Update: personal injury

In the last few months there have been several important developments in various areas. As before, the courts have had to confront and decide on complex arguments concerning issues such as causation.

Pleural plaques claims

After much speculation, Jack Straw MP has issued a statement confirming that the government will not overturn the House of Lords ruling in Johnston v NEI International Combustion Limited & others [2007] UKHL 39 which upheld that pleural plaques (scarring of the lungs caused by asbestos exposure) do not constitute 'damage' under law.

The Lords ruling was met with widespread criticism not just here but also in Scotland. There, the Scottish Parliament promptly brought in legislation to overturn the Lords ruling because it felt individuals who were at risk of developing more serious diseases and suffered anxiety should not be left uncompensated.

The Scottish Parliament recently successfully resisted a judicial review challenge by a group of insurance companies and so the law supporting such claims there remains (there are only two other known cases of an Act of Parliament being challenged through judicial review in Scotland).

Here, the government distributed a consultation paper inviting feedback on 9 July 2008. Their decision appears solely to be based on the medical evidence submitted to them which confirms that pleural plaques are (most of the time) asymptomatic and that they do not, by themselves, put the sufferer at any greater risk of serious diseases (it is the exposure to asbestos not the pleural plaques which creates the risk). The government does not appear to have considered any other matters/arguments in favour of overturning the House of Lords ruling.

When the lords gave their judgment, they did not appear to be entirely comfortable with the outcome they reached which was based solely on the principles of tort. In fact, Lord Hope and Lord Scott expressed reservations that sufferers were left with no cause of action and suggested a possible claim in contract. Therefore, they certainly considered whether pleural plaques sufferers deserved some redress even if there was no entitlement in tort.

Many sufferers were hoping the government would acknowledge this entitlement and compensate them for the understandable anxiety they experience and their increased risk of future disease (irrespective of whether it is the pleural plaques or the asbestos exposure which causes it). The government is not restricted by tort principles and is able to look at the broader issues and enact legislation, as it has done in the past; the most recent example being the Compensation Act 2006, which restored the 'Fairchild principal' of joint and several liability between mesothelioma defendants.

The public will no doubt find it difficult to reconcile the dichotomous approaches of both Parliaments. The only option left open to English pleural plaques sufferers is to seek judicial review. However, claimants do not have the same resources as insurance companies to mount such a formidable challenge.

To soften the blow of denying pleural plaques compensation (and some would say to demonstrate its commitment to asbestos sufferers) Jack Straw also announced a raft of measures to enhance and facilitate damages to those most severely affected: mesothelioma victims. As well as proposing increases to state benefits already available and committing to setting up a national research centre for asbestos disease, the government has proposed a working group to examine legal practice and procedure and to consider options in relation to damages; particularly the invidious decision faced by those with limited life expectancy as to whether they should settle their claims in their lifetime, or leave matters until after their death (for a more valuable fatal accidents' award).

Significantly, the government stated its commitment to analysing the search for historic insurers which often leaves asbestos victims without a defendant to pursue. The government has proposed an Employers' Liability Tracing Office and a 'fund of last resort' (ELIB) to give asbestos victims the same security of claiming as is already offered to road traffic accident victims through the MIB. Developments in relation to this will be closely analysed in future, particularly given the impending general election.

Causation and intervening acts

Turning to case law, it is useful to note the Court of Appeal's decision in Robert Spencer v Wincanton Holdings Ltd [2009] EWCA Civ 1404.

Mr Spencer (S) had his leg amputated following an accident at work. After three years, he attempted to fill up his car at a petrol station without asking for help. He fell and sustained further injury which meant he was permanently confined to a wheel chair.

The trial judge found the defendant (W) liable for both accidents but gave a one third reduction for the second on account of S' own contributory negligence. W appealed, arguing the second accident was caused solely by W's 'unreasonable' conduct which constituted a novus actus interveniens relying McKew v Holland & Hannen & Cubitts (Scotland) Ltd [1969] 3 All ER 1621 HL.

However, the Court of Appeal, in dismissing the appeal, considered 'unreasonable' had many meanings ranging from simple lack of caution to irrational behaviour. To identify where someone's conduct fell within this range, it was helpful to note its purpose which is to determine what is remote. The Court of Appeal considered some previous authorities, ultimately preferring the approach in Kuwait Airways v Iraqi Airways (4 and 5) [2002] UKHL 19 which concluded that one of the key issues in identifying which consequences are remote was to consider whether it is 'fair' to hold the defendant liable for it. While conceding this approach provides limited guidance, the court confirmed that where there was unreasonable conduct by the claimant this would be unfair. Therefore, coming back to the term 'unreasonable', the court referred to Emeh v Kensington etc AHA [1984] 3 All ER 1044 which held the level of unreasonable conduct required was 'very high'.

In S' case, the trial judge had applied the correct tests in finding S' conduct fell far below this level and so there was no error in law. There was therefore no reason to go behind his judgment.

Primarily, this case illustrates the high degree of flexibility courts retain in determining what is remote. Each case will turn on its own facts and so the parties can never be sure of achieving a successful outcome. In cases where the claimant's own conduct is to be considered, while only very serious unreasonable behaviour breaks the causal chain they should be braced for a significant reduction on account of contributory negligence if their actions contributed to the damage in some way.

Occupiers' liability

In Jonathan Harvey v Plymouth City Council [2009] QBD, the court considered the application of the Occupiers Liability Act 1957 and the duty owed to visitors or 'implied licensees'. However, this case is unique in that the defendant (P) was unaware, at the time of the accident in 2003, that it occupied the land in question and therefore claimed to have no knowledge of its uses which meant it could not impliedly license such use.

P had granted Tesco a license of the land in 1985 which expired at some point after. Exactly when is not known as the relevant documents were destroyed. However, at trial, P admitted it was occupier of the land in 2003 but just claimed not to know this at the time.

Mr Harvey (H) was injured when he ran into the land when he was drunk. He ran to the land's boundary adjacent to a Tesco superstore and fell into the store's car park. There was a considerable drop of about five and a half metres between the car park and the land, causing H to sustain serious head injury.

H contended he was an implied licensee because the land was regularly used by individuals of all ages, particularly those drinking alcohol. It was reasonably foreseeable that youths might be fooling around near the boundary and so were not trespassers but 'implied licensees' of P.

The court accepted P's counter argument that it could not assent to what the land was used for where it had no knowledge of such use. However, the main question was whether actual knowledge of such use was required.

The court held that as P knew when the licence was granted it should have known when it expired. Therefore, following expiry or shortly before, P should have thought about the potential land uses and taken measures to ensure the public's safety. Because P had subsequently accepted occupation, it was implied in that acceptance that it knew or ought to know how the land might be used. Therefore, it was not necessary to prove actual knowledge.

With this inferred knowledge, P failed to implement safety measures that could have prevented the accident and so breached their duty. Accordingly, judgment was for H but his damages were reduced considerably (by 75 per cent) because it was likely he would not have fallen if he was sober.

This case evinces the court's reluctance to accept arguments where defendants plead ignorance. Even if the circumstances are unusual, if they could have taken antecedent steps to put themselves in a position where knowledge could be acquired, they will be found liable.

Low-level asbestos exposure

In Diane Willmore v Knowsley Metropolitian Borough Council [2009] EWCA Civ 1211, a former school pupil (W) successfully sued following her exposure to asbestos at her school (K) which, many years later, caused her to develop mesothelioma.

This case is important for two reasons. First, claims following pupils' asbestos exposure in schools can be hard because of the difficulties of proving the extent of such exposure which tends to be relatively low. More fundamentally, however, this case is significant because of the manner in which the 'Fairchild' test was applied. Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22 ruled it was sufficient to show the asbestos exposure 'materially increased the risk' of developing mesothelioma as opposed to proving it actually caused it. It is presently accepted that only a small amount of asbestos can cause this disease but there is an ever-present background concentration of asbestos in the atmosphere (albeit very low) which everyone inhales and so a claimant has to show the negligent exposure was at a level which increased his/her background risk.

The Court of Appeal stated that there was no safe dose of asbestos and while there was a requirement to show this exceeded a certain minimal level the wording of their judgment suggested the minimum level remains low. It stated that a 'risk of exposure was a risk of harm'.

Interestingly, Willmore was decided without the benefit of expert evidence and the court found itself able to make its decision on witness evidence alone. A more analytical and enlightening judgment was given by the Court of Appeal in Sienkiewicz (Estate of Costello, deceased) v Greif (UK) Ltd [2009] EWCA Civ 1159. Mrs Costello's estate claimed against her former employers for the increased levels of asbestos dust in the factory atmosphere where she worked as an office worker. Mrs Costello had not been exposed elsewhere in employment, but it was accepted that she would have been exposed to a low level of asbestos in the general atmosphere where she lived in Ellesmere Port. For the first time, the court considered section 3 of the Compensation Act 2006 in detail. At first instance, the claimant lost on the basis she had failed to prove the occupational exposure had more than doubled the risk of developing mesothelioma. It was found the occupational exposure had only increased the risk over and above the environmental risk by 18 per cent. In doing so, the judge followed HHJ Hickinbottom from Jones v Metal Box Ltd (11 January 2007, unreported).

On appeal (Lady Justice Smith giving the leading judgment) the claimant successfully overturned the decision on the basis 'it is not open to a defendant to put the claimant to proof of causation by reference to a two-fold increase in risk'. The correct test henceforth in low-level asbestos exposure cases is therefore confirmed as being proof that 'the tortious exposure'¦ materially increased the risk [of developing mesothelioma]'. Undoubtedly, this gives mesothelioma claimants a significant argument to advance low-level exposure cases.