News Category 3
Heneghan v Manchester Dry Docks Ltd & Others - Nick Pargeter, BLM
13/12/14. In a successful BLM asbestos-related lung cancer case, the High Court has today held that where the claimant has been exposed to asbestos in breach of duty by more than one defendant, and no defendant is responsible for more than half the total cumulative exposure, damages should be apportioned in line with the relative share of exposure. Damages in asbestos-related lung cancer cases are divisible.
The deceased died from asbestos-related lung cancer in January 2013. He was exposed to asbestos by ten employers. Of these, six were sued by the claimant. The deceased worked for these six (the defendants) between 1961 and 1974. Asbestos exposure with the defendants accounted for 35.2% of the deceased’s total asbestos exposure. Liability was admitted. If the defendants were liable in full, damages totalled £175,000. 35.2% of damages equalled £61,600. The sole issue for the High Court was whether the defendants were liable for damages in full (as the claimant argued), or in proportion to their 32.5% share of exposure (as the defendants submitted).
As Jay J observed, this issue has not been dealt with by previous authority...
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No Liability for Development of Sensitivity to Platinum: Greenway -v- Johnson Matthey PLC - Gordon Exall, Zenith Chambers
07/12/14. In Greenway -v- Johnson Matthey PLC [2014] EWHC 3957 (QB) Mr Justice Jay decided that there was no claim in law for claimants whose exposure to substances at work led to their developing sensitivity to platinum.
THE CASE
A number of claimants had become sensitive to platinum salts as a result of their exposure whilst working with the defendant. They changed jobs and had considerable claims for loss of earnings. The judge had to determine whether they had a claim in law.
WAS THERE AN ACTIONABLE INJURY IN TORT?
The judge found that there was not. He considered the decision of the House of Lords in Rothwell -v- Chemical and Insulating Co Limited (2008) 1 AC 281. Where it was held that exposure to asymptomatic pleural plaques did not give rise to injury capable of a claim for damages in tort. The claimant argued that the case could be distinguished. The judge did not agree...
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Neutral Facilitation - Bill Braithwaite QC, Head of Exchange Chambers
30/11/14. I've been writing for some time about my scheme of neutral facilitation; the parties appoint a neutral facilitator at the outset of the claim, or during its progress, and that person, who needs to be a specialist in the type of litigation being conducted, helps to manage all issues which arise. The philosophy of the scheme is supported by the ADR Handbook, which has the support of the Judicial College, the Civil Justice Council and the Civil Mediation Council.
I was interested to see recently, in a directions order in a clinical negligence case, the order that “at all stages the parties must consider settling this litigation by any means of Alternative Dispute Resolution (including round table conferences, early neutral evaluation, mediation and arbitration”. It is not the reference to trying to settle the claim, which is universal in catastrophic injury litigation, but the specific invitation to consider early neutral evaluation and arbitration. These types of ADR are not commonly used in personal injury litigation, but do form an important part of my scheme.
I would add other forms of ADR, and I would emphasise that the evaluation does not have to be early.
Bill Braithwaite QC
Head of Exchange Chambers
This article was first published at http://billbraithwaite.com/blog/
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Schedules, Counter Schedules and the Gadget Generation - Simon Readhead QC, 1 Chancery Lane
25/11/14. No self-respecting Schedule of Loss is now complete without a hefty claim for “Assistive Technology” items. The response in most Counter Schedules is that the Claimant is likely to have possessed all or some of the items being claimed in any event. The fact is that UK parents now spend a combined £2.25 billion a yearorjust under £300 per year per householdon technology for their children.
This information comes from research on behalf of E.ON UK, one of the UK’s large energy providers.
http://pressreleases.eon-uk.com/blogs/eonukpressreleases/archive/2014/07/25/2376.aspx
We are truly the “gadget generation” in that today’s children possess an average of 4 gadgets each.
Staggeringly, parents with children aged under 5 spend even more. On average a “techie tot” is given gadgets costing £395 per year. Not surprisingly, it is teenagers aged 15-17 who are the most “plugged-in” typically owning 7 devices each.
The trend continues into adulthood. From age 18, parents of males spend over £717 a year on gadgets for their sons. Females aged 18 and over have just under £1,000 worth of gadgets bought for them by their parents per year.
It will come as no surprise to readers not in these age groups to learn that most (56%) of parents acknowledge using their children's “technology hand-me-downs”. 32% of parents also confessed to not being as “tech-savvy” as their children. Most worryingly of all, 14% of parents admitted that they could even match their “techie tots” when it comes to knowing their way around the latest gadgets.
Perhaps the Counters Schedulers have a point?
Simon Readhead QC
1 Chancery Lane
Image ©iStockphoto.com/marvinh
A Fundamentally Wrong Decision - Steven Akerman, Brian Barr Solicitors
19/11/14. One of the reasons that drove the Jackson Reforms was the alleged rampant fraud in the personal injury sector. Accident ‘victims’ (as some would have you believe) saw whiplash claims as easy money. As there is no definitive test to prove that a whiplash injury has been sustained, such claims and by extension all PI claims, were looked on with great suspicion as to whether they were genuine. Fuel was added to the fire by the perceived saviours of this scourge, the Association of British Insurers (ABI), who had the interest of their customers at heart. Such altruism is rarely seen. The fact that there was an actual party at fault for causing an accident with the potential of causing personal injury was not the point. Something had to be done.
Enter the provision for the loss of costs protection via QOCS where a claim is ‘fundamentally dishonest’. How exactly one was to interpret such a provision was unknown. Would there be strict enforcement allowing for disqualification where there was dishonesty that was deemed fundamental without any traces or allegations of fraud? Would a more common sense approach be adopted which distinguished the difference between...
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More Articles...
- Injured Aeroplane Passengers and the Montreal Convention - Aidan Ellis, Temple Garden Chambers
- McDaniel & Co v Clarke (QBD Mr Justice Hickinbottom, 15th October 2014) - Rupert Cohen, Hardwicke
- Coventry and the Incompatability of Jackson/LASPO - Steven Akerman, Brian Barr Solicitors
- Part 36 and PI Claims: Truth and Myths Part II - John-Paul Swoboda, 12 King's Bench Walk
![Appeal judge rules that credit hire company has no costs liability following a finding of fundamental dishonesty in personal injury case: RSA v. Fastrack Solutions Limited [2023] 4 WLUK 92 - David Bowden, Erimus Chambers](/content/images/resized/images/stories/carkeys_72_72.jpg)
