Developments in the Law Relating to Personal Injury

1
Developments in the Law Relating to Personal
Injury

• William Evans

2
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

3
Asbestos Fear

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

4
Male CancerDeaths
Lung Cancer
Mesothelioma
5
Lung CancerSurvival
6
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

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Recent Cases

• Fairchild v Glenhaven Funeral Services
• Barker v Corus
• Rothwell v Chemical Insulating Co Ltd
• Bolton v MMI CU

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Fairchild v Glenhaven

• Causation
• Did you actually cause harm?
• Did you increase the risk of harm?
• Mesothelioma justifies a legal fiction.

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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

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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

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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

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Barker v Corus

• In the end, however, the important question is
  whether such a characterisation would be fair.
• Lord Hoffman

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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

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Compensation Bill

• Amendment to add clause 3
• If you are liable for someones 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

15
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.

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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

17
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?

18
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...

19
Bridget Prentice

• 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.

20
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.

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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.

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Our Philosophy This is our philosophy An Avalon
client brings us their wants. It is our job to
handle them profitably, to them and to ourselves.
13,000,000
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(No Transcript)
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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

25
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?

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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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