physical activity’.
The UK government issued new
recommendations in 2011 on minimising
sitting for different age groups.
The Start Active, Stay Active report published
by the Department of Health recommends
breaking up long periods of sitting time with
‘shorter bouts of activity for just one to two
minutes’. A panel of leading experts who
reviewed the evidence on sitting for the
report recommended taking ‘an active
break from sitting every 30 minutes’.36
The
advice applies to everyone, even people
who exercise regularly, because too much
sitting is now recognised as an independent
risk factor for ill health.
Ideally, to minimise the risk of adverse
health effects, a worker should have the
option to sit, stand, move around and vary
the nature of work tasks. An expert
statement commissioned by Public Health
England and Active Working C.I.C.,
published in 2015, aimed to provide
guidance for employers and staff working in
office environments to combat the potential
ills of long bouts of seated office work.37
The
core recommendations are as follows:
“For those occupations, which are
predominantly desk-based, workers should
aim to follow these recommendations:
Initially progressing towards
accumulating at least two hours
per day of standing and light
activity (light walking), eventually
progressing to a total
accumulation of four hours per day
(pro-rated to part-time hours)
• Seated-based work should be
regularly broken up with standing-
based work and vice versa and
thus sit-stand adjustable desk
stations are highly recommended
Similar to the risks of prolonged static seated positions, so too should prolonged
static standing postures be avoided; movement does need to be checked and
corrected on a regular basis especially in the presence of any musculoskeletal
sensations. Occupational standing and walking have however not shown to be
causally linked to low back and neck pain and can provide relief.
Those individuals new to adopting more standing-based work could expect some
musculoskeletal sensations and some fatigue as part of the positive adaptive
process. If such sensations cannot be relieved either by an altered posture or
walking for a few minutes, then the worker should rest, including sitting, with a
posture that relieves the sensation. If discomfort does persist, then seeking
appropriate medical advice is recommended.
Along with other health promotion goals (improved nutrition, reducing alcohol,
smoking and stress), companies should also promote to their staff that prolonged
sitting, aggregated from work and leisure-time, may significantly increase one’s
risk of cardio-metabolic diseases and premature mortality.”
The NHS also recommends the following to reduce sitting time:38
Take the stairs and walk up escalators
Set a reminder to get up every 30 minutes
Alternate working while seated with standing
Stand or walk around while on the phone
Take a walk break every time you take a coffee or tea break
Walk to a co-worker’s desk instead of calling
The HSE booklet ‘Seating at work’ (1997) offers guidance on the safety and suitability of
workplace seating. 39
The advice does not mention reduction of the amount of seated time,
but focuses on how to make seating comfortable.
Stand-sit workstations and dynamic workstations have also been suggested as alternatives
to sitting workstations. The purpose of such devices is to encourage workers to change
working positions. They are used by over 90 % of office workers in Scandinavia and they
can be easily adjusted to sitting or standing height. 40
It is important when choosing a standing desk to ensure that it meets ergonomic
requirements. Such requirements are illustrated in the figure below41
, and include:
Wrists should be flat to the keyboard
Elbows should form a 90 degree angle when typing
Eyes should look forward to the monitor
Figure: Standing desk42
PAGE | 17
Less commonly used are treadmill workstations, these are desks attached to a treadmill, upon which the user walks whilst work ing.
Figure: Treadmill desk43
According to Get Britain Standing, it is surprisingly easy to type and speak while walking at a slow pace, but is less easy to write by hand44
.
Treadmill desks can be desks that are designed to cover a traditional treadmill, a treadmill that is designed to fit under a standing desk,
and a treadmill with desk included.
Occupational v Leisure Sitting
It has been suggested that different types of sitting may have different relationships with health. This finding was reported by several
studies. For example, Periera45
found that television viewing was associated with more biomarkers for disease than occupational sitting .
In general, it appears that comparisons between occupational sitting and health effects may show fewer or weaker effects than
comparisons between overall sitting and health effects, or television viewing and health effects. These differences may be due to
socioeconomic factors, for example, sitting at work tends to be associated with higher socioeconomic status, whereas longer t imes
watching television tend to be associated with lower socioeconomic status. Thus, differences in other variables that result from social
status may influence the effects of time spent sitting on health.
Conclusion
Whilst there is some evidence which supports a link between prolonged sitting at work and conditions such as, heart disease a nd diabetes,
arguably for any cause of action to be established, an individual would need to show that their sedentary behaviour doubled the risk of
developing a disease or condition and that the occupational sitting was a material part of that overall behaviour.
At present the body of medical evidence would not appear sufficiently strong to establish a successful cause of action wh ere there is
likely to be a complex interplay between a number of genetic, environmental, social and behavioural risk factors in any indiv idual.
PAGE | 18
Single Audiometry: A
Basis for NIHL Claims
Handling Schemes?
“Despite being regularly referred to as the
‘gold standard’, pure tone audiometry, as it
currently stands, has a very high degree of
potential error, particularly in a clinical
environment.”
Marine and Technology Faculty,
Southampton Solent University, 2015
“A single determination of hearing threshold
level at any frequency must be recognised
as only a guess of unknown accuracy.”
“For an individual test subject, a single
audiogram is an unconfirmed
determination of that individual’s state-of-
hearing in both ears. Put more starkly, a
single audiogram is a guess.”
Institute of Sound & Vibration Research,
University of Southampton, ISVR
Technical Report No. 336, 2015
INTRODUCTION
If audiometry is properly carried out in
accordance with the British Society of
Audiology’s (BSA) recommended
procedures for pure tone audiometry,46
then
can NIHL be reliably diagnosed based on a
single audiogram?
Can NIHL claims handling schemes based
upon a single audiogram simplify and
speed up the claims process and reduce
claim costs?
In a seminar held this week by the
Manchester Law Society on NIHL claims
(‘What’s all the noise about Noise Induced
Hearing Loss’47
), Dominic Weir of Slater &
Gordon, Karen Jackson of Roberts Jackson,
Zoe Holland of Zebra LC48
and HHJ Gore QC
advanced arguments in favour of a ‘single
trusted audiogram’ during a panel
discussion. Such arguments also appear to
be finding increasing favour in the
defendant community.
In this feature we consider audiometric
reliability and the diagnosis of NIHL and
why, in our view, single audiometry handling
schemes would lead to more paid NIHL
claims and re-ignite a currently declining
market.
AUDIOMETRIC VARIABILITY
Pure tone audiometry has now been in use
for over 90 years and has been described
as the ‘Gold Standard’ for the assessment of
hearing thresholds. Nevertheless it is
accepted not to be a precise science -
measurements are susceptible to errors ,
which may lead to variability in the results,
and a lack of reliability. Stephens (1981)49
found 38 sources of error in audiometric
testing.
The American Academy of Otolaryngology
- Head and Neck Surgery,50
list the variables
in 4 principle categories and we set out
some examples of the sources of error
below:
1. Physical variables
a. Improper calibration of
audiometer
b. Improper placement of
earphones
c. Type of earphones and
earphone cushions used
d. Excessive ambient noise
levels in test rooms
2. Physiological variables
a. Tinnitus
b. General health of subject,
presence of fatigue, colds
and ear wax
c. Collapsed ear canals
caused by earphone
pressure
3. Psychological variables
a. Motivation of subjects
b. Attitude to testing
c. Experience in test taking
4. Methodological variables
a. Tester competence
b. Testing technique
c. Order of presentation of
frequencies
Measures such as calibration of the test
environment, equipment and procedure
to ISO standards can reduce the risk of
errors.
There are both British and international
standards for the test procedures. The BSA
has published recommended procedures
for pure tone audiometry which are in
accordance with the International & British
Standard BS EN ISO 8253-1. However,
despite the use of these standards and
recommended procedures, measurement
variability is still inevitable. It is entirely
normal to have 5 to 10dB differences in
thresholds - in either direction - between
properly conducted hearing tests.
This measurement variability has long been
recognised. Chapter 5, section 5.2.3.1 of
the Black Book, 51
states that:
Repeatability varies from person to
person;
Repeatability is best at 1 and 2 kHz
and poorer outside these limits,
especially at 6 kHz;
With 5 dB measurement steps then
audiometric variability within the
same test (intra-test variability) may
be within +/- 5 dB.
As was stated by HHJ Inglis in the
Nottingham Textile Litigation judgment at 1st
instance, 52
at paragraph 103:
“The central tool in diagnosis is the
audiogram. Audiograms are taken in steps
of 5 dB at each frequency. They are
variable and not generally exactly
repeatable. Where 2 audiograms taken at
about the same time vary, the results where
there is variation may reasonably be
averaged if the difference is not more than
10 dB. Up to 10 dB is therefore an
acceptable margin of error”.
It is important to remember that this degree
of ‘acceptable margin of error’ can occur
where 2 audiograms are performed entirely
properly by experienced audiologists within
a proper test environment and calibrated
equipment and applying BSA
recommended procedures in testing.
If one test (or both) is not properly
PAGE | 19
conducted then the margin of error and
variability in measured thresholds between
tests can be far greater. Some sources of
audiometric error can result in better than
actual hearing - so for example where a
patient can see the audiometer and when
a test signal is applied or there is a lack of
variation in the test signals so the patient
anticipates hearing a sound rather than
actually doing so. The vast majority of errors
however increase the measured hearing
thresholds - in other words show hearing
worse than it actually is. As stated by Lawton
(1991)53
:
‘…systemic errors [in pure tone audiometry]
usually work to elevate the threshold, to
make the hearing appear less acute than it
really is’.
However, a series of studies carried out by
the Maritime and Technology Faculty of the
Southampton Solent University between
2013-201554
55
56
, suggest that the degree of
accuracy of properly conducted
audiometry is actually worse than previously
thought.
One of these studies aimed to assess how
measurements might vary between
audiometers in a laboratory environment
due to any calibration differences.
Calibration requirements of audiometers
are set out in various national and
international standards,57
to ensure their
sound outputs are within tolerances of -/+3
dB at frequencies 125Hz-4 kHz and +/-5dB
at higher frequencies. Therefore 2 properly
calibrated audiometers can differ in their
sound outputs by up to 6 dB-10 dB
dependent on frequency tested.
The study looked at the variability in sound
output from 4 different types of audiometer
which had all undergone proper laboratory
calibration within the last 3 months. The
sound output from the audiometers was
measured using a Head and Torso Simulator
(HATS) - as pictured:
Picture: Bruel and Kjaer Head and Torso Simulator58
The HATS accurately replicates the size and shape of the human head and ears and allows
the accurate measurement of sound which would be presented to the ear of a person
undergoing audiometry - rather than the measured hearing thresholds of the person. In this
way many of the environmental and the subjective sources of error which can occur are
avoided.
All the audiometers which used TDH39 headphones were fitted by a qualified audiometrist
to the HATS. Three of the audiometers used supral-aural (sit on the outside of the ear) THD39
earphones and one used THD39 earphones with attenuating cups. Attenuating cups are
noise excluding cups which can be fitted around the earphones to exclude external noise
and are particularly recommended where the ambient noise level of the test environment
is not ideal and commonly used in industrial screening situations.
Picture: THD39 earphones
Picture: Attenuating audiocups
PAGE | 20
Sound was presented to the HATS using each of the 4 audiometers across the frequencies of 250 Hz, 500 Hz, 1 kHz, 2 kHz, 4 kHz and 6 kHz
at assumed sound outputs of 30 dB, 50 dB and 80 dB. Both ‘ears’ were tested and tests were repeated 3 times with the hea dphones
removed and replaced between each test.
In theory each audiometer should present identical tones with the HATS recording the same outputs. Surprisingly the measured outputs of
the audiometers, which were apparently presenting the same sound frequency and level to the HATS, showed a high degree of test-retes t
variability - both within the same audiometer, between the different audiometers and between left and right ‘ears’.
The differences between the means outputs of each of the audiometers were between 3 and 12 dB. The variation in produced tones was
greatest both within and between audiometers at 6 kHz with a maximum difference of 20-21 dB - far outside the calibration tolerances of
10dB. The results are reproduced in the table below.
Table: Minimum, maximum, difference and mean measured sound outputs at test levels & frequencies
Tes t Level F requency Min dB Leq Max dB Leq Di fference Min-
Max dB Leq
Mean dB Leq
30 dB
250 Hz 25.6 34.9 9.3 29.9
500 Hz 24.8 36 11.2 29.9
1000 Hz 34.4 41.4 7 39.1
2000 Hz 35 40.9 5.9 38.8
4000 Hz 32.3 37.2 4.9 35.5
6000 Hz 34.1 54.9 20.5 44.4
50 dB
250 Hz 45.8 54.8 9 50.0
500 Hz 44.8 55.8 10 49.8
1000 Hz 57.3 64.4 7.1 59.6
2000 Hz 55 60.9 5.9 58.7
4000 Hz 52.3 57.2 4.9 55.4
6000 Hz 53.9 74.8 20.9 64.3
80 dB
250 Hz 75.9 84.9 9 80.5
500 Hz 74.8 86 11.2 80.3
1000 Hz 84.4 91.2 6.8 88.9
2000 Hz 85 91.2 6.2 88.8
4000 Hz 82.3 87.2 4.9 86.2
6000 Hz 83.9 104.9 21 94.1
The audiometer using attenuating cups had greater variation than the other audiometers in the study. It also had a significantly higher
output level than the other audiometers at a number of frequencies. The authors suggest that a reason for this might be that the use of
attenuating cups creates a calibration error. The attenuating cups themselves are likely to introduce a degree of resonance, which will
change the frequency response of headphones to the ear.
Further identified causes of variation were the different headband designs and tensions. The audiometer that performed the most
consistently was the audiometer with the tightest headphones. These effects are likely to be greater in real world environments due to
variability in the sizes and shapes of human heads. In addition, the artificial head used in this study remained still, whereas human heads
will probably move during testing, which could cause greater variations.
The authors also commented on the difficulty of positioning the attenuating cups over the ears, due to reduced visibility of the transducer
part of the headphone. This variation is also likely to occur in real subjects, which demonstrates a difference between the ‘calibrated’
set up and the ‘clinical’ set up. It is suggested that the position of the headphones is particularly significant at 6 kHz.
PAGE | 21
The authors concluded
59
that:
(i) To improve the accuracy of audiometry, headband tension needs to be sufficiently high to ensure good coupling between the ear and
headphone and different headphones or tensions may be appropriate to different sizes of head;
(ii) Attenuating cups significantly increase variability and should be avoided;
(iii) The high proportion of people with threshold shifts at 6 kHz could be linked to the variation in performance of the hea dphones when
placed slightly differently or with insufficient tension on the ears;
(iv) You can expect variations of up to 21 dB in hearing thresholds at some frequencies if tested in different clinics. You can also expect a
high degree of variation for different tests within the same clinic using the same audiometer. ‘Real world’ differences are likely to be greater
than shown in the study;
(iv) The degree of variability found within the study is sufficient to cause misdiagnosis of NIHL on a single audiogram;
(v) Despite being regularly referred to as the ‘gold standard’, pure tone audiometry, as it currently stands, has a very high degree of
potential error, particularly in a real world environment.
The same authors then followed this study by looking at the variation of measurements in both laboratory conditions and real world/clinical
conditions. The methodology for testing laboratory conditions was as described above using the HATS. To test in a clinical/real world
environment 13 people were recruited from the Universi ty community - some with normal hearing and some with hearing problems. Testing
was carried out by a qualified audiometrist in accordance with the BSA recommended procedures for PTA using 3 different audiometers
and TDH39 headphones. As expected the variation in clinical conditions (for the 13 test subjects) was even greater than for a laboratory
conditions (using the HATS).
At the key frequencies of 3, 4 and 6 kHz the mean differences were between 5-12 dB but the maximum differences were 15 dB, 20 dB and
30 dB respectively. The results are reproduced in the table and figure below.
Table and figure: Maximum and mean variations in sound outputs
F requency Hz Tes t-retest variation dB
Max Mean
500 15 6.0
1000 20 5.0
2000 15 6.0
3000 15 4.8
4000 20 8.1
6000 30 11.3
8000 35 10.4
The authors stated:
‘All frequencies had a maximum error of at least 15 dB in the clinical tests, which brings into question the accuracy of clin ical pure tone
testing as the primary mode of hearing screening, as this degree of error is sufficient to cause misdiagnosis’.
CONCLUSIONS
When using the CLB Guidelines60
as a diagnostic framework for NIHL, small differences in hearing thresholds matter. A 5-10 dB difference at
a single threshold can change a +diagnosis to a –diagnosis.
The Institute of Sound & Vibration Research in a 2015 Technical Report,61
summarised the position on diagnosis of NIHL based on a single
audiogram as follows:
“A single determination of hearing threshold level at any frequency must be recognised as only a guess of unknown accuracy.”
“For an individual test subject, a single audiogram is an unconfirmed determination of that individual’s state -of-hearing in both ears. Put
more starkly, a single audiogram is a guess.”
PAGE | 22
The recent studies by Southampton Solent University suggest that the typical variability of pure tone audiometry is greater than previously
thought. Differences far greater than the 10 dB ‘accepted margin of error’ may in fact be typical. These differences arise even where the
audiometry is performed in accordance with BSA Recommended procedures for pure tone audiometry. Where audiometry is sub -standard
then expect the differences to be even greater and showing worse than true hearing thresholds.
Let’s consider the findings of these recent studies in the context of the current NIHL market:
1. Claims volumes have been falling over the last 12 months - see 144 of BC Disease News (here) and the UK Deafness Working Party
Report.62
Anecdotally all insurers appear to be reporting significant falls in claims volumes;
2. The hearing of many claimants is difficult to distinguish from those typical of an aged population which has not been exposed to
noise - see our analysis of some 10,000 claims in edition 124 of BC Disease News (here), where around 50% of claimants arguably
had no more than normal hearing for a non-exposed/aged population;
3. Nearly 60% of claims involved notches/bulges of between 10-19dB. Or, expressed another way, 60% of claims are diagnosed
based on notches/bulges that are within the range of normal audiometric error which could disappear on repeat testing;
4. In many cases, if there is any NIHL is it sufficient to give rise to damages? Applying the new LCB Guidelines on disability,63
then up
to 1/3rd claims arguably have such NIHL that is so small as to be considered de minimis. (Full details on the LCB Guidelines and
their impact can be found in the BC Legal Guide here);
The quality of claims appear to have deteriorated over the last few years. More claims are spurious and more successfully
defended - see the above report;
5. Analysis of claimant audiograms shows that + diagnosis of NIHL applying the CLB Guidelines has increased from c.50% in 2011 to
c. 90% today. Simple CLB diagnostic tools offer little safeguard to defendants in today’s market-analysis must be far more
sophisticated. A defendant’s ability to obtain repeat audiometry and its own medical evidence is a key mechanism to control the
market and ensure the current high repudiation rates are maintained.
In our view, single audiometry handling schemes would:
(i) result in over-diagnosis of NIHL;
(ii) lead to reduced repudiation rates and more claims paid;
(iii) provide much needed cash flow to claimant organisations, and:
(iv) re-ignite a currently declining market.
Ask yourself what are the benefits of adopting a single audiometry handling scheme in the current market?
In a future feature we look at the results of repeat audiometry obtained by BC Legal. In what % of claims is the audiometry consistent and
reliable such that diagnosis can be validated? In what % of claims does repeat audiometry show thresholds significantly diffe rent from the
claimant audiometry? In how many of such claims does the repeat audiometry provide a defence on causation?
[NOTE: OUR TEMPLATE NIHL LETTERS HAVE BEEN UPDATED AND CAN BE FOUND HERE].
PAGE | 23
Handling Multiple
Audiograms in NIHL
Claims
INTRODUCTION
In last week’s feature we looked at the
potential dangers of reliance upon single
audiograms for the diagnosis of NIHL. We
concluded that single audiometry is likely to
result in over-diagnosis of NIHL, lead to
reduced repudiation rates and more claims
paid which would provide cash flow to
claimant organisations and in turn re-ignite
a currently declining market.
This week, we consider the approaches
adopted in NIHL claims where multiple
audiograms have been available.
IS THE AUDIOGRAM ACCURATE?
Where there is more than one audiogram in
a NIHL claim the first question to ask is
whether the audiograms are reliable. It may
be that one (or both or more) of the
audiograms is not a genuine measure of the
claimant’s hearing thresholds.
We considered the numerous factors which
may cause an audiogram to be inaccurate
in last week’s feature and which may lead
to errors and variability in hearing
thresholds. Medical convention accepts
variability of 10dB in hearing thresholds
between 2 hearing tests carried out closely
in time as audiometry is not a precise
science even when properly conducted.
Where there are multiple audiograms,
where one (or both) is not properly
conducted then the margin of error and
variability in measured thresholds between
tests can be far greater than the
‘acceptable margin of error’ of up to 10dB.
[In last week’s feature we examined the
recent ‘Solent University Studies’ which
suggest that variability between even
properly conducted tests may in fact be
greater than 10dB].
Whilst some sources of audiometric error
can result in better than actual hearing, the
vast majority of errors however
increase the measured hearing thresholds
i.e. show hearing worse than it actually is. As
stated by Lawton (1991)64
:
‘…systemic errors [in pure tone audiometry]
usually work to elevate the threshold, to
make the hearing appear less acute than it
really is’.
So where you have 2 audiograms carried
out closely in time it follows that it is the
audiogram which shows the best hearing
thresholds which should be accepted as
being more accurate and the best measure
of a claimant’s hearing thresholds.
Identifying inaccurate audiograms can be
more troublesome where those audiograms
are conducted many years apart. This was
the case in Ross v Lyjon Company Limited
(23rd
September 2016, Liverpool County
Court), which was featured in edition 157 of
BC Disease News here.
We illustrate this in our scenarios below
involving a hypothetical claimant exposed
to excessive noise in breach of duty with
exposure ceasing in 1990. In both scenarios
the claimant undergoes audiometry on
cessation of exposure in 1990 and again in
2015 when presenting a NIHL claim.
In scenario 1 the 1990 audiogram shows no
NIHL but the 2015 audiogram shows
audiometric evidence of NIHL
In scenario 2 the 1990 audiogram shows
NIHL but the 2015 audiogram shows no NIHL.
Let us now consider these scenarios below:
PAGE | 24
Despite there being no more noise exposure between 1990 and 2015, the 2015 audiogram shows audiometric evidence of NIHL but the
1990 audiogram shows normal hearing on cessation of exposure. Medical convention is that NIHL is non-progressive. It doesn’t get worse
once exposure ceases. The claimant might argue, as they did in Ross, that the earlier audiogram must be inaccurate and, in fact, the
claimant had NIHL in 1990 (or argue for latency of onset of NIHL). However, it is often difficult to show that historic audiometry was not
properly conducted in the absence of any proper evidence. This is even more so where an audiogram shows normal hearing. If th e
audiometry was not properly conducted one would expect audiometric errors to show worse than actual hearing. If a poorly conducted
audiogram does not show NIHL then a claimant certainly doesn’t have NIHL.
Instead, one should consider whether the 2015 audiogram, which purportedly shows NIHL, is inaccurate and therefore showing hearing
worse than it actually is. Alternatively, it could be that the audiogram is accurate but there are other causal factors -and not NIHL - resulting
in losses worse than expected for age.
We now reverse the position in scenario 2 with the 1990 audiogram apparently showing NIHL and the 2015 showing normal hearing. NIHL
is a permanent condition. If it was present in 1990 it must be present today. If the 2015 audiogram does not show NIHL then i t is either
unreliable, or if it is reliable, then the 1990 audiogram must be unreliable (or there was a temporary cause of conductive hearing loss)
and the claimant did not (and does not) have NIHL then.
AVERAGING AUDIOGRAMS?
The above scenarios relate to audiograms spaced widely over time and one of the audiograms being patently inaccurate or losses which
cannot be attributable to NIHL.
How do we deal with audiograms which are performed closer in time - say within 1 to 2 years of each other and which, in theory, should
show hearing thresholds within margins of acceptable audiometric variabi lity and 10dB of each other at corresponding frequencies?
Can the results of these audiograms be averaged to provide a composite audiogram with the thresholds being the average of the two?
PAGE | 25
The CLB. (2000) ‘Guidelines on the diagnosis
of noise-induced hearing loss for
medicolegal purposes’,65
state at Note 3:
‘If an average of two, several or many
hearing threshold measurements at the
relevant frequencies in a particular ear can
validly be used, the “at least 10dB or
greater” guideline may be reduced slightly,
by up to about 3dB. In borderline cases, an
average of all the audiograms available
and acceptable for averaging should be
used in assessing the evidence for or
against the presence of a high-frequency
hearing impairment, notch or bulge.’
[Emphasis added].
Therefore the guidelines state that if you are
able to average the results of more than
one audiogram then the diagnostic
threshold in R3a i.e. that there be a notch or
bulge in the audiogram of 10dB, may be
reduced to 7dB. Naturally then, this issue is
intrinsic to diagnosis.
As can be seen from the extract of Note 3
above, averaging of audiograms is only
recommended in certain circumstances
and unfortunately, the guidelines do not
explain when audiograms ‘can validly be
used’ or are ‘acceptable for averaging’.
There has been and remains much debate
regarding when averaging of audiograms
may be utilised. We will now go on to
consider these issues and then consider the
impact this has on the diagnosis of NIHL.
Professor Lutman (one of the principle
authors of the CLB Guidelines), in open
correspondence to questions arising from
the ambiguity of averaging, initially
indicated that audiograms should only be
averaged if they agree closely with one
another. He further stated that it would be
unlikely that audiograms obtained on
different occasions, especially if they were
obtained under different test conditions and
with different equipment, would agree
closely enough to make averaging
meaningful and this is what is meant by the
phrase ‘acceptable for averaging’ in Note
3. Therefore, his approach was that Note 3
should not normally be applied to the
average of audiograms obtained on
different
occasions or by different examiners. In other
words averaging was restricted to
audiograms obtained at the same sitting
and presumably designed to identify any
intra-test variability.
However, his approach since appears to
extend to allow averaging of audiograms
which are carried out at different times, as
long as the audiograms are similar and are
not ‘intrinsically different’. By this we assume
that hearing thresholds between the
audiograms should be within 10dB of each
other.
Professor Cole, again as a principle author
of the original guidelines, has stated in open
correspondence, that it is acceptable to
average audiograms over a period of ten
years provided there has been ‘no major
audiometric changes over the period
concerned’. Again, there is no definition of
‘major audiometric change’. We assume
this means that the hearing thresholds have
not deteriorated beyond what would be
accepted for normal AAHL over the period.
Other experts-such as Mr Jones and Mr
Parker-appear to be more circumspect
about the principle of averaging on the
basis that errors between tests tend to be
largely systemic rather than random and
the use of averaging lowers the burden of
proof required for a diagnosis of NIHL.
Alternatively, if averaging is to be
considered then it should be restricted to
tests with the same sitting and where these
closely agree.
Errors in an audiometric measurement can
be either systematic or random. A
systematic error is an error that is constant or
proportional across all measurements, for
example, if an instrument is not calibrated
correctly, all measurements may be 5 units
larger than the ‘true’ values. ‘True’ readings
may be calculated if the size and nature of
the systematic error is known. A random
error will be different across all
measurements, sometimes resulting in lower
or higher readings (and they will be higher
or lower by different amounts) than the ‘true’
reading, and the ‘true’ reading may be
determined by taking averages of multiple
measurements. The greater part of the
random error is usually attributable
to judgement variability on the part of the
person being tested.66
The impact that this has on averaging is
illustrated by the review carried out by
Lawton,67
which found that both systematic
and random errors are present in the
determination of auditory thresholds.
Though random errors can result in
thresholds appearing either higher or lower
than they actually are, the authors report,
systematic errors usually elevate the
threshold, making the hearing appear
poorer than it really is. So effectively in
averaging you are at risk of simply
combining the results from an accurate test
with the elevated results from an inaccurate
test-with the average also being greater
than a true average. To compound matters
that inaccurate average is then compared
against a reduced diagnostic R3a threshold
of 7dB to establish a diagnosis. There is little
guidance within the case law on averaging.
In Aldred v Cortaulds Northern Textiles
Limited,68
the court was asked for the first
time to consider the concept of averaging
hearing threshold levels from different
audiograms where minimal notching /
bulging was present on some and not on
others.
Mr Zeitoun for the claimant and Mr Parker for
the defendant, disagreed on the meaning
of ‘an average of all the audiograms
available and acceptable for averaging’
as per Note 3. Mr Parker did not accept that
this could apply to historic audiograms or
those which were separated by distance in
time. He claimed that he had discussed the
approach with some of the authors of the
guidelines and felt that re-testing was
intended to be a reference to further cycles
through the frequencies at the same sitting
or test, rather than subsequent audiograms.
Mr Zeitoun also claimed to have discussed
the approach of averaging audiograms
with one of the authors and was of the firm
stance that the use of audiograms from
different days was perfectly acceptable.
PAGE | 26
HHJ Wood QC found that he preferred the
approach of Mr Zeitoun as he felt it was
‘both logical and sensible that the
guidelines should be interpreted to allow,
within reason, the use of audiograms take at
different times, and not within the same test
setting’. He went on to say at para 26:
‘Apart from the obvious point made that the
guidelines would have specified the
exclusion of tests taken at more than one
sitting (and elsewhere the advice is specific
and proscribed), as one reads note 3, there
are key indicators as to why this should be
the case. First of all there is a reference to
“many hearing threshold measurements”. It
is difficult to see how this could contemplate
such measurements being taken at one
sitting. Second the qualification for
providing a retest comes after a conclusion
that a case is borderline and provides a
specific process for repositioning the
headphones. If the guideline authors have
intended that this should be the reference
to one or more of multiple tests then in my
judgment it would have been stipulated’.
It should be noted that the audiograms in
Aldred 2 audiograms spaced only 3 months
apart and which were significantly similar
were relied upon to find a diagnosis of NIHL.
What is the approach to be taken when this
is not the case?
In the de minimis decision of Harbison v The
Rover Company Limited, discussed earlier in
this edition of BC Disease News, it is
probable that the averaging of 2
significantly different audiograms allowed a
diagnosis of NIHL to be established where it
did not in fact exist.
The claimant had undergone two
audiograms, the first in May 2014 and the
second in September 2015. The first
audiogram showed a Coles compliant
notch at 4kHz, however, the second
audiogram did not with the hearing
threshold level at 4kHz improving from 40dB
to 20dB. However, to diagnose NIHL, Mr
Sharma averaged the results for the right ear
of both audiograms. After doing this, NIHL
was found per Coles with a resulting 12dB
an audiometric bulge at 6 kHz satisfying a
reduced R3a requirement of 7dB.
The defendant submitted that averaging of
the audiograms was inappropriate as the
hearing thresholds between the two differed
by 20dB which was significantly more than
the margin of acceptable audiometric
variability of 10dB.The later 2015 audiogram
demonstrated a significant improvement in
thresholds which was not consistent with
NIHL.
However in the absence of any medical
evidence from the defendant, HHJ Carmel
Wall stated:
‘In considering the strength of this argument
I have regard to the fact that Mr Sharma was
not challenged as to the appropriateness of
averaging the two audiogram results; and
that he had justified this method by
reference to the CLB guidelines. His
approach was thus a recognised
mainstream approach to multiple
audiograms designed to improve reliability
of outcome. In those circumstances I
conclude that I should be slow to reject his
approach where there is no expert
evidence to suggest that he was wrong to
take that approach in this case’.
The judge found that when averaging the
results at 6 kHz this satisfied the CLB
requirement and so the claimant has
proved the diagnosis of NIHL.
Although averaging multiple audiograms
was accepted in this instance, it should be
noted that the defendant did not have its
own expert evidence to counter the use of
averaging where it appeared to be clearly
inappropriate to do so.
CONCLUSION
As mentioned above, audiometric error
may be random or systematic. Random
error is helped by averaging, systematic
error is not, and most audiological error is
systematic and tends to exaggerate
hearing loss.
Averaging would certainly seem more
appropriate for audiograms obtained at the
same test to reduce intra-test errors - such
repeat testing is advocated within the BSA
Recommended Procedures for Pure Tone
Audiometry.69
There seems to be some disagreement
amongst experts as to whether it is
appropriate to average results from
different tests performed at different times-
albeit still relatively close in time.
However, there does seem to be some
consensus that it would only be appropriate
to do so where those audiograms closely
agree.
Surely averaging cannot be appropriate
where thresholds between audiograms
performed closely in time –say within 1 or 2
years of each other-differ significantly and
show differences greater than 10dB at
corresponding frequencies. This method
was adopted in Harbison and probably
resulted in mis-diagnosis of NIHL.
In such cases it is arguably more
appropriate to disregard the worse
audiogram, as being less accurate, and
rely on the better audiogram alone for
diagnosis.
Finally it would appear to be even more
fraught with difficulties to apply averaging
of audiograms performed wide apart in
time given how and why hearing thresholds
might have deteriorated over time between
the two.
PAGE | 27
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PAGE | 28
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31 Church, T. S. et al. Trends over 5 Decades in U.S. Occupation-Related Physical Activity and Their Associations with Obesity. PLOS ONE 6, e19657 (2011).
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66 Lawton as above
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68 (February 6 2013, Liverpool County Court).
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(British Society of Audiology, 9th September 2011, Amended February 2012).
PAGE | 30
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 2016.
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