Legal Matters
Personal Injury and Insurance
Issue 26, December 2012
Double the risk causation test used
for lung cancer claims
The Phurnacite litigation was a group
Grief (UK) Ltd (2011) and the Atomic
action involving around 200 claims
Veterans litigation (A, B & Others v
with eight selected as lead cases.
Ministry of Defence 2012), she found
The Phurnacite plant had for many
years produced a smokeless fuel from
a process combining fragments of coal
with pitch to produce briquettes which
were then heated to eliminate volatile
substances. During the carbonisation
the correct approach would be to apply
the ‘double the risk’ test. This was
notwithstanding concerns raised by
the Supreme Court in Sienkiewicz that
over reliance upon complex statistical
evidence was unsatisfactory.
process a number of noxious fumes
Although medical evidence suggested
were created.
a link between fume and dust exposure
Swift J was satisfied that the hazards
associated with production including
the release of dust and fumes were
well known and resulted in an obvious
risk of injury.
She was critical of
the conditions at the plant and was
satisfied that exposures had occurred
in circumstances amounting to a
breach of statutory duties.
Worthy of particular note is Swift J’s
summary of legal causation especially
with regard to the Claimants suffering
with lung cancer. She gave a detailed
analysis
of
of
the
establishing
various
means
causation
where
competing causes (all 3 lung cancer
Claimants had previously smoked)
required consideration.
and bladder cancer and basal cell
carcinoma, there was deemed to
have been insufficient epidemiological
evidence to link these illnesses to
the Claimants’ employment. There
was however, clear evidence of a
link between the other non-malignant
respiratory
conditions
to
the
Claimants’ occupational exposure.
The Court was invited to apportion
exposure between tortious and nontortious sources so as to determine an
appropriate reduction in the Claimants’
award of damages. Swift J rejected
that approach.
She was satisfied
that the Defendants could have either
wholly or virtually wholly avoided
exposure taking place. She concluded
there was insufficient evidence upon
After a detailed determination of
which to base any estimate of non-
the
following
tortious exposure. She was unwilling
recent decisions in Sienkiewicz v.
to reduce the exercise to guess work
law
on
causation
Our quarterly newsletter aims
to highlight developments and
recent case law in the areas of
personal injury and insurance in
a concise and readable style. We
hope that you find it informative
and useful.
In This Issue
Double the Risk Causation
test used for lung cancer
claims
Amended guidance on
damages increase issued by
the Court of Appeal
Loss of future Earnings
When should the Blamire
approach be used?
DWP Fraud Seminar hosted
by Plexus
Can a party be guilty of
fraud by association?
Beware of low lying trolleys!
Injury to pupil was not
reasonably forseeable
Rylands & Fletcher - Fire is
not “the thing”
No recovery of outlay
for damage caused by
motorists deliberate act
Partners Perspective
and in the circumstances made no
Amended guidance
on damages increase
issued by the Court of
Appeal
and Punishment of Offenders Act.
her
On the 10th of October 2012 the
connection with the case
discretion under section 33 of the
Court of Appeal (COA) amended
Limitation Act 1980 to enable these
the guidance given in the case of
cases to proceed.
Simmons v Castle, in which general
such reduction.
Most of the lead Claimants had
acquired knowledge more than three
years prior to the issue of proceedings.
However,
Swift
J
exercised
Although the careful judgment is
welcome, both sides of the fence will
view the present position on legal
causation in indivisible disease claims
damages, were increased by 10% in
Essentially this refers to Claimants
who before 1 April 2013, entered
into a CFA for the purposes of
advocacy or litigation services in
• The 10% increase in general
damages will apply to contract as
well as tort claims
line with the proposals made by Lord
Further guidance was also provided
Justice Jackson. The changes are to
by the COA in relation to the types of
take effect from 1 April 2013.
general damages that would benefit
from the 10% increase. These are :
with a degree of frustration. Insurers,
Following the original judgment of
whilst no doubt welcoming the court’s
Simmons v Castle, there had been
• pain, suffering
continued reluctance to extend the
concerns raised by the Association of
• loss of amenity
Fairchild exception to cases other
British Insurers (ABI) that applying a
than mesothelioma, will have an eye
blanket increase for general damages
on many other occupational lung
awards after April 1st 2013 would
cancer cases in the pipeline.
over
With medical science continuing to
advance and with both sides keen
to further develop the legal test on
causation, it is questionable whether
the
Phurnacite
judgment
will
be
a reference point for advisers on
causation in the long term.
• social discredit
penalise Defendants where Claimants
• mental distress
had entered into Conditional Fee
• loss of society of relatives
Claimants
Agreements (CFAs) prior to that date.
In such cases Claimants would be
able to recover the additional liabilities
under CFAs and also benefit from
the 10% rise. There was also some
uncertainty
about
which
general
damages awards were included in the
for Energy and Climate Change (2)
10% increase.
For further information contact:
David Jackson - Details on page 8
The ABI duly asked the COA to
reconsider its original decision.
The amended guidance has addressed
the ABI’s concerns and made two
important changes:
• The 10% increase in general
damages will not apply to those
Claimants who fall within section
44(6) of the Legal Aid, Sentencing
02
discomfort
and
compensate
Jones & Others v (1) Secretary of State
Coal Products Ltd [2012] EWHC 2936
• physical inconvenience and
The amended guidance has provided
some
clarity
and
corrected
the
misalignment caused by the original
judgment. However, it remains to be
seen how the extensive reforms are
going to work in practice.
Simmons v Castle & (1) ABI (2) APIL
(3) PIBA (Interested Parties) [2012]
EWCA Civ 1288
For further information contact:
Helen Randall - Details on page 8
Loss of future earnings:
When should the Blamire
approach be used?
The Court of Appeal (COA) held
The Claimant (C) attained a First Class
really has no alternative.
degree in model making and hoped to
this requires a judge to make findings
In October Plexus Law hosted a
develop a career as a model maker in
on a Claimant’s future earnings but
presentation by Sharon Harris, the
the performing arts. On her second
for the accident and on a Claimant’s
Fraud Investigation Team Leader
day of a work experience placement
future earnings given the injury. The
at the DWP.
with the Defendant (D), C cut off the
burden in respect of both issues is on
index finger of her left (non-dominant)
the Claimant.
hand. The finger was reattached and
The trial judge’s findings of fact were
C made a reasonable recovery.
combating benefit fraud which
clear. He was not satisfied that C had
has
The medical expert found it difficult to
demonstrated that she would have
recent decades. Investigations
say what difference the injury would
established herself as a theatrical
are now much more reliant upon
make to her, but he accepted that her
model maker and nor had she proved
technology with the closer co-
career options had been “narrowed”
what career she would now follow.
operation with private financial
because she had lost her tripod grip
He was not even satisfied that C had
institutions,
and this affected her ability to do fine
proved that she would suffer any loss
playing
work.
of earnings.
successful detection of benefit
The trial judge found that the residual
It was held that the trial judge was
issues with the index finger were
an inconvenience but she was not a
“disabled” person. He was unable to
predict C’s potential but he believed
that she would earn more in other
fields if she retrained. Following the
Blamire principle, he awarded £30,000
to enable C to retrain and to be
C submitted that the judge had erred
in declining to apply the conventional
multiplier.
of
Instead
the
multiplicand/
she
must
methodology
and
Ogden
Tables
should be applied unless the judge
be
regarded as disabled and the correct
DWP Fraud Seminar
hosted by Plexus
However,
She described the work carried
out by their investigation team in
changed
a
dramatically
such
large
as
part
in
banks,
in
the
fraud.
driven to adopt the Blamire approach,
We
which was the correct method due to
colourful stories originating prior
the imponderables of the case. Whilst
to the electronic age when every
it was not necessary for the COA to
claimant had a benefits book
determine whether C was disabled,
which had to be removed to stop
Aikens LJ indicated that she didn’t
payments. Investigators reported
meet the conditions set out in the
many interesting sights when
Ogden tables.
looking through the letterboxes
This case is a useful reminder that
compensated during that exercise.
methodology
that that the multiplicand/multiplier
whilst
the
approach
multiplier/multiplicand
should
generally
be
adopted, where there are too many
imponderables a lump sum award is
appropriate.
figure for loss of future earnings was
Ward v Allies & Morrison Architects
£176,633.46.
[2012] EWCA Civ 1287
also
heard
some
very
of claimants who refused to open
their doors. None of the stories
can be repeated in print, suffice
it to say Sharon and her team are
thankful that the technological
advances have ended this part of
their job.
For further information contact:
Myles Harrison - Details on page 8
03
Can a party be guilty of
fraud by association?
on C’s medical records in assessing
In Hussain v Hussain & Aviva, the Court
no evidence linking C to D except for
of Appeal (COA) overturned the trial
this RTA. There was no consideration
judge’s finding that the Claimant(C)
that his medical records may have been
in a road traffic accident had been
incomplete or that he had mixed up the
complicit with the Defendant (D) in
dates. There was therefore insufficient
claim for benefits. Many of the
making a fraudulent claim.
evidence to justify a finding that C had
tools and strategies adopted
Aviva’s (A) insured D collided with C
been fraudulent.
by the insurance industry are
resulting in a claim for vehicle damage,
equally of use to the DWP and
A high evidential burden is placed upon a
hire and general damages. A had
vice versa. Closer cooperation
party alleging fraud. The proven fraud of
numerous concerns about D including
between the DWP and other
one party will not establish that the other
a suspicious policy address, the
counter fraud operations can
party was fraudulent especially where
inception of the policy 2 days before
only help everyone in the fight
there is no evidence of a link between
the collision and 5 similar claims linked
against fraudulent claims.
them. Some evidential inconsistencies
to the same credit card and involving
will not of themselves be sufficient to
We look forward to closer ties
vehicles bought on hire purchase. C’s
prove complicity in a fraudulent claim. It
medical records contradicted his claim
is important to secure as much evidence
that he attended his GP 10 days post-
of all parties’ complicity in a fraud, rather
accident. There was also no reference
than just proving that some fraud has
to the RTA in the records.
occurred.
The trial judge had no doubt that D,
Hussain v Hussain & Aviva UK Insurance
who did not attend the trial, was
Ltd [2012] EWCA Civ 1367
Plexus have been working
with the DWP to try and
improve
communication
and co-operation in the fight
against
fraud.
Fraudulent
claims for damages are often
accompanied by a fraudulent
with the DWP and all counter
fraud agencies in the future.
For further information
contact Gary Petterson Details on page 8
engaged in fraud and that C was
complicit. He concluded that C’s
credibility was seriously damaged by
his credibility. C was found to be of
previous good character and there was
For further information contact:
Tim Short - Details on page 8
his medical records. He also applied
the ‘follow the money’ rule, i.e. that the
collision only made economic sense if
C and D agreed to share the spoils. As
a result C’s claim failed.
However, the COA allowed an appeal
by C. The COA held that although D
was dishonest, it did not automatically
follow that C was also dishonest and
therefore the trial judge’s application
of the ‘follow the money’ principle
went too far. The COA also found that
the trial judge had relied too heavily
Beware of low lying
trolleys!
The Court of Appeal (COA) has handed
down judgment in the appeal and crossappeal against the decision in Palfrey v
WM Morrisons Supermarkets Plc. The
Claimant (C) tripped over an L-shaped
trolley with a low-lying horizontal platform
used to move stock, sustaining injuries to
her arms and shoulders. The trolley had
been left in the centre of an aisle. The
judge found that the design of the trolley
04
was safe. However, he held that the
Defendant (D) was negligent in leaving
the trolley unaccompanied. C was
found 50% contributory negligent.
D appealed and C cross-appealed
against this decision.
personal injury.
Palfrey v WM Morrisons supermarkets
had it been recorded. C’s incident was
described as ‘impossible to predict.’
PLC [2012] CA
The Court of Appeal (COA) found that the
For further information contact:
Philippa Bell - Details on page 8
circumstances of the first incident were
completely different to C’s. In the earlier
incident one pupil had carelessly pushed
The appeal was dismissed, but the
cross appeal was allowed. The COA
found that the trolley did constitute
a hazard to the safety of those in the
store. It was reasonably foreseeable
that the attention of customers would
be diverted to the shelves and so to
a much higher level than the trolley.
The judge was right to hold the
supermarket primarily liable for C’s
injuries. However, this should have
been on the basis that the design
of the trolley and its position in the
middle of the aisle amounted to a
Injury to pupil was not
reasonably foreseeable
a door onto another pupil’s leg, causing a
minor laceration.
The COA held that whilst C’s accident
The Claimant (C) was 15 years old and
was not impossible to predict, there
had attended the school for four years.
was only a ‘superficial similarity’ to both
She left a school building through
incidents and that the previous incident
a set of swing doors which opened
did not make C’s more serious and
outwards and which had a self closing
different injury reasonably foreseeable.
mechanism. There was a single step
between the door and the ground. As
C moved her foot from the step to the
ground, the door closed and caught
her heal causing a laceration.
‘The trivial nature of the earlier incident
and the risk which it brought to light’ had
to be seen ‘in the context of 30 years
safe use of the doors’. Both the remedial
action proposed and the timescale were
reasonably foreseeable risk of injury.
There were no previous recorded
therefore reasonable. The appeal was
The court reduced the initial finding of
incidents involving the doors, which
dismissed.
contributory negligence from 50% to
had been in place for 30 years and C
20%.
had used the doors without complaint
Whilst leaving a low lying trolley in
the centre of an aisle was found to be
dangerous in the circumstances, the
COA took a cautious approach based
on the specific facts of the case. Two
key practical implications follow. The
COA did not go as far as to say that
such trolleys should never be used.
Nor did it find that supermarkets
are under an obligation to position
someone next to all trolleys, warning
of
their
presence.
However,
this
on countless occasions. There had
been one previous unrecorded incident
four months earlier which had been
investigated by the school caretaker.
He concluded that the risk factor was
low and recommended that the step
Following shortly after the decision
in Hammersley - Gonslaves v Redcar
& Cleveland Borough Council (2012)
(in which Plexus Law represented the
successful appellant) these decisions of
the COA demonstrate that courts should
not place unrealistic burdens on schools.
be raised during the school holidays.
Richards v Bromley London Borough
This work could not be undertaken
Council [2012] EWCA Civ 1476
during the half term holiday after the
For further information contact:
Simon Hills - Details on page 8
incident due to poor weather and was
scheduled for the next holiday. The
judge dismissed the claim.
judgment reminds supermarkets of
He concluded that whilst the first
the need to continue to assess and
incident should have been recorded
reassess their training systems and
and investigated by the school, in
methods for moving stock across
fact the caretaker had taken the
the shop floor to minimise the risk of
same action as he would have done
05
Rylands & Fletcher Fire is not “the thing”
The Defendant (D) had operated a
tyre supply/fitting business in close
• D’s use of the land was
extraordinary and unusual
• Such an escape occurred and
damage was caused as a result
physical proximity to the Claimant’s
Upon this basis they allowed the
(C)
Some
appeal and held that no liability arose.
3000 tyres were stored, many in a
In particular it was held that D’s use
adjoining
business.
somewhat haphazard manner. A fire
commenced as a result of defective
wiring to an appliance, and spread to
C’s premises.
of the land was not exceptional and
unusual and that critically upon the
present facts, the thing, which had
escaped, was fire and not the tyres
• The appeal was solely concerned with
the application of the Rylands principle
- it may be that any future claim would
concentrate more upon the spread
of fire. An allegation of negligence
in relation to the risk caused by the
manner of storage of combustible
materials might be made upon
particular facts. But possession alone
of (say) tyres would not amount to
negligence, and it would appear from
At first instance the claim failed in
and so key ingredients for Rylands
the analysis that such a finding would
negligence as it was held that the
strict liability were not made out.
require specific allegations supported
fire had occurred accidentally (that
Further upon the facts, fire was not a
by cogent evidence.
is without negligence) and so a
“thing” brought onto his land by D.
statutory defence arose under the
The practical implications arising from
Fires Metropolis Act 1776 s.86. It was
further held that the fire had not spread
as a result of negligence.
However
this decision are that:
• There is no special application of the
the claim succeeded upon the basis
Rylands principles to fire cases.
of “strict liability” following Rylands v
• Rylands strict liability should not
Fletcher (1868).
be seen as a routine basis for a
D appealed as to the true basis of
finding of liability, and will always be
liability arising under Rylands.
exceptional. This will necessarily be
The Court of Appeal reiterated the
requirements for liability to arise under
Rylands as considered by the House
of Lords (HOL) in Transco v Stockport
above.
• Accidentally occurring fires are not
These were:
under Rylands or in negligence - the
• D must have brought onto the
land an exceptionally dangerous or
mischievous thing
• D did or ought to have recognised
the risk of danger should “the thing”
For further information contact:
Keith Gaston - Details on page 8
application of the criteria outlined
a basis for liability arising whether
land
EWCA Civ 1248
so from a proper understanding and
MBC(2003)
• D must be the owner or occupier of
Stannard t/a Wyvern Tyres v Gore [2012]
defence under s 86 of the 1776 Act
remains relevant.
• The starting point for applying
the Rylands principle was the
HOL’s judgment in Transco. Older
decisions such as Musgrove
v Pandelis (1919) are strongly
doubted.
escape
06
No recovery of outlay
for damage caused by
motorist’s deliberate act
exclude damage to goods carried for
EUI Ltd v Bristol Alliance Ltd Partnership
hire or reward or it can limit the use
[2012] EWCA Civ 1267
of the vehicle, for example, to social
For further information contact:
Shaun Moyser - Details on page 8
A motorist, Mr Williams (W) attempted
onus is on the motorist to ensure that
to commit suicide by crashing his
the use to which he puts the vehicle
car into the House of Fraser store in
is covered by the policy. He has the
the centre of Bristol. He survived but
freedom to select a policy, which is
caused substantial damage to the
suitable for his use, and the premium
store.
he pays will reflect the risks, which are
His motor insurance policy excluded
domestic or pleasure purposes. The
covered.
cover for damage caused by his
Under section 151 an insurer must
deliberate act.
The store’s property
satisfy a judgment obtained by a third
insurer brought a subrogated claim
party subject to two preconditions.
against W and his motor insurer for the
The first is that the liability is required
recovery of its outlay. Judgment was
to be covered by a policy of insurance,
obtained against W.
which complies with section 145,
The motor insurer argued that it was
not obliged to satisfy the judgment
because it had no liability under the
policy and only had to deal with the
claim as an agent for the MIB under
the Uninsured Driver’s Agreement
1999 (Article 75 insurer).
The MIB
scheme excludes subrogated claims
for property damage.
and the second is that the liability is
actually covered by the terms of the
policy. In this case deliberate damage
was not covered under the policy.
The property insurers therefore had
no right of recovery directly against
the motor insurer, which only had to
handle the claim as Article 75 insurers.
The COA also concluded that the
At first instance Tugendhat J found
in favour of the property insurers and
held that section 145 of the Road
Traffic Accident Act 1988 required the
policy to cover any liability, which may
provisions of the RTA Act and the MIB
arrangements satisfy the EU directives
and that it was permissible under EU
law for the MIB to exclude subrogated
claims.
be incurred by the driver including
In the light of this case, where a policy
damage
The
excludes cover for damage caused
motor insurer therefore had to satisfy
deliberately
caused.
by a deliberate act, an insurer will not
the judgment as RTA insurer.
be required to indemnify the insured.
The Court of Appeal (COA) allowed the
motor insurer’s appeal. Ward LJ held
that not all damage to property had to
be covered by the insurance policy.
A motor policy can for example,
However, where there is no subrogated
claim the insurer will have to satisfy a
judgment obtained by a third party as
the Article 75 insurer under the MIB
If you have any suggestions for
future issues, please email
Karen Scott
Knowledge Management
Lawyer
E: karen.scott@parabis.co.uk
scheme.
07
Partners perspective
Contacts
Kathryn Oldfield, Partner in the Catastrophic
Loss Team, discusses abuse claims
The pervasive and devastating impact of
and reasonable to hold a Defendant
abuse presents enormous challenges for
vicariously liable.
abuse victims. Inevitably for many they
are often unable to seek legal redress until
many years after the abuse took place.
Investigating
such
claims
years
later
provides a range of complexities.
In The Catholic Child Welfare Society
and others v Various Claimants and
The Institute of the Brothers of the
Christian Schools and others [2012]
the Supreme Court determined that
In recent cases the courts have addressed
the
the hurdles both parties face in resolving
association,
such emotive claims. Limitation issues were
vicariously
clarified by the House of Lords in A v Hoare
committed by the Brothers. The
[2008]. In determining date of knowledge
Court emphasised that the precise
a court will now consider the Claimant’s
criteria for imposing vicarious liability
actual knowledge and what he should
for sexual abuse are still in the course
have known. The question as to when he
of
could reasonably have been expected to
as in this case, the relationship
take steps to pursue his claim is one of
of being a member of a religious
the factors relevant in deciding whether to
order facilitated the commission of
exercise discretion. However this must be
abuse, it was appropriate to impose
balanced against the evidential difficulties
vicarious liability.
faced by a Defendant.
Institute,
an
unincorporated
should
liable
refinement.
for
be
held
the
abuse
However,
where,
The courts have provided greater
The question of whether a Defendant
direction as to the circumstances
should be held responsible for the abusers’
in
torts was considered in Lister v Hesley Hall
succeed. Whilst the opportunity to
Ltd [2001]. The House of Lords confirmed
successfully defend such claims has
that a broad assessment of the nature of an
diminished, having greater clarity
employee’s employment should be adopted.
about the onerous responsibilities
An assessment should then be made as to
on a Defendant does enable such
whether the torts were so closely connected
claims to be assessed in a more
with their employment it would be fair, just
timely and cost effective manner.
which
such
claims
should
If you have any queries or
require advice on any of the
matters discussed in this
issue, please see contact
details below:
David Jackson
david.jackson@plexuslaw.co.uk
DDI: 0844 245 5238
Helen Randall
helen.randall@plexuslaw.co.uk
DDI: 0844 245 4233
Myles Harrison
myles.harrison@plexuslaw.co.uk
DDI: 0844 245 5342
Gary Petterson
gary.petterson@plexuslaw.co.uk
DDI: 0844 334 1069
Tim Short
tim.short@plexuslaw.co.uk
DDI: 0844 334 1008
Philippa Bell
philippa.bell@plexuslaw.co.uk
DDI: 0844 245 4191
Simon Hills
simon.hills@plexuslaw.co.uk
DDI: 0844 245 4133
Keith Gaston
keith.gaston@plexuslaw.co.uk
DDI: 0844 245 4956
Shaun Moyser
shaun.moyser@plexuslaw.co.uk
DDI: 0844 245 4216
Kathryn Oldfield
kathryn.oldfield@plexuslaw.co.uk
DDI: 0844 245 5223
T: 0844 245 4000
www.plexuslaw.co.uk
Offices in London, Leeds, Manchester and Colchester
Plexus Law is a trading name of Parabis Law LLP, a Limited Liability Partnership. Incorporated in England & Wales. Reg No: OC315763. Registered office: 8 Bedford Park, Croydon, Surrey CR0 2AP
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