CARBON MONOXIDE
POISONING
OCCUPATIONAL DISEASE
OCCUPATIONAL DISEASE GUIDE 8
Carbon Monoxide
Poisoning
Occupational disease series – Guide 8
Contents
Introduction
1.
2.
3.
4.
5.
6.
7.
8.
Insurance
Damages and the Reserve
The Landlord’s Duty
Investigations
Medical Causation
Expert evidence
CRU
Making a decision
1
Introduction
Carbon monoxide (“CO”) is a colourless, tasteless, odourless non-irritant gas which, if inhaled, is acutely toxic. It
can be formed when any type of fuel, such as gas, wood or coal, is burned. As a result, any fuel-burning
appliance, such as a fireplace, woodstove and gas appliance, has the potential to produce dangerous levels of
CO.
Whilst only very small amounts of CO are produced by gas appliances which have been installed and maintained
correctly, dangerous levels of CO can be emitted if gas burns incompletely – this is known as incomplete
combustion. This can occur, for example, if the appliance has inadequate ventilation.
There are a number of potential sources for the production of CO within the home (see figure 1), and given the
difficulty in detecting the fumes, CO poisoning is a major domestic health hazard and a leading cause of death
by poisoning throughout the world.
The NHS estimates that CO poisoning causes approximately 50 deaths in the home per year in the UK. There are
over 200 cases of non-fatal injuries per year including temporary or permanent brain damage. Incidents increase
during the winter when the use of gas boilers and fires escalates.
This guide is drafted from the perspective of a landlord/tenant claim. However, carbon monoxide poisoning
claims impact upon a number of parties including owner occupiers, gas engineers, house builders and housing
authorities. They can also result from other sources such as poorly serviced cars and motor vehicles.
This guide is focused on Public Liability claims in the context of housing. If you should encounter a CO
poisoning claim in the context of employment then the Control of Substances Hazardous to
Health Regulations 2002 (COSHH) will apply. The BLM mini guide on Occupational asthma sets out the duties
and handling tips for COSHH claims.
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1. Insurance coverage
1.1 CO poisoning claims typically arise when tenants allege they have been exposed to fumes from a defective
gas appliance, usually a fire or boiler, while living in a rented property.
1.2 Claims are typically directed against landlords and/or those who installed, serviced or maintained the
appliance. As such it is generally PL rather than EL insurers who deal with these claims.
1.3 You will need to establish the date the condition first manifested itself, or was capable of being diagnosed,
as the insurer which was on risk at this time will be responsible for handling the claim.
1.4 Other insurers may need to contribute if the period of exposure is not solely covered by your period on risk.
Most report of symptoms is a short period of exposure to CO when symptoms appear however there are
some cases of prolonged exposure to low levels of CO.
1.5 Most PL policies will cover a Landlord for their legal liability to pay damages and claimant’s costs and
expenses for accidental bodily injury or illness happening during the period of insurance. However
many policies contain an exclusion of indemnity for any loss, damage or liability arising from pollution
or contamination. For example; loss, damage or liability arising from pollution or contamination can
generally be excluded from cover unless caused by a sudden and unexpected accident which can be
identified.
1.6 Most policies include a general term setting out the insured’s duty to prevent loss and damage. For
example;

“You and any other person this insurance applies to must take all reasonable precautions to prevent
accidents, loss or damage.

You must keep property that is insured under your policy in good condition.”

Your policy is intended to cover you against unforeseen events like fire or theft. It does not cover wear and
tear or damage which happens gradually over a period of time.”
1.7 If the claim has arisen due to failings upon behalf of the insured to undertake suitable and sufficient
maintenance and repairs upon the gas appliances in the property you may feel that there has been noncompliance with the policy and may consider you do not wish to indemnify. If a policy exception applies or
you consider the insured in breach of the policy you will need to advise the insured why indemnity is not
being granted and that they ought to seek legal advice in respect of the claimant’s claim.
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2. Damages and the Reserve
General damages (awards for Pain Suffering and Loss of Amenity)
2.1 Damages are split into two categories:


general damages: for those losses which cannot be financially calculated such as suffering and pain.
special damages: these are calculable losses which have already been incurring for things such as
damage to property or loss of income.
2.2 The level of general damages depends on:





the claimant’s age;
duration, frequency and severity of symptoms;
whether the condition/symptoms are transient or leave more permanent symptoms;
whether exposure has caused any neurological damage;
general impact on work and lifestyle;
2.3 The Judicial College Guidelines do not provide specific guidance regarding general damages for CO
poisoning. Reference should be made to category 6(A)e, chest injuries, for initial reserving purposes where
the injuries do not appear serious.
The parts of the guidelines which are relevant to CO poisoning are as follows:Severity and description of condition
Toxic fume/smoke inhalation, leaving some residual damage, not serious
£9,000 enough to interfere permanently with lung function
Level of general damages PSLA
£4,460 to £10,530
If, however, there is a suggestion of brain damage as a result of the poisoning then the following (taken from
Judicial College Guidelines category 3(A) should be used:
Severity and description of condition
Level of general damages PSLA
(a) Very Severe Brain Damage
In cases at the top of this bracket the injured person will have a degree of
insight. There may be some ability to follow basic commands, recovery of
eye opening and return of sleep and waking patterns and postural reflex
movement. There will be little, if any, evidence of meaningful response to
environment, little or no language function, double incontinence and the
need for full-time nursing care.
£235,790 to £337,700
The level of the award within the bracket will be affected by:



the degree of insight;
life expectancy;
the extent of physical limitations.
The top of the bracket will be appropriate only where there is significant
effect on the senses and severe physical limitation. Where there is a
persistent vegetative state and/or death occurs very soon after the injuries
were suffered and there has been no awareness by the injured person of his
or her condition the award will be solely for loss of amenity and will fall
substantially below the above bracket.
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Severity and description of condition
Level of general damages PSLA
(b) Moderately Severe Brain Injury
The injured person will be very seriously disabled. There will be
substantial dependence on others and a need for constant professional
and other care. Disabilities may be physical, for example, limb paralysis,
or cognitive, with marked impairment of intellect and personality. Cases
otherwise within (a) above may fall into this bracket if life expectancy has
been greatly reduced. Where there is a risk of associated future
development of other severe medical problems such as blindness an
award in excess of the bracket would be justified.
£183,150 to £235,790
The level of the award within the bracket will be affected by the
following considerations:







the degree of insight;
life expectancy;
the extent of physical limitations.
the degree of dependence on others;
ability to communicate;
behavioural abnormality;
epilepsy or a significant risk of epilepsy (unless a provisional
damages order provides for this risk).
(c) Moderate Brain Damage:
i.
Cases in which there is moderate to severe intellectual deficit, a
personality change, an effect on sight, speech and senses with a
significant risk of epilepsy and no prospect of employment.
£125,510 to £183,150
ii. Cases in which there is a moderate to modest intellectual deficit, the
ability to work is greatly reduced if not removed and there is some risk of
epilepsy (unless a provisional damages order provides for this risk)
£75,900 to £125,510
iii. Cases in which concentration and memory are affected, the ability to
work is reduced, where there is a small risk of epilepsy and any
dependence on others is very limited
£36,000 to £75,900
(d) Less Severe Brain Damage
In these cases the injured person will have made a good recovery and will be
able to take part in normal social life and to return to work. There may not
have been a restoration of all normal functions so there may still be
persisting problems such as poor concentration and memory or disinhibition
of mood, which may interfere with lifestyle, leisure activities and future work
prospects. At the top of this bracket there may be a small risk of epilepsy.
£12,820 to £35,760
The level of the award within the bracket will be affected by:
 the extent and severity of the initial injury;
 the extent of any continuing, and possibly permanent, disability;
 the extent of any personality change;
 depression.
(e) Minor Brain or Head Injury
In these cases brain damage, if any, will have been minimal.
£1,840 to £10,870
The level of the award will be affected by the following considerations:




the severity of the initial injury;
the period taken to recover from any symptoms;
the extent of continuing symptoms;
the presence or absence of headaches.
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Special damages/future losses:
2.4 Most symptoms arising from CO poisoning are minor and includes headaches, lethargy and dizziness which
resolves within a short period of time of exposure ceasing.
2.5 If exposure is high and causes severe and life changing symptoms there may be significant claims for past
and future loss of earnings and possibly for care and medication. In such circumstances you may seek the
assistance of an employment 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:
2.6 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 their symptoms they are unable to function at work as
they had previously done. However, if the claimant had a pre-existing health problems which affected their
ongoing ability to work then this claim can be denied.
2.7 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.
2.8 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”.
2.9 In Foster v Tyne & Wear CC (1986) 1 ALL ER 567 The judge took the number of years of the claimant’s preinjury 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 symptoms.
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 exposure
and subsequent injury.
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3. The Landlord’s duty of care
Statute
The Gas Safety (Installation & Use) Regulations 1998 and the Approved Code of Practice and Guidance.
3.1 The Gas Safety (Installation & Use) Regulations (the regulations) initially came into force in 1994 and were
updated and consolidated to form the 1998 regulations.
3.2 The regulations deal with the safe installation, maintenance and use of gas fittings, appliances and flues.
They place responsibilities on a wide range of people, from those installing, servicing and maintaining gas
appliances, to gas suppliers and landlords.
3.3 The main statutory regulations are as follows:
Regulation
Regulation 36(1) Meaning of
‘landlord’
Regulation 36(2) To ensure gas
fittings are maintained in a safe
condition
Regulation 36(3)(a) Checks to be
carried out on an ‘annual’ basis
Regulation 36(4) Works to be
carried out by an ‘approved’
person
Regulation 36(3)(c) and (6)(a)
Safety records to be maintained
and provided to the tenant
Regulation 36(10) Duties may
not be delegated
Regulation 39 Exception as to
liability
Duties
The term ‘landlord’ applies to the provision of a wide range of
accommodation, including residential premises provided by local
authorities, housing associations, private sector landlords and hostels.
Rooms let in bedsits, private households, B&Bs, chalets, holiday cottages,
flats, caravans and narrow boats are also covered.
Gas appliances, flues and installation pipework must be maintained in a
safe condition, and this usually involves inspections and remedial work.
Manufacturers’ instructions may provide specific maintenance
requirements.
The appliance/flue safety check must be carried out within 12 months of
being installed and thereafter at intervals of no more than 12 months. A
record must be made and should include, for example, the date it was
checked, the name and address of the landlord, any defect identified and
any remedial action taken.
The person carrying out any work or safety check must be approved by
the HSE, for example, a CORGI-registered gas installer. On 1 April 2009,
the Gas Safe Register took over the statutory gas registration scheme in
Great Britain from CORGI. All gas engineers undertaking domestic and
certain other gas work now need to be registered with this scheme.
(See www.gassaferegister.co.uk).
Landlords should maintain a record of the safety check and a copy
should be issued to the tenant within 28 days of the check being carried
out.
The landlord’s duties may not be delegated in any way, for example,
asking the tenant to make the necessary arrangements for the safety
checks to be carried out. Tenants should, however, co-operate by
reporting any defect to the landlord/managing agent.
This provides an exception as to liability, under which a person is
deemed to be not guilty of an offence, where they can show they took
all ‘reasonable steps’ to prevent contravention of the provision.
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The Defective Premises Act 1972
3.4 Section 4(1) of the Defective Premises Act 1972 obliges a landlord to take such care, as is reasonable in the
circumstances, to ensure that a tenant is reasonably safe from personal injury caused by a defect.
3.5 The landlord does not have to have actual knowledge of the defect and will be in breach of his duty if, in all
the circumstances, he ought to have known of the defect.
3.6 The 1972 Act is particularly onerous on landlords as it imposes a duty of care toward not only the tenant,
but also all persons who may reasonably be expected to be in the premises. This includes the tenant’s family
and friends and any other lawful visitor.
The Landlord and Tenant Act 1985
3.7 A landlord is obliged under a specific covenant implied by section 11(1)(c) of the Landlord and Tenant Act
1985 to keep all gas installations, for example, pipes and flues, in ‘repair and proper working order’.
However, no obligation to repair arises until the landlord has actual notice of a defect.
Negligence
3.8 Without rehearsing the history of the common law principle of negligence, it’s useful to remember the
basics of establishing negligence: there must be a duty of care which is breached, and that breach of duty
must have caused or materially contributed to a reasonably foreseeable injury. There are no special control
mechanisms for CO poisoning. Breach of the above regulations, if proved, will provide evidence as to
negligence on the part of the insured.
Criminal proceedings
3.9
Failure by landlords, or defendants, to comply with Gas Safety (Installation & Use) Regulations, can lead to
prosecution by the HSE and thereafter unlimited fines and/or imprisonment. A criminal prosecution will
provide important evidence regarding the state of the defective appliance which may be used in any
subsequent civil proceedings.
Additional claims for indemnity and/or contribution
3.10 It is always important to consider whether Part 20 proceedings for indemnity and/or contribution could be
pursued against any other party.
3.11 For example, if acting on behalf of a landlord, did a gas engineer install an appliance incorrectly or certify
that the appliance was safe to use when in fact it was defective? If so, Part 20 proceedings for indemnity
and/or a contribution may be brought against the gas engineer.
Contributory negligence
3.12 The possibility of raising allegations of contributory negligence should always be considered. For example,
in Harry v Sykes [2001] EWCA Civ 167 the Court of Appeal found that the claimant, who had suffered severe
CO poisoning, was 80% contributory negligent as he was aware of the gas fire’s defects and the need for it
to be serviced.
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4. Investigations
4.1 The Disease and Illness Pre-action Protocol will often apply to CO poisoning claims.
4.2 The initial letter of claim should provide sufficient information to commence detailed investigations.
4.3 The protocol allows three months to investigate the claim and respond regarding breach of duty. The three
month period does not start to run until sufficient information has been provided to enable the matter to be
properly investigated. Reasonable extensions of time can be requested, if necessary.
4.4 Once first notification of the claim has been received the landlord should be advised that, whilst the
appliance should be made safe, it should not be removed and/or destroyed until it has been inspected by a
heating engineer otherwise it will be difficult to adduce any evidence regarding breach of duty. The
appliance should therefore be inspected at the earliest opportunity. See Appendix 1 for further details on
the protocol.
4.5 Medical causation is complex and there may be a number of underlying medical conditions which may have
caused the claimant’s symptoms. As such, a detailed chronology of facts and relevant entries from the
medical records will be invaluable.
Disclosure
4.6 Typical disclosure will include the following:
 Tenancy agreement/contract.
 Housing maintenance records.
 Records regarding purchase and installation of appliance, including any contractual agreements with
third parties.
 Past and present Landlord’s Gas Safety Records.
 Any maintenance and/or repair documentation in respect of the installation.
 Any documentation/correspondence prepared by any other relevant organisation, such as British Gas
and/or Transco, following any inspection of the installation. For example, if the appliance was
subsequently disconnected by any such organisation.
 Manufacturer’s documentation, in particular regarding installation, maintenance and servicing of the
appliance.
 Past and present photographs of the appliance.
 Copies of any correspondence between the defendant and claimant regarding the appliance, in
particular if a tenant has prevented the safety check being carried out.
 Documents relating to any relevant HSE prosecution.
 A plan of the premises to include the location of the appliances and dimensions/volume of living space.
 Full and up-to-date copies of the claimant’s GP, hospital and DSS records.
 Documents in support of the claimant’s schedule of loss.
Lay witness evidence
4.7 Statements should be obtained from the landlord and those installing/maintaining appliances (although
cooperation may not be forthcoming particularly where third-party proceedings may be anticipated).
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4.8 If it is alleged that the tenant has prevented the safety check being carried out, details regarding any written
or oral notice given to the tenant should be provided, along with details of when access to a gas engineer,
or any other contractor, was refused and what, if any, reasons were given. If possible, witness statements
should also be taken from the gas engineers.
4.9 Lay witness evidence should include the following:
 A full and detailed chronology of events
 The make and model of the installation.
 The date when the last safety check was carried out.
 The name of the engineer and company which carried out the safety check.
 Details of what maintenance and/or repairs were carried out when and by whom.
 Details of when any alleged defect was reported, by whom and the nature of the defect.
 Full details of any instances when the tenant failed to co-operate and/or prevented access to the
premises to allow the safety check to take place.
 Any internal investigations and communications with the HSE.
 Copy documents relating to agreements between the insured and any third parties to test and maintain
the gas installation.
 Copy documents relating to any work undertaken upon the property which may have damaged any gas
installation/flue.
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5. Medical causation
5.1 Some background to the mechanism of CO poisoning will be useful when dealing with the claims.
5.2 Once inhaled into the lungs oxygen (O2) is carried in the bloodstream by haemoglobin in the red blood cells
forming oxyhaemoglobin (O2Hb). If CO is inhaled it is absorbed into the bloodstream just like oxygen, via
the lungs (see figure 2).
5.3 Haemoglobin absorbs CO approximately 200 times more easily than oxygen and importantly the CO
prevents haemoglobin from taking up oxygen. Instead the CO combines rapidly with the haemoglobin to
form carboxyhaemoglobin (COHb) (see figure 3).
5.4 The accumulation of COHb in the blood not only reduces its oxygen carrying capacity but also the ability of
the remaining O2Hb to release oxygen to the tissues and organs. The body quickly becomes deprived of its
much needed oxygen, and it is those organs that require oxygen the most, in particular the brain, which are
affected.
5.5 The severity of the symptoms varies depending on the extent to which blood is saturated with COHb and
this depends on the concentration of CO in the air, length of exposure, the individual’s activity level and
susceptibility (with the young, elderly and those with pre-existing severe respiratory or cardio-vascular
11
disease being the most susceptible). Symptoms typically range from headaches, breathlessness, dizziness,
nausea, impaired judgment, coma, respiratory failure and ultimately death. The extent that blood is
saturated with COHb can be measured by blood tests either at the time of exposure or shortly afterwards.
5.6 The symptoms typically associated with various COHb blood-saturation levels can be summarised as follows:
% blood saturated with COHb
Symptoms
0 – 10%
No symptoms (although there may be an increase
in blood flow to the vital organs to compensate
for the reduced O2-carrying capacity of the blood)
10 – 20%
Tightness across the forehead, yawning
20 – 30%
Flushed skin, headaches, breathlessness,
palpitation on exertion, slight dizziness and fine
manual dexterity impairment
30 – 40%
Severe headache, dizziness, nausea, weakness
of the knees, irritability, impaired judgment
40 – 50%
Symptoms as above but with increased
respiration and pulse rates. Collapse on exertion
50 – 60%
Loss of consciousness, coma
60 – 70%
Coma, weakened heart and respiration
70%
Respiratory failure and death
5.7
Smokers are more susceptible to CO poisoning because while a non-smoker has a saturation level of
approximately 0.1-2.5%, the average smoker has a saturation level of 5-7% and a heavy smoker may have a
saturation level of up to 15%. It is key therefore to find out the claimant’s smoking habits.
5.8
Non-acute exposure can result in non-specific symptoms, such as fatigue, headaches, nausea, confusion and
memory problems and can therefore easily be confused with flu or being ‘run down’ – especially since most
incidents occur during the winter.
5.9
Non-acute exposure can make diagnosis very difficult – especially if the blood COHb saturation level was
not measured. Where on-going symptoms are alleged, medical causation often becomes very complex –
especially if there is a pre-existing history of similar symptoms from unrelated conditions, such as
depression or ME.
5.10 Acute exposure can lead to vomiting, fainting, coma and death. In those instances, it may be relatively easy
to diagnose CO poisoning – especially if contemporaneous medical records reveal high blood COHb
saturation levels. Again, where on-going symptoms are alleged medical causation may be very complex if
there is a pre-existing history of similar physical symptoms attributed to other medical conditions.
5.11 Exposure to CO may also result in neurological damage, such as concentration, memory and intellectual
problems.
5.12 To assess the extent of injury the Wechsler Adult Intelligence Scale III (WAIS III) and the Wechsler Memory
Scale – 4th edition (WMS IV) are widely used. The intelligence test examines cognitive functions, verbal
comprehension and processing speed whilst the memory test examines concentration, recall and
recognition.
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5.13 The way in which individuals react varies enormously but typical reactions to CO concentrations – which are
measured in parts per million (ppm) – can be summarised as follows:
50 ppm
200 ppm
400 ppm
1200 ppm
2000 ppm
Recommended exposure limit – calculated as an 8 hour Time
Weighed Average (TWA) concentration. (TWA means the average
exposure over the course of an 8 hour period)
Headaches after approximately 7 hours resting or 2 hours’
exertion
Headaches with possibility of collapse after 2 hours resting or 45
minutes’ exertion
Palpitation after 30 minutes at rest or 10 minutes after exertion
Unconscious after 30 minutes at rest or 10 minutes after exertion
5.14 The process by which CO combines with haemoglobin to form COHb is reversible. Once exposure ceases the
CO starts to slowly leave the body – via the lungs.
5.15 Inhaling room air, which has a concentration of oxygen at 21%, will result in the COHb level being halved in
approximately 4 ½ hours – this is known as the ‘half life’. The removal of CO from the body can be speeded
up by increasing the amount of oxygen in the air which is inhaled, along with the atmospheric pressure.
5.16 This can be done by either breathing gas from a bottle, which has greater concentrations of oxygen, or by
giving the patient Hyperbaric Oxygen Treatment. Hyperbaric Oxygen Treatment is carried out by placing the
patient under increased atmospheric pressure, breathing 100% oxygen. The increased amount of oxygen
forces the CO off the haemoglobin allowing it to again carry oxygen around the body.
5.17 The rate at which the blood COHb saturation level is reduced when inhaling ‘high levels’ of oxygen,
compared to room air, is illustrated in figure 4.
Figure 4: Reduction of blood COHb saturation levels when breathing room air and ‘high oxygen’.
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6. Expert evidence
Liability expert evidence
6.1 If breach of duty is an issue it is likely that expert evidence from an engineer (potentially a heating engineer)
will be required to assess, if possible:
 whether the gas installation was defective in any way;
 the nature and extent of any defect;
 how long any defect would have been present;
 whether any defect would have actually caused the release of CO into the property;
 the concentration and period during which CO was released into the property.
6.2 The Disease and Illness Pre-action Protocol allows greater flexibility in the instruction of liability experts
when compared to the Personal Injury Pre-action Protocol, and it may not be appropriate to instruct such
experts on either an agreed or joint basis as the CPR prevents you communicating in person or in writing to
the expert without the claimant’s solicitor being present or copied in.
The medical expert evidence
6.3 The Disease and Illness Pre-action Protocol also allows greater flexibility in the instruction and use of
medical experts. As medical causation is usually so complex an agreed or joint instruction of a medical
expert – usually a consultant respiratory physician initially – is not appropriate.
6.4 Depending on the nature and extent of the alleged injury, other expert evidence may be required. For
example, evidence from a consultant psychiatrist if psychiatric problems such as depression are alleged,
and/or from a consultant neuro-psychologist if brain damage, such as concentration, memory and
intellectual deficits, are alleged.
6.5 A full letter of instruction should be sent to the medical expert, and they should be asked to comment, in
particular on: diagnosis,
 medical causation and prognosis,
 capability for work.
6.6 The medical expert will always need to have sight of all relevant documentation, including pleadings,
disclosure documents, witness evidence, liability evidence and medical records.
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7. CRU
7.1 CO Poisoning is condition for which a claimant may seek benefits from the Department of Work and
Pensions (DWP) in the event that he/or she is unable to work.
7.2 Where a defendant is responsible for the claimant’s condition, the DWP’s Compensation Recovery Unit
(CRU) will seek to recover the money paid to the claimant from the defendant.
7.3 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 sums which the defendant will be expected to reimburse. Note that the certificate
expires and you must ask for an up to date certificate in order to be sure you are reserving the proper
amount for the benefits.
7.4 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.
7.5 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.
7.6 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;
i.
The first is to seek a ‘review’ of the certificate. This can be done throughout the proceedings presettlement and is a request for the CRU to consider whether the sums paid to the claimant were done
so appropriately and as a result of the injury which is the subject matter of the claim;
ii.
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 refused, you must prepare an ‘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. There are time limits in place, see
the guidance in the link below.
7.7 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/appeal. (See guidance at www.gov.uk)
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8. Making a decision
8.1 Which insurer was ‘on risk’ when the symptoms first manifested or became capable of diagnosis? Ensure
that there is relevant PL insurance in place, as opposed to EL, if appropriate and that all insurers have been
notified of the claim.
8.2 Is limitation an issue and does it need to be taken as a preliminary point?
8.3 Have you registered the claim with the CRU?
8.4 Have you got all the disclosure and statements from the relevant witnesses?
8.5 Is expert evidence required from an engineer to assist on breach of duty and/or causation?
8.6 Obtain full and up-to-date copies of the claimant’s GP, hospital and DWP records. In particular, ascertain
whether the claimant’s blood COHb saturation level was recorded.
8.7 Did the claimant suffer from CO poisoning? Was there a pre-existing medical condition with symptoms also
typical of CO poisoning? Is expert evidence required from a consultant respiratory physician, neurologist,
consultant psychiatrist and/or neuro-psychologist?
8.8 Assess any schedule of loss and request documentary evidence in support. Does the medical expert need to
consider and comment upon any claim for loss of earnings, medication and capacity for work?
8.9 Once you have considered the evidence available decide whether you are in a position to repudiate or settle
the claim.
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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 cumulative back injury claims.
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).

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”
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
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 exposure;
 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 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
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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.

Claimant’s full personnel file (if appropriate).

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
[email protected]
Belfast & Derry
Aine Tyrrell
028 9032 7388
[email protected]
Birmingham
Val Hughes
0121 633 6625
[email protected]
Bristol and Cardiff
Matthew Harrington
02920 447 621
[email protected]
Dublin
Gavin Campbell
+3573 1 261 2166
[email protected]
Glasgow
Andrew Gilmour
0141 307 6734
[email protected]
Leeds
Deborah Procter
0113 218 5571
[email protected]
Liverpool
Tanya Cross
0151 471 5454
[email protected]
London
Michelle Penn
020 7865 8541
[email protected]
Manchester
Claire Lawlor
0161 838 6971
[email protected]
Southampton
Andrew West
023 8038 2647
[email protected]
For full details of all BLM offices, please visit our website www.blmlaw.com
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