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TRANSCRIPT
BC DISEASE NEWS
A MONTHLY DISEASE UPDATE
June 2018 Edition
PAGE | 2
CONTENTS
PAGE 2
Welcome
PAGE 3
Collections of NIHL and
Asbestos-Related Articles
Equitable Contribution in a
Mesothelioma Claim: RSA
Insurance PLC v Assicurazoni
Generali SpA (2018)
PAGE 5
Is ‘Fear’ an Actionable Injury?
Kimathi & Ors v The Foreign
and Commonwealth Office
[2018] EWHC 1305 (QB)
PAGE 7
Does QOCS Apply When Only
Part of a Claim is for Personal
Injuries? Brown v The
Commissioner of Police for the
Metropolis & Another (2017)
PAGE 8
Fundamental Dishonesty – 2
Recent Judgments: Molodi v
Cambridge Vibration
Maintenance Service & Anor
[2018] EWHC 1288 (QB) and
Richards & Anor v Morris [2018]
EWHC 1289 (QB)
PAGE 9
Liability When Risk Assessments
Are Not Heeded: CC v Leeds
County Council [2018] EWHC
1312 (QB)
PAGE 10
Disability in Military Personnel
With Mental and Physical
Disorders
Welcome
Welcome to the 232 edition of BC Disease News.
In this week’s edition, we provide links to our up-to-date NIHL and Asbestos
Collection of Articles Guides, featuring related BCDN content.
We also examine several recent case authorities, two of which regarded
inventive interpretation, in attempts to engage desirable limitation periods.
In RSA Insurance PLC v Assicurazoni Generali SpA (2018), the defendant insurer
argued that proceedings for equitable contribution of settlement, served by the
claimant insurer, fell under the statutory contribution regime and were therefore
statute barred by the relevant 2 year limitation period (s.10).
In another decision, Kimathi & Ors v The Foreign and Commonwealth Office
[2018] EWHC 1305 (QB), the claimants argued that ‘fear’ could amount to an
actionable injury, which would allow them to benefit from s.33 discretion,
exclusively afforded to actions in respect of personal injuries (s.11).
We also review a recent study, which sought to identify a relationship between
disability in military personnel and personnel with physical and mental disorders.
Any comments or feedback can be sent to Boris Cetnik or Charlotte Owen.
As always, warmest regards to all.
SUBJECTS
NIHL and Asbestos Articles – Equitable Contribution Claims and Limitation Periods
– ‘Fear’ and Actionable Personal Injuries – QOCS and Fractional Personal Injury
Claims – Fundamental Dishonesty – Risk Assessments, Breach of Duty and
Causation – Military Disabilities and Mental and Physical Disorders.
PAGE | 3
Collections of NIHL and
Asbestos-Related
Articles
BC Disease News has covered a wide
range of issues that arise in both NIHL and
asbestos-related claims, over the past 5
years.
Every article encompassing these two
topics (up to edition 225) has been collated
into two separate Guides and each
collection has three volumes (1 volume per
100 BC Disease News Editions).
If you wish to access these resources,
please click on the links below:
1. Asbestos Claims Collection of
Articles
Volume 1 (Editions 1 –
100)
Volume 2 (Editions 101 –
200)
Volume 3 (Edition 201
onwards)
2. NIHL Claims Collection of Articles
Volume 1 (Editions 1 –
100)
Volume 2 (Editions 101 –
200)
Volume 3 (Edition 201
onwards)
Equitable Contribution
in a Mesothelioma
Claim: RSA Insurance
PLC v Assicurazoni
Generali SpA (2018)
Approved judgment has been handed
down in the case of RSA Insurance PLC v
Assicurazoni Generali SpA, in which the
defendant argued that an insurer’s claim
for equitable contribution of settlement, in
a mesothelioma claim, was statute-barred.
An insured painting and decorating
company employed an individual, Mr
Merritt, from 1975 to 1986. He subsequently developed malignant mesothelioma. Medical
evidence attributed the onset of disease to asbestos exposure in the course of employment
with the insured company. The company was later dissolved, in 1996.
The Letter of Claim was sent to the claimant, on 17 March 2010, asserting that asbestos
exposure had occurred throughout the 10 year employment period. The schedule of loss,
served in 2010, claimed special damages of around £110,000
The claimant had only provided EL insurance cover for the last 6 months of the
mesothelioma victim’s employment. However, it was obligated, under s.3 of the
Compensation Act 2006, to indemnify the company for the claim in its entirety,
notwithstanding the fact that there had been other EL insurance cover during the relevant
employment period.
The premise of the 2006 Act provision was to implement the House of Lords ruling of Fairchild
v Glenhaven Funeral Services Ltd [2002] UKHL 22, by which employers are liable for 100%
of losses in asbestos-related case law.
An offer to settle was accepted by Mr Merritt on 17 January 2011 for a figure of around
£173,750 (inclusive of damages and costs). This was broken down, as follows:
£124,250 to Mr Merritt;
£23,700 to the Compensation Recovery Unit; and
£25,800 in legal costs.
The claimant later conducted ELTO searches, which were not available at the date of
settlement. These revealed that Aviva provided the company with insurance cover from
October 1975 to June 1979, while the defendant provided insurance cover from April 1981
to March 1983.
It therefore sought proportionate contribution of settlement from the two other identified
insurers, on a Fairchild basis. The claimant derived that it had an equitable right to
contribution. It is worth noting that this was not a typical contribution claim for so-called
Double insurance, wherein two insurers provided cover for the same insured for same
relevant risk over the same time period and liability would be apportioned equally among
insurers.
Calculated contributions, which excluded employment periods with no identified insurer,
equated to:
Aviva – 60% of the total settlement.
Generali – 32% of the total settlement.
RSA – 8% of the total settlement.
Aviva agreed to pay the calculated contribution. The defendant, on the other hand,
refused. As such, the claimant commenced proceedings against the defendant for an
equitable contribution of settlement, or such sum as the court considered just and equitable.
The defendant argued that an entitlement to contribution is afforded by s.1(1) of the Civil
Liability (Contribution) Act 1978.
Further, the right to a contribution, for the purposes of the 1978 Act, ‘does not create new
rights of contribution but simply regulates existing rights of contribution’.
PAGE | 4
Section 7(3) of the 1978 Act states that the entitlement to recover contribution ‘supersedes
any right, other than an express contractual right, to recover a contribution (as distinct from
an indemnity) otherwise than under this Act in corresponding circumstances ...’
As such, the defendant submitted, as follows:
‘... if there was an equitable right to recover a contribution prior to the 1978 Act coming into
force, then such a right is a right to recover a contribution “in corresponding circumstances”
and in consequence any such right is replaced by the right to pursue a claim under Section
1(1) the 1978 Act’.
Therefore, the defendant contended that the claim for contribution, issued on 13 January
2017, was statute barred under s.10(1) of the Limitation Act 1980. If this interpretation of the
1978 Act was accepted by the court, the 2 year limitation period for the recovery of an
equitable contribution would have expired.
In the alternative, if its limitation defence were to fail, the defendant argued that the
claimant’s settlement sum should be put to the test of reasonableness.
The claimant, by contrast, submitted that the wording of s.6 of the 1978 Act infers that the
target of statutory contribution claims is ‘a person who is, or would be obliged to compensate
the original victim’.
However, it argued ‘rather that Generali is liable to contribute in equity towards the sum that
RSA has paid to Mr Merritt, pursuant to the indemnity that RSA gave to the Company’.
On this basis, the claimant’s action did not fall within s.1(1) of the 1978 Act. As a result, s.7(3)
does not bring all contribution claims within the statutory regime.
The Limitation Issue – Debt or Damages
Claimant and defendant counsel, having interpreted the Law Commission report on the
purpose of the Civil Liability (Contribution) Act 1978, came to an agreement that if the
equitable contribution claim was a claim sounding in debt, then it was not covered by s.1(1)
of the Act. This was the decision reached in the case of Hampton v Minns [2002] 1 WLR 1. By
contrast, if the equitable contribution claim was a claim sounding in damages, then it was
covered by s.1(1) of the Act and therefore subject to a 2 year limitation period.
One of the main reasons given by the Law Commission for not recommending a change to
the rights of contribution sounding in debt was that there was little evidence of injustice being
caused. In contribution claims sounding in damages, there was sufficient evidence.
In the case of IEG v Zurich Insurance [2015] UKSC 33, discussed in BC Disease News (here),
the identified insurer was on risk for 6 out of 27 years of asbestos exposure, which resulted in
the claimant’s mesothelioma diagnosis.
Was IEG’s contribution limited to its proportion of cover?
This case was subject to Guernsey’s jurisdiction. As a result, 100% joint and several liability,
under the Compensation Act 2006, did not apply. The Supreme Court Justices did, however,
provide obiter commentary on what the
likely decision would have been, had the
case been heard in the UK.
Lord Mance, who enjoyed majority support
for his speech, was of the mind that the
1978 Act did not apply:
‘It suffices to say that, if insurance contract
liabilities are viewed as sounding in
damages, it appears somewhat surprising if
the 1978 Act could operate as an
alternative statutory remedy with different
effect in a case of true double insurance in
respect of post – commencement
liabilities’.
Lord Sumption, on the other hand, opined
that the 1978 Act did apply:
‘The class of persons “liable in respect of
any damage suffered by another” may
include those liable in contract, and there
is no reason to limit it to those who have
themselves caused the damage, as
opposed to those who have assumed a
contractual lability in respect of it … on the
footing that (contrary to my opinion) the law
treats each insurer as liable for the whole
loss in each period of insurance, then it
must necessarily have been the same
damage … It would require some
considerable development of traditional
concepts of double insurance to
accommodate a situation like the present
one …’
He argued that a ‘contract of indemnity
gives rise to an action for unliquidated [(to
be proved)] damages, arising from the
failure of the indemnifier to prevent the
indemnified person from suffering
damage’.
HHJ Rawlinson made it clear that his
decision did not involve ‘choosing between
the speeches of Lord Mance and Lord
Sumption in IEG’, as they were obiter
comments, providing ‘little detail as to the
reasons why they held the views that they
did’.
In reaching his decision, the judge referred
to the cases cited in Goff & Jones – The Law
of Unjust Enrichment (9th Edition) and Lord
PAGE | 5
Goff in Firma C-Trade SA v Newcastle
Protection and Indemnity Association
[1991] 2 AC 1, all of which made it clear
that liability of insurers to indemnify the
insured sounds in unliquidated damages
(Damages Indemnity Liability) rather than in
debt.
Within these cited sources, it was
highlighted that ‘“damages” is used in an
unusual sense that should not be taken
literally because the primary contractual
promise is that the insured shall enjoy “the
right to indemnity by payment of money”’
Claimant counsel argued that Lord Goff’s
judgment was inconsistent with the House of
Lords in Bradley v Eagle Star Insurance Co
Ltd [1989] AC, in that:
‘… until a liability on the part of the
indemnified is established by judgment,
arbitration award or agreement, no legal
obligation falls on the indemnifier … at the
moment that the legal obligation falls on
the indemnifier, the amount of the liability is
ascertained and ought therefore to be
properly regarded as a debt liability …’
In spite of this anomaly, at paragraph 114,
HHJ Rawlinson ruled in favour of the ‘long
line of cases which have decided or
confirmed that the liability arising under an
insurance contract of indemnity is a
Damages Indemnity Liability’.
As such, the judge deemed that the
equitable contribution claim was within the
remit of the 1978 Act and was therefore
statute barred.
Even though it was not necessary to do so,
HHJ Rawlinson briefly rejected the
defendant’s 2nd
limb of defence, namely
that the settlement be put to the test of
reasonableness. The defendant stated that
the level of contribution sought could be
reduced to account for the insurer’s failure
to seek contributions from others.
The judge, however, argued that the ‘broad
equitable approach’ taken in Fairchild was
based on ‘natural justice’ and maintained
that claims should be assessed on a time
on risk basis. Time on risk contribution was
not, according to HHJ Rawlinson
contemplated as a ‘wholesale departure
from the normal rule that contribution
should be made equally’. If it was, there
would be great uncertainty, increasing
costs and time taken to settle rights of
contribution between insurers.
Full text judgment can be accessed here.
Is ‘Fear’ an Actionable
Injury? Kimathi & Ors v
The Foreign and
Commonwealth Office
[2018] EWHC 1305 (QB)
In the recent High Court decision of Kimathi
& Ors v The Foreign and Commonwealth
Office [2018] EWHC 1305 (QB), the
claimants attempted to extend the
definition of an actionable injury. In doing
so, they sought to compel the court to
exercise its ambit of discretion and exclude
the 3 year limitation period, pursuant to s.33
of the Limitation Act 1980.
The claimants, in ongoing Kenyan
Emergency Group Litigation proceedings,
alleged that they had been detained in
Kenyan villages, or detention camps, and
the threat of force compelled them to
remain and also to carry out labour. They
argued that the defendant had been
negligent, causing them to suffer ‘fear’ for a
period of 5 years.
Counsel for the claimants cited Supreme
Court and House of Lords judgments, in an
effort to consolidate their case that ‘fear’
amounted to personal injury.
Firstly, Mr Justice Stewart considered Hicks v
Chief Constable of the South Yorkshire
Police [1992] 2 All ER 65, in which Lord
Bridge stated:
‘It is perfectly clear that fear by itself, of
whatever degree, is a normal human
emotion for which no damages can be
awarded ... It follows that fear of impending
death felt by the victim of a fatal injury
before that injury is inflicted cannot by itself
give rise to a cause of action ...’
Stewart J then cited Rothwell v Chemical
and Insulating Co Ltd [2007] UKHL 39, in
which the claimant argued that pleural
plaques had caused ‘anxiety’.
Lord Hope stated that there could be ‘... no
cause of action because the pleural
plaques in themselves do not give rise to
any harmful physical effects which can be
said to constitute damage, and because of
the absence of a direct causative link
between them and the risks and the anxiety
which, on their own, are not actionable…"
Lord Scott cited further authorities in
Rothwell:
‘... In Page v Smith (1995)…, a case about
a psychiatric illness caused by a motorcar
accident…, Lord Lloyd of Berwick said that
"personal injuries include any disease and
any impairment of a person's physical or
mental condition". In Cartledge v E Jopling
& Sons Ltd (1963)… this House held that a
physical condition caused by a negligent
act or omission had to reach a certain
threshold "beyond the minimal" in order for
it to constitute an injury for which damages
in tort could be claimed’.
He also cited ‘... Lord Wensleydale in Lynch
v Knight (1861)… said that "mental pain or
anxiety the law cannot value, and does not
pretend to redress, when the unlawful act
contained of course is that alone ... where
a material damage occurs, and is
connected with (the mental pain or
anxiety), it is impossible a jury, in estimating
it (i.e. the material damage), should
altogether overlook the feelings of the party
interested." So, anxiety simpliciter cannot
constitute the damage necessary to
complete the tortious cause of action; but
if there is some such damage the fact of the
anxiety can enhance the amount of
damages recoverable’.
Stewart J then went on to discuss the recent
decision of Dryden v Johnson Matthey
[2018] UKSC 18, which was distinguished
from Rothwell. In Dryden, the Supreme
Court Justices considered whether platinum
PAGE | 6
salt sensitisation constituted an actionable injury.
Lady Black, giving judgment, said that ‘the terms "physical injury" and "personal injury" tend to be used interchangeably in the authorities
... and this is reflected in this judgment, there being no psychiatric injury to complicate the matters’.
Discussing the threshold for actionable injury, she went on to say that:
‘The physiological changes to the Claimants' bodies may not be as obviously harmful as, say loss of a limb, or asthma
or dermatitis, but harmful they undoubtedly are’.
On reflection of the case law on actionable injury, Stewart J applied the law to the facts. Does ‘fear’ amount to a cause of action in a
personal injury claim? At paragraph 24, the judge summarised the claimant’s submissions, which appeared to have been influenced by
Dryden:
‘The Claimants say that fear is not symptomless or hidden. The Claimants felt fear and it was intended that they should
do so in order to secure compliance with orders. Fear also provokes physical change albeit transitory and there is an
identifiable physiological effect: the release of adrenaline, an increase in blood pressure and an increase in heart
rate. Once the threat ceases, physiological markers return to normal, but the changes are felt by the person
concerned. Fear, they say, is unpleasant and made the Claimants appreciably worse off and compelled behaviour
which would otherwise be different. It also results, or can result, in impairment of normal daily function and is not
negligible’.
However, Stewart J observed, at paragraph 25:
‘None of these submissions, in my judgment, changes the position clearly founded in the authorities that anything short
of a recognised psychiatric condition cannot amount to a personal injury’.
Claimant counsel submitted that the bar is set low for actionable physical injury and there was no reason to differentiate psychological
symptoms. It is therefore worth noting additional comments, raised by Stewart J, at paragraph 31:
‘The use of the word fear covers a very wide spectrum ... looking at the evidence set out above, his fear was a
background fear, rather than one giving rise to physiological change; alternatively, that physiological changes are
likely to have been de minimis. In his case, and potentially those of other Test Claimants, even if I drew the line at the
point where the Claimants ask me to draw it, success may be very limited’.
Therefore, if the ‘traditional definition of "personal injuries"’ were to be extended, it would be ‘extremely wide ranging’ and have ‘numerous
substantial consequences across the law of tort’.
Given the judge’s finding that ‘fear’ does not amount to a personal injury, a tortious claim in negligence could not be brought. This was a
tortious claim based on trespass to the person and was actionable per se (required no proof of damage).
In his concluding statements, Stewart J found in favour of the defendant, at paragraph 37, that the ordinary limitation period for tortious
actions applied:
‘Despite the comprehensive and innovative submissions of the Claimants, it has been clearly and authoritatively
determined that fear alone does not amount to a personal injury. Claims based on fear are subject to a six-year time
limit. The provisions of ss.11, 14 and 33 of the Limitation Act 1980 have no application to them’.
Full text judgment can be accessed here.
PAGE | 7
Does QOCS Apply When Only Part of a Claim is for Personal Injuries? Brown v
The Commissioner of Police for the Metropolis & Another (2017)
At first instance, in the case of Brown v The Commissioner of Police for the Metropolis (2017), His Honour Judge Luba considered whether
the claimant benefited from qualified-one-way costs shifting (QOCS) protection, where it brought an action including both personal injury
and non-personal injury aspects. An appeal of the first instance decision is expected to be heard in June of 2018.
The claimant brought a claim on four separate causes of action and sought to recover its costs from the defendants. However, the
defendants sought to circumvent a costs Order of this nature, on the basis that QOCS did not apply, based on the facts of the case.
CPR 44.13 discusses the proceedings in which QOCS applies:
At the County Court, counsel for the claimant submitted that the entirety of the actions brought against the defendants were encapsulated
within the definition of CPR 44.13(1)(a), namely that the claim was for damages for personal injuries.
In any event, counsel for the defendants submitted that the Court may grant permission for a different consequence, under the exception
to QOCS, afforded by CPR 44.16(2).
PAGE | 8
Did the exception, pursuant to CPR
44.16(2)(b), apply?
In answering this question, HHJ Luba
hypothesised, at paragraph 17:
‘One would envisage a number of
circumstances or situations in which in
addition to bringing a claim for damages
for personal injury, a Claimant includes in
the same action other claims. Alternatively
and additionally, one can envisage a case
in which a Claimant brings two separate
sets of proceedings against the same
Defendant, one of which is a claim for
damages for personal injury and the other
is not, which claims come to be
consolidated. Such a case may be a case
in which the pre-condition in 44.16(2)(b) is
satisfied’.
Then, at paragraphs 18 and 19, the judge
went on to consider whether the facts of
Brown fell within this pre-condition.
‘As I have already indicated, pleadings
against both Defendants incorporate four
heads or causes of action. If any one of
them does not include a claim for personal
injury damages, then it might be arguable
that the terms of 44.16(2)(b) are met. It
seems to me, however, that on a
consideration of the pleaded case here,
set out in the Statement of Case advanced
by the Claimant against each of the two
Defendants, what is alleged is that the injury
has followed as a consequence of each of
the four matters ...
It is not a case, for example, in which there
has been included a separate claim for
some other form of damage for loss arising
in consequence of that claim alone. It
seems to me in those circumstances, on the
facts of these particular cases, that the
exceptions in CPR 44.16 on which the
Defendants would seek to rely if matters
came to that point, is not in fact available’.
In this instance, HHJ Luba deemed that the
claimant was protected by QOCS
‘because the pre-condition to any
exception for which the Court’s permission
is required ... [was] ... not satisfied’.
The first instance judge appears to have
differentiated between claims where
personal injuries stem from multiple heads
of a pleaded case, in which QOCS will
apply, and claims where separate heads of
a pleaded case bare no relationship with
injurious losses, where defendants may
successfully argue that QOCS should be
disapplied.
A copy of the first instance judgment can
be accessed here.
We will consider the ruling on appeal in due
course.
Fundamental
Dishonesty – 2 Recent
Judgments: Molodi v
Cambridge Vibration
Maintenance Service &
Anor [2018] EWHC 1288
(QB) and Richards &
Anor v Morris [2018]
EWHC 1289 (QB)
Two appeals have recently been heard in
the appellate High Court, concerning the
credibility of claimants and findings of
fundamentally dishonesty, under s.57 of the
Criminal Justice and Courts Act 2015:
Molodi v Cambridge Vibration
Maintenance Service & Anor [2018] EWHC
1288 (QB); and Richards & Anor v Morris
[2018] EWHC 1289 (QB). Both cases were
heard by Mr Justice Martin Spencer and
both involved road traffic accidents.
In this article, we examine what types of
misconduct can result in fundamental
dishonesty findings. Strike out applications,
in personal injury cases, were explained in
detail in the LOCOG v Sinfield [2018] EWHC
51 (QB) judgment, which we discussed in
edition 216 (here).
Molodi v Cambridge Vibration
Maintenance Service & Anor [2018] EWHC
1288 (QB)
In this case, the defendant argued that the
claimant was unreliable as a witness
because of the following:
‘The contradiction between the
CNF and the Claimant's evidence
...;
The CNF stated that the Claimant
had no rehabilitation needs when
the Claimant then made a claim
for 12 sessions of physiotherapy;
The Claimant's assertion that he
had time off work in his evidence
when the CNF stated there was no
time off work and the fact that the
Claimant had made no claim for
loss of earnings despite stating in
his witness statement at paragraph
15 that as a result of the accident
he had been unable to work his
normal hours for about two weeks
and for three days after the
accident did not work at all;
The fact that the Claimant told his
medical expert that he had only
had one previous accident,
confirmed in his witness statement
at paragraph 18 when in fact he
had been involved in at least four
previous accidents and probably
more, possibly as many as seven
... previous accidents.’
The trial judge, HHJ Main QC, ruled that the
claimant was not fundamentally dishonest,
but was an inconsistent witness. The
defendant appealed the decision and the
case was overseen by Mr Justice Spencer.
Spencer J, at paragraph 45, stated that the
trial judge had:
‘... adopted a much too benevolent
approach to evidence from a claimant
which could be demonstrated to be
inconsistent, unreliable and, on occasions,
simply untruthful’.
PAGE | 9
He went on to state that, in disclosing to the
medical expert that he was only involved in
one incident factually relevant to the
present case, this constituted a ‘glaring’
example of a ‘clear lie’. This lie had been
maintained in a witness statement,
alongside a statement of truth.
Lying to the medical expert was pertinent to
the claim in question and affected
‘fundamental questions of causation’. At
paragraph 47 of the judgment, Spencer J
provided other examples of dishonesty,
such as:
Fundamental inconsistencies
between the claimant’s witness
statement, evidence and the CNF;
Inconsistencies in respect of the
claimed period of recovery; and
Undergoing more physiotherapy
than was medically necessary.
Counsel for the defendant argued that the
claim should be dismissed, because the
claimant was fundamentally dishonest,
pursuant to s.57 of the Criminal Justice and
Courts Act 2015.
Spencer J agreed, following the case of
LOCOG v Sinfield [2018] EWHC 51 (QB). The
judge overturned the 1st instance decision.
Richards & Anor v Morris [2018] EWHC 1289
(QB)
The case of Richards was factually similar to
Molodi. The defendant appealed the 1st
decision, in which the claimants were
awarded damages.
At 1st instance, HHJ Main QC did not make
a finding of fundamental dishonesty,
despite remarking that one of the
claimant’s evidence was ‘hopelessly
inconsistent’. Spencer J, presiding over this
case, criticised HHJ Main QC for another
benevolent display. He reasoned that the
claimants’ evidence was ‘inconsistent’,
‘unreliable’ and ‘on occasions, downright
untruthful’. Further, he was wrong to accept
evidence after using the adverb
‘hopelessly’ to qualify how inconsistent the
claimant had been.
At paragraph 67, Spencer J summarised
that the claimants had:
Exaggerated medical
treatment and injuries;
Provided inaccurate
information to the medical
expert about previous
medical history and
accidents;
Included false information in
the CNF; and
Adduced an unsustainable
schedule of loss.
Spencer J dismissed the claim on the basis
that the judge should have found that the
claimants had failed to prove their case.
There was no fundamental dishonesty
ruling.
Part of the reasoning given for this was that
he had ‘not seen or heard the Claimants for
myself, nor had an opportunity to assess
them as witnesses’. The judge also
reasoned that, at the appellate level, he
did not have sufficient evidence to make
the finding of fundamental dishonesty,
where HHJ Main QC did, but erred in not
doing so.
Molodi and Richards demonstrate how
unreliable claimants, who give inconsistent
witness evidence, can influence a
fundamental dishonesty decision. The
claimant in Molodi was dishonest through
omission. They failed to disclose relevant
information to the medical expert. The
claimants in the Richards could have been
deemed dishonest through positive action.
They provided inaccurate and
exaggerated factual information to the
medical expert.
The full text judgment of Molodi can be
found here
The full text judgment of Richards can be
found here.
Liability When Risk
Assessments Are Not
Heeded: CC v Leeds
County Council [2018]
EWHC 1312 (QB)
In the recent case of CC v Leeds County
Council [2018] EWHC 1312 (QB), Mr Justice
Turner provided guidance on the effect of
improperly conducted risk assessments on
findings of breach of duty and causation.
A personal injury action was commenced
against the occupier of premises, on which
an accident took place. The interior of the
premises was dim and set on multiple
levels. The claimant alleged the defendant
had been negligent and was successful at
first instance.
On appeal, before Turner J, the defendant
argued that the first instance judge had
erred in finding breach of duty on evidence
unrelated to the practicability of
preventative measures. Further, the judge
had failed to identify any breach which was
potentially causative of the claimant’s
injuries.
On breach of duty, Turner J stated that:
‘... courts must, in cases such as this, resist
the lure of hindsight bias as a result of which
events known to have occurred are judged
to have been more predictable than they
actually were’.
In this instance, the defendant had
prepared a risk assessment four months
prior to the accident. The assessment
identified a risk of tripping and insisted that
visitors should be warned about the
potential to trip over ridges, as a control
measure. Members of supervisory staff,
however, disclosed no risk of tripping in the
health and safety script. Given the lack of
warning, Turner J reasoned:
‘A failure to implement a control measure in
a formal risk assessment will not inevitably
connote a breach of duty in negligence
PAGE | 10
but in most cases it is likely to go a very
considerable way towards it’.
On causation, the judge analysed that the
judge at first instance had made a positive
finding that ‘the failure to warn was a free
standing cause of the accident in the "but
for" sense’. The defendant was unsuccessful
in contesting the sustainability of this
argument.
As such Turner J dismissed the appeal on all
grounds.
Full text judgment can be found here.
Disability in Military
Personnel With Mental
and Physical Disorders
A new study has discussed how mental and
physical disorders contribute towards
disability in Canadian military personnel.
Millions of military personnel have been
exposed to the risk of developing mental
and physical disorders after serving in
recent and ongoing conflicts in Southern
Asia. The researchers therefore hoped to
gain understanding of how these disorders
relate to disability.
Past studies have tended to focus on
subsets of the military population (e.g.
deployed personnel), single out observed
health conditions (e.g. traumatic brain
injury), or isolate disability outcomes (e.g.
medical discharge).
The objective of the current study, however,
was to assess the effect of many different
disorders on disability, in a broad military
population.
All 6,696 participants had taken part in the
2013 Canadian Forces Mental Health
Survey. The assessment was devised by the
World Health Organisation (WHO), and
considered cognition, mobility, self-care,
getting along, life activities and
participation in society.
Disability, for the purposes of the
assessment, was classed as either ‘no/mild
disability’ or ‘moderate/severe disability’.
The participants were asked which mental
and physical disorders they had been
diagnosed with, by a health professional,
lasting longer than 6 months.
Mental disorders investigated, included:
Mood disorders (depression,
bipolar/mania, and dysthymia),
Anxiety disorders (phobia,
obsessive-compulsive and panic);
and
Post-traumatic stress disorder
(PTSD).
Chronic physical disorders investigated,
included
Asthma;
Fibromyalgia;
Arthritis;
Back pain;
Other chronic musculoskeletal
problems;
Hypertension;
Migraines;
Diabetes; and
The after-effects of traumatic brain
injury (TBI).
The average disability score was in the
lower end of the ‘mild’ disability range.
Chronic physical conditions, reported by
53% of participants, were more common
than mental disorders, reported by 13%.
However, a greater percentage of those
with mental disorders (35%) had
‘moderate/severe’ disability, compared to
those with physical disorders (17%). The
most prevalent ‘moderate/severe’ disability
was found in those with ‘other mood
disorders, PTSD and depression’. Among
the chronic physical conditions
investigated, those with the highest
prevalence of ‘moderate/severe’ disability
had developed ‘fibromyalgia, TBI, and
arthritis’.
The overall prevalence of
‘moderate/severe’ disability was 10%.
Women, older members, and senior non-
commissioned members had higher
prevalence of ‘severe’ disability.
Overall, the disorders that made the
greatest contributions to disability were
‘chronic musculoskeletal problems, back
problems, mood disorders and PTSD’.
Mental disorders accounted for 27% of the
burden of ‘moderate/severe disability’,
while physical conditions accounted for
62%. Of the chronic physical conditions,
back problems or other chronic
musculoskeletal problems resulted in the
vast majority of ‘moderate/severe
disability’, due to the high prevalence of
these disorders.
Around 10% of participants reported
having both physical and mental disorders.
An interaction between mental and
physical disorders was noted. The
researchers found that those suffering from
mental health conditions experienced
greater disability from a physical condition
compared to those without mental health
conditions.
In addition, those with both mental and
physical disorders were more likely to report
disability than those suffering with a single
condition. Indeed the likelihood was
greater than the cumulative risk of both
disorders. Generally speaking, this
relationship was strongest in back disorders
and other chronic musculoskeletal
patients, who also had mental disorders.
However, the study had some limitations.
For example, the researchers assumed that
the disorders preceded the disability, on
the premise that, in all cases, the disabilities
were caused by the disorders. This is a
potentially troublesome assumption to
make, however, as not all disabilities can
be attributed to an existing mental or
physical disorder. Also, the analysis did not
differentiate between occupational and
non-occupational health problems.
Potentially, some participants’ disabilities
were related to conditions which were not
considered by the authors of the study, or
alternatively, undiagnosed conditions.
In conclusion, the researchers advised that
methods of disability prevention and
control in military personnel should focus on
chronic musculoskeletal conditions, back
problems, mood disorders and PTSD.
PAGE | 11
References
1 Beliveau, P. J. H., Boulos, D. & Zamorski, M. A. Contribution of mental and physical disorders to disability in military personnel. Occup
Med (Lond) doi:10.1093/occmed/kqy066 <https://academic.oup.com/occmed/advance-
article/doi/10.1093/occmed/kqy066/4999683> (Accessed 27 May 2018)
PAGE | 12
CONTENTS
PAGE 12
Welcome
PAGE 13
Fundamental Dishonesty Post-
Discontinuance: Alpha
Insurance A/S v Roche & Anor
[2018] EWHC 1342 (QB)
PAGE 14
Insurance Industry Encouraged
to Contribute in Proposed
Recovery of Medical Costs for
Industrial Disease (Scotland) Bill
Consultation
Keytruda Offers Benefits for Lung
Cancer Patients in Another Trial
PAGE 15
New Study on the Risk of Non-
Melanoma Skin Cancer in
Outdoor Occupations
Ticks Repelled by Insecticide-
Treated Fabric in Latest Study
PAGE 16
Research Associates High Levels
of ‘Screen Time’ With Cancer
and Heart Disease
How Does Chemical Exposure in
Asphalt Road-Paving Affect
Lung Function?
PAGE 17
Fibromyalgia Contribution to
Burden of Ill Health
PAGE 18
Feature:
Future Hearing Assistance
Claims: The McShefferty Papers
Welcome
Welcome to the 233 edition of BC Disease News.
In this week’s edition, we examine the appeal judgment of Alpha Insurance A/S v
Roche & Anor [2018] EWHC 1342 (QB) dealing with fundamental dishonesty and
QOCS protection where the claimant discontinued 1 day before trial.
In addition, we report on the Recovery of Medical Costs for Industrial Disease
(Scotland) Bill consultation, which will close later this month. Members of the
insurance industry have been urged to provide responses.
Elsewhere, there are more positive results in non-small lung cancer Keytruda
treatment trials.
In this week’s feature, we discuss the relevance of the McShefferty papers in NIHL
claims, which measured the increase in speech to noise ratio necessary to
produce ‘noticeable’ and ‘meaningful’ differences in speech intelligibility. We go
on to explain how the researchers’ findings could have an impact on future
hearing aid claims.
Any comments or feedback can be sent to Boris Cetnik or Charlotte Owen.
As always, warmest regards to all.
SUBJECTS
Fundamental Dishonesty and QOCS – Recoverable NHS Costs Bill – Keytruda and
Non-Small Lung Cancer – Non-Melanoma Skin Cancer and Outdoor Work – Ticks
and Insecticide – Screen Time, Cancer and Cardiovascular Disease –
Fibromyalgia and Non-Rheumatological Conditions – Road Paving and Lung
Disease – McShefferty Papers.
PAGE | 13
Fundamental
Dishonesty Post-
Discontinuance: Alpha
Insurance A/S v Roche
& Anor [2018] EWHC
1342 (QB)
At the High Court, judgment has been
handed down in the case of Alpha
Insurance A/S v Roche & Anor [2018] EWHC
1342 (QB). This concerned an appeal to the
High Court, on the basis that the trial judge
had erred in not allowing a further hearing
on fundamental dishonesty.
The facts of the case were as follows. The
defendant disputed that the 2nd
claimant
was present at the scene of a road traffic
accident. The defendant alleged
fundamental dishonesty. It was argued that
the 2nd claimant was pursuing a fraudulent
claim, whilst the 1st claimant’s claim was
‘tainted’ with dishonesty.
Just 1 day before the 1st instance trial, a
Notice of Discontinuance was filed.
Nonetheless, the defendant requested that
the trial remain listed, with a view to
obtaining a determination on the issue of
fundamental dishonesty.
At trial, HHJ Gregory rejected the
application.
He began his reasoning by stating that CPR
38.2(1) permits:
‘A claimant may discontinue all or part of a
claim at any time.’
The trial judge perceived ‘any time’ to
encompass the filing and serving of a
Notice of Discontinuance.
Ordinarily, under CPR 38.6(1), the default
burden on costs is shifted post-
discontinuance, such that claimants are
made liable for the defendant’s costs up to
the date of discontinuance. However, this
was a case where QOCS applied. As a
result, the defendant required leave of the court to enforce such an order.
Exceptions to QOCS can be found in CPR 44.16, an example of which is where there has
been fundamental dishonesty.
The defendant’s case on fundamental dishonesty was encapsulated within CPR 44PD
12.4©:
Following the Practice Direction, HHJ Gregory reasoned:
‘…there is nothing, in my judgment, which suggests that there is any particular exceptional
quality about this particular case that should cause me to give further directions and to set
aside further court time to allow this particular isolated issue of dishonesty to be ventilated.’
The defendant appealed the decision of the 1st instance judge.
In its grounds of appeal, the defendant argued that HHJ Gregory’s ruling was perverse and
that he had failed to provide any weight to his reasoning. The main basis for exhausting the
appeal, however, was that it was in the interest of the public to maintain the integrity of the
legal system and ensure that claimants pay the costs of litigation if they are exposed as
dishonest. Further, the defendant submitted that more emphasis should have been put on
the ‘eleventh hour’ discontinuance, and less emphasis on the use of court resources to
determine the issue on fundamental dishonesty.
However, the claimant argued that the judge’s ambit of discretion, at case management,
although unfettered, is still subject to the overriding objective.
Mrs Justice Yip, who gave judgment on appeal, found that HHJ Gregory had made an error
in suggesting that CPR 44PD 12.4(c) only applies if there is a ‘particular exceptional quality’:
‘The relevant sub-section does not require exceptionality’.
Therefore, the ‘correct approach is to regard the discretion under CPR 44PD 12.4(c) as an
unfettered one, requiring the weighing of all relevant considerations in accordance with
the overriding objective’.
Consistent with recent case law on fundamental dishonesty, also in relation to strike out
applications under the Criminal Justice and Courts Act, the appeal judge maintained that
‘each case will depend on its own facts’ and exercised her discretion afresh.
She professed that ‘the very late stage at which the claim was discontinued and the
complete absence of an explanation from the claimants’ were factors to consider. She
believed that an explanation for discontinuing should be reasonably expected of
claimants, given that there are many reasons for discontinuing. Also, she saw that the
expense, inconvenience and use of court resources was an important consideration.
PAGE | 14
On this occasion, Yip J allowed the appeal:
‘On balance, looking at all the
circumstances of this case, I consider that it
is reasonable for the defendant to be given
the opportunity to put forward its evidence
and to test the claimants' evidence on the
issue of fundamental dishonesty.
I do not say that a decision in this case not
to direct the determination of the
fundamental dishonesty issue would be
perverse. I regard the position as quite
finely balanced. The defendant's case may
well not succeed. It all depends on an
assessment of disputed factual evidence.
For my part, any reasonable explanation
for the late discontinuance may well have
tipped the balance the other way’.
We will endeavour to report on the
redetermination of the disputed factual
evidence in due course.
The full text judgment, on appeal, can be
found here.
Insurance Industry
Encouraged to
Contribute in Proposed
Recovery of Medical
Costs for Industrial
Disease (Scotland) Bill
Consultation
We last discussed the Recovery of Medical
Costs for Industrial Disease (Scotland) Bill
proposal in edition 226 (here), which would
‘enable Scottish Ministers to recover, from
the party responsible for causing an
industrial disease, certain costs incurred by
the NHS in providing care and treatment to
those suffering from that disease’.1
Diseases contemplated by the Stuart
McMillan MSP’s draft Bill, would be mirrored
on diseases which entitle Industrial Injuries
Disablement Benefit (IIDB), including:
Asbestos-related conditions;
Skin conditions;
Respiratory conditions;
Deafness; and
Asthma.
In addition, recovery would only be
possible if exposure to occupational
hazards, responsible for the onset of the
industrial disease, occurred after the
commencement date of the Bill.
The consultation began on 29 March 2018
and ends on 22 June 2018. The foreword of
the consultation states that its aim is to ‘elicit
views from experts, industry, the public
sector and individuals and insurers’.
As such, the insurance industry has been
encouraged to contribute to the debate,
as the consultation draws to a close later
this month.2
After consultation responses are analysed,
a final proposal will be launched in the
Scottish Parliament. If at least 18 other MSPs
from at least half of the political parties
represented in the Parliamentary Bureau
show support for the Bill proposal, a
Member’s Bill will be introduced. This would
be subject to a 3-stage scrutiny process of
amendment or rejection, prior to becoming
an enforceable Act of the Scottish
Parliament.
Click here to respond to the consultation.
Keytruda Offers Benefits
for Lung Cancer
Patients in Another Trial
Merck, the manufacturer of the
immunotherapy drug pembrolizumab
(trade name Keytruda), has announced the
results of another clinical trial, finding that
the drug offers benefits to non-small cell
lung cancer (NSCLC) patients3. Keytruda
has now demonstrated improved survival
benefit in advanced NSCLC patients in 5
phase-3 trials.
We have discussed the relationship
between Keytruda in lung cancer patients
in editions 227, 215 and 186. We have also
discussed the relationship between
Keytruda and mesothelioma in editions
214, 208, 200, 189 and 176.
In the latest trial, involving 560 patients,
known as KEYNOTE-407, Keytruda was given
in combination with chemotherapy drugs
(either carboplatin-paclitaxel or nab-
pacitaxel) as the first line treatment for
NSCLC. The patients had not received any
prior treatment for their cancer.
An interim analysis has found that treatment
with Keytruda in combination with
chemotherapy resulted in significantly
longer overall survival and progression-free
survival than chemotherapy alone.
Merck has reported the findings to the Food
and Drug Administration and applied for
the drug to be approved for use in NSCLC
patients under the combination treatment
plan in the KEYNOTE-407 trial. Keytruda is
already approved by the FDA for first line
use in NSCLC patients in combination with
the chemotherapy drugs, pemetrexed and
carboplatin4. It has also been approved for
use in patients with solid tumours that have
certain genetic properties which have
spread and cannot be completely
removed by surgery and in situations where
the tumour has progressed following prior
treatment5.
The main objectives of KEYNOTE-407 were
to measure patient survival time and time
without disease progression. More details
of the results from the trial will be presented
at the American Society of Clinical
Oncology meeting, later this year.
As previously stated in BC Disease News
(here), in respect of KEYNOTE-189, the use
of Keytruda in lung cancer patients is of
interest to the mesothelioma community
because NSCLC has similar characteristics
to mesothelioma. Keytruda has also shown
promise in mesothelioma patients, but
remains an expensive experimental
treatment at this stage.
PAGE | 15
New Study on the Risk of
Non-Melanoma Skin
Cancer in Outdoor
Occupations
Non-melanoma skin cancer (NMSC) is the
most common cancer worldwide. Exposure
to ultraviolet light from the sun is known to
be a risk factor and thus, NMSC is
recognized as an occupational disease in
several countries6. Workers most at risk are
those who work outdoors and those who
work in the agriculture, construction and
transportation industries. A new study has
found that workers in different industries
face different risks of NMSC7.
Farmers, gardeners, mountain guides, and
office workers participated in the study; the
office workers formed the control group.
The participants completed a
questionnaire, in which they provided
information about their UV exposure and
how they protect themselves from UV. All
test subjects underwent a skin examination
conducted by a dermatologist. In total,
data was collected from 348 outdoor
workers and 215 indoor workers.
NMSC or actinic keratosis (damage to the
skin caused by the sun) was diagnosed in
33.3% of mountain guides, 27.4% of
farmers, 19.5% of gardeners and 5.6% of
indoor workers. The differences between
the outdoor occupations were statistically
significant. Mountain guides were at a risk
of NMSC 2.6 times greater than the risk
posed to farmers.
There were also measurable differences in
protective behavior among the study
groups: 61.4% of indoor workers attended
skin cancer screening, compared with
57.8% of mountain guides, 31.9% of
farmers and 27.6% of gardeners. In
addition, researchers noted that daily
occupational UV exposure varied from
group to group.
The authors of the study concluded that
different outdoor professions have
significantly different risks of NMSC and
demonstrate different protective
behaviours. Efforts to prevent NMSC could
be tailored to different occupational
groups, tailored to their particular needs.
Lead author, Dr. Alexander Zink, of the
Technical University of Munich, said
‘Altitude and number of hours working
outside seem to make the difference’.8
This study could be of interest to the current
No Time To Lose campaign, launched by
the Institution of Occupational Safety and
Health. The campaign provides resources
to employers, with the objective of
reducing the numbers of cases of
occupational cancers9. Skin cancer
caused by occupational UV radiation is
one of the main focuses of the campaign
and efforts have been made to target
particular occupational groups, such as
those in the agricultural and construction
industries10
.
Ticks Repelled by
Insecticide-Treated
Fabric in Latest Study
In the USA, new research, conducted by the
U.S. Centers for Disease Control and
Prevention (CDC), has found that treating
‘Insect Shield fabrics’ with permethrin, an
insecticide, reduces the risk of tick
exposure.11
Results were published in the
Journal of American Entomology.12
In edition 227 of BC Disease News (here), we
reported that the number of Lyme disease
cases, in England and Wales, has
increased steadily since 2001, but
decreased between 2012 and 2014.
Figures, published by Public Health England
in February 2018, showed that in each
quarter of 2017, the number of cases of
Lyme disease was greater than the
corresponding quarter in 2016. In 2017,
there were around 1,500 laboratory
confirmed cases of Lyme disease.
The latest CDC study involved treating
clothing with an insecticide, permethrin,
which is derived from the chrysanthemum
flower.
In 2011, Thomas Mather, Director of the
University of Rhode Island's Center for
Vector-Borne Disease, conducted research
on the effects of permethrin on tick activity.
The test subjects in Mr Mather’s research
wore permethrin-treated and untreated
clothes (shorts, t-shirts, socks, and shoes) for
2 hours, while they were exposed to
pathogen-free ticks. The result of this
investigation was that those wearing
treated clothes had been bitten by fewer
live ticks.
Evidence of contact irritancy and toxicity of
permethrin, therefore, has been known to
experts for some time.
In the 2018 study, researchers discovered
that the effect of permethrin was to repel
three types of Lyme disease-causing tick
(Ixodes scapularis, Amblyomma
americanum, and Dermacentor variabilis).
Repellence was observed when ticks fell
from fabric, oriented at a 45 –degree
angle. After up to 5 minutes of contact with
the insecticide, the ticks were immobilized
and unable to bite.
Mr Mather reacted to the CDC study’s
findings, in light of his earlier study:
‘If there’s more evidence that permethrin-
treated clothing works, the hope is that
many more people will use it’.
In fact, the CDC, World Health Organization
(WHO), National Institute for Occupational
Health and Safety (NIOSH), American
Academy of Family Physicians, and Public
Health Agency of Canada has
recommended that insect-repellent
apparel is treated with 0.5% permethrin.
As discussed in issue 227, in Europe, the
most prevalent Lyme disease-causing tick
species is Borrelia burgdorferi. Given that
numbers of Lyme disease cases are rising,
it would be worthwhile to conduct further
research into the effect of permethrin
against the sub-species of ticks which
outdoor and agricultural workers are
exposed to in the UK.
PAGE | 16
Research Associates
High Levels of ‘Screen
Time’ With Cancer and
Heart Disease
Published in a recent Bio Med Central
journal article,13
researchers at the
University of Glasgow have identified that
an increase in discretionary viewing of
television and computer screens almost
doubles the negative effects on human
health as low fitness levels.
The rationale for this study was that
discretionary screen time was thought to be
a contributor to sedentary behaviour, which
is positively correlated with mortality and
cardiovascular disease.
390,089 participants were selected from
the UK Biobank and their behaviours were
analysed. Researchers were only interested
in the amount of time spent watching
screens during the test subjects’ leisure
time. Other factors, such as physical
activity, grip strength, BMI, smoking, diet
and socio-economic status, were also
taken into account.
The test results emphasise that sedentary
behaviour, generally, is detrimental to
human health. The incidence of ‘all-cause
mortality’, cancer and cardiovascular
disease, caused by screen time, was
almost double the attributable risk
presented by low fitness levels.
Lead author of the study, Professor Jason
Gill, stated:
‘Our study shows that the risks associated
with sedentary behaviour may not be the
same for everyone, with the association
between leisure time screen use and
adverse health outcomes being strongest
in those with low levels of physical activity,
fitness or strength. This has potential
implications for public health guidance as,
if the findings are causal, these data
suggest that specifically targeting those
with low fitness and strength to reduce their
sedentary behaviour may be an effective
approach’.14
Somewhat inevitably, Professor Gill implies
that risk factors (screen viewing and low
fitness) are not mutually exclusive, with the
most adverse health effects observed in
participants who spent more time watching
screens and had low levels of physical
activity.
As a result, study author, Dr Carlos Celis,
shared in Professor Gill’s advisory comments
that ‘people with the lowest levels of
strength, fitness and physical activity could
potentially gain the greatest benefit from
health promotion interventions aimed at
reducing sedentary behaviours’.
He went on to say that ‘grip strength is a
quick, simple and cheap to measure, so
could easily be implemented as a
screening tool in a variety of settings’.
How Does Chemical
Exposure in Asphalt
Road-Paving Affect
Lung Function?
A new study has investigated chemical
exposures in asphalt road paving and
monitored the lung function and respiratory
symptoms of affected workers15
. Work with
conventional asphalt or crumb rubber
modified (CRM) asphalt (contains recycled
rubber tyres) were recruited to take part in
the study. Current data on the exposure
conditions of those working in proximity to
asphalt are limited, meaning that it is
difficult to set occupational exposure limits.
The researchers took measurements of dust
and various airborne chemicals at the work
sites, and blood samples from 116
conventional asphalt workers, 51 CRM
asphalt workers and 100 controls.
Spirometry tests were then performed to
determine lung function on Monday
morning before work and on Thursday
evening after work. Participants were also
asked to disclose any respiratory symptoms
suffered.
The air sampling found that levels of dust
and various chemicals were highly
variable, but there were no overall
differences in exposure conditions among
conventional and CRM asphalt workers,
except for benzothiazole, a mucosal
irritant. Concentrations were higher in CRM
asphalt work. Air testing found that
nitrosamines were present during both
conventional asphalt and CRM asphalt
work, and although the presence of
molecules were expected at the site of
CRM asphalt work, the origin of
nitrosamines found at the conventional
asphalt work site is still unknown. This finding
suggests that sources other than rubber
tyres may contribute to workers’ exposure to
nitrosamines.
Moreover, greater proportions of asphalt
workers than controls reported eye
symptoms after starting their current jobs.
The same was found for wheezing and
coughing, but the differences were not
statistically significant and could have
occurred by chance. In both CRM asphalt
workers and controls, lung function
decreased after spending 4 days at work,
but the decrease was not seen in
conventional asphalt workers. On analysis
of asphalt workers alone, there was a weak
increase in change in lung function with
number of years worked.
The design of this study, in which workers
were followed-up after 4 days of work,
provides stronger results than other studies,
as the exposure measurements more
accurately reflect the true exposures. The
researchers tested the participants’ lung
function themselves, which is an objective
measure of lung function, and is more
accurate than participant recollection of
past symptoms and diagnoses. However, a
limitation of this study was that the control
group were gardeners. The researchers
acknowledge that the control group may
have been exposed to organic dusts, which
could have triggered similar symptoms to
chemicals also found in asphalt.
Asphalt workers are exposed to a range of
particles and chemicals, but at highly
varied levels. No acute airway irritation was
observed during the study, but a reduction
PAGE | 17
in lung function was observed after 4 days
of paving and some workers reported a
development of eye symptoms after
starting their job. However, the findings
should be interpreted with caution, as
similar effects were seen in the controls.
Irrespective of higher benzothiazole
exposure in CRM asphalt paving work,
there was no evidence in support of more
adverse health effects in CRM asphalt
paving workers than in conventional
asphalt paving workers.
Fibromyalgia
Contribution to Burden
of Ill Health
‘... physicians should be alert to the
possibility of comorbid FM [fibromyalgia],
and symptoms of FM should be specifically
addressed’.16
In new research, published in the European
Journal of Pain, fibromyalgia was found to
have a negative impact on patients
suffering with both rheumatological and
non-rheumatological conditions.17
Fibromyalgia is a widespread
musculoskeletal pain disorder that
sensitises, or dysregulates general
functioning of the nervous system, resulting
in heightened perception of pain.
Initially, fibromyalgia was considered to be
a uniquely diagnosed disease. However,
fibromyalgia has been observed alongside
rheumatological diseases and is
increasingly seen to coexist with other non-
rheumatological diseases.
In edition 185 (here), BC Disease News
reported that fibromyalgia was correlated
with subjective hearing loss in test subjects.
The latest article, ‘Comorbid fibromyalgia:
a qualitative review of prevalence and
importance’, is one of few studies to-date to
consider how fibromyalgia affects non-
rheumatological primary disease.
In the review, researchers noted that
fibromyalgia occurs in 20% to 30% of
patients with various rheumatic conditions.
In one study, ‘fibromyalgia was found in
21% of patients with rheumatoid arthritis,
37% of patients with systemic lupus
erythematosis and 17% of patients with
osteoarthritis’.
In addition, fibromyalgia cases have been
reported alongside non-inflammatory
musculoskeletal conditions, such as
chronic spinal pain and chronic low back
pain. Indeed, the authors noted that 23%
to 41% of patients with chronic disabling
occupational musculoskeletal disorders
also had fibromyalgia.
Multiple sclerosis (MS), post poliomyelitis
syndrome, neuropathic pain, and
Parkinson’s disease are 4 neurological
disorders with alleged links to fibromyalgia.
However, further evidence is required, in
respect of primary disease outcome, to fully
understand any fibromyalgia association.
There have also been reports of celiac
disease and irritable bowel syndrome (IBS)
occurring with fibromyalgia. However,
reports of gastrointestinal diseases are often
conflicting and this inhibits a general
consensus.
In two separate studies, the review
identified that fibromyalgia was present in
23% of patients with heart failure and in
21% of patients with post-traumatic stress
disorder. Chronic pain, therefore, is not a
prerequisite for fibromyalgia incidence and
nor is the requirement that the primary
disease is physical; it can also be
psychological.
The authors of this latest study concluded
that fibromyalgia may be an unidentified
condition, which occurs among many
different diseases and may contribute to
the overall burden of illness. Coexisting
fibromyalgia can result in less favourable
primary disease outcome, more severe
symptoms and impaired function. Failing to
diagnose fibromyalgia where there is a
primary disease, therefore, may cause a
mismanagement of both conditions.
PAGE | 18
Feature:
Future Hearing Assistance Claims: The McShefferty Papers
In the case of Evans v Secretary of State for the Department of Energy and Climate Change and Anor (Unreported, Cardiff County Court,
2017), the judge primarily dealt with expert differences of opinion on quantification of hearing loss where the claimant alleged a loss of
speech intelligibility as a result of NIHL. We provided case analysis in edition 216 of BC Disease News (here).
In Evans, the defendant’s medical expert, Professor Lutman, cited the McShefferty papers in his medical report, although the significance
of the findings were not considered by the trial judge in detail. Within these papers, David McShefferty investigated how the phenomenon
of speech-to-(background) noise ratio (SNR) affects the understanding of speech communication in both hearing impaired and non-
hearing impaired individuals.
In this article, we review the conclusions reached and consider any foreseeable impact on future claims for hearing assistance devices.
WHAT IS SNR?
Speech-to-noise ratio (SNR) is the level of speech relative to the level of background noise. It is measured in decibels and is the difference
between the sound levels of speech and noise signals. For example, a 2 dB SNR could be achieved by having a 72 dB speech signal in
a 70 dB noise signal.
SNR is therefore relevant to our ability to hear and understand speech in the presence of background noise. This is a common admission
in claimant witness statements who allege NIHL.
Generally speaking, hearing impaired individuals require higher SNR to achieve the same results in speech intelligibility tests as non-hearing
impaired individuals.
Factors that can affect improvements in SNR include distance and spatial location from the speech signal, the type and number of noise
sources and the amount of reverberation in the environment.
DO HEARING AIDS AFFECT SNR?
Technically, the function of hearing assistance devices is not to increase SNR. They simply amplify the combined speech and background
mixture.
However, some features of hearing aids, such as directional microphones, can produce more favourable SNR for users. As a result, NIHL
claimants often seek future hearing assistance.
RELATIONSHIP BETWEEN SNR AND SPEECH INTELLIGIBILITY
Increased SNR and, by deduction, the use of hearing aids, can therefore increase speech intelligibility – but to what extent?
It is important to consider that the magnitude of any increase in intelligibility depends on the difference between subjects’ responses to
physical stimuli in testing.
So, is there a definitive increase in SNR which allows speech clarity to be more ‘noticeable’, or ‘meaningful’? This was the purpose of David
McShefferty’s two published papers.18
19
PRE-MCSHEFFERTY PAPERS
Prior to the latest work of David McShefferty & others, in a study conducted by Killion, it was found that a 2 dB increase in SNR could yield
benefit. However, the author warned that this change was unlikely to be noticed in a real-world setting.
PAGE | 19
MCSHEFFERTY PAPERS
The Just-Noticeable Difference in Speech-to-Noise Ratio Experiments
The 2015 study comprised of 4 separate experiments. McShefferty perceived that just-noticeable difference (JND) was crucial to the
understanding of how much improvement in SNR is necessary to provide a ‘noticeable’ benefit, i.e. a difference in intelligibility that listeners
can detect. He also considered it important to analyse whether there was an association between the degree of hearing impairment and
JND. Both of these considerations are relevant to the suitability of claims for future hearing assistance.
Of particular relevance was the 1st experiment, in which 44 participants were recruited (50:50 male to female ratio). Better-ear, four-
frequency (at 0.5, 1, 2, and 4 kHz), pure tone average hearing losses were measured. Among the participants, losses ranged from (-) 2 dB
to (+) 71 dB. The criteria for hearing impairment was that average loss over all the frequencies exceeded 25 dB in the better ear. Of the
44 participants, 14 were non-hearing impaired and 30 were hearing-impaired. 23 of the 30 hearing-impaired participants had
sensorineural hearing loss, 3 had mixed hearing loss and 4 had conductive hearing loss.
The purpose of the 1st experiment was to measure the ‘noticeable’ difference caused by changes in SNR. To calculate JND, test subjects
listened to two sentences with different SNRs, containing male-talker sentences partially masked by speech-shaped noise. The sentences
were separated by a gap of half a second of silence and the participants were asked to decide: ‘Which sentence was clearer?’ This
procedure was repeated, and the difference in the SNR between the two sentences was gradually reduced as the participants correctly
identified the sentence with the higher SNR. When the gap between the two SNRs of the two sentences was small enough that the participant
had got several answers wrong, the test was completed, and the size of this SNR gap was the JND for that participant.
Among the 44 participants, the average JND for a change in SNR was 3.2 dB.
Non-hearing impaired test subjects gave an average JND for a change in SNR of 2.9 dB.
Hearing-impaired test subjects gave an average JND for a change in SNR of 3.3 dB.
The study authors observed a relationship between age and JND. However, they did not find any difference between the JND measured
in hearing-impaired and non-hearing impaired groups. Any difference was not statistically significant. On average, the JND in SNR of
speech in noise was 3 dB across all 44 participants.
The authors concluded that, although the conventional level of JND was considered to be 1 dB, they were confident that their measurement
was accurate. Further, the authors stated that Killion’s study (referred to above) perceived a 4 dB JND to be 90% correct, compared to a
2 dB JND, which was only 50% correct. Interpolating the JND found in the McShefferty papers, Killion would calculate this finding to be
79% correct.
The significance of the results was phrased, as follows:
‘The SNR JND of 3 dB measured here indicates the lower bound of the minimal clinically important difference for SNR
improvement; that is, a change of 3 dB SNR indicates the threshold of the perceptual relevance (as opposed to
speech intelligibility improvement) of those features of hearing aids designed to increase SNR. Therefore, regardless
of the strategy used to achieve it, the data presented here indicate[s] that a noise reduction scheme—or directional
microphone or indeed any feature for increasing SNR—in a hearing aid should provide at least 3 dB SNR improvement
in order to provide a reliable and consistently noticeable benefit for HI listeners’.
The study’s ‘Discussion’ section does, however, consider that the expected JND could decrease if there are ‘changes in listening effort or
fatigue, particularly in continuous speech with multiple opportunities for detecting a difference in SNR’. Alternatively, the expected JND
‘might also increase in a real-life scenario with multiple distracters and reverberation present’. Without more rigorous testing, the necessary
benefits that hearing assistance devices need to provide are arguably difficult to quantify.
What is more, McShefferty’s findings on ‘noticeable’ difference were no indication of how significant a change in SNR has to be to bring
about a ‘meaningful’ difference, obligating medical intervention. This led to the publication of McShefferty’s 2nd
paper, in 2016.
PAGE | 20
The Just-Meaningful Difference in Speech-to-Noise Ratio
In the introduction to the 2016 article, the authors emphasised the importance of carefully distinguishing ‘noticeability’ and
‘meaningfulness’ of changes in SNR.
Just ‘meaningful’ difference (JMD) is the minimum increase in SNR necessary for there to be a medical intervention. This is because JMD
strongly resembles clinically important difference (CID). CID is regarded as a ‘change in outcome that would be considered meaningful
to a patent after some form of intervention’.
The difficulty with previous investigations involving CID, highlighted by the researchers, is that the perception of beneficial outcome is often
not determined by decrease in disease prevalence or statistical inference. Measuring JMD requires a subjective test, not an objective
one. JND, investigated in the 2015 McShefferty paper, is objective, i.e. the measurements (in dB) are appreciable to scientists and
clinicians, and cannot be influenced by the participants’ opinions. By contrast, JMD relies on the opinions of test subjects.
As a result, the 2016 study was an attempt to reconcile the differences between subjective and objective ratings of hearing ability and
perceived benefit.
4 separate experiments were devised to measure ‘the smallest difference in SNR that would elicit a change in behaviour’. We will examine
the results of the first 3 experiments conducted.
Participants were recruited and better-ear, four-frequency (at 0.5, 1, 2, and 4 kHz), pure tone average hearing losses were measured.
Once again, test methods involved listening to two intervals (target interval and reference interval), containing a corpus of sentences
partially masked by embedded speech-shaped noise. The identical choice in stimuli was deliberately chosen to allow for direct
comparison with the earlier JND results.
However, unlike the 1st experiment of the JND paper, the participants in the 1
st JMD experiment were not only given a noise discrimination
task, but also asked whether the target interval was the same, better, or worse than the reference interval (which was a SNR of 0, so the
speech sound level was the same as the background noise level) with an incremental change in SNR. ‘Better’, for the purpose of
examination, was defined as ‘being clearer or easier to listen to’. Ratings were measured on an 11-point scale [from (-) 5 (much worse), to
0 (the same), to (+) 5 (much better)]. Of the 32 participants tested, 14 had sensorineural hearing loss and the remainder were non-hearing
impaired.
JND for a change in SNR yielded similar results to the 2015 study (3 dB). JND was measured at 2.8 dB across all participants in the 1st
experiment of the 2016 paper. On average, benefits were rated as better by 1 unit after a 4 dB increase in SNR and deficits were rated as
worse by 1 unit after an 8 dB change in SNR, where units are the increments of the 11-point scale from ‘much worse’ to ‘much better’.
However, the authors note that it is unclear what ‘one unit’ would mean on a clinical level.
The 2nd
and 3rd
experiments were designed to give the JMD in SNR measurements more clinical relevance.
In the 2nd
experiment, the test subjects listened to sentences with a particular SNR, and then other sentences with a different SNR, were told
that the first one was the sound from their device and the second one was the sound from a different device, and asked if they would like
to swap devices. The JMD was defined as the threshold (in difference in SNR) at which the participant wanted to swap devices. Of the 31
participants tested, 21 were classified as hearing impaired (3 had conductive loss and 17 had sensorineural hearing loss) and the
remainder were non-hearing impaired. Results showed that participants said ‘Yes’ to switching more than 50% of the time when the increase
in SNR was between 4 dB and more than 8 (the highest difference tested) dB.
In the 3rd
experiment, participants were asked if they would be willing to attend a clinic for a given SNR benefit or deficit, which, again,
were presented as pairs of sentences with different SNR’s. Of the 21 participants tested, 10 had sensorineural hearing loss and the
remainder were non-hearing impaired. ‘Yes’ responses only exceeded 50% when the increase in SNR was between 6 dB and 8 dB.
As such, the researchers concluded that a meaningful difference equates to an average increase of 6 dB of SNR. Further, a 6 dB JMD
‘means that a change of 6 dB of SNR needs [to] be supplied for someone, on average, to consider it worth seeking intervention, whether
by swapping their devices or attending the clinic’.
Moreover, the authors were successful in discovering that there is a difference between ‘noticeable’ and ‘meaningful’ difference in SNR:
PAGE | 21
‘While participants were able to detect differences in SNR of 3 dB, those differences were not deemed to be clinically
important (i.e., participants were unwilling to swap devices or to attend the clinic for differences of that magnitude).
Only when differences in SNR reached at least 6 dB did participants find them meaningful enough to consider
intervention’.
Many of the limitations discussed in 2015 were also discussed in the 2016 paper. These were discussed in more detail by a co-author of
McShefferty papers, William Whitmer, in the run-up to the Evans case.
CRITIQUE OF MCSHEFFERTY PAPERS
In November of 2017, prior to the Evans trial, William Whitmer, co-author of the McShefferty papers, responded to comments made by
Professor Mark Lutman in his defendant commissioned medical report and shed light on the continuing limitations of his co-written work.
One limitation discussed, was that the McShefferty papers identify what immediate change in SNR would be ‘noticeable’ or ‘meaningful’.
As such, thresholds relevant to the perception of long-term changes in SNR are still ‘unclear at best’.
Mr Whitmer further indicated that, while random variation of sound level from one presentation to the next was designed to rule out the
use of sound level as a cue, day-to-day realistic listening situations would not be that unpredictable. Consequently, the JND thresholds
are relevant to the demonstration of hearing aid features, such as noise reduction, but not necessarily changes in SNR which bring about
a ‘noticeable’ or ‘meaningful’ change of speech clarity.
He also explained that the McShefferty papers measure ‘noticeable’ and ‘meaningful’ difference on the basis of single sentences, before
going on to cite data collected in additional, unpublished research, which showed that discriminating changes in SNR for single words
was more difficult than discriminating changes in SNR for sentences. Extending that association, he expected that changes in SNR
(especially the meaningful thresholds) would decrease with prolonged listening, ‘as occur in daily life’.
In summary, Mr Whitmer concluded:
‘... it is my strong opinion that the result of the two studies of McShefferty et al. cannot be used to draw valid inferences
about the smallest change in audiometric thresholds that would be noticeable in cases of noise-induced hearing
loss’.
EVANS V SECRETARY OF STATE FOR THE DEPARTMENT OF ENERGY & CLIMATE CHANGE (2017)
In the case of Evans, the claimant alleged that he had difficulty in ‘several domestic and social situations’. It was said that he struggled
to understand ‘... conversation, particularly in the presence of background noise. He not infrequently ... [had] ... to ask others to repeat
themselves or to speak up ...’
In this case, causation was disputed. The experts differed in their quantification of hearing loss, i.e. whether the loss was ‘significant or
appreciable’. If the NIHL was insignificant, the claimant would not have been able to advance the claim for future hearing aids.
The defendants were assisted by the instruction of Professor of Audiology, Mark Lutman. They submitted that, on the balance of probabilities,
the claimant’s noise induced hearing loss should have been treated as ‘de minimis’.
Prior to the case of Evans, in edition 111 (here), we discussed the medical authorities on the effect of NIHL at specific frequencies on
speech intelligibility. In Evans, the importance of speech intelligibility at 4 kHz were debated.
The judge found in favour of the claimant expert’s analysis, ruling that the claimant’s calculated losses were ‘likely to cause a material and
appreciable difference for this claimant in both audibility of sound and resolution of speech’. Mr Singh, favoured the use of a 4 kHz anchor
point, as opposed to a binaural 1, 2, 3 kHz average, suggested in the 2016 LCB guidelines. As such, the claimant’s average binaural NIHL,
between 3 and 4 kHz, was calculated at 11.2 dB.
The judge accepted, as a result of the method of NIHL calculation, that ‘the Claimant’s need for hearing aids ... [was] ... brought forwards
by 5 years ...’
PAGE | 22
Unsuccessfully, he sought to use the McShefferty papers to bolster his argument. At paragraph 50 of the judgment, the judge reasoned:
‘Mr Singh, at page 119 criticises the limitations of the 2 studies – and I do not believe that Professor Lutman has
disputed those limitations, but in my judgment, more significantly, he contends that if those papers are accepted, all
I am able to conclude is that 3 dB and 6 dB are likely to be of significance in terms of just noticeable and just
meaningful levels in terms of speech to noise ... [ratios] ... when considering a relatively broad speech spectrum.
Here, however, it is not in dispute between the experts that there is a binaural noise loss of 11.2 dB averaged at 3 and
4 kHz and, even ... [accepting] ... the McShefferty research, that cannot be regarded as insignificant’.
CONCLUSIONS
Provided that long-term changes in SNR produce, as McShefferty et al. suggests, a 3 dB JND, the studies dictate that hearing impaired
claimants would only ‘notice’ a difference in speech intelligibility if they were to use hearing assistance which increases SNR by at least 3
dB. The same analogy can be extended to intervention-seeking ‘meaningful’ difference, at 6 dB. In the conclusion of the 2016 study, the
authors advise:
‘... when the JMD was measured as a participant’s willingness— 50% of the time—to swap devices or attend clinics
for a change in SNR, it was approximately 6 dB for more difficult (lower SNR) situations and 8 dB for less difficult situations
... These latter, less arbitrary JMD values exceed what is currently possible with conventional hearing-aid technology’.
If this assertion is correct, and the McShefferty limitations are disproven, then noise reduction schemes in modern hearing aids should be
enhanced. If they are not, it is likely that hearing aid users are subjected to speech in background noise which has not received an
increase in SNR significant enough to produce a reliably discriminable difference, when compared with non-use.
PAGE | 23
References
1 Stuart McMillan MSP Greenock and Inverclyde, ‘PROPOSED RECOVERY OF MEDICAL COSTS FOR INDUSTRIAL DISEASE (SCOTLAND) BILL’
(28 March 2018) <https://files.smartsurvey.io/2/0/10S0FZTT/ID_consultation.pdf> accessed 5 June 2018.
2 Terry Gangcuangco, ‘Bill consultation seeks insurers' input’ (21 May 2018 Insurance Business)
<https://www.insurancebusinessmag.com/uk/news/breaking-news/bill-consultation-seeks-insurers-input-101086.aspx> accessed 5
June 2018.
3 Merck’s KEYTRUDA (pembrolizumab) Significantly Improved Overall Survival and Progression-Free Survival as First-Line Treatment for
Squamous Non-Small Cell Lung Cancer (NSCLC) in Pivotal Phase 3 KEYNOTE-407 Trial http://www.mrknewsroom.com/news-
release/oncology/mercks-keytruda-pembrolizumab-significantly-improved-overall-survival-and-prog (Accessed 7 June 2018)
4 Pembrolizumab (Keytruda) 5-10-2017. Food and Drug Administration, 11 May 2017
https://www.fda.gov/Drugs/InformationOnDrugs/ApprovedDrugs/ucm558048.htm (Accessed 3 June 2018)
5 FDA approves first cancer treatment for any solid tumour with a specific genetic feature. Food and Drug Administration, 23
May 2017. https://www.fda.gov/newsevents/newsroom/pressannouncements/ucm560167.htm (Accessed 1 June 2018)
6 Ulrich, C. et al. The European Status Quo in legal recognition and patient-care services of occupational skin cancer. Journal of the
European Academy of Dermatology and Venereology 30, 46–51 https://onlinelibrary.wiley.com/doi/full/10.1111/jdv.13609 (Accessed
7 June 2018)
7 Zink, A. et al. Different outdoor professions have different risks – a cross-sectional study comparing non-melanoma skin cancer risk
among farmers, gardeners and mountain guides. Journal of the European Academy of Dermatology and Venereology 0,
https://onlinelibrary.wiley.com/doi/abs/10.1111/jdv.15052 (Accessed 7 June 2018)
8 Different outdoor professions carry different risks for skin cancer. ScienceDaily, 6 June 2018.
https://www.sciencedaily.com/releases/2018/06/180606082306.htm (Accessed 7 June 2018)
9 No Time To Lose: Working together to beat occupational cancer. https://www.iosh.co.uk/NTTL/Home.aspx (Accessed 7 June 2018)
10 Farmers risk of skin cancer highlights in Farm Safety Week. IOSH, 27 July 2017 https://www.iosh.co.uk/NTTL/Home/News-and-
events/Farmers-risk-of-skin-cancer-highlighted-in-Farm-Safety-Week.aspx (Accessed 7 July 2018)
11 Amelia Arvesen, ‘Study finds that Insect Shield thwarts ticks’ (30 May 2018 Snews) <https://www.snewsnet.com/news/cdc-study-finds-
insect-shield-deters-ticks> accessed 4 June 2018.
12 Robert Prose, et al., Contact Irritancy and Toxicity of Permethrin-Treated Clothing for Ixodes scapularis, Amblyomma americanum,
and Dermacentor variabilis Ticks (Acari: Ixodidae), Journal of Medical Entomology <https://doi.org/10.1093/jme/tjy062> accessed 4
June 2018.
13 Carlos A. Celis-Morales, et al., Associations of discretionary screen time with mortality, cardiovascular disease and cancer are
attenuated by strength, fitness and physical activity: findings from the UK Biobank study, BMC Medicine, 201816:77,
<https://doi.org/10.1186/s12916-018-1063-1> accessed 4 June 2018.
14 High levels of screen time linked to cancer and heart disease’ (24 May 2018 BBC) <https://www.bbc.co.uk/news/uk-scotland-
44226888> accessed 4 June 2018.
15 Xu, Y. et al. Exposure, respiratory symptoms, lung function and inflammation response of road-paving asphalt workers. Occup
Environ Med oemed-2017-104983 (2018). doi:10.1136/oemed-2017-104983 http://oem.bmj.com/content/early/2018/05/30/oemed-
2017-104983 (Accessed 7 June 2018)
16 Iqra Mumal, ‘Fibromyalgia May Frequently Occur Along with a Variety of Other Diseases, Review Finds’ (31 May 2018 Fibromyalgia
News Today) <https://fibromyalgianewstoday.com/2018/05/31/fibromyalgia-common-many-different-diseases-review-study/>
accessed 5 June 2018.
17 Mary‐Ann Fitzcharles, et al., European Journal of Pain, Comorbid fibromyalgia: a qualitative review of prevalence and importance
<https://onlinelibrary.wiley.com/doi/pdf/10.1002/ejp.1252> accessed 5 June 2018.
18 David McShefferty et al., The just-noticeable difference in speech-to-noise ratio, Trends Hear. 2015 Feb 12;19. pii:
2331216515572316. doi: 10.1177/2331216515572316 <https://www.ncbi.nlm.nih.gov/pubmed/25681327> accessed 7 June 2018.
19 David McShefferty et al., The Just-Meaningful Difference in Speech-to-Noise Ratio, Trends Hear. 2016 Jan-Dec; 20:
2331216515626570. Published online 2016 Feb 1. doi: 10.1177/2331216515626570
<https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4737977/> accessed 7 June 2018.
PAGE | 24
CONTENTS
PAGE 24
Welcome
PAGE 25
Basis of Costs Assessment
When Claimant Obtained Less
Advantageous Judgment:
Shalaby v London North West
Healthcare NHS Trust [2018]
EWCA Civ 1323
PAGE 26
Civil Liability Bill: The Report
Stage
PAGE 27
KPMG Fined for Misconduct in
Handling of Quindell’s
Financial Statements
PAGE 28
Keytruda to be More Widely
Available on the NHS for Lung
Cancer Patients
Recent Study Links
Occupational Stress with Atrial
Fibrillation
PAGE 29
NGO Urges Samsung to
Disclose Chemical Use in
Semiconductor Plants
Health Risks to 18 Million
Aquaculture Workers Are
‘Overlooked’, Study Finds
PAGE 30
Feature:
Employment Status: Pimlico
Plumbers Ltd & Anor v Smith
[2018] UKSC 29
Welcome
Welcome to the 234 edition of BC Disease News.
In this week’s edition, we examine the case of Shalaby v London North West
Healthcare NHS Trust [2018] EWCA Civ 1323, in which the Court of Appeal clarified
the correct basis upon which costs are assessed, when a claimant fails to obtain
a judgment more advantageous than a defendant’s Part 36 Offer.
In addition, we report that KPMG has been fined £3.15 million for misconduct in
the handling of Quindell’s accounts for the year ending 31 December 2013. The
financial report stated that Quindell had achieved pre-tax profits of £137.7
million, but this figure was restated in the subsequent financial year’s report.
In this week’s feature, we analyse the Supreme Court ruling in Pimlico Plumbers
Ltd & Anor v Smith [2018] UKSC 29, which was handed down earlier this week. The
judgment provides further discussion on the difference in employment status
between ‘self-employed’ and ‘workers’.
Any comments or feedback can be sent to Boris Cetnik or Charlotte Owen.
As always, warmest regards to all.
SUBJECTS
Part 36 Offers and Indemnity Costs – Civil Liability Bill Report Stage – KPMG
Misconduct and Quindell Financial Statements – Keytruda on the NHS – Stress
and Atrial Fibrillation – Semiconductor Chemicals and Leukaemia – Disease in
Aquaculture – Employment Status.
PAGE | 25
Basis of Costs Assessment When Claimant Obtained Less Advantageous
Judgment: Shalaby v London North West Healthcare NHS Trust [2018] EWCA
Civ 1323
The Court of Appeal has handed down judgment in the case of Shalaby v London North West Healthcare NHS Trust [2018] EWCA Civ 1323.
On appeal, Lord Justice Singh and Lord Justice Roberts considered the basis of assessment for a costs order, where the claimant failed to
achieve a more advantageous judgment than the defendant’s Part 36 Offer.
At 1st instance, the claimant’s claim was dismissed. On appeal, Singh LJ dismissed the appeal against the order dismissing the claim for
breach of contract.
The judges went on to give judgment on the costs aspect of the appeal.
The defendant made a Part 36 Offer, on 11 September 2015, to pay £10,842.15. As such, the claimant had failed to obtain judgment
which was more advantageous than the defendant’s Part 36 Offer, pursuant to CPR 36.17(1)(a).
As such, it was for the court, unless it considered it unjust, to order that the defendant was entitled to costs from the date on which the
relevant period for acceptance expired, pursuant to CPR 36.17(3).
The remaining dispute on costs in this case, therefore, was whether the basis for a costs order against the claimant should be the standard
basis or the indemnity basis.
At paragraph 53, the court reasoned that the judge at 1st instance had ‘thought that the provision relating to costs on an indemnity basis
also applied to the present sort of case, when judgment is entered against a claimant’.
However, CPR 36.17(4), which prescribes that costs are to be awarded on the indemnity basis, only applies to cases falling under CPR
36.17(1)(b), where judgment is given against the defendant which is at least as advantageous to the claimant as the claimant’s Part 36
Offer.
PAGE | 26
Singh LJ cited Lord Woolf CJ, in the case of Excelsior Industrial and Commercial Holdings v Salisbury Hammer Aspden and Johnson [2002]
EWCA Civ 879, in which the CPR 36.17(3) applied. At paragraph 19, Lord Woolf stated:
‘... In normal circumstances, an order for costs which the court is required under that Part to make, unless it considers
it unjust to do so, is an order for costs on the standard basis. That means that if the court is going to make an order for
indemnity costs, as it can ... it should do so on the assumption that there must be some circumstance which justifies
such an order being made ... there must be conduct or (I add) some circumstance which takes the case out of the
norm’.
On this basis, the Court of Appeal judge allowed the appeal against the costs order. His reasoning for doing so was, as follows:
‘The only basis on which costs were ordered to be on an indemnity basis was that this was required by CPR Part 36.
That was wrong as a matter of law, as is now conceded by the Respondent. Accordingly I would substitute an order
that the costs had to be paid on the standard basis and not the indemnity basis’ [paragraph 55].
Civil Liability Bill: The Report Stage
Last month, the Civil Liability Bill entered into the Committee Stage at the House of Lords. We reported on this phase in edition 230 of BC
Disease News (here). This week, the Bill entered into the Report Stage, in which peers and influential legal figures tabled amendments to
the current scope of the Government’s whiplash reform Bill, which intends to raise the small claims limit to £5,000 for RTA claims.1
On Monday, with the support of the Motor Accident Solicitors Society (MASS),2 Lord Chief Justice, Lord Woolf, Labour peer, Lord Beecham
and Liberal Democrat peer, Lord Marks, argued that the concept of a compensation tariff should be completely removed from the Bill.
Presently, the tariff figures are not laid out in s.2 of the Bill (‘Damages for whiplash injuries’).
At the debate on Tuesday, however, peers voted down Lord Woolf’s amendment by 218 to 205.3
PAGE | 27
Another bid was put forward by former Lord
Chancellor, Lord Mackay, former Lord
Chief Justice, Lord Judge, former Deputy
President of the Supreme Court, Lord Hope
of Craighead, and Lord Pannick QC, who
collectively advised that the Bill should
obligate the Lord Chancellor to consult the
Lord Chief Justice before setting future
tariffs.
This amendment was successful - Lord Keen
said that the Government will bring forward
its own amendment, at the third reading, to
add Lord Judge’s amendment to the Bill.4
Elsewhere, the Ministry of Justice (MoJ) put
forward provisions, suggesting that the
compensation tariff should be reviewed
within 3 years of change, but need not
undergo the same consultation
requirements upon subsequent review of
the Bill.
Moreover, Labour and Liberal Democrat
peers laid an amendment, seeking to
empower the Financial Conduct Authority
to order insurers to publish financial reports
post-reform. These reports would calculate
the total savings achieved and the
contribution of savings towards any
reduction in insurance premiums. The
rationale for this amendment is that the
insurance industry has consistently
promised to pass on 100% of savings to
consumers.
Lord Keen of Elie, justice spokesperson for
the Government, conceded that the MoJ
are looking into the possibility of enforcing
such a requirement and the House of
Commons will develop its own amendment
that ‘provides an effective means for
reporting on the public commitment made
by the insurance sector, showing that it
results in savings being passed on to
consumers and thereby holds insurers to
account’.
Currently, the Bill does not legislate for any
increase in the small claims limit for ‘other
personal injury’, as the limit can be altered
by the Civil Procedure Rule Committee.
Nevertheless, Labour peer, Baroness
Hayter, laid a further amendment, which
would only allow the Government to
increase the small claims limit from £1,000
to £1,500 if it could be justified by the
performance of the retail price index since
1999. The Labour amendment went on to
state that any future increases would be in
increments of £500, in line with RPI.
Baroness Hayter’s amendment failed by
169 votes to 183.
After the Report Stage, the Bill now returns to
the House of Commons, where it is
suspected that amendments, which are
deemed to undermine the core principles
of the Bill, will be overturned.
KPMG Fined for
Misconduct in Handling
of Quindell’s Financial
Statements
The Financial Reporting Counsel (FRC) has
fined the accounting company, KPMG,
and audit engagement partner, William
Smith, a combined total of £3.235 million.
Both businesses admitted to misconduct in
the handling of financial statements of
legal services provider, Quindell.
Watchstone Group plc, Quindell’s
successor, is currently involved in a
litigation dispute with claimant firm, Slater
and Gordon (S&G).
In a London Stock Exchange
announcement, in March of 2014, it was
reported that Quindell had achieved pre-
tax profits of £137.7 million for the year
ending 31 December 2013. KPMG and
William Smith were responsible for filing the
accounts relevant to this tax year.5
In 2015, S&G acquired Quindell’s
professional services division for £637
million. In March of that year, the £137.7
million accounts figure was downgraded.
S&G, despite having spent more than £30
million on its own due diligence, prior to the
deal’s completion, discovered that
Quindell was not the profitable business
that it claimed to be. S&G is suing
Watchstone Group for fraudulent
misrepresentation.
Quindell’s restated accounts prompted the
FRC to begin its investigation in August of
2015.
In January of this year (here), we reported
that the auditor of Quindell’s 2011 accounts
was fined £700,000 for acts of misconduct.
This week, KPMG and William Smith
confessed to the FRC that their conduct ‘fell
significantly short’ of standards reasonably
expected of them. As members of the
Institute of Chartered Accountants in
England and Wales (ICAEW), both
demonstrated a failure to act in
accordance with the regulator’s
fundamental principle of professional
competence and due care.
Independently, KPMG admitted that it had
failed to:
‘obtain reasonable assurance that
the financial statements as a
whole were free from material
misstatement’;
‘obtain sufficient appropriate
audit evidence’; and
‘exercise sufficient professional
scepticism’.6
As such, KPMG and William Smith were fined
£3.15 million (reduced from £4.5 million)
and £84,000 (reduced from 120,000),
respectively. William Smith were also
ordered to pay a further £146,000 in costs.
This sanction does not cover the interim
half-year results for 2014, however.
A spokesperson for KPMG stated:
'... we accept the FRC’s findings that in two
specific areas of the audit, our challenge
for the year ended 31 December 2013
should have gone further. Due to ongoing
investigations by the FRC and SFO we are
unable to comment further’.
PAGE | 28
Keytruda to be More
Widely Available on the
NHS for Lung Cancer
Patients
Last week, it was announced that
pembrolizumab (trade name Keytruda ©)
has been approved for routine use on the
NHS in patients with non-small cell lung
cancer (NSCLC), whose cancer expresses a
protein known as PD-L1, and has spread.7
We have previously discussed Keytruda
therapy in issues 233, 227, 215, 214, 209,
208, 206, 205, 200, 189, 186 and 176 of
BCDN.
Pembrolizumab is a type of treatment,
known as immunotherapy, in which the
patient’s own immune system is ‘switched
on’ and instructed to attack the cancer
cells. It has shown significant benefits,
compared to chemotherapy, in patients
with a range of tumours, including non-
small cell lung cancer (NSCLC) and
mesothelioma.
Benefits of immunotherapy include longer
life expectancy and slower tumour growth.
However, some patients have not
benefitted from treatment. In any event,
studies into the effects of treatment are
ongoing.
In the latest study, researchers found that
pembrolizumab extended life by 16 months
more than chemotherapy in NSCLC
patients with PD-L1.
Keytruda therapy is starting to appear on
claims for living mesothelioma patients, at
a high cost. Thus, it is important to
understand whether the treatment is
effective in mesothelioma patients, and if
so, which particular patients are most likely
to benefit.
There is only a small amount of data on
mesothelioma patient reactions to
Keytruda at this stage, but further trials are
underway. NSCLC’s share some similarities
with mesothelioma, so data from NSCLC
studies are of interest to the mesothelioma
community.
In December of 2016, the drug was
recommended for routine NHS use in
NSCLC patients displaying PD-L1, whose
tumours have grown after receiving
chemotherapy,8
and Keytruda was placed
on the Department of Health (UK) Cancer
Drugs Fund (CDF) List. 9
This means that the
value of the treatment would have to be
demonstrated, either through further
clinical trials, or through ‘real world’ data
generated through the CDF.
The National Institute for Clinical Excellence
(NICE) considered pembrolizumab again in
June 2017. Although the results appeared
promising, more data is needed to
establish the effects of treatment on life
expectancy.
Changes to the Cancer Drugs Fund have
meant that NICE is able to grant access to
drugs while further evidence is collected.
The difference between the latest NHS
approval and the earlier approval in
December 2016 is that the drug is now
available to patients as a first-line
treatment, whereas previously it was only
available to those whose tumours
progressed after chemotherapy.
In other words, the drug is available as the
first choice of treatment for NSCLC patients
whose tumours express PD-L1 and will be
available to a lot more patients. At this
stage, the National Institute of Health and
Care Excellence (NICE) guidance is draft
guidance, and final guidance will be
published later in June, if no organisations
appeal the decision.
On average, the drug costs around
£84,000 for 1 course of treatment, but
Merck has agreed a confidential discount
for the NHS.
Further details of the latest NICE review will
be made available when full guidance is
published in a few weeks.
Recent Study Links
Occupational Stress
with Atrial Fibrillation
A study, conducted by Jonkoping
University, in Sweden, has found that
occupational stress increases the risk of
cardiovascular disease.10
13,200 participants took part in the Swedish
Longitudinal Occupational Survey of Health
(SLOSH) in 2006, 2008, or 2010. No
participants had a history of atrial
fibrillation, heart attack or heart failure.
The researchers followed up on the test
subjects after a median of 5.7 years.
Results, published in the European Journal
of Preventative Cardiology showed that job
strain is associated with a 48% higher risk of
an increased and irregular heart rate,
otherwise known as atrial fibrillation. AF can
lead to strokes, dementia, heart failure and
other cardiovascular health complications.
For the purpose of this study, ‘job strain’
referred to jobs with high psychological
demands and low control over work
situations.
Evaluating the study’s findings, Eleonor
Fransson, of Jonkoping University, stated:
‘In the general working population in
Sweden, employees with stressful jobs were
almost 50% more likely to develop atrial
fibrillation. The estimated risk remained
even after we took into account other
factors such as smoking, leisure time
physical activity, body mass index, and
hypertension. Across studies there was a
consistent pattern of work stress being a risk
factor for atrial fibrillation. Work stress has
previously been linked with coronary heart
disease. Work stress should be considered
a modifiable risk factor for preventing atrial
fibrillation and coronary heart disease’.11
PAGE | 29
NGO Urges Samsung to
Disclose Chemical Use
in Semiconductor Plants
The results of an independent investigation
committee report into Samsung Electronics
have prompted a South Korean NGO,
Supporters for Health and Rights of People
in the Semiconductor Industry (Sharps), to
request that the business releases more
information on workplace chemical
information and ensures that long term
studies are conducted into workplace ill-
health.
Semiconductor fabrication plants are
factories where devices, such as integrated
circuits, are manufactured.12
Major
companies have set up fabrication plants
(fabs) globally, including the UK.13
Samsung made an agreement with worker
groups to look into occupational
leukaemia and brain tumours, after
leukaemia, multiple sclerosis and infertility
were each ‘recognised as an industrial
accident’ by South Korean courts.14
15
16
Subsequently, the committee began a 2
year investigation, in 2016, and presented
its findings last month. No clear evidence of
a link between illness and workplace
chemical use was found.17
Establishing an association between
chemical use and illness in semiconductor
fabrication plants will require further study.
Samsung has denied access to historic
environmental monitoring reports, for risk of
disclosing technology secrets to the public.
According to the report, workers lack
information on 50% of the substances they
use. However, as we discussed in edition
180 of BC Disease News (here), exposure to
ethylene glycol was the alleged health
hazard.
Ms So-eui Rhee, a spokeswoman for
Samsung Electronics, stated that the
business ‘is conducting a thorough review
of recommendations made by the
committee ... and will make the best efforts
to implement improvements’.
Health Risks to 18 Million
Aquaculture Workers
Are ‘Overlooked’, Study
Finds
The University of Stirling has conducted
research into the prevalence of health and
safety risks in the global aquaculture
industry. The Food and Agriculture
Organisation (FAO) funded project,
focused on issues along the primary
aquaculture supply chain, in both marine
and freshwater locations.
This week, project coordinator, Professor
Andrew Watterson, of the Occupational
and Environmental Health Research Group
at Stirling, presented their findings during a
keynote speech at the International
Fisheries Safety and Health Conference, in
Canada.18
It is estimated that 18 million aquaculture
workers contend with ‘highly hazardous’
working conditions. This includes vulnerable
populations in precarious work, including
women, indigenous people, children,
seasonal, migrant, rural and remote
workers.
The report discussed the hazards
associated with stock-holding units, such as
ponds, racks and cages; the risks
associated with feeding, harvesting,
processing and transport of produce; and
the risk of workplace injuries in the sector
relating to machinery, tools, boats,
vehicles, drowning, falls, electrocution and
bites.
According to the report, ‘many risks remain
either neglected or unaddressed’.
Professor Watterson stated:
‘Our research found many gaps in our
global knowledge of the working
conditions of the world’s 18 million
aquaculture workers; the hazards they
face; the injuries and diseases they suffer;
and the risk management systems used to
protect them. Independent analysis of
prevention and risk reduction strategies
adopted is limited. This emerges in all the
national and regional profiles compiled for
this report. Aquaculture occupational
health and safety is frequently marginalised
or lost by government, industry and
sometimes labour organisations. This
contrasts with the wider importance and
funding given to production, cost, food
safety, sustainability and wider
environmental issues within the sector’.
However, Professor Watterson went on to
identify that:
‘Policies and practices based on good
regulations, monitoring and enforcement
underpinned by effective industry,
community, and labour engagement,
research and knowledge transfer appear
to have been successfully adopted in some
countries and some production systems’.19
In particular, Professor Watterson suggests
that codes on occupational health, human
rights, and ‘decent work’ programmes,
drawn up by the International Labour
Organisation and Food and Agriculture
Organisation, of the United Nations, could
be effective in raising current health and
safety standards. These programmes have
been successful in the following:
‘workforce OHS agreements with
European aquaculture companies
operating in developing countries
such as Ghana
extension services work well in
some US states
technological innovations and
hazard assessment in Norway
linked to regulation
Canadian technology innovations
have succeeded in reducing
hazardous exposures
changed South African
occupational health and safety
management have improved
practices
Scottish and UK tripartite body
initiatives have improved
knowledge exchange’.
PAGE | 30
Feature:
Employment Status: Pimlico Plumbers Ltd & Anor v Smith [2018] UKSC 29
INTRODUCTION
In this week’s feature, we examine the Supreme Court ruling in the case of Pimlico Plumbers Ltd & Anor v Smith [2018] UKSC 29, on employee
status. We last reported on the case in edition 173 of BC Disease News (here), when the Court of Appeal decision was handed down.
In the UK, statistics show that employers are changing the nature of their workforces to account for an increasing migrant population and
an increasing desire for workforce flexibility. Indeed, agency and temporary workers, independent contractors and self-employed persons,
constitute an increasing percentage of the UK labour market. According to the latest Office for National Statistics article on ‘Trends in self-
employment in the UK’:20
‘The number of self-employed increased from 3.3 million people (12.0% of the labour force) in 2001 to 4.8 million
(15.1% of the labour force) in 2017’.
In edition 146 (here) and 147 (here) of BC Disease News, we produced two consecutive features, titled: ‘Agency Workers: Employees For
The Purpose of Employer’s Liability?’ and ‘Self-Employed/ Independent Contractors: Employees for the Purpose of Employer’s Liability?’
This two-part series considered the issues that can arise in employers’ liability disease claims where claimants are agency or self-employed
workers. Health and safety obligations owed to self-employed and agency workers differ from obligations owed to permanent employees.
For example, under the Health and Safety at Work Act 1974, self-employed persons must assess workplace health and safety risks to
themselves and others. It is therefore important to distinguish between employees and self-employed persons and agency workers, for the
purposes of EL disease claims.
In Pimlico Plumbers, the claimant argued:
a) that the claimant had been an ‘employee’ of the defendant under a contract of service within the meaning of section 230(1) of
the Employment Rights Act 1996 (“the Act”); and/or
b) that the claimant had been a ‘worker’ for the defendant within the meaning of section 230(3)(b) of the Act; and
c) that the claimant had been a ‘worker’ for the defendant within the meaning of regulation 2(1) of the Working Time Regulations
1998 [same description as s.230(3)]; and
d) that the claimant had been in defendant’s ‘employment’ within the meaning of section 83(2)(a) of the Equality Act 2010.
FACTS OF THE CASE
The claimant was a plumbing and heating engineer, who carried out plumbing and maintenance work on behalf of a plumbing company,
between 2005 and 2011. He suffered a heart attack in 2011. Following this incident, he requested to reduce his working timetable from
five days per week to three days per week. This request was denied and the claimant was subsequently dismissed. Proceedings were
subsequently issued for unfair dismissal, wrongful dismissal, entitlement to pay during medical suspension, holiday pay and arrears of pay,
direct disability discrimination, discrimination arising from disability and failure to make reasonable adjustments.
In operation between the parties, were two contracts of employment (the ‘2005 agreement’ and the ‘2009 agreement’) and a working
practice manual.
Nonetheless, the defendant contended that the court did not have jurisdiction to consider the claimant’s claim.
EMPLOYMENT TRIBNUNAL DECISION
The case was initially heard before the Employment Tribunal. Employment Judge Corrigan outlined the distinction between ‘employees’,
‘self-employed workers’ and ‘workers’, as follows:
a) ‘Employee’ – Persons employed under a ‘contract of service’ (pursuant to s.230(1) of the Employment Rights Act 1996).
PAGE | 31
b) ‘Self-Employed’ – Persons who are self-employed, carrying on a profession or a business undertaking on their own account, and
who enter into contracts with clients or customers to provide work or services for them.
c) ‘Worker’ – Persons who are self-employed and provide their services as part of a profession or business undertaking carried on by
someone else (pursuant to s.230(3)(b) of the Employment Rights Act 1996).
The Employment Tribunal found that the claimant’s status was best described by category c) and was therefore a ‘worker’.
Further, the court deemed that the claimant’s working situation met the definition of ‘employment’ in the Equality Act 2010. The reasons for
this were as follows:
- The agreement, and its main purpose, was for Mr Smith personally to provide work for Pimlico Plumbers;
- The working manual practice obliged Mr Smith to work a normal week of 40 hours on the days agreed with Pimlico Plumbers;
- Although there was some flexibility, Pimlico Plumbers expected engineers to discuss their working hours with, and to agree them
with Pimlico Plumbers. Mr Smith had sufficient obligation to provide his work personally to be a worker;
- There was not an unfettered right to substitute at will. There was no such right given to MR Smith by the contractual documents
and no evidential basis for such a practice. Even though in practice engineers with Pimlico Plumbers swapped jobs around
between each other, and also used each other to provide additional help where more than one person was required for a job
or to do a job more quickly, and there was evidence that external contractors were sometimes required to assist a job due to the
need for further assistance or to conduct specialist work, the fact was that Mr Smith was under an obligation to provide work
personally for a minimum number of hours per week or on the days agreed with Pimlico Plumbers;
- Although Mr Smith had autonomy in relation to the estimates and work done, Pimlico Plumbers exercised very tight control in most
other respects. That included a high degree of restriction on Mr Smith’s ability to work in a competitive situation, which suggested
that he was not in business on his own account and was certainly inconsistent with Pimlico Plumbers being a customer or client if
any such business;
- Pimlico Plumbers could not be considered to be a client or customer of Mr Smith’s business but is better regarded as a principal.
Mr Smith was an integral part of Pimlico Plumbers operations and subordinate to Pimlico Plumbers. He was not in business on his
own account.
The claimant was not considered to be an ‘employee’, for the purposes of the Employment Rights Act 1996. As a result, the Tribunal did
not have jurisdiction to consider the claims for unfair dismissal, wrongful dismissal, entitlement to pay during the period of a medical
suspension and failure to provide particulars of employment.
However, since the claimant was considered to be a ‘worker’, for the purposes of the 1996 Act and this the claimant had undertaken
‘employment’, for the purposes of the Equality Act 2010, the court did have jurisdiction to consider the claims for direct disability
discrimination, discrimination by reason of failure to make reasonable adjustments, holiday pay and unauthorised deductions from wages.
EMPLOYMENT APPEAL TRIBUNAL DECISION
The defendant unsuccessfully appealed the Employment Tribunal decision. Judge Serota QC also found that the claimant was not an
‘employee’, but a ‘worker’ i.e. a person who is self-employed but provides their services as part of a business undertaking carried on by
someone else.
PAGE | 32
COURT OF APPEAL DECISION
The Court of Appeal, in the case of Pimlico Plumbers Ltd v Smith [2017] EWCA Civ 51, found that the claimant was a ‘worker’ and not a
‘self-employed’ contractor.
Sir Terence Etherton MR, Underhill LJ and Davis LJ agreed with the reasoning given by the lower Employment Tribunals and dismissed the
appeal. There was a clear focus on the claimant’s obligation to perform the contracts personally; work 40 hours per week; hire a van with
a Pimlico Plumbers’ logo; and use a mobile phone, the cost of which was deducted from his salary.
SUPREME COURT DECISION
Lord Wilson handed down judgment, with whom Lady Hale, Lord Hughes, Lady Black and Lord Lloyd-Jones agreed.
Before providing his unanimous ruling, Lord Wilson, at paragraph 16, highlighted the decision of the appeal tribunal Judge, to convey the
‘puzzling’ effect of the agreements between the claimant and the defendant:
‘... on the one hand, Pimlico wanted to present their operatives to the public as part of its workforce but that, on the
other, it wanted to render them self-employed in business on their own account; and that the contractual documents
had been “carefully choreographed” to serve these inconsistent objectives. But the judge rightly proceeded to
identify a third objective, linked to the first, namely to enable Pimlico to exert a substantial measure of control over its
operatives; and this clearly made development of the choreography even more of a challenge’.
Had the Claimant Undertaken Personal Performance in His Role?
To qualify as a ‘worker’, under s.230(b), the claimant had to show that he had ‘performed personally’ his work or services for the defendant.
Personal performance is also a necessary constituent of a ‘contract of service’.
The Court of Appeal found that the claimant was permitted, albeit by informal concession with the defendant, to appoint a substitute
Pimlico operative to do his work. The question for the court was whether this was inconsistent with, or negatives, an obligation of personal
performance.
On this issue, Lord Wilson stated, at paragraph 33:
‘The terms of the contract made in 2009 are clearly directed to performance by Mr Smith personally. The right to
substitute appears to have been regarded as so insignificant as not to be worthy of recognition in the terms deployed.
Pimlico accepts that it would not be usual for an operative to estimate for a job and thereby to take responsibility for
performing it but then to substitute another of its operatives to effect the performance’.
His lordship referred to the consistent use of the 2nd
person (singular) possessive pronoun, ‘your’, in the terms of the contract between the
parties. He went on, to connote:
‘The vocative words clearly show that these requirements are addressed to Mr Smith personally; and Pimlico’s
contention that the requirements are capable also of applying to anyone who substitutes for him stretches their natural
meaning beyond breaking-point’.
As such, the judge upheld the decision of the tribunal, at paragraph 34:
‘The tribunal was clearly entitled to hold, albeit in different words, that the dominant feature of Mr Smith’s contracts
with Pimlico was an obligation of personal performance. To the extent that his facility to appoint a substitute was the
product of a contractual right, the limitation of it was significant: the substitute had to come from the ranks of Pimlico
operatives, in other words from those bound to Pimlico by an identical suite of heavy obligations. It was the converse
of a situation in which the other party is uninterested in the identity of the substitute, provided only that the work gets
done. The tribunal was entitled to conclude that Mr Smith had established that he was a limb (b) worker - unless the
status of Pimlico by virtue of the contract was that of a client or customer of his’.
PAGE | 33
Was Pimlico Plumbers a Client or a Customer?
From Lord Wilson’s concluding remarks on the ‘personal performance’ issue, the judge identified that the claimant could benefit from ‘limb
(b) worker’ status, unless the defendant was considered to be a ‘client’ or ‘customer’.
The defendant submitted the following, in support of its contention that it was a ‘customer’ or ‘client’ of the claimant:
‘(a) Without prejudice to his overall obligation (which Pimlico has to accept for this purpose) to make himself
available to accept work, if offered, for up to 40 hours each week, Mr Smith was entitled to reject any particular
offer of work, whether because of the location or timing of it or for any other reason.
(b) Subject to that overall obligation, Mr Smith was free to take outside work albeit not if offered by Pimlico’s clients.
In a concluding paragraph the tribunal observed that he did not elect to take outside work; but, as Pimlico
rightly objects, the analysis must be of his contractual entitlement rather than of his election not to exercise it.
(c) Pimlico reserved no right to supervise, or otherwise interfere with, the manner in which Mr Smith did his work.
(d) There were financial risks, as well as advantages, consequent upon Mr Smith’s work for Pimlico. He was bound
by the estimate for the price of the work which he had given to the client. Pimlico did not pay him, not even
for any materials which he had supplied, until the client had paid it; if a client paid more than one month
late, its payment to him was halved; and, if a client failed to pay within six months, it paid him nothing, not
even for his materials, and irrespective of whether the client made payment thereafter. If a client complained
about his work, even about work done by another Pimlico operative whom he had substituted to do it, it was
Mr Smith who was responsible for remedying it and who received no payment referable to it until he had done
so’.
The Supreme Court dismissed the defendant’s appeal, however. The tribunal was entitled, ‘by a reasonable margin’, to conclude that the
claimant was not an independent contractor.
Lord Wilson highlighted features of the contract which ‘strongly militated against recognition’ of the defendant as a ‘client’ or ‘customer’ of
the claimant.
‘Its tight control over him was reflected in its requirements that he should wear the branded Pimlico uniform; drive its
branded van, to which Pimlico applied a tracker; carry its identity card; and closely follow the administrative
instructions of its control room. The severe terms as to when and how much it was obliged to pay him, on which it
relied, betrayed a grip on his economy inconsistent with his being a truly independent contractor. The contract made
references to “wages”, “gross misconduct” and “dismissal”’.
The claimant’s substantive claims, brought in the capacity of a s.230(b) worker, could therefore proceed to be heard in the tribunal.
The full text judgment can be found here.
IMPACT OF THE CASE
The central theme in determining who is responsible for any diseases, or injuries, suffered by alleged ‘self-employed’ workers, is that of
control. Although the legal position has not been altered by the latest Supreme Court ruling, it is clear that the courts will not simply rely on
express contractual agreements between parties to interpret employment status. Instead judges will look closely at the working relationship
between parties, on a case by case basis. Until the Government devises new employment legislation which accurately reflects the ever-
diversifying dynamic of UK workforces, in cases where contractors work exclusively for one company, the line between ‘self-employed’
and ‘worker’ status will remain a grey area, affecting breach of duty in EL personal injury claims.
PAGE | 34
References
1 Neil Rose, ‘Let battle commence: Labour, Lib Dems and top judges bid to reduce impact of whiplash reforms’ (12 June 2018 Legal
Futures) <https://www.legalfutures.co.uk/latest-news/let-battle-commence-labour-lib-dems-and-top-judges-bid-to-reduce-impact-of-
whiplash-reforms> accessed 12 June 2018.
2 John Hyde, ‘Former LCJ bids to axe tariffs from Civil Liability Bill’ (Law Gazette) <https://www.lawgazette.co.uk/news/former-lcj-bids-
to-axe-tariffs-from-civil-liability-bill/5066425.article> accessed 12 June 2018.
3 John Hyde, ‘Civil Liability Bill: Government secures crucial win by just 13 votes’ (13 June 2018 Law Gazette)
<https://www.lawgazette.co.uk/news/civil-liability-bill-government-secures-crucial-win-by-just-13-votes/5066460.article> accessed
13 June 2018.
4 Neil Rose, ‘Government makes some concessions on Civil Liability Bill but defeats bid to remove damages tariff’ (13 June 2018 Legal
Futures) <https://www.legalfutures.co.uk/latest-news/government-makes-some-concessions-on-civil-liability-bill-but-defeats-bid-to-
remove-damages-tariff> accessed 13 June 2018.
5 John Hyde, ‘KPMG fined £3m for insufficient 'scepticism' over Quindell’ (11 June 2018 Law Gazette)
<https://www.lawgazette.co.uk/news/kpmg-fined-3m-for-insufficient-scepticism-over-quindell/5066438.article> accessed 11 June
2018.
6 Nick Hilborne, ‘KPMG hit with £3m fine for Quindell audit failures’ (11 June 2018 Legal Futures) <https://www.legalfutures.co.uk/latest-
news/kpmg-hit-with-3m-fine-for-quindell-audit-failures> accessed 12 June 2018.
7 Life-extending lung cancer drug will be more widely available on the NHS after NICE review. National Institute for Health and Care
Excellence, 6 June 2018. https://www.nice.org.uk/news/article/life-extending-lung-cancer-drug-will-be-more-widely-available-on-the-
nhs-after-nice-review (Accessed 13 June 2018)
8 NICE recommends new lung cancer drug pembrolizumab | News and features | News | NICE. Available at:
https://www.nice.org.uk/news/article/nice-recommends-new-lung-cancer-drug-pembrolizumab (Accessed: 10th December 2016)
9 National Cancer Drugs Fund (CDF) List<https://www.england.nhs.uk/wp-content/uploads/2017/01/national-cdf-list-v1-19.pdf >
accessed 7 February 2017.
10 ‘Are you stressed at work? You may be at an increased risk of developing dementia’ (7 June 2018 Economic Times)
<https://economictimes.indiatimes.com/magazines/panache/are-you-stressed-at-work-you-may-be-at-an-increased-risk-of-
developing-dementia/articleshow/64494648.cms> accessed 14 June 2018.
11 ‘Stressful jobs are associated with higher risk of heart rhythm disorders’ (10 June 2018 Daily Trust) <https://www.dailytrust.com.ng/-
stressful-jobs-are-associated-with-higher-risk-of-heart-rhythm-disorders-255656.html> accessed 14 June 2018.
12 Semiconductor Fabrication Plant’ (21 June 2018 Any Silicon) <https://anysilicon.com/semipedia/semiconductor-fabrication-plant/
> accessed 14 June 2018.
13 ‘Map of Semiconductor Fabs’ (10 Stripe) <http://www.10stripe.com/featured/map/semiconductor-fabs.php> accessed 14 June
2018.
14 Park Tae-woo, ‘Workers’ welfare service with first recognition of leukemia contracted at Samsung LCD factory’ (8 July 2017 The
Hankyoreh) <http://english.hani.co.kr/arti/english_edition/e_business/801986.html> accessed 11 July 2017.
15 Park Tae-woo, ‘Former Samsung worker’s multiple sclerosis ruled a work-related disease’ (12 February 2017 The Hankyoreh)
<http://english.hani.co.kr/arti/english_edition/e_business/782259.html> accessed 12 July 2017.
16 Park Tae-woo, ‘Samsung semiconductor worker is first case of female infertility recognized as industrial accident’ (20 March 2017
The Hankyoreh) <http://english.hani.co.kr/arti/english_edition/e_business/787230.html> accessed 03 April 2017.
17 Sunny Lee, ‘Report prompts call for Samsung to disclose workplace chemical use’ (7 June 2018 Chemical Watch)
<https://chemicalwatch.com/67505/report-prompts-call-for-samsung-to-disclose-workplace-chemical-use> accessed 13 June
2018.
18 Rob Fletcher, ‘Those in peril on the sea’ (12 June 2018 The Fish Site) <https://thefishsite.com/articles/those-in-peril-on-the-sea>
accessed 12 June 2018.
19 ‘Action needed on risks to aquaculture workers, warns Stirling study for UN’ (12 Jun 2012 Fish Farming Expert)
<https://www.fishfarmingexpert.com/article/action-needed-on-risks-to-aquaculture-workers-warns-stirling-study-for-un/> accessed 12
June 2018.
20 Sunny Sidhu et al., ‘Trends in self-employment in the UK’ (February 2018 ONS)
<https://www.ons.gov.uk/employmentandlabourmarket/peopleinwork/employmentandemployeetypes/articles/trendsinselfemploym
entintheuk/2018-02-07> accessed 13 June 2018.
PAGE | 35
CONTENTS
PAGE 35
Welcome
PAGE 36
Special Damages Advice in
VWF Claims: Edwards v
Hugh James Ford Simey (a
firm) [2018] EWCA Civ 1299
PAGE 37
CFA Construction: Malone v
Birmingham Community NHS
Trust [2018] EWCA Civ 1376
PAGE 38
£25 Million in Unsecured
Creditor Funds Held By SRA
Post-Asons Intervention
Great Ormond Street
Hearing Loss Prevention
Drug Trials
IIAC Paper Considers Effect
on IIDB Claims When Other
Causes of Disease Arise
PAGE 40
Study Linking Occupational
Stress and Mortality
PAGE 41
Feature:
Hearing Testing Methods
Additional to Pure Tone
Audiometry (Part 1)
Welcome
Welcome to the 235 edition of BC Disease News.
In this week’s edition, we report on 2 cases from the Court of Appeal: Edwards v
Hugh James Ford Simey (a firm) [2018] EWCA Civ 1299 and Malone v Birmingham
Community NHS Trust [2018] EWCA Civ 1376. In Edwards, the defendant personal
injury firm argued that ‘after-coming evidence’ should be taken into account
when it had been professionally negligent, while in Malone, the defendant
argued that it’s omission from the terms of a CFA had the effect of relieving it from
costs liability.
In addition, we report on a potential deal between liquidators and the SRA for
£25 million of unsecured creditor funds, paid to Asons pre-intervention and an
investigation into the legitimacy of Coops’ acquisition of Asons, in 2017.
In this week’s feature article, we produce the first half of our two-part series on
hearing loss testing methods which are alternatives to Pure Tone Audiometry
Testing.
Any comments or feedback can be sent to Boris Cetnik or Charlotte Owen.
As always, warmest regards to all.
SUBJECTS
Professional Negligence Damages and VWF – CFA Drafting and Costs Recovery
– Asons Solicitors – Sodium Thiosulphate and Hearing Loss Prevention – IIAC and
Multiple Cause IIDB Claims – Occupational Stress and Mortality – Oto-Acoustic
Emissions, Speech Intelligibility Testing and Speech In Noise Testing.
PAGE | 36
Special Damages
Advice in VWF Claims:
Edwards v Hugh James
Ford Simey (a firm)
[2018] EWCA Civ 1299
In edition 200 of BC Disease News (here), we
reported on the case of Thomas v Hugh
James Ford Simey Solicitors [2017] EWCA
Civ 1303, in which Lord Jackson dismissed
a professional negligence claim arising
from settlement of a vibration white finger
(VWF) claim.
This week, we examine the recent decision
of Edwards v Hugh James Ford Simey (a
firm) [2018] EWCA Civ 1299, another case
where the claimant had been given
negligent advice in pursuit of his claim
under the government’s miners’
compensation scheme.
The common thread between the cases of
Thomas and Edwards was that the
defendant, in both instances, advised the
claimants not to pursue services claims.
Services claims were incorporated into the
claims handling arrangement by Schedule
7(1). At paragraph 3.3 of the relevant
Schedule, 6 tasks were identified as being
compensatable if their VWF caused them to
require assistance. namely:
a) gardening work, including
planting, heavier garden work,
grass cutting, pruning etc, summer
and winter;
b) window cleaning, summer and
winter;
c) DIY, normal household repairs
including changing fuses, plugs,
etc;
d) decorating, including paper
hanging and painting inside and
out;
e) car washing summer and winter;
f) car maintenance, the basis
servicing, changing plugs, points,
oil, anti-freeze and other similar
tasks.
In Edwards, the claim was brought on
behalf of the original claimant, Mr Watkins,
who died in 2014. Mr Watkins was
employed by British Coal as a miner,
between 1964 and 1985, and developed
VWF through persistent use of vibratory
tools.
Mr Watkins complained of ‘whiteness of
fingers in cold weather ... numb when ...
cold and ... a tingling sensation ...
Sometimes his fingers tend to lock’. He also
complained of year-round blanching, but
stated that this was ‘most common’ when
‘going out in cold weather’.
In 2000, Dr Chadha medically examined
Mr Watkins and assessed his VWF at 3V
(vascular), 3Sn (sensori-neural) bilaterally.
This assessment carried a rebuttable
presumption that the claimant was entitled
to bring a further claim for services.
An offer ‘"in full and final settlement" of the
claims under the scheme’, was made on
behalf of the Department for Trade and
Industry. This amounted to general
damages of £9,478 and acceptance of
the offer would bring the claim to an end.
However, Mr Watkins received a letter of
advice from the defendant, warning
against pursuing a further claim for special
damages, which had already been
lodged.
As such, settlement was reached in respect
of general damages, but no claim was
pursued for difficulties with gardening,
window cleaning, DIY, decorating, car
washing and car maintenance.
Subsequently, a claim in professional
negligence was brought by the
deceased’s daughter, on behalf of his
estate.
At 1st instance, Recorder Miller found that
the defendant’s correspondence with the
deceased was ‘misleading or deficient’.
Lord Justice Irwin, delivering judgment at
the Court of Appeal, highlighted the
unchallenged negligent deficiencies of the
defendant representative’s letter:
‘It advised the deceased that to pursue the
case he would need to make and support
such a claim with evidence, when in fact he
had already done so. It advised him of
delay. The letter failed to advise him that he
would receive the additional interim
payment soon, if he proceeded with the
claim. The letter was concluded in terms
which (as the Recorder found) the
deceased was likely to misunderstand, as
meaning that unless the VWF was the only
cause of his inability to perform a task, he
had no services claim in respect of that
task. In fact the Scheme provided a sliding
scale in relation to co-morbid conditions,
and it would only be where a relevant
disability arose completely from the co-
morbid condition, that the claim for the
relevant task would be rejected. The letter
also implied that the deceased might be
liable for future costs of the claim, whereas
his "no win, no fee" claim would apply
throughout. Lastly, the letter made no
attempt to quantify the likely outcome for
the deceased if he pursued his claim’.
In its contested defence, the defendant
relied on a later medical report, produced
by Mr Tennant, a jointly instructed vascular
surgeon, in 2013.
Mr Tennant assessed the deceased's VWF
staging as 1 V, 1 Sn bilaterally. This also
meant that the deceased’s VWF had never
been worse than 1V, 1Sn bilaterally. By this
measurement, the deceased was never
eligible to submit a services claim, as his
injury would not have been expected to
produce any disability in relation to any
relevant task.
Did the ‘after-coming evidence’ offset the
‘misleading or deficient’ conduct exhibited
by the defendant?
In light of Mr Tennant’s report, Recorder
Miller reasoned:
‘I accept Mr Tennant's conclusions and find
that Mr Watkins' condition was, from its
onset, continually to be categorised as no
worse than 1V, 1Sn bilaterally. Under the
terms of the DTI compensation scheme,
such a finding would have been
automatically fatal to any claim for services
PAGE | 37
and would have resulted in a valuation and
offer of only £1,790 for general damages ...
The Defendant accordingly says this: the
value of the chose in action arising out of
the VWF was always less than the settlement
figure which they achieved for their client
and so the claimant's loss is nil. The Court it
is said does not have to and so should not
assess the chance that was lost in 2003: it is
possible to measure the true loss
retrospectively and with objective
accuracy by reference to the evidence
now available (from Mr Tennant) and that is
the proper approach to quantifying
damages here’.
He went on to conclude:
‘If, as here, expert or other evidence which
post-dates the settlement or other disposal
of the original claim, establishes beyond
any (or any but negligible) doubt that that
claim could and would have been
resolved only in one specific way had that
evidence been available to the parties and
the tribunal at the time [emphasis added],
then the Court in the professional
negligence action has the "full facts"
adverted to by Laws LJ in Whitehead and
should find accordingly, thereby avoiding
an uncovenanted windfall or correcting
injustice to a Claimant whose case has
turned out to be undoubtedly stronger than
had been previously assumed. In the case
of Mr Watkins, I can and should find that
his chose in action has been shown to
have had no value given the damages
actually paid to him; another way of putting
it is that, as I have found on the "full facts",
his services claim had no chance of
success, for the same reason: it is beyond
peradventure that faced with Mr Tennant's
clinical findings and conclusions any
award would have fallen short of £9,478. It
is fanciful to assume otherwise’.
On appeal, the claimant argued that the
Recorder had erred in taking into account
evidence which was not, and could not
have been available when the offer was
made, in 2003.
Irwin LJ articulated that the principle of full
compensation, or restitutio in integrum,
applies to claimants who have suffered
tortious losses and has the effect of putting
claimants ‘back into the position they would
have been in, absent the negligence’.
Giving effect to this principle, Irwin LJ
overturned the decision of the 1st instance
Recorder, stating:
‘... what the claimant should recover in the
professional negligence claim is not
established by answering the question: how
much of the original claim can he prove
now? Rather it is established by answering
the question: what was the value of what he
lost then?’
The case was remitted for rehearing.
Full text judgment can be found here.
CFA Construction:
Malone v Birmingham
Community NHS Trust
[2018] EWCA Civ 1376
In the Court of Appeal this week, judges
ruled that, where a CFA named the wrong
defendant, the scope of the agreement
had the effect of still allowing costs to be
recovered from the correct defendant.
In Malone v Birmingham Community NHS
Trust [2018] EWCA Civ 1376, the claimant
was a prisoner at HMP Birmingham. His
claim alleged that there had been a
negligent failure to diagnose him with
testicular cancer. At the prison, health care
services were provided by two NHS trusts
(the defendant NHS Trust and Solihull Mental
Health Foundation Trust).
The claimant instructed two successive
solicitors’ practices during the course of the
claim. New Law Solicitors, the 2nd
instructed
firm, entered into a conditional fee
agreement (CFA) with the claimant on 16
January 2013.
However, both instructed firms faced
difficulties identifying the correct
defendant to name in the CFA, as there was
uncertainty over which body was
responsible for the claimant’s medical
care. This was demonstrated by the fact
that all three potential defendants were
named when proceedings were issued.
In any event, the Home Office was the only
defendant named in the CFA, which was
written in the Law Society’s standard form,
with typed insertions. The CFA, which
contractually bound New Law and the
claimant, covered:
‘All work conducted on your behalf
following your instructions provided on [sic]
regarding your claim against Home Office
for damages for personal injury suffered in
2010’.
However, prior to service of proceedings,
the defendant acknowledged that it was
responsible for the claimant’s treatment
and, accordingly, was the only party
served with proceedings. Settlement was
subsequently reached.
On detailed assessment, the defendant
argued that no costs were payable to the
claimant, as it was not named in the CFA,
i.e. the CFA was limited to a claim against
the Home Office.
At first instance, District Judge Phillips held
that the CFA excluded a claim against the
defendant, as a matter of CFA construction.
HHJ Curran QC dismissed the appeal. The
latest appeal was heard by Lord Justice
Hamblen and Lord Justice Patten.
At the Court of Appeal, the claimant
argued that the earlier decision was wrong
in law to limit the scope of the CFA and
conclude that it did not cover his claim
against the defendant. In the alternative,
the claimant argued that reference to the
Home Office, in the paragraph on CFA
cover, was a reference to the group of
authorities responsible for the claimant’s
welfare, including the defendant.
Hamblen LJ identified that ‘the insertions
made to the CFA demonstrate poor quality
drafting and little attention to detail’.
Nevertheless, he went on to consider that
the scope of cover could be interpreted by
PAGE | 38
conducting a textual and contextual
review of the CFA. Following the approach
taken in Wood v Capita Insurance Services
[2017] UKSC 24, ‘the interpretation of such
an agreement is likely to call for more
emphasis on the factual matrix and
contextual considerations and less
principal emphasis on close textual
analysis’.
The judge stated, in respect of the
paragraph on cover, that:
‘As a matter of language ... the most natural
reading of the critical wording is that the
CFA covers "all work conducted" on the
claimant's behalf which follows from the
"instructions provided" in respect of his
claim "against Home Office". In other words
... the reference to "Home Office" is
descriptive of the instructions received
rather than of the work to be done. It relates
to past instructions rather than future work’.
Thus, the terms of the CFA were ‘descriptive
rather than prescriptive’, and the function
of the CFA was intended to identify the
claim, rather than a ‘positive choice’ to
specify the identity of the defendant.1
As a result, Hamblen LJ allowed the
claimant’s appeal and overturned the
previous judgment, finding that the CFA
was ‘properly to be construed as not being
limited to a claim against the Home
Office/Ministry of Justice’.
He remitted the case for rehearing on
damages.
Full text judgment can be found here.
£25 Million in
Unsecured Creditor
Funds Held By SRA Post-
Asons Intervention
In past editions, we have reported
extensively on the SRA intervention of Asons
Solicitors, in March of 2017, and
misconduct during its time of practice.
Post-intervention, joint liquidators have
sought to obtain legal advice over funds
(presumably client funds) held by the SRA.2
Liquidators have attempted to strike a deal
with the SRA for unsecured creditors, who
are in a position of uncertainty. The total
valuation of unsecured creditor funds
potentially stands at around £25 million.
A SRA spokesperson emphasised that
Asons’ handling of client money is a priority
for the authority:
‘Our priority is always to make sure that
former clients do not end up out of pocket
because of solicitor misconduct …’
In other Asons-related news, joint liquidators
have also confirmed that they are
investigating the acquisition of Asons by
Coops Law. We previously reported on the
purchase of Asons in BCDN edition 179
(here). It has been reported that the sale
was agreed for around £230,000, but a
recently published report has suggested
that:
'No formal valuation was undertaken of the
goodwill, work in progress and book debts,
and limited marketing of the business was
conducted.'3
We will continue to report on Asons
developments in due course.
Great Ormond Street
Hearing Loss Prevention
Drug Trials
In editions 223 (here) and 184 (here), we
reported on studies into hearing loss
prevention drugs. Most recently, in issue
223, we reported that enzyme inhibitors
were capable of protecting cultures of
cochlear cells in cancer patients. 4
In the latest investigation on hearing loss
prevention drugs, scientists found that long-
term side effects of chemotherapy
(cisplatin-based) were reduced by a new
drug, when taken in combination.
Trials were conducted by Great Ormond
Street Hospital to observe the effect of
sodium thiosulphate (STS) on hearing loss.
109 children were administered with the
drug.
The research team, led by paediatric
consultant, Dr Penelope Brock, found that
hearing damage was reduced from 63% to
33% in patients, while the risk of hearing loss
was reduced by nearly 50% compared
with those who had not received STS.
IIAC Paper Considers
Effect on IIDB Claims
When Other Causes of
Disease Arise
The Industrial Injuries Advisory Council (IIAC)
has published a command paper on
diseases with multiple known causes,
occupational injuries and medical
assessment5. This is the third in a series of
Command Papers intended to clarify and
simplify the decisions made in diagnosis
and assessment of disability that results from
occupational disease and injury.
This paper considers the assessment of
disability in claimants where both
occupational and non-occupational risk
factors are present and are considered to
have contributed to disability.
When a claimant has disability caused by
work that meets certain criteria, they are
entitled to compensation through the
Industrial Injuries Disablement Benefits
scheme (IIDB). In some cases,
compensation may be deducted if the
disability has several possible causes. This
paper therefore provides evidence-based
guidance of scientifically justifiable
deductions.
Under the IIDB scheme, compensation is
valued on a disability scale. Awards are
sometimes subject to deductions, if it is the
assessor’s opinion that a part of the
disability is non-occupational. The legal
basis for this is set out, inter alia, in
PAGE | 39
Regulation 11 of the Social Security
(General Benefit) Regulations 1982; the
Regulations allow for disability, due to ‘other
effective causes’, to be subtracted before
the amount of awards are decided. ‘Other
effective causes’ refers to impairments that
are not caused by the scheduled
employment but which contribute to the
total loss of function and disablement.
In secondary legislation, ‘other effective
cause’ refers to a birth defect, pre-existing
injury or disease, whereas under primary
legislation, assessment must be restricted to
a claimant’s ‘physical and mental
condition’.
There are differing views on whether non-
occupational risk factors constitute ‘other
effective causes’. Deductions for ‘other
effective causes’ are relatively infrequent
and typically small. However, they may
have significant effects on individual
claims. Deductions can only be made in
respect of occupational injury claims,
encompassing a restricted list of prescribed
diseases.
The prescribed disease that is likely to be
the most affected by deductions is
osteoarthritis of the knee. Other diseases
likely to be affected, include
focal dystonia of the hand or
forearm;
tenosynovitis; carpal tunnel
syndrome;
osteoarthritis of the hip;
anaphylaxis in healthcare workers
due to rubber gloves;
dermatitis;
allergic rhinitis; and
asthma.
Risk factors are attributes that make one
person more or less susceptible to a
particular disease or injury than others. For
example, some people may have a
genetic predisposition that makes them
susceptible to respiratory irritation from
inhalation of dust. Indeed, there have
been cases where risk factors have been
considered to be ‘other effective causes’,
despite there being no evidence of
disability, caused by the risk factor, when
the worker began their employment.
In one cited case, the report discusses that
a coal miner, who had had surgery to the
cartilage of his knee before becoming a
miner, and who developed symptoms of
knee osteoarthritis almost fourty years later,
was deemed to have another effective
cause. As such, one-third of the award
deducted, despite his complete recovery
from the earlier surgery and regained
ability to work as a miner for many years.
Moreover, according to The Industrial
Injuries Benefit Handbook 1 for Healthcare
Professionals: The Principles of Assessment,
deductions may be made for
‘degenerative changes’ on spinal X-rays, in
respect of awards for back pain injury, on
the basis that the degenerative change
‘would have caused problems eventually’,
i.e. hypothetical ‘other effective causes’.
In the decision of the Social Security
Commissioner6 (here), on appeal from the
decision of the Medical Appeal Tribunal,
the Commissioner cited Rowland. Medical
and Disability Appeal Tribunals: the
Legislation (1993 edition), which states that:
‘It cannot be emphasized too firmly that an
offset cannot be justified merely by a
finding that a claimant had some
predisposition or liability to develop some
disabling condition. There must be a
finding that the claimant would have
suffered a disability due to the other
effective cause even if the industrial
accident had never happened’.
In other words, mere predisposition to future
disability is not enough; it needs to be
established, as a medical fact, that the
predisposition will cause disablement. This
decision is more than 20 years old, and
later judgements have not added to,
challenged, or substantially amended this
opinion.
The IIAC found that, in deciding the
appropriate deduction from the claims
where there is a known risk factor in the
claimant’s medical history, the decision
maker has to decide:
i. how likely it is that a factor has
contributed to their current
disablement to any degree; and if
so
ii. to what extent; and
iii. how likely it is that it will contribute
to their future disablement to any
degree; and if so
iv. to what extent,
on the balance of probabilities.
Whilst it is conceivable that a condition
causing no symptoms at the date of injury
may cause disablement later, the issue is
how the deduction can be justified
scientifically. In making that judgement, the
claimant should be compared to a ‘normal’
person of their age and sex. For example,
an older person could be expected to
have some symptomless degeneration of
the spine. In this scenario, should a
characteristic of the comparison group be
considered as a risk factor?
The Council considered deductions in two
categories of occupational disease.
In the first category, the claimant either has
the disease or they do not. An example of
this would be cancer. The disability would
not have occurred had the injury not been
inflicted.
In the second category, there is gradual
development of functional impairment. An
example of this would be deterioration in
respiratory function or hearing ability. The
damage that leads to disability in these
cases can arise from multiple occupational
and non-occupational risk factors.
It was concluded, in the first category of
cases, that if the cause of the disability was
accepted under the scheme, the disability
would not have occurred had the injury not
been inflicted. As a result, there are clear
scientific grounds for avoiding deductions
for non-occupational risk factors. If the
disease can be attributed to work, on the
balance of probabilities, the Council
advises that the disease should be deemed
to be caused by work, ‘irrespective of
whether other identifiable causes may
have played a role’. It follows that any
disablement resulting from the disease
would also have not occurred in the
absence of occupational exposure.
PAGE | 40
The second category of cases is more
complicated. The ‘causation’ question can
be answered if it can be shown that, but for
the relevant occupational exposure, the
disease would not have reached the level
of severity specified by the list of prescribed
diseases. However, this does not preclude
the existence of other contributing causes.
Disability may also arise from simultaneous
ill health that is wholly unrelated to the
occupational disease or injury, but still
results in the same type of disablement.
For example, a pre-existing genetic
condition may impair lower limb function,
and occur in conjunction with knee
osteoarthritis, which is considered to have
an occupational cause. Alternatively, a
potential claimant may have previously
had tuberculosis and may also have
experienced hazardous occupational
exposure. In that situation, both factors
could contribute towards a decline in lung
function.
In both of these cases, the claimant would
have experienced some disability, even if
they had never been occupationally
exposed. Thus, a deduction in damages
would be reasonable.
So, the aim investigations should be to
determine how much additional
disablement has occurred by way of the
claimant’s employment, relative to
disablement outside of employment.
The Council found that deductions would
only be scientifically justifiable if the extent
of disablement from a non-occupational
cause could be ascertained reliably, at the
commencement of the employment, as
being responsible for the disability. In other
words, the award can only be reduced if
the amount of disability, due to a pre-
existing cause, is known prior to any
occupational exposure. Objective
evidence, such as medical records, in
support of disablement from a non-
occupational cause, would be needed to
warrant deductions. In practice, evidence
of symptoms, or abnormal function, are
rarely available.
The paper concluded by recommending
that:
‘… deductions are not made under
Regulation 11(3) for non-occupational risk
factors for prescribed diseases or injuries,
when these factors have not manifested as
ascertainable disablement prior to the start
of the responsible employment. We
recommend that this should apply across
the Scheme as a whole’.
Study Linking
Occupational Stress
and Mortality
In last week’s edition of BC Disease News
(here), we discussed a link between
occupational stress and atrial fibrillation.
This week, we consider another study,
which considered the impact of job stress
on people who have already been
diagnosed with cardiometabolic disease.7
Results were published in the Lancet
Diabetes and Endocrinology journal.
A 14 year study tracked more than 100,000
Finish, French, Swedish and the British test
subjects, both with and without
cardiometabolic disease. 3,841
participants died by the end of the
investigation.
Stress in participants was measured in two
different ways. Firstly, ‘job strain’ was
observed. This looked at whether the
participant had ‘a demanding job but little
control over those demands’. Secondly, the
researchers observed ‘effort-reward
imbalance’. This looked at whether
participants ‘put a lot of effort into their jobs
for little reward’.
Health and lifestyle factors, such as whether
people were obese, had high blood
pressure, smoked or did not exercise, were
taken into account, before drawing
conclusions and making any associations.
‘Doctors found that men with diabetes,
heart disease, or who had previously
suffered a stroke, were 68% more likely to
die over the course of the study if they had
demanding jobs with little control over their
workload’.
The researchers found that a greater risk
remained, even when the male
participants had exercised, controlled their
weight and blood pressure, and did not
smoke.
Interestingly, men with ‘effort-reward
imbalance’ and cardiometabolic disease
were not linked with an increase in risk of
premature death, while there was an
increased risk in men without the disease.
Conversely, neither ‘job strain’ nor ‘effort-
reward imbalance’ had any impact on
death rates of women in the study.
The findings, therefore, suggest that for men
with pre-existing cardiometabolic disease,
stress attributable to feeling overwhelmed
at work is nearly as harmful as smoking and
more dangerous than being obese, having
high cholesterol, taking too little exercise, or
drinking too much.
Andrew Steptoe, Professor of psychology at
University College London and lead author
of the study, discussed the potential
difference between the sexes:
‘We think the difference is most probably
down to direct biological stress effects. For
example, men and women may differ in
how much stress hormone, cortisol, they
produce, or how much inflammation they
experience under stressful conditions. Stress
also makes blood pressure rise, potentially
increasing the risk of heart attacks or stroke
in people who already have hardened
arteries (atherosclerosis), the doctors say’.
Moreover, Mika Kivimaki, Professor of social
epidemiology at UCL, stated:
‘That we found the stress-mortality link in
men but not in women is consistent with the
fact that atherosclerosis is more common in
working-aged men than women’.
PAGE | 41
Feature:
Hearing Testing Methods Additional to Pure Tone Audiometry (Part 1)
INTRODUCTION
In edition 160 of BC Disease News (here), we considered whether a single audiogram, produced by Pure Tone Audiometry (PTA) Testing, is
a valid basis for bringing NIHL claims.
We considered the strength of PTA, in light of research, conducted by Southampton University, which stated:
‘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’.
Over the course of the next two weeks, we will be considering alternative scientific clinical methods capable of diagnosing hearing loss:
1. OTO-ACOUSTIC EMISSIONS
Otoacoustic emissions are sounds that originate from vibrations of the cochlea, and are caused by the motion of sensory hair cells in the
cochlea as they respond to auditory stimulation. These vibrations occur as a by-product of a cochlear mechanism known as the ‘cochlear
amplifier’, which contributes to the sensitivity and discrimination of hearing. During the test, a small microphone is placed in the ear canal.
The microphone plays a sound and detects the inner ear’s response to the sound.
Types of otoacoustic emissions include distortion product otoacoustic emissions (DPOAEs) and transient evoked otoacoustic emissions
(TEOAEs). DPOAE testing uses two pure tones that have similar frequencies as stimuli, which combine to generate different frequency
components. In response to these tones, outer hair cells generate signals, called distortion products, that are related to the frequencies
of the presented tones. TEOAEs uses clicks that cover a range of frequencies as the stimulus. Unlike other hearing tests, it is not necessary
for the stimulus to be close to threshold levels to detect departures from normal function, using OAEs.
In TEOAE testing, ‘wide-band’ clicks are generated and these excite the whole of the cochlea. TEOAE responses can give frequency
specific information about cochlear function, by splitting the response into frequency bands. TEOAE responses are strongest and easiest
to detect in the 1-4 kHz band. In children and babies, TEOAEs extend up to 6-7 kHz, but many clinically normal adult ears give weak
TEOAEs (less than 3 dB SPL), with no substantial response above 4 kHz8. A stimulus clicking sound of around 84 dB SPL will normally evoke
a robust TEOAE response, only if the hearing threshold is 20 dB HL or better9. Frequencies at which hearing thresholds exceed 20-30 dB HL
are typically absent in the TEOAE response.
The TEOAE and DPOAE techniques complement each other. DPOAEs offer observation over a wider range of frequencies (up to more than
10 kHz), but have less sensitivity to minor conditions in adults. DPOAEs have been found to provide the most information for detecting mild
hearing loss at high frequencies. With moderate hearing losses, DPOAEs may be recorded when no TEOAE can be detected, because
the continuous tones used in DPOAE may provide more powerful stimulation to the cochlea than the clicks used in TEOAE. DPOAE analysis
is complex and interpretation is difficult. If DPOAEs are present, but TEOAEs are absent, this suggests mild-to-moderate loss only10
.
How Reliable Is It?
Although OAEs are a good indicator of hearing loss, an OAE test is not a hearing test; it is a test of cochlear function11
. It is tempting to
believe that OAE intensity relates to cochlear ‘strength’, but this is not the case. The presence, or lack thereof, of an OAE response is of
clinical importance; the strength is not. In other words, an OAE gives a ‘yes or no’ response at different frequencies of cochlear function.
OAEs are frequency-specific, and are seen in frequency bands where hearing is normal.
PAGE | 42
OAE response intensity can be strongly affected by factors such as the fit of the probe used to record the data and middle ear disorders.
Individual healthy ears differ greatly in the level and spectrum of OAEs produced. OAEs provide information about the function of the
outer hair cells, and do not evaluate the inner hair cells12
. An advantage of OAE testing over pure tone audiometry is that co-operation
from the listener is not required: OAE is an objective test method. A disadvantage is that OAE results can be affected by middle ear
status13
.
In DPOAE testing, the cochlea status is indicated by the intensity of the different components of the tones. DPOAE generation is much
reduced and usually absent if there is significant sensory hearing loss. Measurement of DPOAEs, using a range of stimulus sound levels,
can establish OAE ‘growth rate’, i.e. how the intensity of the OAE varies with the intensity of the stimulus. Healthy ears tend to exhibit a
DPOAE growth rate of 1 dB of OAE per 1 dB of stimulus or less. Ears with some impairment show steeper growth.
Single DPOAE observations can be misleading and results need to be averaged across a frequency range. It has been suggested that
when data from multiple people are grouped together, DPOAEs relate to hearing threshold levels, but in data on individuals, they are a
very unreliable and imprecise indicator of hearing thresholds14
. This is because the assessment of cochlear function does not depend on
how the inner hair cells transmit signals to the auditory nerve, which is what determines the hearing threshold.
In a review, published in March of 2018, Helleman compared OAEs with audiometry, to see how effectively they could monitor the effects
of long-term noise exposure on hearing15
. The review included 13 articles, in which 30-350 participants were followed long-term. A meta-
analysis was not possible because there were significant differences in the designs of the studies. Both PTA and OAE showed shifts in
individuals, but a congruent pattern could not be observed. The reviewers concluded that OAE could not reliably detect threshold shifts
at individual level.
What is the minimal amount of hearing loss that can be measured?
OAEs are normally very stable with time and are valuable as a sensitive monitor of changes in cochlear and middle ear status over time.
Though they can differ enormously between healthy ears in different people, they are usually quite stable in left and right ears in the same
person.
It has been suggested that OAEs are more sensitive than pure tone audiometry in detecting the early stages of permanent noise-induced
inner ear damage in humans. In a study of 285 U.S. Marine Corps recruits and 32 controls, the participants were exposed to three weeks
of weapons’ fire, and their hearing was measured with PTA and with OAEs before and after exposure. Among the noise-exposed volunteers,
there were significant decreases in OAE amplitude, but no change in audiometric thresholds16
. The group average decrement in hearing
was 0.84 dB. Both DPOAEs and TEOAEs showed significant decreases in OAE levels after the noise exposure. The criteria for significant
emission shifts were a shift of 4 to 6 dB for TEOAEs, and 6 to 10 dB and 7 to 8 dB for the DPOAEs (for the two different frequencies of applied
tones). These were determined by considering the emission shifts in the group that were not exposed to noise, as presumably any such
shifts would be due to chance. The researchers hypothesised that these emission shifts could be due to inner-ear damage in the 2-4 kHz
range, which causes subclinical changes insufficient to affect audiometric thresholds, but to which OAEs are sensitive. This is consistent
with observations in animals that outer hair cells can be damaged without any change in audiometric thresholds, and the idea that OHC
loss shows up on OAE testing because OAE measurements directly measure OHC activity. The authors of this study, published in 2008,
comment that, ‘The standard clinical protocol, which produces a resolution of 5 dB, may hinder the detection of small changes in
audiometric thresholds, even in the group average’.
A slightly older study, in which participants’ hearing was measured before and after 6 months of noise exposure on an aircraft carrier, also
found that the average amplitude of the OAE decreased significantly and the average audiometric thresholds did not change17
.
Different sources report different hearing thresholds above which OAEs will not be present. Reported thresholds are:
Kemp18
: 20 dB.
Kung and Wilcox 200719
: 25 to 30 dB.
Musiek and Chermak: 30 dB for transient OAEs and approximately 40 dB for DPOAEs.
Cunningham20
: If DPOAE is present with 70 dB stimulus, this can only tell us that the listener has no greater than moderate hearing
loss. If DPOAE is present with 65 and 55 dB, we can assume normal OHC function and, indirectly, normal hearing.
Gorga21
: DPOAE could best distinguish between normal and impaired ears when normal hearing was defined as audiometric
thresholds between 20 and 30 dB.
PAGE | 43
Models have been created that attempt to estimate the hearing thresholds from DPOAE data. For example, Boege and Janssen (2002)
found that DPOAE enabled a reliable estimation of cochlear hearing threshold up to hearing losses of 50 dBHL22
.
The ‘Gorgagram’ is a method used to assign any measured DPOAE value with the probability that the response is coming either from the
distribution of normal or impaired responses (from Gorga in Ear and Hearing). The graph shows how DPOAE values correlate with normal
hearing and hearing-impaired patients at different frequencies. The top line represents the DPOAE levels expected from the 90th percentile
of hearing-impaired patients, i.e. the levels that would be expected in someone who has hearing impairment, but has better hearing than
90% with hearing impairment. The bottom line represents the 5th percentile of normal hearing patients, i.e. the DPOAE levels expected for
someone who has normal hearing, but whose hearing is worse than 95% of normal hearing people. The shaded region is the borderline
region. Anyone whose DPOAE level is above the shaded region has, most likely, impaired hearing at that frequency, and anyone whose
DPOAE level is below the shaded region has, most likely, normal hearing at that frequency.
Figure: The ‘Gorgagram’23
:
A study by Wooles aimed to examine whether distortion product optoacoustic emissions can serve as a replacement for pure tone
audiometry in longitudinal screening of workers exposed to noise. No clinically relevant relationship between DPOAE amplitude and PTA
threshold, at matched frequencies, was apparent24
.
Summary
Several studies have found that OAEs are not a suitable tool for prediction of PTA thresholds, and other studies have found that noise can
affect OAEs but not PTA thresholds.
OAEs are not detectable if the hearing threshold is above a particular level, the value of which ranges from 20 to 40 dB in different studies.
If there is no detectable OAE above, for example 30 dB, then the hearing threshold could be any value above 30 dB. This means that an
increase in threshold from, for example, 45 dB to 55 dB, would not be detected. Put another way, the size of hearing loss could only be
detected if the before and after thresholds were both less than the particular value. If the initial threshold was found to be below 30 dB,
and then there was no reading recorded in a later test, this shows that hearing loss has occurred, but the size of the loss cannot be
determined.
The study of the military workers found that changes in emission level of 6 to 10 dB were detectable. However, the exact relationship
between emission level and hearing threshold is unclear, as some studies report that emission levels correlate well with hearing thresholds,
but Kemp, who discovered OAEs, makes the point that the presence or lack of an OAE response is significant, but the size of the response
is not.
PAGE | 44
2. SPEECH INTELLIGIBILITY TESTING
Speech intelligibility is a measure of how much speech can be understood by a listener. Hearing loss patients may often be able to hear
clearly in quiet conditions, but have difficulty understanding speech when there is background noise. Various attempts have been made
over the years to assess the handicap of these listeners.
The articulation index (AI) is, in general, an expression of the proportion of the average speech signal that is audible to a given patient,
and takes values in the range from 0 to 1.0. The concept of the articulation index was introduced in the 1940s25
.
A simple and comprehensible procedure for calculating the AI was developed by Pavlovic, in the late 1980s26
. His method uses the pure
tone audiogram and involves adding the number of ‘audible decibels’ at 500, 1000, 2000 and 4000 Hz, and then dividing by 120, which
is the total number of decibels. In 1990, Mueller and Killion published an easier to use version of this, known as the count-the-dot method27
.
Count-The-Dot Method
The count-the-dot method is a method by which the articulation index (AI) may be estimated. The AI is usually calculated by considering
the speech signals in several frequency bands, which are weighted by their relative importance, or the amount of speech information
contained. The frequency region surrounding 2 kHz is generally considered to contain the most speech information. The count-the-dot
method involves tracing the patient’s pure tone audiogram onto the following diagram and counting the dots that are below the line –
these are the parts of the speech spectrum that are audible to the listener. There are 100 dots in total, and if 70 dots were audible, the
listener would have an AI of 0.7. However, this does not mean that the listener has 70% speech intelligibility – the relationship between the
AI and the percentage of various types of speech that would be intelligible is shown in the second figure (below). An AI of 0.7 would
correspond to between 95 and 100 % of sentences and 85-90 % of single syllable words being audible. An AI of 0.7 would also correspond
to a normal-hearing listener listening to a speech level that is about 9 dB louder than the background noise (see diagram below).
Figure: Count-the-dot audiogram by Mueller and Killion
PAGE | 45
Figure:
Mueller and Killion note that caution must be taken when using the above chart to predict a patient’s performance. The clinically measured
audibility is often not the level of audibility for real-life listening situations. For many communication settings, the masking effect of
background noise will lower the hearing threshold and the resulting AI can be much lower. Also, perceptual aberrations other than
threshold sensitivity loss, might exist and affect speech intelligibility. This is not likely to be an accurate measure of a listener’s ability.
The dots diagram was updated in 2010 to reflect new reports suggesting that higher frequencies contribute more information to speech
understanding that was originally thought. The new dots diagram is shown below28
:
Figure: 2010 Count-the-dots diagram
PAGE | 46
In the 2010 article, the authors emphasise that the theoretical relationship between the AI and intelligibility applies only to normal-hearing
individuals.
Speech Intelligibility Index
The AI was updated and succeeded by the speech intelligibility index. The speech intelligibility index (SII) was introduced in the late 1990s,
and, like the AI, is a quantification of the proportion of speech information that is both audible and usable for a listener. The SII can take
values between 0.0 and 1.0, and as it increases, speech understanding generally increases. The SII and speech understanding are similar,
but not exactly the same. For example, an SII of 0.7 does not mean that the listener would understand 70% of the speech. The SII and the
AI can be used to predict speech recognition scores. This was shown above, in the AI section. The primary difference between the SII and
the AI is that the information required for the SII calculation is more flexible. SII is calculated, over a number of different frequencies, by
comparing the level of the speech peaks (possible sounds in speech) with the auditory thresholds or the level of background noise. It is
assumed that elevated thresholds and background noise function, in the same way, limit audibility. The scope of the SII is limited to listeners
without hearing loss29
.
Rather than being a direct measure of hearing loss, the SII is a measure of the impact of hearing loss on the understanding of speech. The
count-the-dots method is a diagnostic test rather than a hearing test.
3. SPEECH IN NOISE TESTING
QuickSIN
The QuickSIN is a speech-in-noise listening test that measures listeners’ ability to hear in noise. The designers of the QuickSIN say that
speech understanding in noise cannot be reliably predicted from the pure tone audiogram or other standard audiometric tests30
. In the
test, a list of six sentences, with 5 key words per sentence, is presented in four-talker babble noise. The sentences are presented at different
signal-to-noise ratios (the difference in loudness between the interesting speech and the background noise), which decrease in 5 dB steps.
The test was developed to provide a quick way for clinicians to quantify a patient’s ability to hear in noise, and to aid with selecting hearing
aids. The test gives a signal to noise ratio loss, which is calculated by subtracting the number of correctly identified words from 25.5. The
figure below shows 6 sentences presented at different speech to noise ratios, the listener’s score for each sentence, and their SNR loss result
of 3.5. As there are 5 words at each 5 dB interval, each word can be thought of as being equivalent to one dB. It is not stated in the
QuickSin Guide, but presumably the numbers in the right-hand column are the numbers of words that a normal-hearing listener would be
expected to correctly identify.
The SNR loss score is then classified, as shown in the table below:
In summary, the QuickSIN test measures the loss in speech to noise ratio. In other words, the test shows the increase in signal-to-noise ratio
needed by a listener compared to the average listener with normal hearing.
PAGE | 47
It has been reported that 12 equivalent sentence lists comprise the QuickSIN test that measures the speech to noise ratio that a listener
requires in order to understand 50% of key words in background noise. The standard deviation of scores from a single list is 1.4 dB for
hearing-impaired subjects, based on test-retest data. A single QuickSIN list takes approximately one minute to administer and provides an
estimate of SNR loss accurate to +/- 2.7 dB in 95% of listeners31
.
A 2006 study investigated the equivalency of the 18 possible QuickSIN test lists. There was high performance variability across lists for
listeners with hearing loss but not for listeners with normal hearing. Nine of the lists provided homogenous results for listeners with and without
hearing loss32
.
According to a study in which the BKB-SIN, HINT, QuickSIN and WIN tests were compared among normal and hearing-impaired listeners,
the QuickSIN and WIN methods were more sensitive measures of recognition of speech in background noise than the BKB-SIN and HINT
methods, due to larger differences found between normal hearing and hearing-impaired groups33
.
Hearing In Noise Test (HINT)
The Hearing in Noise Test (HINT) is a way of measuring a listener’s ability to hear speech in the quiet and in noise34
. During the test, the
listener repeats sentences that they have heard, with either no competing noise, or with competing noise coming from in front, to the left
and to the right of the patient. The loudness of the sentences is varied throughout the test, depending on whether the patient repeats it
correctly or not. The tester scores each sentence repeated as either correct or incorrect. All words in the sentence must be repeated
correctly for it to be recorded as being correct. At the end of the test, a signal-to-noise ratio (SNR) is generated for each test condition.
This is a measure of how much louder the sentences need to be than the background noise for the patient to repeat them correctly 50%
of the time. For example, a SNR of 5 dB means that the sentences had to be presented at 70 6B (5 dB above the 65 dB background noise)
to be repeated correctly 50 % of the time35
.
The test shows the listener’s signal to noise ratio threshold, the SNR threshold, as a percentile in reference to the normal distribution of other
listeners, and the maximum percent change in intelligibility relative to the average normal performance. In other words, the listener can
find out how their score compares to other peoples’ scores.
The comparison of the BKB-SIN, HINT, QuickSIN and WIN tests found that the HINT test was a less sensitive measure of recognition performance
in background noise than the QuickSIN and WIN tests.
Words In Noise (WIN) test
The Words In Noise or WIN test was designed to measure a listener’s ability to understand single syllable words in background noise36
.
Initially, there was a list of 70 words to be tested, which was split into 10 words at 7 different signal-to-noise ratios, from 24 to 0 dB, in 4 dB
increments. This was later split into two equivalent 35-word lists, and a third list was developed as a practice list. It was found that the same
group of listeners obtained similar scores on lists 1 and 237
.
A group of older listeners with sensorineural hearing loss took part in a study to assess the differences in responses in one test and between
separate tests. Among 315 participants who took two tests 1 year apart, the 50% correct S/N ratios were 12.5 and 12.8 dB. In the second
part of the study, two tests were taken 40 days apart, and the 50 % correct S/N ratios were 13.0 and 13.4 dB for 48 participants with mild-
to-severe hearing loss, and 15.3 and 15.8 dB for 48 participants with moderate-to-severe hearing loss. There were no significant differences
within the tests38
. The authors of the study concluded that the results from both the 70 and 35-word versions of the WIN, indicate that for
listeners with various degrees of sensorineural hearing loss, the WIN provides both a stable and reliable measure of word-recognition
performance in background noise. Mean differences between listeners with normal hearing and listeners with hearing loss were 6-9 dB39
.
According to a study in which the BKB-SIN, HINT, QuickSIN and WIN tests were compared among normal and hearing impaired listeners,
the Quick Sin and WIN methods were more sensitive measures of recognition of speech in background noise than the BKB-SIN and HINT
methods, due to the larger differences found between normal hearing and hearing-impaired groups40
.
BKB-SIN
This is another speech in noise test that uses Bamford-Kowal-Bench sentences, recorded with 4-talker background noise. The test contains
18 ‘List Pairs’ of sentences. The first sentence in each list has four key words, and the remaining sentences each have three. The numbers
of correct words for each list are added, and the total is subtracted from 23.5 to obtain the signal-to-noise ratio at which 50% of words are
PAGE | 48
correct (SNR-50). The scores are then classed as normal/near normal, mild SNR loss, moderate SNR loss and severe SNR loss according to
the table shown in the discussion of the QuickSIN, above41
. This test is very similar to the QuickSIN test – the only differences are the
sentences used, and that the QuickSIN has a female speaker, whereas the BKB-SIN has a male speaker.
Summary
Measurement of the speech intelligibility index is intended to be performed on normal hearing listeners, making it an unhelpful tool for
determining the amount of hearing loss.
The hearing-in-noise tests determine how much louder speech needs to be in order to be understood by the listener, in the presence of
background noise. In the QuickSIN test, each word heard correctly corresponds to 1 dB of SNR, so the SNR can be measured to the nearest
1 dB. It has been reported that the QuickSIN test is accurate to +/- 2.7 dB SNR in 95% of listeners.
According to a study, in which the BKB-SIN, HINT, QuickSIN and WIN tests were compared among normal and hearing-impaired listeners,
the Quick Sin and WIN methods were more sensitive measures of recognition of speech in background noise than the BKB-SIN and HINT
methods, due to larger differences between normal hearing and hearing-impaired groups.
PAGE | 49
References
1 John Hyde, ‘Court rules CFA scope not limited to named defendant’ (20 June 2018 Law Gazette)
<https://www.lawgazette.co.uk/law/court-rules-cfa-scope-not-limited-to-named-defendant/5066553.article> accessed 21 June
2018.
2 John Hyde ‘Asons liquidators take legal advice over SRA’s £100k intervention deal’ (Law Gazette, 19 June 2018)
https://www.lawgazette.co.uk/news/asons-liquidators-take-legal-advice-over-sras-100k-intervention-deal-/5066537.article accessed
20 June 2018.
3 Ibid.
4 ‘Drug reduces hearing loss' after childhood cancer treatment’ (21 June 2018 BBC) <https://www.bbc.co.uk/news/health-44546323>
accessed 21 June 2018.
5 Diseases with multiple known causes, occupational injuries, and medical assessment. Industrial Injuries Advisory Committee.
Command Paper Cm 9632. June 2018
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/717108/diseases-with-multiple-
known-causes-occupational-injuries-and-medical-assessment-iiac-report.pdf (Accessed 20 June 2018)
6 CI/34/93.
7 Ian Sample, ‘Work stress raises risk of premature death in vulnerable men – study’ (6 June 2018 The Guardian)
<https://www.theguardian.com/society/2018/jun/06/work-stress-raises-risk-of-premature-death-in-vulnerable-men-study> accessed
18 June 2018.
8 Kemp, D. T. Otoacoustic emissions, their origin in cochlear function, and use. Br Med Bull 63, 223–241 (2002).
https://academic.oup.com/bmb/article/63/1/223/377500 (Accessed 29 March 2018)
9 Kemp, D. T. Otoacoustic emissions, their origin in cochlear function, and use. Br Med Bull 63, 223–241 (2002).
https://academic.oup.com/bmb/article/63/1/223/377500 (Accessed 29 March 2018)
10 Ibid Kemp
11 Kemp, D. T. Otoacoustic emissions, their origin in cochlear function, and use. Br Med Bull 63, 223–241 (2002).
https://academic.oup.com/bmb/article/63/1/223/377500 (Accessed 29 March 2018)
12 Cunningham, R. F. Otoacoustic Emissions: Beyond Newborn Hearing Screening Rebekah F. Cunningham. AudiologyOnline Available
at: https://www.audiologyonline.com/articles/otoacoustic-emissions-beyond-newborn-hearing-838. (Accessed: 6th April 2018)
13 Helleman, H. W., Eising, H., Limpens, J. & Dreschler, W. A. Otoacoustic emissions versus audiometry in monitoring hearing loss after
long-term noise exposure - a systematic review. Scand J Work Environ Health (2018). doi:10.5271/sjweh.3725
https://www.ncbi.nlm.nih.gov/pubmed/29542804 (Accessed 6 April 2018)
14 Kemp, D. T. Otoacoustic emissions, their origin in cochlear function, and use. Br Med Bull 63, 223–241 (2002).
https://academic.oup.com/bmb/article/63/1/223/377500 (Accessed 29 March 2018)
15 Helleman, H. W., Eising, H., Limpens, J. & Dreschler, W. A. Otoacoustic emissions versus audiometry in monitoring hearing loss after
long-term noise exposure - a systematic review. Scand J Work Environ Health (2018). doi:10.5271/sjweh.3725
https://www.ncbi.nlm.nih.gov/pubmed/29542804 (Accessed 9th April 2018)
16 Marshall, L. et al. Detecting incipient inner-ear damage from impulse noise with otoacoustic emissions. The Journal of the Acoustical
Society of America 125, 995–1013 (2009).
https://pdfs.semanticscholar.org/b7e9/ae6d3bcb84aa5b9297da10bf64f30ebfe515.pdf (Accessed 3 April 2018)
17 Lapsley Miller, J. A., Marshall, L., Heller, L. M. & Hughes, L. M. Low-level otoacoustic emissions may predict susceptibility to noise-
induced hearing loss. The Journal of the Acoustical Society of America 120, 280–296 (2006).
https://www.researchgate.net/profile/Laurie_Heller/publication/6911749_Low-
level_otoacoustic_emissions_may_predict_susceptibility_to_noise-induced_hearing_loss/links/02e7e524c3f573679d000000.pdf
(Accessed 6 April 2018)
18 Ibid Kemp
19 Kung, B. C. & Willcox Jr., T. O. CHAPTER 25 - EXAMINATION OF HEARING AND BALANCE. in Neurology and Clinical Neuroscience (eds.
Schapira, A. H. V. et al.) 318–327 (Mosby, 2007). doi:10.1016/B978-0-323-03354-1.50029-8
https://www.sciencedirect.com/topics/medicine-and-dentistry/otoacoustic-emission (Accessed 6 April 2018)
20 Cunningham, R. F. Otoacoustic Emissions: Beyond Newborn Hearing Screening Rebekah F. Cunningham. AudiologyOnline Available
at: https://www.audiologyonline.com/articles/otoacoustic-emissions-beyond-newborn-hearing-838. (Accessed: 6th April 2018)
21 Gorga, M. P. et al. From Laboratory to Clinic: A Large Scale Study of Distortion Product Otoacoustic Emissions in Ears with Normal
Hearing and Ears with Hearing Loss. Ear and Hearing 18, 440 (1997).
22 Boege, P. & Janssen, T. Pure-tone threshold estimation from extrapolated distortion product otoacoustic emission I/O-functions in
normal and cochlear hearing loss ears. The Journal of the Acoustical Society of America 111, 1810–1818 (2002).
https://asa.scitation.org/doi/abs/10.1121/1.1460923 (Accessed 3 April 2018)
PAGE | 50
23 Figure from https://www.audiologyonline.com/articles/otoacoustic-emissions-beyond-newborn-hearing-838
24 Wooles, N., Mulheran, M., Bray, P., Brewster, M. & Banerjee, A. R. Comparison of distortion product otoacoustic emissions and pure
tone audiometry in occupational screening for auditory deficit due to noise exposure. J Laryngol Otol 129, 1174–1181 (2015).
https://www.ncbi.nlm.nih.gov/pubmed/26549131 (Accessed 6 April 2018)
25 French, N. R. & Steinberg, J. C. Factors Governing the Intelligibility of Speech Sounds. The Journal of the Acoustical Society of
America 19, 90–119 (1947). https://asa.scitation.org/doi/abs/10.1121/1.1916407 (Accessed 16 April 2018)
26 Pavlovic, C. V. Articulation index predictions of speech intelligibility in hearing aid selection. ASHA 30, 63–65 (1988).
27 An Easy Method For Calculating the Articulation Index. Mueller, G. and Killion, M.C.
http://www.etymotic.com/media/publications/erl-0020-1990.pdf (Accessed 16 April 2018)
28 Killion, M. C. & Mueller, H. G. Twenty years later: A new Count-the-dots method. The Hearing Journal 63, (2010).
http://thehearingblog.com/wp-content/uploads/Count-The-Dots-by-Mead-Killion.pdf (Accessed 16 April 2018)
29 Hornsby, B. W. Y. The Speech Intelligibility Index: What is it and what’s it good for? The Hearing Journal 57, 10 (2004).
https://journals.lww.com/thehearingjournal/Fulltext/2004/10000/The_Speech_Intelligibility_Index__What_is_it_and.3.aspx (Accessed 24
April 2018)
30 QuickSIN TM Speech-in-Noise Test. Etymotic. https://www.etymotic.com/auditory-research/speech-in-noise-tests/quicksin.html
(Accessed 24 April 2018)
31 Killion, M. C., Niquette, P. A., Gudmundsen, G. I., Revit, L. J. & Banerjee, S. Development of a quick speech-in-noise test for measuring
signal-to-noise ratio loss in normal-hearing and hearing-impaired listeners. J. Acoust. Soc. Am. 116, 2395–2405 (2004).
https://www.ncbi.nlm.nih.gov/pubmed/15532670%20?iframe=true&width=100%&height=100% (Accessed 24 April 2018)
32 McArdle, R. A. & Wilson, R. H. Homogeneity of the 18 QuickSIN
TM Lists. Journal of the American Academy of Audiology 17, 157–167
(2006). https://www.audiology.org/sites/default/files/journal/JAAA_17_03_01.pdf (Accessed 24 April 2018)
33 Wilson, R. H., McArdle, R. A. & Smith, S. L. An Evaluation of the BKB-SIN, HINT, QuickSIN, and WIN Materials on Listeners With Normal
Hearing and Listeners With Hearing Loss. J Speech Lang Hear Res 50, 844–856 (2007).
https://www.researchgate.net/profile/Sherri_Smith4/publication/6162979_An_evaluation_of_the_BKB-
SIN_HINT_QuickSIN_and_WIN_materials_on_listeners_with_normal_hearing_and_listeners_with_hearing_loss/links/545bde1c0cf249070
a7a81b7.pdf (Accessed 25 April 2018)
34 Nilsson, M., Soli, S. D. & Sullivan, J. A. Development of the Hearing In Noise Test for the measurement of speech reception thresholds
in quiet and in noise. The Journal of the Acoustical Society of America 95, 1085–1099 (1994).
https://asa.scitation.org/doi/abs/10.1121/1.408469 (Accessed 29 April 2018)
35 Hearing in Noise Test (HINT). California Ear Institute. http://www.californiaearinstitute.com/audiology-services-hint-bay-area-ca.php
(Accessed 24 April 2018)
36 Wilson, R. H. Development of a speech-in-multitalker-babble paradigm to assess word-recognition performance. J Am Acad Audiol
14, 453–470 (2003).
37 Wilson, R. H. & Watts, K. L. The Words-in-Noise Test (WIN), list 3: a practice list. J Am Acad Audiol 23, 92–96 (2012).
https://www.ncbi.nlm.nih.gov/pubmed/22353677 (Accessed 29 April 2018)
38 Wilson, R. H. & McArdle, R. Intra- and inter-session test, retest reliability of the Words-in-Noise (WIN) test. J Am Acad Audiol 18, 813–
825 (2007). https://pdfs.semanticscholar.org/a89e/9b74dabde2ff55a01b9320e92b9ea493e09b.pdf (Accessed 29 April 2018)
39 Ibid Wilson 2003
40 Wilson, R. H., McArdle, R. A. & Smith, S. L. An Evaluation of the BKB-SIN, HINT, QuickSIN, and WIN Materials on Listeners With Normal
Hearing and Listeners With Hearing Loss. J Speech Lang Hear Res 50, 844–856 (2007).
https://www.researchgate.net/profile/Sherri_Smith4/publication/6162979_An_evaluation_of_the_BKB-
SIN_HINT_QuickSIN_and_WIN_materials_on_listeners_with_normal_hearing_and_listeners_with_hearing_loss/links/545bde1c0cf249070
a7a81b7.pdf (Accessed 25 April 2018)
41 etymotic.com https://www.etymotic.com/downloads/dl/file/id/260/product/160/bkb_sintm_user_manual.pdf (Accessed 29 April
2018)
PAGE | 51
CONTENTS
PAGE 51
Welcome
PAGE 52
Exemplary Damages and
Fraud: AXA Insurance UK Plc
v Financial Claims Solutions
Ltd & Ors [2018] EWCA Civ
1330
PAGE 53
5 Year Discount Rate Review
Amendment Passed, as
Whiplash Bill Transfers to
Commons
LASPO Part 2 Review
PAGE 54
SDT Sanctions for Fraudulent
Claimant Solicitor
Transatlantic Talc-Related
Cancer Claim Tactics
PAGE 55
WHO Adds ‘Gaming
Disorder’ to Newest Disease
Classification Manual
PAGE 58
Flight Attendants at High Risk
of Developing Cancer?
PAGE 59
Feature:
Hearing Testing Methods
Additional to Pure Tone
Audiometry (Part 2)
Welcome
Welcome to this week’s edition of BC Disease News.
In this week’s edition, we report on the Court of Appeal case of AXA Insurance UK
Plc v Financial Claims Solutions Ltd & Ors [2018] EWCA Civ 1330. Here, the
claimant insurer sought exemplary damages, on the basis that the defendant
had calculated to make a profit on fraudulent PI claims, which exceeded the
claimant’s damage for rectifying the fraud.
Also in relation to fraudulent practice, we report that a claimant PI solicitor (3 year
PQE) has been struck off the register and ordered to pay £2,500, in costs, for
backdating communication between clients. In addition, we discuss action
taken by the World Health Organisation to classify video gaming addiction in its
latest disease manual.
In this week’s feature article, we complete our 2-part series on hearing testing
methods additional to Pure Tone Audiometry Testing. We consider the
advantages and disadvantages of Cortical Electric Response Audiometry (CERA),
Auditory Brainstem Response (ABR) and Auditory Steady State Response (ASSR)
Testing.
Any comments or feedback can be sent to Boris Cetnik or Charlotte Owen.
As always, warmest regards to all.
SUBJECTS
Exemplary Damages and Claims Fraud – Civil Liability Bill 3rd
Reading – LASPO
Review – SDT and Claimant Solicitor Fraud – UK Talc Cancer Claims – Gaming
Disorder – Flight Attendants and Cancer – Cortical Electric Response Audiometry,
Auditory Brainstem Response and Auditory Steady State Response.
PAGE | 52
Exemplary Damages
and Fraud: AXA
Insurance UK Plc v
Financial Claims
Solutions Ltd & Ors
[2018] EWCA Civ 1330
Last week, the Court of Appeal handed
down judgment in the case of AXA
Insurance UK Plc v Financial Claims
Solutions Ltd & Ors [2018] EWCA Civ 1330,
where a ‘fake law firm’ was created to carry
out ‘serious fraud’ and the claimant insurer
sought exemplary damages, on top of
compensatory damages.
Facts
The defendants set up a ‘fake law firm’,
under the name, ‘Coelum Legal’, and
created two fictitious RTA claims, worth in
excess of £85,000, against individuals
indemnified by the claimant insurer. The
defendants’ ‘fake’ undertaking produced
‘False documents, such as hire agreements’
and ‘medical reports’. The defendants
‘conducted proceedings on the basis that
it was authorised to do so as a firm of
solicitors when it was not’.
Proceedings were commenced against the
claimant, after the defendants’ bogus RTA
claims were struck out by HHJ Seys-
Llewellyn QC.
The claimant sought compensatory and
exemplary damages under the torts of
deceit and unlawful means conspiracy.
Law on Exemplary Damages
The Law Commission states that, in general:
‘Exemplary damages are damages which
are intended to punish the defendant…
seek to effect retribution, as well as being
concerned to deter the defendant from
repeating the outrageously wrongful
conduct’. 1
They are an exception to the rule that
damages are compensatory in nature and
not penal.
Courts are required to carry out the
‘categories test’, as explained by Lord
Devlin Rookes v Barnard [1964] AC 1129,
before awarding exemplary damages.
The ‘categories test’ comprises of 3
categories where exemplary damages
would be appropriate:
1. oppressive, arbitrary or
unconstitutional action by servants
of the government;
2. wrongful conduct which has been
calculated by the defendant to
make a profit for himself which
may well exceed the
compensation payable to the
plaintiff; and
3. where such an award is expressly
authorised by statute.
Category 2 was the relevant category in
the AXA case.
At paragraph 120 of the judgment in
Kuddus (AP) v. Chief Constable of
Leicestershire Constabulary [2002] 2 AC
122, Lord Scott held:
‘Claims could be made in cases of
negligence and cases of deceit provided
only that the conduct complained of fell
within one or other of the two Devlin
categories (Rookes v Barnard [1964] AC
1129, 1226)’.
Outcome at Trial
An assessment of damages was carried out
by HHJ Keyser QC, at the High Court. He
awarded £24,954.31 in compensatory
damages to the claimant. This was
compensation for the time and effort spent
‘unravelling’ the defendants’ fraud.
However, the claim for exemplary
damages was dismissed.
The judge noted that the fictitious claims
sought a profit (£85,000) significantly more
than the costs incurred (£25,000) by the
claimant in due diligence and fraud
investigations. He cited Lord Devlin in
Rookes v Barnard [1964] AC 1129, on
category 2 of the ‘category test’:
‘Cases in the second category are those in
which the defendant's conduct has been
calculated by him to make a profit for
himself which may well exceed the
compensation payable to the plaintiff…
Where a defendant with a cynical
disregard for a plaintiff's rights has
calculated that the money to be made out
of his wrongdoing will probably exceed the
damages at risk, it is necessary for the law
to show that it cannot be broken with
impunity… Exemplary damages can
properly be awarded whenever it is
necessary to teach a wrongdoer that tort
does not pay’.
However, HHJ Keyser QC ruled that this case
did not fall within the 2nd
category:
‘… the profit and the compensation would
be identical’.
He went on to state, at paragraph 11 of his
judgment:
‘It is nothing to the point to say that if the
fraud had succeeded the profit would have
been far larger than the compensatory
damages are when it failed’.
The claimant appealed the decision of the
High Court Judge.
Counsel for the claimant argued that the
judge was ‘fundamentally incorrect’ in his
analysis, because the defendants had
calculated that if the fraud had
succeeded, £85,000 of profit would have
exceeded the compensation burden
(£25,000). Thus the 1st instance judge was
wrong not to heed Lord Hailsham, in
Broome v Cassell [1972] AC 1027:
‘What is necessary is that the tortious act
must be done with guilty knowledge for the
motive that the chances of economic
advantage outweigh the chances of
economic, or perhaps physical, penalty’.
Further, counsel submitted that the High
Court Judge gave ‘insufficient weight’ to the
PAGE | 53
rationale behind exemplary damages, i.e.
that they are in place to ‘deter and punish
outrageous conduct’.
At the Court of Appeal, Lord Justice Flaux
reasoned, at paragraphs 25 to 27:
‘… the second category only encompasses
cases where the defendant's conduct has
been calculated to make a profit for
himself which may well exceed the
compensation payable to the claimant. If
that criterion is satisfied, exemplary
damages may be awarded to deter and
punish such cynical and outrageous
conduct.
In my judgment that criterion is clearly
satisfied here … The respondents' object
was to extract large sums from the insurers
through fraudulent insurance claims in
circumstances where if the fraud was
discovered before it succeeded, any
compensatory damages would be limited
to the costs of investigating the fraud, which
would in all probability be a much lesser
sum, as proved to be the case.
… the second category requires the Court
to analyse the position prospectively when
the tort is committed, at which time the
tortfeasor may or may not ultimately
achieve the profit it seeks to achieve’.
He went on to further reason, at paragraphs
32 to 34:
‘… the present case … is a paradigm case
for the award of exemplary damages. This
was a sophisticated and sustained fraud
involving deceit and fraudulent
misrepresentation from the outset. The
accidents were faked. False
documentation, such as the hire
agreements and medical reports, was
created. The claimants themselves may not
have existed. The first respondent
conducted proceedings on the basis that it
was authorised to do so as a firm of solicitors
when it was not … Its conduct of those
proceedings was cynical and abusive and
through its dishonest manipulation and
misuse of the court process, falsely
representing that court documents had
been served when they had not, the fraud
very nearly succeeded. There is little doubt
that if the respondents had managed to
enforce the judgments they obtained
against Axa, Axa would never have seen its
money again.
Contrary to the view of the judge, it is
nothing to the point that criminal
proceedings could have been brought
(and indeed were brought against the third
respondent) … The existence of the criminal
proceedings and, in particular, the
confiscation proceedings was not
considered by this Court to affect the
award of exemplary damages if
appropriate and the argument of double
jeopardy was rejected …
Furthermore, I do not consider that the
availability of contempt of court
proceedings should adversely affect the
award of exemplary damages if it is
otherwise appropriate. Any contempt was
in a narrower compass than the overall
fraud and thus did not include the totality of
the outrageous conduct, quite apart from
the fact that contempt would have to be
proved to the criminal standard of proof’.
As such, the appeal was allowed and the 3
defendants were ordered to pay
exemplary damages of £20,000 each. This
sum was calculated on the basis of what
was ‘principled and proportionate’, per
Arden LJ in Ramzan v Brookwide [2011]
EWCA Civ 985.
Counter-fraud manager at AXA, Tom
Wilson, reacted to the Court of Appeal
judgment as follows:
‘This decision ... clarifying the law on
exemplary damages, helps send out a
clear message to anyone attempting to
defraud insurance companies and will
make unscrupulous organised fraudsters
pause and think about their actions
carefully’.2
Full text judgment can be found here.
5 Year Discount Rate
Review Amendment
Passed, as Whiplash Bill
Transfers to Commons
The Civil Liability Bill completed its passage
through the House of Lords on Wednesday
of this week, after having undergone its 3rd
reading, and will now be transferred to the
House of Commons for further
consideration.3
Amendments were successfully tabled on
the personal injury discount rate. The
Government accepted that the first review
of the current rate (minus 0.75%) should
take place as quickly as possible after royal
assent and will be reviewed every 5 years
thenceforth, rather than the original
proposal of every 3 years.
There were no amendments laid to change
the whiplash section of the Bill in this week’s
session in the Lords. Labour peers did,
however, state their intention to continue to
oppose increases made to the small claims
limit. Indeed, Lord Beecham asserted:
‘For our part, we will in future seek to oppose
the intended increase of the small claims
limit to all RTA cases to under £5,000 and
for all other personal injury claims to
£2,000, when the relevant regulations are
laid’.
LASPO Part 2 Review
We last reported on the Legal Aid,
Sentencing and Punishment of Offenders
Act 2012 (LASPO) review in edition 228 of BC
Disease News (here).
In Part 2 of the reforms, the Ministry of
Justice (MoJ) will be reviewing the following
five areas:
‘... the non-recoverability of success fees,
the non-recoverability of after-the-event
insurance premiums, DBAs, increased
penalties for failing to beat part 36 offers,
and the ban on referral fees’.
PAGE | 54
In a preliminary assessment (here),
published this Thursday, the MoJ revealed
that, in 2017, personal injury cases in the
courts fell by 13% to just 137,000. It also
announced that this week, ‘MoJ officials ...
held initial discussions with key stakeholders
about the impact of the part 2 reforms’.
Simultaneously, a survey has been issued
on litigation funding and costs (here). This
will remain open until 24 August 2018.
According to its preliminary assessment, the
MoJ is only ‘…aware of calls for limited,
technical changes to the statutory regime’,
on Part 36 Offers. Further, on referral fees,
the institution notes that:
‘... the current situation has not fully stopped
referral fees for personal injury cases as
referral fees continue in all but name under
different guises such as marketing fees. The
line has to be drawn somewhere between
what is a lawful referral and what is not, and
it is inevitable that activity will move to what
is lawful. If there is evidence that the current
arrangements are not working effectively,
we would be open to representations as to
how the statutory wording of the ban could
be improved or how its operation could be
made more effective’.4
A MoJ official report is expected to be
prepared by late 2018 on necessary action
to be taken, in respect of Part 2 reforms.
SDT Sanctions for
Fraudulent Claimant
Solicitor
A personal injury solicitor has recently been
struck off for backdating letters, in relation
to 9 of her clients.5
Qualified for 3 years, Ms. Davies was a
member of the personal injury team at her
employment, but took on a significant
number of head injury and medical
negligence claims, which were outside of
her specialism.
In September of 2016, an investigation
began into the solicitor’s alleged
misconduct. At the time, she admitted to
fabricating documents and records and
resigned with immediate effect.
In a subsequent letter to the Solicitors
Regulation Authority (SRA), she claimed that
her actions were a means to show her
supervisors that she was in control of her files
and that her files were progressing. She
claimed to have acted in the best interests
of her clients, but was ‘no longer able to
cope’.
At the Solicitors Disciplinary Tribunal (SDT),
she raised her grandfather’s terminal illness
as an additional mitigating factor and
described her workload as ‘too much for
her to handle on her own’, having received
no support from her employer.
The Solicitors Disciplinary Tribunal agreed
that Ms Davies should be struck off from the
Register and was ordered to pay £2,500 in
costs.
Transatlantic Talc-
Related Cancer Claim
Tactics
In editions 184 (here), 199 (here), 205 (here)
and 226 (here) of BC Disease News, we
reported on talc-induced cancer claims,
brought against baby powder provider,
Johnson & Johnson. In these reported
instances, the company was ordered to
pay $72 million, $110 million, $417 million
and $37 million (oldest to newest order) in
compensation. However, we also discussed
that the 1st and 3
rd compensation figures
were overturned on appeal.
Indeed, Johnson & Johnson has been
embroiled in a large proportion of US
litigation (at least 7 trials heard to-date). A
further 6,610 talc-related cancer claims
have also been lodged against the
company.
Last week, the Daily Mail reported that
British lawyer, Phillip Gower, of Simpson
Millar solicitors, has teamed up with US
advocate, Brendan Tully, of Phillips
Paolicelli attorneys, who has been
successful in several US talc cancer
lawsuits.6
Mr Tully was the first attorney to make a link
between talc and asbestos-related cancer,
obtaining an order for $7 million (£5.4
million) in compensation. On that occasion,
the defendant was Whitaker Clark and
Daniels, which supplied talcum powder to
Old Spice, Desert Flower and Friendship
Garden.
In the 1980’s, asbestos was removed from
talcum powder, as mining improvements
reduced the risk of cross contamination.
As a result, in addition to asbestos-related
cancer claims, claims have also been
brought in respect of ovarian cancer.
In the UK in 2015, more than 7,000 women
were diagnosed with cancer of the ovaries.
Generally, cases are most prevalent in
women aged between 75 and 79.
Mr Gower has argued that many talc
products ‘were shipped to the UK from
America with no health warnings on their
packaging’. As such, he claims that
extensive use of talc, without notice of risk,
has created a 'ticking
timebomb' of cancer among middle-
aged British women.
Despite advertisement of the talc-related
cancer risk, which has been reinforced by
claimant successes in the US, there is still
uncertainty over the carcinogenicity of talc
products. The International Agency for
Research on Cancer has (IARC) classified
talc powder containing asbestos as
'carcinogenic to humans'. However, there is
difference of opinion on talc-only powder,
which was sold from the 1980’s to-date.
Professor Paul Pharoah, epidemiologist at
Cambridge University, has stated that:
‘The evidence of a causal association
between genital talc use and ovarian
cancer risk is weak.'
However, Harvard University research,
conducted in 2008, found that women
PAGE | 55
were 40% more likely to develop ovarian
cancer if they used powder every day.
Similarly, Dr Daniel Cramer, an
epidemiologist at Harvard University and
consultant in Johnson & Johnson legal
action, has published multiple studies since
1982, which have shown that talcum
powder increases the risk of ovarian cancer
by 30%.
So, on medical causation, there is still yet to
be a definitive consensus that talcum
powder causes ovarian cancer. However, it
is clear that legal action in America is not
going unnoticed. Claimant victories in the
US are likely to prompt further research into
the carcinogenicity of talc and this should
clarify whether Mr Gower is correct in
predicting that many women will soon be
victims of negligence.
WHO Adds ‘Gaming
Disorder’ to Newest
Disease Classification
Manual
Last week, the World Health Organisation
(WHO) announced, in the 11th edition of its
disease classification manual (ICD 11), that
gaming addiction is to be classed as a
mental health disorder. According to the
latest ICD 11 draft, code 6C51 states:
‘Gaming disorder is characterized by a
pattern of persistent or recurrent gaming
behaviour (‘digital gaming’ or ‘video-
gaming’), which may be online (i.e., over
the internet) or offline, manifested by: 1)
impaired control over gaming (e.g., onset,
frequency, intensity, duration, termination,
context); 2) increasing priority given to
gaming to the extent that gaming takes
precedence over other life interests and
daily activities; and 3) continuation or
escalation of gaming despite the
occurrence of negative consequences.
The behaviour pattern is of sufficient severity
to result in significant impairment in
personal, family, social, educational,
occupational or other important areas of
functioning. The pattern of gaming
behaviour may be continuous or episodic
and recurrent. The gaming behaviour and
other features are normally evident over a
period of at least 12 months in order for a
diagnosis to be assigned, although the
required duration may be shortened if all
diagnostic requirements are met and
symptoms are severe’.7
The WHO’s Decision
Prior to the IDC 11 amendment, the WHO
considered social media addiction, as part
of a 4-year investigation into the impact on
human health, following excessive use of
the internet, computers and smart phones.8
Dr. Shekhar Saxena, Director of the WHO’s
department for mental health and
substance abuse, revealed that:
‘Gambling disorder was included in ICD 10
but gaming has now been added because
of very clear, scientific evidence that it has
characteristic signs and symptoms and
there is need and demand for treatment
from many regions of the world’.9
Dr Vladimir Poznyak, of the WHO’s Mental
Health and Substance Abuse department,
maintained that the Organisation’s decision
to add ‘gaming disorder’ to the latest
disease manual was not influenced by the
gaming industry itself. However, he has
stressed that the industry may still have a
role to play:
‘We consider a possibility to have a
dialogue with the gaming industry, to
exchange views, and to clarify many
things, but the main issue is to discuss what
they can do in their role as developers and
distributors of games, what they can do in
reducing the public health problems. I don't
exclude this possibility, but let's make it
clear, it's separate from the process which
lead to normative guidance of the WHO’.
A year-long process of ICD review will now
take place, before WHO General Assembly
approval, in May of 2019. Official adoption
of IDC 11 is scheduled for 1 January 2022,
after which countries will have to begin
implementing healthcare system changes
to accommodate treatment of the
condition.10
Expert Commendation
Oxford University Professor, Andrew
Przybylski, co-authored a paper titled 'A
weak scientific basis for gaming disorder:
Let us err on the side of caution'. This was
subsequently published in the Journal of
Behavioural Addiction. Irrespective of initial
scepticism on medical diagnosis, Professor
Przybylski heralded the WHO’s new
diagnosis as ‘another step in a process’ and
is optimistic about new opportunities to
discuss and dissect the issue.11
Dr. Mark Griffiths, Professor of behavioural
addiction at Nottingham Trent University,
spoke out in favour of action taken by the
WHO.12
He has compared gaming to a
‘non-financial kind of gambling from a
psychological point of view. Gamblers use
money as a way of keeping score whereas
gamers use points’.
Nevertheless, he estimates that the
percentage of video game players with a
compulsive problem is likely to be
extremely small (much less than 1%) and
that those affected would likely have other
underlying mental health problems, such
as depression, bipolar disorder, or autism.
Countering this argument, a recent paper
in the American Journal of Psychiatry found
that individuals who score high in
problematic gaming are just as mentally
well as those who score low.
Expert Criticism
Even though the Organisation reviewed
evidence from a ‘consensus of experts from
different disciplines and geographical
regions’ before reaching its decision, others
have warned that gaming disorder
classification is ‘premature’ and based on
moral panic.13
Experts reacted to ICD 11 revisions at the
Science Media Centre, in London. The
general opinion was that, although well-
intentioned, there is still a lack of good
PAGE | 56
quality scientific evidence in support of
‘gaming disorder’.
Biological psychology lecturer at Bath Spa
University, Dr Peter Etchells, highlighted that
there is a risk of ‘pathologising’ a behaviour
that is harmless for most people:
‘It sets us on a potentially slippery slope’.
He also stressed that estimated prevalence
of gaming addiction ranges from fewer
than 0.5% to around 50% of players. In
spite of the ‘gaming disorder’ description
(above), Dr Etchells believes that the wide
range of estimates will make identifying
gaming addiction more difficult.
At the American Psychological Association’s
Media Psychology and Technology
division, 28 scholars of problematic gaming
wrote an open letter to the WHO, opposing
the WHO’s decision on the following
grounds.14
Firstly, they argued that the available
research does not support a diagnosis of
‘gaming disorder’.
Secondly, they argued that the new WHO
diagnosis will cause unintended harm. For
example, those with genuine mental health
issues may receive poor treatment for
‘gaming disorder’ symptoms, as opposed
to effective treatment.
Thirdly, they argued that this initiative was
prompted by politics. 1 WHO official has
acknowledged that the Organisation was
under pressure, primarily from Asian
countries, to make the diagnosis happen,
potentially as a means to suppress public
freedom of expression on the subject.
Elsewhere, the European Games Developer
Federation (EGDF) also criticised the
decision making of the U.N. body.15
In an official statement, it voiced concerns
that the institution would progress with
‘gaming disorder’, ‘despite significant
opposition from the medical and scientific
community. The evidence for its inclusion
remains highly contested and
inconclusive’.
In addition, the UK Interactive Entertainment Association (UKIE) have also spoken out against
‘gaming disorder’. The not-for-profit trade organisation is the only domestic trade body to
represent the UK's games and interactive entertainment industry.16
The Gaming Industry
According to the American Psychological Association, an estimated 160 million American
adults play video games, The Association also states that gamer age ranges from under 18
to over 50, and the male-to-female ratio is almost equal.17
In the Western World, World of Warcraft, released in 2004, boasted peak gaming users in
2010, with 12 million subscribers worldwide.
Fortnite, a video game released less than a year ago, has subscription figures 10 times
greater than peak World of Warcraft. The number of gaming users currently stands at 125
million.18
It is clear that gaming is increasing in popularity and uptake, which increases the potential
risk to human health, if ‘gaming disorder’ is found to be more than a mere precautionary
warning.
As well as recreational gaming, the eSports industry has grown to an almost billion dollar
global industry. It could be that professional gamers, therefore, are at risk of so-called
‘gaming disorder’. As the nature of gaming industry employment manifests over time, could
this result in future claims for ‘gaming disorder’ as an occupational health condition?
Figure 1:19
PAGE | 57
Figure 2:20
Research
Video game addiction research has been carried out over the past 30 years.21
It is estimated that 2% to 3% of gamers might be affected.22
Some studies suggest that, among adolescents and young people, between
1% and 6% may be may be afflicted.23
In a 2017 study, carried out across the U.S., United Kingdom, Canada, and Germany, around 19,000 gamers completed a survey on the
symptoms of ‘gaming disorder’. More than 65% of participants did not report any symptoms of ‘gaming disorder’. Only 2.4% of the sample
endorsed at least five of the symptoms required for diagnosis.
The American Psychiatric Association, states that much of the scientific literature on compulsive gaming is based on evidence relating to
young Asian men:24
‘The studies suggest that when these individuals are engrossed in Internet games, certain pathways in their brains are
triggered in the same direct and intense way that a drug addict’s brain is affected by a particular substance. The
gaming prompts a neurological response that influences feelings of pleasure and reward, and the result, in the
extreme, is manifested as addictive behaviour’.
In terms of human biology, research indicates that the effect of drugs, such as cocaine, on dopamine receptors, which are responsible
for addictive tendencies, is different from the effect of gaming on receptors.25
100
28.1
23.9
12.6 12.3 12.3 11.9
6.8
2.4
0
20
40
60
80
100
120
Num
be
r o
f Pla
ye
rs (M
illio
ns)
Video Game
Number of eSports Gamers Worldwide (August 2017)
PAGE | 58
Case Studies
It was reported that a Chinese World of
Warcraft player, Wu Tai, died after a 19-
hour session of the game. Following their
death, it was proclaimed there was ‘little
doubt’ over the morbid responsibility that
gaming played.26
In 2005, a Korean man collapsed and died
after a 50-hour session playing StarCraft in
an internet cafe.27
Also, in London, UK, a 15-year-old gamer
was recently hospitalised for 8 weeks and
forced to take 1 year out of education,
after losing the confidence to go outside.28
Campaigns
This month, The Daily Telegraph launched a
‘Duty of Care’ campaign. The intention
behind this campaign is to bind social
media and online gaming companies, by
law, to protect children from addiction,
bullying and grooming.29
Medical Treatment
The WHO’s decision on ‘gaming disorder’
means that those diagnosed with the
condition will be entitled to NHS treatment.30
Dr. Henrietta Bowden-Jones, a
spokeswoman for behavioral addictions at
Britain’s Royal College of Psychiatrists,
believes that ‘there’s no NHS services to
provide support’.31
Similarly, Professor Griffiths, also a member
of the WHO working group, doubts that the
NHS will be able to devote the necessary
resources to treatment.
Nevertheless, Dr Richard Graham, a
leading adolescent consultant psychiatrist,
has called for the NHS to fund a specialist
technology addiction centre for affected
patients.
Dr. Bowden-Jones believes that gaming
addictions are best treated with
psychological therapies and certain
medicines.
Flight Attendants at
High Risk of Developing
Cancer?
Research has been carried out by Harvard
T.H. Chan School of Public Health, into the
link between US Flight attendants and
cancer prevalence.
Flight attendants are at risk of the following
exposure types:
Several known and probable
carcinogens;
Cosmic ionizing radiation;
Disrupted sleep cycles and
circadian rhythms; and
Chemical contaminants in the
airplane.32
Ionizing radiation is electromagnetic
radiation with a shorter wavelength, i.e.
higher frequency. Examples of ionizing
radiation includes X-rays and gamma rays
and, as mentioned in the above list, cosmic
radiation.33
Even though cabin crews are exposed to
more ionizing radiation than the general
population, they have ‘historically’ been
excluded from Occupational Safety and
Health Administration protections. Some
restrictions have been introduced to
protect US flight attendants from associated
cancer risks, but currently, radiation
exposure is neither monitored, nor
regulated.
The researchers began investigations into
cancer risk among flight attendants over a
decade ago, when the Harvard Flight
Attendant Health Study (FAHS) was
launched. In a 2014-15 survey, 5,366 US
flight attendants reported on their:
Health outcomes and symptoms;
Work experience;
Personal characteristics; and
Aviation employment history.
Subsequently, the researchers took
information from the National Health and
Nutrition Examination Survey, which surveys
approximately 5,000 US residents annually,
and compared this with cancer
prevalence in the 2014-15 survey.
Results revealed a higher incidence of
every cancer examined in flight
attendants:
Breast cancer;
Uterine cancer;
Gastrointestinal cancer;
Thyroid cancer;
Cervical cancer;
Melanoma; and
Non-melanoma skin cancer
among females.
Author of the corresponding academic
paper, Irina Mordukhovich, made the
following observation:
‘Our findings of higher rates of several
cancers among flight attendants is striking
given the low rates of overweight and
smoking in our study population, which
highlights the question of what can be
done to minimize the adverse exposures
and cancers common among cabin crew’.
Given the nature of the findings, the
researchers advise that more should be
done to minimise the risks of cancer among
flight attendants. Bodies should monitor
radiation exposure dosage and organise
schedules to minimise radiation exposure
and circadian rhythm disruption.
Eileen McNeely, Director of Harvard SHINE,
has, however, stated that the EU already
monitors and evaluates radiation exposure
among EU flight attendants.
PAGE | 59
Feature:
Hearing Testing Methods Additional to Pure Tone Audiometry (Part 2)
In last week’s feature (here), we considered the use of oto-acoustic emissions, speech intelligibility testing and speech in noise testing as
alternatives to pure tone audiometry (PTA) testing.
As previously discussed, in this week’s feature, we review the use of 3 further methods capable of diagnosing hearing loss:
1. Cortical Electric Response Audiometry (CERA)
2. Auditory Brainstem Response (ABR)
3. Auditory Steady State Response (ASSR)
CORTICAL ELECTRIC RESPONSE AUDIOMETRY (CERA)
CERA is a hearing test that records signals from the auditory cortex (the part of the brain that recognizes sound) when sound is detected.
CERA testing is an evaluation of the function of the whole auditory pathway, which signals pass through. The auditory pathway starts with
detection, in the cochlea, and ends with processing, in the auditory cortex. The auditory pathway is shown in the figure below:
Figure: The auditory pathway34
During testing, noises are sent to earphones that a patient wears. Electrodes are attached to the patient’s head. These track the brain’s
response to sound (clicking noises) and record the responses. The response to noises of different frequencies can be measured. An
advantage of this technique over pure tone audiometry (PTA) is that, like oto-acoustic emissions (OAE) testing, which was discussed in last
week’s feature, the test is objective. The patient does not have to ‘decide’ whether or not they have heard the tone. The threshold is
defined as the lowest level at which a response is present.
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CERA is useful when PTA results are in doubt, or are clearly erroneous. The measured response does not fully mature until a patient reaches
late teenage years, and thus, CERA is widely regarded as a test for adults.35
Most of the literature on CERA is from the 1960s and 1970s,
before the Auditory Brainstem Response (ABR) test became the more popular field of research.
How Reliable Is It?
Studies that report on the accuracy of CERA testing compare PTA thresholds with CERA thresholds.
Research shows that if testing parameters and protocol are chosen with care, the response is capable of being within 10 dB of the PTA
response in almost all patients.36
A 2002 study, by Tsui, found that 83.2% of patients had PTA and CERA thresholds within 10 dB. The mean difference in values, in 408 ears
tested, was less than 5 dB at 1, 2 and 3 kHz.37
Some academics have reported that the accuracy of CERA testing is poor. However, inappropriate parameters and methodology may
be responsible for this.38
A 1991 study, by Albera, found that the mean difference between CERA and PTA thresholds ranged between 6
and 13 dB.39
A study by Lightfoot and Kennedy found that the mean error in the CERA threshold (the difference from the PTA threshold) was
6.5 dB, with no significant effect of frequency. 94% of individual thresholds were within 15 dB of the PTA thresholds and 80% were within 10
dB.40
In a 1993 study, Prasher and colleagues compared CERA and pure tone thresholds among a group of patients seeking medicolegal
compensation for noise induced hearing loss and another group with Ménière's disease.41
The cortical and PTA thresholds were ‘within 10
dB’ for 84% of the NIHL cases and 92% of the Ménière's cases. In the remaining 16% of NIHL cases, 13% exaggerated the PTA thresholds
at 1 kHz and 10% at 4 kHz. Another study of compensation claimants found that CERA thresholds were within 10 dB of ‘true thresholds’ in
almost all patients.42
Moreover, in the introduction of a study, which compared CERA thresholds with auditory steady state response (ASSR) thresholds (see 3rd
section of this feature), the authors present the maximum discrepancies between CERA and PTA thresholds at multiple frequencies:43
500 Hz: 15 dB
1 kHz: 10 dB
2 kHz: 10 dB
4 kHz: 10 dB
A British Society of Audiology Recommended Procedure document, published in September 2015, discusses threshold and accuracy and
limitations of the technique.44
If a step size of 10 dB has been used (i.e. the generated sounds differ in intensity by 10 dB) the tester may
report the threshold by interpolation. The threshold may be reported as 5 dB below the lowest level at which a response is seen, providing
that the response is larger than a specified amplitude: when the response is smaller than the specified amplitude, the threshold is taken as
the lowest response. How does the CERA threshold relate to the true threshold? The document quotes a bias (difference from PTA threshold)
of 6.5 dB, which is rounded down to 5 dB. It is explained that a when CERA threshold is obtained, the bias of 5 dB is subtracted, and then
the ‘true’ value lies within ±15 dB of this value, because Lightfoot and Kennedy found that 94% of the differences between PTA and CERA
were less than or equal to 15 dB. For example, if the CERA threshold was 50 dB, 5 dB is subtracted to get a value of 45 dB, and then there
is a 95% chance that the PTA threshold lies in the range 30-60 dB HL (45 ± 15).
Accuracy can be influenced by other factors, such as drowsiness. Ideal conditions would involve generally alert patients. It is also ideal
for patients to read a magazine during testing. In a small percentage of individuals, the error in thresholds exceeds 30 dB, for no apparent
reason.45
The Tsui study reported that there were occasionally discrepancies between PTAs and CERAs of (–)50 dB to (+)35 dB.
It has been suggested that CERA testing is a useful tool for detecting patients that exaggerate their hearing thresholds in PTA testing.46
What Is The Smallest Hearing Loss Measurable?
Taking the example from the British Society of Audiology, above, if the CERA threshold is 50 dB, this means that there is a 95% chance that
the actual threshold is in the range of 30-60 dB HL. Thus, the actual hearing threshold could be 20 dB below the recorded CERA threshold
(30 dB is 20 dB less than 50 dB). If the highest threshold considered to be ‘normal’ hearing at a particular frequency is, say, 10 dB, then
PAGE | 61
the recorded CERA threshold would need to be more than 20 dB higher than this to be able to claim that the actual threshold is above 10
dB. This would mean that the CERA threshold would have to be more than 30 dB. Therefore, the smallest difference in threshold that could
be considered to be a hearing loss would be 20 dB above the ‘normal’ range. Put another way, if the threshold for normal hearing is 10
dB and the recorded CERA threshold is 20 dB, the listener’s actual hearing threshold could be between 0 and 30 dB, which means that
their threshold could be below 10 dB, putting them into the normal hearing range.
Summary
Studies have found that CERA thresholds tend to be within 10-15 dB of PTA threshold values. They tend to report on the accuracy of CERA
testing by comparing CERA and PTA results, on the basis that PTA thresholds are considered to be the ‘true’ values.
AUDITORY BRAINSTEM RESPONSE (ABR)
Like CERA testing, ABR testing aims to estimate the listener’s hearing thresholds by detecting signals from the nervous system. The difference
between the two techniques is that signals are generated by different parts of the auditory nervous system. In ABR testing, the signals are
detected by the brain stem, whereas in CERA testing, the signals are detected by the auditory cortex. ABR assesses the funct ion of the
inner ear up to the auditory brainstem, whereas CERA testing measures hearing along the entire auditory pathway. The auditory pathway
diagram is repeated below:
Figure: The auditory pathway47
The structures that produce the signals, which are then detected by ABR, are believed to be the cochlear nerve, cochlear nucleus, superior
olivary complex and the lateral lemnscus (stages 2 to 5 of the auditory pathway).
In general, ABR responses tend to be less variable, more robust and less affected by the patient’s mental state than CERA responses.
However, low levels of muscle activity are required for accurate ABR readings; the patient is required to be very relaxed. CERA test results
PAGE | 62
are much less sensitive to muscle activity, but as discussed above, are affected by mental alertness levels. Is it difficult to test low
frequencies using ABR, because stimuli sounds have to be of short duration.
ABR testing often uses clicks and pips (short bursts of sound at a particular frequency), but in the last 20 years, has also used more complex
signals, such as syllables from various languages, syllables with background noise, musical tones and chords.
The differences between ABR and CERA testing are conveyed in the table below:
Figure: Advantages and disadvantages of ABR and CERA testing48
How Accurate Is It?
A 2011 study showed that the results from different tests of ABR, in response to complex sounds, were stable and replicable from session to
session. In other words, test-retest variability was low among the ABR data recorded.49
There have been many studies which have investigated the ability of tone-evoked ABR for estimating PTA thresholds, in individuals with
normal hearing and individuals with hearing loss. Reviews and meta-analyses have reported that the ABR appears to be 10-20 dB less
sensitive than PTA thresholds in adults with normal hearing, with errors in the range of 0.5 to 0.9 dB. Interestingly, in individuals with
sensorineural hearing loss, the ABR thresholds are usually 5-15 dB higher than the PTA thresholds, with an error of around ± 3 dB at each
frequency.50
These threshold results are fairly consistent across studies. It appears that the relationship between ABR and PTA thresholds
changes after onset of sensorineural hearing loss, such that PTA thresholds and ABR thresholds are slightly closer in listeners with some
sensorineural hearing loss. These findings occur within the range of 500 Hz to 4 kHz. In general, PTA thresholds should be able to be
predicted from ABR thresholds.51
Other reviews have reported on the ABR technique and the parameters that clinicians should use to provide the most accurate thresholds.52
What Is The Smallest Hearing Loss That Can Be Measured?
A review, by Stapells, reported that, among participants with normal hearing, the mean ABR thresholds ranged between 11.8 and 20.4 dB
nHL for 500, 1000, 2000 and 4000 Hz tones.53
The units of dB nHL are on a scale where 0 dB nHL is the average pure tone threshold for
adults with normal hearing, at a particular frequency. Overall, the ABR threshold results are consistent across studies, with 95% confidence
intervals no larger than ± 5 dB.
A 95% confidence interval roughly corresponds to a situation where, in 95% of individuals, the true threshold will be within 5 dB of the
measured threshold. This means that, for example, a difference of up to 10 dB between two thresholds, recorded at different points in
time, is not indicative of hearing loss (because one measurement could be up to 5 dB less and the other up to 5 dB more than the ‘true’
threshold), but a difference of more than 10 dB does suggest that the two readings show different thresholds.
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If a single threshold value is being compared against a range of normal hearing, the value can be considered as falling outside outside
the normal range if it is more than 5 dB higher than the highest value of the normal range. In other words, if the normal hearing ABR
threshold range is 11.8 to 20.4 dB nHL, a threshold of more than 25.4 nHL could be considered to be a hearing loss. As this is 5 dB above
the top of the normal range, the smallest hearing loss that can be measured can be thought of as being 5 dB.
Summary
Most studies of ABR testing compare ABR thresholds with pure tone audiometry thresholds. It appears that the ABR thresholds are closer to
pure tone thresholds in listeners with sensorineural hearing loss. ABR thresholds tend to be higher than pure tone thresholds. Overall, ABR
thresholds errors tend to be within 5 dB of the ‘true’ threshold. A study of test-retest variability has found little variation between ABR
thresholds when the same participants were tested more than once.
AUDITORY STEADY STATE RESPONSE (ASSR)
ASSR is another technique that uses electrical measurements to estimate pure tone thresholds. Like ABR, ASSR measures signals generated
by the auditory system. The main difference between the techniques is the nature of recorded signals. ASSR signals are evoked using
repeated sound stimuli, presented at a high repetition rate, whereas ABR is evoked using brief sounds presented at a relatively low repetition
rate. In ABR testing, the examiner has to interpret the data and decide whether a response is present. This becomes increasingly difficult
as the ABR approaches the true threshold, when the result is the most important. Conversely, ASSR uses an objective, sophist icated,
statistics-based, mathematical detection algorithm to detect and define hearing thresholds.54
Furthermore, ABR is typically measured one
ear at a time, whereas ASSR can measure both ears at the same time.
Currently, there is no universal standard for ASSR instrumentation. Stimulus and recording parameters and methods are designed (and may
vary) by each manufacturer.
ASSR was developed later than CERA and ABR. As a result, studies on ASSR have been conducted more recently. However, many recent
studies of ASSR are in children. Some studies of ASSR in children have reported that those with functional hearing loss tend to produce
ASSR and PTA thresholds that are significantly different and weakly correlated.55
How Accurate Is It?
A 1995 study, by Rance and colleagues, found that, among hearing impaired subjects, the difference between pure tone thresholds and
ASSR thresholds decreased with increasing hearing loss. The strength of the relationship also increased with increasing frequency (i.e. the
threshold estimates were more accurate in patients with more significant hearing loss and at higher frequencies).56
The researchers made
linear graphs of the relationship between the ASSR thresholds and the pure tone thresholds, and produced simple equations that could be
used to predict the pure tone thresholds from the ASSR threshold. 94% of the data points were within 10 dB of the regression line on the
graphs, meaning that the true value is within 10 dB of the predicted value most of the time.
A 2003 study of patients with NIHL and a characteristic notch between 3 kHz and 6 kHz, found strong correlations between pure tone
thresholds and ASSR thresholds, and the correlations became stronger as frequency increased. Typically, the ASSR thresholds
overestimated the pure tone thresholds by 10-20 dB, but the shape of the audiogram was closely reflected. In other words, the ASSR
audiogram looked very similar to the pure tone audiogram, but the thresholds were shifted up by 10-20 dB. The strength of the correlation
was stronger in patients with greater hearing loss.57
A study, by Herdman and Stapells and published in 2002, reported that, among participants with sensorineural hearing loss, the ASSR
thresholds were higher, on average, than the pure tone thresholds by:
14 ±13 dB at 500 Hz
8 ± 9 dB at 1 kHz
10 ± 10 dB at 2 kHz
3 ± 10 dB at 4 kHz.
These results show that the difference between the pure tone thresholds and the ASSR thresholds decreases at higher frequencies. Even
though the ASSR overestimated the hearing thresholds, the ASSR audiograms had the same shape as the pure tone audiograms.58
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A number of studies have compared ASSR thresholds and pure tone thresholds in infants and children, but these studies are not included,
as children and infants should be considered separate from adults with NIHL.
What is more, studies have compared ASSR response with ABR or CERA response.
A study, published in 2002, found that both the ABR and ASSR threshold estimates for the pure tone thresholds in adults varied with frequency,
stimulus rate, and detection method.59
Johnson and Brown compared ABR thresholds using two different methods with ASSR thresholds and
pure tone thresholds. There was no difference in accuracy between the two ABR techniques or between the two ASSR techniques. Overall,
ABR thresholds were 3 dB closer to the pure tone thresholds than the ASSR thresholds. However, in subjects with the most steeply sloping
hearing losses, ABR thresholds were recorded as much as 25 dB below the pure tone thresholds, whereas ASSR thresholds were never more
than 5 dB below the pure tone thresholds. ASSR overestimated the pure tone thresholds in two of 14 adults with normal hearing, where the
ABR was more accurate.
In summary, the researchers concluded that the ABR thresholds were generally more accurate and that ABR may be a more appropriate
method in assessing those expected to have slight hearing loss, whereas ASSR may be more appropriate for those with steeply sloping
hearing losses.60
In addition, a 2007 study reported that the pure tone thresholds were closer to the CERA thresholds than the ASSR thresholds.61
Both the
ASSR and CERA thresholds were closer to the pure tone thresholds at higher frequencies than at lower frequencies. The researchers note
that, even though CERA predicts pure tone thresholds slightly more accurately than ASSR, the differences may not be clinically significant,
particularly when the degree of individual variations in considered. The predictions of thresholds were more accurate in patients with
greater hearing loss.
Overall, these studies found that ASSR thresholds tend to be higher than pure tone thresholds, by 10-20 dB, and that a small number of
individual differences are much greater. Both CERA and ABR seem to be slightly more accurate than ASSR.
However, a study published in April of 2018, in which ‘next-generation’ ASSR techniques were used, reported very different results. The
researchers tested the hypothesis that advancements in ASSR techniques would result in lower thresholds, and less difference between
ASSR and ABR results than in previous studies. The ASSR thresholds recorded were significantly lower than the ABR thresholds recorded.
Average differences between ASSR and ABR thresholds were 14.39 dB at 500 Hz, 10.12 dB at 1 kHz, 3.73 dB at 2 kHz and 3.67 dB at 4 kHz.
In conclusion, the ASSR thresholds were lower than the ABR thresholds, by up to 14 dB, which juxtaposes the results from previous studies,
where ASSR was shown to overestimate hearing thresholds to a greater extent than ABR. The 2018 study was performed on infants and
toddlers and did not involve comparison with the pure tone thresholds.62
Although ASSR thresholds tend to be further from pure tone thresholds than ABR and CERA thresholds, this does not necessarily mean that
ASSR is a worse tool for predicting pure tone thresholds, so long as a reliable calibration method is used. Despite the fact that ASSR thresholds
tend to be 10-20 dB more than the PTA thresholds, if once 10-20 dB (exact figure determined for each frequency from the graphs in the
1995 Rance paper, for example) has been is subtracted from the ASSR threshold, there is a small range within which the PTA threshold
could lie, then the ASSR could predict PTA thresholds quite accurately.
What Is The Smallest Hearing Loss That Can Be Measured?
Several studies report that once the average difference between the ASSR and the PTA has been considered, the error in the PTA estimate
is about 10 dB. This means that the smallest hearing loss that could be measured would be about 10 dB.
For example, let us assume that a listener produces an ASSR threshold of 40 dB at 1 kHz. Herdman and Stapells found that the ASSR
threshold was higher than the PTA threshold, on average by 8 dB at 1 kHz. This gives an estimate of 32 dB for the PTA threshold. The error
in this measurement was ± 9 dB, giving a range for the PTA threshold of 23-41 dB.
Using the graph and equation, formulated by Rance, in 1995, an ASSR threshold of 40 dB at 1 kHz corresponds to a PTA threshold of 21 dB.
As 94% of values were within 10 dB of the trend line on the graph, 94% of ears would have a PTA threshold within 10 dB of this figure, giving
a range of 11-31 dB.
If the limit for normal hearing is 10 dB, then using the Herdman and Stapells calibration, in order for there to be a hearing loss measured,
the predicted PTA threshold would need to be more than 9 dB greater than this limit, i.e. 19 dB.
PAGE | 65
Similarly, using the Rance calibration, the predicted PTA threshold would need to be 10 dB more than the limit, i.e. 20 dB.
Thus, the smallest hearing losses that can be recorded are 9 and 10 dB, respectively, assuming that the analyst has a preferred and
reliable calibration method.
Summary
Like ABR and CERA, studies on ASSR accuracy focus on the comparison between ASSR thresholds and pure tone thresholds. Among hearing
impaired subjects, the difference between pure tone thresholds and ASSR thresholds decreases with increasing hearing loss. The
relationship between pure tone and ASSR thresholds is also stronger at higher frequencies. Although ASSR thresholds tend to be 10-20 dB
higher than pure tone thresholds, if this difference in taken into account, pure tone thresholds can be estimated to within around 10 dB.
A study comparing ABR with ASSR found that ABR thresholds were 3 dB closer to pure tone thresholds than ASSR thresholds. However, in
listeners with steeply sloping hearing loss, ASSR was more accurate. Another study reported that the pure tone thresholds were closer to
the CERA thresholds than ASSR thresholds.
Overall, studies found that ASSR thresholds tend to be higher than pure tone thresholds, by 10-20 dB. Both CERA and ABR testing seem to
be slightly more accurate than ASSR. However, ‘next generation’ ASSR techniques have been developed, and these seem to exhibit a
different relationship with pure tone thresholds.
PAGE | 66
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