Can your business afford an issue with Industrial Disease?

By arch.portfolio members John Mackenzie and Nick McMahon.

At we help our clients to find innovative solutions through the use of our products. Risk resilience is one such area. The issue of Industrial Disease, which presents distinct problems for clients, whether employers or insurers.  We can help clients with those problems.

Industrial Diseases can result in significant injury and the claims that arise can be for significant damages and costs and incumbent problems with reputation, prosecution and disruption.  Inevitably increasing insurance premiums in the process.

These claims are typically very expensive and time-consuming. Litigation can involve significant business disruption.  However, time spent in analysis presents an opportunity for an employer to engage in a strategy for management and defensibility of claims, but also the prevention of these scenarios in future. 


Due to the peculiar features of industrial disease, it makes sense to have a strategy to manage claims that do arise, rather than deal with the claims ad hoc on the basis of only their individual merits.  We can assist you in this strategic approach.


These types of claim can open claims ‘floodgates’, meaning that settlement of an individual claim can give rise to many similar claims.  As such, thoroughly exploring defences to a claim may help resist a flood of similar claims. 


Industrial Disease claims are often capable of being successfully defended.   There are potentially many grounds on which to do so e.g. liability, limitation, causation and ‘de minimis’ exposure.  Diseases alleged to be occupational in nature are often in fact constitutional, or otherwise unrelated to the alleged exposure at work.  Our experts have a repudiation rate of over 80%.


Often the costs of such claims are extremely high.  Where there are multiple defendants, the share of damages can be low.  It is often the high associated costs -rather than the damages themselves – which can make it worthwhile defending the claim. 


Such claims may also be publicised often through the coronial or Court process, and as a result can carry a risk of potential reputational damage.


We can assist clients to put in place strategies to assist in the prevention of disease and its consequences.


Through our extensive experience of disease claims, we can help clients  design and improve their operational systems and processes around risk management such that claims are avoided or seen off at an early stage.  Our knowledge of the evidential burden required by the Courts can help employers to put into place a system that meets that threshold.


Appropriate record keeping is crucial.  We can advise clients on appropriate retention of relevant paperwork to evidence a defence and ensure documents are kept for a sufficiently long period to sustain a viable defence in the future and compliant with data protection and retention regulations. 


A common problem is that a full insurance history is not available, leaving the defendant company potentially exposed to significant costs for a share of the claim.  Our experts are often able to trace historic policies and can also help when the company is involved in M&A that such information is disclosed by the vendor or sufficient indemnities put in place. 


Industrial Disease represents “hot topic” for prosecutions by the Health and Safety Executive.  The HSE is particularly interested in prosecuting employers with systemic issues of occupational disease.  The size of the associated fines are linked to the financial turnover of the business,  and in the case of large organisations could run into the millions.  HSE prosecutions are usually publicised and carry significant reputational risk.  Our regulatory lawyers will work in conjunction with civil litigation experts to manage and/or prevent future prosecutions.

Joined—up Approach

Our litigation specialists, regulatory lawyers and contract and data lawyers work together to provide bespoke solutions to our client’s challenges   Our service can include root and branch reviews of a company’s risk management systems, processes, and paperwork, stress testing incident-readiness in relation to casualty, or indeed any other area of risk.  We can analyse claims that have arisen, in order to identify themes in relation to risk assessments, work methods, record keeping, and incident response strategies.  This exercise can be carried out confidentially under the protection of legal advice privilege.

The team at Arch is agile, and not burdened by the bureaucracy that can encumber a larger law firm.  All our team are experts in their own respective fields, and by adopting an integrated, collaborative and effective approach can provide a highly efficient service, avoiding duplication of costs and ultimately helping the client towards longer term costs savings and avoiding business risks.  Whether your problems with Industrial Disease are historic or ongoing, we can help.

Is your business Risk Resilient?

Do you recognise any of these problems in your business? If these matters represent an issue for your business, please do get in touch and we can help.

Contact : John Mackenzie & Nick McMahon 

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