The Pre-Action Protocol for Disease and Illness Claims
By Altaf Patel, partner and head of occupational diseases
In his final Access to Justice Report of July 1996, Lord Woolf recommended the development of protocols: ‘To build on and increase the benefits of early but well informed settlement which genuinely satisfy both parties to the dispute’
In respect of claims for personal injury arising as a result of an accident, the Personal Injury Pre-Action Protocol has been in force for some time now. This did not, however, apply to claims for occupational diseases. On the 8th December 2003, the Pre-Action protocol for Disease and Illness Claims (herein called the Protocol) was enforced.
The protocol will apply to all claims for personal injury where the injury is not as a result of an accident but takes the form of an illness or disease; this includes both physical and psychological disorders.
The protocol will not be limited to diseases occurring in the workplace and will include diseases through occupation of premises and use of products.
So how does the Protocol work and will it make any difference to how employers and insurers deal with this type of claim?
Employers have the new requirement that even before the initial letter of claim they must in appropriate cases provide copies of the claimant’s employment records including both personnel and medical records. These records should be disclosed within 40 days of the request and provided free of charge.
If the employers fail to comply an application can be made even before court proceedings have been commenced. This represents an important weapon for claimant’s solicitors and will allow them to obtain documentation at an early stage to help them investigate the claim.
A request for documents should not be limited to employment records; at this stage there is merit in requesting copies of any risks assessments and safety data sheets that may apply to the claim. These documents will assist the claimant’s medical expert, for example in claims for Occupational Asthma and Dermatitis it will always be necessary to identify the irritant to which the claimant has been exposed.
The employers will have 21 days to acknowledge receipt of the letter of claim and then with one month of this acknowledgment the insurers must identify to the claimant all insurers who will have an interest in the claim. This is very important in claims where the exposure has taken place over a number of years.
Presently, some employers do not keep detailed records of previous insurers, causing serious delays in the claim whilst employers and insurers search for missing insurers.
This can lead to some compensation remaining unpaid if an insurer cannot be located for a specific period of employment. It is hoped this requirement will encourage employers to keep comprehensive records in relation to their insurance cover.
The insurers will have a 3-month period in which to investigate the claim, this period is flexible and the insurers can request additional time in complex cases.
Otherwise the protocol broadly follows the format and principle of the Personal Injury Pre-action Protocol. However, one distinct difference lies in the procedure for obtaining expert evidence. It is recognised that these cases often deal with complex issues of causation and in such cases provision should be made for the defendants to obtain their own medical evidence.
It is hoped the Protocol will assist with early exchange of documentation by both parties to allow an assessment of the claim to be made at the earliest opportunity. This may not be achieved until employers produce detailed records in relation to their insurance cover, so all interested insurers are involved in liability investigations at the outset of a claim.
I am of the view that very few insurers at this stage will be able to investigate the claim within 3 months and predict that most will request an extension to this time. However, the Protocol represents a code of good practice, which the parties should follow. If proceedings are issued, the Court will be able to consider a parties non-compliance and in certain circumstances may impose sanctions.
It will take time for employers and insurers to develop their case handling to comply with the time limits set down in the protocol, but if this is achieved, then there may be less need to litigate.
