1.
Claims club
November 2016, Exeter

2.
Asbestos claims
What do you need to know?
David Maggs

3.
Mesothelioma claims
Represent about 80% of the cost of asbestos based
claims to the insurance industry
Mesothelioma is a type of cancer that develops in the
lining that covers the outer surface of some of the
body's organs (often the lungs). It is linked to
asbestos exposure.

4.
Mesothelioma
Typically develops more than 20 years after exposure
to asbestos.

5.
Mesothelioma claims - what is
changing?
• 2002 – 1,600 claims
• 2006 – 2,500 claims
• 2010 – 3,250 claims
• 2014 – 3,500 claims
Recent experience shows a stable but increasing
notification trend of claims
The increases in claims notified appears to be slowing
down

6.
Mesothelioma claims – what’s
changing – average costs
2002 - £69,000
2006 - £75,000
2010 - £87,500
2104 - £97,500
Inflation is running at about 3-4% per annum
Paid at nil are running at between 21% and 23%

7.
Mesothelioma – what’s changing –
Claimant age at notification
2002 – 67
2006 – 69
2010 – 73
2014 – 74
Which means that you are dealing with older claims
for your authority (or a predecessor authority)

8.
Mesothelioma claims – what’s
changing - % of living Claimants
2002 – 20%
2006 – 18%
2010 – 61%
2014 – 69%
NHS mesothelioma framework 2007 – increased
awareness and improved diagnosis

9.
Mesothelioma claims –
Male/female % Claimants
• 2002 - 96% male/4% female
• 2006 - 96% male/4% female
• 2010 – 94% male/6% female
• 2014 – 95% male 5% female
The proportions are relatively consistent with a slight
increase in claims from women

10.
Mesothelioma claims – what’s
changing – deaths HSE projection
2002 – 1,500
2006 – 1,750
2010 – 1,900
2014 – 2,515
2020 – 2,000
2024 – 1,800
2028 – 1,500

11.
Mesothelioma claims – death
rates
HSE projection peaks in 2016
Other projections peak higher and later (2018)
Revised HSE projection moved back to 2015 but
peaked higher (about 1%)

12.
Mesothelioma claims – what
might change
Medical advances –
longevity (40% of sufferers survive one year, 20%
survive two years)
Cure – impact on claims depends on how the cost of
the cure compares to the cost of death benefits
A double lung transplant costs £360,000,
chemotherapy cost £26,000

13.
Mesothelioma claims – what
might change?
Mortality improvements – increased longevity means
more exposed lives develop mesothelioma
Exposure pattern – the long latency period means we
know little about underlying exposure from late
1970’s onwards

14.
Mesothelioma – what might
change
Inflation –
Medical - costs e.g. drugs
Legal – court fee increases, changes to Ogden
discount rates, case law

15.
Mesothelioma claims – MMI
Annual Report and Accounts for year ending 30 June
2016
“An increase in the provision for mesothelioma claims
has not been required this year as reporting
patterns for new mesothelioma claims have
stabilised”

16.
Mesothelioma claims – MMI
“The Employers Liability mesothelioma account
remained stable due to slightly fewer new claims
being reported compared with the previous year, but
the very nature of these claims makes future
projection uncertain”

17.
Mesothelioma claims – what you
are seeing
Claims from –
Caretakers/DLO?
Teachers/pupils?
Tenants?
Others?

18.
Mesothelioma claims – the
relevant timeline
Early 1960’s – two tier local government – counties
and municipal boroughs/county boroughs/rural
districts and urban districts
1965 – London boroughs created
1974 – Shire counties and non-metropolitan districts
or metropolitan counties and metropolitan districts

19.
Mesothelioma claims
1965 – Newhouse & Thompson paper & Sunday Times
article – Serious injury could be caused by low
asbestos exposure
Even though 1970 - HM Factories Inspectorate
Technical Data Note 13 – tolerated some exposure

20.
Mesothelioma claims
• Pre 1965 – unless there was substantial exposure to
asbestos dust - you shouldn’t be paying out on
claims
• E.g. Clark v LB Enfield (1) 7 Balding & Mansell (2)
• Alleged exposure, judged by the standards of the
time, did not present a foreseeable risk of injury

21.
Mesothelioma claims
• Living Claimant
• Evidence upon Commission
• Occupational Hygienist’s report
• Claim discontinued against Enfield with costs

22.
Mesothelioma claims - insurance
• Policy (or predecessor authority’s policy) lost
• Look in the archives – relevant minutes – sufficient
evidence?

23.
Mesothelioma claims – the search
for evidence
Archives – committee minutes – asbestos policy and
measures

24.
Mesothelioma claims
• The tide may be on the turn
• The cost makes it worthwhile expending some time
and money exploring a defence
• Claims are winnable

25.
Case update
Richard Johnson

26.
Albert Victor Carder v The
University of Exeter (2016)
Court of Appeal

27.
Material Contribution
• Asbestosis claim arising from exposure between
1950s to the 1980s.
• Claimant was 87 years of age where exposure by
defendant amounted to 2.3% of total lifetime dose.
• Asbestosis is a divisible disease and so dose
related.
• Claimant had other health issues and any
contribution by the defendant to the claimant's
respiratory symptoms or disability was likely to be
very small.

28.
• At the earlier hearing below, the court had found for the
claimant on the basis that:
• 2 .3%, although small was not de minimis (this was conceded
on appeal)
• The extent of asbestos increase was an indicator that the
claimant had become worse off physically even though it was
not noticeable or measurable. The dose of 2.3% had made a
contribution to the overall condition.
• The claimant was at an increased risk of developing lung cancer
• The claimants condition was likely to worsen to the point
where the claimant will be virtually confined to bed and be
dependent upon others.
• Unlike cases such as pleural plaque, where damage is
measurable but symptomless and no damages are payable, the
condition of asbestosis cannot be described as benign.

29.
• What is ‘actionable damage’- Was the Claimant
worse off?
• Court decided 2.3% was material- appeal dismissed.
• What dosage will be de-minimis?

30.
Carl Henegan (Son & Executor
of James Leo Henegan,
Deceased) –v- Manchester Dry
Docks Limited and 5 others
(2016) EWCA

31.
• Different approach to divisible and indivisible
diseases.
• Claimant developed lung cancer due to asbestos
exposure.
• Defendant sued exposure made up 35.2% of whole
life exposure.
• Court awarded 35.2% of any damages awarded.

32.
• Claimant appealed relying upon the Bonnington
Castings Ltd v Wardlaw 1956 AC: argued that:-
• It was established that the lung cancer had been
caused by the deceased exposure to asbestos.
• The causal connection between the lung cancer and the
asbestos was established by reason of the cumulative
dose.
• Each defendant therefore materially contributed to the
contraction of the disease.

33.
• Argument rejected by court. Test is whether
exposure by defendant contributed to the injury.
• Divisible cases- severity is proportional to the
amount of exposure.
• Indivisible cases such as lung cancer not possible to
apply same test as cannot say which fibres from
which employer caused lung cancer.

34.
• Application of Fairchild exception as qualified by
Baker v Corus applies.
• Section 3 of the compensation act which reversed
effect of Baker did not apply as only applied to
mesothelioma cases.

35.
Mosson –v- Spousal (London) Ltd

36.
Contributory Negligence
• Mesothelioma claim brought against defendants
successors in title for period of employment
between 1963/64.
• Primary liability was admitted.
• Contributory negligence alleged for period of self-
employment with two separate companies between
periods 1976/7 to 1992/3.

37.
• Consideration given to whether claimant was self-employed
rather than employee - court decided claimant was self-
employed.
• Claimants statement denied asbestos exposure while self-
employed.
• In forms completed for benefits claimant had admitted
working with asbestos during period of self-employment.
• Medical records also confirmed exposure during this self-
employment period.
• Claimant accepted possibility of exposure during
deposition.
• Court considered decision in Williams v University of
Birmingham 2011 EWCA . Did degree of exposure while self
employed make injury foreseeable by standards of the
time?

38.
• Reliance was placed on Badger v MOD (2005) EWHC where
the court stated:
“Once contributory negligence has been established, the
court must take into account both the extent of the
claimants responsibility for his injury and damage and the
blameworthiness of his conduct as opposed to that of the
defendant in deciding on the reduction in damages that is
just and equitable”.
The judge described the evidence of how the claimant was
exposed to asbestos while self-employed was either ‘thin’ or
‘non-existent’.
• The judge rejected the allegation that the deceased was
guilty of contributory negligence.

39.
Smith v Portswood House Ltd

40.
The Importance of a Good Engineering Evidence
• Claimant diagnosed with mesothelioma in 2013
died in 2015 aged 60.Claim pursued by estate.
• Claimant alleged that he had been exposed to
asbestos in the manufacture of fire doors.
• Alleged breaches of the Asbestos Regulations 1969
and section 63 of the Factories act 1961 in relation
to the failure to control dust emissions.

41.
• The court when considering the legal principles relied upon
Williams v University of Birmingham 2011 EWCA:-
• The defendant owed a duty of care not to unreasonably
expose him to asbestos fibre's and the consequent risk of
asbestos-related injury, including mesothelioma.
• The claimant must show the defendant was in breach of that
duty by being negligent and exposing the victim to asbestos
fibres and consequent asbestos-related injury that was the
reasonably foreseeable result of that negligence.
• The claimant must prove on balance of probability that the
defendants negligent breach of duty had caused a material
increase in the risk that the claimant would develop
mesothelioma.
• The claimant must also prove the loss and damage suffered
is within the usual ‘remoteness’ rules.

42.
• The court confirmed the Supreme Court decision in
Baker v Quantum Clothing Group Limited 2011 that
the standard of conduct expected is that of the
reasonable and prudent employer at the time
taking into account developing knowledge about
the particular danger concerned.

43.
• Conflicting engineering evidence
• Defendant expert evidence preferred. Judge concluded
exposure to asbestos fibres did not exceed standards
of the time.
• Court stressed onus not on Defendant.
• “It is for the Claimant to prove both that the
Defendant company was negligent and that its breach
of duty caused a material increase in the risk that the
victim would develop mesothelioma.”

44.
General Data Protection Regulation
Megan Larrinaga

45.
Will GDPR apply to the UK?
• Yes
• No information as to how it will apply
• Tinkering with GDPR post-Brexit?
• Favourable exemptions?

46.
General Data Protection
Regulation(GDPR)
• New definitions
• New principles for Data Processing
• Data Subject Rights
• Consent
• Information to be provided to Data Subjects
• New Data Controller Obligations
• Data Processor Obligations
• Data Protection Officers
• Mandatory Breach Notification
• Increase in Liability and Sanctions

47.
Aim of the Reform
• A uniform regime
• Greater rights for data providers
• Enhancing confidence in security
• Increased accountability
• Reduction in bureaucracy

48.
Territorial Scope
• All data controllers and processors
– Operating within the EU – whether or not the
processing takes place in the EU
– Outside the EU that offer goods and services to data
subjects in the EU
– Outside the EU that monitor the behaviour of data
subjects to the extent that the behaviour takes
place in the EU

49.
Definitions – personal data
Current
Data relating to a living individual who can be identified
from those data or from those data and other information
which is in the possession of, or likely to come into the
possession, of the data controller.
Future
An identifiable person who can be identified directly or
indirectly, in particular by reference to an identifier such
as name, identification number, location data, online
identifier or to one or more factors specific to the physical,
cultural, physiological, genetic, mental, economic, cultural
or social identity.

50.
Special categories of data
• Data revealing-
Race or ethnic origin
Political Opinions
Religious or Philosophical Beliefs
Trade Union Membership
Health or Sex Life and Sexual Orientation
Genetic or Biometric data in order to uniquely identify
a person
• Processing of any/all of the above prohibited subject to
exceptions

51.
Definitions – data processing
• Current – obtaining, recording or holding the
information or data or carrying out any operation
or set of operations on the information or data
including altering, retrieving, disclosing, blocking
erasing or destroying the information
• Future – any operation or set of operations which
is performed on personal data whether or not
automated including collecting, recording,
organising, structuring, storing, adapting, altering,
disclosure, erasure or destruction.

52.
Principles for data processing
• Data must be processed lawfully, fairly and in a transparent
manner
• Data must only be collected for a specified, explicit and
legitimate purpose
• Data must only be processed to the extent that it is adequate,
relevant and limited to what is necessary in relation to the
purpose for which they are processed
• Data must be accurate and up to date. Data which is inaccurate
should be erased or rectified without delay
• Identifiable data should not be kept longer than is necessary
• Ensure appropriate security of the data
• Ensure compliance with the Regulations.

53.
Lawful basis of processing
• Consent
• Contractual necessity
• Legal Obligation
• Vital Interests of the data subject or of another
natural person
• Public Interest or exercise of official authority
• Legitimate interests of data controller or third
party to whom data is disclosed (but not to a public
authority).

54.
Consent
• Must be freely given, specific, informed and unambiguous
• Must be given by a statement or a clear affirmative action
• If written, should be distinguishable from any other
matter
• Withdrawal of consent should be as easy as grant of
consent
• Purpose limited – loses validity when the purpose ceases
to exist
• Burden of proof on the data controller to show consent
freely given

55.
Data subject rights
• Data subjects can require:
Inaccurate personal data be corrected or incomplete data be
completed including by way of supplementing a corrective
statement
Personal data in a machine readable and structured format
commonly used by the data subject and allows for further
use
The data controller to delete their personal data where
certain conditions are met

56.
Data subject rights: continued
Restriction of processing of personal data – so that this can
only be held by the controller and used for limited purposes
Transfer of personal data from one data controller to
another (“data portability”)
Processing of personal data not take place for direct
marketing, including profiling
Not to be subject to a decision based solely on automated
processing, such as in connection with insurance premiums
The rights of access, rectification, erasure and the right to
object must be given effect free of charge

57.
Information to be provided
• Data controllers must provide the following to data subjects on
request:
Identity and contact details of data controller and data protection
officer
Intended purpose of processing and period for which data will be
stored
Existence of rights: access, rectification, object and erasure
Right to lodge a complaint internally and to a supervisory authority
Recipient or categories of recipients to whom data will be disclosed
Intention to transfer to another country or international organisation
• Information must be concise, transparent, intelligible and easily
accessible
• Must be provided in writing unless otherwise requested.

58.
Controller vs Processor
• The GDPR applies to ‘controllers’ and ‘processors’
• Broadly the same as under DPA
Data controller says why and how personal data is
processed
Data processor acts on behalf of the controller
• Data processors now have direct obligations

59.
Data controller obligations
• Designate a data protection officer (where required)
• Appoint a sub-processor
• Adopt policies and implement appropriate technical
and organisational measures to ensure and be able to
demonstrate compliance with GDPR
• Implement security requirements
• Deal with privacy impact assessments
• Comply with requirements of supervisory authority
• Report breaches to the supervisory authority and
affected data subjects

60.
Data processor obligations
• Designate a data protection officer (where required)
• Appoint a sub-processor only with authorisation of a data
controller
• Adopt policies and implement appropriate technical and
organisational measures to ensure and be able to demonstrate
compliance with GDPR
• Implement security requirements
• Comply with requirements of supervisory authority
• Maintain a written record of all personal data processing carried
out on behalf of a data controller
• Notify data controllers without undue delay after becoming aware
of a breach

61.
Non-compliance by data
processors
• Sanctions by regulator
• Damages claims from data subjects
– failure to comply with lawful instructions of data
controller
– apportionment between data controller and data
processor
• Damages claims from data controllers

62.
Data Protection Officer
• Data controllers and data processors must
designate a Data Protection Officer where:
– The processing is carried out by a public authority
– The processing requires regular and systematic
monitoring of data subjects on a large scale
– The core activities consist of processing large scale
special categories of personal data

63.
Responsibilities of Data
Protection Officer
• Inform and advise the data controller/processor
• Monitor the implementation and application of the
Regulations and the data protection policies
• Monitor Impact Assessments and breaches
• Point of contact for Supervisory Authority

64.
Mandatory breach notification
• Notify data protection authority without undue delay
and, where feasible, within 72 hours of awareness –
reasoned justification required where timeframe is not
met
• Notify the affected data subjects without undue delay –
where there is a “high risk” to their rights and
freedoms
• Not required if breach is unlikely to result in a risk to
the rights and freedoms of individuals
• Adopt internal procedures for data breaches

65.
Consequences of a data breach
• Level 1: €10,000,000 or 2% total worldwide annual
turnover
• Level 2: € 20,000,000 or 4% total worldwide annual
turnover
• Factors taken into account when determining fine:
Nature, gravity and duration of the breach
Whether breach intentional or negligent
Previous breaches by the data controller/processor
Technical and organisational measures in place.

66.
Next steps
• Enforceable from 25 May 2018
• Where consent is relied upon as the basis for processing, consider
whether this is valid under the GDPR
• Review all communication and information to ensure all necessary
information is stated
• Review systems to ensure that new obligations can be met, such as
data portability
• Review processes and procedures for reviewing and reporting data
breaches, and implement appropriate policies
• Consider whether it is necessary to appoint a DPO

67.
Next steps
• Consider the relationship between various parties to an
agreement, who is the data controller/processor in relation to
what personal data, and the obligations on each
• Review agreement between controllers and processors to ensure
appropriate arrangements are in place
• Consider the rights of the data subject. How will you deal with
requests for erasure?
• Consider the impact of Brexit, including which parts of your
operations are within the UK or elsewhere
• Consider where personal data of individuals within the EU and
outside of the EU is processed and how this impacts on your
obligations

68.
Questions
• Megan Larrinaga
• 020 7871 8504
• Megan.Larrinaga@brownejacobson.com