Developments in the Law Relating to Personal Injury

William Evans

Introduction

• When is an injury a claim?

• Is a probability a certainty for someone?

• Does fault matter any more?

• Should you pay compensation just because someone deserves it?

• The focus on asbestos

Asbestos & Fear

• Road Casualties 2005– Total: 271,017– Deaths: 3,201– Serious injury: 28,954

Male CancerDeaths

0

500

1000

1500

2000

2500

Lung Cancer

Mesothelioma

Lung CancerSurvival

0

5

10

15

20

25

30

1986-90 1991-95 1996-99 2000-01

%

men - 1 yr

men - 5 yr

Asbestos & Fear

• Lung Cancer 2003– Deaths: 1,474– Survival for 1 year: 25%– Survival for 5 years: 7%

• Mesothelioma 2003– Deaths: 1,600– Survival: Average 12 to 18 months

Recent Cases

• Fairchild v Glenhaven Funeral Services

• Barker v Corus

• Rothwell v Chemical & Insulating Co Ltd

• Bolton v MMI & CU

Fairchild v Glenhaven

• Causation

• Did you actually cause harm?

• Did you increase the risk of harm?

• Mesothelioma justifies a legal fiction.

Barker v Corus

• Murray v British Shipbuilders (Hydrodynamics) Ltd

• Patterson v Smiths Dock Ltd

• Barker: contributory negligence not enough

• Murray & Patterson: D should only pay for proportion related to increased risk

Barker v Corus

“The more you are exposed, the more likely you are to get it, in the same way as the more you spin the roulette wheel, the more likely is a given number to come up.”

Lord Hoffman

Barker v Corus

“Consistency of approach would suggest that if the basis of liability is the wrongful creation of a risk or chance of causing the disease, the damage which the defendant should be regarded as having caused is the creation of such a risk or chance. If that is the right way to characterize the damage, then it does not matter that the disease as such would be indivisible damage. Chances are infinitely divisible and different people can be separately responsible to a greater or lesser degree for the chances of an event happening, in the way that a person who buys a whole book of tickets in a raffle has a separate and larger chance of winning the prize than a person who has bought a single ticket.”

Lord Hoffman

“In the end, however, the important question is whether such a characterisation would be fair.”

Lord Hoffman

Barker v Corus

Compensation Bill

• Clause 1:– If the activity is desirable judge should not

impose liability if it will discourage such activity in the future

• Clause 3:– If the NHS apologises that does not mean you

can have damages

• Now an Act with Ss. 1, 2, 3, 16 & 17 in force 25 July 06

• Amendment to add clause 3:– If you are liable for someone’s mesothelioma

you pay 100% of the damages– But you can get contributions from anyone

else also liable– The FSCS will be amended by Regulations in

some way

• Retrospective back to 3 May 06

Compensation Bill

Compensation Bill

• Dismore amendment– New clause 7— Asymptomatic chemical

exposure—– ‘The lodging in the body of a chemical or

substance which may cause injury as a consequence of negligence or breach of statutory duty, shall give rise to a cause of action whether or not the lodging has caused symptoms at the time the action is commenced or brought to trial.’

The Debate

• All parties support the mesothelioma amendment

• All speakers praise the Government for introducing it

• The ABI is said to feel that it may not go far enough to provide full compensation for all

• Government accepts calls for compensation scheme

Oliver Heald

“how would the Minister respond to a letter that I have received from the solicitor who acted for the Department of Trade and Industry..?“It appears that the same government for which I was acting in what was then considered to be in the public interest has now apparently decided, following a clamour of protest, to legislate to reverse the decision which it itself sought.”which Minister decided to take the case of Barker v. Corus forward? How much did it cost, and why have the Government got into this mess?”

Bridget Prentice

“I am disappointed that the hon. Gentleman is trying to make juvenile points…

no Government name appears in the case of Barker v. Corus...

The case was taken by the families against Corus. He should stop trying to make silly interventions and allow us to take a historic decision today...”

The question of whether pleural plaques should be a compensatable disease in respect of which a cause of action can be brought is currently the subject of an appeal to the House of Lords, so I do not believe that it is right for the Government to pre-empt the Law Lords’ consideration of those cases by legislating in that way at this time.

Bridget Prentice

To return to the new clause, it is undesirable in itself. It is worded in very general terms and could potentially extend to a range of other situations where no actual damage is apparent at the time an action is commenced or brought to trial. That could create confusion and uncertainty in the law and lead to extensive and costly litigation over the possible circumstances in which it applied.

Bridget Prentice

Independent?

Chris Bryant: But if the judges get it wrong, which they seem to do quite often, what legislative remedy would be available in the fairly near future?Bridget Prentice: I hope that, with the debates going on here and in the other place and with the careful consideration of the judges, they do not get it wrong.However, I can tell my hon. Friend that the Department for Work and Pensions will be launching a Bill in the not too distant future.It is not for me to say at this stage, but if such a Bill were to be introduced, my hon. Friend and others would be able to lobby my colleagues in the DWP to establish whether further legislation was appropriate.

Our Philosophy

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British Coal Scheme Cases

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Merit basedcompensation

• The disease is awful

• Someone is responsible for exposure

• Employers should have known better

• Insurers collected a premium

• Everyone should be paid compensation

• The insurance industry can afford it

Back to Bolton

• Injury occurring means when an actual injury occurs

• Cover for claims that will take 10 years to appear

• More medical evidence may make it 5 or 15 or something else

• Will it apply to EL policies?

Conclusion

• Mesothelioma compensation is now based on a perception of the merits of providing “full” compensation and not on traditional legal principles

• What is next?

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