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OCCUPATIONAL DERMATITIS AND SKIN CONDITIONSOCCUPATIONAL DISEASE GUIDE 4

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Occupational disease series – Guide 4

Contents

Introduction

1. Causal Agents of Dermatitis

2. Insurance coverage

3. The Portal and Pre-Action Protocol

4. Damages and Reserves

5. CRU

6. Employer’s duty

7. Medical causation

8. Investigations

9. Expert evidence

10. Making a decision

Appendix 1 The Disease and Illness pre-action protocol

Occupational dermatitis

and skin conditions

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Introduction

Work-related skin disease may be defined as any disorder of the skin which is caused by or made

worse by work or workplace activity. There are a number of skin diseases - called ‘dermatoses’ - in

which occupational factors can play a role.

The focus of this document is on non-cancerous skin disease.

There are two main types of occupational dermatitis:

A non-immunological inflammation of the skin called irritant contact dermatitis.

An immune reaction called allergic contact dermatitis.

The conditions are characterised by symptoms of redness, blistering, itching, rashes and thickening

and cracking of the skin typically affecting the hands, forearms and sometimes the face. In some

chronic cases the symptoms may become very widespread over the body.

Exposure to causative agents can occur both occupationally and also within the home or general

environment.

There are also a number of constitutional diseases of the skin which are generically termed as

dermatitis or endogenous dermatitis or eczema. The symptoms for these conditions are essentially the

same as for occupational induced dermatitis. As such medical causation is often a complex issue.

The industries and substances with the highest risk of occupational dermatitis are:

Industries Substances

Hairdressing/beauty care Dyes, perming solutions, shampoos, lotions, bleaches

Catering and food processing Orange and lemon peel, fish, shellfish, meat, sugar, flour

Cleaning Anti-bacterial hand wash/gels, disinfectants, bleaches

Construction Cement, plaster, concrete

Engineering Soluble metal-working fluids

Printing Printing inks, solvents and cleaners

Chemical Adhesives, paints, acrylates, acids/alkalis, organic

solvents

Health care Biocides, latex, glutaradehyde, formaldehyde

Agriculture/horticulture Daffodils, tulips, carrots, parsnips, parsley, celery

Rubber Thiurams and related rubber-processing chemicals

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1. Causal Agents of Dermatitis

1.1 Most occupational skin disease cases are contact dermatitis and similar numbers by exposures

to allergens and irritants.

1.2 Reports of more severe cases of occupational dermatitis from specialist doctors suggest that

the number of new cases per year is lower than it was a decade ago, but apart from the latest

two years being lower there has been little change since around 2005 and cases due to certain

specific causes may still be increasing.

1.3 Occupations with the highest rates of work place dermatitis are florists, hairdressers, cooks,

beauticians, and certain manufacturing and health care related occupations. Below is a list with

examples of occupations and potential sensitisers and irritants.

1.4 This list is by no means definitive of the occupations and substances which can cause or

exacerbate skin conditions but is intended as a steer to assist in understanding the sorts of work

that typically cause skin conditions.

1.5 The HSE’s guidance on Preventing contact dermatitis and urticaria at work is available here:

http://www.hse.gov.uk/pubns/indg233.pdf

1.6 The Work-related skin disease in Great Britain 2014 is available here:

http://www.hse.gov.uk/statistics/causdis/dermatitis/skin.pdf

Occupation Sensitiser

Engineering, Manufacture of hard metal,

Foundries

Cobalt

Plating, Engineering Chromium & chromates and Nickel

Hair & Beauty, Product manufacture Cosmetics & fragrances, latex

Construction Epoxy resins

Florists, Horticulture, Agriculture Plants

Product manufacture Preservatives

Construction, Healthcare Resins & Acrylates

Occupation Irritant

General manufacturing, Healthcare Alcohols

General manufacturing, Engineering Degreasers

Engineering Cutting oils & coolants

Food, Cleaning, Beauty, Healthcare Disinfectants

MVR, Petrochemical Industry, Chemical

Production

Petroleum products

Food, Cleaning, Beauty, Healthcare Soaps & cleaning products; wetwork

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2. Insurance coverage 2.1 Occupational dermatitis is considered to be a ‘short-tail’ disease as there is generally a close

‘temporal association’ between the work activity (culpable exposure) and the onset of

symptoms. Generally the condition occurs shortly after exposure to the irritant or sensitising

substances and is treated as a short-tail claim.

2.2 With short-tail claims it is necessary to consider the date when the condition is either diagnosed

or capable of being diagnosed. This will be the date of “manifestation”. In accordance with the

Industrial Disease Claims Working Party (IDCWP) guidelines, the insurer on risk at this time is

the one which should handle the claim but if culpable exposure continues then any subsequent

insurers should be informed and will be involved until the breach of duty ceases. You do not

look back for culpable exposure pre manifestation and look for a contribution from pre-onset

insurers.

2.3 The decision as to when manifestation occurs is likely to be based to a large extent on medical

and personnel records. For example, where records contain a note indicating that symptoms

have been present for one month, manifestation should be taken as one month prior to this

entry. Where a condition is aggravated by subsequent exposures, there may be apportionment

forward from the date of manifestation if there is more than one insurer on risk over this period.

2.4 The onus is on the insurer to demonstrate a ‘cut-off’ date of culpable exposure during their

period of risk, that is the point at which their liability ceases. If the handling insurer can show

there was no culpable exposure during its time on risk, the claim can be passed back to the

relevant previous insurer.

2.5 Some insurers, who are not a party to the IDCWP agreement, will wish to deal with Dermatitis

cases on a time/ exposure basis with all appropriate insurers on risk during the period of

exposure contributing accordingly to the claim.

2.6 The insurer with the largest share of the claim will most likely act as the co-ordinating insurer.

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3. The Portal and the Disease and Illness Pre-

action Protocol (PAP)

3.1 The Portal is a website through which certain claims must be run. The following is key

information about the Portal and the PAP for Dermatitis claims:

The portal applies to employers liability dermatitis claims where there is one defendant

and the claim has a value up to £25,000. Public liability dermatitis claims are rare but

cannot be brought via the portal.

The CNF should be sent to the insurer identified as the insurer last on risk for the employer

at the material period of employment (if the insurer's identity is known). The CNF can be

sent to the defendant's registered office albeit the claimant must make a reasonable

attempt to identify the insurer and must have carried out an ELTO search.

The CNF should be acknowledged within 24 hours. If by post the insured/insurer should

acknowledge as soon as possible.

The defendant (insurer) has 30 business days from the date the CNF is sent to investigate

and make an admission to obtain the benefit of Stage 1 and 2 costs (as set out in CPR 45).

Where the insured is not only active but, say, a current policyholder it is crucial that they

are involved in any decision to admit or deny.

It is unlikely that any decision can be made on liability without access to Personnel and

Occupational Health (OH) records. If there is an active insured they can disclose personnel

records to you or your representatives in accordance with Section 35 of the Data

Protection Act. This provides an exemption where disclosure of records is necessary for the

purpose of obtaining legal advice or is otherwise necessary for the purposes of, or in

connection with any legal proceedings — including prospective legal proceedings. You will

need a form of authority to secure OH records from the OH provider.

An 'admission of liability' means admitting breach of duty, limitation, that there is no

contributory negligence alleged and that the insured accepts they caused some loss to be

quantified (admitting causation). All key elements of a claim are conceded if such an

admission is made.

The claimant is required to provide a settlement pack, containing all of the medical and

quantum evidence, if an admission is made by you, within 15 days of approving his/her

expert report(s). The defendant (insurer) has 15 days to consider this and make an offer

and there is a further 20 day negotiation period.

If damages cannot be agreed, the claimant can issue Part 8 proceedings to ask the court to

determine the amount of damages that remain in dispute between the parties. Assessment

of damages by the court can be determined on the papers or at an oral hearing. (See CPR

Practice Direction 8B).

If an admission is made but you are not satisfied with the medical evidence provided in the

settlement pack at Stage 2 (or if any other new evidence comes to light) when served, you

can allow the claim to exit the Portal. The normal rules upon withdrawing an admission of

breach of duty and causation applies under CPR Part 14. Note: it is possible to withdraw

the causation admission leaving breach of duty and the limitation admission in place by

doing so within 15 days of receipt of the settlement pack.

If no admission is made or you resile upon causation at Stage 2, the claim will exit the

portal and then be governed by the Disease and Illness Pre-action Protocol (PAP), with the

CNF serving as a letter of claim. You will have 3 months from the date of the CNF to

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respond to the claimant’s allegations. Reasonable extensions can be agreed. (See the

attached Appendix upon the PAP).

Claims that exit the Portal process will not be governed by a Fixed Recoverable Costs

regime and the claimant’s solicitors will be able to recover reasonable costs and

disbursements incurred.

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4. Damages and Reserves

4.1 It is important to get a handle on how much the claim is likely to be worth. The three heads for

damages are Generals (for pain suffering and loss of amenity), Specials for quantifiable losses

and Disadvantage on the open labour market (also known as a Smith v. Manchester) award.

4.2 Note that reservations need to be made for both defendant and claimant’s costs. This is not

always easy to estimate and will generally reflect of how complex the issues in the case are.

Figures for costs are almost always ‘best estimates’.

General damages (PSLA)

4.1 The figure which is appropriate for general damages is calculated by considering several

relevant factors to the pain, suffering and loss of amenity by the claimant. If settlement cannot

be agreed then the award of generals is ultimately at the discretion of the court. The extent of

the award will depend on:

the claimant’s age and sex;

the duration, frequency and severity of symptoms; and

whether the condition is permanent or transient and impact on work and lifestyle

generally.

4.2 The JC Guidelines (Chapter 12 Dermatitis (13th Edition)) should be used as the starting point for

reserving purposes. Bear in mind that cases which post-date the Legal Aid, Sentencing and

Punishment of Offenders Act 2012 will be subject to 10% uplift on general damages, this is

reflected in the figure below.

Severity and description of condition General damages for PSLA (inc. 10%

uplift)

Dermatitis of both hands, with cracking and soreness,

affecting employment and domestic capability, possibly

with some psychological consequences, lasting for years,

perhaps indefinitely

£11,500 to £16,060

Dermatitis of both hands, continuing for a significant

period, but settling with treatment and/or use of gloves

for specific tasks

£7,230 to £9,540

Itching, irritation of, and/or rashes on, one or both

hands, but resolving within a few months with treatment

£1,430 to £3,300

Special damages/future losses

4.3 If you are dealing with the aggravation of a pre-existing dermatitis condition you may be able

to argue that a large element (if not all) of the special damages claim would have been incurred

by the claimant in any event.

4.4 In severe and permanent conditions of occupational dermatitis which may involve a claimant

being highly sensitised to a substance (exposure to which may cause breathing difficulties or

anaphylaxis) there may be significant claims for past and future loss of earnings and possibly for

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care and medication/gloves etc. In severe cases you may seek a report from an employment

consultant and/or care expert to advise upon the claimant’s ability to work and/or the extent of

his/her future care needs.

Smith v Manchester awards

4.5 Following the case of Smith v Manchester Corporation (1974) 17 KIR 1 a claimant may have a

claim for handicap on the open labour market, if as a result of sensitisation they have to avoid

future exposure to the sensitising agent. However, if the claimant had pre-existing dermatitis

which has been exacerbated by the employer’s breach then any such claim may well be

groundless.

4.6 Bear in mind the two requirements for a claimant to be eligible for a Smith award:

There must be a substantial risk that at some point in the claimant’s working life they will

find themselves on the open labour market;

The claimant’s disability would place them at a disadvantage by comparison with an able-

bodied contemporary.

4.7 There is no straight forward formulae for calculating a Smith v Manchester award. Browne LJ in

Moeliker v Reyrolle & Co [1977] 1 WRL 132 stated:-

“It is impossible to suggest any formula for solving the extremely difficult problems involved in

the assessment. A judge must look at all the factors which are relevant in a particular case and

do the best he can”.

4.8 In Foster v Tyne & Wear CC (1986) 1 ALL ER 567 The judge took the number of years of the

claimant’s pre-injury earnings as the basis for the calculation and awarded 5 times the

claimant’s salary. Typically when taking this approach the number of years has been much

lower. In Moeliker the multiplier was just 6 months. Factors to assist in assessing the multiplier

include:-

The level of employment restriction caused by the claimant’s dermatitis;

The claimant’s work experience and ability to retrain;

The claimant’s salary and the availability of work at that level of pay;

If any other medical or life events may have affected his ability to work regardless of

his/her dermatitis.

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5. CRU 5.1 Dermatitis is an occupational disease for which claimant may seek Industrial Injuries

Disablement Benefit (IIDB) and Incapacity Benefit (IB) from the Department of Work and

Pensions (DWP).

5.2 Where a defendant is responsible in whole or in part for the dermatitis, the DWP’s

Compensation Recovery Unit (CRU) will seek to recover the benefits paid to the claimant from

the defendant (insurers). The defendant can offset IIDB and IB from a loss of earnings claim and

other benefits against other aspects of loss; see the link below.

5.3 When you receive notification of the claim you must register the claim with the CRU, the usual

time to do this is once the letter of claim is received. Upon registering the claim you will be

provided with a CRU certificate showing what money has been paid to the claimant, under what

bracket of compensation and for how long. These are the sums which the defendant will be

expected to reimburse. Note that when the certificate expires you must ask for an up to date

certificate in order to be sure you are reserving the correct amount for the benefits should they

not be encompassed by the loss of earnings claim, which you are able to offset the benefits

against when making settlement offers.

5.4 Be aware that the CRU does not take a nuanced view of the causation of occupational diseases.

Their standard practice is to seek recovery of the full sums paid to the claimant without regard

to the circumstances surrounding the claimant’s development of their condition.

5.5 Bear in mind that once settlement is reached you will be required to repay the sums on the

certificate up until the date the damages are paid to the claimant.

5.6 If it’s the defendant’s case that it did not cause all or part of the claimant’s condition it is open

to the defendant to challenge the certificate of benefits. This is done in two ways;

The first is to seek a ‘review’ of the certificate. This can be done throughout the

proceedings and is a request for the CRU to consider whether the sums paid to the

claimant were done so in respect of the injury which is the subject matter of the claim.

Once the matter is concluded, if you want to challenge the certificate you must first

request a mandatory reconsideration, setting out why you say the certificate contains

benefits which the defendant should not be responsible for paying. This occasionally

results in a reduction to the sums on the certificate. Having taken that step, if the

reconsideration is rejected, you must prepare a formal appeal which should be a detailed

written submission, in which you will focus on the medical evidence and set out why all or

part of the benefits were not caused or contributed to by the defendant. This is especially

important if there is medical evidence of a pre-existing condition that has only been

aggravated for a discrete period of time.

5.7 There is one very important thing to bear in mind about CRU, if you settle the claim you will

need to specify whether it is inclusive (“gross”) of the benefits or after the deduction of benefits

(“net”). If you settle gross of benefits, upon a successful appeal, the benefits reimbursed should

be sent to the claimant. If you settle net of CRU and appeal successfully the reimbursement will

come to you. For this reason when you make your offer and/or sign a consent order you need

to ensure it is clear who shall benefit from a successful CRU review. See guidance at

www.gov.uk

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6. The Employer’s Duty of Care

6.1 When considering any claim the first question which must be asked is does/did the defendant

owe a duty to the claimant. Be aware that the duties between employer and employee arise in

statute, common law and sometimes in contract.

6.2 The language of claims for occupational dermatitis, like asthma, is centred around ‘substances’

and hazards to health.

6.3 The basis for most claims for dermatitis will usually be either in statute or in common law. Note

that the legal framework for bringing claims has changed and is discussed below.

6.4 The current legislation which sets out the obligations on employers in relation to working

practices and protection of employees from exposure to hazardous substances at work are the

Control of Substances Hazardous to Health (COSHH) Regulations 2002 (as amended by the

COSHH (Amendment) Regulations 2003 and 2004).

6.5 The regulations initially came into force in October 1989 and were updated in 1994, 1999, 2002

and most recently in 2004.

6.6 It should be noted that a claim can no longer be founded for breach of the COSHH regulations:

under the Enterprise and Regulatory Reform Act 2013 (ERR Act) a claimant may not found a

cause of action on breach of ‘Health & Safety’ Regulations following amendment to 47 of the

Health and Safety at Work etc. Act 1974. Therefore, if a claimant’s exposure post-dates 1st

October 2013 the claim can only be founded on common law negligence. Though breaches of

the regulations will be evidence of likely negligence on the part of the defendant and will be

given weight by a court when considering if the defendant has been negligent as alleged.

6.7 The COSHH regulations apply to ‘any substance hazardous to health’; the definition of this is

wide and includes substances which are:

used directly in work activities;

generated by work activities;

classified as very toxic, toxic, harmful, corrosive, sensitising or irritant under the Chemical

Hazard Information and Packaging for Supply (CHIP) Regulations;

naturally occurring and hazardous in nature;

biological agents such as bacteria and other microorganisms.

6.8 All substances which cause occupational dermatitis fall within the definition of ‘substances

hazardous to health’ under the COSHH regulations.

6.9 The COSHH regulations require employers to prevent employees exposure to hazardous

substances. If this is not reasonably practicable, any exposure must be adequately controlled.

6.10 Exposure to a substance can take place in a variety of ways such as by skin contact to fumes,

dust or gas. Many thousands of substances are used at work but only about 500 substances

have been assigned WELs. These are listed in the HSE publication EH40 Workplace Exposure

Limits (copy of which can be found here: http://www.hse.gov.uk/pUbns/priced/eh40.pdf).

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6.11 Workplace Exposure Limits (WELs) are occupational exposure limits set under COSHH

regulations. WELs are intended to prevent excessive exposure to specified hazardous

substances by containing exposure within a set limit. These limits will assist in determining likely

skin contact to fumes.

6.12 Be aware of the ‘8 Principles of Good Practice’. Failure to comply with these is something which

a court will consider when determining adequate control under the regulations and whether an

employer has been negligent. The principles require an employer to:

Design and operate processes and activities to minimise emission, release and spread of

substances hazardous to health;

Take into account all relevant routes of exposure - inhalation, skin absorption and

ingestion - when developing control measures;

Control exposure by measures that are proportionate to the health risk;

Choose the most effective and reliable control options which minimise the escape and

spread of substances hazardous to health;

Where adequate control of exposure cannot be achieved by other means, provide, in

combination with other control measures, suitable personal protective equipment;

Check and review regularly all elements of control measures for their continuing

effectiveness;

Inform and train all employees on the hazards and risks from the substances with which

they work and the use of control measures developed to minimise the risks;

Ensure that the introduction of control measures does not increase the overall risk to

health and safety.

6.13 Products labelled R43 may cause sensitisation by skin contact and products labelled R38 may

cause skin irritation with skin contact.

6.14 Duties under the COSSH regulations are set out below:

Regulation 6 and 10

Monitoring and assessment of risk The employer should risk assess what steps need to

be taken to comply with COSHH. Consideration

amongst other things will be given to material safety

data sheets setting out the hazardous properties of

the substance, systems of work including what dust

or fume is created by a work process, engineering

controls, PPE and health surveillance. Can exposure

be avoided and if not how can this be adequately

controlled to comply?

The employer should monitor airborne

concentrations of hazardous substances at regular

intervals (generally every 12 months) or when any

change occurs which may affect that exposure level.

Air-monitoring should assist if the claim relates to

exposure to airborne dust or fumes.

Regulation 7 and 8

Prevention or control of exposure The employer should ensure that exposure is either

prevented or, where this is not reasonably

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practicable, adequately controlled. Where exposure is

to be adequately controlled then this should be done

by a hierarchy of measures:

Design and engineering controls ( LEV to

remove the dust/fume at source); and

thereafter

Where the above cannot achieve adequate

control, the provision of suitable PPE.

Employers are required to take all reasonable steps to

ensure such control measures are properly used.

Regulation 9

Maintenance, examination and testing of

control measures

The employer should ensure that all control measures

are maintained in an efficient working order and

good repair. In the case of ventilation plant, this

should be examined and tested every 14 months. For

PPE, this should be examined/tested at suitable

intervals. Records to show compliance with this

regulation should be kept for at least five years

Regulation 11

Health surveillance

Employers must ensure that employees who are

exposed to substances hazardous to health are the

subject of suitable health surveillance. It is ordinarily

conducted at 12-month intervals and sometimes

shorter periods if the risk is higher.

The employer should make and maintain a health

record in respect of each individual employee to be

kept for at least 40 years. Where, as a result of

surveillance, an adverse health effect is shown, then

risk assessments and control measures should be

reviewed

Regulation 12

Information, training and instruction Employees should be provided with sufficient

information, instruction and training to enable them

to know the risks from the hazardous substances

should they become exposed to them and

precautions that should be taken

6.15 Be aware of the ‘8 Principles of Good Practice’ and consider if the defendant has complied with

them. Failure to comply with these is something which a court will consider when determining

whether an employer has been negligent. The principles are:

Design and operate processes and activities to minimise emission, release and spread

of substances hazardous to health;

Take into account all relevant routes of exposure - inhalation, skin absorption and

ingestion - when developing control measures;

Control exposure by measures that are proportionate to the health risk;

Choose the most effective and reliable control options which minimise the escape and

spread of substances hazardous to health;

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Where adequate control of exposure cannot be achieved by other means, provide, in

combination with other control measures, suitable personal protective equipment;

Check and review regularly all elements of control measures for their continuing

effectiveness;

Inform and train all employees on the hazards and risks from the substances with which

they work and the use of control measures developed to minimise the risks;

Ensure that the introduction of control measures does not increase the overall risk to

health and safety.

Personal Protective Equipment (PPE), training and surveillance under COSHH

6.16 If the only realistic method of control is the use of PPE then this must be supported by full and

proper training for employees with health surveillance and monitoring. To control the risk of

dermatitis the PPE will often be protective gloves.

6.17 Protective gloves are available in a wide range of natural and synthetic materials and must be

manufactured to the appropriate standard. However, they do not provide unlimited resistance

and there are three ways in which gloves may eventually fail to protect the wearer from any

exposure:

Permeation: the chemical agent migrates through the protective glove at a molecular level;

Penetration: the chemical agent passes through porous materials, seams and pin holes or

other imperfections in the protective gloves;

Degradation: changes to the physical properties of the protective glove as a result of

exposure to a chemical agent.

6.18 When choosing gloves help may be required from the manufacturer/distributor of the chemical

agent or glove. They can provide performance test data regarding the chemical resistance of

gloves.

6.19 Employees need to be trained in the correct way to put on and remove gloves. There should be

adequate facilities for disposal of contaminated gloves and their replacement. If protective

gloves are selected or worn incorrectly there is every possibility that this may increase the

wearer’s overall risk to health because of the following:

Substances get inside and contaminate the inner surface of the gloves to reside

permanently against the skin and cause greater exposure than if the glove had not been

worn at all;

Wearing any glove for extended periods can lead to the development of excessive

moisture on the skin which in itself will act as a skin irritant and also allow easier

penetration of the substance;

Wearing gloves manufactured in natural rubber latex can cause an allergic reaction in

susceptible individuals which can have serious health implications.

6.20 Any risk assessment must clearly demonstrate that exposure to the substances is unavoidable

and that other methods of control are not reasonably practicable. Gloves should only be worn

as a control measure of last resort.

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6.21 Employees need to be instructed and made aware of the risks associated with the work and

required preventive measures through training. This needs to include the:

causes of occupational dermatitis;

recognition of typical signs and symptoms;

use of control measures;

self-examination of hands, arms, face, and recognition of early symptoms of dermatitis;

need to report incidents involving skin complaints.

6.22 As contamination of the hands can be difficult to avoid, washing facilities and health

surveillance assumes particular importance as control measures to prevent occupational

dermatitis. Employees should be reminded to wash any contamination from their skin promptly

and to thoroughly dry their hands after washing. There should be regular skin inspections;

sometimes as frequent as monthly or less, depending on the substance.

6.23 Employees should undergo pre-employment screening to assess any susceptibility to skin

diseases, and thereafter complete regular health questionnaires. There should be regular tours

of the workplace to check the effectiveness of control measures and confidential reviewing of

sickness records to identify any skin problems in the workforce. If symptoms arise there should

be referral to occupational health and/or the employee should be instructed to seek advice

from their GP, in either case referral to a consultant dermatologist is often appropriate.

6.24 The HSE website contains a COSHH essentials web tool which assists in assessing risks. The tool

is available at: www.hse.gov.uk/coshh/essentials/index.htm

Strict liability under COSHH

6.25 It was argued for a long time that the COSHH Regulations imposed a strict liability. Following

the effect of ERR Act (see above) this is clearly no longer the case.

6.26 However, in those cases where the exposure pre-dates ERR Act the COSHH Regulations still

apply and so the question of whether there is strict liability may still arise.

6.27 In Dugmore v Swansea NHS Trust [2002] EWCA Civ 1689, the Court of Appeal assessed the

extent of an employer’s duty, under Regulation 7 of COSHH, to ‘ensure that exposure to

hazardous substances is prevented or, where this is not reasonably practicable, adequately

controlled’. The decision appears to suggest that an employer’s duty is not limited by the

reasonable foreseeability of a risk, nor by the outcome of a risk assessment. It suggests that an

employer’s duty is absolute or ‘no-fault’ – if injury caused by exposure to a hazardous substance

occurs, an employer will be liable even if a risk assessment could not, through lack of scientific

knowledge at the time, have identified any health risk.

6.28 However, the effect of Dugmore and the extent of an employer’s duty of care was reassessed by

the Court of Appeal in Allison v London Underground Ltd [2008] EWCA Civ 71. In Allison, the

Court of Appeal considered that liability following Dugmore was strict but not absolute or no-

fault.

6.29 The Court of Appeal’s view in Allison was that the court in Dugmore did not hold that exposure

was not adequately controlled merely because the claimant developed an allergy. Rather,

control was not adequate because the employer could have discovered the risks of exposure (to

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latex in that case) and provided vinyl gloves before the claimant developed the allergy.

Regulation 7 of COSHH imposed strict liability. This duty requires action on the employer’s part

to discover the risks and take appropriate action, but it is less burdensome than absolute or no-

fault liability. Allison therefore shows that liability does not attach merely because illness or

injury occurs.

7. Investigations

7.1 The Disease and Illness Pre-action Protocol applies to occupational dermatitis claims. The initial

letter of claim should provide sufficient information to commence detailed investigations. The

protocol allows three months to investigate the claim and respond on breach of duty. The

three-month period does not start to run until all the relevant information has been provided to

properly investigate matters. Reasonable extensions of time can be requested.

7.2 Be aware that in disease claims there is a presumption that they claimant will disclose their

medical records: these records are imperative to understanding the claim in the context of the

claimant’s general state of health. You must take all the steps you can to get the medical

records as early as you are able.

7.3 Occupational dermatitis may develop over a period of time and many potential agents are

suspected as being causative. As such, investigations can be complex and a detailed chronology

of events will be invaluable.

Disclosure

7.4 Disclosure will give you a good insight into the defendant’s procedures and the likely issues in

the case. Disclosure in dermatitis cases can be detailed and the sooner investigations into

disclosure are undertaken the more time there will be for you to assess the relevance of the

documents and whether any privilege applies.

7.5 Typical disclosure will include:

HR documents:

The claimant’s full personnel file;

The claimant’s occupational health records (Note: you will need a form of authority);

Warnings and disciplinary procedures taken against employees for failure to follow

health and safety policies/use control measures i.e. wearing of PPE.

Health and Safety documents:

Health and safety data sheets for substances/products in use and manufactured;

Air monitoring results;

COSHH/ other risk assessments upon the system of work, hazardous fume/dust created

by the work process and/or hazardous substances in use;

Industry, HSE and trade association publications relating to health and safety risks;

Documents showing review of any risk assessments following changes in the system of

work or following health surveillance/report of symptoms;

Health and safety policy and training programme for employees on the systems of work

and health and safety issues/compliance on site;

Documents relating to the programme of health surveillance on site.

Documents upon the engineering control of exposure:

Plans of engineering or ventilation systems including instructions upon use,

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Lay witness evidence

7.6 Witness statements are key to effectively dealing with allegations of occupational dermatitis.

The statements must be thorough and contain detailed accounts of all of the insured’s working

practices. They should include details of the system of work and commentary on all the relevant

documents and the safety procedures in place to ensure compliance with COSHH and avoid or

minimise exposure to hazardous substances in use or created by the work process. Statements

of fact should be obtained from:

The claimant’s line manager/supervisor;

Employees who carried out the same/similar work as the claimant over the relevant period;

Anyone to whom the claimant may have made complaints and with knowledge of

insured’s response;

Health and safety officers/advisors/risk assessors- dealing with risk control, training,

warnings, air-monitoring, PPE, health surveillance and risk assessment preparation;

Members of personnel and occupational health departments – illustrating steps taken

following the onset and report of the claimant’s symptoms.

maintenance and the 14 month test results upon the efficiency of those systems.

Where PPE is used as a control measure:

Evidence of assessment of the suitability of the PPE and PPE product literature;

Documents showing maintenance and testing of the PPE;

Training upon the correct use, correct removal, storage, replacement and upkeep of

PPE.

Documents upon employee training and awareness of risk:

Training, instruction and warnings given to employees as to the risk of occupational

dermatitis, the control measures in place and the symptoms indicative of an allergy

arising.

Documents illustrating the need to report symptoms and seek medical assistance;

Use of control measures and who to report any issues arising with such control

measures.

Documents responding to issues:

Accident report book entry;

First aider report;

Foreman/supervisor accident report;

Complaints made (either by the claimant or any other employees) relating to exposure

and skin problems;

Health and safety committee minutes which deal with COSHH compliance and potential

skin hazards;

RIDDOR notification forms;

Communications with the DWP;

Communications with the HSE and any investigation documents.

Claimant’s disclosure:

GP records;

Hospital records;

DWP records;

Inland Revenue Employment schedule to consider other relevant exposures.

(Note: you can seek Personnel and OH records from other employers with an authority

from the claimant).

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7.7 The issues set out below will need to be included in the witness statements prepared:

Work duties:

A detailed chronology outlining Claimant’s employment dates, department(s) and

location(s) of work.

The Claimant’s usual shift pattern, hours of work and/or overtime. Make sure to factor in

rest breaks (frequency/duration and location) including formal and informal breaks to

calculate exposure levels accurately.

Details of the general work and individual tasks undertaken by the claimant, with a

particular focus on work carried out in the period leading up to and at the time of

manifestation of symptoms.

Risk assessment:

When and what risk assessments have been carried out and by whom describing the

COSHH and risk-assessment process.

Was air monitoring undertaken and, if so, how and when was this done and by whom?

Where and what substances were tested for and what were the test results?

What hazards/risks were identified regarding skin contact?

What control measures were identified and where they implemented or already in place?

What sources of information and advice were relied upon in determining risks e.g. other

assessments, air monitoring results, safety data sheets, information from

manufacturers/suppliers, health surveillance, HSE, trade associations/unions, employees

etc.)?

Was there a regular review of the assessment following changes to systems of work,

substances used or the results of health surveillance?

Exposure:

Provide full details of the use of substance(s) to which the claimant alleges they was

exposed to?

Are the substances, fumes, or dust ‘hazardous’ for the purposes of COSHH?

Did the claimant work in the area where those substances were used or dust/fume

created?

Describe the work process in detail and how exposure is prevented or minimised;

What do generic/manufacturer’s/trade/chemical names and material safety data sheets say

in respect of risk, exposure and PPE?

Control measures:

Set out full details of what measures were identified in the assessments to prevent or

control exposure.

If prevention/elimination was not reasonably practicable then what control measures were

in place?

What Local extraction/ventilation facilities (LEV) were in place to remove dust/fumes? What

was the make and model of the LEV? When was it introduced? Was it regularly maintained

and tested and, if so, by whom and when?

What were the circumstances leading up to the introduction of LEV; in particular was

expert advice sought as to the type of LEV installed? Was the LEV being used by

employees as designed?

What enforcement procedures were in place to ensure that employees used the LEV

correctly?

What training was provided to employees as to the correct use of the LEV?

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Was there a system of good housekeeping to prevent a build- up of substances in the

workplace?

PPE and Health Screening:

If control was not possible through engineering means then what skin protection Personal

Protective Equipment (PPE) was provided, including the manufacturer’s make and model

number etc.

Was expert evidence sought as to the need/suitability of the PPE?

What training was provided to employees as to the correct use and maintenance of the

PPE and reporting system for any defects?

What enforcement procedures were in place to ensure that PPE was used correctly?

Was sufficient PPE available for all employees to use and replace as required?

What maintenance and inspection procedures were in place to ensure that PPE was

working properly?

Details of health screening/monitoring procedures including pre-employment screening.

Training provided to employees upon:

Health and safety in general;

Causes of occupational dermatitis, the risks to respiratory health and the steps taken to

reduce the risk in addition to the correct use and maintenance of control measures;

Recognition of typical signs and symptoms of occupational dermatitis;

The need to report symptoms immediately and to seek medical advice.

Miscellaneous:

Did the claimant or any other employees complain of skin symptoms/exposure? If so,

obtain details of the nature of such complaints, when they were made, where and to whom

such complaints were made. What steps did the employer take thereafter?

Have there been other cases/claims for dermatitis? If so, obtain full details;

Identify any periods of holiday, sickness and other absences;

Has/is the claimant returning to work? If so, in what capacity and what additional control

measures have been put in place for his return? i.e. change in department or further PPE.

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8. Medical causation

8.1 Occupational dermatitis describes a group of skin diseases caused by contact with substances

used at work.

The substances can be divided into two groups:

Irritants, causing irritant contact dermatitis;

Sensitisers (substances that cause allergies), causing allergic contact dermatitis.

8.2 The end result of both conditions can be indistinguishable, and typical symptoms include

inflammation, blistering, itching, rashes and cracking of the skin.

8.3 Make sure when considering causation to look carefully for indicators of pre-existing

conditions: is there anything constitutional/other causative factors hobbies, exposure to

soaps/chems at home, alternative employment.

8.4 The process of sensitisation may take anything from months to years of exposure. Once

sensitisation has occurred, any further exposure – even to the slightest level – can trigger

symptoms. Continued exposure can lead to increasingly severe attacks of dermatitis and at its

worst anaphylaxis.

8.5 The symptoms of constitutional and occupational dermatitis are the same and it can be difficult

to distinguish between the two conditions also or even to identify those individuals with pre-

existing conditions which have been exacerbated (as opposed to caused) by work exposures.

8.6 Contact allergic dermatitis can be diagnosed by patch testing. This involves application of a

dilute solution of sensitiser to the skin and observing a delayed allergic response (redness,

swelling, blistering) to the contact site. However, misdiagnosis is common with false positive

and false negative results observed.

8.7 If symptoms are worse during the day and better during the weekends/holidays and the

employee this suggests occupational dermatitis. Skin prick testing or patch testing provides a

way of diagnosing occupational dermatitis, but this is not conclusive.

Irritant contact dermatitis

8.8 This can arise in two ways:

From single (usually accidental and high level) exposure to an irritant substance, which is

known as acute irritant contact dermatitis. Only the area of skin that comes into contact

with the irritant(s) is affected;

From repeated contact with the skin at relatively low levels and over a period of time,

which is known as chronic irritant contact dermatitis. If detected early enough the

condition can be controlled. It usually affects the hands, finger webs, forearms, face and

neck. However, once established it can become chronic and extremely debilitating.

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Allergic contact dermatitis

8.9 This develops as an immune response to the causative substance and is also known as delayed

hypersensitivity. An individual becomes allergic to sensitiser(s) and will respond to it even when

very small quantities are encountered. The condition is permanent. Symptoms are not limited to

the point of contact with the substance. The condition is characterised by a red rash several

hours after exposure and reaching a peak 24-96 hours later and then subsiding.

8.10 How quickly a person develops dermatitis depends on a number of factors including:

potency of the chemicals;

amount of exposure to the substances;

amount of wet work involved in the job;

susceptibility of individuals to allergies such as hay fever/asthma (‘atopic’ individuals);

presence of childhood eczema particularly on the hands.

8.11 Some people may have immediate reactions to substances while others may take years for

symptoms to develop.

8.12 Make sure to consider whether there has been any aggravation of a pre-existing sensitisation.

When dealing with medical experts make sure to try and get a definitive view on whether the

condition caused by exposure or simply aggravated

8.13 Whilst occupational dermatitis may improve once the employee is removed from the workplace,

the condition can be permanent and can result in the employee suffering from chronic

disability. The condition is likely to be permanent the longer the employee has been exposed to

the substance following sensitisation.

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9. The Experts

Liability expert witness evidence

9.1 Where breach of duty is in dispute then it will be necessary to consider whether a report should

be obtained from an occupational hygienist to advise upon the alleged exposure to hazardous

substances and if the insured have complied with the COSHH regulations and can defend the

claimant’s allegations of breach or duty and/or negligence.

9.2 The PAP allows greater flexibility in the instruction of liability experts. It is inappropriate in most

cases (for example, where it is the first dermatitis claim the defendant has faced and/or there is

potential for a large number of claims to follow for such experts to be instructed on either an

agreed or joint basis and you should obtain your own expert report. If you instruct a joint expert

this will prevent you from having any privileged discussions with the expert and will also

preclude you from having the expert attend conferences without the presence of the claimant

and/or their solicitor.

Medical expert evidence

9.3 The Disease and Illness Pre-action Protocol allows greater flexibility in the instruction and use of

medical experts than the Personal Injury Pre-action Protocol.

9.4 The type of expert required in dermatitis cases is a dermatologist. There may also be scope for

the instruction of a psychiatrist if the claimant alleges a psychiatric response to a skin allergy or

severe skin condition.

9.5 Issues of medical causation may be complex and so agreed/joint instruction of a medical expert

is generally not appropriate.

9.6 The medical expert should be instructed to consider issues of diagnosis, medical causation,

prognosis, whether there is any scope for treatment and future work capability.

9.7 The medical expert will need to consider all documents, lay witness evidence and liability expert

evidence when determining the issue of causation.

9.8 When presented with the claimant’s choice of medical experts ensure you reserve your position

on the need for the defendant’s own expert evidence until you have seen and considered the

report fully. If you do need your own expert make clear to the other side that there is a wide

range of medical opinion on the causation of dermatitis and that there is the presumption in

the PAP that the defendant will be given permission to fully test the claimant’s case on medical

causation.

9.9 Putting questions to the claimant’s expert for clarification upon his/her report and opinion is

permitted under the CPR however generally if you wish to challenge his/her opinion you will

need to obtain your own medical expert evidence.

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10. Making a decision

10.1 Having considered the employer’s duties (whether under statute or common law negligence),

the evidence (both documentary and lay witness) of the defendant’s practices, plus any

medical/liability evidence it’s time for you to decide on the defendant’s prospects of defending

breach of duty, alleging contributory negligence and/or denying medical causation.

Bear in mind the following questions:

Is the case one to be dealt with as a short tail case and are the insurers involved signatories

to the IDCWP? Is the insurance position resolved? If not, are the insurers on risk

contributing on a time on risk basis?

Are there any other insurers who need to be notified of the claim? They will need to be

notified before you can enter into any settlement discussions.

Is the claim registered with the CRU and do you have an up to date certificate?

Is limitation an issue and does it need to be taken as a preliminary point before settlement

is considered?

Do you have all of the disclosure and lay evidence you need? If not what’s missing?

If there reliable evidence the claimant was exposed to a hazardous substance?

Has the insured complied with their obligations under the COSHH Regulations? If no, were

those breaches causative of the claimant’s condition and the losses alleged?

Is expert liability evidence required from an occupational hygienist to determine

compliance with COSHH and defend the claimant’s allegations?

Having obtained copies of the claimant’s full occupational health and medical records -

Did the claimant have pre-existing dermatitis or any other conditions that may give rise to

dermatitis-like symptoms? Has the claimant’s medical expert considered the full range of

opinion, do you need to put questions to the claimant’s expert or do you wish to secure

your own expert evidence. Note: you can always get a medical report on the papers should

the claimant refuse to be examined by your expert pre-litigation or prior to court

permission in a litigated case.

Assess any schedule of loss and request documentation and evidence in support. Does the

medical expert need to consider and comment on the schedule and claims for loss of

earnings, medication, care, disability on open labour market and capability for work

generally?

10.2 If there is no basis on which to defend the claim and you have carried out a valuation of the

likely general and special damages consider your strategy to settle the claim.

10.3 Make sure, if you intend to make a Part 36 offer that your offer complies with the rules in Part

36.

10.4 Is your offer gross or net of CRU?

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Appendix 1- the Disease and Illness Protocol

Unlike the Civil Procedure Rules the protocols are less prescriptive. The point of the protocols is to

guide handlers in dealing with matters pre-action. Using the protocols effectively will give you a

great advantage when dealing with complex claims such as occupational dermatitis.

The protocol is available here: https://www.justice.gov.uk/courts/procedure-

rules/civil/protocol/prot_dis

It will stand you in good stead to develop a working knowledge of the protocol. You should be

ready to highlight which parts of the protocol you say you are complying with; whenever you get

the opportunity, whether in a letter or on the telephone, make clear to your opponent that you

and your client are working to comply with the Pre-action Protocol for Disease and Illness.

It’s in your and your clients’ interest to deal with things fairly and swiftly, because when things go

awry you will have ammunition to put before the court of how you have been working to comply,

even if you have fallen short in some way, and those contemporaneous documents work to

persuade judges.

The key parts of the protocols:

The Aims (1.2): more contact between potential parties, better exchange of information, better

investigations (ON BOTH SIDES) , ability to settle fairly and sooner;

Timetable and arrangements for disclosure (2.6): this should been seen as flexible, if the

circumstances of the case require the deadlines to be varied, seek alterations, but remember

to be collaborative: explain the circumstances (what steps you have taken, why the deadline is

not achievable, what further steps need taking, why and how long you estimate it will take).

Remember the more open and detailed your correspondence with your opposite number the

more ammunition there is before a court to show your reasonable conduct. This cuts both

ways, seek explanations from your opposite number, “why do you need that” is a useful

question to ask;

Litigation is a last resort (2A.1): there’s mention of alternative dispute resolution in the PAP,

but the key point here is:

“The Courts take the view that litigation should be a last resort, and that claims should

not be issued prematurely when a settlement is still actively being explored. Parties are

warned that if the protocol is not followed (including this paragraph) then the Court

must have regard to such conduct when determining costs.”

The above is a useful thing to point out when claimants’ solicitors are threatening to issue

proceedings and also when they threaten to issue Pre-action disclosure applications (also bear

in mind the General Aims of the Protocol 3.1: to resolve as many disputes without litigation as

soon as possible).

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In the General Objectives 3.2: it’s expressly set out, one of the aims of the protocols is:

“to discourage the prolonged pursuit of unmeritorious claims and the prolonged defence

of meritorious claims”

Make sure to point out, if a claim does not have good merits. In discouraging unmeritorious

cases you are complying with the protocol.

Understanding the claim 4.2: The claimant’s must provide sufficient information: so you need

clear details of:

Who the claimant is;

Who the alleged defendant is;

What the claimant’s symptoms/condition is;

When the claimant first became aware of the symptoms;

When the claimant alleges employment;

Where the claimant worked and when;

What the allegations are in relation to breach;

What the claimant alleges is the basis of his cause of action;

What documents/records the claimant intends to rely on;

What the claimant’s position is on causation.

If the Claimant hasn’t given you sufficient information to investigate their allegations they

have not complied with the protocol. If they haven’t complied with the protocol, you should

use this opportunity to point out that the claimant has not complied and how: also point out

the court is unlikely to consider the protocol period has begun to run (if not protocol

compliant), and that any applications which follow would be flawed.

Deadlines:

4.3: If a request is made for occupational records by the claimant to the defendant, you

have 40 days from the date the letter is sent to comply:

7.1: If a letter of claim is sent you have 21 days from the day it is posted to acknowledge

it; and

Within 30 days of the acknowledgement you must identify any other relevant insurers;

and

Within 90 days of the acknowledgement you should provide a position on liability, if you

are denying liability or any part of the claim you should provide documents in support of

your position which are relevant to the material issues.

Disclosure & documents:

Parties pre-action are entitled to seek relevant disclosure and inspection of documents to aid

in determining the strengths and weaknesses of their cases.

There are lists of what are considered standardised disclosure for personal injury matters,

which are found in Annex C in the Pre-Action Protocol for Personal Injury Claims. Note that

the list is intended as a starting point and just because documents appear in those lists does

not make it reasonable or proper in every case to disclose them. Claimants often cut and

paste those lists into their letters of claim without a second thought. The converse of that is

25

there are likely to be documents, not set out in the annex which may be relevant to the issues

in your case and need to be disclosed.

Go through the list to determine if the request for disclosure is proper and/or proportionate.

The test for what will constitute disclosure is under C.P.R. 31.6 (standard disclosure):

“what documents are to be disclosed

Standard disclosure requires a party to disclose only—

the documents on which he relies; and

the documents which—

adversely affect his own case;

adversely affect another party’s case; or

support another party’s case; and

the documents which he is required to disclose by a relevant practice direction.”

It’s a fairly broad test. But it will often be a useful exercise to ask whether the documents that

are requested will fall to be disclosed under standard disclosure. Bear in mind broad requests

for documents relating to other employees or ‘similar incidents’ are likely to be considered

inappropriate ‘fishing expeditions’.

Bear in mind 3.2 of the protocol: Parties are required “to communicate promptly where any of

the requested information is not available or does not exist”.

Extensions:

If further time is required to secure documents, the protocol allows for this: but reasons must

be given.

If there is a dispute on whether the time for complying with the protocol has begun to run, be

careful. Don’t deny the time has begun to run and then seek an extension. Instead, hold to

your position that the protocol has yet begun to run but make clear that you are investigating

but are hindered by the lack of information or cooperation on the part of your opponent.

Bear in mind that the court does not look favourably on failures to comply with extensions. If

you cannot comply with an extension explain why that is and seek another extension, ideally

this will be done in plenty of time before the expiry of the extension.

Typical disclosure documents and the matters to be covered by lay evidence are set out

below.

Disclosure documents (Claimant)

Request disclosure of:

GP, hospital and occupational health records.

Inland Revenue employment schedule.

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Claimant’s full personnel file.

Refer the claimant to Para.6.6 which places such disclosure requirements upon the

claimant once the letter of claim is acknowledged

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Contacts

HEAD OF DISEASE

PRACTICE

Nick Pargeter 020 7865 3361

nick.pargeter@blmlaw.com

Belfast & Derry

Aine Tyrrell

028 9032 7388

aine.tyrrell@blmlaw.com

Birmingham

Val Hughes

0121 633 6625

val.hughes@blmlaw.com

Bristol and Cardiff

Matthew Harrington

02920 447 621

matthew.harrington@blmlaw.com

Dublin

Gavin Campbell

+3573 1 261 2166

gavin.campbell@blmlaw.com

Glasgow

Andrew Gilmour

0141 307 6734

andrew.gilmour@blmlaw.com

Leeds

Deborah Procter

0113 218 5571

deborah.procter@blmlaw.com

Liverpool

Tanya Cross

0151 471 5454

tanya.cross@blmlaw.com

London

Michelle Penn

020 7865 8541

michelle.penn@blmlaw.com

Manchester

Claire Lawlor

0161 838 6971

claire.lawlor@blmlaw.com

Southampton

Andrew West

023 8038 2647

andrew.west@blmlaw.com

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