Pre-action protocol for industrial disease claims

The terms of a new voluntary pre-action protocol, covering industrial disease claims intimated on or after 1 June 2008

The Journal, April 2008, page 38

1. PURPOSE OF VOLUNTARY PROTOCOL

Disease is defined as:
“Any illness, physical or psychological, any disorder, ailment, affliction, complaint, malady or derangement, other than physical or psychological injury solely caused by an accident or other similar singular event. A singular sensitising event may be considered appropriate for this Protocol.” (The definition is not restricted to “disease” occurring in the workplace.)

1.1 The Voluntary Protocol has been kept deliberately simple to promote ease of use and general acceptability.

1.2 The aims of the Voluntary Protocol are:

To encourage exchange of information at an early stage;
To resolve disputes without litigation;
To identify/narrow issues in disputes;
To enable resolution of claims pre-litigation.

1.3 It also sets out good practice making it easier for the parties to obtain and rely upon information required.

1.4 The standards within the Voluntary Protocol are to be regarded as the normal, reasonable approach to pre-action conduct in relation to Voluntary Protocol cases.

2. INTRODUCTION

A Voluntary Pre-Action Protocol in Scotland

2.1 Unlike England & Wales, there is no statutory basis for a Pre-Action Protocol. The Protocol therefore will require to be entered into voluntarily on an individual case by case basis by mutual agreement. The claimant may request occupational health records before the letter of claim is issued. The request should contain sufficient information to alert the defender to a possible claim, including the specific nature of the disease (e.g. asbestosis, noise-induced hearing loss, tinnitus, etc). A mandate (see Specimen Letter 2.1) should be provided authorising release of the occupational health records to both claimant and defender. Records should be provided within 40 days, at no cost to the claimant. It will be for the claimant’s agent to intimate the claim in the general format of Specimen Letter A1 or A2, and invite the defender or insurer to agree on a case by case basis that conduct of the pre-action negotiations is to be undertaken in terms of the Voluntary Protocol. When a defender or insurer accepts a letter in the general format, Letter B will be sent within 21 days of receipt of claim. The claim will proceed in terms of the Voluntary Protocol in respect of the negotiations, disclosure, repudiation of liability, settlement and calculation of fees.

2.2 The agent is encouraged to notify the insurer as soon as they know a claim is likely to be made but before they are able to send a detailed letter of claim, particularly for instance when the insurer has no or limited knowledge of the events giving rise to the claim or where the claimant is incurring significant expenditure as a result of the disease which he/she hopes the insurer might pay for, in whole or in part. If the claimant’s agent chooses to do this, it will not start the timetable for responding.

2.3 The Voluntary Protocol, if entered into, will apply not merely to the personal injury element of a claim but also to other heads of loss and damage.

2.4 Where proceedings are raised in a Voluntary Protocol case, whether for the payment of damages or for the recovery of evidence and other orders under the Administration of Justice (Scotland) Act 1972, without prejudice to any existing rule of law, it shall be open to any party to lodge Voluntary Protocol communications for the sole purpose of assisting the court in any determination of expenses.

3. LETTER OF CLAIM

3.1 The agent shall send to the proposed defender (or to his insurer if known) a detailed letter of claim as soon as sufficient information is available to substantiate a claim and before issues of quantum are addressed in detail. The letter should ask for details of the insurer if not known, and the letter should request that a copy should be sent by the proposed defender to the insurer where appropriate. If the insurer is known, a copy shall be sent directly to the insurer.

3.2 The letter of claim should include:

1 Details of the disease or illness alleged;

2 Main allegations of fault;

3 Present condition and prognosis;

4 Outline of financial loss;

5 Employment history and HMRC schedule (including job titles/duties carried out);

6 Identity of records required;

7 Identity of other potential defenders and their insurers if known;

8 Chronology of relevant events, e.g. dates (period of exposure linked to employment).

3.3 Agents are recommended to use a standard form for such a detailed letter. Specimen Letter A1 or A2 can be amended to suit the particular case.

3.4 Sufficient information should be given in order to enable the insurer to commence investigations and at least put a broad valuation on the claim.

3.5 The insurer should acknowledge the letter of claim within 21 days of the date of receipt of the letter. The insurer should advise in a letter in the terms of Specimen B whether it is agreed that the case is suitable for the Voluntary Protocol. If there has been no reply by the defender or insurer within 21 days, the claimant will be entitled to issue proceedings.

3.6 Where liability (subject to causation) is admitted, the insurer will be bound by this admission for all Protocol claims with a gross damages value of less than £10,000. The exception to this will be when, subsequently, there is evidence that the claim is fraudulent.

3.7 The insurer will have a period of three months from the date of the insurer’s response letter to investigate the merits of the claim. By mutual agreement the investigation period can be extended. Not later than the end of that period, the insurer shall reply, stating whether liability (subject to causation) is admitted or denied and giving reasons for their denial of liability (subject to causation), including any alternative version of events relied upon and all available documents supporting their position.

3.8 The insurers will disclose the period of employment as soon as the information is known to them and will appoint a lead insurer. Details of other insurers will be produced when known.

Documents

3.9 The aim of early disclosure of documents by the parties is to promote an early exchange of relevant information to help in clarifying or resolving the issues in dispute. If the insurer denies liability, in whole or in part, they will at the same time as giving their decision on liability, disclose any documents which are relevant and proportionate to the issues in question, with reference to those identified in the letter of claim.

3.10 Attached at Appendix A are specimens, but not an exhaustive list of documents likely to be material in different types of claims. Where involvement of the claimant’s agent in the case is well advanced, the letter of claim should indicate which classes of documents are considered relevant for early disclosure. Where this is not practical, these should be identified as soon as practicable, but disclosure will not affect the timetable.

3.11 Where the insurer admits primary liability (subject to causation) but alleges contributory negligence by the claimant, the insurer should give reasons supporting these allegations and disclose the documents from Appendix A which are relevant and proportionate to the issue in dispute. The claimant’s agents should respond to the allegations of contributory negligence before proceedings are issued.

Medical evidence

3.12 A medical report will be instructed at the earliest opportunity, but no later than five weeks from the date the insurer admits liability, in whole or in part, unless there is a valid reason for not obtaining a report at this stage. In those circumstances, the claimant’s agents will advise accordingly and agree an amended timetable. Any medical report obtained and on which the claimant intends to rely will be disclosed to the other party within five weeks from the date of its receipt. By mutual consent, the insurers may ask the examiner, via the claimant’s agent, supplementary questions.

3.13 The claimant’s agent will normally instruct a medical report, will organise access to all relevant medical records and will send a letter of instruction to a medical expert. The insurer is encouraged to attempt to resolve issues by questioning the claimant’s expert, but may seek its own expert evidence, if appropriate. The claimant’s agent will agree to disclosure of all relevant medical and DWP records. Any medical report on which the insurer intends to rely will be disclosed to the claimant’s agent within five weeks of receipt.

Damages

3.14 Where the insurer has admitted liability (subject to causation), the claimant’s agent will send to the insurer as soon as possible, a statement of valuation of claim (the “statement of valuation”) together with supporting documents, and keep the insurers advised of any potential delays.

4. SETTLEMENT

4.1 Where the insurer admits liability (subject to causation) before proceedings are issued, any medical reports, supporting documentary evidence and statement of valuation obtained under this Voluntary Protocol on which a party relies, should be disclosed to the other party. Subject to expiry of the triennium, the claimant’s agent should delay issuing proceedings for five weeks from the date the insurer receives the statement of valuation to enable the parties to consider whether the claim is capable of settlement.

4.2 Where a statement of valuation with supporting documents has been disclosed under 3.13 and liability and causation are admitted, the insurer shall offer to settle the claim based on their reasonable valuation of it within five weeks of receipt of such disclosure, serving a counter-schedule of valuation if they dispute the claimant’s agent’s valuation.

4.3 The claimant’s agent will advise insurers whether or not their offer is to be accepted or rejected, prior to the raising of proceedings and in any event within five weeks of receipt.

4.4 Where a Voluntary Protocol case settles, cheques for both damages and agreed expenses must be paid within five weeks of settlement, which will be either the date when the insurer receives notification of settlement or, where a discharge is required, the date when the signed discharge is received by the insurer. Thereafter, interest will be payable by any defaulting insurer on any outstanding damages due to the claimant and/or expenses due and payable in accordance with the agreed settlement terms, at the prevailing judicial rate from the date of settlement until payment is made in full.

5. TIME BAR

5.1 In the event that the insurer repudiates liability or that the claimant rejects an offer in settlement, provided that proceedings are subsequently raised within a period of one year from the date of such repudiation or rejection, the date of raising proceedings will be deemed to be the date when intimation of the claim was made in terms of this protocol for purposes of prescription and limitation.

6. LITIGATION

6.1 In the event of litigation, the claimant’s solicitors will give the insurers an opportunity to nominate solicitors to accept service, on behalf of their insured.

7. PERSONAL INJURY DISEASE CASES – PROTOCOL FEES

These fees apply to all types of disease claims.

The fees for claims intimated and dealt with entirely under the Protocol comprise the following elements:

Instruction fee

On settlements up to and including £1,500 £320

On settlements over £1,500 £700

Completion fee

On settlements up to £2,500 25%

On the excess over £2,500 up to £5,000 15%

On the excess over £5,000 up to £10,000 7.5%

On the excess over £10,000 up to £20,000 5%

On the excess over £20,000 2.5%

Notes

1) In addition, VAT (on all elements) and outlays will be payable.

2) In cases including payment to CRU the protocol fee will be calculated in accordance with the following examples:

(i) Solatium £5,000

Wage loss £5,000

CRU repayment £2,000

Sum paid to pursuer £8,000

In these circumstances the protocol fee will be based on £10,000 being the total value of the pursuer’s claim.

(ii) Settlement as above but repayment to the CRU is £6,000 and only £5,000 can be offset. Payment to the pursuer is £5,000 and £6,000 to the CRU.

The protocol fee will be on £10,000, being the value of the pursuer’s claim, as opposed to the total sum paid by the insurer – £11,000.

3) In cases involving refundable sick pay the protocol fee will be calculated by including any refundable element.

4) Fees calculated in relation to gross damages value of claim.

APPENDIX A: STANDARD DISCLOSURE LIST

Workplace claims

   (i)   Accident book entry.
   (ii)   First aider report.
   (iii)   Surgery record.
   (iv)   Foreman/supervisor accident report.
   (v)   Safety representative’s accident report.
   (vi)   RIDDOR report to HSE.
   (vii)   Other communications between defenders and HSE.
   (viii)   Minutes of health and safety committee meeting(s) where accident/matter considered.
   (ix)   Report to DSS.
   (x)   Documents listed above relative to any previous accident/matter identified by the claimant and relied upon as proof of negligence.
   (xi)   Earnings information where defender is employer.

Documents produced to comply with requirements of the Management of Health and Safety at Work Regulations 1999:

   (i)   Pre-accident risk assessment required by regulation 3.
   (ii)   Post-accident re-assessment required by regulation 3.
   (iii)   Accident investigation report prepared in implementing the requirements of regulation 5.
   (iv)   Health surveillance records in appropriate cases required by regulation 6.
   (v)   Information provided to employees under regulation 10.
   (vi)   Documents relating to the employees health and safety training required by regulation 13.

Workplace claims – disclosure where specific regulations apply

[There follow a list of documents required to comply with particular provisions of the undernoted regulations. For the full list see the Society’s website at www.lawscot.org.uk/Members_Information/rules_and_guidance.

The regulations are:

Workplace (Health Safety and Welfare) Regulations 1992
Provision and Use of Work Equipment Regulations 1998
Personal Protective Equipment at Work Regulations 1992
Manual Handling Operations Regulations 1992
Health and Safety (Display Screen Equipment) Regulations 1992
Control of Substances Hazardous to Health Regulations 2002
Construction (Design and Management) (Amendment) Regulations 2000, 2004, 2007
Construction (Health, Safety and Welfare) Regulations 1996]