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BC DISEASE NEWS
A WEEKLY DISEASE UPDATE
1 June 2018 Edition 232
PAGE | 2
CONTENTS
PAGE 2
Welcome
PAGE 3
Collections of NIHL and
Asbestos-Related Articles
Equitable Contribution in a
Mesothelioma Claim: RSA
Insurance PLC v Assicurazoni
Generali SpA (2018)
PAGE 5
Is ‘Fear’ an Actionable Injury?
Kimathi & Ors v The Foreign
and Commonwealth Office
[2018] EWHC 1305 (QB)
PAGE 7
Does QOCS Apply When Only
Part of a Claim is for Personal
Injuries? Brown v The
Commissioner of Police for the
Metropolis & Another (2017)
PAGE 8
Fundamental Dishonesty – 2
Recent Judgments: Molodi v
Cambridge Vibration
Maintenance Service & Anor
[2018] EWHC 1288 (QB) and
Richards & Anor v Morris [2018]
EWHC 1289 (QB)
PAGE 9
Liability When Risk Assessments
Are Not Heeded: CC v Leeds
County Council [2018] EWHC
1312 (QB)
PAGE 10
Disability in Military Personnel
With Mental and Physical
Disorders
Welcome
Welcome to this week’s edition of BC Disease News.
In this week’s edition, we provide links to our up-to-date NIHL and Asbestos
Collection of Articles Guides, featuring related BCDN content.
We also examine several recent case authorities, two of which regarded
inventive interpretation, in attempts to engage desirable limitation periods.
In RSA Insurance PLC v Assicurazoni Generali SpA (2018), the defendant insurer
argued that proceedings for equitable contribution of settlement, served by the
claimant insurer, fell under the statutory contribution regime and were therefore
statute barred by the relevant 2 year limitation period (s.10).
In another decision, Kimathi & Ors v The Foreign and Commonwealth Office
[2018] EWHC 1305 (QB), the claimants argued that ‘fear’ could amount to an
actionable injury, which would allow them to benefit from s.33 discretion,
exclusively afforded to actions in respect of personal injuries (s.11).
We also review a recent study, which sought to identify a relationship between
disability in military personnel and personnel with physical and mental disorders.
Any comments or feedback can be sent to Boris Cetnik or Charlotte Owen.
As always, warmest regards to all.
SUBJECTS
NIHL and Asbestos Articles – Equitable Contribution Claims and Limitation Periods
– ‘Fear’ and Actionable Personal Injuries – QOCS and Fractional Personal Injury
Claims – Fundamental Dishonesty – Risk Assessments, Breach of Duty and
Causation – Military Disabilities and Mental and Physical Disorders.
PAGE | 3
Collections of NIHL and
Asbestos-Related
Articles
BC Disease News has covered a wide
range of issues that arise in both NIHL and
asbestos-related claims, over the past 5
years.
Every article encompassing these two
topics (up to edition 225) has been collated
into two separate Guides and each
collection has three volumes (1 volume per
100 BC Disease News Editions).
If you wish to access these resources,
please click on the links below:
1. Asbestos Claims Collection of
Articles
Volume 1 (Editions 1 –
100)
Volume 2 (Editions 101 –
200)
Volume 3 (Edition 201
onwards)
2. NIHL Claims Collection of Articles
Volume 1 (Editions 1 –
100)
Volume 2 (Editions 101 –
200)
Volume 3 (Edition 201
onwards)
Equitable Contribution
in a Mesothelioma
Claim: RSA Insurance
PLC v Assicurazoni
Generali SpA (2018)
Approved judgment has been handed
down in the case of RSA Insurance PLC v
Assicurazoni Generali SpA, in which the
defendant argued that an insurer’s claim
for equitable contribution of settlement, in
a mesothelioma claim, was statute-barred.
An insured painting and decorating
company employed an individual, Mr
Merritt, from 1975 to 1986. He subsequently developed malignant mesothelioma. Medical
evidence attributed the onset of disease to asbestos exposure in the course of employment
with the insured company. The company was later dissolved, in 1996.
The Letter of Claim was sent to the claimant, on 17 March 2010, asserting that asbestos
exposure had occurred throughout the 10 year employment period. The schedule of loss,
served in 2010, claimed special damages of around £110,000
The claimant had only provided EL insurance cover for the last 6 months of the
mesothelioma victim’s employment. However, it was obligated, under s.3 of the
Compensation Act 2006, to indemnify the company for the claim in its entirety,
notwithstanding the fact that there had been other EL insurance cover during the relevant
employment period.
The premise of the 2006 Act provision was to implement the House of Lords ruling of Fairchild
v Glenhaven Funeral Services Ltd [2002] UKHL 22, by which employers are liable for 100%
of losses in asbestos-related case law.
An offer to settle was accepted by Mr Merritt on 17 January 2011 for a figure of around
£173,750 (inclusive of damages and costs). This was broken down, as follows:
£124,250 to Mr Merritt;
£23,700 to the Compensation Recovery Unit; and
£25,800 in legal costs.
The claimant later conducted ELTO searches, which were not available at the date of
settlement. These revealed that Aviva provided the company with insurance cover from
October 1975 to June 1979, while the defendant provided insurance cover from April 1981
to March 1983.
It therefore sought proportionate contribution of settlement from the two other identified
insurers, on a Fairchild basis. The claimant derived that it had an equitable right to
contribution. It is worth noting that this was not a typical contribution claim for so-called
Double insurance, wherein two insurers provided cover for the same insured for same
relevant risk over the same time period and liability would be apportioned equally among
insurers.
Calculated contributions, which excluded employment periods with no identified insurer,
equated to:
Aviva – 60% of the total settlement.
Generali – 32% of the total settlement.
RSA – 8% of the total settlement.
Aviva agreed to pay the calculated contribution. The defendant, on the other hand,
refused. As such, the claimant commenced proceedings against the defendant for an
equitable contribution of settlement, or such sum as the court considered just and equitable.
The defendant argued that an entitlement to contribution is afforded by s.1(1) of the Civil
Liability (Contribution) Act 1978.
Further, the right to a contribution, for the purposes of the 1978 Act, ‘does not create new
rights of contribution but simply regulates existing rights of contribution’.
PAGE | 4
Section 7(3) of the 1978 Act states that the entitlement to recover contribution ‘supersedes
any right, other than an express contractual right, to recover a contribution (as distinct from
an indemnity) otherwise than under this Act in corresponding circumstances ...’
As such, the defendant submitted, as follows:
‘... if there was an equitable right to recover a contribution prior to the 1978 Act coming into
force, then such a right is a right to recover a contribution “in corresponding circumstances”
and in consequence any such right is replaced by the right to pursue a claim under Section
1(1) the 1978 Act’.
Therefore, the defendant contended that the claim for contribution, issued on 13 January
2017, was statute barred under s.10(1) of the Limitation Act 1980. If this interpretation of the
1978 Act was accepted by the court, the 2 year limitation period for the recovery of an
equitable contribution would have expired.
In the alternative, if its limitation defence were to fail, the defendant argued that the
claimant’s settlement sum should be put to the test of reasonableness.
The claimant, by contrast, submitted that the wording of s.6 of the 1978 Act infers that the
target of statutory contribution claims is ‘a person who is, or would be obliged to compensate
the original victim’.
However, it argued ‘rather that Generali is liable to contribute in equity towards the sum that
RSA has paid to Mr Merritt, pursuant to the indemnity that RSA gave to the Company’.
On this basis, the claimant’s action did not fall within s.1(1) of the 1978 Act. As a result, s.7(3)
does not bring all contribution claims within the statutory regime.
The Limitation Issue – Debt or Damages
Claimant and defendant counsel, having interpreted the Law Commission report on the
purpose of the Civil Liability (Contribution) Act 1978, came to an agreement that if the
equitable contribution claim was a claim sounding in debt, then it was not covered by s.1(1)
of the Act. This was the decision reached in the case of Hampton v Minns [2002] 1 WLR 1. By
contrast, if the equitable contribution claim was a claim sounding in damages, then it was
covered by s.1(1) of the Act and therefore subject to a 2 year limitation period.
One of the main reasons given by the Law Commission for not recommending a change to
the rights of contribution sounding in debt was that there was little evidence of injustice being
caused. In contribution claims sounding in damages, there was sufficient evidence.
In the case of IEG v Zurich Insurance [2015] UKSC 33, discussed in BC Disease News (here),
the identified insurer was on risk for 6 out of 27 years of asbestos exposure, which resulted in
the claimant’s mesothelioma diagnosis.
Was IEG’s contribution limited to its proportion of cover?
This case was subject to Guernsey’s jurisdiction. As a result, 100% joint and several liability,
under the Compensation Act 2006, did not apply. The Supreme Court Justices did, however,
provide obiter commentary on what the
likely decision would have been, had the
case been heard in the UK.
Lord Mance, who enjoyed majority support
for his speech, was of the mind that the
1978 Act did not apply:
‘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, on the other hand, opined
that the 1978 Act did apply:
‘The class of persons “liable in respect of
any damage suffered by another” 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 lability in respect of it … on the
footing that (contrary to my opinion) the law
treats each insurer as liable for the whole
loss in each period of insurance, then it
must necessarily have been the same
damage … It would require some
considerable development of traditional
concepts of double insurance to
accommodate a situation like the present
one …’
He argued that a ‘contract of indemnity
gives rise to an action for unliquidated [(to
be proved)] damages, arising from the
failure of the indemnifier to prevent the
indemnified person from suffering
damage’.
HHJ Rawlinson made it clear that his
decision did not involve ‘choosing between
the speeches of Lord Mance and Lord
Sumption in IEG’, as they were obiter
comments, providing ‘little detail as to the
reasons why they held the views that they
did’.
In reaching his decision, the judge referred
to the cases cited in Goff & Jones – The Law
of Unjust Enrichment (9th Edition) and Lord
PAGE | 5
Goff in Firma C-Trade SA v Newcastle
Protection and Indemnity Association
[1991] 2 AC 1, all of which made it clear
that liability of insurers to indemnify the
insured sounds in unliquidated damages
(Damages Indemnity Liability) rather than in
debt.
Within these cited sources, it was
highlighted that ‘“damages” is used in an
unusual sense that should not be taken
literally because the primary contractual
promise is that the insured shall enjoy “the
right to indemnity by payment of money”’
Claimant counsel argued that Lord Goff’s
judgment was inconsistent with the House of
Lords in Bradley v Eagle Star Insurance Co
Ltd [1989] AC, in that:
‘… until a liability on the part of the
indemnified is established by judgment,
arbitration award or agreement, no legal
obligation falls on the indemnifier … at the
moment that the legal obligation falls on
the indemnifier, the amount of the liability is
ascertained and ought therefore to be
properly regarded as a debt liability …’
In spite of this anomaly, at paragraph 114,
HHJ Rawlinson ruled in favour of the ‘long
line of cases which have decided or
confirmed that the liability arising under an
insurance contract of indemnity is a
Damages Indemnity Liability’.
As such, the judge deemed that the
equitable contribution claim was within the
remit of the 1978 Act and was therefore
statute barred.
Even though it was not necessary to do so,
HHJ Rawlinson briefly rejected the
defendant’s 2nd
limb of defence, namely
that the settlement be put to the test of
reasonableness. The defendant stated that
the level of contribution sought could be
reduced to account for the insurer’s failure
to seek contributions from others.
The judge, however, argued that the ‘broad
equitable approach’ taken in Fairchild was
based on ‘natural justice’ and maintained
that claims should be assessed on a time
on risk basis. Time on risk contribution was
not, according to HHJ Rawlinson
contemplated as a ‘wholesale departure
from the normal rule that contribution
should be made equally’. If it was, there
would be great uncertainty, increasing
costs and time taken to settle rights of
contribution between insurers.
Full text judgment can be accessed here.
Is ‘Fear’ an Actionable
Injury? Kimathi & Ors v
The Foreign and
Commonwealth Office
[2018] EWHC 1305 (QB)
In the recent High Court decision of Kimathi
& Ors v The Foreign and Commonwealth
Office [2018] EWHC 1305 (QB), the
claimants attempted to extend the
definition of an actionable injury. In doing
so, they sought to compel the court to
exercise its ambit of discretion and exclude
the 3 year limitation period, pursuant to s.33
of the Limitation Act 1980.
The claimants, in ongoing Kenyan
Emergency Group Litigation proceedings,
alleged that they had been detained in
Kenyan villages, or detention camps, and
the threat of force compelled them to
remain and also to carry out labour. They
argued that the defendant had been
negligent, causing them to suffer ‘fear’ for a
period of 5 years.
Counsel for the claimants cited Supreme
Court and House of Lords judgments, in an
effort to consolidate their case that ‘fear’
amounted to personal injury.
Firstly, Mr Justice Stewart considered Hicks v
Chief Constable of the South Yorkshire
Police [1992] 2 All ER 65, in which Lord
Bridge stated:
‘It is perfectly clear that fear by itself, of
whatever degree, is a normal human
emotion for which no damages can be
awarded ... It follows that fear of impending
death felt by the victim of a fatal injury
before that injury is inflicted cannot by itself
give rise to a cause of action ...’
Stewart J then cited Rothwell v Chemical
and Insulating Co Ltd [2007] UKHL 39, in
which the claimant argued that pleural
plaques had caused ‘anxiety’.
Lord Hope stated that there could be ‘... no
cause of action because the pleural
plaques in themselves do not give rise to
any harmful physical effects which can be
said to constitute damage, and because of
the absence of a direct causative link
between them and the risks and the anxiety
which, on their own, are not actionable…"
Lord Scott cited further authorities in
Rothwell:
‘... In Page v Smith (1995)…, a case about
a psychiatric illness caused by a motorcar
accident…, Lord Lloyd of Berwick said that
"personal injuries include any disease and
any impairment of a person's physical or
mental condition". In Cartledge v E Jopling
& Sons Ltd (1963)… this House held that a
physical condition caused by a negligent
act or omission had to reach a certain
threshold "beyond the minimal" in order for
it to constitute an injury for which damages
in tort could be claimed’.
He also cited ‘... Lord Wensleydale in Lynch
v Knight (1861)… said that "mental pain or
anxiety the law cannot value, and does not
pretend to redress, when the unlawful act
contained of course is that alone ... where
a material damage occurs, and is
connected with (the mental pain or
anxiety), it is impossible a jury, in estimating
it (i.e. the material damage), should
altogether overlook the feelings of the party
interested." So, anxiety simpliciter cannot
constitute the damage necessary to
complete the tortious cause of action; but
if there is some such damage the fact of the
anxiety can enhance the amount of
damages recoverable’.
Stewart J then went on to discuss the recent
decision of Dryden v Johnson Matthey
[2018] UKSC 18, which was distinguished
from Rothwell. In Dryden, the Supreme
Court Justices considered whether platinum
PAGE | 6
salt sensitisation constituted an actionable injury.
Lady Black, giving judgment, said that ‘the terms "physical injury" and "personal injury" tend to be used interchangeably in the authorities
... and this is reflected in this judgment, there being no psychiatric injury to complicate the matters’.
Discussing the threshold for actionable injury, she went on to say that:
‘The physiological changes to the Claimants' bodies may not be as obviously harmful as, say loss of a limb, or asthma
or dermatitis, but harmful they undoubtedly are’.
On reflection of the case law on actionable injury, Stewart J applied the law to the facts. Does ‘fear’ amount to a cause of action in a
personal injury claim? At paragraph 24, the judge summarised the claimant’s submissions, which appeared to have been influenced by
Dryden:
‘The Claimants say that fear is not symptomless or hidden. The Claimants felt fear and it was intended that they should
do so in order to secure compliance with orders. Fear also provokes physical change albeit transitory and there is an
identifiable physiological effect: the release of adrenaline, an increase in blood pressure and an increase in heart
rate. Once the threat ceases, physiological markers return to normal, but the changes are felt by the person
concerned. Fear, they say, is unpleasant and made the Claimants appreciably worse off and compelled behaviour
which would otherwise be different. It also results, or can result, in impairment of normal daily function and is not
negligible’.
However, Stewart J observed, at paragraph 25:
‘None of these submissions, in my judgment, changes the position clearly founded in the authorities that anything short
of a recognised psychiatric condition cannot amount to a personal injury’.
Claimant counsel submitted that the bar is set low for actionable physical injury and there was no reason to differentiate psychological
symptoms. It is therefore worth noting additional comments, raised by Stewart J, at paragraph 31:
‘The use of the word fear covers a very wide spectrum ... looking at the evidence set out above, his fear was a
background fear, rather than one giving rise to physiological change; alternatively, that physiological changes are
likely to have been de minimis. In his case, and potentially those of other Test Claimants, even if I drew the line at the
point where the Claimants ask me to draw it, success may be very limited’.
Therefore, if the ‘traditional definition of "personal injuries"’ were to be extended, it would be ‘extremely wide ranging’ and have ‘numerous
substantial consequences across the law of tort’.
Given the judge’s finding that ‘fear’ does not amount to a personal injury, a tortious claim in negligence could not be brought. This was a
tortious claim based on trespass to the person and was actionable per se (required no proof of damage).
In his concluding statements, Stewart J found in favour of the defendant, at paragraph 37, that the ordinary limitation period for tortious
actions applied:
‘Despite the comprehensive and innovative submissions of the Claimants, it has been clearly and authoritatively
determined that fear alone does not amount to a personal injury. Claims based on fear are subject to a six-year time
limit. The provisions of ss.11, 14 and 33 of the Limitation Act 1980 have no application to them’.
Full text judgment can be accessed here.
PAGE | 7
Does QOCS Apply When Only Part of a Claim is for Personal Injuries? Brown v
The Commissioner of Police for the Metropolis & Another (2017)
At first instance, in the case of Brown v The Commissioner of Police for the Metropolis (2017), His Honour Judge Luba considered whether
the claimant benefited from qualified-one-way costs shifting (QOCS) protection, where it brought an action including both personal injury
and non-personal injury aspects. An appeal of the first instance decision is expected to be heard in June of 2018.
The claimant brought a claim on four separate causes of action and sought to recover its costs from the defendants. However, the
defendants sought to circumvent a costs Order of this nature, on the basis that QOCS did not apply, based on the facts of the case.
CPR 44.13 discusses the proceedings in which QOCS applies:
At the County Court, counsel for the claimant submitted that the entirety of the actions brought against the defendants were encapsulated
within the definition of CPR 44.13(1)(a), namely that the claim was for damages for personal injuries.
In any event, counsel for the defendants submitted that the Court may grant permission for a different consequence, under the exception
to QOCS, afforded by CPR 44.16(2).
PAGE | 8
Did the exception, pursuant to CPR
44.16(2)(b), apply?
In answering this question, HHJ Luba
hypothesised, at paragraph 17:
‘One would envisage a number of
circumstances or situations in which in
addition to bringing a claim for damages
for personal injury, a Claimant includes in
the same action other claims. Alternatively
and additionally, one can envisage a case
in which a Claimant brings two separate
sets of proceedings against the same
Defendant, one of which is a claim for
damages for personal injury and the other
is not, which claims come to be
consolidated. Such a case may be a case
in which the pre-condition in 44.16(2)(b) is
satisfied’.
Then, at paragraphs 18 and 19, the judge
went on to consider whether the facts of
Brown fell within this pre-condition.
‘As I have already indicated, pleadings
against both Defendants incorporate four
heads or causes of action. If any one of
them does not include a claim for personal
injury damages, then it might be arguable
that the terms of 44.16(2)(b) are met. It
seems to me, however, that on a
consideration of the pleaded case here,
set out in the Statement of Case advanced
by the Claimant against each of the two
Defendants, what is alleged is that the injury
has followed as a consequence of each of
the four matters ...
It is not a case, for example, in which there
has been included a separate claim for
some other form of damage for loss arising
in consequence of that claim alone. It
seems to me in those circumstances, on the
facts of these particular cases, that the
exceptions in CPR 44.16 on which the
Defendants would seek to rely if matters
came to that point, is not in fact available’.
In this instance, HHJ Luba deemed that the
claimant was protected by QOCS
‘because the pre-condition to any
exception for which the Court’s permission
is required ... [was] ... not satisfied’.
The first instance judge appears to have
differentiated between claims where
personal injuries stem from multiple heads
of a pleaded case, in which QOCS will
apply, and claims where separate heads of
a pleaded case bare no relationship with
injurious losses, where defendants may
successfully argue that QOCS should be
disapplied.
A copy of the first instance judgment can
be accessed here.
We will consider the ruling on appeal in due
course.
Fundamental
Dishonesty – 2 Recent
Judgments: Molodi v
Cambridge Vibration
Maintenance Service &
Anor [2018] EWHC 1288
(QB) and Richards &
Anor v Morris [2018]
EWHC 1289 (QB)
Two appeals have recently been heard in
the appellate High Court, concerning the
credibility of claimants and findings of
fundamentally dishonesty, under s.57 of the
Criminal Justice and Courts Act 2015:
Molodi v Cambridge Vibration
Maintenance Service & Anor [2018] EWHC
1288 (QB); and Richards & Anor v Morris
[2018] EWHC 1289 (QB). Both cases were
heard by Mr Justice Martin Spencer and
both involved road traffic accidents.
In this article, we examine what types of
misconduct can result in fundamental
dishonesty findings. Strike out applications,
in personal injury cases, were explained in
detail in the LOCOG v Sinfield [2018] EWHC
51 (QB) judgment, which we discussed in
edition 216 (here).
Molodi v Cambridge Vibration
Maintenance Service & Anor [2018] EWHC
1288 (QB)
In this case, the defendant argued that the
claimant was unreliable as a witness
because of the following:
‘The contradiction between the
CNF and the Claimant's evidence
...;
The CNF stated that the Claimant
had no rehabilitation needs when
the Claimant then made a claim
for 12 sessions of physiotherapy;
The Claimant's assertion that he
had time off work in his evidence
when the CNF stated there was no
time off work and the fact that the
Claimant had made no claim for
loss of earnings despite stating in
his witness statement at paragraph
15 that as a result of the accident
he had been unable to work his
normal hours for about two weeks
and for three days after the
accident did not work at all;
The fact that the Claimant told his
medical expert that he had only
had one previous accident,
confirmed in his witness statement
at paragraph 18 when in fact he
had been involved in at least four
previous accidents and probably
more, possibly as many as seven
... previous accidents.’
The trial judge, HHJ Main QC, ruled that the
claimant was not fundamentally dishonest,
but was an inconsistent witness. The
defendant appealed the decision and the
case was overseen by Mr Justice Spencer.
Spencer J, at paragraph 45, stated that the
trial judge had:
‘... adopted a much too benevolent
approach to evidence from a claimant
which could be demonstrated to be
inconsistent, unreliable and, on occasions,
simply untruthful’.
PAGE | 9
He went on to state that, in disclosing to the
medical expert that he was only involved in
one incident factually relevant to the
present case, this constituted a ‘glaring’
example of a ‘clear lie’. This lie had been
maintained in a witness statement,
alongside a statement of truth.
Lying to the medical expert was pertinent to
the claim in question and affected
‘fundamental questions of causation’. At
paragraph 47 of the judgment, Spencer J
provided other examples of dishonesty,
such as:
Fundamental inconsistencies
between the claimant’s witness
statement, evidence and the CNF;
Inconsistencies in respect of the
claimed period of recovery; and
Undergoing more physiotherapy
than was medically necessary.
Counsel for the defendant argued that the
claim should be dismissed, because the
claimant was fundamentally dishonest,
pursuant to s.57 of the Criminal Justice and
Courts Act 2015.
Spencer J agreed, following the case of
LOCOG v Sinfield [2018] EWHC 51 (QB). The
judge overturned the 1st instance decision.
Richards & Anor v Morris [2018] EWHC 1289
(QB)
The case of Richards was factually similar to
Molodi. The defendant appealed the 1st
decision, in which the claimants were
awarded damages.
At 1st instance, HHJ Main QC did not make
a finding of fundamental dishonesty,
despite remarking that one of the
claimant’s evidence was ‘hopelessly
inconsistent’. Spencer J, presiding over this
case, criticised HHJ Main QC for another
benevolent display. He reasoned that the
claimants’ evidence was ‘inconsistent’,
‘unreliable’ and ‘on occasions, downright
untruthful’. Further, he was wrong to accept
evidence after using the adverb
‘hopelessly’ to qualify how inconsistent the
claimant had been.
At paragraph 67, Spencer J summarised
that the claimants had:
Exaggerated medical
treatment and injuries;
Provided inaccurate
information to the medical
expert about previous
medical history and
accidents;
Included false information in
the CNF; and
Adduced an unsustainable
schedule of loss.
Spencer J dismissed the claim on the basis
that the judge should have found that the
claimants had failed to prove their case.
There was no fundamental dishonesty
ruling.
Part of the reasoning given for this was that
he had ‘not seen or heard the Claimants for
myself, nor had an opportunity to assess
them as witnesses’. The judge also
reasoned that, at the appellate level, he
did not have sufficient evidence to make
the finding of fundamental dishonesty,
where HHJ Main QC did, but erred in not
doing so.
Molodi and Richards demonstrate how
unreliable claimants, who give inconsistent
witness evidence, can influence a
fundamental dishonesty decision. The
claimant in Molodi was dishonest through
omission. They failed to disclose relevant
information to the medical expert. The
claimants in the Richards could have been
deemed dishonest through positive action.
They provided inaccurate and
exaggerated factual information to the
medical expert.
The full text judgment of Molodi can be
found here
The full text judgment of Richards can be
found here.
Liability When Risk
Assessments Are Not
Heeded: CC v Leeds
County Council [2018]
EWHC 1312 (QB)
In the recent case of CC v Leeds County
Council [2018] EWHC 1312 (QB), Mr Justice
Turner provided guidance on the effect of
improperly conducted risk assessments on
findings of breach of duty and causation.
A personal injury action was commenced
against the occupier of premises, on which
an accident took place. The interior of the
premises was dim and set on multiple
levels. The claimant alleged the defendant
had been negligent and was successful at
first instance.
On appeal, before Turner J, the defendant
argued that the first instance judge had
erred in finding breach of duty on evidence
unrelated to the practicability of
preventative measures. Further, the judge
had failed to identify any breach which was
potentially causative of the claimant’s
injuries.
On breach of duty, Turner J stated that:
‘... courts must, in cases such as this, resist
the lure of hindsight bias as a result of which
events known to have occurred are judged
to have been more predictable than they
actually were’.
In this instance, the defendant had
prepared a risk assessment four months
prior to the accident. The assessment
identified a risk of tripping and insisted that
visitors should be warned about the
potential to trip over ridges, as a control
measure. Members of supervisory staff,
however, disclosed no risk of tripping in the
health and safety script. Given the lack of
warning, Turner J reasoned:
‘A failure to implement a control measure in
a formal risk assessment will not inevitably
connote a breach of duty in negligence
PAGE | 10
but in most cases it is likely to go a very
considerable way towards it’.
On causation, the judge analysed that the
judge at first instance had made a positive
finding that ‘the failure to warn was a free
standing cause of the accident in the "but
for" sense’. The defendant was unsuccessful
in contesting the sustainability of this
argument.
As such Turner J dismissed the appeal on all
grounds.
Full text judgment can be found here.
Disability in Military
Personnel With Mental
and Physical Disorders
A new study has discussed how mental and
physical disorders contribute towards
disability in Canadian military personnel.
Millions of military personnel have been
exposed to the risk of developing mental
and physical disorders after serving in
recent and ongoing conflicts in Southern
Asia. The researchers therefore hoped to
gain understanding of how these disorders
relate to disability.
Past studies have tended to focus on
subsets of the military population (e.g.
deployed personnel), single out observed
health conditions (e.g. traumatic brain
injury), or isolate disability outcomes (e.g.
medical discharge).
The objective of the current study, however,
was to assess the effect of many different
disorders on disability, in a broad military
population.
All 6,696 participants had taken part in the
2013 Canadian Forces Mental Health
Survey. The assessment was devised by the
World Health Organisation (WHO), and
considered cognition, mobility, self-care,
getting along, life activities and
participation in society.
Disability, for the purposes of the
assessment, was classed as either ‘no/mild
disability’ or ‘moderate/severe disability’.
The participants were asked which mental
and physical disorders they had been
diagnosed with, by a health professional,
lasting longer than 6 months.
Mental disorders investigated, included:
Mood disorders (depression,
bipolar/mania, and dysthymia),
Anxiety disorders (phobia,
obsessive-compulsive and panic);
and
Post-traumatic stress disorder
(PTSD).
Chronic physical disorders investigated,
included
Asthma;
Fibromyalgia;
Arthritis;
Back pain;
Other chronic musculoskeletal
problems;
Hypertension;
Migraines;
Diabetes; and
The after-effects of traumatic brain
injury (TBI).
The average disability score was in the
lower end of the ‘mild’ disability range.
Chronic physical conditions, reported by
53% of participants, were more common
than mental disorders, reported by 13%.
However, a greater percentage of those
with mental disorders (35%) had
‘moderate/severe’ disability, compared to
those with physical disorders (17%). The
most prevalent ‘moderate/severe’ disability
was found in those with ‘other mood
disorders, PTSD and depression’. Among
the chronic physical conditions
investigated, those with the highest
prevalence of ‘moderate/severe’ disability
had developed ‘fibromyalgia, TBI, and
arthritis’.
The overall prevalence of
‘moderate/severe’ disability was 10%.
Women, older members, and senior non-
commissioned members had higher
prevalence of ‘severe’ disability.
Overall, the disorders that made the
greatest contributions to disability were
‘chronic musculoskeletal problems, back
problems, mood disorders and PTSD’.
Mental disorders accounted for 27% of the
burden of ‘moderate/severe disability’,
while physical conditions accounted for
62%. Of the chronic physical conditions,
back problems or other chronic
musculoskeletal problems resulted in the
vast majority of ‘moderate/severe
disability’, due to the high prevalence of
these disorders.
Around 10% of participants reported
having both physical and mental disorders.
An interaction between mental and
physical disorders was noted. The
researchers found that those suffering from
mental health conditions experienced
greater disability from a physical condition
compared to those without mental health
conditions.
In addition, those with both mental and
physical disorders were more likely to report
disability than those suffering with a single
condition. Indeed the likelihood was
greater than the cumulative risk of both
disorders. Generally speaking, this
relationship was strongest in back disorders
and other chronic musculoskeletal
patients, who also had mental disorders.
However, the study had some limitations.
For example, the researchers assumed that
the disorders preceded the disability, on
the premise that, in all cases, the disabilities
were caused by the disorders. This is a
potentially troublesome assumption to
make, however, as not all disabilities can
be attributed to an existing mental or
physical disorder. Also, the analysis did not
differentiate between occupational and
non-occupational health problems.
Potentially, some participants’ disabilities
were related to conditions which were not
considered by the authors of the study, or
alternatively, undiagnosed conditions.
In conclusion, the researchers advised that
methods of disability prevention and
control in military personnel should focus on
chronic musculoskeletal conditions, back
problems, mood disorders and PTSD.
PAGE | 11
References
1 Beliveau, P. J. H., Boulos, D. & Zamorski, M. A. Contribution of mental and physical disorders to disability in military personnel. Occup
Med (Lond) doi:10.1093/occmed/kqy066 <https://academic.oup.com/occmed/advance-
article/doi/10.1093/occmed/kqy066/4999683> (Accessed 27 May 2018)
PAGE | 12
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an update on issues that may be of interest to those
handling occupational disease claims. Specialist
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particular case.
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PAGE | 13
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Registered Office: 1 Nelson Mews, Southend-On-Sea, SS1 1AL
BC Legal is a trading name of BC Legal Limited which is registered in England and Wales under company number 08963320
We are Authorised and Regulated by the Solicitors Regulations Authority (SRA No 617698)