APPENDIX 5
Memorandum by the co-ordinating groups
of each of the Claimants' Solicitors' Groups
INTRODUCTORY REMARKS
This document is provided by the Co-ordinating
Groups of the two Solicitors' Groups representing men or the families
of deceased men who claim compensation for:
(a) respiratory disease (RDL) caused by negligent
exposure to excessive levels of mixed coal mine dust; and/or,
(b) vibration white finger (VWF) caused by
negligent exposure to vibration from hand held tools;
when working in the coal mining industry.
Litigation in respect of Vibration White Finger
commenced in 1994 and in respect of Respiratory Disease in 1995.
In preparing this document we have endeavoured to provide information
pertinent to matters raised in the Committee's Notice in a succinct
manner. We have not attempted to provide a report setting out
the full history of each scheme nor of all of the problems identified
including the many which have been overcome nor for that matter
do we set out a full account of the successes.
Unprecedented numbers of Claimants, former miners
and their families, submitted claims under each scheme following
successful litigation. This undoubtedly resulted in a substantial
challenge for those faced with the tasks of devising and implementing
processes to achieve fair compensation for those entitled to claim.
Whilst there have been numerous issues that have had to be resolved
some of which have taken some time, both schemes have delivered
compensation to significant numbers of individual Claimants more
efficiently than if assessment had been left for determination
by individual claims brought before the Court. In the Vibration
White Finger scheme 77,214 have now been settled with full and
final payments and the figure for Respiratory Disease settlements
is 152,500.
DEVELOPMENT OF
THE SCHEMES
There are two separate Solicitors' Groups. Membership
of each group is open to any firm of solicitors that represents
Claimants. Each group is represented by a Co-ordinating Group
of member firms. Those Co-ordinating Groups have had responsibility
for prosecuting the group litigation in each case, thereafter
negotiating the terms of the respective Claims Handling Agreements
with the Department of Trade and Industry (DTI) and negotiating
the implementation of the provisions of those Claims Handling
Agreements.
The DTI personnel involved have with some exceptions,
played their part for relatively short spells and have then moved
on to other areas of work within the service. Their number has
been supplemented by seconded staff from external sources, such
as PricewaterhouseCooper. An external consultant (Mark Pyeman)
provided project management advice to the DTI shortly after the
RDL scheme was agreed. There have been six different Ministers
with responsibility for coal health claims to date: John Battle,
Helen Liddell, Peter Hain, Brian Wilson, Stephen Timms, Nigel
Griffiths.
The VWF Solicitors' Group existence is provided
for by a Court Order made in July 1994. In RDL an Order providing
for the Solicitors Group was made in January 1996.
The active members of the VWF Co-ordinating
Group are:
Hugh James, Irwin Mitchell, Thompsons (Scotland),
Thompson & Co, and Watson Burton.
The active members of the RDL Co-ordinating
Group are:
Hugh James, Irwin Mitchell, and Thompsons (Scotland)
In the VWF litigation there have been two High
Court trials, one of preliminary issues and one of medical causation
and quantum of damages. In both trials the Claimants prevailed
and in each case the Defendant appealed to the Court of Appeal,
unsuccessfully. The VWF Claims Handling Agreement came before
the Court for approval in January 1999. It has thereafter been
significantly amended and extended as issues have arisen in the
assessment of claims.
The Respiratory Disease litigation progressed
to one High Court trial. There was no appeal. The Claims Handling
Agreement was concluded in September 1999 and approved by the
Court. This, too, has been significantly extended and amended
for similar reasons.
Copies of each of the Claims Handling Agreements
will be made available to the Committee if required. Annex 1 provides
an overview of each scheme.
The litigation of both claims was pursued before
the Courts in England and Wales. In relation to both, once legal
liability was established the DTI accepted liability for Claimants
who had worked in collieries in Scotland.
Parallel Claims Handling Agreements were negotiated
on behalf of all Scottish Claimants by solicitors instructed by
the Scottish area of the National Union of Mineworkers. These
Claims Handling Agreements are identical save where there are
variations between the laws of Scotland and those of England and
Wales (principally in relation to the assessment of posthumous
claims).
In addition, the Union of Democratic Mineworkers
subsequently agreed a similar Agreement on its own behalf in respect
of RDL. No other trades union has such an Agreement.
That both the VWF and the RDL Agreements were
negotiated after successful litigation establishing the Claimants
legal right to compensation is significant. As a result both schemes
are based upon what a miner or his family would recover if they
brought a successful common law claim and consequently:
1. Damages are individually assessed based
on evidence which means awards of damages vary significantly (in
a significant number of cases life-changing sums of money have
been received by miners and their families);
2. Legal advice has been, and remains, an
integral part of the process of delivering full and proper compensation
to miners and their families.
In both cases the Claims Handling Agreements
were achieved after extensive negotiation between the Co-ordinating
Groups and the DTI. The amount of damages paid to any claimant
under each scheme is determined by reference to tariffs of damages
for various heads of claim which depend on the individual circumstances
of the man and in particular his age and level of disability.
The tariffs under both schemes are updated annually in line with
the increase in Retail Prices Index. The tariffs are in line with
that which would be paid at common law following the Courts' findings
in the Judgments in the respective lead actions. The purpose of
each Claims Handling Agreement is to provide for fair assessment
of each claim, to pay appropriate compensation to those so entitled
and to ensure consistency in assessment.
Furthermore, in each case designated Judges
of the High Court have continued to oversee the litigation receiving
regular Reports to the Court through written documentation and
oral submissions at hearings (see Annex 2).
Scottish jurisdiction is of course separate
from English and Welsh jurisdiction and there are certain substantive
differences in the laws between the jurisdictions. The Agreements
that govern the VWF and RDL compensation schemes have, so far
as possible, operated on a national basis but there remain specifically
Scottish issues outwith the scope of the supervisory oversight
of the Court in England and Wales (see also Annex 3).
The object of each of the Claimants' Solicitors'
Group is to represent the best interests of the Claimants in claims
for damages. Neither the Co-ordinating Groups nor the Solicitors'
Groups have any disciplinary or regulatory powers. These are matters
for the Law Society or other relevant regulatory bodies. It is
for each firm to enter into appropriate arrangements with Claimants
who instruct them and to ensure that proper advice is given, tailored
to the circumstances of each individual Claimant, and to comply
with professional standards, for example in relation to client
care.
In each case the Co-ordinating Group have issued
regular Bulletins (112 in VWF and 96 in RDL) to member firms designed
to assist those firms in properly advising their clients as to
their claims. Training has also been provided.
There has been some public controversy about
solicitors charges. Both schemes provide that Claimants' legal
fees will be paid by the DTI in successful claims but not in unsuccessful
claims. In each scheme the legal fees are prescribed and for the
most part agreed fixed sums are payable subject to individual
circumstances. The Law Society of England and Wales issued guidance
concerning solicitors charges in January 2004 and the Office for
the Supervision of Solicitors has received a number of complaints.
Where inappropriate charges outwith the Society's guidance have
been queried we understand that repayments have been provided.
Although this is a regulatory issue it seems to us appropriate
that repayment is made in such circumstances.
EXTERNAL OVERSIGHT—MONITORING
GROUPS
The schemes have been, and remain, immensely
important to individual Claimants and have a high profile in coalfield
communities. No doubt, as a consequence, at an early stage the
Minister established Monitoring Groups to review the schemes and
report to the Minister. There are Monitoring Groups for each of
England, Wales and Scotland and in England there are a number
of Regional Groups. The Monitoring Groups assess the activities
of the Claimants' solicitors, the DTI and the various contractors.
We believe they have made a positive contribution.
IMPLEMENTATION OF
THE SCHEMES
In both schemes the claims assessment process
has been streamlined when compared to the usual Court process.
One medical expert is jointly instructed in each individual claim
and the extent and nature of factual evidence and the method of
presentation of that evidence has been standardised. As indicated
above much work has been devoted to providing for the efficient
assessment of the appropriate level of compensation dependent
upon the evidence in each individual case. The process has been
enhanced by the development of various computerised calculator
models which include:
1. for VWF a programme that calculates services
awards;
2. for RDL programmes that quantify:
(a) the extent of dust exposure over the
working life of each Claimant dependent upon the colliery or collieries
in which he worked and his job(s);
(b) the proportion of dust for which the
DTI are liable;
(c) the extent of the contribution of smoking
to causation of chest disease;
(d) the assessment of damages payable in
each individual claim;
(e) the extent of any pension loss recoverable
as part of the claim.
There are differences as between the two schemes
which flow from differences in the nature of the diseases in respect
of which compensation is payable.
Vibration White Finger is a condition which
affects the hand or hands to varying degrees of severity with
symptoms falling within two broad categories, vascular, induced
by cold intolerance and sensorineural which include reduced dexterity,
numbness and tingling. General damages are payable in respect
of the condition varying according to the age of the Claimant
and the severity of the disease. In addition, where proven damages
may also be payable for handicap on the labour market, for the
inability to undertake tasks (or services) for example, DIY, gardening,
basic car maintenance and for wage loss.
Respiratory Disease encompasses Chronic Bronchitis
(a non-disabling functional disorder), Chronic Obstructive Pulmonary
Disease (COPD) a disabling lung condition which can cause death,
and temporary exacerbation of asthma. Both Chronic Bronchitis
and COPD can be caused by smoking. As the extent of disability
caused by COPD can be much more extensive than that caused by
Vibration White Finger the range of or heads of damage are more
extensive and arise more frequently in individual claims. They
include general damages, loss of earnings, the cost of provision
of care, loss of mobility, loss of pension and redundancy benefits
and where death has been caused by COPD bereavement awards and
loss of dependency.
Both Claims Handling Schemes have closed to
new Claimants. The number of VWF Claimants registered is 169,601[2]and
the number of Respiratory Disease Claimants registered is 576,000[3]The
numbers of Claimants for each scheme are unprecedented as is the
amount of compensation paid to Claimants.
Delays caused by difficulties with the handling
of claims or certain categories of claims have been a continuing
concern. In some instances the explanation may lie in the unprecedented
volume of claims which for both schemes substantially exceeded
most estimates. In both schemes the DTI's desire to close the
scheme by imposition of a cut-off date for claims predictably
served to produce a substantial influx of claims in the run up
to each of the closure dates. In VWF there was a substantial influx
of claims both before the end of the limitation amnesty on 30
September 2000 and a further influx before the cut-off dates of
31 October 2002 for live claims and 31 January 2003 for posthumous
claims. In RDL, as of 31 August 2003 278,360[4]claims
had been registered—over 300,000 additional cases were registered
by the closure date of 31 March 2004.
There have been recurring concerns about the
planning for claims handling and the organisation and deployment
of both IT and human resources and training of human resources
by the DTI's contractors. We have also been concerned about the
efficacy of arrangements between the DTI and its contractors and
the extent to which the DTI has been able to manage its contractors
and hold them to account. However, the contractual provisions
and management control mechanisms have not been made known to
us and therefore our concerns arise from close external observation
rather than intimate knowledge.
Numerous issues have arisen during the course
of the implementation and operation of each of the Handling Agreements.
Below, in separate sections for each scheme we set out what we
believe to be the current principal points of concern.
Historically, significant issues have included:
RDL
1. Delivery by the first medical report
provider, Healthcall both generally and in particular in relation
to Respiratory Specialist recruitment and in responding to questions
raised on behalf of Claimants in relation to medical reports.
2. The apparent inability of IRISC (now
Capita) to respond to Claimants' Solicitors' correspondence and
telephone enquiries generally and specifically in relation to
the resolution of queries raised in relation to settlement offers.
3. The frequently experienced failure by
IRISC to match incoming documentation from Claimant's Solicitors
to files.
4. The lack of continuity of staff handling
claims at IRISC and the absence of facilities to discuss claims.
5. Mineworkers who left the industry as
a consequence of chest disease would, had they remained at work
have paid additional contributions into their pension schemes
as would their employer. As a consequence these mineworkers lost
pension benefits as a result of their chest illness (the sums
involved can be significant). The law provides that such losses
are recoverable. The relevant Mineworkers' Pension Scheme and
Staff Superannuation Scheme are complex and the benefits have
changed over time. Recovery of pension loss was provided for in
the Claims Handling Agreement and the parties began to work together
with a jointly instructed actuary, expert in the relevant schemes,
and a computer programmer to develop an agreed basis for calculating
the losses. This proved to be a long arduous process. By January
2001 a calculator for the Mineworkers' Pension Scheme (MPS) Living
Claimants had been prepared. In order to ensure that offers of
settlement could be issued to at least some of the Claimants it
was agreed that this rudimentary calculator should be operated
on the basis that if a Claimant so elected he could, when the
calculator was finalised, claim any additional amount of pension
loss over and above the sum offered provided it exceeded £500.00.
There are four components to the pension calculator: live and
deceased MPS and live and deceased staff superannuation. The final
component calculator was not distributed until October 2004. It
should be noted that not all claims include pension losses but
nevertheless many claims have been delayed from final settlement
as a consequence of the development of the pension loss calculator.
This is a clear example of an issue which has taken a long time
to resolve. However, calculation of pension loss is complex and
without the calculators the time taken to assess these losses
would have been even longer.
VWF
1. Timely provision of miners training records
and earnings records in respect of which there was a long period
of unsatisfactory delivery—the records are relevant to job
or occupational group which is determinative of entry to the scheme.
2. The apparent inability of IRISC to respond
to Claimant's Solicitors' correspondence and telephone enquiries
generally and to progress claims. Items 3 and 4 above also arose
in VWF.
3. The approach of IRISC to the investigation
of Group 3 claims (see below)
4. The inability of IRISC to co-ordinate
claims involving co-defendants (see below)
VIBRATION WHITE
FINGER—CURRENT
ISSUES
Group 3 Claims
A summary of the approach adopted by the CHA
to determining the issue of liability in individual cases principally
by reference to the claimant's occupation is set out in Annexe
4.
The original Claims Handling Agreement contemplated
that claims would be brought by men in Group 3 occupations. They
would be required to establish actual exposure to vibration. It
provided brief guidance as to the information that such a Claimant
would need to provide to enable the claim to be considered.
However, it appeared that IRISC did not have
in place arrangements for investigating and assessing Group 3
claims. In cases where claimants submitted evidence of exposure
to vibration there was delay.
Subsequently, in March 2001 after negotiations
between the CG and the DTI, prompted by the delay in the assessment
of Group 3 claims, the Occupational Group Procedure (OGP) was
agreed. This was intended to provide an agreed procedure to facilitate
the speedy assessment of Group 3 claims.
It set out the evidence that was required to
be submitted by the claimant and specific witnesses in a standardised
questionnaire form. Provided such evidence submitted by the claimant
confirming exposure to tortious vibration, was not deficient on
its face or inconsistent with mining practice or other evidence
then in the absence of evidence to the contrary the claim would
be accepted.
Although the OGP was intended to facilitate
the handling of claims where evidence was submitted that met its
requirements it was not intended to preclude consideration on
its merits by IRISC of other evidence eg in other cases. However,
the requirements of the OGP have been used by IRISC as a procedural
bar. Where they are not met, in effect, the claim is passed back
to the claimant's solicitor. There has been a refusal to consider
cases in which the evidence submitted does not meet the OGP's
requirements without detailed explanation as to why those requirements
cannot be met and in some cases the approval of the DTI itself
is required before IRISC may consider the merits of a case.
IRISC employed a dedicated team, based in Sheffield,
with mining experience to investigate Group 3 claims in general
and in particular to consider whether the claim as put forward
by the claimant "made mining sense". However, IRISC
have found it difficult to recruit and retain sufficient staff
for that team. There has been longstanding concern about the adequacy
of IRISC resources to assess claims timeously.
The rate of investigation has been slow and
the approach of the investigators often controversial. Their approach
particularly with regard to their application of "mining
sense" has, caused disquiet among members of the National
and Regional Ministerial Monitoring Groups who themselves have
mining experience. So too has the relative (little) weight they
have given to evidence from the claimant and his witnesses which
will usually include mining officials.
Following agreement of the OGP, evidence was
submitted in many thousands of claims. The DTI imposed the cut
off date of 31 October 2002 for submission of evidence in claims
in which the denial was contested. This affected all but a small
proportion of claims in which the denial was recent. The number
of claims in which evidence contesting the denial has been submitted
now exceeds 16,000.
IRISC statistics reveal that prior to the cut
off date of 31 October 2002 (approaching four years after the
CHA was agreed) only 1,151 group 3 claims had been investigated.[5]
In 2003 2,292 investigations were completed. That number rose
to 4,055 in 2004. Over 5,000 are currently with IRISC for investigation
and all told some six years after agreement of the CHA and over
two years after the "cut off" date investigations have
been completed in only about half of the claims in which evidence
disputing the denial has been submitted. Investigations in potentially
over 7,500 claims are outstanding.
Of the claims investigated to date 1,923 (38%)[6]have
been accepted as Group 1 or 2 suggesting that initially in many
cases the claim was wrongly categorised by IRISC. 556 (10%) are
accepted on the basis of exposure in a Group 3 occupation. 2,564
(51%) are denied.
A significant proportion of the denials are
disputed and of the 752 disputes resolved by 31 October 2004[7]in
105 (14%) had been accepted on the basis that the claimant was
exposed to tortious vibration in a Group 3 occupation and in a
further 132 (17.5%) it was accepted that the man had the necessary
Group 1 or Group 2 employment making a total of 31.5% of disputes
resolved in the claimant's favour[8]
Services Claims
The major symptoms of VWF are numbness, loss
of dexterity and cold intolerance. The latter is principally associated
with the vascular component of the condition rather than the nerve
damage (sensorineural) component. For claimants significantly
affected there are implications for their ability to do everyday
tasks such as gardening, decorating, DIY, car maintenance etc.
("services tasks"). At common law an injured claimant
can recover the cost of assistance with everyday tasks such as
these that he is no longer able to do, whether such assistance
is provided gratuitously (usually by family and friends) or by
professional assistance.
In the lead actions a number of the significantly
injured claimants recovered damages for this head of claim. Consequently,
recovery for this head of damage was contemplated by the original
CHA. However, initially no procedure for assessing such claims
was agreed between the DTI and IRISC and IRISC did not make arrangements
to assess these claims.
Subsequently, following negotiations, in the
latter half of 2000, a separate agreement was reached in early
2001 between the CG and the DTI, which provided in detail for
the handling and assessment of services claims.
The Services Agreement provided for submission
of factual evidence in standardised (questionnaire) form from
the claimant and those who currently provided assistance with
various tasks. It was expressly intended to limit the factual
evidence required to assess claims and provided for the assessment
of claims by reference to agreed tariffs, depending upon the severity
of the claimant's VWF, and after taking into account any co-morbid
conditions that he suffered from which would have limited his
ability to do the tasks in any event.
The Services Agreement was then partially implemented
as IRISC began investigation of the factual basis of claims. There
were concerns from an early stage as to their approach, which
in many cases involved detailed investigations of a nature not
contemplated by the agreement and the relevance and focus of which
was not apparent. There were also concerns about the adequacy
and training of IRISC's adjusters. It is conceivable that the
terms of the arrangement between the DTI and IRISC played a part
in this regard but we have never been privy to these.
There was also delay in full implementation
of the Services Agreement because of the need to put the co-morbid
medical assessment out to tender.
Concerns about delivery of the Services Agreement
remain. There are continuing concerns about the adequacy of the
training of IRISC adjusters and the focus and relevance of their
investigations in many cases. These matters may impact on the
overall rate of investigations about which there are also concerns.
Cut off dates by which claimants' must intimate
claims and lodge evidence in support have been provided for, at
the DTI's request, by Court Order. They will result in an increase
in the rate of claims in the period preceding the cut off and
may serve to adversely affect the claims handling process.
However, although the cut off dates will cap
the size of the pool of claims to be assessed, recent analysis
of available statistics suggested that the DTI's aspirational
end dates for settlement of all services claims are unlikely to
be met by some margin.
The extent to which IRISC and the DTI are able
to monitor delays in the processing of claims at IRISC is not
clear. It is understood that key stage analysis showing the length
of time claims sit at any key stage in the process is not yet
available for claims for Services (although it has been used for
some time for early stages in the general VWF claims handling
process). Following our suggestion this is now understood to be
under discussion between the DTI and IRISC.
Co-defended Claims
The approach of the VWF CHA and that of the
RDL CHA differ in the manner in which co defendant claims are
addressed. In the VWF scheme claims relating to exposure during
periods of employment with mining contractors must be directed
to the contractors (or their insurers) who deal with them in the
first instance although the DTI contribute to meeting the contractors'
liability.
The VWF scheme was achieved in January 1999
and it was not until mid to early 2001 that the major contractors'
insurers and the mining related defendants representing small
mines and companies such as UK Coal (formerly RJB) joined the
agreement after pressure had been exerted through a number of
Court hearings. The number of claims in which there is involvement
of mining co-defendants significantly exceeds 10,000.
Under the CHA IRISC have the responsibility
for co-ordinating claims involving co-defendants. The co defendant
interests in the form of the various insurers and claims handlers
have been disparate and uncoordinated themselves. It has appeared
that initially IRISC focused on the bulk of claims in which there
was no co-defendant interest and declined to focus adequate resources
on the more arduous task of dealing with this category of claims.
This has led to delays in dealing with claims with co defendant
involvement which only comparatively recently have begun to settle
in significant numbers.
Stalled Claims
In early 2004 the DTI raised the prospect of
introducing a procedure to address claims that had been stuck
or "stalled" within the claims handling process and
indicated that they wished to focus on such claims that had become
stalled with solicitors. The CG indicated a willingness to discuss
and develop such a proposal, providing that it was widened to
also address claims that had become stalled with their contractors,
principally IRISC.
At the end of July 2004 the DTI tabled a detailed
proposal addressing only the problem of claims stalled with claimants
or their solicitors, which we were told they intended to proceed
to implement despite the lack of agreement that they should do
so and even though implementation represented a significant change
to the claims handling process. A number of detailed objections
were raised to the procedure which we considered was unfair and
unworkable.
As implemented, the procedure provided that
following a request for information from a claimant (via his solicitor)
if the information remained outstanding for more than three months
then IRISC could write giving notice that the stalled claims procedure
was to be invoked. If a substantive response was not received
within a three month period, during which a further reminder would
be sent, a claim could be closed. Once closed a claim could only
be re-opened upon application to the Court.
Between 1 October and 20 December 2004 IRISC
wrote out on over 4,000 cases informing the claimant's solicitor
that the case was subject to the stalled claims procedure and
therefore, as noted above, the timetable towards closure of the
claim within 3 months had begun to operate.
In view of the draconian consequences for Claimants
in receipt of such notification meant that Claimants' solicitors
were obliged to divert resources from other claims handling activities
to focus on claims that IRISC had identified as stalled. A high
proportion of cases were put into the stalled procedure in error.
The DTI have subsequently agreed to a number of amendments that
the CG had suggested to the procedure intended to make it more
practical. Had they been in place from the start many claims to
which the procedure was applied would never have been subject
to it.
The exercise revealed concerns about IRISC's
organisation and the training of their staff. It also raised concerns
about their resources. They were unable to respond to replies
from claimant's solicitors regarding claims to which the stalled
claims procedure had been applied. Notwithstanding that the procedure
required prompt response from the claimant's solicitor IRISC,
with the DTI's agreement, did not plan to address such responses
until the beginning of 2005. This approach, driven by limited
resources at IRISC, created uncertainty as to the status of cases
to which the procedure had been applied. During this period although
the procedure had been implemented we sought to continue to negotiate
with the DTI to improve its terms. Because of difficulties in
its operation it was suspended between 20 December and beginning
of February 2005.
Its operation was the subject of detailed representations
by the parties at a hearing on 21 January, by which time it had
been substantially amended to make it workable. The major outstanding
issues by then were as to when it should be introduced and whether
it should be extended to apply to claims stalled with IRISC.
On 21 January the Court directed that the procedure
should be re-introduced from 1 February 2005. However, the Court
indicated that in future IRISC needed to exercise greater care
in the operation of the stalled procedure and in particular to
ensure that it was only applied to appropriate claims.
Introduction of the stalled claims procedure
so far as claims "stalled" on the claimants side is
concerned is largely a matter of recent history. However, it is
significant because the episode illustrates the difficulties that
arise when the DTI have sought to unilaterally impose changes
without proper consultation or agreement. It is also significant
because although when the proposal was first raised it was made
clear that the CG considered that a similar initiative was required
to address claims "stalled" with the DTI's contractors
IRISC and notwithstanding that a detailed proposal was submitted
months ago, that issue is one that the DTI and IRISC are clearly
reluctant to contemplate and have, as yet, to give serious consideration.
RESPIRATORY DISEASE
LITIGATION
Speeding Up The Scheme: Fast Track Offers
From 1 March 2005, live claimants under the
RDL scheme will be able to obtain fast track offers after a spirometry
test in four distinct categories of case. This extends the opportunity
for early settlement and conclusion of claims within the scheme
that was previously possible only in a smaller number of cases
under the expedited tariff. Damages are fixed by reference to
the average payment made to date through the scheme, after a full
MAP, to Claimants within each of the four spirometry categories.
In addition to live fast track offers, the Court
has ordered that in posthumous cases where there is no indication
of COPD on a death certificate, called "category 3"
cases, it will be possible for widows and families of deceased
miners to obtain modest "fast track" payments if they
wish to do so (cases with such an indication will proceed through
the full MAP process without a fast track offer). It is not known
yet when the posthumous "fast track" offers will be
introduced but it looks as though this will not take place until
the middle of the year.
It is thought that 100,000 live "fast track"
offers will be made within a year.
As many as two-thirds of the remaining posthumous
claims might be eligible for a "fast track" offer.
The move towards introducing these "fast
track" offers, which is supported by the Judge with supervisory
jurisdiction over the RDL Claims' Handling Agreement, Sir Michael
Turner, took place at first in a spirit of co-operation as all
parties and the Court were agreed that it was wrong to take no
action in the face of a projected end date for the scheme of December
2011. This distant end date arose as a consequence of the large
number of claims registered by the closure date and the principal
limiting factor upon "throughput" of Respiratory Specialists
availability to carry out Claimants' medical assessments.
By late September 2004, the DTI advocated—as
it had done previously—a fast track option for miners to
speed up their claims, or to allow them to proceed through the
full MAP compensation process. Within a very short space of time
however—a few weeks at most—the DTI's position changed
for reasons unclear; instead, it argued for a compulsory "fast
track" offer procedure that would have had the effect of
leaving very few claims to proceed through the full process. It
was only after a meeting at the House of Commons, in mid October,
at which there was unanimous disapproval of the compulsory "fast
track" scheme from coalfield representatives present, that
the DTI altered its position and accepted that "fast track"
offers should be optional.
The DTI appears to have been content to let
the Court rule upon the substance of the "fast track"
offer and associated costs to be paid to claimants' representatives,
rather than to engage in substantive negotiation, whether over
the fast track tariff of payments or costs or over the important
matters of detail that require to be ironed out so that the "fast
track" procedures might be introduced speedily and effectively.
As a consequence, there remains even now doubt
as to the level of "fast track" payment to be paid to
certain categories of live claimant and that only three weeks
before the introduction of the tariff itself. Issues have arisen
over the way in which the average payment has been calculated
for the category of claimant with FEV 1 greater than 90%. There
also remain issues over the inclusion of withdrawn cases in the
cohort of claims used to work out the average payment. There is
moreover, uncertainty over the identification of men who were
medically unable to take the test as "avoidably unreliable"
claimants or as men who were simply too ill to test properly.
As regards posthumous cases, the payment scheme
will not be introduced for several months yet, and important transitional
arrangements have still to be agreed. The DTI proposed (and the
Court has accepted) that the posthumous "fast track"
offer will be an "opt in" scheme. As the cut-off point
for eligibility to a "fast track" offer in category
3 cases will be the production of a MAP report from the medical
service provider (ATOS), it is essential that claimants are able
to postpone delivery of the MAP report to their representatives
and to Capita until advice is given and instructions obtained
in regard to the "fast track" offer entitlement that
they may have. Representations to the DTI on this point have so
far been rebuffed, save for an offer not to commission any further
MAP reports (beyond those already in the system) as at 21 February
2005, until 21 August 2005. This leaves the problem group—category
3 cases currently in the MAP queue - unaddressed.
These remaining issues will have to be resolved
by the Court if not by agreement and it is to be hoped that a
reduction in the overall life of the scheme is achieved.
Minimum Payment
The protracted discussion over the possible
introduction of a minimum payment for claimants under the RDL
scheme has caused frustration to a large number of claimants.
At one point during discussions last year, the DTI intimated that
these might be of the order of 3,500 claimants or so, but it now
appears that there may be as many as 7,500 claims blocked pending
resolution of the minimum payment issue.
The background is that in other compensation
schemes such as that operated for industrial deafness claimants
and pneumoconiosis claimants (and in other large settlement schemes
overseas), a minimum level of payment was set. No doubt there
were good reasons for this and one was that a claim meritorious
to any extent should attract a value which should not be seen
as an insult to the person to whom the payment was offered and
so act as a disincentive to settlement.
The DTI would not accede to the suggestion that
there should be a minimum payment when the scheme was first set
up in England and Wales in 1999. They also rejected a proposal
from the Co-ordinating Group that in the event that a revised
Chronic Bronchitis Only Tariff Scheme might be introduced, there
would be transaction savings both in solicitors' costs and in
costs incurred by the DTI's contractors and these might be used
to create a fund for a minimum payment. These discussions broke
down in 2002.
In July 2003, claimants proposed a minimum payment
scheme to be wholly funded by money released from adjustment of
solicitors' costs. This required consultation and approval from
the regulatory body in each jurisdiction. There was then consultation
with the wider Solicitors' Group before a revised proposal was
advanced to the DTI in March 2004 to top up offers falling below
£500 by a reduction in the increase in solicitors costs that
would normally have occurred through the Retain Price Index mechanism.
The rate of progress made on this issue has
been slow and we believe that the DTI has been reluctant to implement
a minimum payment provision within the RDL scheme. Claimants frustrated
at the delay experienced in resolving this issue over several
years might by now have opted to accept very low payments. In
any event, a very large number of settlements is likely to be
obtained at a stroke when this scheme is introduced and it is
to be hoped that it will not be delayed much longer.
The DTI have said that the mechanism for the
finding of minimum payments is now an issue and that a case by
case approach is favoured rather than the RPI fund referred to
above which takes the debate back to where it was some 18 months
ago. The members of the Claimants' Solicitors Group are being
consulted on this currently.
Surface Dust Exposure
The RDL was pursued on behalf of lead claimants
all of whom have worked wholly underground. Following the conclusion
of the trial and during negotiation of the Claims Handling Agreement
both the CG and the DTI were aware that there were certain jobs
on the surface which led to exposure to coal mine dust. The CHA
contained a Statement of Intent that the parties would seek to
resolve liability for exposure to surface dust by agreement. Investigation
of the likely extent of exposure to surface dust in certain occupations
was initially undertaken jointly. In 2000 it was thought by the
CG that agreement would be achieved and indeed the DTI submitted
a Treasury Minute to Parliament (see Annex 5). Within a week or
so of the publication of this Minute the DTI disclosed to the
CG evidence as to levels of dust exposure that led to the conclusion
by their appointed medical expert that no significant lung damage
would result from surface dust exposure. This was not accepted
by the Claimants and following further negotiation a mixed underground/surface
worker agreement was achieved whereby men who worked in certain
defined occupations on the surface and had also five or more years
underground employment were compensated for that part of their
respiratory disease caused not only by underground exposure but
also by the surface exposure. The parties endeavoured to achieve
agreement in relation to those exposed to dust in surface jobs
only (or for less than five years underground). The DTI declined
to accept liability in February 2003. The CG then investigated
further the prospects of pursuing group litigation on behalf of
the estimated 3,000 to 5,000 men who had registered claims. This
involved extensive review of documents in the former British Coal
Corporation archive and seeking medical and mining engineering
evidence. The Court was advised, in December 2004, that group
litigation would not be pursued. A significant factor was the
risk of men having to pay the DTI's legal costs if the litigation
was unsuccessful. The DTI were asked to waive this right but declined
to do so. It is possible that claims may be pursued by some individual
Claimants.
BOTH SCHEMES
Securities Investigation Department (SID)
The DTI has appointed a specialist unit to investigate
claims which may have been made fraudulently. From the outset,
the CG accepted the DTI's right to do so, as it is plainly appropriate
to seek to detect and deter potentially fraudulent claims. However,
we have asked that the DTI should carry out their investigations
into such claims within a reasonable framework, understood by
Claimants and their Solicitors and that such investigations are
completed within a reasonable timetable in the interests particularly
of those claimants whose cases turn out after all to be genuine.
In particular, we asked that Claimants should be advised of the
basis of the DTI's concerns in any claim under investigation.
We also sought clarification of the guidance or instructions given
to investigative staff carrying out interviews of witnesses. Controversially,
the DTI began to seek interview facilities in some cases with
claimants themselves.
As to the first of these requests, it has proved
a difficult and slow exercise in cases under investigation to
obtain from SID an account of their concerns. Initially, claimants'
Solicitors complained that reference was made in correspondence
from SID to "anomalies" in the presentation of evidence
but little else was offered by way of explanation of them despite
requests. There were also complaints in some instances, of heavy
handed investigations of witnesses who were interviewed though
unclear of the nature and purpose of the interview.
The SID procedure appears beset by delay. Further,
figures produced by the DTI suggest that only a very small number
of cases under investigation do not return to the normal process
eventually, to be assessed in the normal way.
"Since May 2002, 1,470 potentially suspicious
cases have been referred for additional investigation. These claims
have a total potential claim value of "£21.3 million.
Approximately 60 new cases are referred each month directly to
the Security Investigation Department (SID). The majority of cases
still relate to VWF Services, but since the COPD cut-off date
the number of COPD claims being referred has increased dramatically.
Currently 33% of all referrals relate to COPD claims.
Of the 1,470 referrals, 737 are currently under
investigation and 773 have had their investigations completed.
Of those that have had investigations completed, 132 claims have
been denied and 86 claims have been reduced, with a total value
of £2.6 million.
The remaining claims were returned for processing
once it was confirmed that there was no fraudulent activity, a
claim was valid within the remit of the schemes, or any anomalies
were clarified. Process streamlining and improvements are continuing
to be introduced to minimise any unnecessary delay to valid claims.
Where the Department is unable to complete its
investigations (for example, where a witness or a claimant declines
to be interviewed), then such cases are held in abeyance until
such time as the Department's concerns are either confirmed or
allayed. Currently in excess of 34 claims are in abeyance."[9]
In the meantime the Minister has recently indicated
that he does not think it appropriate to disclose details of the
procedure under which SID operate, since that may assist those
intent upon falsifying claims. A recent request to the DTI for
information as to the number of claims currently under investigation
by SID has been declined and of that number how many have been
under investigation for over three and over six months. The DTI
insist upon their right to interview claimants where required
in certain cases, although this would not be permitted in civil
proceedings where a defendant would always have the right to cross-examine
a claimant in evidence but not to interview him.
Our continuing concern is that the public perception
of the process will suffer if genuine claimants and their witnesses
believe that procedures to investigate doubtful claims end up
by stigmatising them and are characterised by secrecy and delay.
In many of the cases under investigation, the CG believe that
there are reasonable explanations that can be proffered for anomalies
in evidence as regards dates of service provision and the like.
Solicitors are willing to assist in the process in their client's
interests and accept that if no reasonable explanation can be
offered to SID then matters may proceed further. The balance to
be struck as between the proper interest of the DTI in weeding
out false claims and the interests of claimants who might be able
to explain evidential discrepancies if given the chance to do
so, is in our view in need of adjustment.
Openness
We have been concerned, from time to time, as
to whether or not the DTI has always been as open in sharing concerns
about issues in relation particularly to the implementation of
schemes as perhaps might have been hoped for in the interests
of the prompt resolution of those concerns. This has been a more
significant concern over the last year or so. By way of example,
at Annex 6 we attach an article from "The Guardian".[10]We
make the point that the words quoted from the internal DTI document
indicate an unwillingness to share the idea of introducing of
the proposed technology with the Co-ordinating Group: indeed,
their intent was to conceal it.
CONCERNS FOR
THE FUTURE
Concerns for the future include:
1. The effectiveness of the implementation
of Fast Track Offers process and whether or not in practice the
introduction of such will reduce the time taken for the assessment
of claims overall, and,
2. The management of the closure of each
of the schemes. This is currently in progress in relation to VWF
and will have to be addressed in RDL in the not too distant future.
3. The recent deterioration in constructive
dialogue aimed at resolving issues by agreement. Much of what
has been achieved has been as a consequence of, (often robust)
discussion and agreement. It will hinder the operation of each
of the schemes if this does not resume.
4. The length of time it is likely to take
for IRISC to complete their investigation of VWF Group 3 claims
and the factual basis of services claims; and with regard the
latter the extent to which information submitted in support of
the claim will become out of date and thus require to be supplemented
with obvious inefficiencies in the claims handling process and
frustrations for the claimants.
5. IRISC's capability to make available
adequately trained staff at appropriate points in the claims handling
procedure for both schemes so as to sufficiently reduce delays
in the claims handling procedure that have been endemic to date.
6. The DTI's capability to monitor the performance
of IRISC and keep it to account.
7. The DTI's willingness to always to share
information required to monitor performance and to engage in constructive
dialogue over proposed changes to the CHAs and claims handling
process.
February 2005
FOOTNOTE
As indicated above both schemes arise as a consequence
of litigation which is an adversarial process and in respect of
which both the Claimants and the DTI are entitled to legal advice
which it would not wish to disclose to the other and, of course,
are not obliged so to do as a matter of law. Please note that
this has not impacted upon our ability to set out our views within
this report.
Annex 1
OVERVIEW OF EACH SCHEME
VIBRATION WHITE
FINGER
1. The Claimant submits questionnaires giving
information about employment history in the industry.
2. If allocated to Group 1 or 2 proceeds
to Medical Assessment Process (MAP);
3. If found to suffer from VWF/CTS is entitled
to an offer of general damages;
4. In certain circumstances may be entitled
to an additional award of damages for handicap on the labour market
and/or for wage loss (in respect of wage loss there is a defined
procedure).
5. Subject to extent of VWF disability may
be entitled to claim for the value of lost services in respect
of which a defined procedure exists.
6. If not found to suffer from VWF claim
denied.
7. If not found to fall within a Group 1
or 2 occupation claim denied but Claimant has right to seek to
establish either that he should be within a Group 1 or 2 occupation
or that he was exposed to tortious vibration as a group 3 Claimant
in respect of which a defined procedure exists.
8. Where employed by employers in the coal
industry other than BCC the Claimant to pursue claims against
those employers in accordance with CHA principles save to the
extent that various employers do not accept some of the constituent
parts of the agreement, notably services and wage loss.
9. There is a disputes procedure and the
right to pursue a common law claim is retained.
10. There is a medical reference panel which
provides oversight of the medical process.
RESPIRATORY DISEASE
LITIGATION
1. The Claimant submits a claim indicating
extent of ill health and work history and smoking habit;
2. Work history is relevant to calculating
the extent and nature of the dust exposure;
3. A living miner attends for spirometry
test and subject to the outcome may be entitled to an expedited
offer of settlement;
4. If an expedited offer is made and refused
or if the man is not entitled to an expedited offer he may proceed
to a full Medical Assessment after medical record collection (MAP);
5. In posthumous cases following submission
of Claims Questionnaires medical records are collected and the
claim proceeds directly to medical assessment (MAP);
6. Following MAP if a relevant respiratory
condition is diagnosed then subject to proof of employment an
offer of damages will be advanced in accordance with the relevant
provisions of the CHA.
7. Proof of employment requires establishing
the Claimant worked underground in a British Coal Corporation
colliery post 1954 and if he worked in a defined dusty job on
the surface that he worked for more than 5 years underground.
8. There is no need to pursue a claim against
a coal mine contractor who employed a miner to work in a BCC operated
mine prior to privatisation. For men employed in the privatised
industry post 1994 there is a need to bring a separate claim against
that employer.
9. Small Mines employment (private licensed
mines) is pursued separately and the block insurer, AGF for the
period 1972 to 1992, has accepted that claims will be handled
in accordance with the CHA.
10. There is a disputes procedure and the
right to pursue a common law claim is retained.
11. There is a medical reference panel which
provides oversight of the medical process.
Both schemes contain procedural timetables for
the advancement of individual claims. Unfortunately, these timetables
were abandoned at an early stage in each scheme because the DTI's
contractors were unable to meet them.
Annex 2
JUDICIAL OVERSIGHT OF EACH SCHEME
VIBRATION WHITE
FINGER
The nominated Judge is Lady Justice Smith. Lady
Justice Smith was not the trial Judge.
Last week Lady Justice Smith stood down and
has been replaced by Mr Justice Mitting.
RESPIRATORY DISEASE
LITIGATION
The nominated Judge is Sir Michael Turner. Sir
Michael Turner was the trial Judge.
In both cases Review Hearings take place at
a frequency of three or four per calendar year where formal Reports
are delivered to the Court and where necessary indications are
given by the Judge as to how issues may be resolved. In a number
of specific instances there have been hearings to resolve disputes
between the parties.
The Court hearings take place in public and
are regularly attended by members of the Claimants Solicitors
Group, by members of the Monitoring Groups, by Union officials
and, from time to time, members of the press.
Annex 3
SCOTLAND
The Scottish version of the VWF Claims Handling
Agreement was entered into after the English and Welsh Agreement
in 1999. The RDL Claims Handling Agreement similarly, was negotiated
after the English and Welsh Agreement, in 2000. Each Agreement
was negotiated, with the NUM in Scotland taking the lead negotiating
role for Scottish claimants there (the Agreements are open to
all Scottish Claimants irrespective of Union membership); there
is no formal Court Order or supervision of Scottish issues that
arise from time to time and which are distinct from those dealt
with by the Court south of the border. The role of the Ministerial
Monitoring Committee (MMC) in Scotland in overseeing each Agreement
assumes greater significance than that of MMCs elsewhere because
of the lack of formal process.
Like any Agreement, goodwill on both sides is
needed to make it work. We believe that such goodwill did exist
in the first two to three years of operation of the Scottish version
of the Handling Agreement despite the enormous problems that were
thrown up by the volume of claims, the complexities of the handling
procedures and the initial lack of trained resource available
to deal with cases in the numbers required. All parties worked
together to ensure that Scottish claimants and Scottish issues
where they arose, as they did from time to time, were handled
in a constructive atmosphere and in a fair way, having regard
to both the interests of claimants and of the public purse.
Regrettably however, it has appeared in recent
months that the DTI has been less constructive and less willing
to heed the views of the Monitoring Committee in Scotland on issues
of principle between the parties and on the best way of resolving
them within a negotiated context.
Recent examples of this approach are the protracted
discussions over the Loss of Society tariff (bereavement award)
in Scotland and the sensitive issue that arises when a widow entitled
to a payment under the Agreement with the DTI for her husband's
pain and suffering, whose husband died before 16 July 1992, herself
dies in process and before the payment is made to her. The DTI
have dragged their feet over agreeing a reasonable procedure to
ensure a fair outcome in these cases consistent with its stated
intention to see that no benefit should arise to the DTI from
death in process. It continues to be difficult to get the DTI
to honour that commitment for this group of claimants.
The agreement with the DTI provides that the
widow of a miner should receive his damages even though the law
in Scotland (as it then was) made no provision for transmission
of the deceased person's right to general damages (solatium) after
his death. The lack of such provision in Scotland was clearly
seen as indefensible, not least because of the approach of certain
insurers in defending serious personal injury claims. Claimants
who were dying from the effects of a disease for which they sought
damages (such as mesothelioma) might receive no offer of compensation
before their deaths and thus present the insurer concerned with
a windfall gain in a claim destined to settle, equivalent to the
injured person's damages for pain and suffering. The change made
in the law has no retrospective effect on deaths before 16 July
1992, but the Scottish RDL agreement records that damages will
pass to a miner's widow notwithstanding.
The problem now is that widows are dying in
process and the question arises as to whether damages that they
ought to have received and to which they had a right under the
agreement with the DTI, should in turn be allowed to pass to their
estates in all cases. This is challenged by the department, which
has dragged its feet over agreeing a reasonable procedure to ensure
a fair outcome in these cases consistent with its stated intention—often
repeated by the Ministers responsible—to see that no benefit
should arise to the DTI from a death in process. It continues
to be difficult to get the DTI to honour that commitment for this
group of claimants.
The position of co-defenders who have a joint
liability with the DTI for coal health claims is one of the outstanding
issues still to be fully addressed for Scottish claimants. Whereas
contracting companies such as Thyssens (GB) Limited and AMCO have
been largely willing to deal with VWF claims on the same terms
in Scotland as apply south of the border, their position in regard
to RDL claims is unclear. Purely Scottish companies such as Scottish
Coal and Monktonhall Mineworkers Limited have still to confirm
that they will accede to the RDL handling arrangement on the terms
applied to AGF (for the small mine interest) or UK Coal claims.
The DTI's claim handling office in Scotland
is at Capita (formerly IRISC), 40 Torphichen Street, Edinburgh.
The office was established to deal specifically with Scottish
claims but does not deal with all aspects of the VWF and COPD
Handling Agreement. Some matters such as Group 3 cases in the
VWF Scheme and Fast Track Offers, are dealt with from Capita's
Sheffield Office. There has from time to time been an unsure grasp
of Scottish issues (such as the pre-16.07.92 issue referred to
above) and there were for a time, resource issues as IRISC (as
they then were) sought to recruit staff to deal with the large
volumes of claims.
It has appeared that Capita are very much a
target driven organisation which may simply reflect the terms
of their contract with the DTI (unknown and unseen on our side).
In 2002-03, Ministerial targets for offers in the COPD Scheme
were met but as there were no targets set for offers that required
to be reviewed by Capita before a settlement could be obtained,
considerable delays were experienced at that time before the necessary
reviews were carried out.
Capita in Edinburgh have been more responsive
of late, particularly to the issue of old claims in the COPD Scheme
that were not being addressed despite assurances from Capita in
Sheffield that the "priority points" system would always
work effectively to find such cases. This was not always our experience.
To their credit, Capita in Edinburgh responded finally to our
efforts to have them identify old claims "Stalled" at
Capita and this has seen good progress made in recent months.
In posthumous cases, title to a deceased person's
estate needs to be formally completed before final settlement.
In Scotland, the procedure required is to obtain a Confirmation
from the sheriff court (a Probate in England and Wales). Whilst
this in itself causes no undue delay, obtaining multiple Confirmations
in cases where there is a "chain" of succession and
deaths (from miner, to widow, to son/daughter, and on) is causing
significant delay in a number of claims, especially those where
the miner died a long time ago. Difficulties in tracking down
relevant documents (old Wills and title deeds) and in tracing
all relatives who may be entitled to succeed to compensation payable,
are the cause of further delays. Insurance policies must be taken
out in certain cases where no Will can be found. It would assist
in speeding the process up—and be much less costly to the
public purse - if the rules could be relaxed for the more modest
settlement amounts due, say up to £1,000.
There are continuing reservations over Capita's
resourcing and application of such resource in VWF claims. The
national picture on group 3 claims reflects the Scottish position
as there is no separate service allocated to these cases in Capita
Edinburgh's office. Services' claims have taken a very long time
to begin to move through the procedure designed for them. Co-defended
cases have simply not been handled as they ought to have been
by Capita as the lead Insurer and continue to suffer from relative
neglect at the handling stage, though allowance must be made for
the difficulties in co-ordination of claims with reluctant co-Insurers.
These have also attended upon the resolution of wage loss claims
in the VWF Scheme. Looking to the short and medium term, concerns
persist over the approach to the outstanding issues which may
yet result in litigation in Scotland, affecting the management
of the run down of each Scheme; these would benefit from a more
constructive joint approach than has been evidence of late.
Annex 4
VWF GROUP 3 CLAIMS
The original High Court ruling has established
that British Coal should have known the risks of VWF by 1 January
1973 and within two years taken steps to warn the workforce, put
in place a system of medical surveillance for employees who were
exposed to vibration and take steps to reduce the vibration exposure
of men exposed to vibration beyond a limited extent. In failing
to take those steps British Coal were negligent and significant
subsequent exposure was tortious.
To avoid the need to investigate every claimants
exposure to vibration (a lengthy and costly exercise) an approach
was adopted whereby for certain occupations in which use of vibratory
or percussive tools was either a substantial part of the job of
use was likely to have been significant, time spent in that occupation
would be taken as surrogate for establishing actual exposure to
vibration. Jobs were categorised into occupational groups, "Group
1" being those in which use of tools was recognised as a
substantial part of the occupation, eg face workers, development
workers, blacksmiths and 12 months employment post 1 January 1975
in such an occupation was required to establish entitlement of
compensation. "Group 2" comprised those jobs in which
use of pneumatic or percussive tools may have been less than Group
1 occupations but nonetheless was likely to have been significant
and 2 years in a Group 2 occupation post 1 January 1975 would
establish entitlement of compensation . Examples of Group 2 occupations
are face or development deputies, general underground labourers,
salvage workers.
This left a third group of occupations "Group
3" occupations for which there was no assumption as to use
of vibratory or percussive tools and evidence of tortious exposure
would be required to substantiate a claim. That group included
transfer point attendants, deputies other than those on face or
development work, loco drivers and men engaged on haulage supply
work and many other occupations including all those not included
in Group 1 or 2.
Annex 5
Letter from the Department of Trade and
Industry to Irwin Mitchell
COAL HEALTH:
SURFACE DUST
I attach a copy of the Minute laid before Parliament
yesterday advising the House that, subject to no objections being
raised, the Department proposes to accept liability for disability
caused by exposure to dust in surface jobs.
Ann Taylor
11 July 2000
NON-STATUTORY
LIABILITY TO
PAY COMPENSATION
TO MINERS
FOR EXPOSURE
TO SURFACE
DUST
1. It is normal practice when a Government
Department proposes to take on a liability in excess of £100,000
for which there is no specific statutory authority, for the Department
concerned to present to Parliament a Minute giving particulars
of the liability created and explaining the circumstances.
2. This minute explains the liability the
Department of Trade and Industry proposes to accept in respect
of exposure to surface dust for employees in British Coal mines.
Background
3. In 1998 the Court found British Coal
liable for exposure of mine workers to excessive dust which caused
lung diseases. The DTI. Which had shortly before taken over the
health liabilities of British Coal, was instructed by the judge
to set up a Scheme to provide compensation for miners suffering
lung diseases as a result of employment with British Coal. A Claims
Handling Agreement to deal with compensation was negotiated with
solicitors representing miners and signed in September 1999.
4. The Court case and the Handling Agreement
dealt with dust exposure underground. There are currently nearly
110,000 claimants and compensation is expected to amount to approximately
£1bn. It will take around three years to deal with these
claims.
Surface Dust
5. Many of the existing claimants also have
potential extended claims for exposure to dust in jobs on the
surface at mines. In addition, some surface only workers have
test claims pending. Exposure to dust on the surface leads to
the same lung diseases as dust underground. The DTI has investigated
the levels of dust prevailing in surface jobs in British Coal
mines, measures which could have been taken to reduce dust and
those which were taken. The DTI proposes to accept that British
Coal did not fully meet its responsibilities towards certain categories
of workers in dusty jobs on the surface. (If the liability is
not accepted these issues will be put to the Court to decide.)
6. In accepting this liability, the DTI
would propose to miners' solicitors that compensation for surface
dust exposure be handled within the current Agreement for underground
exposure. How this would work would need to be negotiated in detail.
Agreement would be needed on what jobs would be covered and on
what levels of dust could reasonably have been avoided.
7. Until these details have been agreed
it is not possible to make any firm estimates of the likely costs
of the new liabilities for surface dust. But it is likely to be
substantial (perhaps upward of £100 million). provision for
any payments to discharge these liabilities will be sought through
the normal supply procedure.
8. Acceptance of this additional liability
will mean that current claimants can extend their claim to cover
time spent in dusty jobs on the surface and men who have only
worked on the surface will be able to put in a claim.
9. The Department will keep the House informed
of the extent of these new liabilities as they become clearer.
10. The Treasury have approved in principle
the acceptance of this liability. If during the period of 14 days
(exclusive of Saturdays and Sundays) beginning on the date on
which this Minute was laid before Parliament, a Member signifies
an objection by giving notice of a Parliamentary Question or by
otherwise raising the matter in Parliament, final approval to
proceed with accepting the liability will be upheld pending an
examination of the objection.
Ann Taylor
Director of Coal Health Claims Unit, Department of
Trade and Industry
10 July 2000
2 The DTI report to the Court for Hearing 20 December
2004. 13% of claims are made on behalf of deceased mine workers
estates. The figure excludes the small number of claims against
mining contractors for which the DTI also have some liability. Back
3
There are 248,000 claims brought by living miners and 327,000
posthumous claims brought by family members. Back
4
149,937 living miners, 128,423 posthumous. Back
5
In November and December 2002 a further 459 investigations were
completed. Back
6
This percentage will decrease as a number of completed cases accepted
as Group 1 or 2 were identified following special review exercises,
now completed, and not part of the routine investigations. Back
7
More recent figures for the outcome of disputes are not available
to us. Back
8
IRISC Group 3 figures. Back
9
DTI's Report to the Court January 2005. Back
10
Not printed. Back
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