Personal Injury Update – October 2015

Published: 13/10/2015 | Newsletters, Personal Injury


Contents

  • News
  • Informed Consent to Medical Treatment – Montgomery v Lanarkshire Health Board
  • Smith v Manchester – Back from the dead?
  • The cost consequences for a dishonest claimant of late acceptance of a Part 36 Offer
  • Case Law Update

News

Huw DaviesBy Huw Davies

Many thanks for all of you who attended our annual PI Seminar last month. It was great to welcome old friends and say hello to new faces. We hope you all found the evening useful.

On November 10th we will be hosting the Lord Williams of Mostyn memorial lecture, given by Lord Thomas of Cwmgiedd, the Lord Chief Justice of England and Wales who will discuss “The Centrality of Justice: its contribution to society and its delivery”. If you would like to book, or to find out more information please contact Sehrish Javid.

Finally we are very pleased that Joel McMillan has accepted tenancy with us having completed his pupillage and we welcome him as a formal member of Chambers.

Informed Consent to Medical Treatment – Montgomery v Lanarkshire Health Board

260115-farrars.0091By Aidan O’Brien

In October 1999, Nadine Montgomery gave birth to her first child, who sustained severe disabilities as a consequence of shoulder dystocia during his birth. Her treating obstetrician, Dr Dina McLellan, had not informed Nadine of the 9-10% risk of this complication arising.

Nadine was of small stature and suffered from diabetes mellitus. Women with this condition are likely to have larger than average children, with their weight particularly concentrated in the shoulders. During a normal vaginal birth, a baby’s head will descend the birth canal and the rest of the body will thereafter follow. Shoulder dystocia occurs when the head descends the canal but the baby’s shoulders prevent it passing through the mother’s pelvis without medical intervention. In around 0.1% of cases, shoulder dystocia will occlude the umbilical cord and cause the baby to suffer prolonged hypoxia. Unfortunately this risk materialised in the present case and Nadine’s son was starved of oxygen for around 12 minutes during his birth.

The principle claim in Montgomery related to Dr McLellan’s failure to warn Nadine about this risk. It was argued that if she had been properly informed she would have elected to undergo a caesarean section (obviating the risk entirely).

The evidence of Dr McLellan was that she did not discuss this complication with diabetic women given that they would invariably elect for a caesarean section and it was ‘not in the maternal interests for women to have caesarean sections’.

Legal Analysis

The Supreme Court’s determination, in favour of Nadine Montgomery, marks a significant shift in the test to be applied when considering whether a patient has given consent to medical treatment.

The House of Lords decision of Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] AC 871 no longer holds sway. Practitioners need to be alive to the fact that not only has the requirement for informed consent been formally recognised, but also that Sidaway did not reflect the standard of care required at the time of Montgomery’s care.

Previously, Sidaway dictated that it was a matter for clinicians to judge how much information was to be disclosed to a patient. Provided the doctor’s explained the risks of a given treatment – to the extent that it accorded with a responsible body of medical opinion – liability would not attach (the Bolam test).

Following Montgomery, the law now generally requires that a doctor must take ‘reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments.’

‘Materiality’ is to be judged by reference to the individual circumstances of the case and whether a reasonable person in the patient’s position would be likely to attach significance to the risk, or whether the doctor is or should be aware that the particular patient would be likely to attach significance to it. This requires consideration of the patient as an individual – a risk that is ‘material’ for one individual may not be so for another – and thereby requires a bespoke consent process.

It also follows that a doctor’s advisory role is not to be regarded as solely an exercise of medical skill. A patient is entitled to decide the risks that they are willing to run (a decision which may be influenced by non-medical considerations) and responsibility for determining the nature and extent of a person’s rights rests with the courts, not with the medical professions.

There are, however, three exceptions to the general requirement to inform:

  • If a patient tells the doctor that he or she would prefer not to know the risks.
  • When the doctor reasonably considers that disclosure of a risk would be seriously detrimental to the patient’s health (this exception should not be abused to subvert the principle of informed consent).
  • In circumstances of necessity, as for example where the patient requires treatment urgently but is unconscious or otherwise unable to make a decision.

Applying these principles to Mrs Montgomery’s case, it is clear that she did have the right to be advised of the risk of shoulder dystocia, and she had the right to make her own decision on what risks she was prepared to undertake in terms of the delivery. The court accepted her evidence that she would have opted for a caesarean section if properly advised. Damages of £5.25 million were therefore awarded.

In a scathing reproach of Dr McLellan’s conduct, Lady Hale stated:

‘Whatever Dr McLellan may have had in mind, this does not look like a purely medical judgment. It looks like a judgment that vaginal delivery is in some way morally preferable to a caesarean section: so much so that it justifies depriving the pregnant woman of the information needed for her to make a free choice in the matter…A patient is entitled to take into account her own values, her own assessment of the comparative merits of giving birth in the “natural” and traditional way and of giving birth by caesarean section, whatever medical opinion may say, alongside the medical evaluation of the risks to herself and her baby…The medical profession must respect her choice, unless she lacks the legal capacity to decide.’ [113]

Conclusion

As practitioners in this field will appreciate, whilst the decision of Sidaway remained binding, the English courts had gradually begun to adopt the principle of informed consent (see Pearce v United Bristol Healthcare and Chester v Afshar). In fact, guidance issued by the General Medical Council Guidance has demanded a much more patient focused consent process than prescribed by Sidaway in recent years.

The Supreme Court has now authoritatively killed off the last vestiges of the old clinician-centric approach and confirmed that informed consent plays a central role in English law (effectively endorsing the dissenting judgment of Lord Scarman in Sidaway.

In giving judgment, Lord Kerr remarked that:

‘[Since Sidaway] …patients are now widely regarded as persons holding rights, rather than as the passive recipients of the care of the medical profession. They are also widely treated as consumers exercising choices… The idea that patients were medically uninformed and incapable of understanding medical matters was always a questionable generalisation…’ [74-75].

The law of consent now formally treats patients, so far as possible, as adults who are capable of understanding that medical treatment is uncertain of success and may involve risks, accepting responsibility for the taking of risks affecting their own lives, and living with the consequences of their choices.

Smith v Manchester – Back from the dead?

Howard CohenBy Howard Cohen

A bit of background

Since the House of Lords first approved the application of the Ogden Tables in determining claims for future lost earnings in Wells v Wells [1999] A.C. 945, the courts have been keen to adopt this more accurate, albeit more mechanistic approach in most cases.

Early versions of the Ogden Tables took into account the benefit of accelerated receipt and mortality, but not other contingencies. That was rectified only in the 6th Edition (published in 2006) which introduced Tables A – D containing a series of reduction factors to multipliers to account for those other contingencies. Factors such as a Claimant’s disability and educational status were to be considered in any assessment of loss of future earning capacity for the first time. It was unclear where this left old-style Smith v Manchester type awards, although for a time, they appeared to fall out of favour. Are we now seeing the beginnings of a resurgence?

Conner v Bradman – A recap

The first time that the new method was considered by the courts was in Conner v Bradman [2007] EWHC 2789, a case involving a 50 year old motor mechanic was who knocked off his motorcycle, sustaining a serious knee injury. Much time was spent arguing over whether the Claimant was “disabled” within the meaning of the Disability Discrimination Act 1995 (now subsumed by the Equality Act 2010). He was in constant pain when walking and working, had problems negotiating stairs, could not squat, bend, climb ladders or participate in his pre-accident sports. Arthroscopic surgery had helped to a degree but it was agreed that within a year, he would need a knee replacement after which he was remain restricted in movement. Although he was currently working as a motor mechanic, he would need to give this up within 12-18 months and was therefore re-training as a taxi driver. He would manage to continue to work in this capacity for 10-15 years before any revision surgery would be required.

His Honour Judge Coulson QC agreed that the Claimant was “disabled”. He found that the Claimant was likely to suffer a loss of future earnings given the difference between his current salary and his likely salary as a taxi driver. The real issue was what approach to take in determining the calculation of those earnings. He adopted an Ogden 6 approach. In particular, he considered paragraphs 31 and 32 of the introduction to the 6th Edition of the Ogden Tables which remind practitioners that,

“…in many cases, it will be appropriate to increase or reduce the discount in the tables to take account of the nature of a particular claimant’s disabilities. It should be noted that the methodology does not take into account the pre-accident employment history. The methodology also provides for the possibility of valuing more appropriately the possible mitigation of loss of earnings in cases where the Claimant is employed after the accident or is considered capable of being employed….. However there may be some cases when the Smith v Manchester Corporation or Blamire approach remains applicable or otherwise where a precise mathematical approach is inapplicable.”

Despite reference to Smith and Blamire, His Honour Judge Coulson QC preferred to stick with Ogden 6, applying a higher reduction factor than the rules suggested would normally apply (up from 0.49 to 0.655). The Claimant would likely be able to work as a taxi driver for more than half of his remaining working life and even after revision surgery, there was no reason to think that he could not continue driving a taxi. The introduction to the 6th Edition of Ogden made clear that the reduction factors within Tables A-D were not inviolable.

It was felt that a Smith v Manchester award, said to be an award for a “contingent future loss” was inappropriate in this case. That sort of award was designed to compensate a Claimant where he had not lost his present job (and there was no immediate reason to think that he might) but were he to do so, he would be at a disability on the open labour market. The Claimant in Conner was definitely going to have a knee replacement which meant that he would definitely be unable to continue working as a motor mechanic. In those circumstances, there was no doubt he was going to lose income in the future.

Following Conner, Defendants appreciated that the reductions factors within Tables A – D were movable targets and regularly argued for their adjustment, often with some success.

Billett v Ministry of Defence – First instance

The Conner approach was initially followed in Billett v Ministry of Defence, argued before Mr. Andrew Edis QC sitting as a High Court Judge, before reaching the Court of Appeal in early July 2015.

The facts are these. Mr. Billett joined the army when aged 16, training as a driver. Whilst on a field exercise in February 2009, he was required to live outdoors in freezing cold weather and snow for 6 days. The army provided unsatisfactory footwear, leading to him developing a non-freezing cold injury (‘NFCI’) to both feet. He received army treatment between June 2009 and June 2010 before being medically fit for deployment. However, he continued to have symptoms in cold weather and left the army in October 2011. One week later, he found work as an HGV driver earning exactly what he had been earning pre-accident.

The agreed medical evidence was that the Claimant had developed minor NFCI to both feet due to exposure to extreme cold. He now needed to protect his feet with thick socks and special footwear in the winter and would be more vulnerable to the cold in the future. In his witness statement, he described ongoing symptoms including burning sensations and pins and needles in his feet, reduced sensation, an inability go outside in the cold and the use of regular painkillers. Importantly, his symptoms did not affect his working life as he was able to keep warm inside the cab of his lorry. Each party’s employment expert agreed that he was at a disability on the open labour market as he would have to avoid jobs that required him to work outside.

The trial judge found that despite the minor nature of his NFCI, the Claimant had ongoing symptoms, limiting his ability to carry out normal day to day activities. He was “disabled” but “only just.” He had a loss of future earning capacity, because of his difficulty in working outside. Where the Table B disabled reduction factor would have been 0.54, this was adjusted to 0.73 given the minor nature of the Claimant’s disability. An award of £99,062 was made for lost earning capacity. The Defendant’s preference for a Smith v Manchester award was rejected.

Court of Appeal

The Defendant’s appeal rested on 3 limbs, though for our purposes, only the 2nd of these is relevant. This limb was that in the particular circumstances of the case, a Smith v Manchester award would have been a better method for assessing the Claimant’s lost future earning capacity.

Lord Justice Jackson boiled down the issue into one, neat question:

“The principle issue is how the court should assess damages for loss of future earning capacity in circumstances where the Claimant suffers from a minor disability, is in steady employment and is earning at his full pre-accident rate. Should the court follow the traditional Smith v Manchester approach, or should the court use the Ogden Tables, suitably adjusted?”

Given that this was the first time that the Court of Appeal had considered Tables A – D since their introduction in 2006, careful consideration was given to the question.

Jackson LJ noted the difference between a claim for loss of future earnings (the difference between a Claimant’s current earnings and his earnings but for the index accident) and one for loss of future earning capacity. As to the latter, a lump sum could be awarded “as compensation for the losses which he is likely to suffer in the future by reason of increased difficulty in obtaining or retaining employment.” Of course, adopting an Ogden 6/7 approach was one way to determine loss of future earning capacity. The other was to revert to an old-style Smith v Manchester type award. Indeed, paragraph 45 of the Introductory Notes to the Ogden Tables foresaw that there might still be cases where a conventional Smith award might be appropriate, although gave no guidance as to what sorts of cases these might be.

Jackson LJ rehearsed the necessary questions to ask in determining a claim under the Smith v Manchester type approach (first posed in Moeliker v A. Reyrolle & Co. Ltd [1977] 1 WLR 132):-

  1. Is there a real or substantial risk that the Claimant would lose his current job before the end of his working life?
  2. How great is the risk?
  3. When might the risk materialise?
  4. How far would he be handicapped by this disability if on the labour market, ie: what would be his chances of getting an equally well-paid job?

Ultimately, the Court agreed with the Defendant that a Smith v Manchester award was to be preferred in this case. It gave a number of reasons for this.
First, the bands used in Tables A – D were, of necessity, very wide. Disability covers a broad spectrum and in this case, given the trial judge’s finding that the Claimant was disabled, “but only just”, his disability was at the “outer fringe” of that spectrum.

Second, applying the reduction factor suggested by the Tables of 0.54 would have led to an award for lost future earning capacity of about £200,000. This was “hopelessly unrealistic” for a Claimant who was able to pursue his career as a lorry driver “with virtually no hindrance from his disability.” He found a job within a week of leaving the army. In order to bring “a sense of reality” to the Ogden 6/7 exercise, it would be necessary to make a swingeing increase to the Table B discount factor.

“But what should that increase be? Determining an appropriate adjustment to the RF [reduction factor] is a matter of broad judgment. In the present case, that exercise is no more scientific than the broad brush judgment which the court makes when carrying out a Smith v Manchester assessment.”

The Claimant’s disability affected his ability to work much less than his activities outside of work. For this reason, there was no rational basis for determining how the reduction factor should be adjusted. Jackson LJ felt that this was a classic example of a case where a traditional Smith v Manchester type award was to be preferred in which a broad assessment was to be made of the Claimant’s likely future loss as a result of his handicap on the labour market. He opted for a figure of £45,000, equating to roughly 2 years earnings. Even if he had preferred an Ogden 6/7 approach, he would have increased the reduction factor upwards from 0.73 to a figure closer to the Table A figure (0.93) given the nominal nature of the Claimant’s disability. This would have led to a similar outcome in any event.

Comment

In many ways, Billett is a case at one extreme end of the spectrum, in the sense that it involved a barely-disabled Claimant earning precisely as much as he had earned pre-accident with good occupational prospects in the future. A Claimant in any better a position could surely not be classified as “disabled” at all, thereby barring the application of the Ogden approach to residual earning capacity.

Thus, the re-emergence of the Smith v Manchester award on a grand scale is probably unlikely yet it certainly has its place in cases where there is no “disability” at all or where the disability is such that any adjustment to reduction factors is so uncertain as to make the exercise futile.

The costs consequences for a dishonest claimant of late acceptance of a Part 36 Offer

Helen HobhouseBy Helen Hobhouse

In the recent case of Purser (Gemma) v Hibbs [2015] EWHC 1792 (QB) His Honour Judge Moloney QC, sitting as a High Court judge, considered the question of whether there was any justification for departing from the normal Part 36 costs order in a case where the Claimant had accepted the Defendants’ Part 36 offer after the disclosure of video surveillance evidence which revealed the Claimant to have dishonestly exaggerated her claim.

Purser (Gemma) v Hibbs [2015] EWHC 1792 (QB)

The facts

In November 2010 the Claimant, who was then aged 29, sustained injuries in a road traffic accident. Liability was admitted at an early stage.

In June 2012 and January 2013, prior to the issue of proceedings, the Defendants commissioned surveillance evidence of the Claimant. This evidence showed the Claimant acting in a way which was consistent with someone who was significantly disabled by her injuries i.e. limping heavily and using crutches to mobilise. The orthopaedic experts, however, could find no organic cause for the Claimant’s ongoing symptoms and the psychiatric experts concluded that the Claimant was suffering from a conversion disorder.
In July 2013 the Defendants made a Part 36 offer of £95,000 which was rejected.

In November 2013 the Claimant issued proceedings alleging that as a result of her injuries she could no longer work and could no longer pursue her former active lifestyle, including riding her horse. The Claimant also advanced significant past and future care claims.

In April 2014 the Defendants commissioned a third period of surveillance. This revealed the Claimant riding and exercising her horse as if she was a person with no physical disabilities. When filmed at home during the same period the Claimant reverted to using her crutches and zimmer frame. When the experts were shown this surveillance they agreed that there was no innocent explanation for the contrast between the Claimant’s behaviour when with her horse and when at home.

Following disclosure of the surveillance evidence the Claimant accepted the Part 36 offer and agreed to pay the Defendants’ costs from the date when the Part 36 offer expired. The Defendants then applied to the court for their pre offer costs.

CPR 36.13 (5) and (6)

CPR 36.13 (4) and (5) stipulate that where a Part 36 offer is accepted after the relevant period for acceptance has expired, and the parties cannot agree the liability for costs, the court must, unless it considers it unjust to do so, order that the claimant be awarded costs up to the date on which the relevant period expired.

CPR 36.13 (6) states that when considering whether it would be unjust to make such an order the court must take into account all the circumstances of the case, including the matters listed in rule 36.17 (5) i.e. the terms and timing of any Part 36 offer, the information available to the parties when the offer was made, the conduct of the parties with regard to the giving or refusal to give information for the purposes of enabling the offer to be evaluated and whether the offer was a genuine attempt to settle the proceedings.

Refusal of the Defendants’ application

The Claimant did not put in any evidence in response to the surveillance and both parties were content for the judge to resolve the Defendants’ application on the basis of the uncontroverted surveillance evidence and submissions from counsel.

His Honour Judge Moloney rejected the Defendants’ application on two grounds.

Firstly, the judge was not satisfied, on the balance of probabilities, that the Claimant’s deceit extended back materially into the pre Part 36 offer period. The Claimant’s dishonest and deceitful behaviour, as demonstrated in the April 2014 surveillance, did not therefore persuade the judge that the Claimant’s claim had been dishonestly exaggerated from the outset.

Secondly, the judge considered that there was no injustice to the Defendants in applying the normal Part 36 costs consequences as it would have been open to the Defendants, after they obtained the April 2014 surveillance, to withdraw their Part 36 offer and substitute it with a Calderbank offer, offering the Claimant the same level of damages but subject to defined costs consequences i.e. more punitive costs than those prescribed by Part 36.

The judge noted that such a course had been endorsed by the Supreme Court in Summers v Fairclough Homes Limited [2012] UKSC 26 :

“A defendant could protect his position by making an offer outside the framework of Part 36 to settle the genuine part of a claim on terms that the claimant pay his costs with regard to the fraudulent parts of the claim on an indemnity basis”.

As to the post Part 36 offer costs, the judge accepted that it was appropriate to punish the Claimant’s deceit by ordering that those costs be paid by the Claimant on an indemnity basis, plus interest on those costs at a rate of 8% per annum. The judge also required that the Claimant pay the costs of the 2014 surveillance, notwithstanding that those costs were not included within the Defendants’ budget.

His Honour Judge Moloney disagreed with the notes in the White Book which suggest that allowance should be made by Defendants in their costs budgets for the costs of surveillance.

Comment

Purser was a pre QOCS case and it therefore seems likely that the Claimant had the benefit of ATE insurance. Subject to the conditions of the relevant CFA and insurance policy, the Claimant would therefore have received her £95,000 damages in full. The Claimant’s solicitors would have had to bear their own costs incurred between the date when the Part 36 offer was made and the date when it was accepted, and the ATE insurers would have paid the Defendants’ costs.

Had Purser been a post QOCS case the Defendants’ costs would have been payable out of the Claimant’s damages. As the Part 36 offer was a relatively high one (£95,000) it seems probable that the Defendants’ costs would have been met in full out of this sum leaving the Claimant with a significantly reduced sum by way of damages. It is clear therefore that a well judged Part 36 offer in a QOCS case will put significant pressure on a dishonest claimant who by definition must know that they are at risk of being found out.

What if the Defendants’ costs had exceeded the sum of the Part 36 offer ? What if the Part 36 offer had been £30,000 rather than £95,000 and the Defendants’ costs had been £50,000 ? Under the QOCS regime would the Defendants have been able to enforce their claim to the excess sum of £20,000 against the Claimant personally ?

The starting point in any QOCS case is that a defendant can only enforce judgment up to the value of damages and interest awarded or recovered. If costs are greater the excess cannot be enforced.

CPR 44.16 provides some limited exceptions to this rule and in particular in a case where the claim is found, on the balance of probabilities, to be fundamentally dishonest.
CPR 44.16 (1)(b), however, makes clear that where the proceedings have been settled, the court will not, save in exceptional circumstances, order that issues arising out of an allegation that the claim was fundamentally dishonest be determined in those proceedings.

It therefore appears that the question of “fundamental dishonesty” does not fall to be considered in a case where a Part 36 offer has been accepted and the normal Part 36 costs consequences will follow unless the defendant can establish that the normal order would be “unjust”. Although each case will fall to be considered on its own facts it is clear from the approach of the court in Purser that defendants will face an uphill struggle in seeking to persuade a judge that it would be appropriate to depart from the normal order.

Case Law Update

(1) WELLS (2) SMITH v UNIVERSITY HOSPITAL SOUTHAMPTON NHS FOUNDATION TRUST (2015)

[2015] EWHC 2376 (QB)

QBD (Winchester) (Dingemans J) 07/08/2015

Significance: Prior to birth, a mother and child are still one person and the mother is able to recover psychiatric injury as a primary victim following the death of the child during child birth. A father however as a secondary victim would only be able to claim for psychiatric injury if it were found that there had been a sudden, shocking event arising from witnessing the death of or extreme danger to his child, applying Liverpool Women’s Hosptial NHS Foundation Trust v Ronayne [2015] Civ 588.

Facts: A NHS trust was sued for damages by a mother and father for bereavement and psychiatric injuries following the death of their baby during child birth. The Trust was criticised for, inter-alia, not carrying out a caesarean section at an earlier time.

Held: The Trust had not been in breach of duty in failing to carry out a caesarean section at an earlier time, though had breach been established, causation would have been satisfied. The mother as a primary victim would, had breach been established, been able to claim damages for psychiatric injury. The father however would have been unsuccessful as there was no shocking event.

MARK POLLOCK v (1) ENDA CAHILL (2) MADELINE CAHILL (2015)

[2015] EWHC 2260 (QB)

QBD (William Davis J) 30/07/2015

Significance: The common duty of care owed pursuant to the Occupier’s Liability Act 1957 required an occupier to have regard to any known vulnerability of a visitor.

Facts : A blind visitor was a guest at the defendant’s house and was given a bedroom on the second floor, but was not aware where the window was. When the claimant fell from the second-floor window, which had been left open, he sustained brain and spinal injuries which resulted in his being paralysed from the waist down. It was suggested that the fall was caused either by a complete accident, or the Claimant had deliberately leant out of the window or he had been sleep walking

Held: On the evidence it was found that the defendant had opened the window prior to the arrival of the claimant, and the Court accepted on the balance of probabilities that the claimant had fallen through the open window as he was trying to make his way to the bathroom after he had awoken, having lost his sense of direction. The common duty of care owed by occupiers pursuant to the Occupiers’ Liability Act 1957 s.2 required them to have regard to any known vulnerability of the visitor. An open window created an obvious risk for a blind person, particularly when it was on the second storey of the house with nothing to prevent a fall to the ground. The defendant created the risk and knew of it.

WILSON v AL-KHADER (2015)

QBD (Judge Gore QC) 29/07/2015

Significance: Questions to an expert under CPR r35.6(2)(c) had to be for the purposes of clarification only. Invitations to an expert to express an opinion went beyond such clarification.

Facts: The defendant appealed against a master’s order that it was inappropriate at that time to require the claimant’s expert to expand on medical evidence in an expert report in relation to the life expectancy of the claimant. The expert had informed the judge that any assessment he made in the absence of old medical records might not be accurate and would not be in the claimant’s best interests. The Master found that in the absence of any evidence from the Defendant contradicting the expert’s opinion , he would not make the order.

Held: The questions the defendant wished to ask were not clarification but invitations to express an opinion that the expert had not previously expressed and therefore not r35.6 legitimate questions.

ALBERT VICTOR CARDER v (1) SECRETARY OF STATE FOR HEALTH (2) UNIVERSITY OF EXETER (2015)

[2015] EWHC 2399 (QB)

QBD (Judge Gore QC) 28/07/2015

Significance: Asbestosis unlike plural plaques could not be described as benign and a Claimant could suffer actionable injury without being aware of it or suffering any symptoms and where it had not been and could not be discovered. A 2.3 % contribution to the Claimant’s condition was small but it was material and not de minimis.

Facts: An 85 year old claimant was negligently exposed to asbestos by a number of employees including the second defendant, and developed asbestosis. His condition was gradually increasing and contributing to an unrelated condition affecting his lung function. A provisional damages order was sought against the second defendant in proportion to the dose received of 2.3% The second defendant sought to argue that no injury could be proved to have been caused by any breach of duty by it, on the basis of medical evidence that the claimant’s state of health and disability would not have been noticeably different in the absence of the exposure while in the second defendant’s employment.

Held: A claimant could suffer actionable injury without being aware of it or suffering any symptoms and where it had not been and could not be discovered. The 2.3 contribution was not so trivial and not de minimi. The asbestosis increased the claimant’s risk of lung cancer and was progressive. The second defendant was liable for 2.3 per cent of those damages.

JOHN EDWARD BILLETT v MINISTRY OF DEFENCE (2015)

[2015] EWCA Civ 773

CA (Civ Div) (Jackson LJ, Patten LJ, McFarlane LJ) 23/07/2015

Significance: The awarding of a Smith v Manchester award was to be preferred to an award based upon application of multipliers with adjustment pursuant to Ogden Tables A to B where the latter approach would lead to a hopelessly unrealistic award .This case is discussed in more detail above in Howard Cohen’s article.

RXDX v NORTHAMPTON BOROUGH COUNCIL (2015)

QBD (Sir Colin Mackay) 10/07/2015

Significance: In considering the cost consequences of a Part 36 Offer, it was open to the court to consider each sub-paragraph of r.36.14(3) separately so as to assess if its application would be unjust in the circumstances of each particular case.

Facts: Following a successful trial on liability in which the Claimant’s Part 36 offer had not been accepted and the Claimant had done better at trial, the trial judge ordered indemnity costs to run throughout plus interest from the date that the offer expired. However no order was made r in relation to additional costs as to CPR r.36.14(3)(a) or (d) on the basis that in the circumstances, where nothing had been known to either side as to the value of the claim, it would be unjust to apply those provisions.

The claimant submitted that the judge did not have the power to make no order as to r.36.14(3)(a) and (d) because the rule was a complete code. The defendant argued that it was open to the judge to consider each sub-paragraph of r36.14(3) separately and assess if its application would be unjust in the circumstances.

Held: Reading the plain language of the rule the court preferred the defendant’s construction. It was open to the court to consider each sub-paragraph of r.36.14(3) separately so as to assess if its application would be unjust in the circumstances of each particular case.