14 April – 5 May 2011
Prepared by
Laura Pearce and David Kidman
Contents
Case of the week
Quantum
Procedure
Press
Contact
To request cases or the full text of articles please contact:
Helen Cafferata
National Information Services Manager
Case of the week
(1) The claimant developed asbestosis as a result of exposure to asbestos whilst employed to stack bricks by Cape Building Products Ltd (the employer) for about 18 months between 1959 and 1962. The employer had long ceased to exist and there was no relevant EL insurance covering the employment period. The employer was a subsidiary of Cape Plc (‘the defendant’). The claimant sought damages from the defendant rather than against his former employer. The issue for the High Court was whether the defendant owed the claimant a duty of care.
The judge applied the three-stage test from Caparo Industries Plc v Dickman [1992] in order to decide whether the defendant owed a duty of care to the claimant. In the very specific circumstances of these two companies, he held that:
(i) The defendant had actual knowledge of the claimant’s working conditions (asbestos dust/fibres were permitted to escape ‘without any real regard for the consequences’). The defendant should have foreseen the risk of injury to the claimant.
(ii) There was sufficient proximity between the claimant and the defendant. The defendant employed a scientific officer and a medical officer responsible for health and safety issues relating to all employees within the group of companies of which the defendant was parent. The defendant had overall responsibility for ensuring that its own employees and employees of its subsidiaries were not exposed to the risk of harm from exposure to asbestos.
(iii) Imposing a duty of care here was fair, just and reasonable in all the circumstances. By the late 1950s, it was clear to the defendant ‘that exposure to asbestos brought with it very significant risk of very damaging and life threatening illness.’
David Brian Chandler v Cape Plc (2011)
See Lawtel document no. AC0128468
Case comment by Barbara Milne, Partner, BLM London
This case will be of concern to those of us who represent or insure parent companies with dissolved subsidiaries, but defendants should be reassured that each case will firmly rest on its facts, and that the court did not ‘pierce the corporate veil’.
Here, the specific facts included that there were many contemporaneous documents available which showed the degree of control exercised by the defendant over the employer’s activities. There was a Group Medical Advisor responsible for the health of all the employees in the group, plus a Group Chief Scientist and a Group Chemist. The employer inherited the defendant’s working practices, and the employer’s production processes were authorised by the defendant’s board. In 1961, the defendant had investigated a case of asbestos disease at the employer’s factory. The fact that each subsidiary had its own safety committee was not inconsistent with the defendant having divested itself of all responsibility, and it was enough that the defendant took overall responsibility for the measures taken by the employer to protect employees from asbestos exposure.
The judge was clear that he wanted to ‘dispel certain possible misunderstandings which might arise in cases of this type or upon a cursory reading of this judgment.’ First, whilst the fact of a duty between the claimant and his employer is one factor to be taken into account, the existence of that duty cannot preclude another person being fixed with a duty of care. Second, the fact that Cape Products was a subsidiary of the defendant or part of a group of companies of which the defendant was the parent could not mean, by itself, that the defendant owed a duty to the employees of Cape Products, consistent with the long held authority of Adams and others v Cape Industries plc & another [1991]. Equally, the fact that Cape Products was a separate legal entity from the defendant could not preclude the duty arising. Third, this case had not been presented on the basis that Cape Products was a sham (ie: being nothing more than a veil for the activities of the defendant). Accordingly, this was not a case in which it was appropriate to ‘pierce the corporate veil.’
Quantum
(2) JSB Guidelines: n/a
Total damages: £1,250,000
PSLA Award: £80,000
Injury: Crushed foot, knee and hand injury
This 42-year-old claimant brought a claim against the employer of an articulated lorry driver who drove over his foot. The claimant’s foot was crushed and he suffered an extensive degloving injury. He fractured his medial malleolus and the phalanges of his third, fourth and fifth toes. He dislocated the metatarsophalangeal joint of his right big toe and the proximal interphalangeal joint of his second toe. He underwent operations on his foot, skin was grafted from his thigh, and four of his toes and part of his foot were amputated. Due to regular use of crutches, the claimant developed a tendon injury in his left hand which resulted in surgery and a further skin graft. Excessive use of his left knee exacerbated a pre-existing anterior cruciate knee injury.
Paul Burwood Lloyd v Steve Woolston & Son (2010)
See Lawtel document no. AM0201713
(3) JSB Guidelines: n/a
Total Damages: £190,000
PSLA Award: £55,000
Injury: Weak bowels and significant scarring
Following medical treatment in February 2006, the claimant developed an infection. An appendectomy was carried out and it was noted that the claimant’s appendix looked normal, her right ovary and tube were satisfactory and there was free fluid in the peritoneal cavity and a hard lump on the mesenteric aspects of the terminal ileum. The claimant continued to suffer abdominal pain and felt nauseous.
The claimant underwent a diagnostic laparoscopy, where they found pus within the bowel loops; a laparotomy was subsequently performed and ovarian cysts were removed. As a result of the injury, the claimant had to defecate between 15 and 20 times daily, without much prior warning. It was also argued that as a result of the pelvic abscess the claimant’s fertility would be compromised in the future.
M v Tameside Hospital NHS Foundation Trust (2011)
See Lawtel document no. AM0201705
Procedure
(4) Following settlement of a personal injury claim, the defendant in the first action (applicant) applied for the committal of the claimant (respondent) for contempt of court. Documents had emerged which led the applicant to believe that the respondent had deliberately and dishonestly inflated his claim.
In particular, the applicant alleged that the respondent had been dishonest in relation to his employment position, had told medical experts that he did not work when he had in fact returned to work and misinformed his solicitors.
In order for the respondent to be found guilty of contempt of court, it had to be proved that he had interfered or attempted to interfere with the administration of justice. The court dismissed the application and found in favour of the respondent. It was established that the respondent had provided his original solicitors with full details of his post-accident employment. It was also shown that the respondent was keeping his solicitors informed about his employment and his earnings and therefore there was no attempt to conceal this information.
As well as this, the respondent’s solicitors had not explained the effect of signing a statement of truth and the consequences if any document contained any information that was untrue. The court expressed concern as to the extent of the advice the respondent had been provided by his solicitors. As a result, although there were ‘a number of unsatisfactory features’, the court held that there remained some doubt in this case and the respondent was therefore entitled to the benefit of that doubt, in accordance with the criminal standard of proof.
Bruce Samuel Montgomery v Carl Brown (2011)
Lawtel document no. AC0128359
(5) An application was made by the defendant companies to stay this action on the ground that England was not the most appropriate forum. The claimant sustained severe injuries in a road traffic accident whilst working as a security consultant for one of the defendant companies in Iraq. The defendant companies argued that Iraq was the most appropriate forum as the tort was committed in Iraq.
The court considered that, although the damage was sustained in Iraq, the respondent’s losses were sustained within the jurisdiction as he had returned to England for medical treatment; consequently he suffered pain and suffering, loss of earnings and other financial losses in England.
It was also established that the respondent had reasonable prospects of succeeding if he were to pursue a claim in negligence. Ultimately, the burden of proof was on the defendant companies to demonstrate that England was not the appropriate or convenient forum and to establish that in fact an alternative jurisdiction was more appropriate. The court held that the defence position had been manufactured and was disingenuous and the application for a stay was refused.
Anthony Harty v (1) Sabre International Security Ld (Formerly Sis Iraq Ltd) (2) Sabre International Security Ltd (2011)
See Lawtel document no. AC0128327
(6) The judge at first instance did not hand down judgment in this case until 22 months after the conclusion of the hearing. Although there is no statutory rule which would provide that a judgment must be delivered within a specific time, it must be delivered with a reasonable time. The Court of Appeal considered this delay ‘lamentable and unacceptable’ and damaging to the reputation and credibility of the civil justice system as a whole. The issue in this case was the effect that the delay had on an appeal from the decision.
The Court of Appeal held that a delay does not automatically invalidate or undermine the judgment. In the event that delay has occurred, the court must consider the facts of the case and, for example, the significance of any assessment of witnesses.
The appeal court held that the delay in delivering judgment did not render the judge’s conclusions on the issues under appeal so unsafe as to make it just to order a retrial. As a result, the appeal was dismissed.
Graham Henry Bond v (1) Dunster Properties Ltd (2) Dunster Holdings Ltd (3) Grahame Miles James Bond (2011)
See Lawtel document no. AC0128498
Press
(7) Look the part
Guidance on drafting Part 36 offers.
See SJ, 19/04/2011, p17
(8) Looking on tempests
Considers alternatives to Lord Justice Jackson’s recommendations for costs reform.
See SJ Bar Focus, April 2011, p17
(9) Show your working
Comments on the Jackson report proposals in relation to costs budgeting.
See SJ, 03/05/2011, p19
(10) My big fat fraudulent claim
Discusses Do-Buy 925 Ltd v National Westminster Bank Plc, fraudulent claims and the standard of proof.
See NLJ, 29/04/2011, p577
(11) Under surveillance
Discusses Noble v Owens, final judgments and certainty in litigation.
See NLJ, 29/04/2011, p623
(12) Benchmarks: Civil Procedure Rules – Amendments
Examines recent changes to the Civil Procedure Rules.
See Law Society Gazette, 21/04/2011, p20 or online
(13) Keeping secrets
Considers the Data Protection Act and the disclosure of personal or sensitive data during legal proceedings.
See Post Magazine, 20/04/2011, p24
(14) Final curtain?
Discusses success fee recoverability with reference to Sousa v London Borough of Waltham Forest and MGN v UK.
See Post Magazine, 20/04/2011, p25
(15) The end of guns for hire?
Jones v Kaney and the end of expert witness immunity.
See Post Magazine, 05/05/2011, p23
(16) Substantial speculation
Reviews the implications of XYZ v Portsmouth NHS Trust, a future loss of earnings claim in which the claimant was awarded substantial damages for a business that had not even been started.
See Post Magazine, 05/05/2011, p24
(17) Overcoming the obstacles
Discusses Gordon v Dempsey, low-velocity impact motor claims and allegations of fraud.
See Post Magazine, 05/05/2011, p25
(18) Scope of Löfstedt review into health and safety set out
The scope of Professor Löfstedt’s review into health and safety legislation has been set out by the Department for Work and Pensions.
See DWP press release, 20/04/2011 or online
(19) Teachers awarded millions in compensation last year
Reports that teachers were awarded millions of pounds in compensation last year for accidents, assaults and injuries.
See BBC News, 16/04/2011 or online
(20) Firm fined for man’s burns
A company was fined £20,000 and ordered to pay £6,491 in costs after a worker suffered serious burns from a flash fire after opening an oven door.
See HSE press release, 18/04/2011 or online
(21) Company fined after unsafe work on roof
A roofing boss was fined £10,000 and ordered to pay costs of £6,497 his after workers were spotted removing roof tiles without safety barriers or scaffolding.
See HSE press release, 18/04/2011 or online
(22) Cannock firm fined after worker crushed
An engineering firm was fined £40,000 and ordered to pay £20,000 in costs after an employee was crushed to death while working under a wheeled loader.
See HSE press release, 18/04/2011 or online
(23) Plymouth workers exposed to asbestos
A company was fined £10,000 and ordered to pay £3,064 in costs after exposing workers to asbestos containing material during renovation of student accommodation.
See HSE press release, 18/04/2011 or online
(24) Woodworker prosecuted for safety failing
A woodworker was fined £4,000 and ordered to pay costs of £1,305 after risking injury to himself and an employee by ignoring safety guidance and continuing to use an unguarded circular saw.
See HSE press release, 19/04/2011 or online
(25) Roof fall leads to fine
A company was fined £4,000 and ordered to pay costs of £2,000 after a worker was seriously injured when he plunged from a barn roof onto a grain bucket while replacing cement roof sheets on an outbuilding.
See HSE press release, 20/04/2011 or online
(26) Two companies fined after man falls six storeys from roof
A building restoration company was fined £5,000 with £11,300.55 in costs and a fire escape business was fined £3,500 with £11,339 in costs after a labourer fell from a roof whilst working on a building. The fire escape business had been subcontracted to restore a cast iron fire escape and carry out external repair and painting.