What makes an injury 'actionable'? The Supreme Court offers some guidance - Joanna Lewis, Queen Square Chambers

11/10/18. Although Dryden v Johnson Matthey PLC [2018] UKSC 18 is a case involving industrial disease, the Supreme Court’s decision has wider significance in helping to clarify what makes a personal injury ‘actionable’.

The Facts

The Appellants worked for the Respondent in factories making catalytic converters. Platinum salts were used in the production process. The Respondent, in breach of health and safety duties, failed to ensure that the factories were properly cleaned and as a result the Appellants were exposed to platinum salts. This exposure led them to develop platinum salt sensitisation, a condition where the immune system produces IgE antibodies. This condition shows no symptoms but further exposure to platinum salts is likely to cause an allergic reaction with symptoms such as bronchial problems, rhinitis, or skin or eye irritation. When the Appellants sensitisation was detected, the Respondent no longer permitted them to work in areas where they might be exposed to platinum salts and develop reactions. The Appellants claimed they suffered financially because they had to take up different roles with the Respondent at a reduced rate of pay or because they had their employment terminated...

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A on behalf of Estate of B v C NHS F Trust - Andrea Ribchester-Hodgson & Sarah Wright, Spencers Solicitors

09/10/18. IN THE COUNTY COURT MONEY CLAIMS CENTRE

Case Number D86YM033
Date of Negligence November 2011
Settlement Date 31st May 2018
TOTAL NET SETTLEMENT £12,500.00

Background

B was diagnosed with lung cancer in or around November of 2011 and was advised that there was no treatment for her condition. She was discharged from hospital and no follow up by the respiratory department was arranged.

B suffered increased pain, reduced mobility and her health deteriorated because of the absence of any treatment / any accurate diagnosis for what was in actual fact an inflammatory arthritic condition.

Despite her diagnosis B did not suffer any decline in her respiratory condition and in May 2013 attended her GP who arranged further investigations. In June 2013 it was confirmed following a CT scan that she had been misdiagnosed with lung cancer, when she was in fact suffering from rheumatoid arthritis.

Due to the length of time the condition had been left untreated the treatment undertaken thereafter was unsuccessful and B was left with very limited use of her limbs, she moved to a care home in November 2013 where she died in 2014.

It was estimated that B’s life expectancy was reduced by approximately 3 years as a result of the delay in the diagnosis.

Liability

The Claimant’s position was that the diagnosis of lung cancer was based on insufficient assessment with the CT scan being suspicious of, but not diagnostic of, lung cancer.

The Defendant position was that the Claimant was too ill to undergo further tests, however the Claimant contended this position was based on an inadequate clinical assessment.

Further the MDT assessment was inadequate; no further management plan such as observation with repeat CT scan was considered, no follow up in the respiratory clinic was arranged nor were any palliative care arrangements put in place.

Overall the diagnostic and treatment decisions taken were below the standard of care recommended for lung cancer patients and as a result of the diagnosis given to the Claimant her rheumatoid arthritis went untreated and led to her protracted pain and suffering.

Breach of duty was denied by the Defendant throughout.

Settlement was agreed between the Parties without any formal concession of breach of duty following the issue of court proceedings and the Defendant liability position was considered when reaching settlement.

Quantum

The Claimant’s solicitors issued proceedings due to the Defendant making only a minimal Part 36 offer of £4,000.00 pre-issue.

The Claimant’s claim comprised a claim for PSLA, some care and assistance, travel expenses and funeral expenses.

The Defendant contended the Claimant’s additional care would have been required in any event.

Settlement was agreed between the parties by way of Part 36 in the global sum of £12,500.00.

Solicitor for the Claimant Andrea Ribchester-Hodgson of Spencers Solicitors

Solicitor for the Defendant Margaret Duncan of Kennedys Law

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Pleadings and fundamental dishonesty: Howlett affirmed as film director’s compensation claim is dismissed - Jeff Turton, Weightmans LLP

02/10/18. David Pinkus v Direct Line [2018] EWHC 1671 is an example of another claim being dismissed under section 57 Criminal Justice and Courts Act 2015. The claimant raised a preliminary issue as to whether the defendant should be prevented from arguing the claim was dishonest at all.  The facts  The claimant was involved in a road traffic accident on 21 August 2012 with the defendant’s insured. Liability was admitted, but the value of the claim was hotly disputed. The claimant, who claimed that he suffered from profound psychological/psychiatric symptoms which resulted in his loss of a job as an assistant film director, valued his claim at £850,000. The defendant accepted that the claimant sustained some injury but, having identified a significant number of credibility issues in respect of the claim, valued it more conservatively at £2,000-£3,000.  The claimant raised a preliminary issue at trial, which was that the defendant was not entitled to argue the claim was fundamentally dishonest, on the basis that the issue was raised too late and the related pleading was defective.

The pleadings issue

In its updated counter schedule of loss, which was served less than one month before trial, the defendant contended that the claim was fundamentally dishonest. The original defence made no such allegation.The claimant objected to the defendant’s approach and contended that the allegation was not pleaded with sufficient particularity. In response, the defendant relied upon Howlett v Davies [2017] EWCA Civ 1696, in which the Court of Appeal found that a district judge had been entitled to find that a personal injury claim was fundamentally dishonest, despite no formal allegation of fraud being pleaded in the defence. The defendant also pointed out that, whilst dishonesty was not expressly in issue from the outset, the original defence had denied that the accident occurred as the claimant said, the defendant had also disclosed surveillance evidence, the claimant also knew that there was a vast difference in the respective parties’ valuation of the claim and, at an earlier hearing, the defendant had served a skeleton argument, which set out that, “The credibility, honesty and reliability of the claimant [were] in issue”.In relation to the pleadings issue, the judge accepted that the claimant had been placed fairly on notice of the concerns raised by the defendant and, in keeping with Howlett, it was open to him ‘having heard all the evidence, to conclude that the claimant is lying or exaggerating in respect of some of his claim’.

The judgment

Having decided the preliminary issue in the defendant’s favour, the judge then carried out a methodical analysis of each area of evidence, to include the claimant’s pre and post accident social media posts.

In comparing the claimant’s social media posts with the case he had presented, the judge remarked, “On the one hand particularly by reference to Facebook posts he seems to have been living his life normally. On the other hand, by reference to the accounts he has given to the experts and by reference to his presentation in the witness box he is a broken shell of a man unable to do almost anything”.

In respect of the defendant’s application under section 57 Criminal Justice and Courts Act 2015 for the entire claim to be dismissed, the judge adopted the approach of the High Court in LOGOC v Sinfield [2018] EWHC 51 (QB) and asked himself whether the claimant had “acted dishonestly… …and that he has thus substantially affected the presentation of his case… … in a way which potentially adversely affected the defendant in a significant way”.

Perhaps unsurprisingly, in circumstances where judge found the claimant had “deliberately fabricated the vast majority of the claim” and that the genuine element was worth just £4,500, he answered the question in the affirmative and dismissed the entire claim.

Jeff Turton is an Associate at national law firm Weightmans LLP

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