BLM reports - Namibia Desert Challenge 2008....................................................................... 25
BLM briefing............................................................................................................................. 27
1
This document does not present a complete or comprehensive statement of the law, nor does it constitute
legal advice. It is intended only to highlight issues that may be of interest to clients of Berrymans Lace
Mawer. Specialist legal advice should always be sought in any particular case. Information is correct at
the time of printing.
Disclosure is published by the marketing department of Berrymans Lace Mawer on behalf of the
partnership. Printed in England by Paterson Print. ISSN 1475-4711. Issue 12 © Berrymans Lace Mawer
2008. Berrymans Lace Mawer is regulated by the Solicitors Regulation Authority and accredited to quality
standards ISO 9001 and Lexcel.
Editorial board
Alistair Kinley (guest editor)
Helen Cafferata
Linda Coppell
Catherine Hawkins
Val Jones
Jenny Moates
Andrew Relton
Jim Sherwood
Kathy Széputi
page 1
Editorial
The deepening credit crunch has led to a sea-change in the state’s involvement in the banking and
financial sectors. Capital provided by government has altered the boundary between private enterprise
and public ownership – probably for the foreseeable future. On that theme, many of the insurance and
litigation topics in this edition of Disclosure deal with changes to existing legal and institutional
boundaries.
A striking example is the case of Eidha v Toropodar – Michael Renshaw explains how the defendant
acted as claimant in order to press for resolution. Tim Smith’s piece about the Mosley saga looks at the
boundary between the public interest and privacy. Louise Abbott’s article comments on the pragmatic
approach of the Court of Appeal to the boundaries of liability, even in the most serious and tragic cases.
We also report on the Law Commission’s recent recommendations to re-define the legal regime for
claims between the individual and the state.
We provide a costs update and touch on reforms to the claims process. Two other pieces deal with
causation – Gary Allison comments on Bailey v Ministry of Defence and Joanna Peters examines
whether suicide or manslaughter arising from tortious psychiatric harm are acts that break the chain of
causation.
The credit crunch will lead to increased claims notifications and to a heightened fraud risk. As a senior
representative of Lloyd’s observed recently ‘We know there’s a correlation between recession and
claims activity but quantifying that impact is difficult’. So we expect ever-greater scrutiny of policy terms
and conditions, and Cathy Hawkins looks at four lead cases on the topic. On fraud specifically, two
timely articles analyse important developments regarding motor claims in particular.
Although the markets warn us that ‘past performance is not necessarily an indicator of the future’ based
on the previous economic downturn increases in notifications and claims should be expected across all
major casualty insurance lines. At BLM, we shall monitor the sectors most affected, look for emerging
trends and share our best intelligence with you, our clients. Perhaps the ‘nice decade’ is over and things
look about to get nasty.
Alistair Kinley
Head of policy development, BLM national
page 2
Defendant issues proceedings against itself
Eidha v Toropdar, High Court, 16 April 2008
All insurers have large cases on their books where a claim is continually threatened but
proceedings are never issued. In smaller cases it is safe to assume that once a reasonable
period of time has elapsed the claim will not progress any further and the file can be closed,
particularly if the limitation period and the four months allowed for service have expired.
However, in some cases, particularly those involving claimants who do not have mental capacity, and
will never regain it, insurers have a much longer term problem – particularly where they believe they
have a good case on liability. What can they do?
This is a common problem in catastrophic brain injury claims. Proceedings may well be threatened but
in the absence of a claim the insurer has to retain a large reserve to deal with the possible claim
potentially for the rest of the claimant’s life and even then for three years after that.
As more time elapses the memories of witnesses fade, documents and evidence are lost and the
possibility of a fair trial becomes more remote. The inescapable sympathy that any judge will have with
an injured party may start to play a stronger part in weighing up the merits of the claim. Without strong
evidence the prospects of successfully defending the claim diminish. In these circumstances further
delay benefits the injured party.
The balance of justice dictates that the liability part of the case should be heard sooner rather than later.
By what means does the insurer commence proceedings to enable that determination to take place?
Conventionally the way forward has been for the insurer to issue proceedings for its own insured’s
damage. For example, in a road traffic collision it is possible for the insurer to commence proceedings
for the damage to the insured’s vehicle and obtain a decision on liability in respect of the accident as a
whole. However, there are cases where the insured has not suffered any damage, such as in a low
speed collision with a pedestrian or a member of the public suffering injury through a trip, slip or fall.
A leading example
This situation arose in Toropdar v Eidha. In June 2002 Master Eidha sustained a significant brain injury
in a road accident in 2002. The accident occurred when Mr Toropdar drove past a bus parked on his left
and the child (Eidha) ran out from behind the bus and a collision occurred. The brain injury left the child
without mental capacity which he was unlikely to regain. Limitation did not run against Eidha pursuant to
the Act. For over six years solicitors on his behalf maintained that a personal injury claim pleaded in
excess of £1m would be brought, but proceedings were never commenced. Therefore the insurers
commenced proceedings for a declaration that their driver was not liable to the injured child for the
injury, loss or damage sustained in the accident.
In the face of those assertions the insurers had to hold a large reserve for this catastrophic claim despite
the fact that they considered their case on liability was strong. Having suffered no damage the insured
could not pursue a claim for their losses and obtain a determination on liability in those proceedings.
Counsel for the injured child was of the view that this was an unprecedented way to proceed in a
personal injury claim. At the first CMC he asked the court to direct a preliminary issue be heard as to
whether or not, as a matter of principle, a declaration of non-liability was available to a tortfeasor as a
remedy in a personal injury claim when the injured party’s limitation period had not expired. The High
Court master held there should not be a trial on this preliminary issue but directed that that issue, and
whether or not a declaration should be granted in this particular case, should be heard at the same time.
The injured child ‘claimant’ appealed this order which was heard before Mr Justice McCombe on 16
April 2008. He upheld the master’s decision not to direct a preliminary issue be heard but to allow the
claim to proceed to a full hearing to decide both whether a declaration could be allowed as a matter of
principle and also whether a declaration would in fact be granted in this case. In doing so, McCombe J
validated the approach advocated by the insurer and recognised that a material factor for the court to
consider was how the quality of evidence was likely to be affected with the passage of time. The
negative declaration procedure was appropriate given the lengthy delay, the threat of proceedings
without action taken and the real danger that the trial of the action would become less and less
satisfactory as time went on.
page 3
It is understood that this is the first case within the catastrophic injury field in which an insurer has
pursued a declaration of non-liability on the part of its insured against the injured party. The approach
has been validated by both a High Court master and a judge and the case is proceeding to a full hearing
as to whether a declaration should be granted in February 2009. Even as it stands the decision of
McCombe J provides an encouraging precedent to insurers that declaration proceedings are available to
them as a means of resolving liability in high value claims which are repeatedly threatened but never
progressed.
Michael Renshaw
Partner, BLM Southampton
Berrymans Lace Mawer and Alan Jeffreys QC of Farrars Building acted for the insurer in the declaration
proceedings
Claims process reform – the curse of the sequel?
If literature offers countless examples of sequels failing to live up to the promise of their
forerunners, the same could be said of the Ministry of Justice’s attempts to reform the personal
injury claims process. Its first consultation in spring 2007 outlined a vision of a quicker, lower
costs claims system. The formal response in July 2008 fails to deliver this across all claims
types, limiting its focus only to motor injury claims under £10,000.
Case Track Limits and the Claims Process for Personal Injury Claims was issued in April 2007, following
a long pre-consultation period. It set out a new process for injury claims, which depended on quick
timetables for notifications, liability decisions, and negotiations. Complementing these stages would be
staged fixed legal costs and, wherever possible, a standardised approach to special damages and
medical evidence. The new process would avoid delay and duplicated handling and hence resolve
claims more quickly and cheaply.
Ironically – given the theme of speeding up the process – government action post-consultation has been
almost leisurely. The formal response to the various submissions made during the consultation process
was published on the eve of this summer’s recess – a year after consultation. This immediately ensured
nothing would actually happen until autumn 2008, when Whitehall and Westminster reassemble.
The government response, with its limited focus on motor claims, was met with a good deal of frustration
and disappointment among insurers and businesses in particular. Excluding employers’ liability (EL) and
public liability (PL) claims from a new streamlined process was quite a let down, as was the omission of
any specific reference to the value and role of rehabilitation. The reasons given for excluding EL and PL
claims, as stated by the Ministry of Justice, were that:
… the government considers that RTA cases tend by their nature to involve fewer complexities
than EL and PL cases and therefore lend themselves to the new claims process more
immediately than the others. The government considers that EL cases in particular involve a
different dynamic in terms of the economic and power relationship that exists between an
injured employee making a personal injury claim against their employer, and two parties
contesting a road traffic accident.
Thus any possible extension to EL or PL claims is, in BLM’s view, at least a couple of years away – very
probably the other side of the next general election.
For the time being the focus is on what the detail of the new process for motor claims will look like. Even
here, the MoJ’s response appears to dilute last year’s consultation proposals in several key areas. First,
only claims under £10,000 are to be included, as opposed to all claims in a new fast track of £25,000.
Second, notification by claimant solicitors slips from five days after taking instructions to five days after
the solicitor has ‘gathered all the required information’ – a more subjective test which allows later
notification. Third, after the event (ATE) insurance premiums are to remain recoverable throughout the
claims process, not just when contesting quantum. Finally, the matter of referral fees is side-stepped in
the following terms:
The consultation paper stated that the fixed costs would not include ‘the cost of referral fees’.
Some respondents understood this to mean that the government intended to ban referral fees.
This is not the case, as any decision on whether or not referral fees should be allowed is not
one for government to make.
page 4
On costs more generally, the proposal for staged fixed recoverable costs survives at least. The setting
of figures for each of the three stages, and of the costs rules that will underpin the new process, are
largely left to the MoJ’s Costs Advisory Committee. Whilst this is a sensible approach, the committee will
have a lot to do over the incoming months if it is to deliver the new fixed costs regime quickly. It needs to
conduct research and analysis and, according to the MoJ, to look at the new process and ‘identify the
processes that need to be followed, the level of fee earner that should carry out the work and the
amount of time it should take’. Recalling that the present single-stage fixed costs scheme took over two
years to be implemented provides some indication of the magnitude of this important costs work. A
further note of caution here is that, at the time of writing, there is no clear indication of what budget and
what academic resource will be made available by MoJ to support and inform the committee’s work on
costs.
Implementation of the process and costs rules will be by CPR changes and BLM’s expectation is that
this will certainly be no earlier than April 2009. October perhaps looks like a more realistic date, given
the sheer amount of work which will need to be completed before the new motor claims process and the
associated costs regime is fully developed. Disclosure will return to this topic in future editions.
Christopher Coughlin
Partner, BLM Leeds
Insurance update: decisions, decisions!
In this article we consider four insurance decisions in three recent cases. The issues are nondisclosure, construction of the cover clauses in a Contractors’ All Risk (CAR) policy and
application of multiple excesses both in property and liability policies. The subject of one of the
cases was the application of an engineering policy to cover a mining company. The second case
was a project CAR policy which was described by court as ‘intricate’. The final case concerned
policy mis-selling. The circumstances of all the cases were complicated. Nevertheless, it is
possible to divine some simpler principles of broader import from the cases.
Scottish Coal v RSA and Others (April 2008 not formally reported)
In this case, various insurers of a deep cast mine sought to avoid the policy for non-disclosure. The
claimant mining company at the time of renewal of the policy was intending to engage in a riskier type of
mining known as short wall mining. The insurers became aware of this so renewed on the basis of a
right to cancel pending their own engineering consideration of the issues.
The background to the case appears complicated with a great deal of factual and expert evidence given
about what the insured was proposing to do in terms of working the mine and what insurers knew about
it. Ultimately, insurers cancelled their termination right. Shortly before this, the insurer’s engineer had
become aware of the insured’s intention to mine through a cross-cut – which can be particularly risky –
albeit that this information had not been formally disclosed by the insured.
Insurers sought to avoid on the basis that insurers were not told of the cross-cut intentions. Yet insurer’s
knowledge of what was proposed by the cross-cut meant that the removal of the cancellation right was
viewed by the court as an unequivocal election to affirm the policy, given that insurers would have
known both of the implications of the cross-cut and the risks.
So far, so predictable on the basis of the findings of fact; one would expect the court to take the view
that avoidance rights had been waived. What is of more interest is the approach of Mr Justice David
Steel in relation to a change in risk clause which gave insurers the right to avoid ‘in the event of any …
material change in the original risk …’ There are relatively few examples of change in risk clauses being
the subject of litigation about the insurers’ rights to avoid. In this particular case, the clause was of no
help to insurers because they knew as a result of their investigations in general terms the type of risk
that the insured was intending to undertake. They could not, therefore, avoid just because the risk had
increased. In contrast, many change in risk clauses are drafted to be triggered specifically by an
increase rather than change in risk and it may therefore be that there is a differentiation between the two
situations ie in some cases a risky activity at the top end of a range of risks may be indulged in by the
insured without it giving a right to avoid because the overall nature of the risk had not changed. In
contrast, in other cases the trigger for avoidance would be an increase in risk which is, largely, what
insurers are interested in being protected from.
page 5
The principles here are:
1
Any change to the policy arrangements can amount to the waiver of the right of avoidance if
the insurer makes them with full knowledge of circumstances that might give the insurer a right
to avoid, even if the insured has not been fully forthcoming about them. This is not news!
2
An insurer’s reliance on an alteration of risk clause depends on exactly what the clause says. If
the clause is not drafted to cover increases in risk, the clause may not bite unless the insured’s
changes have been radical and outside the range of what one would expect.
Seele Austria v Tokio Marine – 7 May 2008
The larger part of this case is concerned with policy interpretation. A CAR policy included a property and
liability section. Seele was a sub-contractor which was ostensibly only covered in respect of its own
contract works. The works were the supply and installation of ‘punched windows’ and they seem to have
been defective in workmanship at the manufacturing stage. They had to be removed and the
controversial part of the claim was whether insurers should pay for ‘access costs’ ie the removal of other
parties’ contract works in order to carry out the repairs. Contractually, Seele was liable to pay for this
work.
Although the CAR policy seemed to have been drafted to cover the usual things that CAR policies
cover, some of the arrangements were set out in a series of endorsements/extensions which the law
report suggests were not done as one cohesive amendment but a series of additions (as they usually
are). One of the additions seemed to make it clear that sub-contractors like Seele were not to be
covered in respect of accidental damage to property other than their own sub-contract works. Another,
stand alone provision (memorandum 18) was drafted in a way that appeared to provide the subcontractor with cover for the access works because, on one interpretation, it did not limit cover to
accidentally damaged property but extended to intentionally damaged property ie property damaged in
order to ‘get at’ the defective property. Nor did it seem to limit the cover to the sub-contractor’s own
works. It is difficult and impractical to summarise the arguments of construction that the Court of Appeal
(CA) considered but it did hold by a two-to-one majority that memorandum 18 was a freestanding
provision and did entitle Seele to cover for the access works.
The court rejected the approach that the provision in memorandum 18 was in some way subordinate to
other provisions limiting the parties to claim only in respect of unintentional (or accidental) damage and
was not willing to consider purposive arguments about the business intention of the clause without them
being clearly based on the language of the policy wording itself.
This has given rise to an unusual decision because generally CAR insurers would not expect to cover a
sub-contractor in respect of repair work that involved the removal of work that was not itself defective
without a clear provision.
This is a reminder that insurers are free to agree anything they want – there is no reason why they
should stick to standard provisions.
In his judgment, Lord Justice Richards who was in the majority admitted that he was not an insurance
specialist, like the other two CA judges. In some ways, reading his judgment shows a fresher focus on
the interpretation issues which can be lost, on occasion, when those too steeped in insurance law
consider them. It also reminds us of the sheer difficulty in interpreting the intention behind a policy
wording that has been added to in a piecemeal way.
Seele also considers the question of the application of multiple excesses which is always difficult when
similar defects are repeated over again in the same building. Here various workmanship errors had
been made. The definition of excess or ‘retained liability’ was not unusual:
The first £2,500 of each and every occurrence or series of occurrences arising out of any one
event.
There were clearly a series of separate defective window units with ‘similar shortcomings in
workmanship’. The question was whether they were attributable to a single event such as might happen
if the workmen were given exactly the same defective instructions for all the windows. In such a case,
the court suggested that giving faulty instructions would be the one ‘unifying event’ that would be
necessary to apply only one deductible. In this case there was not one defective set of instructions but a
series of similar workmanship errors so that did not assist the insured.
page 6
The court also rejected the idea of the unifying event being the requirement to implement a programme
of works. The court decided that it was not possible to identify a single event that could be regarded as
the underlying cause of all the access damage and thus, presumably, multiple excesses were applied.
Summary
1
As in Scottish Coal, the effect of the policy wording depends precisely on what it actually says.
Its meaning might be unexpected if that is what it has been drafted to say.
2
The same applies to the wording for an excess in a multiple excess situation. The courts will
not strain the meaning of the English language, to avoid the imposition of multiple excesses
where, in reality, the claims are not all from one clearly defined, unifying event.
Standard Life Assurance v Oak Dedicated Limited (2008) EWHC 222 (Comm)
This case also concerns the application of deductibles to an endowment mis-selling claim. The claimant
had been found guilty of mis-selling and its total liabilities were estimated at £100,000,000 or so to
almost 100 thousand investors, but each individual claim was worth less than £10,000. The deductible
was expressed to be:
In respect of each and every Claim and/or Loss. The Policy defined ‘claim’ as ‘each Claim or
series of claims (whether by one or more than one Claimant) arising from or in connection with
or attributable to anyone act, error, omission or originating cause …’
The policy schedule stated that the deductible was ‘£25,000,000 each and every claim and/or claimant’.
The obvious effect of a literal application of a £25,000,000 excess to each claim was that no claim would
be paid as each would fall well within the deductible. However, that is just what Mr Justice Tomlinson
held. The definition of deductible in the policy emphasised the intention that the deductible was to be
‘per claimant’.
The unfortunate consequence for the claimant life insurer’s brokers was that they were negligent since
the cover did not match as precisely as possible the identified risk exposures (inter alia).
This seems to be an example of the courts not being swayed by the fact that the literal interpretation of
the wording left the insurers without remedy. The court was not willing to find a solution that favoured
the insured benefiting from the policy, when the stated intention of the policy was that ‘per claim’
deductibles would apply. This also throws focus on a broker’s obligations. When insurers reject a claim
where the insured had a reasonable business expectation to be covered, the broker is very exposed.
This is a relatively blatant example of a policy being of no real use to the policyholder given that the
sums for which an endowment insurer is likely to be found liable for mis-selling would be relatively small,
albeit very significant indeed in aggregate.
Catherine Hawkins
Partner, BLM London
Clinical negligence – recent developments
Recent experience shows that defendants can be optimistic when pursuing limitation defences
and that prejudice can be established even where clinical records exist.
The law

Section 11 of the Limitation Act 1980 provides a limitation period for personal injury claims of three
years from the date on which the cause of action accrues, or the claimant’s date of knowledge,
whichever is the later. Under section 14, to have requisite knowledge, the claimant must know the
injury was ‘significant’. This is an objective test.

Section 33 of the Limitation Act allows the court to disapply the limitation period in personal injury
claims where it would be equitable in all the circumstances to do so and considering the factors set
out in the checklist at section 33 (3) to balance the prejudice caused to the parties.
page 7
Knowledge
During a recent case on behalf of a cosmetic surgeon, it was successfully argued that the claimant’s
date of knowledge should not be the date on which she knew that attempts to correct the first procedure
had been unsuccessful. Of key importance was the fact that the claimant was sufficiently dissatisfied
with the first procedure to seek a second opinion – evidence that she was aware her injury was
significant – the date of which became the date of knowledge.
Prejudice
After establishing a claim is statute barred, defendants are almost guaranteed to face an application by
a claimant under section 33. It can be difficult to establish that it would be inequitable for the claim to
proceed in clinical negligence claims.
However, courts are finding in favour of defendants, even in the presence of clinical records – which
claimants often seek to put forward as an answer to a claim of prejudice made by a defendant.
Consideration should be given to what documents may have been destroyed, the impact on the cogency
of factual evidence and subsequently on expert evidence.
There may be a wider impact of delay than a poor recollection of a consultation. When acting for a
national chain of opticians, substantial prejudice was established due to the fact that evidencing the
employment and contractual relationship between co-defendants was a much more difficult task some
nine years after the alleged negligence as written contracts were not common practice at the time. The
claimant’s application to join the chain of opticians outside of the limitation period was dismissed.
Although, following Marsden v Leeson (2008) disapplying the limitation period can no longer be seen as
an ‘exceptional indulgence’, defendant solicitors should be confident that limitation defences can be
successful – even where records are available – and should look carefully at knowledge and prejudice
at an early stage.
Clinical negligence – material contribution and cumulative
causes
Should a patient receive damages where she cannot prove that, but for the negligence, the injury
would have been avoided, in circumstances where the negligence was but one of a number of
potential causes of the injury?
A most useful judgment was handed down by Lord Justice Waller on 29 July 2008 in Bailey v Ministry of
Defence & Another [2008] EWCA Civ 883. The judgment discusses the development of the material
contribution test in clinical negligence cases.
Development of the case law
The development of the material contribution test in clinical negligence cases is inextricably linked with
industrial disease cases, beginning with Bonnington Castings Ltd v Wardlaw [1956] AC 613. This was a
case where the accumulation of ‘innocent’ dust and ‘guilty’ dust had caused the injury and where
although the exposure to the innocent dust was greater than to the guilty dust, the employer was liable
because the ‘breach of duty caused or materially contributed to the injury’ (see Lord Reid at page 620).
These concepts were developed further in the non-cumulative disease cases of McGhee v National
Coal Board [1973] 1 WLR 1 and Fairchild v Glenhaven Funeral Services Limited [2005] 2 AC 173, which
might be contrasted with cumulative disease cases (such as asbestosis) in relation to which a culpable
employer is liable in full, but only to the extent of its contribution (see Holtby v Brigham & Cowan (Hull)
Ltd (2000) 3 All ER 421.
It is evident from the comprehensiveness of Waller LJ’s judgment that in this area of clinical negligence
jurisprudence has not been clearly articulated in past case law. Two well known and important clinical
negligence cases, Hotson v East Berkshire Area Health Authority [1987] AC 750 and Wilsher v Essex
Area Health Authority [1988] 1 AC 1074, are considered. In Hotson the House of Lords (HL) held that
the cause of the injury was the claimant’s fall from a tree – a non-negligent act – and that same injury
would, on the balance of probabilities, have occurred anyway without the negligent delay in treatment.
Therefore the negligent treatment made no contribution to causing that injury. In Wilsher, where the
claimant’s blindness could have been caused by the negligent delivery of an excessive concentration of
oxygen or by a number of non-negligent causes, the HL held that where there are different distinct
page 8
causes which operate in different ways and any might have caused the injury, the claimant must fail as
he cannot establish which mechanism either ‘caused or contributed’ to the injury. It was the
inadequacies of medical science that put the claimant in the position of not being able to establish the
probability of one cause as against the other and the HL was not prepared to place the case in an
exceptional category.
Given that Hotson was decided in 1987 and Wilsher in 1988, it is surprising that Waller LJ, 20 years
later, was not able to refer to any further case law on which he could rely to set out the application of the
material contribution test in clinical negligence.
How should the test be applied by experts and the courts?
Once again we need to look to industrial disease case law. In McGhee, Lord Reid suggested that in
cases of multiple causes and medical complexity the courts must take a broader view of causation:
But it has often been said that the legal concept of causation is not based on logic or
philosophy. It is based on the practical way in which the ordinary man’s mind works in the
everyday affairs of life.
It is this approach that must underpin expert analysis and court decisions as to whether or not a breach
of duty has materially contributed to the injury. In the writer’s experience, there is often little advantage
in having recourse to complex evidence and analysis of medical statistics to attempt to pinpoint
respective percentage contributions to the outcome. There are commonly too many variables and
imprecisions to allow for certainty and clarity by this approach. Rather, experts and the court should
usually apply a practical analysis to determine whether the breach of duty made a material contribution
to the injury.
What is meant by ‘material’?
Returning to Bonnington Castings, Lord Reid provided guidance on what might constitute a ‘material
contribution’:




If the injury cannot wholly be attributed to any one cause.
Where it is accepted that there is more than one cause of the injury the question is not which is the
most probable cause of the injury – the real question is whether the breach of duty materially
contributed to the injury.
If the contribution of the breach of duty comes within the exception de minimis non curat lex it is not
material – if the contribution is negligible/trivial/insignificant then it is not material.
Conversely, any contribution which is not insignificant/negligible/trivial must be material.
Judgments in these cases also use the word ‘substantial’. Waller LJ considers the language used and
concludes that use of the word substantial does not add anything further to the proper test and as long
as the breach of duty made a contribution to the outcome which was ‘anything greater than de minimis’
then liability would be found for the claimant.
Having recourse to dictionaries, the word material is variously defined as ‘having an important effect’,
‘affecting the outcome in an important way’, and ‘important or essential’.
Perhaps a simple question to put before experts and the court when ascertaining whether a breach of
duty materially contributed to the injury would be:
Was the contribution of the breach of duty to the outcome significant/important or was it
insignificant/negligible?
Use of 10% as a bench mark for the relevant threshold is sometimes discussed in legal circles but it is
suggested that percentages may create more contention than resolution to the issue.
Back to Bailey
The claimant, when an in-patient on the renal ward at St Mary’s Hospital, Portsmouth, aspirated her
vomit leading to a cardiac arrest that caused her to suffer hypoxic brain damage. The issue on material
contribution was: what caused her to aspirate her vomit? Was it due to a lack of care while she was in
hospital?
page 9
The court at first instance found that successive causes acted so as to create a weakness in the
claimant, in turn causing her to aspirate. One of the causes was the weakened condition in which the
defendant had placed the claimant as a result of substandard care. Waller LJ held that the judge at first
instance was entitled to make ‘the common sense assumption’ that it was the claimant’s generally
weakened and debilitated condition that caused her not to be able to respond naturally and effectively. It
was held that the breach of duty which placed the claimant in that weakened condition was more than a
negligible contributing factor to the aspiration and consequently to the resulting brain injury.
The Court of Appeal therefore dismissed the defendant’s appeal:
In a case where medical science cannot establish the probability that ‘but for’ an act of
negligence the injury would not have happened but can establish that the contribution of the
negligent cause was more than negligible, the ‘but for’ test is modified, and the claimant will
succeed. The incident case involves cumulative causes acting so as to create a weakness and
thus the judge in my view applied the right test.
Where it is found that clinical negligence materially contributed to the injury, the claimant will recover
damages in full and the role of any non-tortious causes will be ignored.
Gary Allison
Partner, BLM London
Police assistance: who can be held to account?
Chief Constable of Hertfordshire v Van Colle (Administrator of the Estate of GC deceased) &
Another:
Smith v Chief Constable of Sussex [2008] UKHL 50
Essentially, if the police are made aware that someone is at risk and a witness is harmed, should the
police be held to account?
In conjoined appeals the Law Lords overturned the Court of Appeal in the police cases relating to claims
brought by the family of Van Colle (VC) and by Smith (S) which have led to important public policy
decisions. These decisions by the Law Lords will help limit liability for police forces and prevent an
increase in claims. The Court of Appeal (CA) had revealed its liberal thinking in decisions that could
have opened the floodgates to claims against the police by complainants and prosecution witnesses
who were harmed or killed by third parties; the Law Lords disagreed and reversed the decisions.
In Van Colle, VC had been a prosecution witness in a criminal case and had received phone calls
threatening violence from B, the defendant in the criminal case. VC informed the police in order to seek
protection from B. In fact, VC was subsequently murdered by B. It later transpired that other witnesses
had also been threatened by B and that VC’s car had been damaged – although before VC’s murder
this had not been linked to B. The officer in the case was disciplined and fined a few days’ pay for his
failure to deal with the threats as required. VC’s estate and family brought a claim against the police
force under the Human Rights Act 1998, based on Article 2 (right to life).
The arguments revolved around whether the authorities knew, or ought to have known at the time, of a
‘real and immediate risk to the life’ of an identified individual from the criminal acts of a third party (the
Osman test). Lord Hope (for the majority) decided that the test was not met. He suggested that the
murder of VC had been the action of a seriously disturbed and unpredictable individual and that it could
not reasonably be said that the officer should have been expected to avoid the risk from the information
available to him at the time. It could not be said that B constituted a risk to life that was both real and
imminent. The Osman test did not vary dependent on the category of witness.
In Smith, S had informed the force that his former partner had threatened to kill him on numerous
occasions; they had ample evidence of this and had been slow in arresting the ex-partner. Whilst the
force was still investigating matters S was attacked by the former partner with a claw hammer and
seriously injured. The case was pursued in negligence not human rights.
The Law Lords confirmed that the case should be struck out on the basis that this was not an
exceptional case and the decision in Hill v The Chief Constable of West Yorkshire should stand. This
confirms that in the absence of special circumstances the force owed no duty of care to protect
individuals from harm caused by criminals.
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These cases follow the Law Lords’ sensible decision in Brooks and their willingness to overturn the
liberal wing of the CA is to be applauded. However, reference was made to the arguments being better
considered by Parliament and in the Consultation Paper 187 by the Law Commission. BLM’s advice is
that forces would be well advised to submit their views in this respect without delay to avoid being the
target for further litigation of this type in the future.
David Hill
Partner, BLM Liverpool
Public sector claims – redefining the regime?
Law Commission Consultation Paper 187 Administrative Redress: Public Bodies And The Citizen
The Commission’s paper takes an innovative approach to reforming public and private law applying to
claims against bodies in the public sector. It sets out a new, principles-based regime for such claims and
also recommends abolishing actions for breach of statutory duty and for misfeasance in public office.
The consultation paper marks the first step in a programme of reform likely to span the next two years
and beyond.
The simple question at the heart of the Law Commission’s consultation paper Administrative Redress:
Public Bodies And The Citizen, published in July 2008, is when and how should a citizen be able to
obtain redress against a public body that has acted wrongfully?
In seeking to respond to this, the Commission sets out four ‘pillars’ of redress that should apply to
modern public sector claims. Recognising that litigated claims are unnecessarily slow, costly and
adversarial (themes which have featured in both the NHS Redress Scheme and in the Ministry of
Justice’s recent attempts to reform the process for personal injury claims), the Commission places them
as the final of its four ‘pillars’. The first three pillars – formal complaints, enquiries and tribunals, and
ombudsmen schemes – are presented as better suited to resolve the grievances of most citizens in a
quick and straightforward manner.
Where, however, litigation between the citizen and the public body is necessary, the Commission has
undertaken a thorough analysis of the existing mechanisms in both public law and private law. It is
critical of the state of the law in both fields, noting the frequent need to refer cases to the House of Lords
in order to clarify fundamental points such as the existence of a duty of care in negligence or the scope
of specific protections under the Human Rights Act 1998. The Commission concludes – in fairly
unequivocal terms – that there is:
… a lack of any underlying principle or foundational structure that could lead to a simpler and
more predictable system.
This stated absence of a coherent approach to the development of the law governing claims against
public bodies leads the Commission to propose a new regime. It develops this regime from what are
close to first legal principles. In doing so, the Commission starts from a concept of corrective justice,
which seeks to acknowledge the particular status of public bodies and to protect them from
unmeritorious claims. It is interesting to note the very clear resonance of this concept of corrective
justice with the case law following Tomlinson v Congleton and with the ‘desirable activity’ provisions of
the Compensation Act 2006.
The Commission is not, however, proposing merging public law actions (mainly in judicial review) with
those brought in private law (mainly in the tort of negligence). Rather what it recommends is a common
set of individual elements of the claims, which would continue to be presented either as applications for
judicial review (public law) or as, in the main, as claims in negligence (private law). Essentially the
difference will be whether the redress sought is by way of challenging an administrative decision or by
way of financial compensation.
As recommended by the Commission, the elements of a claim against a public body would be:





Is the claim justiciable?
Was the public body engaging in a ‘truly public’ activity?
Does the legal regime under which the public body was operating confer a benefit on the claimant?
Does the claim show ‘serious fault’ on the part of the public body?
Are the normal rules on causation satisfied?
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


Should the normal rules on joint and several liability be modified in respect of the claim?
How should the general rules on damages be applied in respect of the claim?
Does the public body have a specific statutory immunity from claims?
The ‘truly public’ test would be framed so that key statutory duties and services would be caught by it,
and only claims resulting from these would be subject to the new ‘serious fault’ and ‘conferral of benefit’
tests. These tests would require, respectively, proof of aggravated fault and proof that the relevant
statute intended to protect the individual’s rights. The latter would replace the current requirement to
prove that Parliament intended a statute to give rise to a right to damages – and consequently the
current tort of breach of statutory duty could be abolished.
For claims arising from activities that were not ‘truly public’ – operational aspects of the public body, for
example as an employer or an occupier of premises – the Commission recommends that these should
continue to be framed in and subject to the general law of negligence.
The theoretical and academic analysis that supports the Commission’s proposals appears both sound
and balanced. However, the Commission itself acknowledges the lack of practical evidence of the
impact of legal liability regimes on local authority service delivery and planning. It has therefore
requested empirical or event anecdotal evidence alongside the consultation process, which ended in
early November 2008.
After this, it becomes difficult to predict the likely timetable for the Commission’s proposed reforms.
Assuming the thrust of the regime survives consultation, final proposals and a draft Bill could emerge in
the second half of 2009. After that, government legislation might follow, probably no earlier than spring
2010. Whilst the likelihood of a general election over this period adds to the uncertainty, we would
nonetheless hope to report on the completion of the Law Commission’s research on this topic in
Disclosure in the next 18 months or so.
Alistair Kinley
Head of policy development, BLM National
Class actions – the future for personal injury
After 18 months of consultation and research, the Civil Justice Council (CJC) has just published
its recommendations in relation to the conduct of collective redress claims – its preferred term
for class or group actions. Collective claims are now very much on the horizon. This article
explores the possible risks that they may raise.
There has been increasing interest in these approaches to multi-party litigation in recent years, driven
mainly by the widening of their acceptance as a litigation vehicle, the sophistication of the parties’
approach to the issues, the targeting of this work by US lawyers coming into UK market, by claims
funding by third party insurers and by better software to work with larger cases.
However, there have been significant problems (principally concerning access to justice) with the
existing GLO procedure for some consumer claims, which can involve very many claimants each of
whom suffered only modest losses. Furthermore, not all disputes have been suited to the vehicle of
group litigation eg industrial tribunals, and not all potential litigants were able to bring group actions eg
public bodies which were not able to represent their membership as groups of litigants. Much discussion
has focussed on ways to streamline the process and to make it work more effectively.
The CJC has, after consultation, now published its recommendations to the Lord Chancellor. The
recommendations retain much of the framework of the current system, notably that costs follow the
event as they do in most of English litigation and that contingency fees and punitive damages should not
apply. This means that the threats of speculative litigation and inflated damages such as those in the
USA should be avoided. This is good news for potential defendants.
A number of significant changes is proposed. The CJC recommends a generic collective action for all
branches of civil litigation, which may be pursued by a wider range of representative bodies, including
designated bodies, individual representative claimants and ad hoc bodies. If accepted, these changes
could significantly widen the scope for claims to be made by, for example, pressure groups, charities,
and representative bodies. Consequently, the better organised may use their powerful media machines
to publicise their litigation and exert pressure on potential defendants in new ways.
page 12
Specialist case management by dedicated judges is emphatically recommended. This exists in a
general form at present – currently, approval has to be obtained by the court to commence a group
action and whilst there is case management by a designated master, it is rare for it to be managed by a
trial judge.
The biggest change, however, relates to the system of inclusion of claimants in the group or class. The
current system in England and Wales is the ‘opt in’ mechanism whereby claimants have to elect to join
the group, rather than in the USA where qualifying claimants are taken as being included unless they
actively elect to be excluded or ‘opt out’ of the group or class.
The opt in process has been identified as operating against the viability of consumer group litigation and
the CJC has recommended that collective claims should be brought on either an opt in or opt out basis,
to be decided by the court. Where an action is brought on an opt out basis, the CJC recommends that
the limitation period for group members should be suspended pending notice to the group. The court’s
decision on opt in or opt out risks becoming a source of satellite litigation.
Although the opt out approach might better adjust the balance of power between the parties in
consumer disputes, it might well change the balance in mass personal injury claims. It could be more
expensive for active claimants to publicise the claim which they intend, and the early costs of taking
instructions from all likely claimants in a group might be prohibitive to those active members of the
group. However, the advantages of being able to claim in a more diverse form could far outweigh any
difficulties with early costs.
Defendant insurers may have greater problems, and at present, there appear few upsides. They will
meet claims from larger and more diverse groups of claimants than under the current system. They will
have to pass the extra cost of the litigation on to their customers, and against the backcloth of
threatened recession, this could well result in an insurance premium hike.
Funding for group litigation has been a hurdle in England and Wales in a way that it has not been in the
USA. Adverse costs orders, for example have arguably stacked the risks of litigation against the
widespread filing of GLOs. However, litigation funding is now being marketed in the UK by funders who
are prepared to underwrite the costs for potentially high returns. The CJC has recommended that third
party funding be available for collective actions to increase the opportunity for claimants to obtain
redress. It is hard to see how the defendant can benefit here.
Where a case is brought on an opt out basis, the CJC recommends that the court should have the
power to award aggregate damages in appropriate cases. This could prove much more expensive to
defendants, who would have to pay out aggregate damages for the whole group as defined, regardless
of the number of named representative claimants bringing the case.
In the opt out group actions of other legal systems, an unclaimed residue of damages can arise, relating
to the claims of those who do not come forward. This ‘surplus’ may be allocated under trust and charity
law to charities and other bodies in fields similar to the subject of the claim.
The CJC has recommended that this principle (known as cy-près distribution) is adopted in the UK.
Thus, unallocated damages from an aggregate award could be distributed according to general trust law
principles.
In terms of the impact on personal injury litigation therefore, the proposed changes to group or collective
actions could affect the insurance market greatly. However, it has been recommended that any changes
should be brought about by statute, and that the Lord Chancellor should conduct a wider policy
consultation into such a reform given that it affects both substantive and procedural law. This means
that there will be a long lead in period before these changes take effect.
The substantive law itself has not changed. However, because the future likelihood of group actions will
change, this will have an impact on insurance cover today. The changes to the procedure are likely to
favour the claimants in terms of funding and in facilitating access to individually smaller value claims.
There are likely to be more incentives for claimants to enter collective or class actions in the years to
come. The advice is: defendants, beware!
Paula Whittell
Partner, BLM Manchester
page 13
A sympathetic ear for personal injury cases?
What role does sympathy play when participants in leisure activities are catastrophically
injured? Whilst to some observers an insurance company may seem faceless, the reality is that
these claims are handled by people who, as the Lord Chief Justice commented in Harris, cannot
help but be moved by the plight of claimants and their families. However, if sympathy is allowed
to factor in settlements and, more importantly, judgments, the end result is something of a
paradox in that whilst greater duties are imposed on us all to take care of others, the duty to take
care not to seriously injure ourselves is diminished.
Health and safety scare stories feature all too regularly in the popular media. Widely reported bans on
conker fights and pancake races fuel the perception of the grey and dull safety regime of the ‘nanny
state’. Yet when organised social or educational events give rise to a serious incident or injury, media
opinion can readily turn full circle and demand that ‘something must be done’.
Inevitably the ever-changing media agenda affects public perception, though what of the judiciary? How
does the judiciary remain objective when making value judgments after the event on the nature of the
activity itself? What of the knowledge and preparedness of the organisers, the steps they took and the
risk participants could be expected to assume?
Bouncy castles
Just such a value judgment was brought to bear by Mr Justice Steel on 8 May 2008 in Perry v Harris
[2008] EWCA Civ 907 – perhaps better known as the ‘bouncy castle’ case which involved a child who
sustained serious head injuries. Steel J’s finding that Samuel Harris’ neighbours were liable in
negligence for the injuries the child sustained on a bouncy castle hired by them was reported as far
afield as Melbourne and Los Angeles.
On 10 September 2005, Samuel Harris whose father was nearby clearing up after a football training
session, was one of three boys playing on a 13’9” x 13’4” bouncy castle. It was one of two inflatables
hired by the defendants for their triplets’ 10th birthday party, the other being a ‘bungee run’ into which
two participants strap themselves before running as far and as fast as possible until the bungee
catapults them backwards. The inflatables were positioned such that one adult could supervise the
activities on both.
In a nutshell, the accident occurred when Mrs Perry had gone to the bungee run to help a child who had
difficulties strapping himself in. Whilst she attended to him the three boys on the bouncy castle each did
one somersault. The claimant had not made it out of the way before another, bigger boy took his turn.
As he did so, his heel accidentally struck the claimant on the forehead. The claimant, then aged 11,
suffered a severe brain injury.
It was held that Mrs Perry had given the boys permission to use the bouncy castle and thus she owed
them a duty of care. Steel J found that both pieces of equipment needed ‘uninterrupted supervision’ and
that, because it was not possible to ‘maintain a permanent look out on both sets of equipment’, the level
of supervision was inadequate.
A little over two months later, on 31 July 2008 the Court of Appeal (CA) reversed this decision. The Lord
Chief Justice, Lord Phillips of Worth Matravers, in a careful judgment, commented that it was impossible
not to be deeply moved by the plight of the claimant, of his mother who struggles to care for him and of
his sister. However, he went on to say that it was quite impractical for parents to keep children under
constant surveillance and it would not be in the public interest for the law to impose a duty on them to do
so. Although the injury suffered was of ‘horrifying severity’ it was not reasonably foreseeable that injury
was likely to be serious. Ultimately, he found the manner in which Mrs Perry was supervising the
activities on the bouncy castle and bungee run accorded with the demands of reasonable care and
commented that the ‘freak and tragic accident’ occurred without fault.
Climbing the walls
It could be said that another such value judgment was made in the widely reported Trustees of
Portsmouth Youth Activities Committee v Poppleton [2008] EWCA Civ 646. Many will be familiar with
the facts of this case which can be summarised as follows:
The defendants provided an artificial climbing facility, the floor was covered with shock
absorbent matting at least 12 inches thick. Mr Poppleton, a relatively inexperienced climber,
attempted to leap from the back wall to grab hold of a buttress on the opposite wall but lost his
page 14
grip, somersaulted in the air and fell to the matting below landing awkwardly on his head.
Tragically, he was rendered tetraplegic.
A claim under the Occupiers Liability Act 1957 failed because it was held there was absolutely nothing
wrong with the state of the premises. However, in such a situation a duty under common law could arise
if a participant was offered training or supervision. In this case the defendants did not offer (and the
claimant did not ask for) extra guidance.
His Honour Judge Foster, in the Winchester County Court did, however, find the defendants in breach of
duty in failing to warn the claimant that thick safety matting did not make a climbing wall safe when the
absence of such warning might encourage an unfounded belief that the mat would provide such safety.
Therefore in the judge’s view the mat, in the absence of a warning, amounted to a hidden danger.
Foster HJ also found the disastrous manoeuvre was foolhardy and assessed the claimant’s contributory
negligence at 75%.
Again, the CA reversed this decision commenting on the tension between the finding that the matting
was entirely adequate and the critical finding that it constituted a hidden danger, which Lord Justice May
felt was unsustainable. It was found that the risk of severe injury from an awkward fall was an obvious
one and that no amount of matting could absolutely avoid the dangers inherent in this kind of climbing.
The CA did not impose a duty on the activity centre to warn the claimant of such risks.
Conclusion
In both of these instances, and countless other cases involving injuries of the utmost severity, it is
impossible not to feel sympathy for those whose lives have been irrevocably altered.
The judiciary is faced with the unenviable task of deciding what risk defendants ought to have known
that a given activity might pose and what precautions should have been taken to guard against them. All
this, whilst inevitably feeling sympathy for a claimant who in the absence of a finding in their favour, will
be forced to rely entirely on the state for care and financial assistance.
Disclosure is perhaps not the appropriate forum to consider whether sympathy affects the findings of
first instance judges who must hear the difficulties claimants and their families endure after such
catastrophic accidents. Suffice to say that in our fault-based system, sympathy for one party cannot be
allowed to influence findings of fault. However, much sympathy is engendered by a particular claimant,
the judiciary must and must be seen to stand apart from it.
Louise Abbott
Associate, BLM Southampton
Mosley v News of the World – six of the best for publishers?
Privacy hits the front pages
On 30 March 2008 the News of the World published a story about Max Mosley, the president of
the Fédération Internationale de L’Automobile (FIA) headed: ‘F1 boss has sick Nazi orgy with five
hookers’ This was accompanied by the subheading ‘Son of Hitler-loving fascist in sex shame’.
The article reported an event which took place two days before described as a ‘party’ by the
claimant and his witnesses and an ’orgy’ by the defendants.
The article was accompanied by a number of photographs and video footage was posted on the
newspaper’s web site. The article was followed up on 6 April 2008 with a further article headed:
‘EXCLUSIVE: MOSLEY HOOKER TELLS ALL: MY NAZI ORGY WITH F1 BOSS’
Mr Mosley brought proceedings against the newspaper for breach of confidence and/or infringement of
his right of privacy as protected by Article 8 of the European Convention on Human Rights.
Eady J said that as a result of earlier decisions it was apparent that ‘the law now affords protection to
information in respect of which there is a reasonable expectation of privacy’. Where there was a
reasonable expectation of privacy, it would be necessary to weigh up the right to privacy under Article 8
against the Article 10 Convention: right to freedom of expression.
page 15
The court paid particular attention to the significance of ‘visual images’. This issue had divided the court
in Campbell v MGM Limited [2004] 2 AC 457. In Douglas v Hello Ltd (no 3) [2006] QB 125, the Court of
Appeal expressed the view that ‘as a means of invading privacy, a photograph is particularly intrusive’.
Ultimately, whilst there might be a good case for revealing the fact of wrongdoing, it did not necessarily
follow that photographs of the ‘gory details’ needed to be published in order to achieve the public
interest objective.
The defendants sought to argue that even if there was a reasonable expectation of privacy, there was a
public interest in disclosure, primarily on the basis that it was alleged that the events involved Nazi or
concentration camp role play – which was denied by the claimant.
The judge found that the facts did not support the defendant’s case that the events involved Nazi role
play. He indicated that it was inappropriate and offensive to equate everything German with the Nazi
era.
Eady J found that the facts did not support the defendant’s case that the events included Nazi role play
or that the claimant had specifically requested such a scenario. The defendants had also sought to
argue that the behaviour displayed by the individuals at the ‘party’ constituted assaults occasioning
actual bodily harm. The judge expressed doubt as to whether this was genuinely a matter of public
interest (whilst no doubt being interesting to the public). He said that:
It would hardly be appropriate to clutter up the courts with cases of spanking between
consenting adults taking place in private property and without disturbing the neighbours.
The only remaining argument for the judge to consider was whether the ‘depravity and adultery’ of itself
was sufficient to justify publication. Eady J noted that there was increasing willingness to accord respect
to an individual’s right to conduct their personal life without state interference or condemnation. It was
not for the state or the media to expose sexual conduct which did not involve any significant breach of
the criminal law. The judge indicated that ‘in the modern climate’ he could not find that publication of any
of the visual images could be justified in the public interest.
The judge found that the claimant’s Article 8 Rights had been infringed without justification.
Whilst previous awards had historically been modest, Eady J awarded £60,000 to the claimant to reflect
the fact that the claimant was entitled to compensation for distress, hurt feelings and loss of dignity,
although the claimant had, through his ‘reckless’ and ‘almost self destructive’ behaviour, contributed to
his own misfortune. The judge found that exemplary damages were not available in a claim for
infringement of privacy.
Privacy – the future
Eady J relied on principles that are now settled (albeit only recently so). However, what the case has
done more than any previous case, is to bring to the attention of the wider public the right to privacy and
the fact that damages (potentially at relatively significant levels) can be recovered. There is every
chance that this will lead to more (and larger) claims against media publishers and potentially against
others who are involved in publishing information (particularly visual images) although there were some
crumbs of comfort for the media in that exemplary damages were said not to be available. In the
circumstances, whilst the case does not represent a ‘thrashing’ for the media, it is certainly not good
news and more claims can be expected in this rapidly developing field.
In the meantime, Mr Mosley’s battle continues. Proceedings have been issued for defamation and
recent reports indicate that Mr Mosley considers that the media should be obliged to alert the subject of
a story before they publish (particularly where visual images are involved) and is seeking to pursue this
argument to the European Court. There may yet be further punishments to be dispensed.
Tim Smith
Partner, BLM London
The Equality Bill: a different type of climate change
The last quarter of the twentieth century has set a sound foundation for New Labour to legislate
to remove all types of workplace discrimination. It could be said that from the ’70s onward, an
alternative type of climate change was beginning; the wind of change swept in the concept of
‘fairness’ and words such as ‘diversity’ and ‘equality’ entered the vocabulary. This period saw
page 16
European treaty commitments and differing degrees of political will force through legislation that
outlawed discrimination.
The effects are ongoing today. Nine major pieces of discrimination legislation and around 100 statutory
instruments containing connected regulations currently exist. Having been brought in at different times,
each piece of legislation has been big on themes and principles but short on consistent tests for the
essential categories of discrimination: direct and indirect, victimisation and harassment. Simplification is
well overdue. The new proposals will change existing laws to make them more accessible by
standardising main principles and adding further anti-discrimination provisions.
Harriet Harman MP, Secretary of State for Equalities, stated ‘Britain is now a fairer and more confident
nation because equality has been at the heart of what we have done.’ She did not stop at the rhetoric,
as in June 2008 Ms Harman set out the key provisions of the Equality Bill, predicting that it will end
discrimination. The question is: will the new Bill now end discrimination in the work place?
Changes to the work climate
POSITIVE DISCRIMINATION
This area of law creates a problem for employers. Under the Bill, employers will be encouraged to be
proactive and take ‘positive action’. This means that employers will be permitted (although not required)
to take into account, when selecting between ‘equally qualified’ candidates, under-representation of a
particular group. In practice this may occur when an employer recruits a female over a male, or an
individual from an ethnic minority group over a non-ethnic person, given that they are otherwise equally
matched.
The result is to effectively introduce discrimination into the work place by permitting employers to recruit
one candidate over another purely on the basis of their gender or race. Does this put employers under
pressure to recruit those from under-represented groups even where candidates are not equally
qualified? The answer is ‘yes’ as it is extremely unlikely that two candidates will have equivalent
qualifications and be equally matched. It has been predicted that this change in the law will result in
employers facing legal challenges for positive discrimination.
PUBLIC BODIES AND THE GENDER PAY GAP
Public bodies are already required to consider the needs of particular disadvantaged groups when
making decisions in relation to spending, employment practices and service delivery. These duties are
set to become more onerous. The Bill will require public bodies to publish statistics on the gender pay
gap, ethnic minority employment and disability employment. The aim is that this will ‘make our public
bodies more transparent without putting an administrative burden on them’. The reality is likely to be
different. Seeking transparency is admirable, but what of the trade-offs? Do public bodies need more
red-tape? Do they need further expense? It is difficult to foresee how the two objectives can be
achieved.
In fact, despite equal pay legislation being introduced over 30 years ago, there is still a noticeable gap
between the pay of men and women. Female part-time workers earn 40% less per hour than their fulltime male counterparts, which Ms Harman puts down to ‘entrenched discrimination’. She also suggests
a ban on ‘gagging’ clauses in contracts that prevent employees discussing their salaries.
The concern is that banning secrecy and encouraging employees openly to discuss pay may achieve
the desired transparency but also encourage claims in cases where differences in pay may have nothing
to do with gender. Many local authorities are involved in costly equal pay litigation with few higher court
decisions going their way.
While the factors above may be contributing to the imbalance in pay, the reality is more complex. In
order to arrive at a higher level of transparency, a more detailed examination of the gender pay gap
needs to be undertaken. The real factors which contribute to an individual’s pay certainly include
performance, experience and the fact that women are more likely to have career breaks when on
maternity or to care for children, which inevitably interrupts their career path.
How can each of these factors be addressed?
PRIVATE SECTOR
Controversial plans to impose the same transparency requirements on the private sector have been
dropped, but the Bill will use the public sector to hold private sector firms to account. The public sector
spends billions of pounds purchasing goods and services from the private sector. In doing so, the public
sector already has a duty to consider promoting anti-discrimination – for example by asking potential
page 17
contractors what percentage of their staff are from ethnic minority communities. This duty will be
strengthened in the new Bill and private sector firms bidding for public sector contracts will have to
publish details of their diversity policies and equal pay credentials.
TRIBUNAL INVOLVEMENT
Currently tribunals are only permitted to make recommendations to employers if they directly benefit the
successful claimant before them. Clearly in most cases the person discriminated against leaves the
employ of the discriminator, and therefore this is not a powerful tool for tribunals. Under the new
proposals tribunals will be permitted to make wider recommendations which relate not only to that
individual but also to the rest of the workforce.
If the employer does not comply with a recommendation and further claims were made, it could be taken
into account and could lead to greater sanctions. This represents a change in the policy of tribunals.
Facilitating representative actions is also being considered. This would enable bodies such as trade
unions to bring cases on behalf of a group of individuals in a single claim.
ANTICIPATING THE FUTURE CLIMATE
Consolidating and simplifying what Ms Harman describes as ‘a thicket of legislation and guidance’ is a
positive step and will be welcomed by employers who struggle to make sense of the provisions, as well
as individuals who will only need to look at one Act to ascertain their rights. However, there is much
work to be done. An Equality Bill that encourages some forms of positive discrimination sends out a
confusing message. And the Treasury may yet have a say on the cost of equality in the public sector.
Politically, there appears to be consensus on the aims and objectives of the Bill – though which party
would not be against discrimination? The opposition spokeswoman, Theresa May MP, has criticised the
Bill for having good intentions but lacking detail and clarity. Public consultation on the government’s draft
legislative programme, which includes the Equality Bill, ended on 6 August 2008. The draft Bill will be
discussed by Parliament in the Queen’s Speech debates in December 2008.
How the end product differs from the proposals and whether it will bring sweeping change to the work
climate remains to be seen. For academics and lawyers there will be much interest; for the majority of
the population (the voters) the Bill is perhaps just more politics.
Michael Parr
Partner, BLM Manchester
Cause and effect: liability in negligence for suicide and
manslaughter
This year saw surprising developments in cases involving psychiatric injury with the House of
Lords (HL) and Court of Appeal (CA) making significant rulings in the cases of Corr v IBC
Vehicles Limited [2008] UKHL 13, and Kerrie Gray v Thames Trains and Network Rail
Infrastructure Limited [2008] EWCA Civ 713. Both cases considered the extent to which losses
flowed from psychiatric injuries sustained as a result of negligence, although the cases turn on
entirely different facts. Corr was heard by the HL after argument in Gray but before judgment
was handed down. Sir Anthony Clark MR in his judgment in Gray drew parallels between the two
cases in relation to breach of duty, contribution, causation and remoteness.
Corr
In Corr v IBC Vehicles the IBC Vehicles defendant appealed against an award of damages to a widow
following her husband’s suicide. He had been injured in an accident at work almost six years before and
had issued proceedings which were ongoing at the time of his death. She had successfully recovered
damages pursuant to the Fatal Accidents Act 1976 for the financial losses attributable to her late
husband’s suicide.
It was accepted by the defendants that the severe depression which had caused Mr Corr to commit
suicide had been caused by the accident, but they argued that the financial losses incurred as a result of
his death were too remote; that his suicide was not a reasonably foreseeable consequence of the
accident.
The HL held that the deceased acted in a way in which he would not have done, but for the accident.
His suicide was not an informed act taken by a person of sound mind. If it had been it would have
page 18
broken the chain of causation. His severe depression was a reasonably foreseeable consequence of the
defendant’s breach of duty in causing the accident, and thus his suicide too was reasonably
foreseeable. The damages arising from his death were not, therefore, too remote. The defendant’s
appeal was dismissed.
The question of contribution on the part of the deceased was not considered in depth, as it had not been
raised by the defendants, but the court indicated that a deduction for contribution might be appropriate in
future cases of deliberate suicide in these circumstances.
Gray
In Kerrie Gray v Thames Trains and Network Rail, the claimant sought damages as a result of injuries
he had sustained in the Ladbroke Grove rail crash in 1999. Although Gray sustained only minor physical
injuries in the crash, he suffered severe post-traumatic stress disorder which caused a significant
personality change.
In an incident of ‘road rage’ Gray later stabbed a stranger to death and pleaded guilty to manslaughter
on the basis of diminished responsibility. He was ordered to be detained in hospital under the Mental
Health Act 1983.
Significantly his psychiatric evidence, that he would not have committed the crime but for the
defendant’s negligence, was unchallenged.
His counsel maintained that Gray, a law-abiding man, had been turned into a criminal and that his
conviction for manslaughter and the loss of earnings which followed were as a direct consequence of
the rail crash. It was proposed that Gray, who was of previous good character and had been in
continuous employment prior to the accident, would now have very limited employment prospects.
Although the defendants agreed to meet his losses up to the date of the manslaughter they argued that
he should not recover for losses thereafter on the basis that to do so would condone his criminality.
The court was asked to consider the principle of ex turpi causa non oritur actio which provides that no
cause of action based on illegality or criminal conduct shall succeed.
The court held that where the cause of action itself, in this case the negligence of the defendants, did
not arise out of the claimant’s illegality the test that had to be applied was whether the claim was so
inextricably bound up with the claimant’s criminal conduct that the court could not permit him to recover
damages without appearing to condone that conduct. The burden of proving that the manslaughter and
the claimant’s incarceration amounted to a break in the chain of causation lay on the defendants.
Gray’s case was that he would have continued to earn income before and after the date of the
manslaughter had the accident not occurred and was therefore entitled to recover the whole of his loss
of earnings from the defendants.
The court could find that there was no break in the chain of causation if either:
a
b
the claimant would not have committed the crime but for the defendant’s negligence, on which
basis he would recover in full.
the manslaughter amounted to contribution on the claimant’s part, in which case he would
recover only the part of his claim which flowed from the negligence.
Applying Corr, it was the illness caused by the defendants’ negligence (in causing the rail crash) that led
the claimant to kill the victim. In those circumstances it was strongly arguable that there was no break in
the chain of causation.
The CA held that the claim was not defeated by public policy concerns – the ex turpi causa point –
unless it was bound up with the criminal conduct. It found that the only cause of the claim for loss of
earnings was the accident itself, not the manslaughter, and Gray’s claim was allowed in full.
Summary
In both these cases negligence on the part of the defendants led to the injured person developing
severe psychiatric illness with fatal consequences. In both it was held that there had been no break in
the chain of causation because the behaviour of the injured person arose entirely as a result of that
illness. There was room for an argument of contribution to be raised, but in neither case had it been
pleaded and properly argued.
page 19
The combination of these cases sets a firm basis for consideration of issues in future cases as far as
principles of causation, contribution and remoteness are concerned, and is likely to send shockwaves
among employers and insurers alike as to their potential liability to injured employees and others injured
in accidents for the consequences of psychiatric injury.
Joanna Peters
Partner, BLM Manchester
Can occupiers deny liability when visitors are injured?
In recent years there has been, on the one hand, a trend towards strict liability being imposed by
various statutes, yet on the other hand a commonsense approach being adopted by the courts in
the interpretation of legislation which has, to an extent, moderated what might otherwise have
led to manifestly unjust decisions. Below is a warning to occupiers: do not assume that you are
necessarily protected just because you have hired a competent contractor.
The case of Viasystems (Tyneside) Limited v Thermal Transfers (Northern) Limited (2005) EWCA Civ
1151 was significant in establishing that there is now no limit on the number of employers who may be
vicariously liable for the same person and therefore for the same injury, even when it is a single act of
negligence by a single employer which causes the injury. Previously only one employer was ever
considered potentially vicariously liable.
In the common place arena of claims by workers following accidents on the premises of others,
complicated and awkward situations arise that often make it difficult to anticipate which party or parties
will be found liable.
It is perhaps useful to reflect on the governing legislation set out in section 2 of the Occupiers’ Liability
Act 1957 which imposes the ‘common duty of care’ on the occupier of premises to all visitors but then
goes on to qualify this with the words ‘except in so far as he is free to and does extend, restrict, modify
or exclude his duty of care to any visitor or visitors by agreement or otherwise’.
By section 2(3)(b) an occupier ‘may expect that a person, in the exercise of his calling, will appreciate
and guard against any special risks ordinarily incident to it.’
Furthermore, section 2(4) of the Act provides that:
In determining whether the occupier of premises has discharged the common duty of care to a
visitor, regard is to be had to all the circumstances, so that (for example) –
a
where damage is caused to a visitor by a danger of which he had been warned by the
occupier, the warning is not to be treated without more as absolving the occupier from
liability, unless in all the circumstances it was enough to enable the visitor to be
reasonably safe.
The analysis of Brooke LJ in giving the judgment of the court in Fairchild v Glenhaven Funeral Services
(2001) EWCA Civ 1881, of the difference between occupancy duties (relating to the dangerous condition
of the premises) and activity duties (relating to dangerous activities carried out on the premises) is
informative.
At paragraph 131 Brooke LJ concluded that:
The 1957 Act imposed the new statutory common duty of care on an occupier towards all his
visitors to take appropriate care to see that they would be reasonably safe in using his
premises, and it is not necessary in this context to go further than the provisions of the Act to
see whether a duty of care exists or what is its scope. The Act does not provide an answer,
however, when a question arises whether an occupier, without more, is liable to a visitor for an
injury he suffers as a result of an activity conducted by a third party on his premises. For that
purpose one has to go to the common law to see if a duty of care exists, and if so, what is its
scope, or to some other statutory provision such as the (now repealed) section 63(1) of the
Factories Act 1961.
The Court of Appeal (CA) again considered these issues on 26 June 2008 in John Lough v Intruder
Detection and Surveillance Fire and Security Limited and Robert Fulton [2008] EWCA Civ 1009.
page 20
The facts were that the defendant employers installed fire and security systems. The defendants were
contracted to install an alarm system for the third party, Mr Fulton. While, major refurbishment was
nearing completion, a new staircase was being fitted. On 26 May 2003 the staircase contractor removed
the temporary barrier and tried the new balustrade which was then removed for cosmetic finishing with
the intention that it would be fitted some two or three days later. Mr Fulton told the staircase contractor
not to erect any temporary barrier and that his family living in the premises would take care on the stairs.
On the morning of 27 May 2003 the claimant and two colleagues arrived unannounced at the third
party’s premises to work on the alarm system, though he accepted that workmen in general might arrive
at any time. Mr Fulton did eventually let them in and he advised the men to be very careful due to the
state of the premises. Unfortunately, later, the claimant who had been working upstairs, fell from an
unprotected edge. At first instance the claim against the third party was dismissed but on appeal it was
found that the third party was in breach of his common duty of care, the relevant circumstances being
that the third party had:
i
ii
iii
Permitted the claimant to enter.
Permitted the claimant to go upstairs knowing of the danger.
Given a warning that was not sufficient.
There was scant evidence available for the courts to use regarding precisely what had happened on the
day in question and, adopting a broad brush approach, the third party’s liability was found to be 25%.
The court readily accepted that the employer had the lion’s share. The claimant’s supervisor who was
present at the time could see the danger posed by the unguarded staircase and landing, was directly
responsible for the claimant and should have appreciated the risk after entering the premises. However,
in addressing apportionment the court said this should reflect the respective blameworthiness of the
parties and also its causative effect. Whilst a raft of case law had been produced by the parties and
referred to the court, Smith LJ effectively dismissed these authorities as being of no assistance in
deciding whether the occupier had fulfilled his duties under the Act. She went on to say that it was
necessary to give consideration to the statutory provision and the individual facts of the case authorities were of little help.
The decision comes as little surprise to the extent that it confirms that the primary responsibility is on the
employer. Nevertheless, in terms of the occupier, it demonstrates that in such circumstances, short of
actually refusing the claimant access, it will be very difficult to avoid liability altogether. So ultimately the
answers to the opening title are: yes, and no. Furthermore, as the outcome inevitably depends on the
particular facts it is dangerous to place too much reliance on decided case law.
Richard Clarke
Partner, BLM Stockton-on-Tees
What is the future for ‘tainting’ in phantom passenger RTA
claims?
The Court of Appeal’s decision in Wasim Ul-Haq, Samra Khatoon and Zahida Parveen v Ms Anita
Shah (2008) is a significant set back for insurers and defence lawyers when attempting to
advance a tainting argument in bogus passenger claims arising out of RTAs (road traffic
accidents).
Background to the ‘tainting’ argument
Insurers and defence lawyers have historically attempted to persuade the judiciary to strike out genuine
claimants’ claims where the genuine claimant has supported or advanced a fabricated claim for injury
and loss by another. It is said in such cases that the claimant’s conduct in advancing and supporting the
‘phantom’ claim is sufficient to ‘taint’ his genuine claim for injury and loss so that the claimant should not
recover his genuine damages. This argument while clearly beneficial to insurers is much debated and
one which has not always found favour with the judiciary. There is an unwillingness to advance the
argument because there is no common law rule that supporting a fraudulent claim automatically results
in a claimant forfeiting his right to damages.
page 21
Progression
Defence lawyers and insurers had been reasonably successful until recently in persuading courts to
strike out genuine claimants’ claims where those genuine claimants have supported and advanced a
phantom passenger claim. The winning argument appeared to be one of credibility.
A theme was beginning to develop from the court through a succession of similar cases. One such case
was Yassar Ghalib and Abdul Ghaffar v Joanne Hadfield (2004). At the trial the judge found that the
claimant had supported and colluded to advance a phantom passenger claim. The judge dismissed the
genuine claimant’s claims on the basis that there was no objective evidence presented by the claimant
to support his claim for injury.
In Bashir & Others v Ahmed & Others (2007) the judge went one step further by commenting that due to
their dishonesty, the genuine claimants had deprived themselves of a recourse they might have had in
damages. In the more recent case of Khan & Others v Hussain & Others (2007) on appeal the court
used its discretionary power under the Civil Procedure Rules to strikeout genuine claimants’ claims
where they had failed to help the court to further the overriding objective and where their own witness
statements were an attempt to obstruct the just disposal of the proceedings.
This all appears to have changed as a consequence of the Court of Appeal’s decision in Wasim Ul-Haq,
Samra Khatoon and Zahida Parveen v Ms Anita Shah. (Ul-Haq)
The facts of Ul-Haq
In May 2006 a collision occurred between a vehicle driven by the claimant, Mr Ul-Haq and the defendant
Ms Shah. The case proceeded to trial to determine whether or not Mr Ul-Haq’s mother, Mrs Khatoon,
was a passenger in his vehicle at the time of the collision and therefore whether she was bringing a
genuine claim for injury and loss. At first instance the trial judge found that Mrs Khatoon’s claim was
entirely fraudulent and that she had not been in the vehicle at the time of the collision. He also found
that Mr Ul-Haq and his wife had conspired with Mrs Khatoon to present a fictitious claim. Despite this,
the trial judge rejected the argument advanced by the defendant that the court should use their
discretionary powers under CPR 3.4 to strike out Mr Ul-Haq’s genuine claims for abuse of court process
or for obstructing the just disposal of proceedings.
On appeal, Mr Justice Walker supported the trial judge’s decision. His view was that the claimant’s
conduct was not of ‘the worst kind’ which would result in them forfeiting their genuine claims.
So what of the future of the ‘tainting’ argument?
Following Ul-Haq there is uncertainty as to how the judiciary will now deal with these cases. These
arguments can still be advanced but how successful they will be following the Ul-Haq appeal decision is
a matter for conjecture. The acceptance of the arguments will depend on defendants reaching the high
bar set in Ul-Haq. One thing that is certain is that Ul-Haq will act as a persuasive authority and present a
hurdle for defendants to overcome when advancing such arguments, even if only advancing a credibility
argument.
Perhaps the best way forward is to take the argument away from the discretion of the court by lobbying
for a change in the law. In Ireland, the Civil Liability and Court Act 2004 provides Irish courts with the
powers to dismiss a claimant’s action if false or misleading evidence is given in a personal injury action.
Defendants may therefore find more certainty in alternative methods to secure a future for the tainting
argument in bogus passenger claims.
Sarah Hill
Partner, BLM Birmingham
Guidance at last for failure to insure and public policy
arguments
For some time now there has been a reluctance on the part of courts and insurers alike in
entertaining or pursuing illegality/public policy arguments where there had been a failure to
insure on the part of an innocent claimant.
page 22
Up until the recent decision of Smyly Agheampong v Allied Manufacturing (London) Co Limited, 30 June
2008, Central London County Court (unreported), there was no real certainty as to the position of an
uninsured driver who sought to claim compensation and the decision was often taken to settle claims of
this nature. However, the decision in Agheampong provides useful guidance as to when the doctrine of
ex turpi causa can be used to defeat certain heads of loss.
The case itself concerned a road traffic accident in March 2006, when the claimant’s unoccupied vehicle
had been struck whilst parked. At the time of the accident, the claimant did not have compulsory third
party motor insurance. Although liability was admitted and damages paid to the claimant representing
the pre-accident value of the vehicle, the claimant sought to recover credit hire charges totalling
£34,067.68 together with storage and recovery charges in the sum of £765.61.
The claim was defended on the basis that the doctrine of ex turpi causa applied as the claimant and/or
his vehicle were uninsured at the time of the accident contrary to section 143 of the Road Traffic Act
1988.
Doctrine of ex turpi causa
The maxim ex turpi causa non oritur actio was formulated by Lord Mansfield in Holman v Johnson
[1775] 1 Cowp 341 at 343:
No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal
act. If, from the plaintiff’s (sic) own stating or otherwise, the cause of action appears to arise ex
turpi causa, or the transgression of a positive law of this country, there the court says he has
no right to be assisted.
The variation – ex turpi causa non oritur damnum – applies where the court does not permit the
claimant to recover damages in full, as a matter of public policy. In Hewison v Meridian Shipping [2002]
EWCA Civ 1821, Clarke LJ gave the leading judgment and observed (at paragraph 28) that:
It is common ground that there are cases in which public policy will prevent a claimant from
recovering the whole of the damages which, but for the rule of public policy, he would
otherwise have recovered. The principle can perhaps be stated as a variation of the maxim so
that it reads ex turpi causa non oritur damnum, where the damnum is the loss which would
have been recovered but for the relevant illegal or immoral act. A classic example is the
principle that a person who makes his living from burglary cannot have damages assessed on
the basis of what he would have earned from burglary but for the defendant’s negligence.
Whilst the courts remain reluctant to entertain claims which seek to interfere with the foundations upon
which the law of tort is based namely to place the parties into a position which they would have been
‘but for’ the accident, the damnum principle can nevertheless help defeat certain heads of loss.
Application of the doctrine
The Court of Appeal held in Cross v Kirkby (QBENF 1999/0526/A2) that:
The principle [ex turpi] applies when the claimant’s claim is so closely connected or inextricably
bound up with his own criminal or illegal conduct that the court could not permit him to recover
without appearing to condone that conduct.
In Agheampong the court found that as the claimant had been using his vehicle without insurance in the
year prior to the accident, he intended to continue driving without compulsory insurance throughout the
341 day hire period. Accordingly, the claimant’s claim for hire was dismissed as the case fell squarely
within the ratio of the Hewison v Meridian Shipping, namely that:
… where a claimant has to rely upon his or her own unlawful act in order to establish the whole
or part of his or her claim the claim will fail either wholly or in part.
Comment
Although a first instance decision, Agheampong, has brought a certain amount of clarity to an uncertain
area of law. It is clear a failure to insure will not trigger the maxim ex turpi causa non oritur actio, so as
to defeat a claim altogether. It does, however, highlight a change in the courts’ attitude towards claims
involving uninsured drivers and their willingness to adopt the maxim ex turpi causa non oritur damnum
so as to prevent an uninsured claimant receiving damages in full on the grounds of public policy. The
page 23
application of the damnum principle should hopefully act as a deterrent and help address the problem
created by the failure of a minority of motorists to comply with the requirement for compulsory insurance.
The problem of driving without insurance is a major issue both for the criminal and civil justice systems
and that the courts should adopt a unified approach in recognition that that which is illegal and
punishable in criminal law ought not to be rewarded in civil law. It goes without saying that there is
something inherently wrong with the notion that someone who deliberately sets out to default on the
social contract of mutual insurance should, thereafter, be able to take advantage of insurance put in
place at the expense of another. It is hoped that this case goes some way to try and level the playing
field between the criminal and civil justice systems.
Satpal Gidda
Solicitor, BLM Birmingham
Towards a new costs landscape?
In July the Ministry of Justice published its response to the claims review process consultation.
Chris Coughlin’s article (see page 5) sets out the proposals in some detail and notes the
frustration and disappointment at the limited scope of the new process, which is to apply only to
motor cases worth less than £10,000 where liability has been admitted within 15 days.
From a wider policy perspective, other recent costs developments are perhaps more positive and may
suggest an increased scrutiny of some of the fundamental inefficiencies of the present costs regime.
First, the MoJ has announced a scoping study covering the operation of ‘no win, no fee’ and conditional
fee agreements in personal injury, employment and defamation. The operation of after-the-event
insurance should be covered and the scoping study should be a pre-cursor to a more comprehensive
analysis in each of the three fields. Second, the Master of the Rolls has indicated he wishes to
commission a root and branch review of costs to be undertaken by a senior judge with a report due in
summer 2009. Also, the Ad Hoc Civil Costs Committee has recently completed collection of data in
respect of guideline hourly rates (for solicitors) which will form the basis of another report, and the basis
of the next probable change to these rates. BLM submitted data on over 20,000 cases closed in 2007 to
the committee and BLM also submitted data on saving secured on claimant costs across three costs
teams – which at 30% on average accounted for over £10m savings on presented bills of £34m.
As limited information has been published regarding these latest round of costs reviews it is difficult to
anticipate what the results will be. However, with insurance companies facing spiralling costs on every
claim they settle and claimant solicitors trying to hold on to the income stream provided by personal
injury cases, the difference between both sides’ goals has arguably never been wider. Claimant
solicitors feel their approach to costs has been vindicated by the MoJ’s response, while defendant firms
are left working out how to reduce legal spend, without, some perceive, support from the MoJ.
At an operational level, several notable figures in the defendant insurance sector have publicly signalled
that costs issues will again be at the forefront of their plans and strategies for the coming year. The
conclusion therefore could be that until there is some guidance from the government or the courts based
on the reviews described above, the costs industry is braced for a volatile year as both sides strive to
cement their positions in uncertain times.
Victoria Cargill
Head of costs, BLM Manchester
BLM reports - Pleural plaques mini-summit
National senior partner, Terry Renouf, chaired a BLM pleural plaques ‘mini-summit’ on 5 September
2008. The purpose of the event was to assist clients in responding to the Ministry of Justice’s
consultation (CP14/08) about the law on the topic in England and Wales.
Concurrent with the MoJ consultation, reviews of the clinical evidence around pleural plaques were
being conducted by both the Industrial Injuries Advisory Council (for the Department for Work and
Pensions) and by NHS experts (for the Chief Medical Officer).
page 24
Around three dozen delegates attended our event, representing interests in both private and public
sectors, and in the insurer and business communities. BLM’s Alistair Kinley and Brian Goodwin gave
short presentations covering respectively the political realities of asbestos claims issues and the current
legal developments. Guest speaker Shreyas Shah of Deloitte outlined the actuarial understanding of the
incidence of plaques nationally and analysed the case numbers and cost estimates in the MoJ
consultation paper.
Partners from BLM’s occupational disease group then facilitated group-based discussions on the key
questions in the paper. Brief feedback indicated a broad consensus on these, being that:



there was no support for legislative reversal of Johnston v NEI International Combustion
there was no support for either of the two ‘no fault’ schemes outlined in the paper
the proposals for raising public awareness of the nature of pleural plaques were supported, with
compensators prepared to participate fully in such a programme.
This consensus is diametrically opposed to views expressed by claimant and trade union groups.
Perhaps encouraged by the position in Scotland – where legislation to reverse Johnston has already
been introduced – these interested parties are set on restoring compensation for pleural plaques in
England and Wales. The TUC Congress in mid-September passed a specific resolution to this effect.
It is evident, to quote the MoJ paper, that ‘there are genuine difficulties in respect of all the options
considered’. Whilst the MoJ has said ‘it is not currently minded’ to reverse Johnston, the relatively recent
precedent of Barker v Corus and the Compensation Act 2006 must give some cause for reflection.
However, it is wise not to reflect for too long – government is expected to set out its post-consultation
approach during November.
Matthew Harrington
Partner, BLM Cardiff
BLM reports - Namibia Desert Challenge 2008
18 to 24 April 2008
Representatives from across the insurance industry raised over £100,000 for The Prince’s Trust youth
charity by participating in the 140km Namibia Desert Challenge. BLM’s team the ‘Desert rats’ was
crowned fundraising champion for raising almost £30,000.
The final standings of the nine teams were:
1.
2.
3.
4.
5.
6.
7.
8.
9.
AIG
Watson Wyatt
Markel 1
SSP 1
BLM
Allianz
Ingram
Markel 2
SSP 2
All the teams are to be congratulated on a unique physical and mental challenge. Here is an excerpt
from the diary of one of BLM’s Desert rats:
DAY 1 – FRIDAY 18.
LONDON GATWICK TO W INDHOEK, NAMIBIA
After six months fund raising, training and preparing there was a nervous energy in the challenge team
as we finally departed.
DAY 2 – SATURDAY 19.
W INDHOEK TO VOGELFERDERBERG: 5HR TRANSFER
After a transfer into the Namib Desert we camp that night on the skeleton coast famous for massive
sand dunes and stranded ships close to shore.
page 25
DAY 3 – SUNDAY 20.
WALVIS BAY TO DUNEFIELDS CAMP: 21KM, 8HRS TREK
We are woken at 6am by the sound of an African drum. It is harder than we anticipated trekking through
sand in the 35ºc heat. We navigate by GPS through miles of sand dunes to the base of an enormous
dune where we face a bonus points challenge in a timed run to the top where the view is breathtaking.
We finish 2nd but only 7th overall.
DAY 4 – MONDAY 21.
DUNEFIELDS CAMP TO SWAKOP RIVER CAMP: 42KM, 4HRS CYCLING, 4HRS ABSEILING
We are woken by a 5.30am drum call.
Due to strong headwinds, we form a ‘train’ tucking in behind each other. At times the team is stretched
out; if a team member falls behind they could easily be stranded. There is small margin for error in this
harsh environment. Some teams are struggling with cramps, heat exhaustion and equipment failures.
We are all learning quickly about teamwork and support.
We make it to the base of Skull Rock where there is water and shade and we recuperate. Nobody has
the strength to contemplate the climb and 80m abseil down Skull Rock.
In a test of mind over matter we abseil down the sheer rock face back into camp. As you go over the
edge your stomach lurches as you dangle by the rope, unable to see the rock face behind you with
nothing but open space all around.
We have improved our position to 5th place overall. We are treated to an ice cold ‘bush’ shower and
camp overnight at the base of Skull Rock.
DAY 5 – TUESDAY 22.
SWAKOP RIVER CAMP TO SPITZKOPPE COMMUNITY CAMP: 60KM, 7HRS CYCLING
Today we will be cycling in temperatures approaching 40ºc. The event organisers have abandoned part
of the stage. The morning is tough but the afternoon brings a better team pace and spirits lift. We are
spurred on by the news that at the end of this stage is a natural rock pool. The scenery changes and we
know we are approaching the Spitzkoppe. We find a murky, stagnant pond and realise that we won’t be
cooling off just yet.
We have slipped to 7th again. We are disappointed and vow to do better tomorrow.
DAY 6 – WEDNESDAY 23.
SPITZKOPPE TO OTJIHAVERA MOUNTAINS: 20KM, HALF MARATHON
The final challenge is a 20km race around the base of the Spitzkoppe mountain. The terrain varies from
bushland to rock escarpment.
After 12km we reach an enforced three minute water/rest stop. The medics check us for signs of heat
exhaustion and spray us down. We replenish our water supplies. One Desert rat is completely spent and
volunteers to drop out; we agree to finish as a team even if we have to carry him across the line!
The challenge becomes more mental than physical. A young girl from a village joins us, easily keeping
pace in bare feet, smiling.
The end is in sight. A large FINISH barrier stretches across the sandy track and the Desert rats cross
the line together.
The challenge is over. We transfer to back to Swakopmund, finding bungalows with showers and beds;
absolute heaven after being the desert.
We celebrate, recuperate and reflect on our achievement. We have learnt to work and support each
other as a team, accommodating each others strengths and weaknesses. The importance is to get to
the finish line together and individual glory is set aside for the benefit of the team.
BLM Desert rats
page 26
BLM briefing
NEWS
The Prince’s Trust Namibia Desert Challenge 2008 A big thank you from Berrymans Lace Mawer. With
your support and generous donations, together we raised over £28,000 for The Prince’s Trust. Read the
first hand account (page 34) and visit the Trust’s website to learn about the work it does to change the
lives of young people: www.princes-trust.org.uk
TRAINEES QUALIFY
The following were offered positions in the firm as qualified solicitors after training with BLM:
Birmingham: Sandeep Dyal (professional indemnity). Liverpool: Julie Byrne (occupational disease),
Lucy Stranney (personal injury). London: Lisa Jenks (clinical negligence), Caroline Speight (personal
injury). Manchester: Eilis Comerford (personal injury), Rachel Robertson (safety, health and
environment), Rebekah Walker (personal injury).
BLM ALSO WELCOMES
Birmingham: Rowland Dunn (personal injury), Amanda Jarrard, Sarah McDermott (professional
indemnity). Leeds: Asmat Khan, Kirstie Lennox (occupational disease). Liverpool: Sima Butt, Neil
Wells (personal injury). London: Gregory McEwen, Hannah Senior (clinical negligence), Louise
Carroll, Kirsty Harvey, Lisa Marshall (professional indemnity), Elizabeth Whittingham (property
insurance and recovery), Katherine East (occupational disease). Manchester: Mary Diggle (transport),
Sarah Elderton (commercial), Sarah Murray-Smith (occupational disease), Angela Moseley, Emily
Piggott, Marium Razzaq (transport). Stockton-on-Tees: Philip Hammal (personal injury).
NEW PUBLICATION
A supplement to the 12th edition of Bingham and Berrymans’ Personal Injury and Motor Claims Cases
(published by Butterworths LexisNexis) is now available. The publication is co-edited by Michael Pether,
BLM London, with contributions from colleagues within BLM.
EVENTS
We run a broad range of workshops and seminars throughout the year, full details of which can be found
at www.blm-law.com
Where we are this autumn:
ABI Motor conference 14 November (London).
Construction conferences 12 and 18 November (London).
Claims review conferences 20 November (Manchester) and 27 November (London).
Clinical negligence conference 4 December (London).
In Spring 2009 workshop debates will include events covering the sectors of health and safety,
construction, road traffic prosecution, product liability and professional liability. Our seminars will offer an
opportunity to examine the issues of importance to police, transport and the leisure industry. The spring
schedule then rounds off with the annual occupational disease seminar in London. All dates are to be
advised and updates will be posted on the BLM web site www.blm-law.com
BLM briefing contribution by Kelly Harper, media relations executive, BLM London
page 27