Maguire: Supreme Court confirmslimited application of Article 2

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The Supreme Court has just handed down judgment in the case of Maguire, a judicial review where the family sought to assert that Article 2 was engaged, such that the jury should have considered the circumstances by which Jackie came by her death.

Jackie was a middle-aged lady with Down’s syndrome who was vulnerable living in a care home and subject to a DOLS order.

The inquest looked at a number of issues; those central to the judicial review being whether the day prior to her death paramedics should have taken Jackie into hospital and whether there was sufficient monitoring of Jackie whilst unwell by the care home. By the time that Jackie was taken to hospital she was gravely ill and sadly passed away. The coroner determined that Article 2 was not arguably engaged. This decision was upheld by the High Court and Court of Appeal.
The matter came before the Supreme Court in November of last year.

Put simply the Supreme Court endorsed the submissions made by all IP’s, other than the family, in the original inquest and the view taken by the coroner that:

  • There was no real and immediate risk to life that was or should have been known about, such that the Operational duty was not triggered;
  • There were systems in place which, if appropriately utilised, were sufficient such that there was no breach of the systems duty;
  • Any individual failings/lapses did not invalidate the systems in place, such that the comments in Parkinson in relation to medical care remained good law;
  • Negligent coordination among health professionals in the treatment of a patient is not sufficient to call a state to account from the point of view of its positive obligations under article 2.
  • A DOLS order and/or accommodation in a care home funded by the state did not change the application of the systems duty or elevate Jackie’s status in relation to accessing medical care in the community.

Interesting points that arise from the Judgment:

  • Direction from the Court that counsel for the coroner should act as, ‘amicus curiae to ensure that the court is given the full factual picture, including, if necessary, by drawing the court’s attention to matters not emphasised or omitted by a claimant, as well as alerting it to relevant law and authorities.’ This will come as a welcome comment by most Coroners who have, understandably, been concerned about the costs consequences of being seen to overstep the bounds of neutrality during the judicial review process.
  • Regard will be had to a wholesale change in legal argument taken by an applicant during the Judicial review process – it being noted that, ‘in a case like this, where the coroner was assisted by considered and detailed submissions by counsel for each of the interested persons, he was entitled to focus on the arguments presented in those submissions. He was entitled to expect that counsel for the interested persons could generally be relied on to invite his attention to what they regarded as important and significant in the particular circumstances of the case, and each other interested person was entitled to understand that the main areas of contention and debate between them were identified and framed in this way.’ Other than points addressed in submissions the coroner need only consider other obvious points.
  • Judicial comment about the inappropriateness of reverse engineering, namely seeking to look at what had gone wrong and then formulate an obligation tailored to the circumstances.
  • Judicial endorsement that systems don’t have to be formulaic, they can appropriately rely on the exercise of individual judgment.
  • Popplewell LJ’s considered approach in Morahan is repeatedly endorsed when assessing whether there is an operational duty. There needs to be consideration of, ‘the degree to which assumption of responsibility is a factor relevant to the operational duty under article 2 depends upon the specific risk to life of which the authorities were aware and which they understood had to be guarded against.’
  • In assessing the application of the state’s operational duty there is a need to consider the interests of the vulnerable; in particular promotion of autonomy, integration, and relationships of trust.
  • Reminder that the Court will not get involved in the state’s allocation of limited resources.

This is a welcome decision for coroners and practitioners alike, providing further clarification as to the scope of Article 2 in cases involving vulnerable patients in a healthcare context.

Ana Samuel
Note: the author represented NWAS at the inquest and before the High Court.

Download Case Note PDF

High Court considers application of Parkinson and Article 2

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Case Note: Maguire

“Article 2: Are the circumstances of the case such as to call a state to account”

Factual Background

The inquest into the death of Jackie Maguire, a 52 year old female with Down’s Syndrome and moderate learning difficulties, who resided in a state funded care home and was the subject of a deprivation of liberty order, came before the Blackpool Coroner’s Court.

HMC for Blackpool had agreed with the family that Article 2 was arguably engaged but a number of days prior to the substantive hearing the judgment of R(Parkinson) v HM Senior Coroner for Kent was handed down, which gave guidance on the circumstances in which Article 2 is arguably engaged in relation to healthcare deaths. Accordingly, it was accepted by all IPs at the commencement of the inquest that Article 2 needed to be re-visited prior to the Jury receiving direction.

At the conclusion of the evidence the family argued that Article 2 was still engaged on the basis that, Parkinson being accepted as applicable authority, either a) there were systemic failures or b) that the case fell within the ‘exceptional case’ category set out in Parkinson and/or c) that Rabone was engaged in that there was a real and immediate risk to life. Further, the family argued that neglect should be left to the jury either in respect of individual failures made by different organisations or alternatively on a cumulative basis, in essence totting up potential failures made by different organisations involved in providing care to Jackie (including the care home, Jackie’s GP, the out of hours GP and paramedics).

The other IPs argued that (a) any failures were individual failures, there being appropriate overarching systems in place and that, (b) based on the information available at the time to those involved in the provision of care and/or medical treatment to Jackie, there was not a real and immediate risk to life; rather Jackie, whilst poorly, was not showing any red flag signs, and (c) that the facts of the case did not fall within the Parkinson ‘exceptional category.’

HMC ruled that the allegations against Jackie’s carers and healthcare providers amounted to allegations of individual negligence, which Parkinson had clarified as falling outside the state’s obligations under article 2 such that Article 2 was not engaged and that it was Galbraith unsafe to leave neglect to the Jury, there being insufficient evidence to do so.

The family applied to Judicially Review the Coroner’s decision in respect of both Article 2 and neglect. By the time of the hearing their arguments in respect of Article 2 (having shifted) were that a) Parkinson was not applicable on the basis that Jackie’s death could not be classed as a healthcare death; and b) Jackie fell into a class of vulnerable individuals who were in the care of the state such that Article 2 was triggered, albeit it was accepted that it was not clear from the European case law as to what test should be applied to ascertain who fell into this class.

The key issues were a) was there a class of vulnerable individuals in the care of the state that triggered Article 2? And, if so, what legal test should be applied to the same; b) could actions/inactions across a number of agencies be aggregated to substantiate neglect in the event that the individual actions/inactions in themselves could not amount to neglect.

Judgment

In a 23-page Judgement the Divisional Court set out the State’s duties under Article 2 and noted that case law had expanded the positive duty to include death from egregious lack of medical treatment on the basis that the deceased had been vulnerable and unable to escape from the dangers posed by detention. Further, this reasoning had been extended to, for example, cases concerning persons not detained but in respect of whom the State had taken control, such as suicide of conscripts and transfer of elderly persons from one care home to another. However, Parkinson was authority for the proposition that healthcare deaths concerning errors of judgment and negligent coordination amongst healthcare professionals will not ordinarily trigger article 2. Moreover, the duty under Article 2 will not always be engaged by the death of a detainee or of a person in the care of the state.

The Court found the following principles to have emerged:

(a) Article 2

(1) First, in the absence of systemic or regulatory dysfunction, article 2 may be engaged by an individual’s death if the state had assumed responsibility for the individual’s welfare of safety.

(2) Secondly, in deciding whether the State has assumed responsibility for an individual’s safety, the Court will consider how close was its control over the individual.

(3) The touchstone is whether the circumstances of the case are such to call a state to account. In the absence of either systemic dysfunction arising from a regulatory failure or a relevant assumption of responsibility the state will not be held accountable under article 2.

(4) Where the state has assumed some degree of responsibility for the welfare of an individual who is subject to a DOLS but not imprisoned or placed in detention the line between state responsibility and individual actions will sometimes be a fine one. However, it is the function of the Coroner to draw it. This Court will not interfere save on grounds of irrationality or other error of law.

In this case such failings as there may have been were not capable of demonstrating systemic failure or dysfunction, rather they were attributable to individual actions and do not require the state to be called into account; each case turns on its facts.

On the facts of this case it was open to the Coroner to conclude that this was a medical case and that a jury could not safely find that Jackie died as a result of any actions or omissions for which the state would be responsible.

(b) Neglect

(1) The approach taken by the Coroner to the evidence could not be faulted. He considered all the relevant evidence that may point to neglect as individual acts as well as considering the potential for the cumulative effect of each of the individual acts;

(2) The Coroner concluded that there was no individual failing that could safely be said to be gross and the Court agreed with that assessment of the evidence.

Discussion

a) Article 2

Accordingly, notwithstanding lack of capacity, vulnerability, the existence of a DoLS, and allegations of systemic failures on the part of the various organisations, in the absence of systemic failures or an adequate assumption of responsibility, this was not sufficient to transform the death from a ‘hospital death’ (as defined in Parkinson) into an Article 2 death because the circumstances were not such as to call the State to account.

b) Neglect

Given that this was not the main issue argued by the family the Judgment in this respect is understandably brief. The Court considering HMC had appropriately considered both individual alleged failures and the aggregation of alleged failures across multiple organisations and decided that there was insufficient evidence to safely support leaving neglect to the Jury.

Conclusion:

Whilst providing welcome clarity on the issue of the extension of article 2 to natural causes, hospital deaths in cases of vulnerable, learning disabled adults it is clear that the Court were firmly of the view that each case must turn on its own facts and that the Coroner is best placed to determine where the line to be drawn falls.

(The decision is currently the subject of an application to appeal by the family and hence the matter may not yet be concluded).

Michelle Fanneran – Counsel for the 2nd IP (NWAS)
Ana Samuel – Counsel for the 3rd IP (Blackpool Teaching Hospital)

Being a figure in a statistic does not of itself prove causation

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“Being a figure in a statistic does not of itself prove causation” : The Queen (on the application of Paul Chidlow) and HM Senior Coroner for Blackpool and Fylde and (1) Chief Constable of Merseyside and (2) Northwest Ambulance Service [fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][2019] EWHC 581 (Admin)

Overview:

The issue before the divisional court on judicial review by the family of the deceased was whether the Coroner’s decision not to leave causation to the jury empaneled in an Article 2 inquest was lawful having regard to the Galbraith Plus test. Despite the involvement of a number of pathologists the cause of death remained unascertained. It was in the context of an unascertainable death that the Coroner had concerns about leaving causation to the jury, the second limb of Galbraith, namely whether it was safe to do so being the basis of his ruling. 

Instructed to provide expert evidence was a Consultant in Accident and Emergency, Dr. Andrews. Whilst initially tasked to look at the chance of survival had the deceased arrived at an A&E department, given the admission by NWAS that but for a coding error they would have arrived some 26 minutes earlier than they did, his focus shifted to whether the deceased would have survived had paramedics arrived either prior to cardiac arrest or immediately post cardiac arrest. Integral to the evidence he gave was the Denver study, which had looked at survivability in emergency situations in the US. The study evidenced an 80% survival rate for critically ill patients attended upon by paramedics prior to cardiac arrest post discharge from hospital.

The applicant contended that whilst there was no cause of death the post mortem had excluded various health problems such that Dr. Andrew’s did have sufficient information to be able to form a view as to the chance of survival based on individual characteristics as opposed to statistics alone coupled with his own expertise and experience.

Submissions made by the Coroner, as echoed on behalf of the Ambulance service, focused on statistical evidence being insufficient in the absence of being able to specifically tailor the same towards the characteristics of the individual and that, in the absence of a cause of death, it was not safe to ask the Jury to make a finding as to whether the Deceased would have fallen in the 20% or the 80% category. 

In a helpful Judgment for those specialising in both Coronial Law and Clinical Negligence the Court set out and affirmed case law supporting the Coroner and NWAS’s contention that statistical evidence alone was insufficient. Nevertheless, the Divisional Court took the view that Dr. Andrews based his evidence, that the deceased would have on balance survived with earlier paramedic attendance, on more than just statistical evidence. In addition to the Denver study he had relied upon a) his own expertise/experience b) his reading of the other medical evidence in particular findings that could be excluded from the post mortem evidence c) contemporaneous evidence as to the deceased’s condition from the police and ambulance service. Accordingly it was held that the Coroner erred in law and the matter was remitted for a fresh inquest.

Practical implications of this decision:

Many Coroners and medical experts instructed by Coroners have been quick to rely on statistical evidence alone. As such this is a welcome ruling clearly setting out the principle that more is required in order to establish causation or safely leave causation to a jury. 

Ana Samuel

(Complete Counsel) 

Counsel for the North West Ambulance Service.

Pro-Vide Law will be hosting a major conference on Epidemiology and Legal Causation on 11th July at Wadham College, Oxford . Further details will be published soon

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RSA v Bothnia – Conceding the Frame?

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Conceding the frame?

On 8th March, the Court of Appeal made an Order by Consent dismissing the Claimant’s Appeal against the judgment of His Honour Judge Brian Rawlings

(https://www.bailii.org/ew/cases/EWHC/QB/2018/1237.html).

The circumstances in which this Order was made are a little surprising in that on 7th February the Court of Appeal (Eleanor King, Simon, and Lindblom LJJ) had heard argument on the Appeal, with judgment reserved.  The Claimant’s decision to discontinue the Appeal without awaiting the judgment was realistic, but at one level unfortunate.  His Honour Judge Rawlings had granted permission to appeal on the Claimant’s application because he felt that guidance from the Court of Appeal was appropriate, as there was some controversy between authorities as to the issues in the case.  We discussed these issues and the judgment in an earlier piece (https://pro-vide-law.co.uk/rsa-v-generali-life-in-the-enclave/).  In particular, the case involved significant debate as to whether a claim for contribution as between insurers, following the decision of the Supreme Court in IEG v. Zurich, should be considered one for debt or damages.  If the claim was one for debt, then it would not come within the Civil Liability (Contribution) Act 1978 and therefore would not be subject to a two year limitation period.

Ironically, on the same day as the Court of Appeal heard argument in the RSA case, Mark Allen (the well known snooker player) landed in hot water by conceding a match-winning frame while there were still 11 red balls left on the table in the Snooker World Grand Prix.  Allen was subsequently fined and deserted by one of his sponsors. Whilst a similar approach in the Court of Appeal would result in all cases involving significant principle proceeding to a reasoned judgment, it is unlikely that Court of Appeal practice will be altered in this respect.

Therefore, whilst at one level the lack of any Court of Appeal authority on the issue is disappointing, nonetheless the decision of the Claimant to abandon their appeal after argument would make it very difficult for the point to be raised again. The Claimant’s essential argument was that the claim for contribution did not fall under the 1978 Act because the claim should be characterised as one in debt, which is specifically excluded from the operation of the Act.  Whilst there has been debate at both high judicial and high academic level as to the correct characterisation of the cause of action, ultimately, on careful analysis of the authorities, it appeared clear, as reflected in the judgment of His Honour Judge Brian Rawlings, that the action was one for damages and that there was no actual precedent for considering that a claim for contribution was an action in debt.  That an action for damages appears incongruous can be readily conceded but there is authority at House of Lords level indicating that a claim against an insurer under a liability insurance contract is one for unliquidated damages.  On the other hand, whilst the Claimants could point to analogous contracts such as a surety or guarantee which had been considered to give rise to a cause of action in debt, these were only analogies. There was no case in which a claim for indemnity under an insurance contract could be considered to be one of debt. In reality, the exclusion of debt from the operation of the 1978 Act only applied to cases of simple debt where the rules as to apportionment were well established and there was no need or justification for the judicial discretion under the Act.

The Claimants’ argument would also have produced a very anomalous position in relation to claims for contribution as between insurers.  On the basis that the 1978 Act did not apply, there would either be a six year limitation period, by analogy with the limitation period for contract under the Limitation Act 1939, or in the alternative no limitation period at all, but the possibility of the equitable defence of laches.  Such a result would be considered arcane in the context of the modern law. The two year period under the 1978 Act would be considered reasonable in circumstances in which the existence of the right to contribution would be known prior to the determination of the initial claim.

Therefore, whilst there is no Court of Appeal authority on this issue, it appears unlikely that any insurer will now attempt to rely upon a limitation period longer than two years.  In practical terms, waiting beyond the two year period would not be a risk that any insurer should entertain.

Michael Kent QC and Peter Houghton instructed by Steve Phillips, Plexus for Appellants and Charles Feeny instructed by Tony McDonach, Hill Dickinson, London for the Respondents. The name of the Respondent was changed in consequence of the acquisition of the relevant book by Bothnia International, a Compre managed company.[/fusion_builder_column][/fusion_builder_row][/fusion_builder_container]

IMMUNOTHERAPY COSTS: FINDING THE RIGHT REMEDY IN MEDICINE AND LAW?

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The proposition that a defendant or insurer liable for terminal illness should pay reasonable treatment costs which have a prospect of improving the victim’s length or quality of life would appear to be an unlikely source of controversy.  However, it is a testament to the enduring ability of mesothelioma claims to create forensic controversy that there is significant ongoing debate as to the best approach to a claim for immunotherapy costs.

The promising results of immunotherapy treatment have been a welcome success in the treatment of cancer and not just mesothelioma. It is likely that in the foreseeable future, additional immunotherapy treatments will be licensed on the NHS. In the meantime, the drugs are available on the private market but at a very considerable cost.

Innovative treatments in mesothelioma claims are not new, with claims for both chemotherapy and immunotherapy drugs at different points in time.  The reasonable requirement for proof of efficacy before acceptance by NICE inevitably creates a situation in which drugs are being used but not available on the NHS.  What perhaps has changed in recent months is that previously such claims were made in circumstances in which the victim was already undergoing private drug therapy or at least was being recommended for the same.  There has now developed an approach of advancing immunotherapy claims in seemingly every living mesothelioma claim, often with no concrete evidence of the likelihood of the treatment. Therefore the claim is being advanced on what is not unfairly described as a wholly speculative basis. This is against a background where claimants’ solicitors appear to be advertising the ability to pursue such claims on their websites which inevitably is putting pressure on all firms advising claimants to offer the same.  Medical reports are served simply describing the availability of such treatment and indicating that the claimant in question may ultimately be suitable for treatment.

Understandably, insurers have been reluctant to date to contest such a claim in court in particular given the emotive nature of the claim and the undoubted acceptance that if the claimant is suitable, with the treatment being recommended, then the cost of it will reasonably be paid by the defendant.  However, it is reasonable in terms of assessing how such claims should be managed to consider what likely order a court could make should a claim be contested at assessment of damages.  The following alternatives appear to be relevant:

  1. The court could make an order for immediate damages on the basis of the cost of future treatment. This would be on a contingent basis as reflected by the approach of Sir Robert Nelson in the case of XX v Whittington Hospitals[fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][2017] EWHC 2318 (QB).  In that case, faced with a long list of possible future treatments for a claimant, Sir Robert Nelson considered in relation to each aspect of the treatment whether and to what extent the same would likely result in loss by way of expenditure to the claimant. In undertaking this exercise, the judge had regard to the availability of such treatment on the NHS. He took into account that if equivalent treatment were available on the NHS, the claimant would have been unlikely to elect to incur the cost of private treatment. This was essentially a contingent approach.  However, there appears to be a fundamental objection to such an approach in immunotherapy claims as now being presented which is that the prospect of the same is so speculative that it cannot form the basis of loss. This is evidenced by the fact that the court could not make any realistic assessment of the likelihood of the claimant requiring treatment or the cost of the same. The legal test which correlates ‘substantial’ with ‘capable of evaluation’ was succinctly stated by Lord Reid in Davies v Taylor [1974] A.C. 207at 212: “To my mind the issue and the sole issue is whether that chance or probability was substantial. If it was it must be evaluated. If it was a mere possibility it must be ignored. Many different words could be and have been used to indicate the dividing line. I can think of none better than “substantial,” on the one hand, or “speculative” on the other.” From a defendant’s perspective, assessment on a contingent basis would be very unsatisfactory as it would almost inevitably result, in many cases, in a significant over-compensation of the claimant.  It can be anticipated that in most cases of this nature the claimant will not in fact proceed to immunotherapy. The claimant may die before the treatment is considered. When the treatment is considered the claimant may not be in a fit state to receive it. The treatment may simply not be recommended in his case by a treating clinician.  Whilst the defendants would have good legal reasons for resisting an award, the risks in relation to the same are evident given the courts’ expected reluctance to undercompensate a claimant for life prolonging treatment.
  2. The court could be invited to make an order for the payment of damages by periodical payments. Such orders have been the subject of consent, but there is no indication that such an order has been made at a contested hearing. Considering the court’s powers to make an award for periodical payments, it is apparent that immunotherapy claims will not fit within the relevant framework. Periodical payments still involve an assessment of the relevant head of loss but provide an alternative by way of paying the damages through regular payments as opposed to on a ‘once and for all’ basis.  However, under the Damages Act 1996, the amount of the payments must be fixed, as must be the intervals of payment.  In the case of AA v CC (2013) EWHC 3679 (QB), the court confirmed that payments could not be made on the basis of uncertain dates.  Whilst variation of a periodical payment is possible, only one such application can be made. There are therefore good grounds for resisting any application for damages to be paid by way of periodical payments.  In reality, the orders which have been agreed to date are indemnities by another name.
  3. An indemnity in respect of future costs seems the most obvious and indeed attractive solution for all parties.It appears to be accepted that a court cannot in a personal injury action order an indemnity as a form of relief. However, it is not clear how and why this consensus has emerged. An indemnity is established as a remedy in the Chancery Division. With the Judicature Acts 1873 and 1875 fusing the courts of equity and law together, remedies that were formerly available in only one could now be pursued in any action. The basis upon which an indemnity cannot be awarded as a remedy in a personal injury action appears therefore to be simply that it has not been done so to date.[1]Despite the questionable consensus on the court’s inability to order an indemnity without consent, it is of course appropriate and indeed, in most cases, the best approach for a defendant to make an offer of an indemnity.  The issue here from a defendant’s perspective is to ensure that the terms of the indemnity reasonably protect the defendant’s interests, in particular in relation to the reasonableness of treatment.  The usual requirements would be for the claimant to be assessed as being fit for such treatment, that the same is assessed by an appropriate consultant as having at least some reasonable prospect of success, and that the progress of the treatment is subject to regular review.  Whilst claimants may be resistant to such terms being incorporated into an agreed indemnity, the same do reasonably reflect the legal entitlement to the cost of future treatment.  It does not appear there is at present any alternative market for immunotherapy drugs. There have however been examples in mesothelioma litigation of experimental treatments or surgery, in particular in the United States of America. Where no reasonable prospect of benefit from such treatment or surgery can be demonstrated, defendants have reasonably objected to paying for the same.
  4. If a reasonable indemnity can be agreed, then the rest of the action can be dealt with either by agreement as to all other heads or by the continuance of interim payments until the treatment has been ruled out or concluded. Given that practically all mesothelioma claims settle on quantum and given that there is economic advantage usually in settling with a living claimant, defendants would be best advised to proceed on the basis of an agreed award with an additional indemnity.

The question that can now be reasonably be asked is that if a defendant offers an indemnity but a claimant refuses to accept it, whether the defendant should seek to defend the claim in accordance with the position as set out above in relation to contingent damages and periodical payments.  Accepting that there is an element of risk in such an approach, if the indemnity is thought to be appropriate and consistent with the legal basis of assessment for future loss, then there would be clear advantage to defendants and insurers in establishing a position where a claimant would have to accept such an indemnity as opposed to proceeding to attempting to achieve some remedy through the court. The defendant’s arguments as to the inappropriateness of contingent damages and periodical payments would of course be much more attractive in the context of an offer of an apparently reasonable indemnity.  Indeed against this background, it could be argued that the claimant in fact suffers no prospect of future loss given the offer of indemnity.

In any event, it is clearly in the interests of all victims for a simple and common sense approach to be taken to this issue as opposed to introducing unnecessary complication which can only serve to increase legal costs and cause delay.

[1]As A. P. Herbert’s Lord Mildew astutely observed in ‘Doggett v. Port of London Authority’: “There is no precedent for anything until it is done for the first time.”[/fusion_builder_column][/fusion_builder_row][/fusion_builder_container]

RSA v GENERALI – LIFE IN THE ENCLAVE?

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HHJ Brian Rawlings on 15thMay 2018 handed down judgement in this case. Michael Kent QC and Peter Houghton instructed by Plexus appeared for the Claimant; Charles Feeny, instructed by Hill Dickinson appeared for the Defendant.  Mr Merritt worked for a painting and decorating company (Alick Whittle Limited) between 1975 and 1985, during which time he was exposed to asbestos and subsequently developed Mesothelioma. RSA provided employers’ liability insurance during the last 6 months of his employment, and thereby, by virtue of the Compensation Act 2006, were liable for the whole of his claim. As they were unable to locate any of the other insurers when Mr Merritt first brought his claim, RSA settled for a figure net of already paid benefits (£23,660.60 paid to CRU) of £124,255.40 plus £25,825.85 legal costs. Once the employers liability insurance tracing office was set up RSA were able to trace two other insurers that provided policies during the relevant employment period, and they sought “equitable contribution” from both. One, Aviva, provided this in line with the division of liability set out by RSA (corresponding to the percentage proportion of the total employment time) whereas the Defendant insurer refused to do so, claiming that their contribution claim was statute barred by Section 10 (1) Limitation Act 1980.

Key Issues:

HHJ Brian Rawlings set out the agreed position of the parties that: In order for Section 10 (1) Limitation Act (providing a two-year limit on claims, which was long passed in this case) to take effect, it was necessary to show that the claim RSA made against Generali was one covered by Section 1 (1) of the Civil Liability (Contribution) Act 1978. It was agreed by the parties that the answer was determined by the associated question of whether the indemnity provided by RSA to Alick Whittle Limited sounded in debt or damages.

This position is predicated on the Law Commission Report, which gave rise to the Civil Liability (Contribution) Act, which notes the following:

  1. At paragraph 28: “However, we criticised the equitable rules for being insufficiently flexible where the persons concerned were jointly liable in damages. Our point, and it won almost unanimous support, was that the 1935 Act improved on the common law not only by allowing contribution proceedings between tortfeasor’s but also by requiring the court to allow D2 to pay such contribution “as may be just and equitable having regard to that person’s responsibility for the damage”. The significance of this requirement is that where D2 is more to blame for the damage than D1 he may, under the 1935 Act, be ordered to pay more by way of contribution. Equitable rules on the other hand provide that the loss is to be shared equally between D1 and D2 even where D2 is more to blame than D1, unless the balance of responsibility is so heavily tipped against D2 that complete indemnity is justified. This would mean that, in contribution proceedings between persons jointly liable in damagesfor breach of contract, the courts power to divide the damages justly and equitably, having regard to the responsibility of each for the damage, would no longer be fettered by the existing rules.” (emphasis added)
  2. At paragraph 29: “It has been said that the existing rules can work unfairly in contribution proceedings between persons jointly liable for the same debt, for example between persons liable as partners, joint tenants or joint guarantors. The existing rules generally result in persons who are equally liable having to bear an equal share, without regard to the part they played in incurring the debt or the benefit, if any, that they derived under the agreement…. Our conclusion, so far as joint debtsare concerned, is that it is more important that the rule should be reasonably certain than that the court should have a wide discretion to redistribute the burden of each and every joint debt according to the general merits of the particular case. We accordingly make no recommendationfor changing the existing law of contribution as it applies to joint debts.” (emphasis added)

This issue was considered obiter by two Supreme Court judges, Lords Mance and Sumption in International Energy Group Limited v Zürich Insurance UK Branch[fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][2015] UKSC 33; who came to opposite conclusions.

Lord Mance refers to the works of Colinvaux & Mirkin’s[i]and Charles Mitchell[ii]noting that they “suggest that it turns on whether liability under an indemnity insurance is regarded as “the right to be indemnified by a payment of money” or is, under a view which the authors suggest that the cases favour, regarded as arising from breach of an undertaking to prevent the insured risk from materialising…” He goes on to state that “It suffices to say that, if insurance contract liabilities are viewed as sounding in damages, it appears somewhat surprising if the 1978 Act could operate as an alternative statutory remedy with different effect in a case of true double insurance in respect of post–commencement liabilities.”

Lord Sumption states that “A contract of indemnity gives rise to an action for unliquidated damages, arising from the failure of the indemnifier to prevent the indemnified person from suffering damage, for example in a liability policy by having to pay the third party claimant” and refers to the case of Firma C-Trade SA v Newcastle Protection and Indemnity Association[iii]as supporting this conclusion. He added that: “The class of persons “liable in respect of any damage suffered by another” [the requirement of Section 1(1) Civil Liability (Contribution) Act 1978] may include those liable in contract, and there is no reason to limit it to those who have themselves caused the damage, as opposed to those who have assumed a contractual liability in respect of it.”

It was also argued in the alternative for the Defendant that RSA should be put to proof on the reasonableness of the settlement.

Judgement:

HHJ Brian Rawlings made clear that he did not consider it necessary as such to choose between the positions of Lords Mance and Sumption as set out above. He considered the fact that the statements were obiter, and were expressly acknowledged by both judges not to be determinative. In light particularly of the lack of submissions and evidence on the point provided to them, he need not be bound by either position.

Instead he took the view that a number of cases referred to in Goff & Jones’ ‘The law of Unjust Enrichment’[iv]provided binding authority for the proposition that an indemnity provided by insurers sounds in damages rather than in debt. His consideration of the case law is summarised here:

In Farnley v Dominion Insurance Co Limited[v]Mr Justice Donaldson, at page 936 said “… All actions against insurers under an indemnity policy sound in unliquidated damages rather than debt (see Jabbour v Custodians of Israeli Absentee Property[1954] 1 WLR page 139, 143 seq. and the cases cited)”. HHJ Brian Rawlings noted from this both that Donaldson J confirmed that “all actions against insurers under indemnity policies sound in unliquidated damages rather than debt” and that it formed part of the ratio of his decision. He notes that the same is true of Mr Justice Donaldson in the case of Edmonds Lloyds italica & L’ Aancora Compagnia di Assicurazione e Riassicurazione S.P.A[vi]

In the Jabbour case referred to by Mr Justice Donaldson in Farnley: ‘an English insurance company agreed to indemnify the plaintiff against loss in relation to a garage owned by the plaintiff in Haifa. The garage was blown up in a riot and the plaintiff left Palestine and went to Egypt. Under emergency regulations passed in December 1948, a custodian was appointed to all property belonging to “absentees” who had gone inter alia to Egypt, requiring that such property be delivered up to the custodian. The question was whether the plaintiff or the custodian was entitled to a payment from the insurance company.’

Mr Justice Pearson said in that case that: “it is established by many decided cases that such a claim is a claim for unliquidated damages……But the word “Damages” is puzzling and seems to be used in a rather unusual sense, because the right to indemnity arises, not by reason of any wrongful act or omission on the part of insurer (who did not promise that the loss would not happen or that he would prevent it) but only under his promise to indemnify the insured in the event of a loss.… The explanation of the use of the expression “unliquidated damages” to describe a claim for an indemnity under an insurance policy may be wholly or partly afforded by the old form of pleading in assumpsit, alleging a breach by non—payment, as in Castelli’s v Boddington.” Mr Justice Pearson went on to note that the claim for an indemnity under an insurance policy cannot be the subject matter of a garnishee order but was a chose an action that could be assigned. Thereafter Pearson J proceeded upon the basis that the claim under the insurance policy was a chose in action and not a debt, in determining the case.

HHJ Brian Rawlings notes thereby that “[w]hilst Pearson J did describe the use of the word “damages”, in connection with an insurers indemnity, as being used, in an unusual sense in that the indemnity did not, in his view, involve a promise by the insurer that the loss would not happen or that the insurer would prevent it, he nonetheless proceeded upon the basis, following the authorities to which he referred, that the claim was one in damages (a chose in action) and not in debt… However, in spite of that difference, in the analysis of the insurers promise, Pearson J’s judgement confirms that, based on the authorities to which he refers, the indemnity under an insurance contract is a Damages Indemnity Liability and not a Debt Indemnity Liability.”

The Judge thereby considered himself bound by the proposition that the liability of RSA to the Alick Whittle Limited is a liability sounding in damages rather than debt. It followed that RSA’s right of contribution from the Defendant falls within the Section 1 of 1978 Act (as agreed by the parties) and that it is therefore statute barred for the lapsing of the time limit in Section 10(1) of the Limitation Act 1980.

Though he acknowledged it was not strictly necessary to decide the point, he rejected the claim that RSA would have to be put to proof as to the reasonableness of their settlement with Mr Merritt for the following reasons:

  1. He considered that the position of Lord Mance in IEG that apportioned liability not equally among insurers (as is usual) but in line with the percentage of time of exposure – owing to the unique nature of a “Fairchild” claim of this sort – was not advocating a broader ‘equitable’ approach. Rather it was a constrained expansion of the normal rules to accord with the nature of the exceptional claim.
  2. He further stated that to permit such an expansion would produce highly undesirable uncertainty, which would lead to an increase in litigation as contribution would be disputed in almost every case of this kind.

KEY POINTS

On the basis of this judgment:

  1. Claims of contribution between insurers are subject to the Civil Liability (Contribution) Act and therefore a 2 year limitation period under Section 10 of the Limitation Act 1980.
  2. Claims will be assessed on a time exposed basis equivalent to that under Section 3 of the Compensation Act 2006.

Charles Feeny comments

“The forms of action we have buried, but they still rule us from their graves.”

Maitland, the Forms of Action at Common Law (1909).

In this case, the essential question was a simple one; in a claim for contribution between insurers, should the limitation period be six years or two years from the date of judgment or settlement?  Viewed as a simple question, there would be a very simple answer. That is that there is no justification for a period of longer than two years where the claim for contribution would have been known about and could have been brought prior to the judgment or settlement and where the Defendant will in the vast preponderance of cases be legally represented and most likely a corporate or insurer Defendant. To permit a period of six years in such circumstances would be an excessive indulgence inconsistent with the reasonable objective of promoting expedition in the resolution of legal disputes.

However, in answering this question, the Judge had to delve through much historical authority and in particular consider whether the claim for contribution was in debt or for damages, a distinction which is now almost entirely historic in the law. Whilst the Law Commission did decide that debt should not be brought under the Civil Liability (Contribution) Act 1978 because there was no justification for any judicial approach to apportionment of debt, there is no reason why such proceedings for contribution in debt should not equally have been subject to a two year limitation period.

The dangers of creating or protecting enclaves in the law were emphasised by Lord Rodger in Barker v Corus.  Ironically, Lord Rodger had been one of the procreators of the best known example, the Fairchild enclave.  Creating a special rule of causation to deal with the specific problem in mesothelioma claims inevitably created anomalies and tensions in analogous and related areas of the law.  With hindsight, it might have been thought that the Court of Appeal’s approach, much derided at the time suggesting that the answer lay in statute, would have been the wiser course.  Inevitably, further litigation followed from Fairchild and by the time of their decision in Sienkiewicz v Greif, the Supreme Court were in the words of one wry, if slightly unkind ,solicitor in danger of disappearing up their own enclave.

An enclave can be defined as “a place or group that is different in character from that which surrounds it.”  In these circumstances, it is reasonable to consider that insurance law is something of an enclave. Again, rather than adopting simple and pragmatic solutions to issues arising in the current state of litigation, the courts have looked back into the history of insurance and sought to apply this in what has become an increasingly strained way.  Whilst those steeped in insurance law no doubt have some great sentimental attachment to it and would not wish to see its more precious principles abandoned, the irony is that the ultimate outcome is very little different from that which would be achieved had a much more straightforward, indeed arguably simplistic, approach been taken.  There is ultimately little difference between deciding what appears to be fair and reasonable in the current commercial context from relying upon the “broad principles of equity”.  Similar comments could be made about litigation involving commercial contracts which centre upon detailed arguments about the construction of language which was probably not read by most of those involved in the formation of the contract and certainly not considered in the degree of detail which is thought appropriate for the purposes of resolving litigation.  The digital world is creating a different commercial environment with an emphasis on speed and informality in business dealings.  If the law is to be of value in this new commercial world, then the law itself will need to adapt and to offer the kind of swift and decisive problem solving which fits with the business practices of the litigants.

Download judgment

[i]Insurance contract law (loose leaf ed), para C-0643

[ii]Law of Contribution and Reimbursement (2003), paras 4.13 and 4.43-4.44

[iii][1991] AC 1, 34 (Lord Goff of Chieveley)

[iv]9th edition paragraph 19 – 34

[v][1969] 1 Lloyds reports page 502

[vi][1986] 1 WLR 402[/fusion_builder_column][/fusion_builder_row][/fusion_builder_container]

BUSSEY v ANGLIA HEATING: COURT OF APPEAL REJECTS CLAIMANT’S PER INCURIAM ARGUMENT

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The original article can be found here

On 22 February ,the Court of Appeal handed down judgment in the case of Bussey v Anglia Heating. The primary focus of the Claimant’s Appeal had been that the earlier decision of the Court of Appeal in Williams v The University of Birmingham was per incuriam and therefore should not have been followed by His Honour Judge Yelton at first instance.

Mr Bussey had been employed by the Defendants as a domestic plumber in the 1960s. He made occasional and limited use of asbestos products, in particular asbestos cement flue pipes and asbestos rope. His Honour Judge Yelton found at trial that Mr Bussey had been exposed to asbestos dust for up to one hour every two to three weeks. The Claimant at trial advanced a case that the exposures would have exceeded the levels in the subsequently published guidance provided by the Factories Inspectorate in TDN13 of 1969. On assessment of the expert evidence, the Judge found that the levels were below those specified in TDN13 of 1969.

In Williams v The University of Birmingham, the Court of Appeal held that because the exposure levels had not exceeded those in TDN13 of 1969 the Claimant had not proved that such exposure gave rise to a reasonably foreseeable risk of injury. In Bussey, the Claimant appeared to accept that the decision in Williams v The University of Birmingham was an insuperable bar to the Claimant succeeding if as found by the Judge the exposure levels did not exceed those in TDN13 of 1969. The argument was put on the basis that if Williams v The University of Birmingham was binding on the Judge then the Judge could only reach a different conclusion if he concluded that Williams v The University of Birmingham was reached per incuriam. The per incuriam argument was centred on the proposition that the well known cases of Maguire and Jeromson, which reference a duty to reduce asbestos exposure to the lowest level reasonably practicable, were not cited in Williams. The Claimant’s contention was that if these authorities had been cited a different result would have been reached in the Williams case.

The Court of Appeal in Bussey did not accept that Williams was wrongly decided either in law or fact. In summary, Lord Justice Jackson considered the decision could only be criticised, probably unfairly on his analysis, to the extent that it has been treated as giving rise to the use of TDN13 of 1969 as a “bright white line” in determining the level at which asbestos exposure would give rise to a reasonably foreseeable risk of injury during the currency of TDN13 of 1969.

The position Lord Justice Jackson pointed out was more nuanced and each case was to an extent fact sensitive. Lord Justice Jackson’s view was that if Jeromson and Maguire had been cited in Williams, this would only have made a difference to the extent that Lord Justice Aikens, who gave the leading judgment in Williams, would not have indicated that TDN13 of 1969 represented a bright white line (assuming Lord Justice Aikens did so which Lord Justice Jackson questioned was the case).

His Honour Judge Yelton did not accept the Claimant’s argument that Williams was decided per incuriam. He therefore found that Williams was binding which made it impossible to find for the Claimant on the facts of the Bussey case. The Court of Appeal considered that the Judge fell into error in this respect and that he was (to paraphrase) distracted from the real issue which was whether the Claimant could prove on all the available evidence that a reasonably foreseeable risk of injury had been established from the findings made in relation to Mr Bussey’s exposure in the mid to late 1960s. The case was remitted for further consideration by His Honour Judge Yelton in relation to this issue.

Lord Justice Underhill in his judgment separated out the two elements of proof of negligence which are relevant for consideration in this context. The Claimant must first prove that the Defendants knew or ought to have known of a reasonably foreseeable risk of injury and if this is proved that the Defendants failed to take reasonable steps in relation to that risk. The comments in Jeromson and Maguire against this background can reasonably be understood to relate to the second aspect, namely, what steps ought to have been taken. The Claimant’s argument involves conflating two separate aspects of proof of negligence so as to establish reasonable foreseeability of injury by a failure to take steps to avoid the injury. However ,a duty to take steps in respect of a risk can only arise once there has been a finding that the Defendants ought reasonably to have been aware of the relevant risk. As pointed out by Lord Justice Underhill, it will be very difficult for a defendant to argue once reasonable foreseeability of risk of injury from asbestos exposure is established that it was reasonable to limit the steps to be taken in respect of that exposure. The comments in Jeromson and Maguire can reasonably be understood in relation to this proposition. Indeed there is no case nor is there likely to be where a defendant would succeed in arguing that a failure to take steps in relation to exposure was acceptable when reasonable foreseeability of risk had been proved in respect of that exposure.

The Claimant’s arguments also involve conflating two separate propositions, namely, that in the 1960s the safe limit of exposure to asbestos was not known with the proposition that no safe limit existed. Whilst superficially similar, these propositions are radically different in implication. If no safe limit existed then, as now, all exposure should be avoided but analysis of the history of the development of knowledge in relation to asbestos exposure shows that low level exposures were accepted through the 1960s and into the 1970s and early 1980s. As Lord Justice Underhill points out, consideration will have to be given at the remitted hearing as to whether there were levels of exposure at which these Defendants, given the nature of their business and the information available to them, would not have appreciated that there was a reasonably foreseeable risk of injury.

Against this background, whilst the decision of the Court of Appeal in Bussey will not entitle a defendant to rely upon TDN13 as (to quote Lord Justice Jackson) a universal yard stick by which to determine foreseeability of asbestos related injury, the fact that Williams has been held to be correctly decided will nonetheless be relevant to many cases.

The remitted hearing will no doubt be informative on these issues and given the emphasis on a nuanced approach, decisions in other cases will similarly take this debate forward.

>> Click here for full Judgment

This article has been jointly written by Damon Burt and Charles Feeny.

XX V WHITTINGTON – Knowing when to return?

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Sir Robert Nelson on 18th September handed down judgement in this case. Claire Watson instructed by Irwin Mitchell LLP appeared for the Claimant; Charles Feeny, instructed by Bevan Brittan LLP appeared for the Defendant.  XX attended smear tests administered by doctors working for the Defendant in 2008 and 2012, and subsequently attended biopsies in 2012 and 2013. Through negligence, the claimant’s cervical cancer was not detected on these occasions, and the consequently delayed treatment led to a number of seriously adverse effects. Some of these effects occurred whilst the cancer remained undiagnosed, and others as a direct result of the treatment. These effects are summarised at paragraph 18 of the judgement:

“a) The development of invasive Stage 11B cancer, which necessitated surgery to remove her lymph nodes and transpose her ovaries, and chemo-radiotherapy.

b) The complete loss of fertility where XX has no children but had always wanted to found a family of her own.

c) Radiation induced bladder injury leading to urinary urgency, urinary frequency, excessive night time urination (nocturia) painful urination (dysuria), blood in her urine (haematuria) and urge incontinence for which she wears pads.

d) Radiation induced pelvic pain.

e) Radiation induced bowel injury: radiation proctitis, functional diarrhoea and bile salt malabsorption causing bowel frequency and urgency, loose stools and occasional incontinence.

f) Vaginal stenosis and impairment of sexual function.

g) A constant heavy feeling in both legs with pins and needles, which interferes with her sleep at night.

h) Loss of hormone production leading to premature menopause.

i) Anxiety and depression associated with the diagnosis of cancer, the radiation induced injuries to her bowel, bladder and vagina and her inability to conceive or carry a pregnancy.

j) The risk of recurrence of cancer and the associated fear of the same.”

Key Issues:

The principal issue that has attracted attention in this case concerns surrogacy arrangements. The claimant gave significant evidence as to her extreme desire for children, particularly of her own. She claimed that she intended to seek to use the system of commercial surrogacy in California, given its administrative advantages to that in the UK – where such commercial arrangements remain illegal – but that she would be prepared to seek a solution here, if her initial plans failed. The question arising from this is the correct approach to take towards claiming the costs of these options, given the state of domestic law on the subject.

Sir Robert Nelson set out some further legal and factual background; notably the case of Briody v St Helens and Knowsley Area Health Authority (2002) QB 856. This case concerned Ms. Briody, who similarly sought to recover the costs of a surrogacy arrangement based in California (with her own eggs) or alternatively using donor eggs in the UK. The Court of Appeal rejected the claim on the basis that the Californian arrangement was illegal in the UK and the chances of success were miniscule (around 1%). Sir Robert Nelson noted that the use of donor eggs would have been rejected as it did not make up for what she had lost (a child of her own). He also noted Lady Justice Hale’s opinion that the Californian arrangement was contrary to public policy ‘clearly established by legislation’, but also that the question of recovering the cost of surrogacy in the UK, compliant with domestic law and using the mother’s own eggs, was left open – albeit with Lady Justice Hale commenting that she saw such a claim as ‘a step too far’.

Aside from the direct surrogacy point, three further notable issues arose:

  • The availability of provisional damages for a (further or repeated) deterioration of psychiatric condition following an ultimately failed surrogacy strategy.

In particular, the loss of fertility was of concern during her treatment and was noted to have been a significant cause of the psychiatric conditions for which she was treated. Dr. Gessler, who had treated XX previously and gave an opinion in this case, was clear that a potential risk of psychiatric deterioration was present in the event that her attempts at surrogacy proved unsuccessful. The evidence of Dr. Gessler was of a 30-40% chance of a ‘catastrophic’ response to a failed surrogacy, which would be likely to require one year’s (45 sessions) treatment.

  • The applicability of a ‘multiplier/multiplicand’ approach under the Ogden Tables to the claimant’s position.

The claimant works as a manager at a Neal Yard Remedies store in London, and despite some recent instances of time off in connection with her condition, she was recently promoted (albeit that she then had to decline a further offer of promotion due to her difficulties). She is working in the same employment, at the same hours and now at an increased level of pay.

  • The availability of costs based upon recourse to private medical treatment where the NHS has proved insufficient.

Judgement:

Sir Robert Nelson decided that, in relation to the claim for costs of surrogacy in California, he was still bound by Briody. He expounded that regardless of the location of the contract, the arrangement is illegal under UK law and cannot therefore ground a claim for expenses – including those which would be “reasonable” under the UK system – as the entire contract is contrary to public policy. The judge stated that the changes in legislation since Briody did not alter this point, since they do not render the contract in question legal; any reference to cases in Family Courts surrounding parental orders did not alter this position, which was determinative. Sir Robert Nelson was, however, prepared to accept that attitudes may well have changed, but that he was bound by the decision in Briody. It was for Parliament, or possibly the Supreme Court to change the law, if that was appropriate..

In relation to the claim for the costs of a UK arrangement, Sir Robert Nelson came to a different view. He noted that such an arrangement was neither illegal nor contrary to public policy, and that it was difficult to see, where prospects of success were reasonable, and especially in light of the claimant’s particular efforts to delay her treatment and freeze her eggs, allowing such a claim should constitute a “step too far.” He therefore allowed the claim for two surrogacies (based upon a balance of probabilities assessment of the success of such by both sides’ experts) at £37,000 each. The judge did also note that he was still bound by Briody in relation to a claim based upon the use of donor eggs; on the basis (as noted) that it was not restorative of the actual loss.

Sir Robert Nelson set out the threefold test for provisional damages: whether the risk is real rather than fanciful; whether the deterioration will be serious; and whether the case is a proper one to depart from the normal rules. Whilst he found no problem satisfying the first element, he found that whilst not insubstantial, the ability to cure within a year’s treatment did not qualify this particular instance as ‘serious’, and that this was not a case where the normal rules should be displaced.

The judge noted both that XX was in nearly identical employment to before the accident, and yet had had to turn down a further promotion, and considered that this was sufficient to be considered disabled under the Ogden Tables’ definition. However, the judge accepted that he should follow the approach of the Court of Appeal in Billett v Ministry of Defence (2015) EWCA Civ 773, in applying the ‘Smith v Manchester approach’ of broad assessment. He echoed the sentiment in Billett that a multiplier approach may produce “hopelessly unrealistic” results. He therefore assessed the loss of future earnings at 4 years, to reflect the difficulties she would face on the labour market were she to need to find alternative employment.

In assessing the claim for supply of one drug in particular (Cholestagel), whilst Sir Robert Nelson did find the claimed figure excessive, he did make some allowance for the fact that whilst generally available, restrictions on supply via the NHS were sufficient to allow for some amount to cover the contingency of seeking private replacements. Where treatment was acknowledged to be unavailable via the NHS, private treatment was permitted to be claimed in a handful of other examples of required future treatments.

Charles Feeny’s comments

The award of damages for surrogacy costs, albeit on a limited basis and subject to proof of reasonable prospects, will no doubt be considered the most significant feature of this case.  Given the possibility of the issues being considered on appeal in this context, it would be inappropriate to say too much at this stage.

However, the judgment is interesting for a number of other reasons reflecting the breadth of the dispute between the parties and with the Judge having to resolve issues which are regularly discussed in personal injury claims, but not necessarily subject to many judicial decisions.

Provisional Damages

  • The medical evidence established that the Claimant had significant risks in relation to radiation enteritis and further psychological damage.  Sir Robert Nelson took what might be described as a conventional approach to the question of whether these risks should be subject to an award for the payment of provisional damages and if so, on what terms.  The analysis of Sir Robert Nelson, in particular at paragraph 29 of the judgment, referred to the well-known authorities on whether a risk is appropriate for the payment of provisional damages; in particular Wilson v Ministry of Defence [fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][1991] 1 All ER 638.  The Judge considered that provisional damages should be awarded only where, to paraphrase, there was evidence of a clear, severable, and serious risk of further injury.
  • Against this background, whilst the Judge recognised that the risk of further psychological injury was real and of a serious nature, he did not consider that it was sufficiently serious to justify an award for the payment of provisional damages.  He indicated that such award should only be made in “rare” cases.  This is consistent with a judicial approach which represents a substantial policy element in only awarding provisional damages where there is a risk of serious injustice if such an award is not made.  It could be considered that an award for provisional damages should only be made where there is a clear indication that a contingent award could grossly under-compensate the Claimant.
  • Similarly, in relation to radiation enteritis; whilst Sir Robert Nelson was prepared to make a provisional award, the actual award made as agreed between the parties did not simply relate to radiation enteritis, but was restricted to radiation enteritis “causing intestinal failure and requiring Home Parenteral Nutrition (HPN)”.  The Claimant was at risk of radiation enteritis falling short of its most severe form, but it was agreed that an order for the payment of provisional damages should only be made in respect of the worst possible outcome.
  • A Defendant would ordinarily seek to restrict an order for provisional damages to the highest level of additional injury so as to reduce the possibility of a Claimant returning.  What is not always appreciated is that a Claimant is often best advised to take this approach.  By virtue of CPR 41.3(2), a Claimant is entitled to return only once for further damages.  If the Claimant exercises a right to return in circumstances in which there has been deterioration, but there still remains scope for further deterioration, the Claimant might be facing the very problem the provisional damages are intended to avoid; the Claimant might still have to seek damages for the worst possible outcome on a contingent basis.  This would occur in situations in which the Claimant had deteriorated but the final prognosis was still uncertain.
  • What also perhaps is overlooked in this context is that the Claimant still remains entitled to damages on a contingent basis up to the level of deterioration which would trigger the Claimant’s entitlement to further damages.  This is reflected in the present case in paragraph 75 of the judgment, where the Judge made an award for future radiation enteritis notwithstanding that radiation enteritis was subject to an order for the payment of provisional damages.

Loss of Earnings

  • Following Billett v The Ministry of Defence [2015] EWCA Civ 773, this is another case where a Judge has found that a Claimant was disabled for the purposes of the Equality Act 2010 and the Ogden Tables, but deviated very substantially from the award which would have been appropriate had the Ogden Tables been followed without any adjustment.  Sir Robert Nelson based his award substantially upon an assessment of the Claimant herself, who despite her ongoing symptoms, had managed to maintain employment and indeed been promoted.  The Judge’s clear view was to make this independently assessed award since the Ogden Tables would produce a sum greatly in excess of the Claimant’s likely loss of earnings.
  • It might be argued that the Judiciary are now reverting to type, notwithstanding the information available to them in the Ogden Tables and the supporting research.  However, it is probably more realistic to look at this situation as emphasising what is perhaps now a recurrent issue in personal injury litigation; that is the application of statistical evidence to an individual case.  The definition of disability is very broad and encompasses a wide range of presentations.  Clearly, there are some disabilities with which a person could not reasonably cope in the labour market, whereas, as with this Claimant, there are those who are disabled but have the fortitude and determination to cope with this disability.  Against this background, whilst the Ogden Tables and the underlying research provide useful background information in relation to the issue of loss of earnings, ultimately the formulaic approach cannot replace the value of a judicial assessment, considering the Claimant and all her circumstances.

Costs of Treatment

  • The Claimant sought a wide range of expensive drugs and treatment, notwithstanding that her engagement with such drugs and treatment to date had been very limited and notwithstanding that many of the items sought were available on the NHS.  The Schedule was characteristically presented on the basis of a reasonable requirement for such drugs and treatment, largely on the basis of expert evidence suggesting that such drugs and treatment would be appropriate.  The Defendant’s position was that the Claimant must not only prove that the drugs and treatment amounted to a reasonable requirement, but that in probability she would incur the expenditure claimed in the respects set out in her Schedule.  The Judge accepted the Defendant’s basic approach and had to make substantially speculative judgments as to the extent to which the Claimant would engage with the drugs and treatment claimed.  Against this background, the Judge took an inevitably cautious approach in relation to the assessment of these heads of damage.  From a Claimant perspective, the case perhaps emphasises the value of having an established position or regime at the time of assessment, as opposed to seeking damages in respect of such expenditure on the basis that it is likely in the future.

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WHEATCROFT v BRINE – Liability to ‘smartphone zombies’?

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His Honour Judge Main QC on 11th May 2017 handed down judgement in this case at Manchester County Court. David Sandiford, instructed by Irwin Mitchell, appeared for the Claimant; Charles Feeney, instructed by Keoghs, appeared for the Defendant. At approximately 12.10 pm on 24th December 2013 Ms. Chloe Wheatcroft, the then 14-year old Claimant, was involved in a road traffic accident with a van driven by the Defendant Mr. Brine. The Claimant attempted to cross the road between two cars that were stationary in traffic at a set of lights. At the time of the collision, the Defendant was driving slowly to the right of the stationary cars, positioning himself to join the traffic preparing to turn right at the lights. Neither party noticed the other until the Claimant collided with the front left side of the vehicle. The left side of the vehicle features a retractable step for assisting with moving Mr. Brine’s disabled son into the vehicle, which protrudes approximately 2 inches from the side of the vehicle.

The Claimant was helped by a number of onlookers, in particular X, who had been in a car in the left side queue of traffic at the time of the accident. She suffered profound fractures of the right tibia and fibula, friction burns and a degloving injury to the right foot and she underwent a number of medical procedures, including a galaxy frame. The court noted the complexity and length of recovery efforts and expressed sympathy.

Claim:

The Claimant alleged negligence in three broad categories: firstly the Defendant in moving out of traffic encroached upon hazard markings on the road when such a manoeuvre was unsafe; secondly the Defendant failed to check the area ahead, to brake adequately or to avoid the Claimant, to drive at a safe speed, or to warn the Claimant; finally the Defendant failed to take sufficient account of the protruding retractable step. The latter of these allegations was not pursued at trial.

The Defendant denied all allegations and maintained that he had adopted a slow, safe speed; he had paid due attention to the road, and that the Claimant had simply walked into his vehicle. Further, or in the alternative, he claimed that she had been negligent in attempting to cross from a dangerous position; in not taking due care to check the road before attempting to cross; and in using a mobile phone while attempting to cross.

Oral and written evidence:

The Claimant recalled first checking to her right and seeing no oncoming traffic, and then checking to her left, towards the junction. She didn’t recall stepping out into the road, but stated that having checked to her left, “what happened next is a blur.”

The Claimant, and her mother Mrs. Brady, maintained that she had not been using a mobile at the time of the accident. Phone records were inconclusive as they showed only outgoing and not incoming calls. X and the wife of the Defendant Mrs. Brine, who was a passenger in the vehicle, both maintained that the Claimant was using a mobile at the time.

Mr. Brine stated that he had adopted a slow, careful speed and that his attention had been focused on the road ahead. He pointed out that it was for this reason that he had not seen the Claimant. He accepted that it was likely that he had encroached upon the hazard but maintained that this was not relevant as he was beyond the hazard when the accident occurred. He also accepted the possibility that he had pulled out from traffic to move into the second queue, rather than merely approached and filtered into that queue whilst moving.

X offered two lengthy statements about his recollection of the event. The first, given close to the time of the accident, was affected by his suffering from PTSD. On examination he preferred his second statement, which was not so affected. He maintained that the Defendant had been travelling at approximately 10mph and that he encroached on the hazard but would have been principally concerned not to encroach onto the lane on the other side. As noted, he was certain that the Claimant had been on her mobile and that she had walked out into the vehicle.

The decision:

HHJ Main QC reminded himself that he did not have to make a finding on every material issue. He accepted that the Defendant’s account was genuine and that he was probably mistaken in relation to his witness statement. The judge found it likely that he did enter the hazard but did not find that this was an unsafe manoeuvre.

Notwithstanding the contradictions in X’s evidence, HHJ Main QC was satisfied that he was a reliable, independent witness and accepted his evidence in relation to the Claimant’s using her mobile and stepping into the road.

In relation to the Defendant’s driving, HHJ Main QC made two significant findings. First, that the Defendant had breached his duty in “focusing his attention in a blinkered way to the traffic lights and to the offside having left the hazard.” Second, that a reasonably prudent motorist would not, at a speed of 10mph or less, have adopted any evasive or cautious action merely at the sight of a pedestrian on the pavement.

Though the ordinary prudent motorist would scan the road ahead on an intention to move out and thereby become aware, cautionary action would at most be taken once a pedestrian stepped to the curb edge. In this instance there is no evidence to suggest that such action taken at the point of the Claimant’s stepping out would have avoided the collision. The finding of breach in relation only to the ‘blinkered focus’ was not causative of the accident or injuries.

In the circumstances HHJ Main QC did not accept the evidence of the Claimant or her mother in relation to the mobile; preferring that of the other witnesses. He found that she had been using it at the time and had failed to take sufficient care, which even at 14 she would have been expected to do. He therefore suggested that had causation been found, he would have also found contributory negligence at 40%.

Charles Feeny’s Comments

This case emphasises how difficult it is for a Defendant motorist to escape liability in an accident involving a pedestrian. As we commented in relation to the case of McGeer v McIntosh the “lethal weapon” argument is now regularly deployed both in relation to primary liability and contributory negligence. It is notable that, despite no liability arising in this case, had contributory negligence been engaged it would have resulted in a reduction of only 40%.

The Claimant walked out of a passageway between two buildings, briskly across the pavement and between stationary vehicles so as to walk into the side of the Defendant’s vehicle which was slowly overtaking a line of stationary vehicles. On the Judge’s findings, the Claimant was paying no real attention to crossing the road but rather was preoccupied by a heated conversation on her mobile phone.

The Defendant, a mature driver with an exemplary record, was moving slowly to the right of the stationary traffic with the intention of turning right at the lights. Whilst at the commencement of his manoeuvre he had marginally passed over the hazard markings in the road, which was not in strict compliance with the provisions of the Highway Code, the Judge held that this was not causative of the accident as the Defendant was established in a perfectly reasonable position in the carriageway when the accident occurred.

The Defendant did not see the Claimant prior to the accident. The Claimant approached the Defendant’s vehicle from an angle which was obliquely to the Defendant’s left. The Defendant’s apparently reasonable explanation for not seeing the Claimant was that he was not looking in this direction but rather at the road ahead and the direction in which he intended to travel. Somewhat surprisingly, the Judge held that this was a breach of duty and that the Defendant should have been “scanning” the road ahead of him. This scanning of the road would on the Judge’s finding have included looking to his left beyond the line of stationary vehicles. This aspect of the Judgment may well have been the subject of an appeal had the Judge not gone on to find that had the Defendant seen the Claimant, the Defendant would not have been expected to react before the Claimant left the pavement. By this time it would have been too late to avoid the collision in particular because the Claimant did not see the Defendant’s vehicle at all.

Apart from emphasising the difficulty of a Defendant motorist resisting liability in these circumstances, the case also raises the issue of the use of mobile phones whilst crossing the road. It is, of course, a criminal offence for a motorist to use a mobile phone whilst driving. It might be argued that a similar offence should exist for a pedestrian crossing the road using a mobile phone. Coincidentally, very shortly after the judgment, the Mayor of Honolulu announced that from 25 October there would be a criminal offence of “distracted walking”. This was to protect “smart phone zombies” from injuring themselves. A study undertaken by the University of Maryland in 2015 indicated that there had been more than 11,000 injuries resulting from phone related distraction whilst walking in the United States between 2000 and 2011. The offence in Honolulu, which will be punishable by a fine, makes it illegal to use a mobile phone whilst crossing the road subject to a limited exception of an emergency call.

We are now very regularly obliged to listen to mobile phone conversations whilst people are on the street or on public transport. Judging by what is heard, very few, if any, of these conversations could not wait. If the law reasonably is requiring a very high standard from motorists in relation to pedestrians, it would not seem unreasonable that pedestrians should be obliged by law to show a very basic standard of care in terms of concentrating on crossing the road rather than a conversation on a mobile phone.

Charles Feeny was instructed by Joe Parkinson, Head of Major Injury Claims, RSA Motability together with Mike Suddards and Natalie Dawes of Keoghs Solicitors.

BUSSEY v. ANGLIA HEATING – Withstanding the broadsides?

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His Honour Judge Yelton on 12th May 2017 handed down judgment in this case.  The action was a fatal mesothelioma claim.  The deceased, Mr Bussey, was employed by the Defendants as a plumber carrying out predominantly domestic work in the period 1965 to 1968.  In particular, Mr Bussey worked on the installation of new boilers and was required to handle both asbestos rope and asbestos cement flue pipes.  He had to cut both the rope and flue pipes.  However, any work involving asbestos exposure was intermittent and for short periods only.

In the action, the Claimant (his widow) alleged that the exposure was foreseeably hazardous by contemporaneous standards of knowledge and that, in particular, it exceeded the levels in the guidance issued by the Factories Inspectorate in TDN13 of 1969.

The Judge considered the expert evidence , Mr Brady on behalf of the Claimant and Mr Glenn, on behalf of the Defendants ,and found that the exposure did not exceed the levels in TDN13 of 1969.  His Honour Judge Yelton did not accept that Mr Brady’s estimations of high levels of exposure for asbestos rope and for sweeping up after the completion of the works, taken from literature, were comparable to the deceased’s likely exposure.  The exposure was either to chrysotile or amosite, and under TDN13 the relevant level would be 2 fibre/ml for 4 hours.  Having rejected any exposure above the level of 4 fibre/ml and having found that the exposure was for minutes only, it followed inevitably that it could not have exceeded the levels in TDN13 of 1969.

The Claimant’s other argument was that even if the Judge found the levels did not exceed those in TDN13 of 1969, they should be found to amount to a breach of duty notwithstanding the decision in Williams v. The University of Birmingham.  The Claimant went so far as to suggest that the decision in Williams was per incuriam, which the Judge described as being “bold”.

The relevant period of exposure pre-dated the publication of TDN13, but nonetheless the Judge considered that it would be “perverse” to consider that any lower level of exposure would be relevant for the purposes of assessing reasonable foreseeability of risk.  The Judge considered himself bound by the decision in Williams which could not be distinguished, and indicated that any argument that the decision was per incuriam should be addressed to the Court of Appeal.

The decision in Williams has made it significantly more difficult for Claimants to recover damages in relation to asbestos exposures after 1965.  The game change in this respect, however, was not necessarily Williams, but rather the decision of the Supreme Court in Baker v. Quantum.  In Baker v. Quantum, a bare majority of the Supreme Court considered, not following Larner v. British Steel, that where a word in health and safety legislation referred to safety or risk of injury, the term should be construed in accordance with knowledge contemporaneous at the time of the relevant events as opposed to applying an objective approach which would bring current day knowledge into play.

In practical terms, the approach in Larner made it impossible for a Defendant to deny liability in any case to which the Asbestos Regulations 1969 applied, provided more than minimal exposure was proved , because of the definition of asbestos dust within the Regulations at Regulation 2(3):

“References in these Regulations to asbestos dust shall be taken to be references to dust consisting of or containing asbestos to such an extent as is liable to cause danger to the health of employed persons.”

Therefore, if exposure sufficient to increase the risk of mesothelioma to a material extent was proved (the causation test within Section 3 of the Compensation Act 2006) then applying Lana it would inevitably follow that there had been a breach of the Asbestos Regulations 1969.

All this was changed by Baker v. Quantum, which made it possible to argue that the exposure would not have been recognised as being foreseeably hazardous at the material time.

The decision in Williams is authority for the proposition, certainly prior to 1976, that the levels within TDN13 of 1969 are the best indication of levels which at the material time would be regarded as reasonably safe.

Not surprisingly, this decision has proved unpopular for those advising Claimants and several possible attacks upon it have been suggested, some of which were deployed in the Bussey case. The potential arguments appear to be as follows:

The levels in TDN13 of 1969 were based on epidemiology relating to the risk of asbestosis and, as shown in hindsight, to be unsustainable. This is correct, but this was the only epidemiology available at the time.  There does not appear to have been any significant criticism of the levels at the time they were introduced (other than from the asbestos industry which considered them to be too low).  They were used by the Factories Inspectorate and the Health & Safety Executive over a period of years without criticism.

The guidance was only to inspectors so as to inform when they should prosecute, and it is specifically indicated in TDN13 that ultimately the interpretation of Regulation 2(3) is a matter for the Courts.  Again correct, but there was no other guidance available and no decision of the Courts indicating that the guidance was inappropriate.

That the decision in Williams related to an occupier, not an employer.  Again correct.  However, it is difficult to see why this should make any difference.  In fact, given that TDN13 of 1969 was guidance issued in the context of employment, the converse might be more arguable.  In any event, as above, it was the only available guidance.

The decision in Williams was per incuriam, in particular because reference was not made to observations in both Jeromson and Maguire which indicated that asbestos exposure should be reduced to the lowest level practicable.  The problem with this argument, as pointed out by Mrs Justice Swift in the case of Abraham v. Ireson, is that the comments in Jeromson and Maguire were dealing with a different factual situation, that is cases where significant exposures were proved and the possibility of risk at least identified.  On analysis, there is nothing in the judgments in the Court of Appeal in these two cases which would obviate the need, in accordance with conventional principles in relation to the tort of negligence, to prove that the Defendants should have identified a reasonably foreseeable risk of injury.

His Honour Judge Yelton refused permission to appeal and it remains to be seen whether the Court of Appeal will grant permission.  Williams has been followed in a number of High Court cases now, including those cited in the judgment, that is McCarthy, Woodward and Smith and also in the case of McGregor v. Genco.